Equity Interest Purchase Agreement dated as of October 7, 2024 among U.S. Physical Therapy, Ltd., MSO Metro, LLC, the member of MSO Metro, LLC and Michael G. Mayrsohn as Sellers' Representative

(b)          The releases and discharges contained in Section 6.1(a) will be construed as general releases with respect to the Released Claims and each Releasing Party irrevocably waives its respective rights with respect to its Released Claims under any applicable Law that provides that a general release does not extend to Seller Release Damages which a releasing party does not know of, or suspect to exist in its favor, at the time of execution of the release or discharge, which if known would have affected its release agreement with the released party.  Each Releasing Party shall not directly or indirectly, assert any claim, or commence, institute or cause to be commenced any action, suit, arbitration or other proceeding against any Released Party based upon or in connection with any Released Claim.  THE RELEASES AND DISCHARGES OF ANY PERSON UNDER THIS SECTION 6.1 SHALL APPLY REGARDLESS OF CAUSE, INCLUDING IF SUCH PERSON WAS JOINTLY, SOLELY OR CONCURRENTLY NEGLIGENT, GROSSLY NEGLIGENT OR OTHERWISE.

(c)          The releases and discharges contained in Section 6.1(a) are a complete compromise of rights by each Releasing Party solely with respect to the Released Claims. EACH RELEASING PARTY WAIVES ANY RIGHTS IT MAY HAVE WITH RESPECT TO THE RELEASED CLAIMS BY SUCH PARTY UNDER ANY STATUTE OR COMMON LAW PRINCIPLE THAT WOULD LIMIT THE EFFECT OF THIS RELEASE TO THOSE MATTERS ACTUALLY KNOWN OR SUSPECTED TO EXIST AT THE TIME OF EXECUTION OF THIS RELEASE, OR THAT WOULD OTHERWISE LIMIT THE SCOPE AND BREADTH OF THIS RELEASE IN ANY WAY, AS EACH PARTY INTENDS A FULL AND FINAL REPOSE OF ALL DISPUTES AND POTENTIAL LITIGATION RELATED TO THE RELEASED CLAIMS BY SUCH PARTY.

(d)          The parties are entering into the release contemplated by this Section 6.1 as a commercial accommodation only.  Nothing contained in this release will constitute, or will be construed to constitute, an admission of fact, liability or wrongdoing on the part of any party.

(e)          In signing this Agreement, each Releasing Party acknowledges and agrees that this release will be effective as a bar to any and all Released Claims of such Releasing Party.  In furtherance of the foregoing, each Releasing Party will not commence or voluntarily participate in any claim, action or proceeding with respect to or based upon any Released Claim of such Releasing Party.  If any Releasing Party hereafter commences (or voluntarily participates in) any action or proceeding against any Released Party with respect to or based upon any Released Claim of such Releasing Party, then this release shall be deemed breached by such Releasing Party and the affected Released Party shall be entitled to reimbursement from such Releasing Party of its reasonable costs and expenses (including reasonable attorneys’ fees and expenses) suffered, sustained or incurred by it in connection with such claim, action or proceeding and shall be fully indemnified by such Releasing Party for such fees and costs.  This release may be pleaded by any Released Party as a counterclaim or cross-claim in any such claim, action or proceeding.  For the avoidance of doubt, participating in any action or proceeding required by court order, subpoena or applicable Law shall not be considered voluntarily for purposes of this Section 6.1.

6.2         Confidentiality of Terms of Transaction.  Subject to Section 11.12 and except as otherwise required by Law, each of the parties hereto will keep confidential, and not disclose, the terms and status of this Agreement and the other Transaction Agreements, the Transactions and the identity of the other parties hereto; provided that each of the parties hereto will have the right to communicate and discuss with, and provide to, its respective legal advisors, representatives, officers or employees, directors, managers, consultants and agents, any information regarding the terms and status of this Agreement and the other Transaction Agreements and the Transactions provided such parties agree to restrictions of disclosure and non-use consistent with the restrictions set forth in the Confidentiality Agreement.

6.3          Disclosure Schedules.

(a)          The Disclosure Schedules will be in writing and will qualify this Agreement.

(b)          The inclusion of an item in a Disclosure Schedule as an exception to a representation or warranty will not be deemed an admission by any party hereto, as applicable, that such item constitutes an item, event, circumstance or occurrence that is material to any Company Entity or constitutes a Material Adverse Effect.  Any fact or item that is disclosed in any Disclosure Schedule in a way as to make its relevance or applicability to information called for by any other Disclosure Schedule reasonably apparent on the face of such disclosure will be deemed to be disclosed in such other Disclosure Schedule, notwithstanding the omission of a reference or cross-reference thereto.  Descriptions of terms or documents summarized in the Disclosure Schedules will be qualified in their entirety by the documents themselves.

(c)          From time to time prior to the Closing, the Company and Sellers’ Representative (on behalf of Sellers) will have the right to supplement or amend the Disclosure Schedules to this Agreement with respect to any matter arising or discovered after the date hereof which, if existing, occurring or actually known by Sellers as of the date of this Agreement, would have been required to be disclosed in the Disclosure Schedules (each a “Schedule Supplement”); provided that for purposes of determining the indemnification rights of Buyer set forth in Section 8.2(a)(1) or determining accuracy of the representations and warranties of the Company Entities in ARTICLE II and of each Seller in ARTICLE III for purposes of determining satisfaction of the conditions set forth in Section 7.1(a), except as agreed in writing by Buyer, the Disclosure Schedules delivered by the Company and Sellers or Sellers’ Representative will be deemed to include only that information contained therein on the date of this Agreement and will be deemed to exclude any information contained in any Schedule Supplement; provided, further, however, that if, as a result of matters disclosed in a Schedule Supplement, Buyer has the right to terminate this Agreement pursuant to Section 10.1(b)(1), but does not elect to terminate within five (5) Business Days of its receipt of such Schedule Supplement, then Buyer shall be deemed to have irrevocably waived any right to terminate this Agreement with respect to such matter and, further, shall have irrevocably waived its right to indemnification under Article VIII with respect to such matter.

6.5        Cash Sweep. Prior to the Closing, Sellers shall use commercially reasonable efforts to, in accordance with applicable Law, distribute all Cash of the Company and Company Subsidiaries to the Sellers. From and after the Closing Date, to the extent there were deposits in transit but not yet credited as of 11:59 p.m. (Eastern Standard Time) on the Closing Date (including uncleared checks, drafts and other bank deposits and credit card payments that have been made but have not yet been credited as of 11:59 p.m. (Eastern Standard Time) on the Closing Date, less any amounts on checks or otherwise paid by the Company but not yet cleared), Buyer will cause the Company and Company Subsidiaries to promptly, but in any event within five (5) Business Days following the Closing Date, distribute such amounts to the Sellers in accordance with each Seller’s Pro Rata Share.

6.6       Earn-Out Bonus Payments. Subject to, and contingent upon, (a) the achievement of the Earn-Out Payment Condition and (b) Bonus Recipient’s continued employment with the applicable Company Entity through the Payment Date (defined below), such Bonus Recipient will be entitled to a cash bonus (an “Earn-Out Bonus”) equal to the product of (i) the amount set forth opposite such Bonus Recipient’s name on Schedule A-6 under the heading “Maximum Earn-Out Bonus” multiplied by (ii) the Earn-Out Payment divided by the Earn-Out Cap. For example, if a Bonus Recipient’s Maximum Earn-Out Bonus is $100,000 and the Earn-Out Payment is $10,000,000, then such Bonus Recipient’s Earn-Out Bonus would be equal to $100,000 * ($10,000,000 / $20,000,000), or $50,000. Within thirty (30) days following the date that the Earn-Out Payment is finally determined pursuant to Section 1.3, Buyer shall pay, or cause to be paid, to the Company, by wire transfer of immediately available funds, an amount equal to the sum of (x) the aggregate amount of the Earn-Out Bonuses payable to the Bonus Recipients pursuant to this Section 6.6 plus (y) the employer portion of any employment or payroll Taxes payable, or any other required withholdings, with respect thereto (collectively, the “Earn-Out Bonus Amount”). Promptly following receipt of the Earn-Out Bonus Amount, but in any event within the short-term deferral period under Code Section 409A to the extent necessary to comply with Code Section 409A (such date the Earn-Out Bonus is actually paid, the “Payment Date”), Buyer shall cause the Company to pay the Earn-Out Bonuses to the Bonus Recipients, subject to applicable Tax and other withholdings, in a single lump sum in accordance with the Company’s standard payroll processes.

