UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): November 25, 2024
(November 24, 2024)
Summit Materials, Inc.
(Exact name of registrant as specified in its
charter)
| Delaware |
001-36873 |
47-1984212 |
|
(State or Other Jurisdictionof Incorporation) |
(CommissionFile Number) |
(I.R.S. EmployerIdentification No.) |
1801 California Street, Suite 3500
Denver, Colorado 80202
(Address of Principal Executive Offices) (Zip
Code)
Registrant’s Telephone Number, Including
Area Code: (303) 893-0012
Not Applicable
(Former Name or Former Address, if Changed Since
Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ☒ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
| Class A Common Stock (par value, $0.01 per share) |
|
SUM |
|
New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ☐
| Item 1.01. | Entry into a Material Definitive Agreement. |
Agreement and Plan of Merger
Overview
On November 24, 2024, Summit Materials, Inc.,
a Delaware corporation (the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”)
with Quikrete Holdings, Inc., a Delaware corporation (“Purchaser”), and Soar Subsidiary, Inc., a Delaware corporation
and a wholly owned subsidiary of Purchaser (“Merger Sub”). Upon the terms and subject to the conditions set forth in
the Merger Agreement, Merger Sub will merge with and into the Company (the “Merger”), with
the Company surviving as a wholly owned subsidiary of Purchaser.
Merger Consideration
Pursuant to the Merger Agreement, at the effective
time of the Merger (the “Effective Time”), each issued and outstanding share of the Company’s (i) Class A common
stock, par value $0.01 per share, and (ii) Class B common stock, par value $0.01 per share (together with the Company’s Class A
common stock described in the foregoing clause (i), “Company Common Shares” and each, a “Company Common Share”)
(other than any Company Common Shares that are held by the Company as treasury stock or held by Purchaser, Merger Sub or any other subsidiary
of Purchaser or the Company or any Company Common Shares as to which appraisal rights have been properly exercised in accordance with
Delaware law), will automatically be canceled and retired and converted into the right to receive $52.50 per share in cash, without interest
and subject to deduction for any required withholding (the “Merger Consideration”).
Pursuant to the Merger Agreement, at the Effective
Time, any shares of preferred stock of the Company, par value $0.01 per share, outstanding immediately prior to the Effective Time will
automatically be canceled and retired for no consideration and will cease to exist.
Financing of the Merger
Purchaser intends to fund the Merger Consideration
with proceeds from new debt financing together with cash on hand and amounts available under its existing credit facilities. Concurrently
with the entry into the Merger Agreement, Purchaser entered into a debt commitment letter (the “Debt Commitment Letter”),
pursuant to which certain financial institutions (the “Lenders”) have committed to provide Purchaser with term debt
financing in an aggregate principal amount of $9,200,000,000 (including up to $6,700,000,000 in bridge financing) together with a committed
asset based revolving credit facility in an aggregate principal amount of up to $1,500,000,000 (subject to conditions set forth in the Debt Commitment Letter). The obligations of the Lenders to provide debt financing under the Debt Commitment Letter are subject to certain customary conditions,
including (i) the execution and delivery of definitive documentation with respect to such financing in accordance with the Debt Commitment
Letter and (ii) the consummation of the Merger in all material respects in accordance with the terms and conditions of the Merger Agreement.
The receipt of financing by Purchaser is not a condition to Purchaser’s obligation to complete the Merger.
Treatment of Company Equity Awards
Effective as of immediately prior to the Effective
Time, (i) each restricted stock unit that is subject to vesting conditions based solely on continued employment or service granted under
the Company’s Amended and Restated 2015 Omnibus Incentive Plan (the “Company Stock Plan”, and each such restricted
stock unit, a “Company RSU”) and that is outstanding immediately prior to the Effective Time will fully vest and be
canceled and converted into the right to receive an amount in cash equal to the product of (a) the Merger Consideration, multiplied by
(b) the number of shares of Company Common Shares subject to such vested award of Company RSUs, (ii) each restricted stock unit that is
subject to vesting conditions based in whole or in part on performance goals granted under the Company Stock Plan (each, a “Company
PSU”) and that is outstanding immediately prior to the Effective Time will vest (based on the level of achievement of the applicable
performance goals set forth below) and be canceled and converted into the right to receive an amount in cash equal to (a) the Merger Consideration,
multiplied by (b) the number of shares of Company Common Shares subject to such award of Company PSUs as determined based on target performance
and (iii) each option to purchase Company Common Shares granted under the Company Stock Plan (each, a “Company Option”)
that is outstanding immediately prior to the Effective Time will fully vest, to the extent not vested previously, and be canceled and
converted into the right to receive an amount in cash equal to (a) the excess, if any, of the Merger Consideration over the applicable
exercise price per share of Company Common Shares subject to such award of Company Options, multiplied by (b) the number of shares of
Company Common Shares subject to such award of Company Options; provided that if the applicable exercise price per share of Company Common
Shares of an award of Company Options is equal to or greater than the Merger Consideration, such award of Company Options will be canceled
at the Effective Time for no consideration.
Board Approval of the Merger Agreement
The board
of directors of the Company (the “Company Board”) unanimously (i) determined that it is in the best interests
of the Company and the Company’s stockholders, and declared it advisable, that the Company enter into the Merger Agreement and consummate
the transactions contemplated thereby, (ii) approved and declared advisable the execution and delivery of the Merger Agreement and the
consummation of the transactions contemplated thereby, including the Merger, and (iii) directed that the Merger Agreement and the transactions
contemplated thereby be submitted for consideration by the stockholders of the Company entitled to vote thereon at a meeting thereof.
Closing
Conditions
The obligation of the parties to consummate the
Merger is subject to the satisfaction or waiver of certain customary closing conditions, including (i) the affirmative vote by holders
of a majority of the outstanding Company Common Shares entitled to vote at the company stockholders meeting (the “Company Stockholders
Meeting”), to adopt the Merger Agreement (the “Company Stockholder Approval”); (ii) the expiration or early
termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (as amended) (the “HSR
Act”) and the Competition Act (Canada) (as amended); (iii) the receipt of certain approvals of governmental authorities; (iv)
the absence of any law, injunction, order or other judgment prohibiting, rendering illegal
or permanently enjoining the consummation of the Merger (a “Restraint”); (v) subject
in most cases to exceptions that do not rise to the level of a Company Material Adverse Effect (as defined in the Merger Agreement), the
accuracy of representations and warranties made by Company, Purchaser and Merger Sub, respectively; and (vi) compliance
by Purchaser, Merger Sub and the Company in all material respects with their respective obligations under the Merger Agreement. The obligations
of Purchaser and Merger Sub to consummate the Merger are also subject to there not having occurred since the date of the Merger Agreement
an event that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Representations and Warranties and Covenants
Purchaser,
the Company and Merger Sub have each made customary representations and warranties and covenants in the Merger Agreement, including covenants
by the Company, subject to certain exceptions, to use reasonable best
efforts to conduct its business in the ordinary course and preserve intact in all material respects its current business operations,
during the interim period between the execution of the Merger Agreement and the
consummation of the Merger and to assist Purchaser with obtaining its
financing to fund the Merger Consideration.
Purchaser
and the Company have each agreed to use its respective reasonable best efforts
to cause the transactions contemplated by the Merger Agreement to be consummated as soon as reasonably practicable, including in connection
with obtaining all consents required to be obtained from any governmental authority or third party that are necessary, proper or advisable
to consummate the Merger. Purchaser has also agreed to take certain actions
necessary to avoid, eliminate or resolve any impediments under the HSR Act or any other applicable law so
as to enable the parties to consummate the Merger no later than five business days prior to the Outside Date (as defined below).
Non-Solicitation;
Intervening Events
Subject to certain exceptions, the Company agreed
not to solicit alternative acquisition proposals, engage in discussions with any third party regarding alternative acquisition proposals
or change its recommendation to its stockholders in favor of the Merger.
The Merger Agreement also provides that, notwithstanding
the foregoing, if prior to receipt of the Company Stockholder Approval, the Company receives a bona fide alternative acquisition proposal
from a third party that did not result from a material breach of the Company’s non-solicitation obligations, and the Company Board
determines in good faith that the alternative acquisition proposal constitutes, or would reasonably be expected to result in, a Superior
Proposal (as defined in the Merger Agreement), the Company may provide information to, and engage in negotiations and discussions with,
such person making the alternative acquisition proposal.
Prior to obtaining the Company Stockholder Approval,
the Company Board has the right, in connection with (i) the receipt of a Superior Proposal or (ii) an Intervening Event (as defined in
the Merger Agreement) to change its recommendation in favor of the Merger or, in the case of a Superior Proposal, to terminate the Merger
Agreement, in each case, subject to complying with notice requirements and other specified conditions (including giving Purchaser
the opportunity to propose changes to the Merger Agreement in response to such Superior Proposal or Intervening Event, as applicable),
if the Company Board determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under
applicable law, and provided that, in the case of a termination of the Merger Agreement, the Company pays to Purchaser
the Company Termination Fee (as described below).
Termination
The Merger
Agreement contains certain customary termination rights for each of Purchaser and
the Company, including, (i) by mutual written agreement, (ii) if the Merger has not been consummated on or before August 24, 2025, subject
to extension if necessary to obtain required regulatory approvals or to allow the completion of a customary marketing period in respect
of Purchaser’s financing (the “Outside Date”), (iii) any applicable
Restraint permanently enjoining the consummation of the Merger has become final and nonappealable,
(iv) the Company Stockholder Approval shall not have been obtained at the Company Stockholders Meeting or (v) the other party is in breach
of the Merger Agreement in a manner that would result in a failure of an applicable closing condition and such breach cannot be cured
or, if curable, has not been cured within 20 business days after notice to the other party of such breach (or, if earlier, five business
days prior to the Outside Date).
In addition, prior to receipt of the Company Stockholder
Approval, the Company may also terminate the Merger Agreement to accept a Superior Proposal, subject to Purchaser’s
right to match such Superior Proposal and payment to Purchaser of the Company Termination
Fee (as described below). Purchaser may terminate the Merger Agreement if the Company Board
changes its recommendation to the Company’s stockholders regarding the Merger Agreement (an “Adverse Recommendation Change”).
Termination Fees
The Merger
Agreement provides for the payment of a termination fee upon termination of the Merger Agreement under certain specified circumstances.
