Securities and Asset Purchase Agreement, dated as of November 2, 2020, by and between the Company and Buyer

(c)        Schedule 3.21(c) lists all Shared Contracts with respect to the procurement of supplies for the Automotive Thermal Products Business requiring annual payments by the Group Companies in excess of $500,000.  There are no material Shared Contracts with customers of the Group Companies (other than any such material Shared Contracts to which a Group Company is a party thereto).

Section 3.22       Material Customers and Material Suppliers.  Schedule 3.22 sets forth (a) the Material Customers and (b) the Material Suppliers.  No Material Customer or Material Supplier has terminated or materially and adversely changed its relationship with the Group Companies or, with respect to the Automotive Thermal Products Business, Seller Parent or any of its Affiliates, in the past twelve (12) months, and no Group Company or, with respect to the Automotive Thermal Products Business, Seller Parent or any of its Affiliates, has received any written notice, or, to the knowledge of Seller, oral notice, to the effect that any such customer or supplier intends to terminate or otherwise materially and adversely change its relationship with any Group Company or, with respect to the Automotive Thermal Products Business, Seller Parent or any of its Affiliates, including, but not limited to, in each case, as a result of this Agreement or any other Transaction Documents or the transactions contemplated thereby.

Section 3.23        Product Warranty and Product Liability.

(a)         No Group Company or, with respect to the Automotive Thermal Products Business, Seller Parent or any of its Affiliates, has any Liability for replacement or repair for products sold, rented, leased, provided, or delivered by a Group Company or Seller Parent or its Affiliates, with respect to the Automotive Thermal Products Business, to customers, except (i) pursuant to the ordinary course standard written warranty policies of the Group Companies or Seller Parent or its Affiliates or (ii) that would not be expected to result in a material Liability to, or with respect to, the Automotive Thermal Products Business.

(b)        There are no, and since January 1, 2018, there have been no material product liability claims or, to the knowledge of Seller, threatened material product liability claims against the Group Companies or, with respect to the Automotive Thermal Products Business, Seller Parent or any of its Affiliates, whether covered by insurance or not and whether litigation has resulted or not.

(c)       There are no, and since January 1, 2018, there have been no product recall campaigns with respect to products sold by the Group Companies or, with respect to the Automotive Thermal Products Business, Seller Parent or any of its Affiliates, or for which the Group Companies or, with respect to the Automotive Thermal Products Business, Seller Parent or any of its Affiliates, otherwise have liability in process or that have been mandated or recommended by any Governmental Authority, and, to the knowledge of Seller, no Governmental Authority is contemplating requiring or recommending such a campaign.

(d)         Except to the extent reflected as a reserve on the Financial Statements, no circumstances exist which are reasonably likely to result in any material product liability or product warranty Liability for the Group Companies or the Automotive Thermal Products Business.

(e)       Neither a Group Company nor the Automotive Thermal Products Business has ever (i) manufactured, assembled, sold or otherwise distributed any products containing asbestos or asbestos containing materials or (ii) acquired any assets or businesses (by stock acquisition, merger, consolidation or otherwise) which related to or were involved in the manufacture, assembly, sale or distribution of any products containing asbestos or asbestos containing materials.

Section 3.24       Group Company Solvency.  None of the Group Companies is insolvent, nor has any Group Company ever been subject to, or filed for, any insolvency procedure, nor has any Group Company incurred in any of the circumstances involving a reduction in the respective corporate capitals for losses and/or below the legal limit according to the applicable Law. No orders, requests, petitions, applications or resolutions for the starting of any of the above procedures or the procuring of any of the above occurrences has been given, made, filed or taken, no bankruptcy administrators or receivers, or similar officers, have been appointed and there are no circumstances, state of facts or conditions justifying any of the foregoing.

Section 3.25      Finders’ Fees.  Except for J.P. Morgan Securities LLC, the fees and expenses of which will be paid by Seller Parent, there is no investment banker, broker, finder or other Person that has been retained by or is authorized to act on behalf of the Sellers or their Subsidiaries who might be entitled to any brokerage fee, finders’ fee or other similar commission in connection with the transactions contemplated by this Agreement.

Section 3.26       No Other Representations and Warranties.  Except for the representations and warranties contained in this Article III (subject to the Disclosure Schedules) and in the other Transaction Documents and in any certificates delivered in connection with the Closing, none of the Retained Companies or any of their respective Representatives has made or is making any express or implied representation or warranty with respect to Sellers, their Subsidiaries (including the Group Companies) or any of the Purchased Interests or the Purchased Assets or with respect to any other information provided, or made available, to Buyer Parent or any of its Affiliates or Representatives in connection with the transactions contemplated hereby.  None of the Sellers or any other Person will have or be subject to any Liability or other obligation to Buyer Parent, its Affiliates or Representatives or any Person resulting from the sale of the Purchased Interests to the Buyers or a Buyer’s use of, or the use by any of its Affiliates or Representatives of, any such information, including information, documents, projections, forecasts or other material made available to Buyer Parent, its Affiliates or Representatives in any “data rooms,” teaser, confidential information memorandum or management presentations in connection with the transactions contemplated by this Agreement, unless any such information is expressly and specifically included in a representation or warranty contained in this Article III.  Each of Seller Parent and its Affiliates disclaim any and all other representations and warranties, whether express or implied.  Notwithstanding anything to the contrary contained in this Agreement, none of the Retained Companies or any of their respective Representatives make any express or implied representation or warranty with respect to the matters relating exclusively to the Retained Businesses.  Seller Parent and its Affiliates represent and warrant that neither the Buyers nor any of their Representatives, nor any other Person, have made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Buyers or other matters except for those representations and warranties as are specifically included in Article IV of this Agreement and in the other Transaction Documents and in any certificates delivered in connection with the Closing.

Buyer Parent represents and warrants to Seller Parent as of the date of this Agreement and as of the Closing Date that:

Section 4.01        Existence and Power.  Each Buyer is an entity duly organized, validly existing and in good standing (or local equivalent) under the Laws of its jurisdiction of organization, formation or incorporation, as applicable.  Each Buyer is duly licensed or qualified to do business and (where applicable) in good standing (or local equivalent) as a legal entity in each jurisdiction in which the ownership or operation of its assets or the character of its activities is such as to require it to be so licensed or qualified, except where the failure to be so licensed or qualified would not reasonably be expected to, individually or in the aggregate, interfere with, prevent or delay the ability of such Buyer to enter into and timely perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated thereby.

Section 4.02        Authorization.  The execution, delivery and performance by each Buyer of the Transaction Documents, in each case, to which it is or will be a party and the consummation of the transactions contemplated thereby are within such Buyer’s organizational powers and have been (or will be prior to the execution thereof) duly authorized by all necessary action on the part of such Buyer.  This Agreement has been duly and validly executed and delivered by Buyer Parent and (assuming the due and valid execution and delivery of this Agreement by Seller Parent) constitutes a legal, valid and binding agreement of Buyer Parent, enforceable against Buyer Parent in accordance with its terms, subject only to the Remedies Exception.  Each other Transaction Document shall be duly and validly executed by each Buyer party thereto at or prior to the Closing and, upon such execution and delivery by such Buyer and the due and valid execution and delivery of such Transaction Document by each other party thereto, shall constitute a legal, valid and binding obligation of such Buyer enforceable against such Buyer in accordance with its terms, subject to the Remedies Exception.

Section 4.03        Governmental Authorization.  Assuming the accuracy and completeness of the representations and warranties of Seller Parent contained in this Agreement, the execution, delivery and performance by Buyers of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby require no material action by or in respect of the Buyers, or any material filing by a Buyer with, any Governmental Authority, other than compliance with a Buyer’s obligations under any applicable requirements of the Competition Laws, Applicable Foreign Investment Laws and the Share Transfer Laws.

Section 4.04       Noncontravention.  The execution and delivery by each Buyer of the Transaction Documents to which it is a party and the consummation of the transactions contemplated thereby or compliance by each Buyer with the terms and provisions thereof do not and will not, as of the Closing, (a) conflict with or result in a violation or breach of, or default under, any provision of the Organizational Documents of such Buyer, (b) assuming compliance with the matters referred to in Section 4.03 and the completion of the consultation procedures with the Uden Works Council in accordance with article 25 WOR, conflict with or result in a violation or breach of any Law or Governmental Order to which a Buyer is subject, (c) require any approval, authorization, consent, notice to or other action by or with respect to any Person under, conflict with or result in a violation or breach of, or default under, or give rise to any right of termination, cancellation or acceleration of any material right or obligation or to a loss of any material benefit to which the Buyers or any of their Affiliates are entitled under any provision of any agreement or other instrument binding upon the Buyers or any of their Affiliates or (d) result in the creation or imposition of any material Lien on any asset of the Buyers or any of their Affiliates (except, in the case of clauses (c) and (d), as would not reasonably be expected to, individually or in the aggregate, interfere with, prevent or delay the ability of a Buyer to enter into and perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated thereby).

Section 4.05        Financial Ability.  Buyer Parent has, and at the Closing will have, cash on hand necessary to consummate the transactions contemplated by this Agreement on the Closing Date or in connection with the Closing, including effecting the payment of the Purchase Price and paying all related fees and expenses.  Buyer Parent has not incurred any obligation, commitment, restriction or Liability of any kind, and is not contemplating or aware of any obligation, commitment, restriction or Liability of any kind, in either case, which would reasonably be expected to impair or adversely affect such resources or the ability to consummate the transactions contemplated hereby.

Section 4.06        Litigation.  There are no Actions pending or, to the knowledge of Buyer, threatened against a Buyer, except for such Actions as would not reasonably be expected to, individually or in the aggregate, interfere with, prevent or delay the ability of a Buyer to enter into and perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated thereby.

Section 4.07        Purchase for Investment.  The Buyers are purchasing the Purchased Interests for investment for its own account and not with a view to, or for sale in connection with, any distribution thereof.  The Buyers (either alone or together with their advisors) have sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchased Interests and is capable of bearing the economic risks of such investment.  The Buyers understand and agree that the Purchased Interests may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act, except pursuant to an exemption from such registration available under the Securities Act, and without compliance with state, local and foreign securities Laws, in each case, to the extent applicable.

Section 4.08      Finders’ Fees.  Except for Citigroup Global Markets Inc., the fees and expenses of which will be paid by Buyer Parent, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of the Buyers or any of their Affiliates that might be entitled to any fee or commission in connection with the transactions contemplated by this Agreement.

Section 4.09        No Additional Representations; No Reliance.

(a)        Buyer Parent represents and warrants that none of the Retained Companies or any of their respective Representatives, nor any other Person, has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Group Companies, the Purchased Interests or other matters except for those representations and warranties as are specifically included in Article III of this Agreement (subject to the Disclosure Schedules).  Without limiting the generality of the foregoing, none of the Retained Companies or any of their respective Representatives, or any other Person, has made a representation or warranty to the Buyers with respect to, and neither the Sellers nor any other Person shall be subject to any Liability to the Buyers or any other Person resulting from, the Sellers or their Representatives making available to the Buyers, (i) any projections, estimates or budgets for the Group Companies or (ii) any materials, documents or information relating to the Sellers or the Group Companies made available to the Buyers or their Representatives in certain “data rooms,” offering memoranda, confidential information memoranda, management presentations or otherwise, in each case, except as expressly covered by a representation or warranty set forth in Article III of this Agreement.  In connection with Buyer Parent’s investigation of the Group Companies, Seller Parent has delivered, or made available to Buyer Parent and its Affiliates and Representatives, certain projections and other forecasts, including but not limited to, projected financial statements, cash flow items and other data of the Group Companies relating to certain business plan information of the Group Companies.  Buyer Parent acknowledges that there are uncertainties inherent in attempting to make such projections and other forecasts and plans and accordingly is not relying on them, that Buyer Parent is familiar with such uncertainties, that Buyer Parent is taking full responsibility for making its own evaluation of the adequacy and accuracy of all projections and other forecasts and plans so furnished to it, and that Buyer Parent and its Affiliates and Representatives shall have no claim against the Retained Companies or any other Person with respect thereto.  Accordingly, Buyer Parent acknowledges that, without limiting the generality of Section 3.28, none of the Retained Companies or any of their respective Representatives have made any representation or warranty with respect to such projections and other forecasts and plans.

(b)         Notwithstanding anything contained in this Agreement, it is the explicit intent of the Parties that none of the Retained Companies or any of their respective Representatives are making any representation or warranty whatsoever, express or implied, beyond those expressly given in Article III of this Agreement, including any implied warranty or representation as to the value, condition, non-infringement, merchantability, suitability or fitness for a particular purpose as to any of the assets of the Group Companies and, except as expressly provided in Article III of this Agreement, and subject to the terms and conditions of Article III of this Agreement, it is understood that Buyer is acquiring the Group Companies as-is and where-is with any and all faults and defects as of the Closing Date.

(c)       In furtherance of the foregoing, Buyer Parent acknowledges that it is not relying on any representation or warranty of the Retained Companies or any of their respective Representatives, other than those representations and warranties specifically set forth in Article III of this Agreement.  Buyer Parent acknowledges that it has conducted to its satisfaction an independent investigation of the financial condition, Liabilities, results of operations and projected operations of the Group Companies and the nature and condition of its properties, assets and businesses and, in making the determination to proceed with the transactions contemplated hereby, has relied solely on the results of its own independent investigation and the representations and warranties set forth in Article III.

Section 5.01        Interim Conduct of Business.

(a)         From the date hereof until the Closing Date, except as set forth on Schedule 5.01(a), as required by Law, as otherwise expressly provided by the Transaction Documents or with Buyer Parent’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Parent shall, and shall cause its Affiliates and the Group Companies to, use their reasonable best efforts to conduct the Automotive Thermal Products Business in the ordinary course of business consistent with past practices, preserve intact the present organization, business and goodwill of the Purchased Assets and the Group Companies and the present relationships with material customers, material suppliers, the Business Employees, lenders, suppliers, Governmental Authorities and others having, material business relationships with the Group Companies or relating to the Purchased Assets or the Automotive Thermal Products Business; provided, that during the coronavirus (COVID-19) pandemic, all or a portion of the employees of the Automotive Thermal Products Business may work remotely (to the extent their position makes it possible to do so) and, provided, further, that during any period of full or partial suspension of operations related to the coronavirus (COVID-19) pandemic, Seller Parent and its Affiliates may take such other actions as are reasonably necessary (x) to protect the health and safety of employees and other individuals having business dealings with the Automotive Thermal Products Business or (y) to respond to supply, service or demand disruptions caused by the coronavirus (COVID-19) pandemic; provided, further, that Seller Parent will use its reasonable best efforts to consult in good faith with Buyer Parent regarding all such actions.  Without limiting the generality of the foregoing, from the date hereof until the Closing Date, except as set forth on Schedule 5.01(a), as required by Law, as otherwise expressly provided by the Transaction Documents or with Buyer Parent’s prior written consent (not to be unreasonably withheld, conditioned or delayed), Seller Parent shall not, and each shall cause the Group Companies not to:

(i)        sell, assign, transfer, convey, lease, license, abandon or otherwise dispose of any material Purchased Assets or assets or properties of the Group Companies or in either case, any interests therein, except (A) pursuant to and in accordance with the terms of existing Contracts in effect as of the date of this Agreement, (B) for sales or licensing of products to customers (including the Retained Companies) in the ordinary course of business consistent with past practice or (C) in favor of the Retained Companies (x) with respect to the purchase and sale of inventory or the provision of goods or services, in each case, in the ordinary course of business consistent with practice or (y) to transfer any assets that are not Automotive Thermal Products Business Assets;

(ii)        create or otherwise incur any Lien on any of the Purchased Assets, Purchased Interests, or any material asset or property of any Group Company, other than Permitted Liens;

(iii)       except as set forth in the capital expenditure budget attached to Schedule 5.01(a)(iii), commit the Group Companies to make or commit to make any capital expenditures, in each case other than in the ordinary course of business consistent with past practice and not in excess of $1,000,000 in the aggregate;

(iv)       other than in connection with actions contemplated by this Agreement, permit the Group Companies to incur any Indebtedness or any Liability therefore, except borrowings in the ordinary course of business consistent with past practice and not in excess of $250,000 in the aggregate;

(v)       accelerate, amend or otherwise modify in any material respect or terminate (excluding any expiration in accordance with its terms) any Contract listed on Schedule 3.09, other than any amendment or modification entered into in the ordinary course of business consistent with past practices and containing terms, taken as a whole, not materially less favorable to the Group Companies than the terms of such Contract in effect as of the date of this Agreement or assign or waive any material rights or interests therein;