7.1        Conditions to Obligation of Buyer.  The obligation of Buyer to consummate the transactions to be performed by Buyer in connection with the Closing is subject to the satisfaction of each of the following conditions as of the Closing:

(a)          Representations and Warranties.  Each of the representations and warranties of the Company Entities and Sellers herein (i) that are not qualified by materiality, Material Adverse Effect or similar phrases will be true and correct in all material respects on and as of the date of this Agreement and on and as of the Closing (except to the extent such representations and warranties address matters as of particular dates, in which case, such representations and warranties will be true and correct in all material respects on and as of such dates); and (ii) that are qualified by materiality, Material Adverse Effect, or similar phrases or that are Fundamental Representations will be true and correct in all respects on and as of the date of this Agreement and on and as of the Closing (except to the extent such representations and warranties address matters as of particular dates, in which case, such representations and warranties will be true and correct in all respects on and as of such dates).

(b)          Performance of Covenants.  Sellers’ Representative, Sellers and the Company will have performed and complied in all material respects with all their covenants and agreements required to be performed by them pursuant to the Transaction Agreements prior to the Closing Date.

(c)          No Material Adverse Effect.  Since the date of this Agreement, there will have been no change, event, occurrence or circumstance that has had a Material Adverse Effect on the Business.

(d)          Antitrust Laws.  No Action by any Antitrust Enforcement Authority to enjoin or restrain the Transactions will be pending; and no agreement with or commitment to any Antitrust Enforcement Authority not to consummate the Transactions will be in effect.

(e)          MSO Documents. Buyer and Sellers’ Representative will have mutually agreed upon forms of the MSO Documents.

(f)          Proceedings; Orders.  (i) No Action will be pending before any Governmental Entity in which it is sought to restrain or prohibit or to obtain material damages or other relief (including rescission) in connection with the Transactions; and (ii) no such Order has been entered and not subsequently dismissed or discharged with prejudice.  There will not be in effect any material Order by a Governmental Entity restraining, enjoining or otherwise prohibiting the consummation of the Transactions.

(g)          Governmental Approvals.  All filings, notices, licenses, permits, approvals or other consents of, to or with, any Governmental Entity, including, without limitation, any state health care transaction approval requirements, that are listed in Schedule 1.5(c)(1) will have been duly made or obtained and will be in full force and effect as of the Closing, each in form and substance reasonably satisfactory to Buyer.

(h)        Consents.  All filings, notices, licenses, permits, approvals and other consents of, to or with, any Person (other than a Governmental Entity) that are listed in Schedule 1.5(c)(1) will have been duly made or obtained and will be in full force and effect as of the Closing, each in form and substance reasonably satisfactory to Buyer.

(i)        Transaction Agreements and Other Agreements.  Buyer will have received counterparts to each of the documents and agreements set forth in Section 1.5(c), duly executed by each party other than Buyer or its Affiliates.

(j)           Officer’s Certificate.  Buyer will have received a certificate duly executed by Sellers’ Representative, dated as of the Closing, certifying that each of the conditions specified in Sections 7.1(a), 7.1(b) and 7.1(c) have been fully satisfied.

(k)           Other Documents.  Buyer will have received such other documents or instruments as Buyer may reasonably request or may be required to effect the Transactions.

Buyer may waive any condition specified in this Section 7.1 if it executes a writing so stating at or prior to the Closing.

7.2        Conditions to Obligation of Sellers.  The obligation of Sellers to consummate the transactions to be performed by them in connection with the Closing is subject to satisfaction of each of the following conditions as of the Closing:

(a)         Representations and Warranties.  Each of the representations and warranties of Buyer herein (i) that are not qualified by materiality, material adverse effect or similar phrases will be true and correct in all material respects on and as of the date of this Agreement and on and as of the Closing (except to the extent such representations and warranties address matters as of particular dates, in which case, such representations and warranties will be true and correct in all material respects on and as of such dates); and (ii) that are qualified by materiality, material adverse effect, or similar phrases will be true and correct in all respects on and as of the date of this Agreement and on and as of the Closing (except to the extent such representations and warranties address matters as of particular dates, in which case, such representations and warranties will be true and correct in all respects on and as of such dates).

(b)           Performance of Covenants.  Buyer will have performed in all material respects all the covenants and agreements required to be performed by it pursuant to the Transaction Agreements on or prior to the Closing Date.

(c)          Antitrust Laws.  No Action by any Antitrust Enforcement Authority to enjoin or restrain the Transactions will be pending; and no agreement with or commitment to any Antitrust Enforcement Authority not to consummate the Transactions will be in effect.

(d)          Governmental Approvals.  All filings, notices, licenses, permits, approvals or other consents of, to or with, any Governmental Entity, including without limitation any state health care transaction approval requirements, that are listed in Schedule 1.5(c)(1) will have been duly made or obtained and will be in full force and effect as of the Closing, each in form and substance reasonably satisfactory to Sellers’ Representative.

(e)          Officer’s Certificate.  Buyer will have delivered to Sellers’ Representative a certificate duly executed by an officer of Buyer, dated as of the Closing, that each of the conditions specified in Sections 7.2(a) and 7.2(b) have been satisfied.

(f)        Transaction Agreements and Other Agreements.  Sellers’ Representative will have received counterparts to each of the documents and agreements set forth in Section 1.5(b), duly executed by each party other than Sellers or the Company.

(g)          Other Documents.  Sellers’ Representative will have received such other documents or instruments as Sellers’ Representative may reasonably request or may be required to effect the Transactions.

Sellers’ Representative may waive any condition specified in this Section 7.2 if he executes a writing so stating at or prior to the Closing.

8.1          Survival Periods.

(a)          Subject to the limitations in this ARTICLE VIII, all representations, warranties, covenants and agreements in this Agreement and in any certificate delivered in connection with this Agreement will survive the execution and delivery of this Agreement or any such certificate and the consummation of the Transactions.

(b)          Notwithstanding anything herein to the contrary, Sellers will not be liable with respect to any claim for indemnification pursuant to Sections 8.2(a)(1), (2), (5) and (6) and Buyer will not be liable with respect to any claim for indemnification pursuant to Section 8.3(a), unless written notice of such claim is delivered to Sellers’ Representative or Buyer, as the case may be, prior to the applicable Survival Date, if any.

(c)          For purposes of this Agreement, the term “Survival Date” means October 7, 2028; provided, however, (i) that covenants and agreements will survive the Closing until fully performed or observed in accordance with their terms and the Survival Date will be the date of such performance or observance and (ii) the Survival Date with respect to Fundamental Representations shall be the later of (x) the date that is six (6) years following the Closing Date and (y) the ninetieth (90^th) day after the expiration of the applicable statute of limitation.

(d)          The parties hereto agree that so long as written notice is given on or prior to the Survival Date with respect to such claim, the representations and warranties with respect to such breach will continue to survive until such matter is finally resolved.

8.2         Indemnification of Buyer Indemnified Parties by Sellers.

(a)          Indemnification.  Each Seller hereby agrees (i) on a joint and several basis, with respect to all representations in ARTICLE II; and (ii) on an individual basis, in accordance with and not to exceed the amount of each Seller’s Pro Rata Share, with respect to the representations in ARTICLE III and such Seller’s individual covenants and agreements herein, to indemnify Buyer and its Affiliates (other than the Company Entities) and each of their respective officers, directors, stockholders, managers, members, partners, employees, agents, representatives, successors and assigns (collectively, the “Buyer Indemnified Parties”) and hold each of them harmless from and against and pay on behalf of or reimburse any such Buyer Indemnified Party in respect of any Loss which such Buyer Indemnified Party  or any Company Entity may suffer, sustain or become subject to, as a result of, arising out of, relating to or in connection with:

(1)          the breach or inaccuracy of any representation or warranty of the Company Entities in ARTICLE II or in any certificate delivered pursuant to this Agreement or the breach or inaccuracy of any representation or warranty of Sellers in ARTICLE III, in each case, without giving effect to any limitation or qualification as to “materiality,” “material,” “Material Adverse Effect” or similar qualifiers set forth in such representation or warranty for purposes of determining whether there is a breach or of the Losses resulting from, arising out of or relating to such breach;