The Company will be obligated to pay Purchaser a termination fee of $279,000,000 (the
“Company Termination Fee”) if the Merger Agreement is terminated (i) by Company to accept a Superior Proposal, (ii)
by Purchaser following an Adverse Recommendation Change, or (iii) in certain circumstances
by either Purchaser or Company upon failure to obtain, or prior to receipt of, the Company
Stockholder Approval if (a) at the time of such termination, an alternative acquisition proposal has been made and not withdrawn at least
two business days prior to such termination and (b) within 12 months following such termination, the Company enters into an agreement
with respect to an alternative acquisition proposal that is subsequently consummated or an alternative acquisition proposal is consummated.
The
foregoing description of the Merger Agreement is not complete and
is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached to this Current Report on Form 8-K
as Exhibit 2.1, and is incorporated herein by reference.
A copy of
the Merger Agreement has been included to provide investors and securityholders
with information regarding its terms. It is not intended to provide any other factual information about Purchaser, the Company and Merger
Sub, or any of their respective subsidiaries or affiliates. The representations, warranties and covenants contained in the Merger Agreement
were made by the parties thereto only for purposes of the Merger Agreement and as of specific dates; were made solely for the benefit
of the parties to the Merger Agreement; may be subject to limitations agreed upon by the contracting parties, including being qualified
by confidential disclosures exchanged between the parties in connection with the execution of the Merger Agreement (such disclosures include
information that has been included in the Company’s public
disclosures, as well as additional non-public information); may have been made for the purposes of allocating contractual risk between
the parties to the Merger Agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable
to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Merger
Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the
actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information
concerning the subject matter of representations and warranties may change after the date of the Merger Agreement, which subsequent information
may or may not be fully reflected in the Company’s public disclosures.
Voting Agreement
On
November 24, 2024, concurrently with the execution
and delivery of the Merger Agreement, in their respective capacities as record and beneficial owners of Company Common Shares, Cementos
Argos S.A., a sociedad anónima incorporated in the Republic of Colombia (“Cementos”), Argos SEM LLC, a Delaware
limited liability company (“Argos SEM”) and Valle Cement Investments, Inc., a sociedad anónima incorporated
in the Republic of Panama (“Valle Cement” and, together with Cementos and Argos SEM, “Supporting Shareholders”),
have entered into a Voting Agreement (the “Voting Agreement”) with Purchaser,
pursuant to which the Supporting Shareholders agree, among other things, to vote their Company Common Shares in favor of any proposal
to approve the adoption of the Merger Agreement and approve the Merger.
The
Voting Agreement will terminate at the earliest to occur of (a) the Effective Time, (b) such date and time as the Merger Agreement
is validly terminated, (c) the termination of the Voting Agreement by written agreement of all of the parties to the Voting
Agreement, (d) the date on which any amendment or waiver to the Merger Agreement is effected without the prior written consent of
Cementos that (i) decreases the Merger Consideration, (ii) changes the form of the Merger Consideration or (iii) is otherwise
adverse to the Supporting Shareholders in their capacities as record and beneficial owners of Company Common Shares, in any
material respect, or (e) the occurrence of an Adverse Recommendation Change in respect of an Intervening Event in accordance with
Section 6.04(b)(ii)(B) of the Merger Agreement.
The foregoing
description of the Voting Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text
of the Voting Agreement, a copy of which is filed as Exhibit 99.1 hereto and is incorporated by reference herein.
On November
24, 2024, concurrently with the execution and
delivery of the Merger Agreement, the Company waived, effective as of the execution of the Merger Agreement and the Voting
Agreement, and solely to the extent implicated by execution and delivery of the Voting Agreement in effect on November 24, 2024 (or
as may be amended after November 24, 2024 with the written consent of the Company), or the performance by the Supporting
Shareholders of their obligations thereunder, all restrictions under that certain Stockholder Agreement, dated as of January 12,
2024, by and among the Company, Cementos, Argos SEM and Valle Cement and, solely for the purpose
of specified sections of the Stockholder Agreement, Grupo Argos S.A. (the "Stockholder Agreement") that would restrict the ability
of the Supporting Shareholders to execute and deliver the Voting Agreement and perform their respective obligations thereunder,
including the restrictions set forth in Section 4.1 (Standstill Restrictions), clause (iii) of Section 4.2 (Quorum and
Voting) and Section 5.1 (Transfer Restrictions) of the Stockholder Agreement with respect to the Supporting
Shareholders.
| Item 7.01 | Regulation FD Disclosure. |
On November 25, 2024, the Company and Purchaser
issued a joint press release announcing the entry into the Merger Agreement. The press release is attached to this Current Report on Form
8-K as Exhibit 99.2 and is incorporated herein by reference.
The information in this
Item 7.01, including Exhibit 99.2, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of
1934, as amended (the “1934 Act”), nor shall they be deemed incorporated by reference in any filing under the Securities
Act of 1933, as amended, or the 1934 Act.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit No. |
|
Description |
| |
|
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| 2.1* |
|
Merger Agreement, dated November 24, 2024, among Summit Materials, Inc., Quikrete Holdings, Inc. and Soar Subsidiary, Inc. |
| 99.1* |
|
Voting Agreement, dated November 24, 2024, among Purchaser and in their respective capacities as record and beneficial owners of Company Common Shares, Cementos, Argos SEM and Valle Cement. |
| 99.2 |
|
Joint Press Release dated November 25, 2024. |
| 104.1 |
|
Cover Page Interactive Data File (embedded within the Inline XBRL document) |
*Annexes, schedules and exhibits have been omitted pursuant to Item
601(a)(5) of Regulation S-K. The Company hereby undertakes to furnish supplemental copies of any of the omitted annexes, schedules and
exhibits upon request by the SEC.
Additional Information and Where to Find It
This Form 8-K does not constitute an offer to
buy or sell or the solicitation of an offer to buy or sell any securities. This communication relates to the Merger. In connection with
the Merger, the Company plans to file with the Securities and Exchange Commission (“SEC”) a proxy statement on Schedule
14A (the “Proxy Statement”). This communication is not a substitute for the Proxy Statement or any other document that
the Company may file with the SEC and send to its shareholders in connection with the Merger. The Merger will be submitted to the Company’s
shareholders for their consideration. Before making any voting decision, the Company’s shareholders are urged to read all relevant
documents filed or to be filed with the SEC, including the Proxy Statement, as well as any amendments or supplements to those documents,
when they become available, because they will contain important information about the Company and the Merger.
The Company’s shareholders will be able
to obtain a free copy of the Proxy Statement, as well as other filings containing information about the Company, free of charge, at the
SEC’s website (www.sec.gov). Copies of the Proxy Statement and other documents filed by the Company with the SEC may be obtained,
without charge, by contacting the Company through its website at https://investors.summit-materials.com/corporate-profile/default.aspx.
Participants in the Solicitation
The Company, its directors, executive officers
and other persons related to the Company may be deemed to be participants in the solicitation of proxies from the Company’s shareholders
in connection with the Merger. Information about the directors and executive officers of the Company and their ownership of common stock
of the Company is set forth in the section entitled “Our Stockholders—Holdings of Major Stockholders” in the Company’s
proxy statement for its 2024 annual meeting of stockholders, which was filed with the SEC on April 8, 2024 (and which is available at
https://www.sec.gov/ix?doc=/Archives/edgar/data/0001621563/000114036124018480/ny20019511x1_def14a.htm).
Additional information regarding the participants
in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be included
in the Proxy Statement and other relevant materials to be filed with the SEC in connection with the Merger when they become available.
Free copies of these documents may be obtained as described in the preceding paragraph.
Forward-Looking Statements
This Form 8-K includes “forward-looking
statements” within the meaning of the federal securities laws, which involve risks and uncertainties. Forward-looking statements
include all statements that do not relate solely to historical or current facts, and you can identify forward-looking statements because
they contain words such as “believes,” “expects,” “may,” “will,” “should,”
“seeks,” “intends,” “trends,” “plans,” “estimates,” “projects”
or “anticipates” or similar expressions that concern our strategy, plans, expectations or intentions. All statements made
relating to our estimated and projected earnings, margins, costs, expenditures, cash flows, growth rates and financial results are forward-looking
statements. Such forward-looking statements include but are not limited to statements about the Merger, including statements that are
not historical facts. These forward-looking statements are subject to risks, uncertainties and other factors that may cause our actual
results, performance or achievements to be materially different from future results, performance or achievements expressed or implied
by such forward-looking statements. We derive many of our forward-looking statements from our operating budgets and forecasts, which are
based upon many detailed assumptions. While we believe that our assumptions are reasonable, it is very difficult to predict the effect
of known factors, and, of course, it is impossible to anticipate all factors that could affect our actual results. In light of the significant
uncertainties inherent in the forward-looking statements included herein, the inclusion of such information should not be regarded as
a representation by us or any other person that the results or conditions described in such statements or our objectives and plans will
be realized. Important factors could affect our results and could cause results to differ materially from those expressed in our forward-looking
statements, including but not limited to the factors discussed in the section entitled “Risk Factors” in the Company’s
Annual Report on Form 10-K for the fiscal year ended December 30, 2023, and Quarterly Report on Form 10-Q for the fiscal quarter ended
March 30, 2024, each as filed with the SEC, and any factors discussed in the section entitled “Risk Factors” in any of our
subsequently filed SEC filings; and the following: (i) the occurrence of any event, change, or other circumstance that could give rise
to the right of one or both of the parties to terminate the definitive transaction agreement between the Company and Purchaser, including
in circumstances requiring the Company to pay a termination fee; (ii) potential litigation relating to the Merger that could be instituted
against the parties to the definitive transaction agreement or their respective directors or officers, including the effects of any outcomes
related thereto; (iii) the possibility that the Merger does not close when expected or at all because required regulatory, shareholder,
or other approvals and other conditions to closing are not received or satisfied on a timely basis or at all; (iv) reputational risk and
potential adverse reactions of customers, employees or other business partners and the businesses generally, including those resulting
from the announcement of the Merger; (v) the risk that any announcements relating to the Merger could have adverse effects on the market
price of the Company’s common stock; (vi) significant transaction costs associated with the Merger; and (vii) the diversion of management’s
attention and time from ongoing business operations and opportunities on Merger-related matters. All subsequent written and oral forward-looking
statements attributable to us, or persons acting on our behalf, are expressly qualified in their entirety by these cautionary statements.