(vi)       enter into any Contract that would be required to be disclosed on Schedule 3.09(a) if such Contract were in effect as of the date of this Agreement;

(vii)     settle or compromise, or offer or propose to settle or compromise, or agree to the entry of any order with respect to, (i) any claims, Actions or disputes involving or against the Group Companies, except where the amount paid in settlement or compromise does not exceed $500,000 in the aggregate, as long as no such settlement, compromise or order imposes any equitable relief on the Group Companies, or (ii) any claim, Action or dispute that relates to the transactions contemplated by this Agreement or any other Transaction Document;

(viii)     make, change or rescind any material Tax election, settle or compromise any material claim made by a Taxing Authority, amend any material Tax Return, enter into any material closing agreement, surrender any right to claim a refund of a material amount of Taxes or extend or waive any applicable statute of limitations with respect to material Taxes, except with respect to any matters relating to any Seller Combined Tax Returns or the Tax matters of any combined, consolidated, unitary or similar group that includes Seller Parent (or any of its Affiliates that are not a Group Company) and any of the Group Companies;

(ix)       make any change in any method of financial accounting or financial accounting practice of the Group Companies, except for any such change required by reason of a change in GAAP;

(x)       except as required by Law or the terms of any existing Group Company Plan, Seller Plan or existing Contracts or Collective Bargaining Agreements in effect as of the date hereof, (A) increase the compensation, severance or termination pay (including any retention bonus or change in control bonus) to, or benefits of, any Business Employee; (B) terminate (other than for cause) the employment of any management-level Business Employee; (C) adopt, enter into or materially amend any Group Company Plan or any arrangement that would have been a Group Company Plan had it been entered into prior to this Agreement, other than annual renewals of welfare plans in the ordinary course of business, provided that such renewals do not materially increase costs to the Group Companies; (D) grant any new awards, or amend or modify the terms of any outstanding awards, under any Group Company Plan, or otherwise with respect to any Business Employee, other than individual grants or amendments to awards (which are not part of a new broad‑based program) in an amount not to exceed $20,000 made in the ordinary course of business consistent with past practice with respect to any employee below the level of vice president; (E) forgive any loans or issue any loans (other than routine travel advances issued in the ordinary course of business or participant loans under a Group Company Plan) to any Business Employee; (F) engage any independent contractor (who is a natural person) with annual consulting fees in excess of $100,000 without reserving the right to terminate the engagement without cost upon notice of ninety (90) days or less; or (G) become a party to, establish, adopt, amend, commence participation in, terminate or enter into any collective bargaining agreement or other agreement with a labor union, works council or similar organization;

(xi)      make any loans or advances of money to any Person (other than the Group Companies and their Subsidiaries), except for advances to employees or officers of the Group Companies or any of their Subsidiaries for expenses incurred in the ordinary course of business consistent with past practice;

(xii)       hire any employee or promote any Business Employee, in each case whose base salary will be in excess of $75,000 as a result of such hiring or promotion, except as necessary to fill open positions at a Group Company with an employee whose base salary will be less than $125,000, or hire any employee of the Retained Companies or otherwise transfer any employee of the Retained Companies to any of the Group Companies or vice versa;

(xiii)     implement or announce any facility closings or reductions in work force which would result in employment losses sufficient to trigger any obligations under the WARN Act (or similar Laws);

(xiv)     permit the Group Companies to acquire any business or any Person or any division thereof, whether by merger or consolidation with, or purchase of the assets or stock or other equity interest thereof, or by any other manner;

(xv)       lease or acquire any real property;

(xvi)     adopt any plan of merger, consolidation, reorganization, liquidation or dissolution or file any petition in bankruptcy under any provision of federal or state bankruptcy Law or consent to an assignment for the benefit of creditors or the filing of any bankruptcy petition, in each case, against or involving any Group Company;

(xvii)    acquire by merger or consolidation with, or merge or consolidate with, or purchase any material assets or Equity Interests of, any corporation, partnership, association, joint venture or other business organization or division thereof or adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization, disposition (of assets or equity) or other reorganization of the Group Companies;

(xviii)   adopt, approve, consent to or propose any change in the respective Organizational Documents of any of the Group Companies;

(xix)     issue, deliver or sell, or create or impose any Lien on, any Equity Interests of any Group Company (other than transferring the Purchased Interests to the Buyers at the Closing pursuant to this Agreement);

(xx)       split, combine or reclassify any Equity Interests in any Group Company;

(xxi)      terminate, let lapse or materially amend or modify any Insurance Policy;

(xxii)   except in the ordinary course of business and in a commercially reasonable manner abandon or dedicate to the public any Purchased Intellectual Property or Group Company Intellectual Property, or fail to maintain the confidentiality of any trade secrets included therein;

(xxiii)   enter into any incentive agreement or arrangement with the Hungarian Investment Promotion Agency; or

(xxiv)    agree or commit to do any of the foregoing, or omit to take any actions that would reasonably result in any of the foregoing.

For the avoidance of doubt, the Sellers shall be permitted to (i) cause each Group Company to dividend, transfer, distribute or otherwise pay to the Retained Companies any or all of the Cash and Cash Equivalents (other than an amount reasonably necessary to operate the Automotive Thermal Products Business for the five (5) day period following the Closing Date) and (ii) settle intercompany balances between any Group Company, on the one hand, and the Retained Companies, on the other hand, and make capital increases in connection therewith, except in each case, to the extent such transfer would materially hinder or interfere with, or otherwise adversely affect, the ordinary course conduct of the business of the Group Companies.

(b)         Notwithstanding the foregoing, nothing in this Section 5.01 shall prohibit or otherwise restrict in any way the operation of the businesses of the Sellers and their Subsidiaries, except solely with respect to the conduct of the Automotive Thermal Products Business and the Group Companies.

Section 5.02        Pre-Closing Access.

(a)        From the date hereof until the Closing Date, the Seller Parent shall, and shall cause its Subsidiaries to, (a) give the Buyers and their Representatives reasonable access during normal business hours and upon reasonable advance notice access to the properties, books, Contracts, Tax Returns and records of the Group Companies or the Automotive Thermal Products Business, (b) furnish to the Buyers and their Representatives such financial and operating data and other information relating exclusively to the Group Companies or the Automotive Thermal Products Business as such Persons may reasonably request and (c) use commercially reasonable efforts to cause the appropriate executive officers and other management-level employees of the Sellers and their Subsidiaries (including the Group Companies) to cooperate with the Buyers in their investigation of the Group Companies.  Any investigation pursuant to this Section 5.02 shall be conducted (i) in accordance with all applicable Competition Laws, (ii) during normal business hours, (iii) in such manner as not to interfere unreasonably with the normal conduct of the business of the Group Companies, (iv) subject to restrictions under the Leases, if any, and (v) at the Buyers’ sole cost and expense.  Notwithstanding the foregoing, (A) the Buyers shall not have access to (x) personnel records of the Business Employees relating to individual performance or evaluation records, medical histories or other information that in Seller Parent’s opinion (in its sole reasonable discretion) is sensitive or the disclosure of which could subject the Sellers or any of their Subsidiaries to risk of Liability, (y) any Real Property for purposes of conducting any environmental sampling or testing or (z) any information to the extent relating to any Retained Asset or any Tax Return of any of the Retained Companies and (B) the Sellers and their Subsidiaries may withhold (y) any information relating to the sale process for the Group Companies and information and analysis (including financial analysis) relating thereto and (z) any document or information, as and to the extent necessary to avoid violation or waiver, if the disclosure of such document or information could reasonably be expected to violate any Contract or any Law or would result in the waiver of any legal privilege or work-product privilege; provided that, to the extent practicable and in accordance with such Contract or Law, and in a manner that does not result in the waiver of any such privilege, the Sellers and their Subsidiaries shall make reasonable and appropriate substitute disclosure arrangements under circumstances in which the restrictions of this subclause (z) apply.  The Sellers shall have the right to have a Representative present at all times during any such inspections, interviews and examinations.  The Buyers shall hold in confidence all such information on the terms and subject to the conditions contained in the Confidentiality Agreement.  In accordance with all applicable Competition Laws, the Sellers and their Representatives will work in good faith with the Buyer Parent and its Representatives to provide appropriate notices to and allow Buyer Parent and its Representatives to make and have communications and consultations with material customers, suppliers and vendors of and to the Automotive Thermal Products Business in connection with the transactions contemplated by this Agreement.  To the extent compliant with applicable Competition Laws, Seller Parent and its Affiliates will confer with Buyer Parent concerning operational matters of the Automotive Thermal Products Business of a significant nature, otherwise report periodically to Buyer Parent concerning and respond to Buyer Parent’s reasonable inquiries regarding the Automotive Thermal Products Business and the status of its operations and finances.

(b)        In addition to the foregoing, Seller Parent shall, and shall cause the Group Companies to, work in good faith with the Buyer Parent to identify each of the following within the thirty (30) day period following the date hereof:

(i)       any Contract (x) containing covenants expressly limiting in any material respect the freedom of a Group Company or the Automotive Thermal Products Business to engage in any line of business, acquire any entity or compete with any Person in a product line, line of business or market or to operate in any geographic area, or to make, sell or distribute any products or services, or use, transfer, or distribute any of their material assets, (y) containing exclusivity obligations or similar restrictions binding on and material to the Group Companies (or, after the Closing, the Buyers and their Affiliates), or (z) granting a most-favored nation status to any Person;

(ii)      any Contact that provides for the assumption of any environmental or other Liability of any Person other than customary indemnification provisions in ordinary course commercial arrangements; or

(iii)      any Shared Contracts which are listed on Schedule 3.09(a) (other than Customer Contracts) (it being agreed that, reasonably promptly following identification of any such Shared Contracts, Buyer Parent may identify such Shared Contracts as Buyer Designated Shared Contracts).

Section 5.03        Regulatory Filings.

(a)         Subject to the terms and conditions of this Agreement, Buyer Parent and Seller Parent shall each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under Law to obtain and maintain all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement (collectively, the “Regulatory Approvals”), including preparing and filing as promptly as practicable with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents with respect thereto.

(b)       In furtherance and not in limitation of the foregoing, each of Buyer Parent and Seller Parent shall, and shall cause their respective Affiliates to, (i) make or cause to be made all filings required of each of them or any of their respective Affiliates under the Competition Laws or Applicable Foreign Investment Laws of the jurisdictions set forth on Schedule 5.03(b) with respect to the transactions contemplated hereby as promptly as reasonably practicable, (ii) use reasonable best efforts to comply at the earliest reasonably practicable date with any request under any Competition Law or Applicable Foreign Investment Law for additional information, documents or other materials received by each of them or any of their respective Affiliates from any Governmental Authority in respect of such filings or such transactions and (iii) cooperate with each other in connection with any such filing and in connection with resolving any investigation or other inquiry of any Governmental Authority under any such Competition Laws or Applicable Foreign Investment Law with respect to any such filing or any such transaction.  Each Party shall use its reasonable best efforts to, and to cause its Affiliates to, furnish to the other Party and its Affiliates, all information required for any application or other filing to be made pursuant to any Competition Law or Applicable Foreign Investment Law or in connection with the transactions contemplated by this Agreement to the extent permitted by Law.  Notwithstanding the foregoing, any Party or its applicable Affiliate may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Party or its Affiliate under this Section 5.03 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient Party or its Affiliate, and the recipient Party shall, or shall cause its Affiliate to, cause such outside counsel not to disclose such materials or information to any employees, officers, directors or other Representatives of the recipient Party or its Affiliate, unless express written permission is obtained in advance from the source of the materials.  To the extent permitted by Law, each Party shall promptly inform the other Party hereto of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filing or any such transaction.  Unless otherwise required by applicable Law, each Party shall not and shall cause its Affiliates not to, independently participate in any meeting with any Governmental Authority in respect of any such filing or any investigation or other inquiry with respect to the transactions contemplated by this Agreement without giving the other Party prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend or participate.  Subject to Law, the Parties will use reasonable best efforts to consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party or its Affiliate relating to proceedings under the Competition Laws or Applicable Foreign Investment Law with respect to the transactions contemplated hereby.  With respect to the Purchased Interests, Seller Parent shall, and shall cause its Affiliates to, provide all reasonable requested assistance in respect of any post-Closing formalities with the applicable Governmental Authority in accordance with the Share Transfer Laws.

(c)         In furtherance and not in limitation of the foregoing, if any objections are asserted with respect to the transactions contemplated by this Agreement under any Competition Law or Applicable Foreign Investment Law or if any Action is instituted (or threatened to be instituted) by any Governmental Authority or any private party, challenging any of the transactions contemplated by this Agreement as violative of any Competition Law or Applicable Foreign Investment Law, each of Buyer Parent and Seller Parent shall, and shall cause their applicable Affiliates to, cooperate with each other and use reasonable best efforts to resolve any such objections or Actions so as to permit consummation of the transactions contemplated by this Agreement as expeditiously as reasonably practicable.  Without limiting the foregoing, each of Buyer Parent and Seller Parent shall, and shall cause their applicable Affiliates to, use their reasonable best efforts to (x) contest such Action, (y) seek to have promptly vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents, limits or restricts the consummation of the transactions contemplated by this Agreement and (z) pursue all available avenues of administrative and judicial appeal.  Nothing in this Agreement shall require a Party to initiate litigation in respect of the Applicable Foreign Investment Law.

(d)        Buyer Parent further agrees that it shall, to the extent necessary to obtain the waiver, permit, approval, clearance or consent from any Governmental Authority in the jurisdiction set forth on Schedule 5.03(d) required to satisfy the conditions set forth in Section 8.01(a), or to avoid the entry of or have lifted, vacated, reversed or terminated any Closing Legal Impediment in the jurisdiction set forth on Schedule 5.03(d), promptly propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, behavioral limitations on the assets or businesses of the Group Companies or any Automobile thermal product assets or businesses of Buyer Parent or any of its Affiliates, in each case, in the jurisdiction set forth on Schedule 5.03(d). Notwithstanding the foregoing sentence, Buyer Parent and its Affiliates shall not be required to, and Seller Parent and its Affiliates with respect to the Group Companies and the Purchased Assets may not, without the prior written consent of Buyer Parent (which may be withheld in Buyer Parent’s sole discretion) take any action pursuant to the foregoing sentence that would, individually or in the aggregate:

(1)        have a material adverse effect on the Group Companies, the Purchased Assets and Automotive Thermal Products Business, taken as a whole (without giving effect to the transactions contemplated by this Agreement), or

(2)         materially and adversely diminish the benefits expected to be derived by Buyer Parent and its Affiliates from the consummation of the transactions contemplated by this Agreement and other transactions contemplated herein (each of (1) and (2) an “Adverse Regulatory Compliance Impact”).

(e)         For the avoidance of doubt, any such action or actions which, individually or in the aggregate would be reasonably likely to result in the combined one year loss of net sales revenues of the Group Companies and Buyer Parent’s and its Subsidiaries’ existing automotive thermal products business in the jurisdiction set forth on Schedule 5.03(d) in an aggregate amount greater than the amount set forth on Schedule 5.03(e), shall be deemed to have an Adverse Regulatory Compliance Impact.

(f)         Subject to Section 5.03(d), Buyer Parent and its Affiliates shall not be required to, and Seller Parent and its Affiliates with respect to the Group Companies and the Purchased Assets may not, without the prior written consent of Buyer Parent (which may be withheld in Buyer Parent’s sole discretion):

(i)        sell, divest, lease, license, transfer or dispose of, whether before or after the Closing, any assets, entities, licenses, operations, rights, product lines, businesses or interest therein of Buyer Parent or its Affiliates, the Group Companies, the Purchased Assets or the Automotive Thermal Products Business (or agree or consent to any of the foregoing actions);

(ii)       initiate, defend or maintain any litigation with or brought by a current or potential customer of Buyer Parent, its Affiliates, the Group Companies or the Automotive Thermal Products Business in connection with the Regulatory Approvals;

(iii)       enter into any hold-separate or similar agreements, orders or decrees; or

(iv)      change, restrict or impair, or agree or commit to any change or restriction on or other impairment of (A) the ability of Buyer Parent, its Affiliates, the Group Companies or the Automotive Thermal Products Business to own or operate any of their respective assets, licenses, operations, rights, product lines, businesses or interests therein, including the Purchased Assets or (B) Buyer Parent’s, its Affiliates’, the Group Companies’ or the Automotive Thermal Products Business’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the Equity Interests of any of their Affiliates or any of the Group Companies.