(2)          the breach, non-compliance or non-performance of any covenant, or agreement of the Company or Sellers in this Agreement or in any certificate delivered pursuant to this Agreement, in each case to the extent required to be performed prior to the Closing Date;

(3)          except to the extent of the dollar amount taken into account in the calculation of the Adjustment Amount, any of the Indebtedness Amount, and Company Transaction Expenses;

(4)          all Seller Taxes;

(5)          any and all liabilities and other obligations of any Company Entity to any director, manager, employee or former director, manager or employee of any Company Entity, or any owner or former owner of any Equity Interests (or similar equity rights) in, any of the Company Entities (other than the Historical Earnout/Note Obligation Amount to the extent satisfied from the Historical Obligation Escrow Account), arising from or relating to the periods prior to or on the Closing Date, which for the avoidance of doubt includes any and all liabilities and other obligations to any owner or former owner of such Equity Interests that is in excess of the amount paid to such owner or former owner for such Equity Interests in connection with the transactions contemplated by the Closing; or

(6)          (i) any claim or legal action brought against any Company Entity or a Buyer Indemnified Party by an employee, former employee, contractor or former contractor of any Company Entity arising from or relating to any period prior to the Closing, (ii) any overpayment, fine or penalty with respect to any Government Programs or Private Programs relating to services performed by a Company Entity prior to the Closing, (iii) any breach by a Company Entity of any Material Contract occurring prior to the Closing, and (iv) any violations of applicable Laws by any Company Entity arising from or relating to any period prior to the Closing.

(b)          Limitations.

(1)          No amount will be payable to the Buyer Indemnified Parties in satisfaction of claims for indemnification pursuant to Sections 8.2(a)(1), (2), (5) or (6) unless (A) the particular Loss suffered by a Buyer Indemnified Parties or a Company Entity, as applicable, exceeds $10,000 (each such Loss exceeding such threshold, a “Qualifying Loss”), and until (B) the aggregate amount of all Losses of the Buyer Indemnified Parties or the Company Entities, as applicable, arising therefrom exceeds $250,000 (the “Threshold”), at which time Sellers will indemnify the Buyer Indemnified Parties for the amount of all such Losses of the Buyer Indemnified Parties or the Company Entities, as applicable, in excess of the Threshold, up to an aggregate amount not to exceed the Indemnity Escrow Amount (the “Cap”), other than with respect to Losses arising from Fraud or a breach or inaccuracy of any Fundamental Representation.

(2)          The aggregate amount of all Losses that Sellers must indemnify the Buyer Indemnified Parties for, other than any Losses arising from a breach or inaccuracy of any Fundamental Representation or with respect to Fraud, shall not exceed the Cap. The aggregate amount of all Losses that Sellers must indemnify the Buyer Indemnified Parties for any Losses arising from a breach or inaccuracy of any Fundamental Representation, other than with respect to Fraud, shall not exceed the Purchase Price (including any Earn-Out Payment actually earned pursuant to Section 1.3).

(3)          The aggregate liability of the Sellers for Losses that any Company Entity may suffer, sustain or become subject to, as a result of, arising out of, relating to or in connection with indemnification claims arising out of Section 8.2(a) shall be equal to the percentage that Buyer or its Affiliates (other than any Company Entity) own in the Company at the time of such Loss, with such Losses payable by the Sellers to the Buyer or its Affiliates, as applicable, subject to the other limitations included in this ARTICLE VIII. To the extent that such Loss is suffered directly by Buyer or its Affiliates (other than any Company Entity), the aggregate liability of the Sellers shall be 100%, subject to the other limitations included in this ARTICLE VIII.

8.3        Indemnification of the Seller Indemnified Parties by Buyer.  Buyer agrees to indemnify Sellers and their respective Affiliates, and each of their respective officers, directors, stockholders, managers, members, partners, employees, agents, representatives, successors and assigns (collectively, the “Seller Indemnified Parties”), and hold each of them harmless against the Losses which any of them may suffer, sustain or become subject to, as the result of, arising out of, relating to or in connection with:

(a)          the breach or inaccuracy by Buyer of any representation or warranty made by Buyer in this Agreement or in any certificate delivered pursuant to this Agreement, in each case, without giving effect to any limitation or qualification as to “materiality,” “material,” “material adverse effect” or similar qualifiers to similar effect set forth in such representation or warranty for purposes of determining whether there is a breach or of the Losses resulting from, arising out of or relating to such breach; or

(b)          the breach, non-compliance or non-performance of any covenant, agreement or obligation of Buyer in this Agreement or in any certificate delivered pursuant to this Agreement.

8.4      Special Rule for Fraud.  Notwithstanding anything in this ARTICLE VIII to the contrary, in the event of any breach of a representation, warranty, covenant or agreement that results from Fraud by or on behalf of the Company (on or prior to the Closing Date) or Sellers in connection with the consummation of the Transactions, then (a) such representation, warranty, covenant or agreement or will survive the execution and delivery of this Agreement and the consummation of the Transactions and will continue in full force and effect for the period of the applicable statute of limitations without regard to any Survival Date; (b) the limitations set forth in this ARTICLE VIII will not apply to any Losses that any Buyer Indemnified Party may suffer, sustain or become subject to, as a result of, arising out of, relating to or in connection with any such breach; and (c) none of such Losses will be subject to or will count towards the satisfaction of the Threshold or the Cap.

8.5          Notice and Defense of Third-Party Claims.

(a)          If a party hereto seeks indemnification under this ARTICLE VIII with respect to any action, lawsuit, proceeding, investigation or other claim brought against it by a third party (a “Third-Party Claim”), such party (the “Indemnified Party”) will promptly give written notice to the other party (the “Indemnifying Party”) after receiving written notice of such Third-Party Claim, describing the Third-Party Claim, the amount thereof (if known and quantifiable), and the basis thereof; provided that any failure to so notify or any delay in notifying the Indemnifying Party will not relieve the Indemnifying Party of its or his obligations hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure or delay.

(b)          With respect to any Third-Party Claim which, if adversely determined, would entitle the Indemnified Party to indemnification pursuant to this ARTICLE VIII, the Indemnifying Party will be entitled (i) to participate, at its sole cost and expense, in the defense of such Third-Party Claim giving rise to the Indemnified Party’s claim for indemnification, or (ii) at its option (subject to the limitations set forth below), to assume control of such defense and appoint lead counsel reasonably acceptable to the Indemnified Party; provided that, as a condition precedent to the Indemnifying Party’s right to assume control of such defense, it must first:

(1)          notify the Indemnified Party in writing within thirty (30) days after the Indemnified Party has given notice of the Third-Party Claim that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Losses (without any limitations) the Indemnified Party may suffer resulting from, arising out of, relating to, or caused by the Third-Party Claim in accordance with the terms of this Agreement (including the limitations set forth in Section 8.2(b)); and

(2)          furnish the Indemnified Party with evidence reasonably satisfactory to the Indemnified Party that the Indemnifying Party has sufficient resources to defend such Third-Party Claim and to satisfy its obligations to the Indemnified Parties under this ARTICLE VIII in respect of such Third-Party Claim.

(c)          Notwithstanding the foregoing, the Indemnifying Party will not have the right to assume control of the defense of a Third-Party Claim which (i) seeks non-monetary relief; or (ii) involves criminal allegations which could result in a felony indictment (each of the foregoing, an “Exception Claim”).

(d)          In the event that the Indemnifying Party fails to elect to assume control of the defense of any Third-Party Claim in the manner set forth in Section 8.5(b) or such Third-Party Claim is or at any time becomes, an Exception Claim, the Indemnified Party may defend against, and consent to the entry of any judgment or enter into any settlement with respect to, the Third-Party Claim in any manner it may deem appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any Indemnifying Party in connection therewith).

(e)          If the Indemnifying Party is controlling the defense of any Third-Party Claim in accordance with Section 8.5(b), (i) the Indemnified Party will nonetheless have the right to participate in the defense of such Third-Party Claim giving rise to the Indemnified Party’s claim for indemnification at the Indemnified Party’s sole cost and expense; and (ii) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to or cease to defend such Third-Party Claim without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld, conditioned, or delayed); provided that the Indemnified Party will have no obligation of any kind to consent to the entrance of any judgment or into any settlement unless such judgment or settlement (A) is for only money damages, the full amount of which will be paid by or on behalf of the Indemnifying Party, and (B) includes, as a condition thereof, an express, unconditional release of the Indemnified Party from any Liability or obligation with respect to such Third-Party Claim.