Any forward-looking statement that we make herein speaks only as of the date of this Form 8-K. We undertake no obligation to publicly
update or revise any forward-looking statement as a result of new information, future events or otherwise, except as required by law.
All subsequent written and oral forward-looking
statements attributable to us, or persons acting on our behalf, are expressly qualified in their entirety by these cautionary statements.
Any forward-looking statement that we make herein speaks only as of the date of this Form 8-K. We undertake no obligation to publicly
update or revise any forward-looking statement as a result of new information, future events or otherwise, except as required by law.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| |
SUMMIT MATERIALS, INC. |
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| DATED: November 25, 2024 |
By: |
/s/ Christopher B. Gaskill |
| |
Name: |
Christopher B. Gaskill |
| |
Title: |
EVP, Chief Legal Officer & Secretary |
Exhibit 2.1
AGREEMENT AND
PLAN OF MERGER
dated as of
November 24,
2024
among
SUMMIT MATERIALS,
INC.,
QUIKRETE HOLDINGS,
INC.
and
SOAR SUBSIDIARY,
INC.
TABLE OF CONTENTS
Page
AGREEMENT AND
PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER (as amended in accordance with the terms and conditions hereof, this “Agreement”) dated as of November
24, 2024, among Summit Materials, Inc., a Delaware corporation (the “Company”), Quikrete Holdings, Inc., a Delaware
corporation (“Parent”), and Soar Subsidiary, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
(“Merger Sub”).
W I T N E S
S E T H:
WHEREAS,
the boards of directors of Parent and Merger Sub have each approved this Agreement, declared it advisable for Parent and Merger Sub,
respectively, to enter into this Agreement and recommended that Parent, in its capacity as sole stockholder of Merger Sub, approve and
adopt this Agreement following the execution and delivery of this Agreement;
WHEREAS,
the board of directors of the Company (the “Board of Directors”) has (a) approved and declared advisable this Agreement
and the transactions contemplated hereby and thereby, pursuant to which, among other things, Parent would acquire the Company by means
of a merger of Merger Sub with and into the Company, on the terms and subject to the conditions set forth in this Agreement and (b) resolved
to recommend, subject to the terms and conditions of this Agreement, that the Company’s stockholders approve and adopt this Agreement
(such recommendation, the “Company Recommendation”);
WHEREAS,
concurrently with the execution and delivery of this Agreement and as a condition and inducement to Parent’s and Merger Sub’s
willingness to enter into this Agreement, each of the Principal Stockholders has entered into a voting agreement dated as of the date
of this Agreement and effective as of the date hereof pursuant to which, among other things, each of the Principal Stockholders has agreed
to vote the Company Common Shares and any other equity interests of the Company it beneficially owns in favor of the adoption of this
Agreement as more particularly set forth in the form attached hereto as Exhibit A (the “Voting Agreement”);
and
NOW,
THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
Article
1
Definitions
Section
1.01. Definitions. As used herein, the following terms have the following meanings:
“1933
Act” means the Securities Act of 1933.
“1934
Act” means the Securities Exchange Act of 1934.
“2027
Notes Indenture” means the Indenture, dated as of March 15, 2019, by and among Summit Materials, LLC (“Summit LLC”),
a Delaware limited liability company and indirect subsidiary of the Company, Summit Materials Finance Corp. (“Summit Finance”),
a Delaware corporation and indirect subsidiary of the Company, the guarantors named therein and Wilmington Trust, National Association,
as trustee.
“2029
Notes Indenture” means the Indenture, dated as of August 11, 2020, by and among Summit LLC, Summit Finance, the guarantors
named therein and Wilmington Trust, National Association, as trustee.
“2031
Notes Indenture” means the Indenture, dated as of December 14, 2023, by and among Summit LLC, Summit Finance, the guarantors
named therein and Wilmington Trust, National Association, as trustee.
“Acceptable
Confidentiality Agreement” means (i) a confidentiality agreement entered into by the Company from and after the date of this
Agreement that (a) contains terms, with respect to confidentiality and use, taken as a whole, that are not materially less restrictive
to the Company’s counterparty thereto than those contained in the Confidentiality Agreement (it being understood and agreed that
such confidentiality agreement need not restrict any person from making, publicly or privately, an Acquisition Proposal, acquiring the
Company or taking any other similar action, or otherwise contain any standstill or similar provision), (b) does not prohibit the Company
from complying with Section 6.04 and (c) does not
include any provision calling for an exclusive right to negotiate with the Company prior to the termination of this Agreement and (ii)
any confidentiality agreement entered into prior to the date of this Agreement, it being understood that the Company shall be entitled
to waive or release any preexisting explicit or implicit standstill provisions or similar agreements with any Person or group of Persons
to the extent such standstill provisions would prohibit such Person from making, negotiating or effecting an Acquisition Proposal.
“Acquisition
Proposal” means, other than the transactions contemplated by this Agreement, any bona fide Third Party offer or proposal
relating to (i) any acquisition or purchase, direct or indirect, of 20% or more of the consolidated assets, net revenues or net income
of the Company and its Subsidiaries or 20% or more of any class of equity or voting securities of the Company or any of its Subsidiaries
whose assets, individually or in the aggregate, constitute 20% or more of the consolidated assets, net revenues or net income of the
Company and its Subsidiaries, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result
in such Third Party beneficially owning 20% or more of any class of equity or voting securities of the Company or any of its Subsidiaries
whose assets, net revenues or net income, as applicable, individually or in the aggregate, constitute 20% or more of the consolidated
assets, net revenues or net income of the Company and its Subsidiaries or (iii) a merger, consolidation, share exchange, business combination,
sale of all or substantially all of the assets, reorganization, recapitalization, liquidation, dissolution or other similar transaction
involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 20% or more of the consolidated
assets, net revenues or net income of the Company or its Subsidiaries.
“Adverse
Recommendation Change” has the meaning set forth in Section 6.04(a).
“Affiliate”
means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such
Person; provided that, for purposes of this Agreement, Parent and Merger Sub shall be deemed not to be Affiliates of the Company
and vice versa.
“Agreement”
has the meaning set forth in the Preamble.
“Alternative
Financing” has the meaning set forth in Section
7.04(d).
“Alternative
Financing Commitment Letter” has the meaning set forth in Section 7.04(d).
“Anti-Corruption
Law” means the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other Applicable Law related to bribery or corruption.
“Antitrust
Division” has the meaning set forth in Section 8.01(b).
“Applicable
Law” means, with respect to any Person, any domestic or foreign federal, state, provincial or local law, constitution, treaty,
act, statute, code, rule, regulation, order, injunction, judgment, decree, writ, award, ruling or other similar requirement enacted,
adopted, promulgated or applied by a Governmental Authority in any relevant jurisdiction that is binding upon or applicable to such Person.
“Balance
Sheet Date” has the meaning set forth in Section 4.10.
“Board
of Directors” has the meaning set forth in the Recitals.
“Bond
Financing” has the meaning set forth in Section 5.09(a).
“Business
Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or
required by Applicable Law to close.
“Cap”
has the meaning set forth in Section 8.01(c).
“Capitalization
Date” has the meaning set forth in Section 4.05(a).
“CARES
Act” means the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136).
“CBA”
has the meaning set forth in Section 4.18(a).
“Certificate
of Merger” has the meaning set forth in Section 2.01(c).
“Certificates”
has the meaning set forth in Section 2.03(a).
“Chosen
Courts” has the meaning set forth in Section
11.08.
“Closing”
has the meaning set forth in Section 2.01(b).
“Closing
Date” has the meaning set forth in Section 2.01(b).
“Code”
means the U.S. Internal Revenue Code of 1986, as amended.
“Company”
has the meaning set forth in the Preamble.
“Company
Balance Sheet” means the consolidated balance sheet of the Company as of December 30, 2023, and the footnotes thereto set forth
in the Company’s annual report on Form 10-K for the fiscal year ended December 30, 2023.
“Company
Bylaws” means the Third Amended and Restated Bylaws of the Company.
“Company
Certificate of Incorporation” means the Restated Certificate of Incorporation of the Company.
“Company
Class A Common Shares” has the meaning set forth in Section
4.05(a).
“Company
Class B Common Shares” has the meaning set forth in Section
4.05(a).
“Company
Common Shares” has the meaning set forth in Section
4.05(a).
“Company
Credit Agreement” means the Amended and Restated Credit Agreement, dated as of July 17, 2015, among Summit LLC, as borrower,
the guarantors party thereto, the several banks and other financial institutions or entities party thereto, Bank of America, N.A., as
administrative agent, collateral agent, L/C issuer and swing line lender, and the other parties thereto, as amended prior to the Closing
Date.
“Company
Disclosure Schedule” means the disclosure schedule dated the date hereof regarding this Agreement that has been provided by
the Company to Parent and Merger Sub or their Representatives.
“Company
Employee” means any employee of the Company or any of its Subsidiaries.
“Company
Equity Award” means any Company Option, Company RSU or Company PSU.
“Company
ESPP” means the Company’s 2021 Employee Stock Purchase Plan, as amended from time to time.
“Company
Indentures” means, collectively, the 2027 Notes Indenture, the 2029 Notes Indenture and the 2031 Notes Indenture.
“Company
IT Systems” has the meaning set forth in Section 4.15(g).