(g)        Whether or not the Closing occurs, Seller Parent will be responsible for all filing fees or similar fees required in connection with obtaining the Regulatory Approvals with respect to the transactions contemplated by this Agreement.

Section 5.04        Intercompany Balances; Affiliate Transactions.

(a)         Except as set forth on Schedule 5.04(a), Seller Parent shall cause all intercompany balances between any of the Group Companies, on the one hand, and any of the Retained Companies, on the other hand, to be paid in full effective immediately prior to the Closing.

(b)         Except for the Transaction Documents or the Contracts set forth on Schedule 5.04(b), on or prior to the Closing, Seller Parent shall take or cause to be taken all actions necessary to cause any and all Contracts between any of the Retained Companies, on the one hand, and any Group Company, on the other hand, to have been terminated without any continuing obligation of any Group Company.

Section 5.05           Guarantees.  Prior to Closing, Buyer Parent and Seller Parent shall, and shall cause their respective Affiliates to, cooperate and use their respective commercially reasonable efforts to terminate, or, if the Parties are unable to so terminate, cause Buyer Parent or one of its Affiliates to be substituted in all respects for any Retained Company in respect of, all obligations under each of the Group Company Guarantees, effective as of the Closing.  To the extent that the Parties and their Affiliates are unable to cause such termination or substitution on commercially reasonable terms, the Retained Companies, as applicable, shall continue such Group Company Guarantees, and Buyer Parent or its designated Affiliate shall provide the Retained Companies, as applicable, with reasonable security or credit enhancements for such Group Company Guarantees, and subject to the rights of the Buyer Indemnitees contained in this Agreement, Buyer Parent shall indemnify and hold harmless the applicable Retained Companies for claims arising pursuant to such Group Company Guarantees.

Section 5.06        Use of Retained Marks.

(a)         Except as otherwise provided in this Section 5.06, the Buyers and their Affiliates have, and after the Closing, the Group Companies shall have, no right, title, interest, license or any other right whatsoever in the Retained Marks, and none of the Retained Companies have, pursuant to the Transaction Documents or otherwise, assigned any such right, title, interest, license or other right to the Buyers, their Affiliates or the Group Companies.

(b)         For a period of six (6) months following the Closing Date, the Group Companies and, with respect to the Purchased Assets, Buyer Parent and its Affiliates, shall have the right to continue to use the marketing and promotional materials, invoices, business cards, schedules, displays, signs, stationery, technical guidelines, product manuals, packing materials and other supplies and similar materials that were previously created and included in the inventory of the Group Companies and that incorporate the Retained Marks, in the manner such supplies and materials were used by the Group Companies in the Automotive Thermal Products Business prior to Closing; provided, however, that Buyer Parent shall cause its Affiliates (including the Group Companies) to use their commercially reasonable efforts to reasonably promptly, but in no event after the conclusion of such six (6)-month period, cease and discontinue any use of the Retained Marks and, at their sole cost and expense, remove or conceal all Retained Marks from all such supplies and materials, in each case, whether such supplies or materials are held by the Buyers or the Group Companies or under the control of the Buyers or the Group Companies.  For the avoidance of doubt, the foregoing shall not require the Buyers or the Group Companies to modify any existing books, records, technical guidelines or product manuals of the Group Companies that bear the Retained Marks (provided that such books, records, technical guidelines or product manuals are used for reference or internal purposes only in a non-trademark manner and not for marketing or promotional purposes), and the Group Companies shall be permitted to continue to use all tooling and re-usable packaging referencing the Retained Marks for the life of such tooling or re-usable packaging and to manufacture and sell products reflecting the Retained Marks to the extent such tooling imparts the Retained Marks on such products.  All goodwill associated with the Group Companies’ use of the Retained Marks as permitted hereunder shall inure solely to the benefit of the Sellers and their Subsidiaries (other than the Group Companies).

(c)         Before the Closing, the Seller Parent and its Subsidiaries (including the Group Companies) may execute and file all documents as shall be necessary or desirable to change the name of the Group Companies to remove the word “Modine” or any derivation or translation thereof, from such names, provided, that the Seller Parent shall, and shall cause its applicable Subsidiaries to, (x) consult with the Buyer Parent regarding the new name and shall (y) make all filings and notices and obtain all consents as reasonably necessary or required by Law in connection with such name changes.  To the extent not already changed by the Seller Parent or the Group Companies, as promptly as practicable after the Closing but in no event later than four (4) weeks after the Closing Date, the Buyer Parent shall cause the Buyers and the Group Companies to, at the Buyers’ sole cost and expense, change the names of the Group Companies to remove the word “Modine” or any derivation or translation thereof.

Section 5.07        R&W Insurance Policy.

(a)         Promptly following the execution of this Agreement, but in any event no later than five (5) Business Days, Seller Parent will pay to Buyer Parent the required irrevocable deposit fee and underwriting fee with respect to the R&W Insurance Policy in accordance with the terms and conditions of the Binder Agreement.  Prior to Closing, reasonably promptly following the written request of Seller Parent, Buyer Parent will pay to Seller Parent any additional premium or similar fee required to be paid to the R&W Insurer in order to extend the effectiveness of the Binder Agreement through the Closing.

(b)        Seller Parent shall, and shall cause its respective Affiliates to, cooperate with Buyer Parent to ensure the conditions under the Binder Agreement are satisfied and coverage under the R&W Insurance Policy is available at Closing, including delivering to Buyer Parent two (2) electronic copies (by CD-ROM, USB drive or other means) of the online data room maintained by or on behalf of Seller Parent or its Affiliates or Representatives at https://datasiteone.merrillcorp.com in connection with the transactions contemplated by this Agreement at or within five (5) Business Days following Closing.  Promptly following Closing, but in any event no later than ten (10) Business Days, Seller Parent will pay to Buyer Parent all remaining premiums, fees, expenses, commissions, taxes and other costs payable under the Binder Agreement.

(c)        Buyer Parent will comply in all material respects with all of its obligations under the Binder Agreement necessary to the binding of the R&W Insurance Policy including remitting all premiums, fees, expenses, commissions, taxes and other costs to the R&W Insurer when due and payable pursuant to the Binder Agreement.  The R&W Insurance Policy shall provide that Liberty Surplus Insurance Corporation (the “R&W Insurer”) has waived any right of subrogation against the Retained Companies, except in the case of Fraud, and that such waiver may not be amended without the prior written consent of Seller Parent.  Buyer Parent shall not agree, whether prior to or after the Closing, to any amendment, variation or waiver of the Binder Agreement or R&W Insurance Policy, as applicable (or do anything which has a similar effect) which would adversely and disproportionately (relative to its impact on any Buyer Indemnitees) impact Seller Parent without Seller Parent’s prior written consent.

Section 5.08        Insurance.

(a)        Seller Parent shall, and shall cause its Affiliates, including the Group Companies, to, use commercially reasonable efforts to continue to carry prior to the Closing the Insurance Policies with respect to the Group Companies, the Purchased Assets and the Automotive Thermal Products Business in force as of the date of this Agreement, including renewing any policies expiring during such period.  In the event that any claim, loss, event, or occurrence occurs after the date hereof for which coverage may be afforded to the Group Companies or Buyers with respect to the Purchased Assets under the Insurance Policies, Seller Parent shall, and shall cause the Retained Companies to, use reasonable best efforts to take the actions necessary to preserve and pursue such coverage of the Buyers or the Group Companies for such claim, loss, event, or occurrence, including following the Closing.

(b)         From and after the Closing, all insurance coverage previously maintained by the Retained Companies in respect to the Purchased Assets, the Automotive Thermal Products Business, the Group Companies or their business or assets may, in the sole discretion of the Retained Companies, be terminated by the Retained Companies.  For the avoidance of doubt, any insurance policies which are, prior to the Closing, maintained by the Group Companies independently from any insurance policies held solely by the Retained Companies or insurance policies placed by the Buyers or their Affiliates may not be terminated by the Retained Companies and shall continue to be held by the Group Companies, the Buyers or their Affiliates from and after the Closing, in each case, subject to their respective terms and conditions.  All obligations with respect to a Coverage Claim shall transfer to the Buyers or the Group Companies effective as of the Closing; provided, however, that the Buyers and their Affiliates (including, after the Closing, the Group Companies) may only assert rights, claims or interests to or under any Available Insurance Policies (excluding any insurance policies of and solely with respect to the Group Companies or their respective predecessors) or rights to proceeds thereof in effect, or with respect to a claim, loss, event, or occurrence, that occurred, in whole or in part, on or prior to the Closing Date relating to the Group Companies in accordance with Section 5.08(c).

(c)         From and after the Closing, with respect to any claim, loss, event, or occurrence relating to the Purchased Assets, the Group Companies, Business Employees or former employees of the Group Companies that would be covered by any of the Retained Companies’ occurrence-based (but not claims-made) insurance policies (such policies, the “Available Insurance Policies” and such claims, the “Coverage Claims”), the Buyers or the Group Companies, may access, submit claims and seek coverage for such Coverage Claims under the Available Insurance Policies, subject to the terms and conditions of such Available Insurance Policies; provided, however, that (i) Buyers on behalf of the Group Companies shall exclusively bear the amount of any “deductibles” associated with claims under such Available Insurance Policies and shall otherwise be liable for all uninsured or uncovered amounts of such claims, (ii) the Buyers and Group Companies shall be solely responsible at their expense for notifying any and all insurance companies of such claims and complying with all policy terms and conditions for pursuit and collection of such claims and shall not, without the written consent of Seller Parent, amend, modify or waive any rights of the Sellers or other insureds under any such insurance policies and programs (except with respect to any erosion of available limits based on pursuit of the Coverage Claims), (iii) with respect to Coverage Claims or requests for benefits asserted by the Buyers or the Group Companies under the Available Insurance Policies, the Sellers shall have the right but not the duty to monitor and/or associate with such claims and (iv) the Buyer and Group Companies shall be liable for any fees, costs or expenses incurred by the Sellers through the insurers or reinsurers of the Available Insurance Policies relating to the unsuccessful coverage claims.  Notwithstanding anything contained herein, (x) nothing in this Agreement shall limit, waive or abrogate in any manner any rights of any Retained Company to insurance coverage for any matter, whether relating to the Group Companies or otherwise (except with respect to any erosion of available limits based on pursuit of Coverage Claims), and (y) the Sellers shall retain the exclusive right to control all of their insurance policies and programs, including the Available Insurance Policies, including the right to exhaust, settle, release, commute, buy-back or otherwise resolve disputes with respect to any of its insurance policies and to amend, modify, terminate or waive any such insurance policies and programs or any rights thereunder; provided that Buyer Parent and Seller Parent shall, and shall cause their applicable Affiliates (including in the case of Buyer Parent, the Group Companies) to cooperate with respect to Coverage Claims and requests for benefits and sharing such information as is reasonably necessary in order to permit Parties and their applicable Affiliates (including in the case of Buyer Parent, the Group Companies) to conduct their insurance matters.

(d)         Nothing in this Section 5.08 shall limit, modify or in any way affect the rights and obligations of the Parties under Article IX; provided, however, that any insurance proceeds actually collected with respect to a particular set of Damages shall be taken into account under and to the extent required by Section 9.04(d).  No payments due under this Section 5.08 shall affect, be affected by, or be subject to set off against, any adjustment to Purchase Price.

Section 5.09        Legal Proceedings; Production of Witnesses.

(a)         Unless such Party or its respective Indemnified Parties is entitled to indemnification under Article IX with respect to such matter, in which case Section 9.03 shall control, from and after the Closing, the Seller Parent, on the one hand, and Buyer Parent, on the other hand, shall use their commercially reasonable efforts to make available to each other, upon reasonable written request, their (and their Affiliates’) respective officers, directors, employees and agents for fact finding, consultation and interviews to the extent that any such individual may reasonably be required in connection with any Actions in which the requesting Party may from time to time be involved relating to the conduct of the business of the Automotive Thermal Products Business, the Group Companies or the Retained Companies prior to or after the Closing.  Access to such Persons shall be granted during normal business hours at a location and in a manner reasonably calculated to minimize disruption to such individuals, the Group Companies and the Retained Companies, as applicable.  Seller Parent and Buyer Parent agree to reimburse each other for reasonable out-of-pocket expenses, including attorneys’ fees, but excluding officers’ or employees’ salaries or other wages, incurred by the other Party or its Affiliates in connection with providing individuals and witnesses pursuant to this Section 5.09(a).

(b)         Notwithstanding the foregoing, the provisions in Article VI shall govern with respect to Tax-related matters to the extent any provision in Article VI is in conflict with Section 5.09(a).  For the avoidance of doubt, no Party shall have an obligation to cooperate, make available personnel or disclose any documents or other information pursuant to Section 5.09(a), Section 5.10(a) or Article VI, if the Sellers or any of their Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, are adverse parties in any Action and such assistance, testimony, documents or other information is reasonably pertinent thereto; provided that, nothing in this Section 5.09(b) shall limit in any respect any rights a Party may have with respect to discovery or the production of documents or other information in connection with any such Action.

Section 5.10        Retention of Books and Records and Post-Closing Access

(a)         On or promptly following the Closing Date, Seller Parent will deliver or make available, or cause to be delivered or made available, to Buyers and the Group Companies, at each applicable Group Company location, electronic or other copies of all of the Transferred Records and any other materials that are otherwise in the possession or under the control of any of the Retained Companies relating to the Group Companies, the Purchased Assets or the Automotive Thermal Products Business on or before the Closing Date and, if any time after the Closing, Seller Parent or any of the Retained Companies discovers in its possession or under its control any other Transferred Records or other materials relating to the Group Companies or the Automotive Thermal Products Business, it, and Seller Parent will cause it to, forthwith deliver such records to Buyers and the Group Companies, at each applicable Group Company location; provided that the Retained Companies may retain a copy of such Transferred Records in connection with accounting, Tax, SEC reporting and other similar needs for purposes of the Retained Companies preparation of financial statements and SEC reporting obligations relating to the operation of the Automotive Thermal Products Business prior to the Closing.

(b)         Buyer Parent agrees to hold at least one copy of all Transferred Records of the Group Companies that exist as of the Closing and not to destroy or dispose of such copy for a period of five (5) years from the Closing Date or such longer time as may be required by Law; provided, that, Buyer Parent may destroy or dispose of such copy at any time prior to such date if, Buyer Parent shall offer first in writing at least ninety (90) days prior to such proposed destruction or disposition to surrender such copy to Seller Parent upon Seller Parent’s request and at Seller Parent’s expense.

(c)         From and after the Closing, Buyer Parent shall, and shall cause its Affiliates (including the Group Companies) to, (i) give the Retained Companies and their Representatives reasonable access during normal business hours and upon reasonable advance notice access to the Transferred Records, (ii) furnish to the Sellers and their Representatives such financial and operating data and other information relating to the operations of the Group Companies on or before the Closing Date, and (iii) use commercially reasonable efforts to cause the employees of Buyer Parent and its Affiliates (including the Group Companies) to cooperate with the Sellers and their Representatives, in each case, to the extent reasonably requested by the Sellers in connection with accounting, Tax, SEC reporting and other similar needs for purposes of the Retained Companies preparation of financial statements and SEC reporting obligations relating to the operation of the Automotive Thermal Products Business prior to the Closing.  From and after the Closing, Seller Parent shall and shall cause the Retained Companies to (A) give the Buyers, the Group Companies and their Representatives reasonable access during normal business hours and upon reasonable advance notice access to the records of the Retained Companies to the extent relating to the Group Companies, the Purchased Assets or the Automotive Thermal Products Business on or before the Closing Date and (B) furnish to the Buyers, the Group Companies and their Representatives such financial and operating data and other information to the extent relating to the Group Companies, the Purchased Assets or the Automotive Thermal Products Business on or before the Closing Date and (C) use commercially reasonable efforts to cause the employees of the Retained Companies to cooperate with the Buyers, the Group Companies and their Representatives, in each case, to the extent reasonably requested by Buyer Parent in connection with accounting, Tax, SEC reporting and other similar needs to the extent relating to the Group Companies, the Purchased Assets or the Automotive Thermal Products Business on or before the Closing Date.  Any such access shall be granted in a manner as not to interfere unreasonably with the conduct of the business of the Party or its Affiliate granting such access and at the cost and expense of the accessing party.  Notwithstanding the foregoing, any Party may or may cause its applicable Affiliate to withhold such access, as and to the extent necessary to avoid violation or waiver, to any document or information the disclosure of which could reasonably be expected to violate any Contract or any Law or would result in the waiver of any legal privilege or work-product privilege; provided that, to the extent practicable and in accordance with such Contract or Law, and in a manner that does not result in the waiver of any such privilege, such Party shall make or cause its applicable Affiliate to make reasonable and appropriate substitute disclosure arrangements under circumstances in which these restrictions apply; provided, further, that nothing in this Section 5.10(c) shall limit in any respect any rights any Party or its Affiliates may have with respect to discovery or the production of documents or other information in connection with any litigation.