(f)          Irrespective of which party controls the defense of any Third-Party Claim, the other parties to this Agreement will, and will cause any non-party Affiliate to, cooperate with the controlling party in such defense and make available to the controlling party all witnesses, pertinent records, materials and information in such non-controlling party’s possession or under its control relating thereto as is reasonably required by the controlling party.  The parties agree that all communications between any party and counsel responsible for or participating in the defense of any Third-Party Claim will, to the extent possible, be made in a manner to preserve any applicable attorney-client or work-product privilege.

8.6          Notice of Direct Claims.  If an Indemnified Party seeks indemnification under this ARTICLE VIII with respect to any matter which does not involve a Third-Party Claim (a “Direct Claim”), the Indemnified Party will give written notice to the Indemnifying Party promptly, but in any event within five (5) Business Days, after discovering the liability, obligation or facts giving rise to such claim for indemnification, describing the nature of the claim in reasonable detail, the amount thereof (if known and quantifiable), and the basis thereof; provided that any failure to so notify or any delay in notifying the Indemnifying Party will not relieve the Indemnifying Party of its or his obligations hereunder except to the extent that the Indemnifying Party is materially prejudiced by such failure or delay.  The Indemnifying Party will have thirty (30) days after its receipt of such notice to respond in writing to such Direct Claim.  If the Indemnifying Party does not so respond within such thirty (30)-day period, the Indemnifying Party will be deemed to have agreed to such claim.  If the Indemnifying Party has delivered an indemnity dispute notice to the Indemnified Party regarding the Direct Claim, then the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution to such dispute.  If the Indemnifying Party and the Indemnified Party cannot resolve such dispute within thirty (30) days after delivery of the indemnity dispute notice, such dispute will be resolved in accordance with Section 11.7.

8.7          Manner of Payment.  Any indemnification payment pursuant to this ARTICLE VIII will be effected by wire transfer of immediately available funds to an account designated by the Indemnified Party within five (5) Business Days after the determination of the amount thereof, whether pursuant to a final judgment, settlement or agreement among the parties hereto; provided that, with respect to all or any portion of any indemnification payment to be made to any Buyer Indemnified Party through funds that remain available of the Indemnity Escrow Amount in the Indemnity Escrow Account, Sellers’ Representative and Buyer will, within five (5) Business Days after the determination of the amount thereof, deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent to release the appropriate portion of the Indemnity Escrow Amount to an account designated by Buyer. In the event that an indemnification payment is due to Buyer in respect of Fraud or a breach or misrepresentation of a Fundamental Representation, Buyer shall be entitled to withhold and set off against any amount otherwise due to be paid pursuant to Section 1.3 the amount of such indemnification payment.

8.8          Mitigation.

(a)          The parties hereto will cooperate with each other to resolve any claim or liability with respect to which an Indemnified Party is entitled to indemnification hereunder, including by using or requiring the applicable Indemnified Parties use their respective reasonable best efforts to mitigate or resolve any such claim or liability upon and after becoming aware of any event or condition which could reasonably be expected to give rise to any Losses that are indemnifiable hereunder.

(b)          Without limiting the foregoing, each party hereto will use efforts to address any claims or Liabilities that may provide a basis for an indemnifiable claim such that each party hereto will respond to any claims or Liabilities in the same manner it would respond to such claims or Liabilities in the absence of the indemnification provisions of this Agreement.

8.9          Determination of Loss Amount.

(a)          Any indemnifiable claim with respect to any breach or nonperformance by any party hereto of a representation, warranty, covenant or agreement will be limited to the amount of indemnifiable Losses actually that the Indemnified Party sustains and incurs by reason of such breach or nonperformance (and no Indemnified Party will be entitled to receive an indemnification payment in respect of any contingent liability unless and until such liability becomes due and payable), net of any insurance proceeds that are actually realized (but reduced by any corresponding increase in premiums or deductible), and amounts actually recovered from third parties pursuant to insurance policies, indemnities, reimbursement arrangements or Contracts pursuant to which or under which such Indemnified Party or its Affiliates is a party or has rights (“Alternative Arrangements”).

(b)          If an inaccuracy in any of the representations and warranties made by the Company or Sellers or a breach of any covenants or agreements of the Company or Sellers gives rise to an adjustment to the Estimated Base Purchase Price or the Base Purchase Price (i.e., it is incorporated into the payment(s) made in accordance with ARTICLE I), then such inaccuracy or breach will not give rise to an indemnification obligation under ARTICLE VIII.

(c)          If Sellers’ Representative is conducting any defense against a Third-Party Claim for which a Buyer Indemnified Party has sought indemnification pursuant to Section 8.2(a), and Sellers’ Representative proposes to settle or compromise such Third-Party Claim (i) for only money damages, the full amount of which will be paid by or on behalf of Sellers, and (ii) which settlement or compromise includes, as a condition thereof, an express, unconditional release of the Buyer Indemnified Party from any Liability or obligation with respect to such Third-Party Claim,  and the Buyer Indemnified Party withholds its consent to such settlement or compromise, Sellers’ liability in connection with such Third-Party Claim will be limited to the amount of such proposed settlement or compromise (or the amount remaining of the Indemnity Escrow Amount in the Indemnity Escrow Account, if less).

(d)          The parties hereto intend that fees, costs and expenses, including reasonable attorneys’ fees and court costs incurred by a party who brings an action to enforce this Agreement or due to a breach of this Agreement, be included as Losses.

8.10        Reimbursement.  If an Indemnified Party recovers an amount from a third party (including pursuant to an Alternative Arrangement) in respect of a Loss that is the subject of indemnification hereunder after all or a portion of such Loss will be paid by or at the direction of the Indemnifying Party pursuant to this ARTICLE VIII, the Indemnified Party will promptly remit to the Indemnifying Party the excess, if any, of (a) the amount paid by or at the direction of the Indemnifying Party in respect of such Loss, plus the amount received from the third party in respect thereof; less (b) the full amount of such Loss.

8.11       Release of Indemnity Escrow Amount.

(a)          Promptly following the second (2^nd) anniversary of the Closing Date, Buyer and the Sellers’ Representative, on behalf of Sellers, will execute a joint instruction to release an amount equal to, if greater than zero (such amount, the “Release Amount”), (x) the remaining balance of the Indemnity Escrow Account minus (y) $2,000,000.00, to Sellers by wire transfer to the account designated in writing by Sellers; provided, in the event that any Buyer Indemnified Party has made any claims for Losses pursuant to this Article VIII suffered or sustained by such Buyer Indemnified Party or any Company Entity that have not been finally resolved pursuant to this Article VIII as of such date and the aggregate amount of Losses incurred or reasonably expected to be incurred in connection with such outstanding indemnification claims (the “Claim Amount”) exceeds $2,000,000.00, then on such date, (a) Buyer and the Sellers’ Representative, on behalf of Sellers, will execute a joint instruction to have the Escrow Agent pay to Sellers an amount, if any, equal to the Release Amount less the Claim Amount, and (b) the portion of the Indemnity Escrow Amount equal to the Claim Amount will remain held by the Escrow Agent pending the resolution of such outstanding indemnification claims.  Upon resolution of such outstanding indemnification claims, either by mutual agreement of the Buyer and Sellers’ Representative or pursuant to a final Order, (i) Buyer and the Sellers’ Representative, on behalf of Sellers, will execute a joint instruction to release to Buyer or the applicable Buyer Indemnified Party any portion of the Claim Amount which Buyer or such Buyer Indemnified Party, as applicable, is entitled to receive as a result of the resolution of such outstanding indemnification claims by a payment from the Indemnity Escrow Account and (ii) Buyer and the Sellers’ Representative, on behalf of Sellers, will execute a joint instruction to pay to Sellers an amount equal to any remaining balance of the Claim Amount.