“Company
Material Adverse Effect” means any Effect that, individually or in the aggregate, has had or would reasonably be expected to
have a material adverse effect on the financial condition, assets, business, properties or results of operations of the Company and its
Subsidiaries, taken as a whole, excluding any Effect to the extent resulting from (i) changes or prospective changes in GAAP or the interpretation
thereof, (ii) general economic, political, regulatory, legal or tax conditions in the United States or any other country or region in
which the Company and its Subsidiaries operate, including changes in financial, credit, securities or currency markets (including changes
in interest or exchange rates) and the imposition or adjustment of tariffs, (iii) conditions generally affecting any of the industries
in which the Company and its Subsidiaries operate, (iv) changes or prospective changes in Applicable Law or the interpretation thereof,
(v) geopolitical conditions, the outbreak or escalation of hostilities, acts of war, sabotage, terrorism, cyberattacks, protests, riots,
strikes, global health conditions (including any epidemic, pandemic or disease outbreak) or natural disasters, (vi) the execution, delivery
and performance of this Agreement or the announcement or consummation of the transactions contemplated by this Agreement or the identity
of or any facts or circumstances relating to Parent or any of its Affiliates, including the impact of any of the foregoing on the business
relationships, contractual or otherwise, of the Company and any of its Subsidiaries with customers, suppliers, service providers, employees,
Governmental Authorities or any other business relationships resulting from any of the foregoing (provided that this clause (vi)
shall not apply to any representation or warranty to the extent such representation or warranty expressly purports to address, as applicable,
the consequences resulting from the execution, delivery and performance of this Agreement or the announcement or consummation of the
transactions contemplated by this Agreement, including as provided in Section 4.04), (vii) any actions taken (or omitted to be
taken) at the express written request of Parent or Merger Sub, (viii) any failure by the Company or any of its Subsidiaries to meet any
internal or published budgets, projections, forecasts or predictions of financial performance or integration synergies for any period,
(ix) changes in the price or trading volume of the shares of Company Common Shares or any other securities of the Company on the NYSE
or any other market on which such securities are quoted for purchase and sale or changes in the credit ratings of the Company (it being
understood that any underlying facts giving rise or contributing to the failure or changes described in clauses (viii) or (ix) that are
not otherwise excluded from the definition of a “Company Material Adverse Effect” may be taken into account in determining
whether there has been a Company Material Adverse Effect), or (x) any actions taken (or omitted to be taken) by the Company or any of
its Subsidiaries that are required or expressly contemplated or permitted to be taken (or omitted to be taken) pursuant to this Agreement,
including any actions required under this Agreement to obtain any approvals, consents, registrations, permits, authorizations and other
confirmations under applicable Competition Laws for the consummation of the Merger, except, with respect to clauses (i), (ii), (iii),
(iv) and (v), to the extent that such Effect is disproportionately adverse to the Company and its Subsidiaries relative to others in
the industry or industries in which the Company and its Subsidiaries operate, in which case only the incremental disproportionate adverse
Effect may be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected
to occur.
“Company
Option” means an option to purchase Company Class A Common Shares granted under the Company Stock Plan.
“Company
Plan” means (a) each “employee benefit plan” as defined in Section 3(3) of ERISA (whether or not subject to ERISA),
(b) each employment, individual consulting, bonus, incentive, termination, severance, separation, change in control, retention, profit-sharing,
pension, retirement, deferred compensation, stock purchase, stock option, appreciation right, restricted stock, restricted stock unit,
phantom stock, equity or equity-based, medical, health, life insurance, dental, vision, drug, legal, cafeteria, spending account, vacation,
sick time, paid time off, supplemental unemployment, welfare, disability (long-term or short-term), post-employment, fringe benefit or
other compensation or benefit plan, program, policy or agreement, whether or not subject to ERISA, whether written or unwritten, and
(c) each other compensation or benefit plan, program, policy or agreement, determined without regard to whether such plan, program, policy
or agreement is in writing, funded or unfunded, or subject to ERISA, in each case that is sponsored, maintained, contributed to or required
to be sponsored, maintained or contributed to by the Company or any of its Subsidiaries for the benefit of any current or former Company
Service Provider and/or any of their spouses, dependents or beneficiaries or with respect to which the Company or any of its Subsidiaries
has or may reasonably be expected to have any liability or obligation (direct or indirect, contingent or otherwise) including as a result
of an ERISA Affiliate or by agreement, guaranty, indemnity or otherwise other than in each case any such plan, program, policy or agreement
that is operated by any Governmental Authority and with respect to which the Company or any of its Subsidiaries is required to contribute
to as a matter of law.
“Company
Preferred Shares” has the meaning set forth in Section 4.05(a).
“Company
PSU” means a restricted stock unit that is subject to vesting conditions based in whole or in part on performance goals granted
under the Company Stock Plan.
“Company
Recommendation” has the meaning set forth in the recitals.
“Company
Registered Intellectual Property” has the meaning set forth in Section 4.15(c).
“Company
RSU” means a restricted stock unit that is subject to vesting conditions based solely on continued employment or service granted
under the Company Stock Plan.
“Company
SEC Documents” has the meaning set forth in Section
4.07(a).
“Company
Securities” has the meaning set forth in Section
4.05(c).
“Company
Service Provider” means any employee, director, officer, manager, individual independent contractor or individual consultant
of the Company or any of its Subsidiaries.
“Company
Stock Plan” means the Company’s Amended and Restated 2015 Omnibus Incentive Plan, as amended from time to time.
“Company
Stockholder Approval” has the meaning set forth in Section
4.02(a).
“Company
Stockholders Meeting” has the meaning set forth in Section
6.02.
“Company
Subsidiary Securities” has the meaning set forth in Section
4.06(b).
“Company
Termination Fee” has the meaning set forth in Section 11.04(b)(i).
“Company
Warrants” means the warrants issued by the Company on or about March 11, 2015, and exercisable to purchase Company Class A
Common Shares.
“Company-Owned
Intellectual Property” means any and all Intellectual Property owned or purported to be owned by the Company or any of its
Subsidiaries.
“Company
401(k) plan” has the meaning set forth in Section 7.03(e).
“Competition
Laws” means the HSR Act and all other Applicable Laws that are designed or intended to prohibit, restrict or regulate actions
having the purpose or effect of monopolization, lessening of competition or restraint of trade.
“Confidentiality
Agreement” has the meaning set forth in Section
6.03(b).
“Continuing
Employee” has the meaning set forth in Section 7.03(b).
“D&O
Insurance” has the meaning set forth in Section 7.02(d).
“Data
Security Requirements” means, collectively, all of the following to the extent relating to personal, sensitive, or confidential
information or data or otherwise relating to privacy, security, or security breach notification requirements and, in each case, applicable
to the Company or any of its Subsidiaries, the conduct of their businesses, or any Company IT System: (i) the Company and its Subsidiaries’
own published rules, policies, and procedures (whether physical or technical in nature, or otherwise), (ii) all Applicable Laws, and
all binding industry standards applicable to the Company and its Subsidiaries’ industry (including, to the extent applicable, the
Payment Card Industry Data Security Standard (PCI DSS)), and (iii) agreements relating to the processing of personal information that
the Company or any of its Subsidiaries has entered into or by which it is bound.
“Debt
Commitment Letter” has the meaning set forth in Section 5.09(a).
“Debt
Financing” has the meaning set forth in Section 5.09(a).
“Debt
Financing Sources” means the entities that have committed to provide or otherwise entered into agreements in connection with
the Debt Financing, including the parties to the Debt Commitment Letter (including any Alternative Financing Commitment Letter) and any
joinder agreements, credit agreements or indentures (or similar definitive financing documents) relating thereto. For the avoidance of
doubt, neither Parent nor Merger Sub shall be considered a Debt Financing Source.
“Debt
Financing Sources Related Parties” means the Debt Financing Sources, the respective Affiliates of each of the foregoing and
the respective officers, directors, employees, controlling Persons, agents, advisors and the other Representatives and successors of
each of the foregoing. For the avoidance of doubt, neither Parent nor Merger Sub shall be considered a Debt Financing Sources Related
Party.
“DGCL”
means the Delaware General Corporation Law.
“Dissenting
Company Shares” has the meaning set forth in Section 2.04(a).
“EBITDA”
means (A) with respect to the assets, licenses, rights, product lines, businesses or interests therein of the Company and its Subsidiaries,
net income plus depreciation and amortization, plus interest expense, less interest income, plus income taxes expense net (which for
clarity can be a positive or negative amount), plus adjustments that are consistent with the Company’s past reporting practices
and (B) with respect to the assets, licenses, rights, product lines, businesses or interests therein of Parent and its Subsidiaries,
earnings before interest, taxes, depreciation and amortization, restructuring costs and any non-recurring and extraordinary items, calculated
in accordance with the past reporting practices of Parent and its Subsidiaries, excluding any allocation of corporate level expenses;
provided that, in the case of clause (B), the EBITDA generated by the assets, licenses, rights, product lines, businesses or interests
therein set forth on Section 1.01(c) of the Company Disclosure Schedule will be deemed to be the amount of EBITDA set forth thereon
with respect thereto.
“Effect”
means any change, effect, development, circumstance, condition, fact, state of facts, event or occurrence.
“Effective
Time” has the meaning set forth in Section 2.01(c).
“Enforceability
Exceptions” has the meaning set forth in Section 4.02(a).
“Environmental
Laws” means any Applicable Laws relating to (a) the protection, preservation or restoration of the environment (including air,
water vapor, surface water, groundwater, drinking water supply, surface land, subsurface land, plant and animal life or any other natural
resource), (b) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling,
production, presence, release or disposal of hazardous substances or materials or (c) human health and safety as it relates subclause
(b).
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA
Affiliate” means any Person, trade or business (whether or not incorporated) that, together with the Company or any of its
Subsidiaries, is treated at any relevant time as a single employer under Section 414 of the Code or Section 4001(a)(14) of ERISA.
“Ex-Im
Laws” means all Applicable Laws relating to export, re-export, transfer or import controls (including the Export Administration
Regulations administered by the U.S. Department of Commerce, and customs and import laws and regulations administered by U.S. Customs
and Border Protection).
“First
Extended Outside Date” has the meaning set forth in Section
10.01(b)(i).
“FTC”
has the meaning set forth in Section 8.01(b).
“GAAP”
means generally accepted accounting principles in the United States.
“Governmental
Authority” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative
authority, department, court, agency or official, or the NYSE or any self-regulatory organization.
“Hazardous
Substance” means any (i) material, substance or waste that is listed, defined or regulated as “hazardous” or “toxic,”
or as a “pollutant” or “contaminant” (or words of similar meaning and regulatory effect) under Environmental
Laws; and (ii) petroleum, petroleum products, per- and polyfluoroalkyl substances (including PFAs, PFOA, PFOS, Gen X, and PFBs), polychlorinated
biphenyls (PCBs), asbestos and asbestos-containing materials, radon, and toxic mold or fungi.
“HSR
Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
“Indemnified
Person” has the meaning set forth in Section
7.02(a).
“Initial
Outside Date” has the meaning set forth in Section
10.01(b)(i).