(d)         Notwithstanding the foregoing, the provisions of Article VI shall govern with respect to Tax-related matters to the extent any provision in Article VI is in conflict with Section 5.10(a), Section 5.10(b) or Section 5.10(c).

Section 5.11        Confidentiality.

(a)       Subject to Section 5.13, the Seller Parent shall not and shall cause the Retained Companies not to, and shall instruct its and their Representatives not to, directly or indirectly, for a period of ten (10) years after the Closing Date, without the prior written consent of Buyer Parent, disclose to any third party (other than each other and their respective Representatives) or use any confidential information or trade secrets with respect to the Group Companies, the Purchased Assets or the Automotive Thermal Products Business; provided that, subject to Section 5.14, the foregoing restriction shall not (i) apply to any information (w) pertaining exclusively to the Retained Businesses, (x) generally available to, or known by, the public (other than as a result of disclosure in violation of this Section 5.11(a)), (y) that was independently developed by any of the Retained Companies without use of any confidential information or trade secrets with respect to the Group Companies or (z) that was made available to the Sellers by a third party with the right to disclose such information, or (ii) prohibit any disclosure (x) required by Law or any listing agreement with any national securities exchange so long as, to the extent legally permissible and reasonably practicable under the circumstances, Seller Parent provides Buyer Parent with reasonable prior notice of such disclosure or (y) necessary to be made in connection with the enforcement of any right or remedy relating to any of the Transaction Documents or the transactions contemplated thereby.  At the written request of Buyer Parent after the Closing, Seller Parent will use reasonable best efforts to enforce the terms of any confidentiality agreement with a third-party regarding the Automotive Thermal Products Business entered into in connection with Seller Parent’s marketing and sale efforts related to the Automotive Thermal Products Business, subject to reimbursement by Seller Parent of Buyer Parent’s reasonable out-of-pocket costs.

(b)        From and after the Closing, the restrictions on the use and disclosure of information set forth in the Confidentiality Agreement shall not apply to the Buyers or their Affiliates (including the Group Companies) and their respective Representatives in respect of any information relating to the Group Companies, the Purchased Assets or the Automotive Thermal Products Business.  Subject to Section 5.13, the Buyer Parent shall not and shall cause its Subsidiaries and the Group Companies not to, and shall instruct its and their Representatives not to, directly or indirectly, for a period of five (5) years after the Closing Date, without the prior written consent of Seller Parent, disclose to any third party (other than each other and their respective Representatives) any confidential information or trade secrets exclusively with respect to the Retained Businesses; provided that, the foregoing restriction shall not (i) apply to any information, (x) generally available to, or known by, the public (other than as a result of disclosure in violation of this Section 5.11(b)), (y) that was independently developed by Buyer Parent or its Affiliates (including the Group Companies) without the use of any confidential information or trade secrets exclusively with respect to the Retained Businesses, or (z) that was made available to the Buyer Parent or its Affiliates (including the Group Companies) by a third party with the right to disclose such information, or (ii) prohibit any disclosure (x) required by Law or any listing agreement with any national securities exchange so long as, to the extent legally permissible and reasonably practicable under the circumstances, Buyer Parent provides Seller Parent with reasonable prior notice of such disclosure, (y) necessary to be made in connection with the enforcement of any right or remedy relating to any of the Transaction Documents or the transactions contemplated thereby, or (z) subject to Buyer Parent’s commercially reasonable best efforts to enter into corresponding confidentiality arrangements with any counterparties thereto, as may occur in connection with the future sale or divestiture or attempted sale or divestiture of any business unit of the Buyer Parent or its Affiliates (including the Group Companies) or any process associated therewith.  At the written request of Seller Parent, Buyer Parent will use reasonable best efforts to enforce the terms of any such confidentiality arrangements.

Section 5.12        Exclusivity.  From the date hereof through the Closing or earlier termination of this Agreement, the Seller Parent shall not, and shall cause its Affiliates not to, and shall instruct its and their respective Representatives not to, directly or indirectly, solicit, initiate, continue, enter into or participate in any discussions or negotiations or communications with, or provide any information to, or enter into any agreement, understanding, commitment or letter of intent with, any Person or group of Persons (other than the Buyers and their Affiliates and their respective Representatives regarding the transactions contemplated by this Agreement and the other Transaction Documents) concerning any change of control transaction, consolidation, merger, business combination, purchase or disposition of Equity Interests in the Group Companies, or sale of the Purchased Intellectual Property or other sale of the properties or assets of the Group Companies or the Automotive Thermal Products Business (any such transaction, an “Acquisition Transaction”), in each case however structured, other than pursuant to this Agreement or for sales or licensing of products to customers in the ordinary course of business consistent with past practice. From the date hereof through the Closing or earlier termination of this Agreement, in the event that Seller Parent or any of its Affiliates enters into a transaction pursuant to which it sells or otherwise disposes of any Seller Parent Licensed Intellectual Property to any third party, Seller Parent shall, and shall cause its applicable Affiliates to, retain such rights to the Seller Parent Licensed Intellectual Property as are necessary to permit Seller Parent to license or sublicense (as the case may be) to Buyer Parent and its Affiliates such Seller Parent Licensed Intellectual Property within the full scope of and in accordance with the terms of the Intellectual Property License Agreement.   Seller Parent shall and shall cause its Affiliates and instruct its and their respective Representatives to refrain from entering into any agreement, arrangement or understanding relating to any Acquisition Transaction.  A change of control transaction, consolidation, merger, business combination or purchase or disposition of Equity Interests of Seller Parent will not constitute an Acquisition Transaction.

Section 5.13        Public Announcements.  Seller Parent and Buyer Parent agree that no release or announcement concerning the transactions contemplated hereby shall be issued or made by or on behalf of any Party without the prior consent of the other Party, except that (i) the Parties and their Affiliates may make announcements that such Person believes in good faith is commercially necessary from time to time to their respective employees, customers, suppliers and other business relations and (ii) each of the Sellers and the Buyers and their respective Affiliates may make announcements as they may reasonably determine is necessary to comply with Law or any listing agreement with any national securities exchange; provided, that in each case of clauses (i) and (ii), the disclosing Party will use reasonable best efforts to (x) advise and consult with the other Party before making such announcement and (y) provide such other Party a reasonable opportunity to review and comment on such announcement and consider in good faith any such comments.  Notwithstanding the foregoing, Buyer Parent and Seller Parent shall cooperate with each other in order to prepare press releases to be issued on or promptly after the date of this Agreement and on the Closing Date.  Prior to issuing such press releases, each Party shall  obtain the prior consent of the other Party, such consent not to be unreasonably withheld.  The Seller Parent and the Buyer Parent agree to keep the terms of this Agreement confidential, except to the extent and to the Persons to whom disclosure is required by Law or for purposes of compliance with SEC, financial or Tax reporting obligations; provided that, the Parties and their respective Affiliates may disclose this Agreement or its terms (x) to their and their Affiliates’ respective employees, accountants, advisors and other Representatives as necessary in connection with the ordinary conduct of their respective businesses (so long as such Persons agree to, or are bound by contractual, professional or fiduciary obligations to, keep the terms of this Agreement confidential and so long as each Party shall be responsible to the other Party hereto for breach of this Section 5.13 or such confidentiality obligations by the recipients of its disclosure) or (y) to any purchaser or prospective purchaser or financing source or underwriter of such party (and such purchasers’, financing sources’ and underwriters’ respective legal counsel) in connection with such Person’s due diligence of such party, including any disclosure required under the Credit Facility or Indenture.

Section 5.14        Non-Solicitation; Non-Competition.

(a)         For a period of two (2) years following the Closing Date, Seller Parent shall not, and shall not permit any of its Affiliates or the Retained Companies to, directly or indirectly solicit or hire (or cause to be directly or indirectly solicited or hired) any Person employed in the Power Technologies Group (including the Automotive Thermal Products Business) of Buyer Parent and its Affiliates from and after the Closing; provided that, the foregoing restriction shall not apply to soliciting or hiring any such individual who is no longer employed by the Buyer Parent or any of its Affiliates and has not been so employed by the Buyer Parent or any of its Affiliates for at least one hundred and eighty (180) days.

(b)         Except with respect to the Excluded Automotive Business or pursuant to the express terms of the Transaction Documents, for a period of five (5) years following the Closing Date, Seller Parent shall not, and shall cause its Affiliates and the Retained Companies not to, anywhere in the world, directly or indirectly, by way of licensing intellectual property or otherwise, engage in, manage, or operate or have any ownership interest in any Person that engages in, manages or operates any Competitive Activity; provided, however, that the foregoing shall not restrict Seller Parent or its Affiliates from acquiring or owning as an investment, directly or indirectly, securities or any indebtedness of any Person that is engaged in any Competitive Activity if the Seller Parent and its Affiliates collectively do not, directly or indirectly, beneficially own in the aggregate more than five percent (5%) of the outstanding securities or indebtedness of such Person.  “Competitive Activity” means the business of designing, developing, manufacturing, marketing, distributing and selling heat transfer systems and heat transfer components for use in Automobiles, including (a) liquid cooled heat transfer systems and liquid cooled heat transfer components, including chillers and condensers, (b) liquid cooled exhaust gas recirculation systems and liquid cooled exhaust gas recirculation components, and (c) air cooled heat transfer systems and air cooled heat transfer components (in each case, other than air cooled condensers and air-cooled condenser and fan assemblies) for use on electric Automobiles.

(c)         If any provision contained in this Section 5.14 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section 5.14, but this Section 5.14 shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.  It is the intention of the Parties that if any of the restrictions or covenants contained in this Section 5.14 is held to cover a geographic area or to be for a length of time which is not permitted by law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under Law, a court of competent jurisdiction shall construe and interpret or reform this Section 5.14 to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under such Law.

Section 5.15        Further Assurances.  Seller Parent, the Sellers and the Buyers agree that, from and after the Closing Date, each of them shall, and shall cause their respective Affiliates to, execute and deliver such further documents and instruments and take such other action as may reasonably be requested by such Party to carry out the purposes and intents hereof.  Without limiting the foregoing, upon request from Buyer Parent and at Buyer Parent’s expense (with respect to out-of-pocket expenses of Seller Parent and the Sellers), Seller Parent and the Sellers agree to execute local assignments with respect to the Purchased Intellectual Property as may be necessary under applicable Law to effectuate or perfect the assignment of such Purchased Intellectual Property to Dana Limited, all such items to be duly executed, delivered, notarized and apostilled as reasonably necessary and to be in form and substance reasonably satisfactory to Buyer Parent.  In addition, following the Closing, Seller Parent shall promptly cause any Liens other than Permitted Liens encumbering the Purchased Interests, the Purchased Assets or any assets or properties of the Group Companies as of the Closing to be removed at Seller Parent’s cost and expense.

Section 5.16        Shared Contracts.  The Retained Companies, on the one hand, and the Buyers, on the other hand, shall, and shall cause their respective Subsidiaries to, cooperate with each other and shall use their commercially reasonable efforts to cause the Shared Contracts set forth on Schedule 5.16(a) (the “Buyer Parent Designated Shared Contracts”) and the Shared Contracts set forth on Schedule 5.16(b) (the “Seller Designated Shared Contracts” and, together with the Buyer Parent Designated Shared Contracts, the “Designated Shared Contracts”) to be replaced with separate contracts (the “Replacement Contracts”) that provide that the Buyers or any Group Company in the case of the Buyer Parent Designated Shared Contracts, or any Retained Company designated by Seller Parent, in the case of the Seller Designated Shared Contracts, receives contract rights and obligations under the Replacement Contracts, as applicable, that are substantially similar to those contract rights and obligations under the Designated Shared Contracts in effect prior to the Closing.  The Buyers shall be solely responsible for any additional costs or fees arising from and under a Replacement Contract for a Buyer Parent Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.16, and the Retained Companies shall be solely responsible for any additional costs or fees arising from and under a Replacement Contract for a Seller Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.16.  For the avoidance of doubt, notwithstanding anything to the contrary herein, neither a Retained Company, with respect to a Replacement Contract for a Buyer Parent Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.16, nor the Buyers, with respect to a Replacement Contract for a Seller Designated Shared Contract, or in connection with any arrangement with respect thereto described in this Section 5.16, shall be responsible for any Liabilities resulting from such Replacement Contracts, including any increases in pricing or other costs arising as a result of the transactions contemplated by this Agreement.  The Buyers and the Sellers shall cooperate and provide each other with reasonable assistance in effecting such separation of the Designated Shared Contracts prior to the Closing and for a period of ninety (90) days following the Closing Date.  If the Buyers and the Sellers are not able to effect the separation of a Designated Shared Contract prior to the Closing, then after the Closing, until any such Designated Shared Contract is separated, to the extent permissible under Law and under the terms of such Designated Shared Contract, each applicable Group Company and each applicable Retained Company shall (i) assume and perform the Liabilities under such Designated Shared Contract relating to its business or the businesses of their Subsidiaries (and shall promptly reimburse the other Party for any reasonable expenses relating thereto incurred by the other Party or its Subsidiaries), allocated in accordance with this Section 5.16, (ii) hold in trust for the benefit of the other Party, and shall promptly forward to the other Party, any monies or other benefits received pursuant to such Designated Shared Contract relating to the business of the other Party (or the business of its Subsidiaries) and (iii) use commercially reasonable efforts to institute alternative arrangements intended to put the Parties in a substantially similar economic position as if such Designated Shared Contract was separated as described above; provided that, notwithstanding the foregoing, following the Closing, (x) no Party shall have any obligation to renew any Designated Shared Contract upon the expiration or termination thereof and (y) to the extent any such Designated Shared Contract contains an “evergreen” provision that automatically renews such Designated Shared Contract unless terminated or cancelled by either party thereto, the applicable Party shall not be prohibited from terminating or canceling such Designated Shared Contract as permitted pursuant to the terms thereof.  The Buyers shall be solely responsible for replacing any Buyer Parent Designated Shared Contracts, to the extent such Buyer Parent Designated Shared Contracts are not separated as described above prior to the Closing.  The Retained Companies shall be solely responsible for replacing any Seller Designated Shared Contracts to the extent such Seller Designated Shared Contracts are not separated as described above prior to the Closing.  With respect to Liabilities under or resulting from a given Designated Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be allocated from time to time between the Retained Companies, on the one hand, and the Buyers and the Group Companies, on the other hand, as the case may be, based on the relative proportions of total benefits received (to the extent the Liabilities relate to a specific period, over such period, and otherwise over the term of such Designated Shared Contract, measured up to the date of the allocation, without duplication) by the Retained Companies, on the one hand, or the Buyers and the Group Companies, on the other hand, under such Designated Shared Contract.  Notwithstanding the foregoing, each Party shall be solely responsible for (and shall indemnify each other Party and its Affiliates for) any and all Liabilities to the extent arising out of or relating to such Party’s (or its Subsidiaries’) breach of such Designated Share Contract.  It is acknowledged that for the purposes of this Section 5.16, what constitutes “substantially similar” shall be determined after taking into account changes in volume and similar pricing metrics, as well as the needs of the applicable Party.

Section 5.17        Pre-Closing Assignments.  Prior to Closing, Seller Parent shall or shall cause its applicable Subsidiary to assign each of the Customer Contracts related to clause (c) of the definition of Automotive Thermal Products Business to the Group Company or Group Companies designated by Buyer Parent.

Section 5.18        Efforts.  Subject to the terms and conditions of this Agreement, including Section 5.03 which shall control in all respects with the matters set forth therein, or any provision with a different standard which shall control with respect to such provision, each of the Parties shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to consummate the transactions provided for in this Agreement as expeditiously as reasonably practicable, including, without limitation, providing all notices to and obtaining all consents, waivers, approvals from any Person; provided, however, that Buyer Parent’s “reasonable best efforts” shall not obligate Buyer Parent to waive any of the conditions set forth in Sections 8.01 or 8.02, to offer or grant any accommodation (financial or otherwise) to any Person or to provide financing (debt, equity or otherwise) to any Person.  Seller Parent shall, and shall cause the Group Companies to, use their respective reasonable best efforts to obtain and provide any and all outstanding notices, consents, waivers, approvals, Permits, Governmental Orders or authorization of, or registration, designation, declaration or filing with, or notice to, any Governmental Authority or other Person as may be necessary or advisable in connection with the Preparatory Business Transfers.