(b)          Promptly following the fourth (4^th) anniversary of the Closing Date, Buyer and the Sellers’ Representative, on behalf of Sellers, will execute a joint instruction to release the remaining balance of the Indemnity Escrow Account, if any, to Sellers by wire transfer to the account designated in writing by Sellers; provided, in the event that any Buyer Indemnified Party has made any claims for Losses pursuant to this Article VIII suffered or sustained by such Buyer Indemnified Party or any Company Entity and such indemnification claims have not been finally resolved pursuant to this Article VIII as of such date, then on such date, (a) Buyer and the Sellers’ Representative, on behalf of Sellers, will execute a joint instruction to have the Escrow Agent pay to Sellers an amount, if any, equal to the remaining balance of the Indemnity Escrow Account less the aggregate amount of Losses incurred or reasonably expected to be incurred in connection with such outstanding indemnification claims (the “Final Claim Amount”), and (b) the portion of the Indemnity Escrow Amount equal to the Final Claim Amount will remain held by the Escrow Agent pending the resolution of such outstanding indemnification claims.  Upon resolution of such outstanding indemnification claims, either by mutual agreement of Buyer and Sellers’ Representative or pursuant to a final Order, (i) Buyer and the Sellers’ Representative, on behalf of Sellers, will execute a joint instruction to release to Buyer or the applicable Buyer Indemnified Party any portion of the Final Claim Amount which Buyer or such Buyer Indemnified Party, as applicable, is entitled to receive as a result of the resolution of such outstanding indemnification claims by a payment from the Indemnity Escrow Account and (ii) Buyer and the Sellers’ Representative, on behalf of Sellers, will execute a joint instruction to pay to Sellers an amount equal to any remaining balance of the Indemnity Escrow Account.

8.12      Exclusive Remedy.  The parties hereto agree that, from and after the date hereof, the indemnification provisions set forth in this ARTICLE VIII are the exclusive provisions in this Agreement with respect to the liability of Sellers or Buyer for the breach, inaccuracy or nonfulfillment of any representation or warranty or any covenants, agreements or other obligations in this Agreement and the sole remedy of the Buyer Indemnified Parties and the Seller Indemnified Parties for any claims for breach of representation or warranty or covenants, agreements or other pre-Closing obligations arising out of this Agreement or any Law or legal theory applicable thereto; provided that nothing herein will preclude any party from (a) seeking any remedy based upon Fraud by any other party hereto; or (b) enforcing its right to specific performance under the Non-Competition Agreement or of post-Closing covenants, agreements or other post-Closing obligations pursuant to Section 11.11.

8.13      Adjustment to Purchase Price.  The parties hereto agree to treat any indemnification payment received pursuant to this Agreement for all Tax purposes as an adjustment to the Purchase Price to the extent permitted by Law.

8.14      Non-Reliance.  Buyer acknowledges that (a) except as expressly set forth in this Agreement, no party has made or is making any representations or warranties, express or implied, regarding Sellers, the Company Entities or the subject matter of this Agreement; (b) except as expressly set forth in ARTICLE II and ARTICLE III, Sellers have not made and are not making any representations or warranties, express or implied, regarding Sellers, the Company Entities or the subject matter of this Agreement; and (c) except as expressly set forth in ARTICLE II and ARTICLE III, Buyer is not relying and has not relied on any representations or warranties, express or implied, regarding Sellers, the Company Entities or the subject matter of this Agreement.  Further, in entering this Agreement, Buyer is only relying upon the representations and warranties expressly set forth in ARTICLE II and ARTICLE III, and Sellers will have no legal liability for any representations, warranties, or omissions except as expressly set for in ARTICLE II and ARTICLE III.

9.1         Tax Treatment of Purchase of Transferred Interests.

(a)          The parties acknowledge and agree to treat the transactions described in the Agreement for U.S. federal and appliable state and local income Tax purposes as follows (the “Intended Tax Treatment”): as a purchase of partnership interests governed by Section 1001 of the Code, in each case, except to the extent otherwise required by Law.

(b)          Except to the extent required by a final “determination” within the meaning of 1313(a) of the Code, the parties hereto will (i) file all Tax Returns in a manner consistent with such Intended Tax Treatment and (ii) not take or permit others to take on its behalf any position, whether in connection with a Tax audit, a Tax Return, or otherwise, that is inconsistent with the Intended Tax Treatment.

9.2         Allocation of Purchase Price. Within ninety (90) Business Days after the final determination of the Adjustment Amount, the Buyer will prepare and deliver to Sellers’ Representative a draft schedule (the “Draft Allocation Schedule”) allocating the Purchase Price (plus any Liabilities deemed assumed and other relevant items, in each case, treated as consideration for U.S. federal income Tax purposes) among the assets of the Company, which will be prepared in accordance with the Intended Tax Treatment and Section 1060 of the Code and the regulations promulgated thereunder and any similar provision of applicable Tax Law. No later than thirty (30) days following Sellers’ Representative’s receipt of the Draft Allocation Schedule, the Sellers’ Representative will deliver written comments to the Draft Allocation Schedule to the Buyer (the “Allocation Schedule Comments”), and the Buyer will consider all comments reasonably requested by the Sellers’ Representative. To the extent Buyer determines in good faith that it does not intend to revise the Draft Allocation Schedule to address an item set forth in the Allocation Schedule Comments, Buyer and the Sellers’ Representative will, for a period of ten (10) days following the Sellers’ Representative’s delivery of the Allocation Schedule Comments, negotiate in good faith to resolve such disputed items. If Buyer and the Sellers’ Representative are, at the end of such ten (10) day period, unable to resolve all of the disputed items with respect to the Allocation Schedule Comments, the disputed items will be submitted to the Accounting Firm for resolution (with the cost of fees to be paid to the Accounting Firm to be paid in equal shares by Buyer and Sellers). The Accounting Firm will not be permitted to make any other changes to the Draft Allocation Schedule other than those set forth in the Allocation Schedule Comments that are unresolved disputed items, and the Accounting Firm’s resolution of the unresolved disputed items will be binding on the parties. Once all disputed items, if any, are resolved, the Buyer will revise the Draft Allocation Schedule to reflect the resolved changes in accordance with this Section 9.2 (the “Allocation Schedule”) and deliver it to the Sellers’ Representative. The parties agree to update the Allocation Schedule from time-to-time to the extent that there are any adjustments made to the Purchase Price pursuant to the provision of this Agreement; provided, that any such updates to the Allocation Schedule will be made on a basis consistent with that utilized in determining the Allocation Schedule, as finalize pursuant to this Section 9.2. Except to the extent required by a final “determination” within the meaning of 1313(a) of the Code, the parties hereto will (i) file all Tax Returns in a manner consistent with such Allocation Schedule (as adjusted as necessary to reflect adjustments to the Purchase Price) and (ii) not take any position in any Action relating to Taxes that is inconsistent with such Allocation Schedule.  Notwithstanding anything in this Section 9.2 to the contrary, the Draft Allocation Schedule, the Allocation Schedule and any adjustments thereto as contemplated herein shall be consistent with the principles set forth on Schedule 9.2 (the “Allocation Methodology”). Buyer and Sellers’ Representative shall mutually agree on the Allocation Methodology and attach such Allocation Methodology as Schedule 9.2 to this Agreement as soon as reasonably practicable following the date hereof, but in any event prior to the Closing.

9.3         Tax Return Preparation.

(a)          The Sellers’ Representative, at the expense of Sellers, will prepare and file, or cause to be prepared and filed, all income Tax Returns required to be filed by the Company Entities (taking into account any applicable extensions) for any Tax period ending on or prior to the Closing Date (“Seller Prepared Returns”). All such Seller Prepared Returns will be prepared in accordance with past practice, except as otherwise required by applicable Law.  With respect to any Seller Prepared Return due on or after the Closing Date, the Sellers’ Representative will provide a draft copy of same to Buyer at least 30 days prior to the due date thereof (taking into account any applicable extensions), and incorporate any reasonable comments provided by Buyer at least 15 days prior to the due date thereof (taking into account any applicable extensions). To the extent disputes arise with respect to same, and Buyer and the Sellers’ Representative have not been able to resolve, in writing, any and all such disputes before the end of such 15 day period, Buyer and the Sellers’ Representative will submit to the Accounting Firm for review and resolution the issues underlying such Seller Prepared Returns in accordance with the procedures outlined in Section 1.6(f) applied on a mutatis mutandis basis. The resolution, as finally determined by the Accounting Firm, will be binding on the parties hereto and the Buyer Prepared Returns will be filed reflecting the Accounting Firm’s resolution.

(b)          The Sellers’ Representative, at the expense of Sellers, will also prepare and file, or cause to be prepared and filed, all Tax Returns required to be filed by the Company Entities (taking into account any applicable extensions) for any Tax period ending on or prior to the Closing Date that are not Seller Prepared Returns and that are due on or before the Closing Date.