“Intellectual
Property” means all intellectual property and similar proprietary rights in any jurisdiction anywhere in the world, including
in the following: trademarks, service marks, logos, brand names, trade dress, and trade names (including any and all goodwill related
thereto), domain names, mask works, inventions, patents (including reissuances, divisionals, continuations, continuations-in-part, revisions,
renewals, extensions, and re-examinations), trade secrets, confidential information, copyrights, works of authorships, rights in software,
data, databases and documentation thereof, know-how, technology and any other similar type of proprietary intellectual property rights
and any registrations or applications for registration of any of the foregoing.
“Internal
Controls” has the meaning set forth in Section
4.07(d).
“Intervening
Event” has the meaning set forth in Section 6.04(f).
“IRS”
means the Internal Revenue Service.
“Knowledge”
means (i) with respect to the Company, the actual knowledge (after reasonable inquiry) of the individuals listed on Section 1.01(a)(i)
of the Company Disclosure Schedule and (ii) with respect to Parent, the actual knowledge (after reasonable inquiry) of the individuals
listed on Section 1.01(a)(ii) of the Parent Disclosure
Schedule.
“Lease”
means a lease, license, sublease, occupancy agreement, concession, permit or other arrangement pursuant to which the Company or any of
its Subsidiaries has a right to use real property as lessee, licensee, sublessee, occupant, concessionaire, permittee or similar user,
without regard to whether the Company or Subsidiary is considered under Applicable Law to be the fee owner of the minerals or other resources
to be extracted thereunder.
“Leased
Real Property” means real property which the Company or any of its Subsidiaries uses pursuant to a Lease, together with all
right, title and interest of the Company and its Subsidiaries in and to all leasehold improvements thereto, all easements, rights and
appurtenances pertaining thereto and all security deposits, reserves and prepaid rents and royalties paid in connection therewith.
“Lien”
means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance, exclusive license or
other similar adverse claim of any kind in respect of such property or asset.
“Marketing
Period” shall mean the first period of 15 consecutive Business Days commencing on or after January 6, 2025, and throughout
which (x) solely in the event that a Second Request shall have been issued or Parent and the Company have been informed by the FTC
or Antitrust Division that a Second Request will be issued, in each case, in connection with the transactions contemplated by this
Agreement, the conditions set forth in Section 9.01(b) (but solely as it relates to the HSR Act) and (d) shall be satisfied;
and (y) the applicable Required Information shall have been delivered to Parent and shall remain compliant in all material respects
with all applicable provisions of Regulation S-X and Regulation S-K under the 1933 Act, provided that if the Company shall in
good faith reasonably believe it has provided the Required Information, it may deliver to Parent a written notice to that effect
(stating when it believes it completed such delivery), in which case the Company shall be deemed to have delivered the Required
Information unless Parent in good faith reasonably believes the Company has not completed the delivery of the Required Information
and, within three Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that
effect (stating with reasonable specificity which Required Information the Company has not delivered); provided that it is
understood that the delivery of such written notice from Parent to the Company will not prejudice the Company’s right to
assert that the Required Information has in fact been delivered; provided that (i) the Marketing Period (A) shall not
commence prior to January 6, 2025 and must occur either entirely before or entirely after (1) the period from and including February
12, 2025 to the later of (x) the date upon which the historical financial information required to be provided to the Debt Financing
Sources pursuant to paragraph 6(b) of Annex B of the Debt Commitment Letter (as in effect on the date hereof) in relation to fiscal
year ended 2024 has been delivered and (y) March 31, 2025, (2) the period from and including August 16, 2025 through September 1,
2025 and (3) the period from and including December 22, 2025 through January 2, 2026 and (B) shall exclude (1) July 3, 2025, (2)
November 26, 2025 through and including November 28, 2025, (3) January 19, 2026 and (4) February 16, 2026 (it being understood that
such days, in each case of the preceding subclauses (1), (2), (3) and (4), shall be disregarded for purposes of calculating the
consecutive days consisting of the Marketing Period, but shall not disqualify any period including such days from being
“consecutive”); (ii) delivery of new financial statements pursuant to the definition of Required Information will
terminate the continuation of a potential Marketing Period that has commenced but not yet completed; (iii) if the Marketing Period
has not completed prior to the delivery to Parent of the Required Information for any fiscal quarter or fiscal year of the Company
ending on or after March 15, 2025, then the Marketing Period shall not commence prior to the date that is two (2)
calendar days after the deadline promulgated by the SEC for a “Large Accelerated Filer” to file its Form 10-K or Form
10-Q (as applicable) for the applicable period; (iv) the Marketing Period shall not be deemed to have commenced if, prior to the
completion of the Marketing Period, the Company’s independent registered public accounting firm shall have withdrawn its audit
opinion with respect to any of the financial statements contained in the Required Information, in which case the Marketing Period
shall not be deemed to commence unless and until, at the earliest, a new audit opinion is issued with respect to the consolidated
financial statements of the Company included in the Required Information for the withdrawn period(s) by the Company’s
independent registered accounting firm, another “big four” accounting firm or another independent public accounting firm
reasonably acceptable to Parent; (v) if the financial statements included in the Required Information that are available to Parent
on the first day of any such 15 Business Day period would not be sufficiently current on any day during such period to permit a
registration statement using such financial statements to be declared effective by the SEC on the last day of such period, then such
Marketing Period shall not begin until the first day thereafter when this clause (v) shall not be applicable and the other
applicable terms and conditions of this definition will be satisfied, (vi) the Marketing Period shall not be deemed to have
commenced if, prior to completion of the Marketing Period, the Company has issued a public statement indicating its intent to
restate the historical financial statements of the Company or that any such restatement is under consideration, in which case the
Marketing Period shall not be deemed to commence until such restatement has been completed or the Company has announced that it has
concluded that no restatement shall be required, and (vii) the Marketing Period shall be deemed completed on any earlier date on
which the Bond Financing is consummated (including, if applicable, consummation of the Bond Financing into escrow).
“Material
Contract” has the meaning set forth in Section 4.20(a).
“Material
Lease” has the meaning set forth in Section 4.14(c).
“Material
Owned Real Property” has the meaning set forth in Section 4.14(b).
“Material
Site” means a Product Site (i) which contributed, or, in the event not held for the duration of such fiscal year, would reasonably
have been expected to contribute, individually, more than $10,000,000 to the revenue of the Company or any of its Subsidiaries for the
fiscal year ended December 30, 2023, or (ii) the complete loss of which would cause a Company Material Adverse Effect.
“Merger”
has the meaning set forth in Section 2.01(a).
“Merger
Consideration” has the meaning set forth in Section
2.02(a).
“Merger
Sub” has the meaning set forth in the Preamble.
“Multiemployer
Plan” has the meaning set forth in Section 4.17(h).
“NYSE”
means the New York Stock Exchange.
“Order”
means any order, writ, injunctions, judgments or decrees of any Governmental Authority.
“Outside
Date” has the meaning set forth in Section 10.01(b)(i).
“Owned
Real Property” means real property and interests in real property owned in fee or in perpetuity, together with all buildings,
structures, improvements thereon and fixtures located thereon, and all easements and other right and interests appurtenant thereto.
“Parent”
has the meaning set forth in the Preamble.
“Parent
Disclosure Schedule” means the disclosure schedule dated the date hereof regarding this Agreement that has been provided by
Parent to the Company or its Representatives.
“Parent
Material Adverse Effect” means any Effect that would reasonably be expected to prevent, impair or materially delay the ability
of Parent, Merger Sub or the Company to perform its material obligations hereunder or prevent, impair or materially delay the consummation
of the Merger or the other transactions contemplated hereby as promptly as reasonably practicable and, in any event, on or prior to the
Outside Date.
“Parent
401(k) Plan” has the meaning set forth in Section 7.03(e).
“Paying
Agent” has the meaning set forth in Section 2.03(a).
“Pension
Plan” means (a) an employee pension benefit plan within the meaning of Section 3(2) of ERISA that is subject to Title IV of
ERISA and/or is subject to the minimum funding standards under Section 412 or 430 of the Code or Section 302 or Title IV of ERISA, (b)
a “multiple employer plan” within the meaning of Section 413(c) of the Code or Sections 4063, 4064 or 4066 of ERISA, or (c)
a “multiemployer pension plan” within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
“Permit”
means each governmental license, franchise, certificate, approval, registration, order, decree or other similar authorization of a Governmental
Authority relating to the assets or business of the Company or its Subsidiaries which is necessary for the conduct of the business as
currently conducted.
“Permitted
Liens” means (a) any Liens for Taxes not yet due and payable or which are being contested in good faith by appropriate proceedings
and, in each case, for which adequate accruals, in accordance with GAAP, are reflected in the Company Balance Sheet, (b) vendors’,
carriers’, warehousemen’s, mechanics’, materialmen’s, worker’s, repairmen’s or other similar Liens
incurred in the ordinary course of business and which are not delinquent or which are being contested in good faith and which do not
materially impair the operation of the business as currently conducted, (c) Liens incurred or deposits made in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and other social security legislation, (d) easements,
rights-of-way, covenants, restrictions and other encumbrances incurred in the ordinary course of business that, in the aggregate, are
not material in amount or that do not, in any case, materially detract from the value or the use of the property subject thereto or materially
affect the ability of the Company or the applicable Subsidiary to carry on its business as now conducted, (e) statutory landlords’
Liens and Liens granted to landlords under any lease, (f) non-exclusive licenses to Intellectual Property granted in the ordinary course
of business, (g) any purchase money security interests, equipment leases or similar financing arrangements, (h) any Liens securing indebtedness
or liabilities that are reflected on the most recent consolidated balance sheet of the Company or notes thereto, (i) with respect to
any securities, any transfer restrictions of general applicability as may be provided under the 1933 Act or other Applicable Law or restrictions
under the organizational documents of the issuer of such securities, (j) Liens as set forth on Section 1.01(b) of the Company
Disclosure Schedule, and (k) any Liens that do not materially and adversely affect the use or operation of the property or assets subject
thereto.
“Person”
means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including
a Governmental Authority.
“Principal
Stockholders” mean Cementos Argos S.A., Argos SEM, LLC and Valle Cement Investments, Inc.
“Proceeding”
means any action, claim, charge, complaint, arbitration, mediation, litigation, suit or other similarly formal legal proceeding commenced,
brought, conducted, or heard by or before, any Governmental Authority or arbitrator.
“Product
Operation” means a mine, cement plant, ready-mixed concrete plant or asphalt plant.