Section 5.19        Misallocated Assets.  If, following the Closing, any right, property or asset that is not an Automotive Thermal Products Business Asset is found to have been transferred to Buyer Parent or any of its Affiliates (including the Group Companies) in error, either directly or indirectly, Buyer Parent shall transfer, or shall cause its Affiliates (including the Group Companies) to transfer, at Seller Parent’s cost, such right or property as soon as practicable to Seller Parent or its designee.  If, following the Closing, any right, property or asset that is an Automotive Thermal Products Business Asset (other than Benefit Plans) is found to have been retained by Seller Parent or any of its Affiliates (excluding the Group Companies) in error, either directly or indirectly, Seller Parent shall transfer, or shall cause its Affiliates (excluding the Group Companies) to transfer, at no cost, such right, property or asset as soon as practicable to Buyer Parent or its designee (including a Group Company).  For the avoidance of doubt, each of the assets on Schedule 5.19 constitute Automotive Thermal Products Business Assets.

Section 6.01        Tax Returns; Allocation of Taxes.

(a)         Tax Returns.

(i)         To the extent required or permitted by Law, the Parties shall elect to close any Tax year of any of the Group Companies for all Tax purposes as of the close of business on the Closing Date.

(ii)        Any Tax deductions of the Group Companies accruing in connection with the transactions contemplated by this Agreement are properly allocable to Pre-Closing Tax Periods, and the Parties shall cause their Affiliates to, treat such deductions as accruing in Pre-Closing Tax Periods.

(iii)       Seller Parent shall prepare or cause to be prepared (x) all Tax Returns related to the Group Companies which are due on or prior to the Closing Date, (y) all Seller Combined Tax Returns and (z) all Tax Returns of the Retained Companies.

(iv)       At its own expense, Buyer Parent shall prepare and file, or cause to be prepared and filed, when due (taking into account any extensions of a required filing date) all Tax Returns of the Group Companies that are due after the Closing Date and that are not described in Section 6.01(a)(iii).  Each such Tax Return that is (A) for a Tax period ending on or before the Closing Date or for a Straddle Tax Period or (B) for a Post-Closing Tax Period that could reasonably be expected to give rise to Taxes for which the Retained Companies would be liable (including pursuant to Article IX or any Taxes included in the calculation of Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c))) (collectively, the “Buyer-Filed Tax Returns”), shall be prepared in a manner materially consistent with the most recent past practices of Seller Parent and their Subsidiaries with respect to such Tax Returns (unless otherwise required by Law) and without a change of any election or any accounting method (unless otherwise required by Law) and shall be submitted by Buyer Parent to Seller Parent (together with schedules, statements and, to the extent reasonably requested by Seller Parent, supporting documentation) at least forty five (45) days prior to the due date (including any applicable extension) therefor.  Seller Parent shall notify Buyer Parent in writing if it objects to any items in any Buyer-Filed Tax Return within a reasonable amount of time after receipt by Seller Parent of such draft Buyer-Filed Tax Return, and, if such Buyer-Filed Tax Return was provided to Seller Parent at least forty five (45) days prior to such due date, no less than fifteen (15) days prior to such due date.  Any such disputed item shall be resolved in good faith and in a manner mutually agreeable to both Parties, and if not so resolved by the Parties, then may be submitted by any such Party to a jointly retained accountant (which may be the same as or different from the Auditor retained pursuant to Section 2.04, if any).  Upon resolution of all disputed items, the relevant Buyer-Filed Tax Return shall be adjusted or revised to reflect such resolution and shall be binding upon the Parties without further adjustment.  The costs, fees and expenses of such accountant shall be borne equally by Buyer Parent (or its Affiliates) and Seller Parent (or its Subsidiaries).  Neither Buyer Parent nor any of its Affiliates shall amend any Tax Return for a Pre-Closing Tax Period or any Buyer-Filed Tax Return without the prior written consent of Seller Parent.  Subject to Seller Parent’s obligations under Article IX, Buyer Parent shall pay or cause to be paid all Taxes with respect to any Buyer-Filed Tax Return in accordance with Law.

(b)       Except to the extent included as a current asset in the calculation of Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c)), Buyer Parent shall pay, or cause to be paid to, Seller Parent any refund of Taxes (which shall include, for the avoidance of doubt, any credit (in lieu of a refund) for overpayment of Tax) that is (i) attributable to a Pre-Closing Tax Period of any of the Group Companies or (ii) otherwise attributable to any other Taxes paid, indemnified or otherwise borne by the Retained Companies (including, for this purpose, any Taxes included as a current liability in the calculation of Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c))) or any predecessor or Affiliate of the Retained Companies (including, for Tax periods, or portions thereof, ending on or prior to the Closing Date, the Group Companies).  Buyer Parent shall use its commercially reasonable efforts to promptly claim and receive any such refund to which the Retained Companies would be entitled pursuant to this Section 6.01(b), including by taking any action reasonably requested by Seller Parent to obtain any such refund promptly, and shall pay any refund no later than ten (10) days following receipt thereof.  Buyer Parent agrees to waive any carryback of any Tax loss or other Tax attribute from a Post-Closing Tax Period to a Pre-Closing Tax Period.

(c)       Notwithstanding anything to the contrary in this Agreement, all excise, sales, use, value added, registration stamp, recording, documentary, conveyancing, franchise, property, transfer, and similar Taxes, levies, charges and fees (collectively, “Transfer Taxes”) incurred in connection with (i) the Preparatory Business Transfers, (ii) the transactions contemplated by Section 5.04, and (iii) the sale of the Purchased Interests of Modine Uden, Modine Pontevico, MDA Hungary or Modine Europe to the applicable Buyers pursuant to this Agreement, shall be borne and timely paid by Seller Parent, and all other Transfer Taxes arising from the transactions to occur at, or in connection with, Closing shall be borne and timely paid by Buyer Parent.  The Parties shall promptly make the appropriate reimbursements to the extent that a Party is required to pay Transfer Taxes under Law for which another Party is responsible pursuant to this Agreement.  In addition, each Party shall prepare and timely file, or cause to be prepared and timely filed, at its expense, all Tax Returns that are required to be filed with respect to Transfer Taxes for which it is responsible under this Agreement.  The Parties will cooperate and provide such information as another Party may reasonably request from time to time relating to Transfer Taxes.  If any value added or similar tax is or becomes chargeable on any supply made by any Seller to any Buyer under this Agreement and such Seller is required to account to the relevant Taxing Authority for such Tax, subject to the first sentence of this Section 6.01(c), such Buyer must pay to such Seller (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such Tax (and such Seller shall promptly provide an appropriate invoice to such Buyer).  Prior to the Closing, Seller Parent will, and will cause the Sellers and the Group Companies to, take such commercially reasonable actions with respect to Modine German Real Property Owner as may be requested by Buyer Parent to minimize any risks related to potential German income or trade Taxes resulting from Buyer Parent’s planned merger of Modine German Real Property Owner into Dana German Real Property Buyer reasonably promptly following the Closing.

(d)        With respect to the transfer of the Purchased Interests of Modine Thermal Shanghai, Buyer Parent shall cause Dana Belgium to, at its own cost and expense: (i) directly or through a qualified Tax agent agreed by Seller Parent, report the transfer of the Purchased Interests of Modine Thermal Shanghai and submit the necessary documents and information as required by Law to the relevant Governmental Authority in China within such timeframe as required under Law and provide evidence of the same to Seller Parent within five (5) Business Days and (ii) withhold and remit or otherwise pay all Circular 37 Taxes and, pursuant to Section 6.01(c), stamp duty in a timely manner and in any event within the time limits required by Law.  In the event that Dana Belgium fails to file such reports and applications with the relevant Governmental Authority within such timeframe, Seller Parent shall be permitted to file such reports and applications as may be required under Law and, to the extent required, to remit and pay any Circular 37 Tax within the timeframe as required by Law (such remittance or payment by Seller Parent shall not, for the avoidance of doubt, affect Buyer Parent’s obligations under this Section 6.01(d) or under Section 6.01(c)).  Notwithstanding anything to the contrary in this Agreement, Buyer Parent shall not (nor shall Buyer Parent allow Dana Belgium to) settle or compromise any challenge, proposed deficiency or adjustment by any Governmental Authority with respect to Circular 37 Taxes, such stamp duty or the allocation of Purchase Price to the Purchased Interests of Modine Thermal Shanghai without the written consent of Seller Parent (not to be unreasonably withheld, conditioned or delayed).

(e)         In the case of any Straddle Tax Period, (1) real, personal and intangible property Taxes and any other similar Taxes levied on a per diem basis of any Person for a Pre-Closing Tax Period shall be equal to the amount of such Taxes for the entire Straddle Tax Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Tax Period that are in the Pre-Closing Tax Period and the denominator of which is the total number of days in the Straddle Tax Period and (2) any other Taxes of any Person for any Pre-Closing Tax Period shall be computed as if such Tax period ended on the Closing Date, except that deductions, exemptions and allowances that are computed on an annual basis shall be allocated pursuant to Section 6.01(e)(i) above.  All determinations necessary to give effect to the allocation set forth in the previous sentence shall be made in a manner consistent with the prior practice of Seller Parent or its Subsidiaries, as applicable.

Section 6.02       Cooperation on Tax Matters.  Buyer Parent and Seller Parent shall cooperate fully, and Buyer Parent shall cause each of its Affiliates, including the Group Companies, to cooperate fully, as and to the extent reasonably requested by the applicable other Party, in connection with the preparation, execution and filing of Tax Returns and any Tax Claim.  Such cooperation shall include access to records and information which are reasonably relevant to any such Tax Return or Tax Claim, making personnel available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder, executing Tax Returns and executing powers of attorney.  Buyer Parent shall cause its Affiliates, including the Group Companies, (i) to retain all books and records with respect to Tax matters pertinent to the Group Companies relating to any taxable period beginning before the Closing Date until the expiration of the applicable statute of limitations of the respective taxable periods (including any extensions thereof), (ii) to abide by all record retention agreements entered into with any Taxing Authority and (iii) to give Seller Parent ninety (90) days written notice prior to transferring, destroying or discarding any such books and records.  If Seller Parent so requests, Buyer Parent shall, and Buyer Parent shall cause its Affiliates, including the Group Companies, to, allow Seller Parent to take possession of such books and records.  Notwithstanding anything to the contrary in this Agreement, Seller Parent shall not be required to transfer, or otherwise make available, to Buyer Parent any Tax Returns or other Tax work papers of or including any of the Retained Companies to the extent not constituting Transferred Records.

Section 6.03        Buyer Parent Covenants.  Buyer Parent shall not cause or permit any Group Company or any Affiliate of Buyer Parent to (a) take any action on the Closing Date other than in the ordinary course of business, (b) make any Tax election or deemed Tax election that would be effective for any Pre-Closing Tax Period, (c) make any election under Section 338 of the Code with respect to the purchase of the Purchased Interests, (d) amend, refile, revoke or otherwise modify (or cause to be amended, refiled, revoked or otherwise modified) any Tax Return of the Group Companies relating to any Pre-Closing Tax Period, (e) file (or cause to be filed) a ruling request with any Taxing Authority that relates to the Taxes or Tax Returns of the Group Companies for any Pre-Closing Tax Period, (f) initiate (or cause to be initiated) any voluntary disclosure or similar proceedings with any Taxing Authority regarding any Tax or Tax Return of the Group Companies for any Pre-Closing Tax Period, (g) take any action (or cause to be taken any action) to extend the applicable statute of limitations with respect to any Tax Return of the Group Companies for a Pre-Closing Tax Period, (h) with respect to any Group Company that is or was treated as a “controlled foreign corporation” (as defined in Section 957 of the Code) at any time during the taxable period that includes the Closing Date, for the period after the Closing and through the close of each such Group Company’s taxable year (as defined in the Code), take any action (or cause to be taken any action) outside the ordinary course of business (including the distribution of any dividend or effectuation of any redemption) through the close of each such Group Company’s taxable year (as determined for U.S. federal income tax purposes) that could affect the “earnings and profits” (as determined for U.S. federal income tax purposes) of such Group Company or could increase the amount included in income by Seller Parent or any of its Affiliates under Sections 951(a) or 951A(a) of the Code, or (i) take any other action with respect to Taxes that could give rise to any Liability with respect to Pre-Closing Taxes or reduce any asset or benefit of the Retained Companies with respect to Taxes or give rise to any loss of the Retained Companies with respect to Taxes.

Section 6.04      Tax Sharing Agreements.  Any and all existing Tax sharing, Tax allocation or Tax indemnity agreements, except for this Agreement, between any Group Company, on the one hand, and any of the Retained Companies, on the other hand, shall be terminated as of the Closing Date to the extent they relate to the Group Companies.

Section 6.05        Tax Claims.

(a)         If any Tax Claim shall be initiated, which, if successful, might result in an indemnity payment under Article IX or increase the amount of any Tax Liability (or decrease the amount of any Tax asset or contra-liability) included in the calculation of Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c)), the Indemnified Parties shall notify the Indemnifying Parties within fifteen (15) days of receipt of notice of such a Tax Claim; provided, that the failure to give such notice shall not affect the indemnification provided hereunder except (i) to the extent the Indemnifying Parties have actually been prejudiced by such failure or (ii) if the Indemnified Parties fail to notify the Indemnifying Parties of such claim in accordance with this Section 6.05 prior to the Survival Expiration Date.

(b)         Seller Parent shall control the defense of any Tax Claim with respect to any Seller Combined Tax Return, and Buyer Parent shall have no right to participate in any such Tax Claim.  With respect to any other Tax Claim relating (i) to a Pre-Closing Tax Period or (ii) otherwise to Taxes for which the Retained Companies could reasonably be expected to be liable (including pursuant to Article IX or any Taxes included in the calculation of Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c))), Buyer Parent shall control all proceedings in connection with such Tax Claim (each a “Buyer-Controlled Tax Claim”); provided, that (w) Seller Parent shall be entitled to participate in each Buyer-Controlled Tax Claim, (x) Buyer Parent shall submit to Seller Parent for its review and comment all material correspondence and submissions with respect to each Buyer-Controlled Tax Claim and Buyer Parent shall make all revisions requested by Seller Parent thereto, (y) Buyer Parent shall keep Seller Parent reasonably informed of material developments relating to each Buyer-Controlled Tax Claim, and (z) Buyer Parent shall not settle or compromise any Buyer-Controlled Tax Claim, without Seller Parent’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.

(c)         In the event of any conflict or overlap between the provisions of this Section 6.05 and Article IX, the provisions of this Section 6.05 shall control.

Section 6.06     Post-Closing Payments.  The parties agree that any (i) payment of the Adjustment Amount pursuant to Section 2.04(e) or (ii) indemnification payment made pursuant to Article IX shall be treated for U.S. federal income and other applicable Tax purposes as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interests, to the extent permitted by Law.

Section 7.01       Employee Communications and Consultations.  From and after the date hereof until the Closing Date, the Buyers and the Sellers shall cooperate in good faith regarding any written or other reasonable communications to be distributed to any Business Employees relating to the transactions contemplated by this Agreement or post-Closing terms of employment and the Buyers shall consult with the Sellers and obtain Seller Parent’s consent (which shall not be unreasonably withheld) before distributing any communications to any Business Employees, works councils, unions or other labor representatives.  In addition, the Buyers and the Sellers will reasonably cooperate and provide such information as the other Party may reasonably request from time to time in connection with any information and consultations processes relating to the transactions contemplated by this Agreement with any Business Employees or any works council, union or other labor representative.

Section 7.02       Effect of Transfer.  The Sellers and the Buyers intend that the transactions contemplated by this Agreement and the Preparatory Business Transfers should not constitute a separation, termination or severance of employment of any Business Employee prior to or upon the occurrence of the Closing, and that each such Business Employee will have continuous and uninterrupted employment immediately before and immediately after the Closing.  The Retained Companies shall bear all the Liabilities and obligations relating to, and shall indemnify and hold harmless the Buyer Parent and its Subsidiaries (including the Group Companies) from and against, any claims made by any current or former employee of the Group Companies (including Business Employees) related to services performed on or before the Closing, and acts or omissions in connection with the Preparatory Business Transfers, which shall, for the avoidance of doubt, be Retained Liabilities.

Section 7.03        Certain Incentive Payments and Equity Awards.