(c)          Buyer will prepare and file, or cause to be prepared and filed, all Tax Returns of the Company Entities (i) for any Tax period ending on or prior to the Closing Date (the “Pre-Closing Period”) that are due after the Closing Date; and (ii) for any Tax periods which begin on or before the Closing Date and end after the Closing Date (the “Straddle Period”), in each case, that are not Seller Prepared Returns (“Buyer Prepared Returns”). All such Buyer Prepared Returns will be prepared in accordance with past practice, except as otherwise required by applicable Law. At least 30 days prior to the due date of any Buyer Prepared Return, Buyer will provide a draft of such Buyer Prepared Return to the Sellers’ Representative for the Sellers’ Representative’s review and comment. With respect to any such Buyer Prepared Return provided to the Sellers’ Representative, the Sellers’ Representative will have the right to review and approve any such Buyer Prepared Returns during the 15-day period (or shorter, as applicable) following the receipt of such Buyer Prepared Returns, which approval will not be unreasonably withheld, conditioned or delayed. Buyer will incorporate any reasonable comments made by the Sellers’ Representative in the Buyer Prepared Return. If at the end of such 15-day period (or shorter, as applicable) Buyer and the Sellers’ Representative have not been able to resolve, in writing, all differences that they may have with respect to any matter in such Buyer Prepared Returns, Buyer and the Sellers’ Representative will submit to the Accounting Firm for review and resolution such Buyer Prepared Returns in accordance with the procedures outlined in Section 1.6(f) applied on a mutatis mutandis basis. The resolution, as finally determined by the Accounting Firm, will be binding on the parties hereto and the Buyer Prepared Returns will be filed reflecting the Accounting Firm’s resolution.

9.4         Straddle Period Taxes.  In the case of any Straddle Period, Taxes of the Company Entities or with respect to their assets or operations that shall be allocatable to Sellers is (a) in the case of any Taxes based on or measured by gross or net income or gross or net receipts, otherwise imposed on a transactional basis, or based on payroll, will be determined based on an interim closing of the books of the Company Entities as of the end of the Closing Date; provided that, any deductions for Taxes attributable to the payment of Company Transaction Expenses (to the extent economically borne by Sellers) will be allocated to the Sellers to the extent permitted under applicable Law, and (b) in the case of any other Taxes, will be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction (i) the numerator of which is the number of days in the Straddle Period ending on and including the Closing Date and (ii) the denominator of which is the number of days in the entire Straddle Period.

9.5         Cooperation. Buyer and Sellers’ Representative will cooperate fully, as and to the extent reasonably requested by the other party, in connection with the filing of Tax Returns and any audit, litigation or other Action with respect to Taxes.  Buyer and Sellers’ Representative further agree, upon request, to use their commercially reasonable efforts to obtain any certificate or other document from any Governmental Entity or any other Person as may be necessary to mitigate or reduce or eliminate any Tax that could be imposed (including with respect to the Transactions).

9.6         Controversies.  Notwithstanding Section 8.5, this Section 9.6 will control any inquiries, assessments, proceedings or similar actions by a Taxing Authority with respect to Taxes of the Company or any other Company Entity for the Pre-Closing Periods (“Tax Matters”).  Buyer will promptly notify Sellers’ Representative upon receipt by the Company of any notice of any Tax Matter from any Taxing Authority.  Sellers’ Representative will, at Sellers’ expense, assume the defense of any Tax Matter.  Buyer will have the right (but not the duty) to participate in the defense of such Tax Matter and to employ counsel, solely at its own expense, separate from the counsel employed by Sellers’ Representative.  Sellers will not enter into any settlement of or otherwise compromise any such Tax Matter to the extent that it adversely affects the Tax liability of Buyer, the Company or any Affiliate of the foregoing without the prior written consent of Buyer, which consent will not be unreasonably conditioned, withheld or delayed.  Sellers’ Representative will keep Buyer fully informed with respect to the commencement, status and nature of any Tax Matter, and will, in good faith, allow Buyer to consult with Sellers’ Representative regarding the conduct of or positions taken in any such proceeding.

9.7         Amendment, Elections, Etc. Buyer will not, and will cause the Company to not, file an election to change the Tax classification of the Company with an effective date on or prior to the Closing Date.  Without the consent of the Sellers’ Representative, unless required by applicable Law, Buyer will not, and will cause the Company not to, (a) file any Tax Return or any amended Tax Return for the Company with respect to any Pre-Closing Period or Straddle Period (in the case of a Straddle Period, to the extent relating to the portion thereof through the Closing Date); (b) voluntarily initiate any discussions with a Taxing Authority with respect to Taxes or Tax Returns for the Company with respect to any Pre-Closing Period; or (c) make any Tax election or take any position for Tax purposes which would increase the amount of Taxes for which any Seller is responsible whether pursuant to this Agreement or otherwise.

9.8         Transfer Taxes. Buyer will pay, or cause to be paid, any and all real property transfer tax, stamp tax, equity transfer tax, or other similar Tax, whether imposed on the Company, Sellers or Buyer, as a result of the Transactions (collectively, “Transfer Taxes”) and will file any Tax Returns required to be filed by Buyer in connection with such Transfer Taxes.  Seller Representative will file any Tax Returns required to be file by Seller in connection with such Transfer Taxes.  Sellers agree to cooperate with Buyer, and Buyer with Sellers, in connection with the filing of any Tax Returns with respect to any Transfer Taxes, including promptly supplying any information in their possession that is reasonably necessary to complete such returns and the payment of such amounts due under this Section 9.8.

9.9         Section 754 Election.  Sellers acknowledge and agree that Buyer may, and may cause the Company and any other Company Entity that is a partnership for federal income tax purposes to, file an election under Section 754 of the Code with respect to the tax period covering this Agreement and the transactions contemplated herein, and Sellers will join in any such election to the extent necessary or helpful.

9.10       Opening Capital Account Balances.  Sellers and Buyer acknowledge and agree that, immediately after the transactions contemplated herein, for federal income tax purposes, and for purposes of any state and local Taxes that follow federal income tax principles, Buyer’s capital account balance in respect of the Company will be 50% of the sum of such capital account balance and the total capital account balances of Sellers.

10.1      Termination.  Without prejudice to other remedies which may be available to the parties pursuant to this Agreement, this Agreement may be terminated and the Transactions may be abandoned at any time prior to the Closing:

(a)          Mutual Consent.  By mutual written consent of Buyer and Sellers’ Representative;

(b)          Breach of Representations, Warranties, Covenants or Agreements.

(1)          By Buyer upon delivery of written notice to Sellers’ Representative, if there has been a breach of any representation, warranty, covenant or agreement made by Sellers or the Company in this Agreement, which breach (x) would give rise to the failure of a condition set forth in Section 7.1, and (y) (A) cannot be cured by the End Date or (B) if capable of being cured, will not have been cured by the date that is three (3) Business Days prior to the End Date; provided that Buyer is not entitled to terminate this Agreement pursuant to this Section 10.1(b)(1) if Buyer is in material breach of any of its representations, warranties, covenants or agreements in this Agreement; or

(2)          By Sellers’ Representative upon delivery of written notice to Buyer, if there has been a breach of any representation, warranty, covenant or agreement made by Buyer in this Agreement, which breach (x) would give rise to the failure of a condition set forth in Section 7.2 and (y) (A) cannot be cured prior to the End Date or (B) if capable of being cured, will not have been cured by the date that is three (3) Business Days prior to the End Date; provided that none of Sellers or Sellers’ Representative is entitled to terminate this Agreement pursuant to this Section 10.1(b)(2) if any of Sellers or the Company is in material breach of any of its representations, warranties, covenants or agreements in this Agreement;

(c)          End Date.  By either Buyer or Sellers’ Representative upon delivery of written notice to the other if the Closing has not occurred on or before 5:00 p.m. (Eastern Standard Time) on December 31, 2024 (the “End Date”); provided that neither Buyer nor Sellers’ Representative will be entitled to terminate this Agreement pursuant to this Section 10.1(c) if such Person’s (or, in the case of the Company’s or any Seller’s) material breach of, or material failure to fulfill any obligation under, this Agreement has been the principal cause of the failure of the Closing to occur on or prior to such time on the End Date; or

(d)          Orders; Laws.  By either Buyer or Sellers’ Representative upon delivery of written notice to the other if (i) any Governmental Entity will have issued or entered any Order (other than an Order from an Antitrust Enforcement Authority) or (ii) any Governmental Entity will have enacted any Law or taken any other action which, in any such case of clauses (i) and (ii): would permanently restrain, enjoin or otherwise prohibit the consummation of all or any of the Transactions; provided that neither Buyer nor Sellers’ Representative will be entitled to terminate this Agreement pursuant to this Section 10.1(d) if (x) the issuance or entry of such judgment, Order or decree is the principal result of such Person’s (or, in the case of the Company’s or any Seller’s) material breach of, or material failure to fulfill any obligation under, this Agreement or any other Transaction Agreement or (y) such Person (or, in the case of the Company or any Seller) will have materially breached its obligations under (and subject to the limitations in) this Agreement to resist, resolve or lift such judgment, Order or decree or Law.