“Product
Site” means an assemblage of Real Property (which may include both Owned Real Property and Leased Real Property) used for one
or more Product Operations, (i) which Product Operations are contiguous, similarly named, or operated as a single economic unit, or (ii)
where one Product Operation supplies raw materials to one or more other Product Operations.
“Proxy
Statement” has the meaning set forth in Section 8.02(a).
“Real
Property” means Leased Real Property or Owned Real Property.
“Registration
Rights Agreement” means that certain Registration Rights Agreement, dated as of January 12, 2024, by and among the Company,
Cementos Argos S.A., Argos SEM, LLC and Valle Cement Investments, Inc.
“Regulatory
Actions” has the meaning set forth in Section 8.01(c).
“Representatives”
means, with respect to a Person, such Person’s directors, managers, officers, employees, investment bankers, attorneys, accountants
and other advisors acting on such Person’s behalf.
“Required
Funds” has the meaning set forth in Section 5.09(c).
“Required
Information” has the meaning set forth in Section 6.06(a)(ii).
“Sanctioned
Person” means at any time any Person: (i) listed on any Sanctions-related list of designated or blocked Persons; (ii) ordinarily
resident in or organized under the laws of a country or territory that is the subject of comprehensive Sanctions (as of the date of this
Agreement, Cuba, Iran, North Korea, Syria, the Crimea, Sevastopol, Donetsk, Luhansk, Kherson and Zaporizhzhia regions of Ukraine and
Venezuela); or (iii) owned directly or indirectly, 50% or more (in the aggregate) or otherwise controlled by any of the foregoing.
“Sanctions”
means, collectively, the sanctions administered or enforced by the United States Government (including the U.S. Department of the Treasury’s
Office of Foreign Assets Control), the United Nations Security Council, the European Union and its member states, and His Majesty’s
Treasury.
“SEC”
means the U.S. Securities and Exchange Commission.
“Second
Request” means a request for additional information or documentary material pursuant to the HSR Act issued by a Governmental
Authority.
“Solvent”
has the meaning set forth in Section 5.10.
“Stockholder
Agreement” means that certain Stockholder Agreement, dated as of January 12, 2024, by and among the Company, Cementos Argos
S.A., Argos SEM, LLC, Valle Cement Investments, Inc. and, solely for the purpose of specified sections of the Stockholder Agreement,
Grupo Argos S.A.
“Subsidiary”
means, with respect to any Person, (i) any entity of which such person, directly or indirectly, owns (A) securities or other ownership
interests having ordinary voting power to elect a majority of the board or other governing body of directors or other Person or body
performing similar functions or (B) more than 50% of the outstanding equity or financial interests or (ii) any entity in which such Person
is or any of its Subsidiaries is a general partner or managing member of such other Person.
“Superior
Proposal” has the meaning set forth in Section 6.04(e).
“Surviving
Corporation” has the meaning set forth in Section 2.01(a).
“Tax”
means all federal, state, local, provincial, and foreign income, profits, franchise, gross receipts,
environmental, customs duty, capital stock, net worth, severances, stamp, payroll, sales, employment, unemployment, disability, use,
property, withholding, excise, license, production, value added, goods and services, occupancy, transfer and other taxes, duties or assessments,
in each case, in the nature of a tax, together with all interest, penalties and additions imposed with respect to such amounts.
“Tax
Receivable Agreement” means that certain Tax Receivable Agreement entered into among the Company and the other persons party
thereto, dated March 11, 2015.
“Tax
Return” means any report, return, document, declaration or other information or filing supplied or required to be supplied
to any Taxing Authority with respect to Taxes, including information returns, any documents with respect to or accompanying payments
of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document,
declaration or other information, including any amendments thereof and schedules or attachments thereto.
“Taxing
Authority” means the IRS or any Governmental Authority responsible for the imposition or collection of any Tax.
“Third
Party” means any Person, including as defined in Section 13(d) of the 1934 Act, other than the Company, Parent or any of their
respective Affiliates.
“Uncertificated
Shares” has the meaning set forth in Section 2.03(a).
“Voting
Agreement” has the meaning set forth in the recitals.
Section
1.02. Other Definitional and Interpretative Provisions. Unless context requires otherwise, the words “hereof,”
“herein” and “hereunder” and words of like import used in this Agreement will refer to this Agreement as a whole
and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and will be
ignored in the construction or interpretation hereof. References to “Articles,” “Sections,” “Exhibits,”
“Annexes” and “Schedules” are to Articles, Sections, Exhibits, Annexes and Schedules of this Agreement unless
otherwise specified. All Exhibits, Annexes and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part
of this Agreement as if set forth in full herein; provided that the contents of the Company Disclosure Schedule are “facts ascertainable”
(as that term is used in Section 251(b) of the DGCL) and do not form part of this Agreement but instead operate upon the terms of this
Agreement as provided herein. Any capitalized terms used in any Exhibit, Annex or Schedule but not otherwise defined therein will have
the meaning as defined in this Agreement. Any singular term in this Agreement will be deemed to include the plural, and any plural term
the singular. Whenever the words “include,” “includes” or “including” are used in this Agreement,
they will be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words
or words of like import. References to “ordinary course of business” will be deemed to be followed by the words “consistent
with past practices,” with such practices being interpreted hereunder taking into account the circumstances thereof. “Writing,”
“written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media)
in a visible form. The word “or” will not be deemed to be exclusive. The word “extent” and the phrase “to
the extent” when used in this Agreement will mean the degree to which a subject or other thing extends, and such word or phrase
will not simply mean “if.” References to any statute, law or other Applicable Law will be deemed to refer to such statute,
law or other Applicable Law as amended from time to time and, if applicable, to any rules, regulations or interpretations promulgated
thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time
to time in accordance with the terms hereof and thereof. References to any Person include the successors and permitted assigns of that
Person. References to a “party” or the “parties” mean a party or the parties to this Agreement unless the context
otherwise requires. References from or through any date mean, unless otherwise specified, from and including or through and including,
respectively. Except as otherwise expressly set forth herein, all amounts required to be paid hereunder will be paid in United States
currency in the manner and at the times set forth herein. Whenever this Agreement requires Merger Sub to take any action, such requirement
will be deemed to include an undertaking on the part of Parent to cause Merger Sub to take such action. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement, and each has been represented by counsel of its choosing and, in the event
an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by such parties and
no presumption or burden of proof will arise favoring or disfavoring any party due to the authorship of any provision of this Agreement.
Unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed references to the
lawful money of the United States of America. References to documents or information “made available” or “provided”
to Parent or similar terms will mean documents or information (a) publicly available on the SEC EDGAR database (without redaction or
omission) prior to the execution of this Agreement or (b) uploaded prior to the execution of this Agreement in the “Project Aspen”
dataroom hosted on Datasite at least one day prior to the date of the Agreement and fully available to Parent and its Representatives.
Article
2
The
Merger
Section
2.01. The Merger. (a) Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Merger
Sub will merge with and into the Company (the “Merger”) in accordance with the DGCL, whereupon the separate existence
of Merger Sub will cease, and the Company will be the surviving corporation as a wholly owned Subsidiary of Parent (the “Surviving
Corporation”).
(b) Subject
to the provisions of Article 9, the closing of the Merger (the “Closing”) will take place in New York City
at the offices of Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York 10017 or through the electronic exchange of
the applicable documents, using PDFs or electronic signatures as soon as possible, but in any event no later than three Business Days
after the date the last of the conditions set forth in Article
9 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent
permissible, waiver of those conditions at the Closing) has been satisfied or, to the extent permissible, waived by the party or parties
entitled to the benefit of such conditions, or at such other place, at such other time or on such other date as Parent and the Company
may mutually agree in writing; provided that, notwithstanding the foregoing, in no event shall Parent be obligated to consummate
the Closing prior to the third Business Day after the last day of the Marketing Period. The date on which the Closing actually occurs
is referred to herein as the “Closing Date.”
(c) At
the Closing, the Company and Merger Sub shall file a certificate of merger (the “Certificate of Merger”), executed
in accordance with the relevant provisions of the DGCL, with the Delaware Secretary of State and make all other filings or recordings
required by the DGCL in connection with the Merger. The Merger will become effective at such time as the Certificate of Merger is duly
filed with the Delaware Secretary of State (or at such later time as may be specified in the Certificate of Merger) (the “Effective
Time”).
(d) The
Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL. Without limiting the generality
of the foregoing, from and after the Effective Time, the Surviving Corporation will possess all the rights, powers, privileges and franchises
and be subject to all of the obligations, liabilities and restrictions of the Company and Merger Sub, all as provided under the DGCL.
Section
2.02. Conversion of Shares. Except as set forth in Section 2.05, as of the Effective Time:
(a) Except
as otherwise provided in Section 2.02(b), Section
2.02(c) or Section 2.04, each Company Common Share
outstanding immediately prior to the Effective Time will automatically be converted into the right to receive $52.50 in cash without
interest (the “Merger Consideration”), subject to deduction for any required withholding Tax. As of the Effective
Time, all such Company Common Shares will no longer be outstanding and will automatically be canceled and retired and will cease to exist,
and will thereafter represent only the right to receive the Merger Consideration to be paid in accordance with Section
2.03, without interest.
(b) Each
Company Common Share held by the Company as a treasury share or owned, directly or indirectly, by Parent, Merger Sub or any other Subsidiary
of Parent immediately prior to the Effective Time will be canceled and cease to exist, and no payment will be made with respect thereto.
(c) Each
Company Common Share held by any Subsidiary of the Company immediately prior to the Effective Time will be converted into such number
of common shares of the Surviving Corporation such that each such Person owns the same percentage of the outstanding capital stock in
the Surviving Corporation immediately following the Effective Time as such Person owned in the Company immediately prior to the Effective
Time.
(d) Each
common share of Merger Sub outstanding immediately prior to the Effective Time will be converted into and become one common share of
the Surviving Corporation and, except as provided in Section 2.02(c), will constitute the only outstanding shares of capital stock
of the Surviving Corporation.
(e) Each
Company Preferred Share outstanding immediately prior to the Effective Time will automatically be canceled and retired for no consideration
and will cease to exist.