(a)         Prior to the Closing, the Retained Companies will make a prorated payment to Business Employees under each Seller Plan that is a short- or long-term cash incentive or bonus Benefit Plan with respect to the performance period in which the Closing occurs, and shall cancel the remaining portion of all such incentive or bonus arrangements, so that no Business Employee shall have any remaining right to any such incentive or bonus compensation effective as of the Closing, other than as specifically provided in paragraph (b) below.  The amount (if any) of such prorated incentive or bonus payment will be the product of the applicable Business Employee’s incentive or bonus payment amount (as described in the following sentence) multiplied by a fraction, the numerator of which is the number of days in the performance period that elapse prior to the Closing Date, and the denominator of which is the total number of days in the performance period.  The Retained Companies may determine the incentive or bonus payment amount using any good faith methodology (which need not be the same for each Business Employee) including by basing such amount upon target bonus or upon actual performance calculated as of the most recent practical date prior to Closing as determined in the discretion of Seller Parent. The Retained Companies shall bear all the Liabilities and obligations (whether arising before or after Closing) relating to all amounts payable under such incentive or bonus plans or arrangements pursuant to this Section 7.03(a) (including any payroll, social security, economic liabilities for damages, unemployment or similar Taxes relating thereto) and such amounts shall be Retained Liabilities.

(b)         Except as may otherwise be required under applicable Law, no cash incentive awards or bonuses under any Group Company Plans will be paid out in connection with Closing.  All Liabilities and obligations relating to any incentive compensation or bonus payments owed to any of the Business Employees under any Group Company Plans relating to the period prior to the Effective Time (including any payroll, social security, economic liabilities for damages, unemployment or similar Taxes relating thereto) shall constitute Retained Liabilities. For the avoidance of doubt, the amounts relating to the period prior to the Effective Time shall be calculated on a pro-rata basis as the product of the applicable Business Employee’s incentive or bonus payment amount multiplied by a fraction, the numerator of which is the number of days in the performance period that elapse prior to the Effective Time, and the denominator of which is the total number of days in the performance period.

(c)         Effective upon the Closing, all unvested equity and equity-based awards granted to any Business Employee under any incentive or other equity plan of Seller Parent or its Subsidiaries shall be vested and settled at the discretion of Seller Parent, or, if not vested, shall be cancelled effective as of the Closing, so that no Business Employee shall retain any right to equity or equity-based compensation from the Seller or its Subsidiaries effective as of the Closing. Prior to the Closing, Seller Parent shall provide Buyer Parent with documentation evidencing vesting and settlement and/or cancellation, effective as of the Closing, of all such awards. Seller Parent may determine the vesting amount for any such awards with performance-based vesting based on any good faith methodology (which need not be the same for each Business Employee) including at target or upon actual performance calculated as of the most recent practical date prior to Closing.  The Retained Companies shall bear all the Liabilities and obligations (whether arising before or after Closing) relating to all amounts owed under such equity- or equity-based awards pursuant to this Section 7.03(c) (including any payroll, social security, economic liabilities for damages, unemployment or similar Taxes relating thereto) and such amounts shall be Retained Liabilities.

Section 7.04        Service Credit.  With respect to each Business Employee, effective from and after the Closing, the Buyers shall, and shall cause their Affiliates to, make commercially reasonable efforts to (a) recognize, for all purposes (other than benefit accrual under a defined benefit pension plan) under all plans, programs and arrangements established or maintained by the Buyers or their Affiliates for the benefit of such Business Employees, service with the Sellers and their Subsidiaries prior to the Closing (except to the extent such service was not recognized under the corresponding Seller Plan or Group Company Plan covering such Business Employee), including for purposes of eligibility, vesting and benefit levels and accruals, in each case, except where it would result in a duplication of benefits and (b) waive any pre-existing condition exclusion, actively-at-work requirement or waiting period under all employee health and other welfare benefit plans established or maintained by the Buyers or their Affiliates for the benefit of the Business Employees, except to the extent such pre-existing condition, exclusion, requirement or waiting period would have applied to such individual under the corresponding Seller Plan or Group Company Plan covering such Business Employee.

Section 7.05        Health and Welfare Benefits.  The Retained Companies shall be and Seller Parent shall cause the Retained Companies to be, responsible for all (a) medical, vision, dental and prescription drug claims for expenses incurred by any Business Employee or his or her dependents, (b) claims for short-term and long-term disability income benefits incurred by any Business Employee and (c) claims for group life, travel and accident and accidental death and dismemberment insurance benefits incurred by any Business Employee, in each case, prior to the Effective Time pursuant to the terms of the Group Company Plan or Seller Plan.  Without limiting any obligations under any Group Company Plan, the Buyers shall be, or shall cause their Affiliates to be, responsible for all (i) medical, vision, dental and prescription drug claims for expenses incurred by any Business Employee or his or her dependents, (ii) claims for short-term and long-term disability income benefits incurred by any Business Employee and (iii) claims for group life, travel and accident and accidental death and dismemberment insurance benefits incurred by any Business Employee, in each case under a Group Company Plan or a similar benefit plan of the Buyers, on or after the Closing.

Section 7.06      Workers’ Compensation.  All claims for workers compensation benefits arising out of or related to any events, circumstances, acts, omissions or occurrences existing or occurring prior to or on the Effective Time constitute Retained Liabilities and are subject to indemnification pursuant to Section 9.02(a)(iv) and otherwise subject to ARTICLE IX.

Section 7.07        Buyer Parent Benefit Plans.  Effective as of the Closing, each Business Employee shall cease to participate in any Seller Plan (other than any Group Company Plan) as an active employee.  In addition to the foregoing, effective as of the Closing, the Group Companies shall cease to participate in any Seller Plan that is not a Group Company Plan.

Section 7.08      Works Council.  The Parties will cooperate in good faith in respect of consultation, notice and/or bargaining obligations owed to any employees or consultants of the Group Companies or any of their bargaining representatives in connection with the transactions contemplated hereby in accordance with all applicable Laws and works council or other bargaining agreements, if any, provided, however, that nothing contained herein shall obligate Buyer Parent to agree to or consent to the Group Companies agreeing to or entering into any modifications to the terms of employment or engagement with any employee or consultant of any Group Company or other new or amended terms of any Group Company Plan or any collective bargaining agreement or other agreement with a labor union, works council or similar organization, except, in each case, as would otherwise be de minimis to the Automotive Thermal Products Business, taken as a whole.

Section 7.09        No Third-Party Rights.  The provisions contained in this Agreement with respect to any Business Employee are included for the sole benefit of the Parties and shall not create any right in any other Person, including any Business Employee (or dependent or beneficiary of any of the foregoing).  Nothing herein shall be deemed an amendment to or creation of any plan providing benefits to any Business Employee or shall be deemed to prohibit or restrict the Buyers or any of their Subsidiaries from terminating the employment of any Business Employee following the Closing.

Section 8.01        Conditions to the Obligations of the Buyers and the Sellers.  The obligations of Buyer Parent and Seller Parent to consummate, or cause to be consummated, the transactions contemplated by this Agreement are subject to the satisfaction on or prior to the Closing Date of the following conditions, any one or more of which may be waived in writing by the Parties (solely with respect to themselves):

(a)        all required waiting, notice or review periods under the Competition Laws listed on Schedule 8.01(a) (as extended by any applicable Governmental Authority) shall have expired or been terminated and all required permits, authorizations, clearances or approvals under the Competition Laws listed on Schedule 8.01(a) shall have been made and obtained, and must be fully effective;

(b)         each permit, authorization, clearance or approval from or filing with a Governmental Authority identified on Schedule 8.01(b) must have been obtained or made, as required, and must be fully effective; and

(c)         no Law shall be in effect or otherwise enacted, entered, promulgated, enforced or issued by any Governmental Authority (in each case, exclusive of all Competition Laws and enforcement actions related thereto) restraining, enjoining or prohibiting the consummation of the transactions contemplated by this Agreement (each, a “Closing Legal Impediment”).

Section 8.02        Conditions to the Obligations of the Buyers.  The obligations of Buyer Parent to consummate, or cause to be consummated, the transactions contemplated by this Agreement are also subject to the satisfaction on or prior to the Closing Date of the following conditions, any one or more of which may be waived in writing by Buyer Parent:

(a)         Seller Parent shall have performed and complied with, in all material respects, all of the obligations of Seller Parent to be performed or complied with at or prior to the Closing;

(b)         (i) the Seller Parent’s Fundamental Representations shall be true and correct in all respects (other than de minimis inaccuracies) as of the date hereof and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct in all respects (other than de minimis inaccuracies) at and as of such date) and (ii) the representations and warranties of Seller Parent contained in Article III of this Agreement (other than Seller Parent’s Fundamental Representations and the representations and warranties set forth in Section 3.23(d)) without giving effect to materiality or Material Adverse Effect qualifications (provided, however, that the foregoing shall not apply to the applicable portions of Section 3.06(a), Section 3.07(b), Section 3.09(a) or the applicable portions of any of the other representations and warranties set forth in Article III requiring the listing of matters and which are qualified by materiality or similar qualifications) shall be true and correct as of the date hereof and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct at and as of such date) except where the failure of such representations and warranties described in this clause (ii) to be so true and correct would not reasonably be expected to, individually or in the aggregate, result in the one year loss of net sales revenues of the Automotive Thermal Products Business in excess of $31,210,000, and excluding, with respect to this clause (ii), any effects to the extent related to or arising from the coronavirus (COVID-19) pandemic;

(c)          since the date of this Agreement, there shall not have occurred any Material Adverse Effect;

(d)        Buyer Parent shall have received a certificate, dated as of the Closing Date and signed by a duly authorized officer of Seller Parent, certifying that each of the conditions set forth in Section 5.04(a), Section 8.02(a), Section 8.02(b), and Section 8.02(c) is satisfied as of the Closing;

(e)         Seller Parent shall have delivered to Buyer Parent a certificate of the secretary or other authorized officer of each Seller certifying as to: (i) the accuracy and completeness of attached copies of the organizational documents of such Seller certified by the applicable Governmental Authority as of a recent date (to the extent such applicable Governmental Authority provides such certification), and (ii) the resolutions of the equityholders of such Seller, if required, and the board of directors, the board of managers or other applicable governing body, as applicable, of such Seller authorizing and approving the execution and delivery of each Transaction Document to which such Seller is a party, the performance of such Sellers’ obligations hereunder and thereunder, as applicable, and the consummation of the transactions contemplated hereby and thereby, as applicable;

(f)        each of the documents or other items to be delivered by Seller Parent or any of its Affiliates under Section 2.03(d) shall have been delivered in accordance with Section 2.03(d);

(g)         Seller Parent shall have delivered to Buyer Parent reasonable evidence of the completion of the matters addressed in Section 5.04(b);

(h)       Seller Parent shall have delivered to Buyer Parent duly executed resignations (or other evidence of removal) effective as of or immediately after the Closing, of the managers, directors, officers or members of the control body or equivalent supervising body (or equivalent positions) of the Group Companies requested by Buyer Parent in writing, at least ten (10) days prior to the Closing Date, to resign in their capacity as managers, directors, officers or members of the control body or equivalent supervising body (or equivalent positions) in connection with the Closing;

(i)          the consultation procedures with the Uden Works Council shall have been completed in all material respects in accordance with article 25 WOR and Schedule 8.02(i);

(j)         Seller Parent shall have delivered to Buyer Parent evidence reasonably satisfactory to Buyer Parent that all material Liens (other than Permitted Liens) encumbering the Purchased Interests, the Purchased Assets or any assets or properties of the Group Companies have been released or will be released concurrently with the Closing and that each of the Group Companies has been released from any obligations as a guarantor or otherwise under the Credit Facility and Indenture or will be released concurrently with the Closing;

(k)         each of the consents, filings or other actions (to or in connection with the transactions contemplated by this Agreement and, as applicable, to or in connection with the Preparatory Business Transfers) set forth on Schedule 8.02(k) will have been obtained, made and taken, in form and substance reasonably satisfactory to Buyer Parent, will be in full force and effect and copies of such consents, filings or documentation associated with such other actions will have been delivered to Buyer Parent by Seller Parent; and

(l)          (i) all right, title and interest to the Hungarian Real Property shall have been lawfully transferred to MDA Hungary and (ii) the applicable Affiliates of Seller Parent shall have granted one or more commercially reasonable permanent access easements (or similar access rights under local Law) from any adjoining real property that is owned by such Affiliate of Seller Parent to the extent reasonably necessary to operate the Automotive Thermal Products Business on the Hungarian Real Property in substantially the same manner as it is conducted on the Closing Date.

Section 8.03        Conditions to the Obligations of Sellers.  The obligations of Seller Parent to consummate, or cause to be consummated, the transactions contemplated by this Agreement are also subject to the satisfaction on or prior to the Closing Date of the following conditions, any one or more of which may be waived in writing by Seller Parent:

(a)         Buyer Parent shall have performed and complied with, in all material respects, all of the obligations of Buyer Parent to be performed or complied with at or prior to the Closing;

(b)         (i) the Buyer Parent’s Fundamental Representations shall be true and correct in all respects (other than de minimis inaccuracies) as of the date hereof and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct (other than de minimis inaccuracies) in all respects at and as of such date) and (ii) the representations and warranties of Buyer Parent contained in Article IV of this Agreement (other than Buyer Parent’s Fundamental Representations), shall be true and correct as of the date hereof and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct at and as of such date), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to, individually or in the aggregate, prevent or materially delay the ability of Buyer Parent and Buyers to enter into and perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated hereby;

(c)         Seller Parent shall have received a certificate, dated as of the Closing Date and signed by a duly authorized officer of Seller Parent, certifying that each of the conditions set forth in Section 8.03(a) and Section 8.03(b) and is satisfied as of the Closing; and

(d)         each of the documents or other items to be delivered by Buyer Parent or any of its Affiliates under Section 2.03(d) shall have been delivered in accordance with Section 2.03(d).

Section 9.01      Survival.  For purposes of this Article IX, the representations and warranties of the Parties contained in this Agreement shall survive the Closing until the date that is eighteen (18) months after the Closing Date; provided that, the Seller Parent’s Fundamental Representations and the Buyer Parent’s Fundamental Representations shall survive indefinitely following the Closing Date.  All of the covenants and agreements contained in this Agreement shall survive until fully performed or fulfilled, unless and only to the extent that non-compliance with such covenants or agreements is waived in writing by the Party entitled to such performance (the applicable date on which the representations, warranties, covenants or agreements expire pursuant to this sentence or the preceding sentence, each a “Survival Expiration Date”).  Notwithstanding the preceding two sentences, any claim under this Article IX for the breach of or inaccuracy in any covenant, agreement, representation or warranty in respect of which indemnity may be sought under this Agreement shall survive the applicable Survival Expiration Date, if notice of such claim shall have been validly delivered to the Party against whom such indemnity may be sought prior to or on the applicable Survival Expiration Date in accordance with Section 9.03.  The Parties acknowledge and agree that with respect to any claim that any Party may have against any other Party that is permitted pursuant to the terms of this Agreement, the Survival Expiration Dates set forth and agreed to in this Section 9.01 shall govern when any such claim may be brought and shall replace and supersede any statute of limitations that may otherwise be applicable.  The express or implied waiver of any condition to a Party’s Closing obligations will not affect the waiving Party’s or its other Indemnified Parties’ right to indemnification provided in this Article IX or the Party’s right to any other remedy.

Section 9.02        Indemnification.

(a)         Subject to the provisions of this Article IX, effective at and after the Closing, Seller Parent shall indemnify and hold harmless the Buyers and their Affiliates and Subsidiaries (including, following the Closing, the Group Companies) and their respective Representatives (collectively, the “Buyer Indemnitees”) for, from and against, and shall pay or reimburse such Buyer Indemnitees for, any and all direct or indirect Damages, arising out of, resulting from, or based upon or in connection with:

(i)          any breach of or inaccuracy in any representation or warranty made by Seller Parent in this Agreement;

(ii)      any breach of any covenant or agreement to be performed by any of the Sellers or any of their Affiliates pursuant to this Agreement;

(iii)       all Pre-Closing Taxes of the Group Companies and all Transfer Taxes allocated to Seller Parent or the Sellers pursuant to Section 6.01(c); or

(iv)        any Retained Liability;

provided that, (A) with respect to indemnification by Seller Parent pursuant to Section 9.02(a)(i) (other than with respect to Seller Parent’s Fundamental Representations), Seller Parent shall not be liable for any breach of or inaccuracy in any representation or warranty of Seller Parent (1) attributable to a single claim or all claims arising from the same or substantially related facts, events or circumstances unless the amount of Damages actually incurred by the Buyer Indemnitees for such breach or inaccuracy exceeds $25,000 and (2) unless the aggregate amount of Damages actually incurred by the Buyer Indemnitees for all such breaches exceeds $500,000, and then only to the extent such aggregate Damages exceed such amount, and (B) in no event shall Seller Parent’s aggregate Liability arising out of or relating to Section 9.02(a)(i) exceed $500,000.