10.2       Effect of Termination.  Subject to the provisions of this Section 10.2, the rights of termination set forth above are in addition to any other rights a terminating party may have under this Agreement or the other Transaction Agreements, and the exercise of a right of termination will not be an election of remedies.  Notwithstanding the foregoing sentence, in the event of any termination of this Agreement by Buyer or Sellers’ Representative as provided in Section 10.1, this Agreement will forthwith become void and there will be no liability or obligation on the part of any party or any of its or their Affiliates to any other Person by virtue of, arising out of or otherwise in connection with this Agreement or any other Transaction Agreement except (i) that nothing in this Agreement or any other Transaction Agreement will relieve any party from any material breach of this Agreement or any other Transaction Agreement prior to such termination or for Fraud; and (ii) the provisions of this Section 10.2 (Effect of Termination), Section 6.2 (Confidentiality of Terms of Transaction) and ARTICLE XI (Miscellaneous) will remain in full force and effect and survive any termination of this Agreement pursuant to this ARTICLE X.

11.1       No Third-Party Beneficiaries.  The terms and provisions of this Agreement are intended solely for the benefit of the parties hereto, such parties’ respective permitted successors, assigns or delegates, and (a) solely as to ARTICLE VIII, any Person that is not a party to this Agreement but, by the terms of ARTICLE VIII is entitled to indemnification thereunder and (b) the Company’s Counsel, solely relating to its rights under Section 11.16, and it is not the intention of the parties hereto to confer, and, this Agreement will not confer, third-party beneficiary rights upon any other Person.

11.2     Entire Agreement; Amendment.  This Agreement (including the Disclosure Schedules, Exhibits and Schedules hereto), the Transaction Agreements and the Confidentiality Agreement, represent the entire agreement among the parties hereto with respect to the subject matter of this Agreement and this Agreement supersedes all prior or contemporaneous oral or written understandings, negotiations, letters of intent or agreements between the parties hereto other than the Confidentiality Agreement.  This Section 11.2 will be deemed a “merger” clause under Delaware Law, and this Agreement (together with the Transaction Agreements and the Confidentiality Agreement) is intended as a complete integration of the agreement of the parties hereto.  No modifications of, amendments to, or waivers of any rights or duties under this Agreement will be valid or enforceable unless and until made in writing and signed by all the parties hereto.

11.3       Successors and Assigns.  This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, heirs, successors and permitted assigns and delegates, but neither this Agreement nor any of the rights or obligations hereunder may be assigned (whether by operation of Law, through a change in control or otherwise) by Sellers without the prior written consent of Buyer, or by Buyer without the prior written consent of Sellers’ Representative; provided that Buyer and its Affiliates will have the right to assign, without such consent, Buyer’s right and obligations hereunder in whole or in part to Buyer’s Affiliates or for collateral security purposes to any existing or future lender or group thereof providing financing to Buyer or any of its Affiliates, but in such event, Buyer will be required to remain obligated hereunder in the same manner as if such assignment or delegation had not been effected.

11.4       Counterparts.  This Agreement may be executed in any number of counterparts, each and all of which will be deemed an original and all of which together will constitute but one and the same instrument.  The facsimile or electronic signature of any party to this Agreement or any agreement or certificate delivered in connection with the consummation of the Transactions or a PDF copy of the signature of any party to this Agreement or any agreement or certificate delivered in connection with the consummation of the Transactions delivered by electronic mail for purposes of execution or otherwise, is to be considered to have the same binding effect as the delivery of an original signature on an original contract.  The parties expressly agree that DocuSign or a similar product (as agreed to by the parties) may be used as a means to execute this Agreement and other Transaction Agreements.

11.5      Divisions and Titles.  The divisions of this Agreement into sections and subsections and the use of titles, captions or headings of the Articles and Sections herein are inserted for convenience of reference only and will have no legal effect in construing the provisions of this Agreement.

11.6      Notices.  Any notice, demand or communication required, permitted, or desired to be given hereunder must be in writing and will be deemed effectively given when personally delivered, when received by telegraphic or other electronic means (including facsimile transmission, PDF or electronic mail), so long as such telegraphic or other electronic means is accompanied by prompt notice by United States mail, or overnight courier, or five (5) days after being deposited in the United States mail, with postage prepaid thereon, certified or registered mail, return receipt requested, addressed as follows:

if to Sellers’ Representative, Sellers or, prior to the Closing, the Company, to:

or to such other address, and to the attention of such other person or officer as any party hereto may designate in notice to the other parties hereto.

11.7      Governing Law; Consent to Jurisdiction.  This Agreement and all disputes or controversies arising out of or relating to this Agreement or the Transactions will be governed by, and construed in accordance with, the internal Laws of the State of Delaware, without regard to the Laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware.  All claims, actions and proceedings (whether in contract or tort) based upon, arising out of or relating to this Agreement or the other Transaction Agreements or the negotiation, execution or performance of this Agreement or the other Transaction Agreements (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or the other Transaction Agreements) will be heard and determined in any state or federal court sitting in the County of Wilmington in the State of Delaware, and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such action or proceeding and irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding, and any judgment of such courts may be enforced in any other jurisdictions by suit on the judgment or by any other manner provided by law.  The consents to jurisdiction set forth in this paragraph will not constitute general consents to service of process in the State of Delaware and will have no effect for any purpose except as provided in this Section 11.7 and will not be deemed to confer rights on any Person other than the parties hereto.  The parties hereto agree that a final judgment in any such action or proceeding will be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by Law.

11.8       WAIVER OF JURY TRIAL.  EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION AGREEMENT OR THE SUBJECT MATTER HEREOF OR THEREOF.  EACH PARTY ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF SUCH PARTY.  THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MIGHT BE FILED IN ANY COURT AND THAT MAY RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY TRANSACTION AGREEMENTS, INCLUDING ALL COMMON LAW AND STATUTORY CLAIMS.  EACH PARTY FURTHER REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH SUCH LEGAL COUNSEL.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS, MODIFICATIONS, SUPPLEMENTS OR RESTATEMENTS HEREOF.  IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

11.9       Waivers.  At any time prior to the Closing, the parties hereto may, subject to and to the extent permitted by Law, waive compliance with any of the agreements or conditions of the other parties hereto contained herein.  Any agreement on the part of a party hereto to any such waiver will be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party.  No failure or delay of any party hereto in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power, or operate as, or be construed to constitute, a waiver of any subsequent breach of the same or other provision hereof.

11.10     Extension.  At any time prior to the Closing, the parties hereto may, to the extent permitted by Law, extend the time for the performance of any of the obligations or other acts of the other parties hereto.  Any agreement on the part of a party to any such extension will be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party.

11.11     Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.  Accordingly, each of the parties hereto will be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any court in accordance with Section 11.7, this being in addition to any other remedy to which such party is entitled at law or in equity.  Each of the parties hereto hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security as a prerequisite to obtaining equitable relief.

11.12     Press Releases.  Sellers acknowledge that Buyer shall have the right to determine timing and content of all press releases and other public announcements relating to the Transactions, subject to Buyer providing Sellers’ Representative with a copy of any such press release or public announcement at least two (2) days prior to it going live to the public, provided that Sellers shall determine the timing and content of announcements made specifically to the Company’s and its Affiliates’ customers, vendors and employees relating to the Transactions.

11.13     Expenses.  Except as otherwise expressly provided in this Agreement, each party to this Agreement will bear its respective expenses incurred in connection with the preparation, execution, and performance of this Agreement, the Transaction Agreements and the Transactions, including all fees and expenses of agents, representatives, counsel and accountants.