Section
2.03. Surrender and Payment. (a) Prior to the Closing Date, Parent shall appoint a nationally recognized bank, trust company
or other agent reasonably acceptable to the Company to act as the paying agent for the Merger (the “Paying Agent”)
and enter into a paying agent agreement, reasonably acceptable to the Company, with such agent for the purpose of exchanging for the
Merger Consideration as promptly as practicable after the Effective Time (i) certificates representing Company Common Shares (the “Certificates”)
or (ii) uncertificated Company Common Shares (the “Uncertificated Shares”). Prior to the Effective Time, Parent shall
make available to the Paying Agent the aggregate Merger Consideration to be paid in respect of the Certificates and the Uncertificated
Shares, and such aggregate Merger Consideration shall not be used for any purpose other than to fund payments due pursuant to Section
2.02 and this Section 2.03. Except as set forth in Section 2.05, as promptly as practicable after the Effective Time
(but no later than two Business Days thereafter), Parent shall send, or shall cause the Paying Agent to send, to each holder of Company
Common Shares at the Effective Time a letter of transmittal and instructions (which will be in a form reasonably acceptable to the Company
and finalized prior to the Effective Time and which will specify that the delivery will be effected, and risk of loss and title will
pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Paying Agent) for use in such exchange.
(b) Each
holder of Company Common Shares that have been converted into the right to receive the Merger Consideration in accordance with Section
2.02 will be entitled to receive, upon (i) surrender to the Paying Agent of a Certificate, together with a properly completed letter
of transmittal, or (ii) receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer
as the Paying Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration payable
for each Company Common Share represented by a Certificate or for each Uncertificated Share (less any applicable withholding). Until
so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share will represent from and after the Effective
Time for all purposes only the right to receive the Merger Consideration. No interest will be paid or will accrue on the Merger Consideration
payable upon surrender of any such Company Common Shares.
(c) If
any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or
the transferred Uncertificated Share is registered, it will be a condition to such payment that (i) either such Certificate shall be
properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii)
the Person requesting such payment shall pay to the Paying Agent any transfer or other Taxes required as a result of such payment to
a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Paying
Agent that such Tax has been paid or is not payable.
(d) At
the Effective Time, the share transfer books of the Company will be closed, and there will be no further registration of transfers of
Company Common Shares. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation
or the Paying Agent, they will be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures
set forth, in this Article 2, including subject to applicable
Law in the case of Dissenting Company Shares.
(e) Any
portion of the Merger Consideration made available to the Paying Agent pursuant to Section 2.03(a) (and any interest or other
income earned thereon) that remains unclaimed by the holders of Company Common Shares 12 months after the Effective Time will be returned
to Parent, and any such holder who has not exchanged any Company Common Share for the Merger Consideration in accordance with this Section
2.03 prior to that time will thereafter look only to Parent for payment of the Merger Consideration in respect of such Company Common
Share without any interest thereon (subject to abandoned property escheat or similar Applicable Law). Notwithstanding the foregoing,
none of Parent, the Surviving Corporation or the Paying Agent will be liable, including to any holder of Company Common Shares for Merger
Consideration delivered to a Governmental Authority pursuant to any applicable abandoned property, escheat or similar Applicable Law.
If any Certificate shall not have been surrendered or Uncertificated Share shall not have been transferred prior to the date on which
any Merger Consideration would otherwise escheat to or become the property of any Governmental Authority, then any such Merger Consideration
will, to the extent permitted by Applicable Law, become the property of Parent, free and clear of all claims or interest of any Person
previously entitled thereto.
Section
2.04. Dissenting Shares. (a) Notwithstanding anything to the contrary set forth in this Agreement, all Company Common Shares
that are issued and outstanding as of immediately prior to the Effective Time and held by the Company’s stockholders who are entitled
to demand and shall have neither voted in favor of the adoption of this Agreement nor consented thereto in writing and who shall have
properly and validly demanded their statutory rights of appraisal in respect of such Company Common Shares in accordance with Section
262 of the DGCL (the “Dissenting Company Shares”) will not be converted into, or represent the right to receive, the
Merger Consideration pursuant to Section 2.02(a). Such Company stockholders will be entitled to receive payment of the appraised
value of such Dissenting Company Shares in accordance with the provisions of Section 262 of the DGCL, except that all Dissenting Company
Shares held by Company stockholders who shall have failed to perfect or who shall have effectively withdrawn or lost their rights to
appraisal of such Dissenting Company Shares pursuant to Section 262 of the DGCL will thereupon be deemed to have been converted into,
and to have become exchangeable for, as of the Effective Time, the right to receive the Merger Consideration, without interest thereon,
upon surrender of the Certificates or transfer of Uncertificated Shares that formerly evidenced such Company Common Shares in the manner
provided in Section 2.03 (or in the case of a lost, stolen or destroyed Certificate, upon delivery of an affidavit (and bond,
if required) in accordance with the provisions of Section 2.09).
(b) The
Company shall give Parent prompt notice of any demands for appraisal received by the Company, withdrawals of such demands, and any other
instruments served pursuant to the DGCL and received by the Company in respect of Dissenting Company Shares. Parent shall have the right
to participate in all negotiations and Proceedings with respect to demands for appraisal pursuant to the DGCL in respect of Dissenting
Company Shares. The Company may not, except with the prior written consent of Parent, make any payment with respect to any demands for
appraisal, settle or offer to settle any such demands in respect of Dissenting Company Shares or waive any failure to timely deliver
a written demand for appraisal.
Section
2.05. Treatment of Equity Awards; Company ESPP. (a) Effective as of immediately prior to the Effective Time, each award of
Company RSUs that is outstanding immediately prior to the Effective Time shall fully vest and be canceled and converted into the right
to receive an amount in cash (without interest and subject to applicable Tax withholdings) equal to the product of (i) the Merger Consideration,
multiplied by (ii) the number of shares of Company Class A Common Shares subject to such vested award of Company RSUs. Following the
Effective Time, no award of Company RSUs that was outstanding immediately prior to the Effective Time shall remain outstanding, and each
former holder of any award of Company RSUs shall cease to have any rights with respect thereto, except the right to receive the consideration
set forth in this Section 2.05(a) (without interest and subject to applicable Tax withholdings) in exchange for such award of
Company RSUs.
(b) Effective
as of immediately prior to the Effective Time, each award of Company PSUs that is outstanding immediately prior to the Effective Time
shall vest (based on the level of achievement of the applicable performance goals set forth below) and be canceled and converted into
the right to receive an amount in cash (without interest and subject to applicable Tax withholdings) equal to (i) the Merger Consideration,
multiplied (ii) the number of shares of Company Class A Common Shares subject to such award of Company PSUs as determined pursuant to
the following sentence. For purposes of this Section 2.05(b), the number of shares of Company Class A Common Shares subject to
such award of Company PSUs that shall vest as of immediately prior to the Effective Time shall be determined based on target performance.
Following the Effective Time, no award of Company PSUs that was outstanding immediately prior to the Effective Time shall remain outstanding,
and each former holder of any award of Company PSUs shall cease to have any rights with respect thereto, except the right to receive
the consideration set forth in this Section 2.05(b) (without interest and subject to applicable Tax withholdings) in exchange
for such award of Company PSUs.
(c) Effective
as of immediately prior to the Effective Time, each award of Company Options that is outstanding immediately prior to the Effective Time
shall fully vest, to the extent not vested previously, and be canceled and converted into the right to receive an amount in cash (without
interest and subject to applicable Tax withholdings) equal to (i) the excess, if any, of the Merger Consideration over the applicable
exercise price per share of Company Class A Common Shares subject to such award of Company Options, multiplied by (ii) the number of
shares of Company Class A Common Shares subject to such award of Company Options; provided that if the applicable exercise price
per share of Company Class A Common Shares of an award of Company Options is equal to or greater than the Merger Consideration, such
award of Company Options shall be canceled at the Effective Time for no consideration. Following the Effective Time, no award of Company
Options that was outstanding immediately prior to the Effective Time shall remain outstanding, and each former holder of any award of
Company Options shall cease to have any rights with respect thereto, except the right to receive the consideration set forth in this
Section 2.05(c) (without interest and subject to applicable Tax withholdings) in exchange for such Company Option so long as the
exercise price per share of the Company Class A Common Shares of the award of Company Options is less than the Merger Consideration.
(d) Prior
to the Effective Time, the Board of Directors or a duly authorized committee thereof shall take such actions, including any such actions
under the Company Stock Plan, as may be required or necessary to (i) effectuate the provisions of this Section 2.05 and (ii) terminate
the Company Stock Plan, in each case prior to, and contingent upon, the Effective Time.
(e) Prior
to the Effective Time, the Board of Directors or a duly authorized committee thereof shall take such actions, including any such actions
under the Company ESPP, as may be required or necessary to provide that, (i) the Company ESPP shall be frozen and suspended at the end
of the “offering period” that is in progress as of the date of this Agreement and no new offering periods shall commence
under the Company ESPP at any time on or after the date hereof, (ii) no current participants in the Company ESPP shall be permitted to
increase their payroll deduction elections or rate of contributions under the Company ESPP from those in effect on the date of this Agreement
and no individuals not participating in the Company ESPP as of the day before the date of this Agreement shall commence participation
in the Company ESPP during the period from the date of this Agreement through the Effective Time, (iii) effective as of immediately prior
to the Effective Time, any “offering period” that would otherwise be in progress as of the Effective Time will be accelerated
to a date on or prior to the fifth (5th) Business Day prior to the Closing Date, (iv) each purchase right under any offering period that
is in progress as of the date of this Agreement shall be fully exercised in accordance with the terms of the Company ESPP on the earlier
of (x) the scheduled purchase date for such offering period and (y) such accelerated exercise date, if applicable, (v) any participant
payroll deductions not applied to the purchase of shares under the Company ESPP after the final offering period shall be returned to
the participant without interest prior to the Effective Time, and (vi) the Company ESPP shall terminate prior to, and contingent upon,
the Effective Time.
(f) All
payments under this Section 2.05(a) through (c)
shall be made by the Surviving Corporation through its payroll system at or as soon as practicable after the Effective Time (and in no
event later than the later of the next regularly scheduled payroll run of the Company and three Business Days following the Effective
Time), pursuant to the Company’s ordinary payroll practices, and will be subject to any applicable Tax withholding; provided that,
with respect to any award of Company RSUs, Company PSUs or Company Options that constitutes “deferred compensation” subject
to Section 409A of the Code, either in whole or in part, settlement of such award shall be made, without interest, to the extent necessary
to comply with Section 409A of the Code, on the earliest permissible date that such delivery would not trigger a Tax or penalty under
Section 409A of the Code.