(b)        Subject to the provisions of this Article IX, effective at and after the Closing, Buyer Parent shall indemnify and hold harmless the Retained Companies and their respective Representatives (collectively, the “Seller Indemnitees”) for, from and against, and shall pay or reimburse such Seller Indemnitees for, any and all direct or indirect Damages, to the extent arising out of, resulting from, or based upon or in connection with:

(i)          any breach of or inaccuracy in any representation or warranty made by Buyer Parent in this Agreement;

(ii)         any breach of any covenant or agreement to be performed by Buyer Parent after the Closing pursuant to this Agreement;

(iii)        any Assumed Liability (other than any Liability that is indemnifiable by Seller Parent pursuant to Section 9.02(a)); or

(iv)       any third-party claim for a Liability to the extent arising out of or relating to the operation of the Automotive Thermal Products Business after the Closing (other than any Liability that is indemnifiable by Seller Parent pursuant to Section 9.02(a) or any Liability arising from or through any of the Transaction Documents).

Section 9.03        Procedures.  Claims for indemnification under this Article IX shall be asserted and resolved as follows:

(a)         Any Buyer Indemnitee or Seller Indemnitee claiming indemnification under this Article IX (an “Indemnified Party”) with respect to any claim (other than a Tax Claim) asserted against the Indemnified Party by a third party (“Third Party Claim”) in respect of any matter that is subject to indemnification under Section 9.02 shall provide prompt written notice (a “Claim Notice”) to the other Party (the “Indemnifying Party”) of the Third Party Claim.  A Claim Notice shall describe in reasonable detail the facts constituting the basis for such third-party claim and the amount of the potential Damages, in each case, to the extent known.  Failure to notify the Indemnifying Party in accordance with this Section 9.03(a) will not relieve the Indemnifying Party of any Liability that it may have to the Indemnified Party, except to the extent (1) the Indemnifying Party is actually and materially prejudiced by the Indemnified Party’s failure to give such notice or (2) the Indemnified Party fails to notify the Indemnifying Party of such Third Party Claim in accordance with this Section 9.03(a) on or prior to the applicable Survival Expiration Date.

(b)         Subject to the participation rights of the R&W Insurer under the terms of the R&W Insurance Policy, an Indemnifying Party may elect, at its option and expense, to assume and thereafter conduct the defense of any Third Party Claim with counsel of the Indemnifying Party’s choice (which shall be reasonably acceptable to the Indemnified Party) if the Indemnifying Party provides the Indemnified Party with written notice of such election within thirty (30) days of the date the Indemnifying Party receives notice of such Third Party Claim; provided, however, that:

(i)         the Indemnified Party shall be entitled to participate in the defense of such Third Party Claim and to employ counsel at its own expense to assist in the handling of such Third Party Claim;

(ii)       the Indemnifying Party shall obtain the prior written approval of the Indemnified Party before entering into any settlement or compromise of, admitting any Liability with respect to, or discharging, such Third Party Claim (unless such settlement or compromise is solely for monetary damages that are indemnified in full by the Indemnifying Party and such settlement or compromise does not involve any admission of guilt); and

(iii)     no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement that does not include as an unconditional term thereof a release from all Liability of each Indemnified Party given by each claimant or plaintiff with respect to such Third Party Claim.

(c)         Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim (but shall be entitled to participate at its own expense in the defense of), and the Indemnified Party shall be entitled to have sole control over, the defense or settlement any Third Party Claim if (i) the Third Party Claim seeks an order, injunction, non-monetary or other equitable relief against the Indemnified Party; (ii) is reasonably likely to involve a conflict of interest between the Indemnified Party and the Indemnifying Party (as determined based on the advice of counsel to the Indemnified Party); (iii) the claim for indemnification involves a customer or other Person with whom the Indemnified Party or its Affiliates has a strategic relationship; (iv) in the event the Third Party Claim were to be unfavorably decided, such Third Party Claim would be reasonably likely to impose material Liability on the part of the Indemnified Party for which the Indemnified Party is not entitled to indemnification hereunder; (v) in the event the Third Party Claim were to be unfavorably decided, the Indemnified Party would be reasonably likely to be liable for Damages greater than the amount reasonably expected to be received from the Indemnifying Party; or (vi) the Third Party Claim involves a criminal proceeding, action, indictment, allegation or investigation.

(d)         If the Indemnified Party gives an Indemnifying Party notice of a Third Party Claim and the Indemnifying Party is not entitled to assume the defense of the Third Party Claim or does not, within thirty (30) days after such notice is given, (i) give notice to the Indemnified Party of its election to assume the defense of the Third Party Claim and (ii) thereafter promptly assume such defense, then the Indemnified Party may conduct the defense of such Third Party Claim; provided, however, that the Indemnified Party will not enter into any settlement or compromise with respect to such Third Party Claim without the prior written consent of the Indemnifying Party, such consent not to be unreasonably withheld, conditioned or delayed, unless the terms of such settlement or compromise provide for a complete release of the claims that are the subject of such Third Party Claim in favor of the Indemnifying Party.

(e)         A claim for indemnification pursuant to this Article IX for any matter not involving a Third Party Claim shall be promptly asserted by the Indemnified Party to the Indemnifying Party in writing, setting forth in reasonable detail the obligation with respect to which the claim is made, the facts giving rise to and the alleged basis for such claim and, if known or reasonably ascertainable, the amount of Damages asserted or which may be asserted by reason thereof.  Failure to notify the Indemnifying Party in accordance with this Section 9.03(e) will not relieve the Indemnifying Party of any Liability that it may have to the Indemnified Party, except to the extent (1) the Indemnifying Party is actually and material prejudiced by the Indemnified Party’s failure to give such notice or (2) the Indemnified Party fails to notify the Indemnifying Party of such Third Party Claim in accordance with this Section 9.03(e) on or prior to the applicable Survival Expiration Date.

(f)         If the Indemnifying Party assumes control of the defense of any Third Party Claim in accordance with this Section 9.03, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all such witnesses, records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably requested by the Indemnifying Party during normal business hours and upon reasonable advance notice at the Indemnifying Party’s cost and expense.  If the Indemnifying Party does not (or is not entitled to) assume control of the defense of any Third Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably requested by the Indemnified Party during normal business hours and upon reasonable advance notice at the Indemnifying Party’s cost and expense.  All such access shall be granted under conditions which shall not unreasonably interfere with the business and operations of the applicable party providing such access.  If the Indemnifying Party assumes control of the defense of any Third Party Claim in accordance with this Section 9.03, the Indemnifying Party shall (A) keep the Indemnified Party apprised of all material developments and allow the Indemnified Party to participate in such defense, (B) not withdraw from the defense of such Third Party Claim without providing advance written notice to the Indemnified Party reasonably sufficient to allow the Indemnified Party to prepare to reassume the defense of such Third Party Claim, and (C) conduct the defense of the Third Party Claim actively and diligently.

(g)         For the avoidance of doubt, Article VI and not this Section 9.03 shall govern the conduct of any Tax Claim.

(h)        Notwithstanding anything to the contrary contained herein, the control of the defense and settlement of any Third Party Claim for which a Buyer Indemnitee is solely seeking recovery under the R&W Insurance Policy shall be subject to the provisions of the R&W Insurance Policy.

Section 9.04        Calculation of Damages.  Notwithstanding anything to the contrary herein:

(a)        no Buyer Indemnitee shall be entitled to indemnification to the extent a Liability or reserve relating to the matter giving rise to such indemnification has been included in the calculation of Closing Date Net Working Capital or Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)) in an amount greater than or equal to the Damages incurred by the Buyer Indemnitee related to such Liability;

(b)         no Buyer Indemnitee shall be entitled to indemnification for Damages with respect to (i) Taxes that arise from any breach of a covenant or agreement made or to be performed by Buyer Parent or its Affiliates (including, from and after the Closing, the Group Companies) pursuant to this Agreement, (ii) Taxes that arise from any action taken by Buyer Parent or its Affiliates (including, from and after the Closing, the Group Companies) on the Closing Date following the Closing outside the ordinary course of business, (iii) the amount of any net operating loss, Tax basis, Tax credit or other Tax attribute (or the loss, unavailability or reduction thereof), except to the extent resulting directly in additional cash Tax liability of the Group Companies for a Pre-Closing Tax Period that otherwise would not have been imposed or (iv) any Transfer Taxes arising from the transactions to occur at, or in connection with, Closing (other than Transfer Taxes allocated to Seller Parent or the Sellers pursuant to Section 6.01(c));

(c)         each Indemnified Party shall, to the extent required by applicable Law, use its commercially reasonable efforts to mitigate any Damages for which it seeks indemnification pursuant to this Article IX (it being understood that any reasonable costs or expenses incurred in connection with such mitigation shall be included in Damages indemnifiable pursuant to this Article IX and mitigation shall not be deemed to include a requirement for any party to threaten or commence any Action), provided, however, that (i) post-Closing environmental testing at the Owned Real Property and Leased Real Property by Buyer Parent and its Affiliates (including the Group Companies) as part of the Buyer Parent’s and its Affiliates’ (including the Group Companies) Environmental Health & Safety new real property onboarding and assessment process will not be a breach of this provision so long as such environmental testing does not involve any sampling, monitoring or other invasive testing or invasive activity not otherwise required by applicable Environmental Law and (ii) sampling of air at the Owned Real Property and Leased Real Property by Buyer Parent and its Affiliates (including the Group Companies) in the ordinary course of business will not be a breach of this provision;

(d)        the amount of any Damages for which an Indemnified Party claims indemnification under this Agreement shall be reduced by any (i) insurance proceeds (net of any deductibles or self-insured amounts) with respect to such Damages (other than under the R&W Insurance Policy) actually received from third party insurers, (ii) all available cash Tax benefits actually received by such Indemnified Party with respect to such Damages utilized in the tax year such Damages were incurred or within the three (3) subsequent tax years and (iii) all other amounts actually recovered from a third party pursuant to indemnification or otherwise in respect of such Damages, in each case, net of costs and expenses or any increases in premiums or other chargebacks incurred by such Indemnified Party associated with receiving such recovery or proceeds in respect of a claim; provided, that if an Indemnified Party recovers any such amounts from a third party in respect of Damages that are the subject of indemnification hereunder after all or a portion of such Damages have been paid by an Indemnifying Party pursuant to this Article IX, then the Indemnified Party shall promptly remit to the Indemnifying Party the excess (if any) of (A)(1) the amount paid by the Indemnifying Party in respect of such Damages plus (2) the amount received by the Indemnified Party in respect thereof (net of costs and expenses reasonably incurred in obtaining such recovery) less (B) the full amount of the Damages;

(e)         an Indemnifying Party shall not be liable to an Indemnified Party for any adjustment or reassessment which would correspond to a mere change in the time when Taxes should have been paid or such Taxes can effectively be deducted or recovered by the relevant Person, other than with respect to any interest, additions or penalties for late payment otherwise indemnifiable under this Agreement;

(f)          for purposes of determining Damages pursuant to this Article IX, any breach of, or inaccuracy in, any representation, warranty, covenant, obligation or agreement contained in this Agreement or any other Transaction Document, shall be determined without giving effect to any limitations or qualifications regarding materiality, the use of the words “material,” “material respects,” “Material Adverse Effect,” or any similar term, qualification or limitation based on materiality contained herein or therein (provided, however, that the foregoing shall not apply to the applicable portions of Section 3.06(a), Section 3.07(b), Section 3.09(a) or the applicable portions of any of the other representations and warranties set forth in Article III requiring the listing of matters and which are qualified by materiality or similar qualifications);

(g)         Seller Parent shall not be required to indemnify a Buyer Indemnitee for any Damages to the extent any response activities, remediation or cleanup of the Real Property in connection with any Environmental Health & Safety Laws is (i) in response to any voluntary environmental sampling or reporting of any confidential information with respect to environmental, health or safety conditions at the Real Property undertaken after the Closing Date (excluding sampling of air at the Owned Real Property and Leased Real Property by Buyer Parent and its Affiliates (including the Group Companies) in the ordinary course of business), which is not (A) required by Environmental Health & Safety Law or any Permit; (B) ordered, directed or otherwise required by any Governmental Authority; or (C) required by the landlord (who is not an Affiliate of Buyer Parent) of any Leased Real Property; or (ii) to a cleanup standard more stringent than the least stringent permissible standard under Environmental Health & Safety Laws applicable to the Real Property and the business and operations of the Buyer Indemnitee at the time of such response activity, remediation or cleanup, consistent with industrial use (except where a more stringent standard is required by a Governmental Authority, the landlord/owner of any Leased Real Property, or a Governmental Order).  Such applicable cleanup standards shall include, where permitted and approved by a Governmental Authority, the use of restrictive covenants and institutional controls, provided such restrictive covenants or institutional controls do not significantly interfere with Buyer’s use or operation of the Real Property or the conduct of such Buyer Indemnitee’s business; and

(h)        notwithstanding anything to the contrary herein, no Party shall be liable for any (i) special, punitive or exemplary damages, (ii) incidental, consequential or indirect damages, (iii) lost profits or lost business, loss of enterprise value, diminution in value, damage to reputation or loss of goodwill or (iv) damages calculated based on a multiple of profits, revenue or any other financial metric, in each case, whether based on contract, tort, strict liability, other Law or otherwise, and whether or not arising from any other Party’s sole, joint or concurrent negligence, strict liability or other fault, except, in the case of clauses (i) – (iv), to the extent awarded and paid on account of a Third Party Claim or otherwise available under Delaware Law or, in the case of clauses (ii) – (iv), to the extent reasonably foreseeable.

Section 9.05        Indemnification Sole and Exclusive Remedy.  Except with respect to (i) claims based on Fraud solely with respect to any representation or warranty in this Agreement (ii) claims for injunctive or equitable remedies or to specifically enforce the terms of this Agreement, including as provided in Section 11.13, and (iii) and claims by the Buyer Indemnitees under the R&W Insurance Policy, following the Closing, indemnification pursuant to this Article IX will be the sole and exclusive remedy of the Parties and any Person claiming by or through any party (including the Indemnified Parties) related to or arising from any breach of any representation, warranty, covenant or agreement contained in this Agreement.  Nothing in this Section 9.05 shall limit a party’s right to bring a claim for Fraud solely with respect to any representation or warranty in this Agreement.  Furthermore, Buyer Parent and Seller Parent each acknowledge and agree that, except in the case of Fraud solely with respect to any representation or warranty in this Agreement:

(a)       the Parties have voluntarily agreed to define their rights, liabilities and obligations respecting the transactions contemplated by this Agreement exclusively in contract pursuant to the express terms and provisions of this Agreement and hereby waive any statutory and common law remedies, with respect to matters relating to the transactions contemplated by this Agreement not provided for in this Agreement;

(b)       the sole and exclusive remedies for any breach of the terms and provisions of this Agreement (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement) shall be those remedies available at law or in equity for breach of contract only (as such contractual remedies have been further limited or excluded pursuant to the express terms of this Agreement);

(c)         the provisions of and the limited remedies provided in this Article IX were specifically bargained for between the Parties and were taken into account by the Parties in arriving at the Purchase Price;

(d)         after the Closing, no Party or its Affiliates may seek the rescission of the transactions contemplated by this Agreement; and

(e)        the Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations, and the Parties specifically acknowledge that no Party has any special relationship with another Party that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction.

For the avoidance of doubt, any adjustments made or required to be made to the Purchase Price pursuant to Section 2.04 shall not be considered “remedies” for purposes of this Section 9.05 and shall not be limited by the terms of this Section 9.05.

Section 9.06        Tax Treatment of Indemnification Payments.  All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

Section 9.07        R&W Insurance Policy.  For purposes of clarity, as between Buyer Parent, on the one hand, and the R&W Insurer, on the other hand, none of the limitation or exceptions set forth in this Article IX, including any periods of survival, shall in any way limit or modify the ability of the Buyer Indemnitees to make claims under or recover under the R&W Insurance Policy.