11.14     Severability of Provisions.  If any provision of this Agreement is held by a court of competent jurisdiction or other Governmental Entity to be illegal, invalid or unenforceable under any present or future Law, and if the rights or obligations of any party under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance here from; and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible.  Upon such a determination, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in an acceptable manner in order that the Transactions be consummated as originally contemplated to the fullest extent possible.

11.15     Construction.

(a)          The parties to this Agreement are each sophisticated and represented by counsel, and this Agreement is the result of equal amount of drafting by all parties hereto.  This Agreement will be interpreted in accordance with its plain meaning within its four corners, and no extrinsic evidence will be admissible under any holding of ambiguity.  The parties hereto intend that each representation, warranty, covenant and agreement covenant contained herein and in any other Transaction Agreement will have independent significance.  If any party hereto has breached any representation, warranty, covenant or agreement contained herein (or is otherwise entitled to indemnification) in any respect, the fact that there exists another representation, warranty, covenant, or agreement (including any indemnification provision) relating to the same subject matter (regardless of the relative levels of specificity) which such party has not breached (or is not otherwise entitled to indemnification with respect thereto) will not detract from or mitigate the fact that such party is in breach of the first representation, warranty, covenant, or agreement (or is otherwise entitled to indemnification pursuant to a different provision).

(b)          The Disclosure Schedules and all Exhibits and Schedules attached hereto and referred to herein are hereby incorporated herein and made a part hereof for all purposes as if fully set forth herein.

11.16     Representation by Counsel.

(a)          Each party hereto represents and agrees with each other that it has been represented by or had the opportunity to be represented by, independent counsel of its own choosing, and that it has had the full right and opportunity to consult with its respective attorney(s), that to the extent, if any, that it desired, it availed itself of this right and opportunity, that it or its authorized officers (as the case may be) have carefully read and fully understand this Agreement in its entirety and have had it fully explained to them by such party’s respective counsel, that each is fully aware of the contents thereof and its meaning, intent and legal effect, and that it or its authorized officer (as the case may be) is competent to execute this Agreement and has executed this Agreement free from coercion, duress or undue influence.

(b)          Each of the parties to this Agreement hereby agrees, on its own behalf and on behalf of its representatives, that (i) the Company’s Counsel may serve as counsel to each of Sellers’ Representative, Sellers, and any Affiliate of Sellers, on the one hand, and the Company, on the other hand, in connection with the negotiation, preparation, execution, and delivery of this Agreement and the consummation of the Transactions; and (ii) following consummation of the Transactions, the Company’s Counsel (or any of its successors) may serve as counsel to Sellers’ Representative, Sellers, or any of their respective Affiliates or any of their respective representatives, in connection with any Action, claim or obligation arising out of or relating to this Agreement or the Transactions or any other matter, and each of the parties hereto hereby consents thereto and waives any conflict of interest arising therefrom, and each of such parties will cause any representative thereof to consent to waive any conflict of interest arising from such representation.

(c)          Each of the parties to this Agreement further agrees to permit (and will take reasonable steps requested by any party hereto at such requesting party’s expense so that) any privilege attaching as a result of the services provided by the Company’s Counsel as counsel to Sellers’ Representative, Sellers (including with respect to information related to the Company), and the Company in connection with the Transactions to survive the Closing and to remain in effect, and such privilege will continue to be controlled solely by Sellers’ Representative following the Closing.  In addition, if the Transactions are consummated, all the client files and records in the possession of the Company’s Counsel related to such Transactions will continue to be property of (and be controlled by) by Sellers’ Representative and Sellers, and the Company will not retain any copies of such records or have any access to them.

11.17     Appointment of Sellers’ Representative.

(a)          Sellers hereby irrevocably nominate, constitute, and appoint Sellers’ Representative as the initial agent and attorney in fact for and on behalf of Sellers for all purposes under this Agreement, the Transaction Agreements, and the Transactions.  Sellers’ Representative will act as representative of Sellers for all purposes under this Agreement, the Transaction Agreements, and the Transactions.  Sellers’ Representative hereby accepts its appointment as such.  The power of attorney granted in this Section 11.17: (i) is coupled with an interest and is irrevocable; (ii) may be delegated by Sellers’ Representative; and (iii) will survive the dissolution, death or incapacity of any of Sellers.

(b)          Without limiting the generality of the foregoing, Sellers’ Representative has full power and authority, on behalf of each Seller, and their respective successors and assigns, to:  (i) interpret the terms and provisions of this Agreement and the Transaction Agreements; (ii) execute and deliver and receive deliveries of all agreements, certificates, statements, notices, approvals, extensions, waivers, undertakings, amendments, and other documents required or permitted to be given in connection with the consummation of the Transactions; (iii) receive service of process in connection with any claims under this Agreement, the Transaction Agreements, and the Transactions; (iv) agree to, negotiate and enter into settlements and compromises of, assume the defense of claims, and demand arbitration and comply with Orders of courts and awards of arbitrators with respect to such claims, and to take all actions necessary or appropriate in the sole discretion of Sellers’ Representative for the accomplishment of the foregoing; (v) give and receive notices and communications; (vi) take all actions necessary or appropriate in the sole discretion of Sellers’ Representative on behalf of Sellers in connection with this Agreement, the Transaction Agreements, and the Transactions; (vii) make any determinations and settle any matters in connection with any adjustments to the Estimated Base Purchase Price or the Base Purchase Price; (viii) authorize delivery to any Buyer Indemnified Party of all or any portion of the funds in the Indemnity Escrow Account in satisfaction of claims brought by any Buyer Indemnified Party for Losses or otherwise; (ix) distribute the Indemnity Escrow Amount and any earnings and proceeds thereon; and (x) deduct, hold back, or redirect any funds from the Indemnity Escrow Account or any amount which may be payable to Sellers pursuant to the terms of this Agreement or a Transaction Agreement in order to pay, or establish a reserve for: (A) any amount that may be payable by such Seller hereunder; or (B) any costs, fees, expenses and other liabilities incurred by Sellers’ Representative (in its capacity as such) in connection with the performance of its duties or exercise of its rights as described in this Agreement, the Transaction Agreements, or the Transactions.

(c)          Buyer may rely exclusively, without independent verification or investigation, upon all decisions, communications or writings made, given or executed by Sellers’ Representative in connection with this Agreement, the Transaction Agreements, and the Transactions.  Buyer is entitled to deal exclusively with Sellers’ Representative on all matters relating to this Agreement, the Transaction Agreements, or the Transactions.  Any action taken or not taken or decisions, communications, or writings made, given or executed by Sellers’ Representative, for or on behalf of any Seller, will be deemed an action taken or not taken or decisions, communications or writings made, given or executed by such Seller.  Any notice or communication delivered by Buyer to Sellers’ Representative will be deemed to have been delivered to Sellers.  Buyer will be entitled to disregard any decisions, communications, or writings made, given or executed by any Seller in connection with this Agreement, the Transaction Agreements, and the Transactions unless the same is made, given or executed by Sellers’ Representative.

(d)          In no event will Buyer have any responsibility or liability to any Seller or any other Person for any action or omission of Sellers’ Representative or for any act or omission taken or not taken by Buyer in reliance upon the actions taken or not taken or decisions, communications or writings made, given or executed by Sellers’ Representative.

(e)          Sellers’ Representative may resign at any time by written notice to each of Sellers and Buyer.  In the event of the resignation of Sellers’ Representative, Michael G. Mayrsohn will, as soon as practicable after such resignation, appoint a successor agent for Sellers and, promptly thereafter, will notify Buyer of the identity of such successor.  All power, authority, rights, and privileges conferred in this Agreement to Michael G. Mayrsohn as the initial Sellers’ Representative (or such other then-current Sellers’ Representative as of immediately prior to the applicable resignation) will apply to any successor Sellers’ Representative.

(f)          All expenses incurred by Sellers’ Representative in connection with the performance of its duties as Sellers’ Representative will be borne and paid exclusively by Sellers.  Without limiting the foregoing, Sellers’ Representative will have the right to offset amounts owed to it by Sellers against any payment or payments to be made to Sellers pursuant to this Agreement or the Escrow Agreement.

(g)          The limitation of liability and indemnity provisions of this Section 11.17 will survive the termination of this Agreement and the resignation of Sellers’ Representative.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.