Section 10.01      Termination

.  This Agreement may be terminated and the transactions contemplated by this Agreement abandoned at any time prior to the Closing:

(a)         by mutual written agreement of Seller Parent and Buyer Parent;

(b)         by written notice from either Party to the other Party, if (i) any Governmental Authority set forth on Schedule 8.01(a) or 8.01(b) or (ii) any other Governmental Authority not acting pursuant to Competition Laws and, in each case, having competent jurisdiction has issued a final, non-appealable order, judgment, decree, ruling or injunction (other than a temporary restraining order) or taken any other final, non-appealable Action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided that, this right of termination shall not be available to any Party whose failure to comply with its obligations under this Agreement has been the primary cause of, or has primarily resulted in, such order, decree, ruling, injunction or other Action;

(c)         by written notice from Buyer Parent to Seller Parent, if there is a material breach of any representation, warranty, covenant or agreement of Seller Parent contained in this Agreement, in each case, that, individually or in combination with any other such breach, would cause the failure of a condition set forth in Section 8.01 or Section 8.02 to be satisfied at the Closing; provided that, in each case under this clause (c), Buyer Parent may not terminate this Agreement unless (i)(A) Buyer Parent has given written notice of such material breach to Seller Parent and Seller Parent has not cured or caused to be cured such material breach by the earlier of thirty (30) days after receipt of such notice and the Outside Date or (B) such breach is not capable of being cured prior to the Outside Date and (ii) Buyer Parent is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement;

(d)         by written notice from Seller Parent to Buyer Parent, if there is a material breach of any representation, warranty, covenant or agreement of Buyer Parent contained in this Agreement, in each case, that, individually or in combination with any other such breach, would cause the failure of a condition set forth in Section 8.01 or Section 8.03 to be satisfied at the Closing; provided that, in each case under this clause (d), Seller Parent may not terminate this Agreement unless (i)(A) Seller Parent has given written notice of such material breach to Buyer Parent and Buyer Parent has not cured or caused to be cured such material breach by the earlier of thirty (30) days after receipt of such notice and the Outside Date or (B) such breach is not capable of being cured prior to the Outside Date and (ii) Seller Parent is not in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement; or

(e)         by written notice from either Buyer Parent to Seller Parent or Seller Parent to Buyer Parent, if any of the conditions set forth in Sections 8.01, 8.02 and 8.03 of this Agreement, as applicable, have not been satisfied or waived on or before August 2, 2021 (the “Initial Outside Date” and, as the same may be extended in accordance with this Section 10.01(e), the “Outside Date”); provided that, if on the Initial Outside Date all of the conditions set forth in Sections 8.01, 8.02 and 8.03 have been satisfied or waived, other than the conditions (i) with respect to actions the Parties are required to take at the Closing itself as provided herein and (ii) set forth in Section 8.01(a), then Seller Parent or Buyer Parent may elect to extend the Initial Outside Date to a date not beyond November 2, 2021 by providing written notice thereof to the other Party on or prior to the Initial Outside Date; provided, further, that this right of termination shall not be available to any Party whose failure to comply with its obligations under this Agreement has been the primary cause of, or has primarily resulted in, the failure of the conditions provided in Sections 8.01, 8.02 and 8.03, as applicable, to be satisfied before such date.

Section 10.02      Effect of Termination

.  Except as otherwise set forth in this Section 10.02, in the event of the termination of this Agreement pursuant to Section 10.01, this Agreement shall forthwith become void and have no effect, without any Liability on the part of any Party or its Affiliates or its or their Representatives, other than Liability of Seller Parent or Buyer Parent, as the case may be, for any intentional or willful breach of or inaccuracy in or known misrepresentation with respect to this Agreement or any representation, warranty, covenant, agreement or obligation contained in this Agreement occurring prior to such termination.  The provisions of Section 5.13, this Section 10.02, Article XI and the Confidentiality Agreement shall survive any termination of this Agreement.

Section 11.01      Notices.  All notices and other communications between the Parties shall be in writing and shall be deemed to have been duly given (a) when delivered in person; or (b) when delivered by FedEx or other nationally recognized overnight delivery service, addressed as follows:

if to Buyer Parent, to:

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

if to Seller Parent, to:

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

or to such other address or addresses as a Party may from time to time designate in writing.

Section 11.02      Waiver.  No waiver by any Party of any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach or affect in any way any rights arising by virtue of any prior or subsequent occurrence unless expressly so stated.  No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and executed by the Party sought to be charged with such waiver.

Section 11.03      Expenses.  Except as otherwise expressly provided in this Agreement, including Section 5.03 and Section 6.01(c), each Party shall bear its own expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement, whether or not such transactions shall be consummated, including all fees of its legal counsel, financial advisers and accountants; provided, however, that the fees and expenses of the Auditor, if any, shall be paid in accordance with Section 2.04.

Section 11.04     Assignment.  No Party shall assign this Agreement or any part hereof without the prior written consent of the other Party; provided, however, that, without obtaining the written consent of Seller Parent, Buyer Parent may assign some or all of its rights hereunder (including its rights to acquire the Purchased Intellectual Property) or may replace in whole or in part any of the Buyers with or to any successor to all or any portion of Buyer Parent’s business or to one or more Affiliates of Buyer Parent; provided, further, that (a) no such assignment shall relieve Buyer Parent of its Liabilities hereunder and (b) Buyer Parent shall not be entitled to assign rights hereunder to the extent such assignment could result in any Tax or other expense for any Seller Indemnitee without the prior written agreement of Seller Parent, not to be unreasonably withheld, conditioned or delayed.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

Section 11.05     Governing Law.  This Agreement, and all issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement and the exhibits and schedules hereto, and all claims and disputes arising hereunder or in connection herewith, whether purporting to sound in contract or tort, or at law or in equity, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, including its statutes of limitation, without giving effect to any choice of Law or conflict of Law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

Section 11.06      Jurisdiction; Waiver of Jury Trial.

(a)         The Parties hereby consent to be subject to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, to the extent such court declines jurisdiction, first to any federal court, or second, to any state court, each located in Wilmington, Delaware, and hereby waive the right to assert the lack of personal or subject matter jurisdiction or improper venue in connection with any such suit, action or other proceeding.  In furtherance of the foregoing, each Party (a) waives the defense of inconvenient forum, (b) agrees not to commence any suit, action or other proceeding arising out of this Agreement or any transactions contemplated by this Agreement other than in any such court and (c) agrees that a final judgment in any such suit, action or other proceeding shall be conclusive and may be enforced in other jurisdictions by suit or judgment or in any other manner provided by Law.

(b)        EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND EACH OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 11.06(b).

Section 11.07      Rights of Third Parties.  Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the Parties, any right or remedies under or by reason of this Agreement; provided, however, that (a) the past, present and future directors, managers, officers, employees, incorporators, members, partners, stockholders, Affiliates, agents, attorneys, advisors and other Representatives of the Parties, and any Affiliate of any of the foregoing (and their successors, heirs and representatives), are intended third-party beneficiaries of, and may enforce, Section 11.14, (b) Prior Counsel, Indemnified Parties and the Designated Persons shall be intended third party beneficiaries of, and may enforce, Section 11.15 and (c) the Buyer Indemnitees and the Seller Indemnitees are intended third party beneficiaries of, and may enforce, Article IX.

Section 11.08     Entire Agreement.  The Transaction Documents and the Confidentiality Agreement constitute the entire agreement among the Parties relating to the transactions contemplated hereby and thereby and supersede any other agreements, whether written or oral, that may have been made or entered into by any of the Parties or any of their respective Affiliates or Representatives relating to the transactions contemplated by this Agreement.  No representations, warranties, covenants, understandings or agreements, oral or otherwise, relating to the transactions contemplated by the Transaction Documents exist among the Parties except, in each case, as expressly set forth in the Transaction Documents and the Confidentiality Agreement.

Section 11.09     Amendments.  This Agreement may be amended or modified, in whole or in part, only by a duly authorized agreement in writing executed by each Party hereto in the same manner (but not necessarily by the same individuals) as this Agreement and which makes reference to this Agreement.

Section 11.10      Bulk Sales Laws.  Buyer Parent hereby waives compliance by the Sellers and their Subsidiaries with respect to the provisions of the “bulk sales”, “bulk transfer” or similar Laws of any jurisdiction in connection with the Preparatory Business Transfers and the other transactions contemplated by this Agreement.

Section 11.11     Severability.  If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect.  The Parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the Parties.

Section 11.12      Disclosure Schedules.  The Parties acknowledge and agree that (a) the inclusion of any item, information or other matter in the Disclosure Schedules that is not required by this Agreement to be so included is solely for the convenience of Buyer Parent, (b) the disclosure by Seller Parent of any item, information or other matter in the Disclosure Schedules shall not be deemed to constitute an acknowledgement by Seller Parent that such item, information or other matter is required to be disclosed by the terms of this Agreement or that such item, information or other matter is material, (c) if any section of the Disclosure Schedules lists an item or information in such a way as to make its relevance to the disclosure required by or provided in another section of the Disclosure Schedules reasonably apparent on the face of such disclosure, such item or information shall be deemed to have been disclosed in or with respect to such other section, notwithstanding the omission of an appropriate cross-reference to such other section or the omission of a reference in the particular representation and warranty to such section of the Disclosure Schedules, and (d) the Disclosure Schedules and the information and statements contained therein are not intended to broaden or constitute, and shall not be construed as broadening or constituting, representations, warranties or covenants of the Sellers except as and to the extent provided in this Agreement.

Section 11.13      Enforcement.  The Parties agree that irreparable damage would occur, and that the Parties would not have an 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.  It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches or anticipated breaches of this Agreement and to specifically enforce the terms and provisions of this Agreement, without proof of actual damages or otherwise, in addition to any other remedy to which any Party is entitled at Law or in equity.  Each Party agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.  The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy or monetary damages would provide an adequate remedy.  To the extent any Party brings an action, suit or proceeding to enforce specifically the performance of the terms and provisions of this Agreement (other than an action to enforce specifically any provision that expressly survives termination of this Agreement), the Outside Date shall automatically be extended to (a) the twentieth (20th) Business Day following the resolution of such action, suit or proceeding or (b) such other time period established by the court presiding over such action, suit or proceeding.  The remedies available to each Party hereto pursuant to this Section 11.13 shall be in addition to any other remedy to which it is entitled at law or in equity.

Section 11.14      Non-Recourse.  This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of or related to this Agreement or the transactions contemplated by this Agreement may only be brought against, the entities that are expressly named as Parties (together with any assignee of Buyer Parent pursuant to Section 11.04) and then only with respect to the specific obligations set forth herein with respect to such named Party.  No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or other Representative of any Party, or Affiliate of any of the foregoing (excluding Seller Parent and Buyer Parent), shall have any Liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or Liabilities of Seller Parent or Buyer Parent under this Agreement (whether for indemnification or otherwise) or of or for any claim based on, arising out of or related to this Agreement or the transactions contemplated hereby.

Section 11.15      Privileged Matters; Conflicts of Interest.

(a)        The Parties agree that their respective rights and obligations to maintain, preserve, assert or waive any attorney-client and work product privileges belonging to the other Party with respect to the Group Companies, the Purchased Assets, the Automotive Thermal Products Business and the Retained Businesses (collectively, “Privileges”) shall be governed by the provisions of this Section 11.15(a).  With respect to matters relating to the Retained Businesses, and with respect to all documents or communications (collectively, “Information”) of any of the Retained Companies prepared in connection with this Agreement or the transactions contemplated by this Agreement, Seller Parent shall have sole authority to determine whether to assert or waive any Privileges, provided, however, Seller Parent shall have no authority to assert any Privilege against Buyer Parent and its Affiliates relating to Information in the possession of Buyer Parent and/or its Affiliates.  Buyer and its Affiliates will not intentionally take any action that would reasonably be expected to result in any waiver of any such Privileges of the Sellers.  After the Closing, Buyer Parent shall have sole authority to determine whether to assert or waive any Privileges with respect to matters relating to the Group Companies, the Purchased Assets or the Automotive Thermal Products Business (except for the Information prepared in connection with the Transaction Documents or the transactions contemplated thereby).  Seller Parent shall not, and shall cause its Subsidiaries not to, take any action after the Closing without the prior written consent of Buyer Parent that would reasonably be expected to result in any waiver of any such Privileges of Buyer Parent.  Upon receipt by the Seller Parent or its Affiliates (including the Retained Companies), or the Buyers or their Affiliates (including, after the Closing, the Group Companies), as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of another Party or if the Seller Parent or its Affiliates (including the Retained Companies) or the Buyers or their Affiliates (including, after the Closing, the Group Companies), as the case may be, obtains knowledge that any current or former employee of the Seller Parent or its Affiliates (including the Retained Companies) or the Group Companies has received any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Privileged Information of the other Party, such Party shall promptly notify the other of the existence of the request and shall provide the other Party a reasonable opportunity to review the Information and to assert any rights it may have under this Section 11.15 or otherwise to prevent the production or disclosure of Privileged Information.  The Sellers’ transfer of any Transferred Records or other Information to the Buyers in accordance with this Agreement and the Sellers’ agreement to permit the Buyers to obtain Information existing prior to the Closing are made in reliance on the Parties’ respective agreements, as set forth in Section 5.11 and this Section 11.15, to maintain the confidentiality of such Information and to take the steps provided herein for the preservation of all Privileges that may belong to or be asserted by the Sellers or the Buyers, as the case may be.  The access to Transferred Records and other Information being granted pursuant to Sections 5.02, 5.09 and 9.03 and Article VI, and the disclosure to the Buyers and the Sellers of Privileged Information relating to the Group Companies or the Retained Businesses pursuant to this Agreement in connection with the transactions contemplated by this Agreement shall not be asserted by the Sellers or the Buyers to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be asserted under this Section 11.15 or otherwise.

(b)        Conflicts of Interest.  The Buyers hereby waive and agree not to assert, and after the Closing, the Buyers shall cause the Group Companies to waive and not assert, any conflict of interest arising out of or relating to the representation, after the Closing, of any of the Retained Companies or other Affiliates, or any of their respective officers, employees or directors (any such person, a “Designated Person”) in any matter involving the Transaction Documents or transactions contemplated thereby, by Latham & Watkins LLP and/or CMS Legal Services EEIG (“Prior Counsel”).  Without limiting the foregoing, following the Closing, Prior Counsel may serve as counsel to any Designated Person in connection with any matters related to the Transaction Documents and the transactions contemplated thereby, including any litigation, claim or obligation arising out of or relating to the Transaction Documents or the transactions contemplated thereby notwithstanding any representation by Prior Counsel prior to the Closing, and Buyer Parent (on behalf of itself and its Affiliates (including, after the Closing, the Group Companies)) hereby agrees that, in the event that a dispute arises after the Closing between the Buyers or any of their Affiliates (including, after the Closing, the Group Companies), on the one hand, and any Designated Person, on the other hand, Prior Counsel may represent one or more Designated Persons in such dispute even though the interests of such Person(s) may be directly adverse to the Buyers or their Affiliates (including, after the Closing, the Group Companies) and even though Prior Counsel may have represented such Group Company in a matter substantially related to such dispute.

Section 11.16      Currency

.  Unless otherwise specified in this Agreement or as required by Law, all references to currency, monetary values and dollars set forth herein means United States (U.S.) dollars and all payments hereunder shall be made in U.S. dollars.  To the extent this Agreement provides for any valuation, measurement or test as of a given date based on an amount specified in U.S. dollars and the subjects of such valuation, measurement or test are comprised of items or matters that are, in whole or in part, denominated other than in U.S. dollars, such non-U.S. dollar amounts shall be converted into U.S. dollars using the foreign exchange rates published by Bloomberg as the Composite 5:00 p.m. New York closing rates (CMPN) one (1) Business Day prior to the date in question; provided, however, that for purposes of any calculation or estimate to be provided by one Party to another Party hereunder, such calculation or estimate shall be made using the foreign exchange rates published by Bloomberg as the Composite 5:00 p.m. New York closing rates (CMPN) one (1) Business Day prior to the delivery of such calculation or estimate; provided, further, that for purposes of the calculation or estimate of each of the Estimated Closing Date Net Working Capital, the Estimated Working Capital Adjustment Amount, the Closing Date Net Working Capital, the Final Working Capital Adjustment Amount, the Estimated Closing Date Indebtedness, the Estimated Indebtedness Adjustment Amount, the Closing Date Indebtedness, the Final Indebtedness Adjustment Amount, the Estimated Closing Date Cash, the Closing Date Cash, the Estimated Closing Date Transaction Expenses and the Closing Date Transaction Expenses, such calculations or estimates shall be done in accordance with the methodology used in the preparation of the Sample Closing Statement (and not, for the avoidance of doubt, this Section 11.16).

Section 11.17     Captions; Counterparts.  The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.  This Agreement may be executed in two or more counterparts and by DocuSign, PDF, facsimile or other electronically transmitted signatures, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized directors or officers as of the day and year first above written.