Section
2.06. Adjustments. Without limiting any rights or obligations otherwise set forth in this Agreement, if, during the period
between the date of this Agreement and the Effective Time, the outstanding shares of capital stock, or securities convertible into or
exchangeable into or exercisable for shares of such capital stock, of the Company shall have changed into a different number or class
of shares or other securities by reason of any reclassification, recapitalization, share split or combination, exchange or readjustment
of shares, or any share dividend thereon with a record date during such period, or any merger, consolidation or other event or similar
transaction, but excluding any change that results from settlement or exercise (as applicable) of Company RSUs, Company PSUs or Company
Options or the treatment of the Company ESPP, in each case as described above, the Merger Consideration and any other amounts payable
pursuant to this Agreement shall be equitably adjusted to reflect such event so as to provide Parent and the holders of Company Securities
the same economic effect as contemplated by this Agreement prior to such event.
Section
2.07. Treatment of Company Warrants. At the Effective Time, by virtue of the Merger and without any action on the part of Parent,
Merger Sub, the Company or any holder of a Company Warrant, each Company Warrant that is outstanding as of immediately prior to the Effective
Time shall, upon the Effective Time, convert into the right to receive cash, without interest and, if applicable, subject to Tax withholdings,
in an amount equal to the product of (a) the number of Company Class A Common Shares the holder of such Company Warrant would have received
had such Company Warrant been exercised in full on a cash basis immediately prior to the Effective Time multiplied by (b) the
excess, if any, of the Merger Consideration over the exercise price per Company Class A Common Share underlying such Company Warrant;
provided that if the exercise price per Company Class A Common Share underlying such Company Warrant is equal to or greater than
the Merger Consideration, no payment shall be due to the holder of such Company Warrant upon the surrender of the Company Warrant to
the Company or the Surviving Corporation. As of the Effective Time, each holder of Company Warrants shall cease to have any other rights
in and to the Company and the Surviving Corporation, and each Company Warrant shall thereafter represent only the right to receive the
applicable amounts payable pursuant to the foregoing sentence, if any (without interest and, if applicable, subject to Tax withholdings).
All payments under this Section 2.07 shall be made by the Surviving Corporation as soon as practicable and no later than five
Business Days following the holder’s exercise of the Company Warrants.
Section
2.08. Withholding Rights. Notwithstanding anything to the contrary herein, Parent, the Company, the Surviving Corporation,
the Paying Agent and any of their respective Affiliates or agents shall be entitled to deduct and withhold from any amounts otherwise
payable pursuant to this Agreement such amounts as are required to be deducted or withheld under the Code or any other Applicable Law
in respect of Taxes. Any amounts so deducted or withheld shall, to the extent paid over to the appropriate Taxing Authority, be treated
for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.
Section
2.09. Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, an agreement
to indemnify the Surviving Corporation against any claim that may be made with respect to such Certificate (including, if required by
the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct),
the Paying Agent shall pay, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect
of the Company Common Shares represented by such Certificate, as contemplated by this Article 2.
Article
3
The
Surviving Corporation
Section
3.01. Certificate of Incorporation. Subject to Section 7.02, at the Effective Time, the certificate of incorporation
of the Surviving Corporation shall be amended and restated as set forth in Exhibit B, and, as so amended and restated, shall be
the certificate of incorporation of the Surviving Corporation until further amended in accordance with Applicable Law.
Section
3.02. Bylaws. Subject to Section 7.02, the bylaws of Merger Sub in effect at the Effective Time will be the bylaws of
the Surviving Corporation (except that references to the name of Merger Sub shall be replaced by reference to the name of the Surviving
Corporation) until thereafter amended in accordance with Applicable Law.
Section
3.03. Directors and Officers. From and after the Effective Time, until successors are duly elected or appointed and qualified
in accordance with Applicable Law, (a) the directors of Merger Sub at the Effective Time shall be the directors of the Surviving Corporation
and (b) the officers of the Company at the Effective Time shall be the officers of the Surviving Corporation. Prior to the Closing Date,
the Company shall either remove (or cause the removal of) or use reasonable best efforts to procure resignation letters (in a form and
substance reasonably satisfactory to Parent) of each individual serving as a director of any Subsidiary of the Company or member of any
committee of a Subsidiary of the Company’s board of directors, in each case, solely in such individual’s capacity as a director
of any Subsidiary of the Company and member of any committee of a Subsidiary of the Company’s board of directors, and in each case
conditioned upon and effective as of the Closing, and shall deliver, or cause to be delivered, to Parent such procured resignation letters
(or evidence of such removal) at or prior to the Closing.
Article
4
Representations
and Warranties of the Company
Except
as (a) disclosed in any Company SEC Document filed after January 1, 2021 and before November 21, 2024 (but excluding any forward-looking
disclosures set forth in any “risk factors” section or “forward-looking statements” section under the heading
“Quantitative and Qualitative Disclosures About Market Risk” or any other statements that are similarly predictive, cautionary
or forward-looking in nature; it being understood that any factual information contained within such sections shall not be excluded)
(it being understood that this clause (a) shall not apply to Section 4.01, Section 4.02, Section 4.05, Section
4.23 or Section 4.24); or (b) subject to Section 11.05,
as set forth in the Company Disclosure Schedule, the Company represents and warrants to Parent and Merger Sub that:
Section
4.01. Corporate Existence and Power. (a) The Company (i) is a corporation, duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and (ii) has all corporate powers required to carry on its business as now conducted
and to own, lease or operate its properties and assets, except in the case of this clause (ii) as would not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse Effect.
(b) The
Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the properties or
assets owned, operated or leased by it or the conduct of its business in such jurisdiction, as currently conducted, requires such qualification,
except for those jurisdictions where failure to be so qualified or in good standing has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has made available to Parent true, complete
and correct copies of the Company Certificate of Incorporation and the Company Bylaws, which are in effect as of the date hereof. The
Company is not in violation of any of the provisions of the Company Certificate of Incorporation or the Company Bylaws.
Section
4.02. Corporate Authorization. (a) The execution, delivery and performance by the Company of this Agreement and the consummation
by the Company of the transactions contemplated hereby are within the Company’s corporate powers and, except for obtaining the
Company Stockholder Approval and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no other
corporate action not previously taken on the part of the Company is necessary to authorize the execution and delivery by the Company
of this Agreement, the performance by the Company of its covenants and obligations hereunder and the consummation of the transactions
contemplated hereby. The affirmative vote of the holders of a majority of the outstanding Company Common Shares to vote at the Company
Stockholders Meeting on the adoption of this Agreement (the “Company Stockholder Approval”) is the only vote of the
holders of any of the Company’s capital stock required by Applicable Law or under the organizational documents of the Company or
any of its Subsidiaries necessary to consummate the transactions contemplated hereby (including the Merger). The Company has duly executed
and delivered this Agreement, and, assuming due authorization, execution and delivery by each of Parent and Merger Sub, this Agreement
constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms (except insofar
as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Applicable Laws of general applicability
relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether at law or
in equity (collectively, the “Enforceability Exceptions”)).
(b) At
a meeting duly called and held, the Board of Directors has unanimously (i) determined that this Agreement, and the transactions contemplated
hereby are fair to and in the best interests of the Company and the Company’s stockholders, and declared it advisable to enter
into this Agreement and consummate the transactions contemplated hereby upon the terms and subject to the conditions set forth herein,
(ii) approved the execution and delivery of this Agreement by the Company, the performance by the Company of its covenants and other
obligations hereunder, and the consummation of the transactions contemplated hereby upon the terms and conditions set forth herein, (iii)
resolved to recommend that the Company’s stockholders adopt this Agreement in accordance with the DGCL and (iv) directed that the
adoption of this Agreement be submitted for consideration by the Company’s stockholders at a meeting thereof.
Section
4.03. Governmental Authorization. The execution, delivery and performance by the Company of this Agreement and the consummation
by the Company of the transactions contemplated hereby require no action by or in respect of, or filing by the Company with, any Governmental
Authority, other than (a) compliance with any applicable requirements of the HSR Act and any other applicable Competition Laws, (b) the
filing with the SEC of such reports and other filings under, and compliance with any applicable requirements of the 1933 Act, the 1934
Act and any other applicable securities laws (including filing, or causing to be filed, the Proxy Statement and the clearance thereof
by the SEC), (c) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware and appropriate documents
with the relevant authorities of the other jurisdictions in which the Company is qualified to do business, (d) compliance with the rules
and regulations of the NYSE and (e) any other actions or filings (i) required solely by reason of the participation of Parent or Merger
Sub (as opposed to any Third Party) in the transactions contemplated hereby or (ii) the absence of which would not prevent, materially
delay or materially impair the ability of the Company to consummate the transactions contemplated hereby.
Section
4.04. Non-Contravention. The execution, delivery and performance by the Company of this Agreement and, assuming compliance
with the matters referred to in Section 4.03 and, in the case of the consummation of the transactions contemplated hereby, receipt
of the Company Stockholder Approval, the consummation of the transactions contemplated hereby do not and will not (a) contravene, conflict
with, or result in any violation or breach of any provision of the organizational documents of the Company, (b) contravene, conflict
with or result in a violation or breach of any provision of any Applicable Law, (c) require any consent or other action by any Person
under, violate, conflict with, result in breach of, constitute a default (or an event that, with notice or lapse of time or both, would
become a default) under, or cause or permit the termination, acceleration of performance or cancellation of any agreement binding upon
the Company or any of its Subsidiaries or (d) result in the creation or imposition of any Lien on any properties, rights or asset of
the Company or any of its Subsidiaries, with only such exceptions, in the case of each of clauses (b) through (d), as would not prevent,
materially delay or materially impair the ability of the Company to consummate the transactions contemplated hereby.
Section
4.05. Capitalization. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of Class A common stock,
par value $0.01 per share (“Company Class A Common Shares”), 250,000,000 shares of Class B common stock, par value
$0.01 per share (“Company Class B Common Shares” and, together with Company Class A Common Shares, “Company
Common Shares”) and 250,000,000 shares of preferred stock, par value $0.01 per share (“Company Preferred Shares”).
As of November 21, 2024 (such date, the “Capitalization Date”), there were outstanding (i) 175,586,471 Company Class
A Common Shares, (ii) no Company Class B Common Shares, (iii) one Company Preferred Share, (iv) 1,197,410 Company Class A Common Shares
subject to outstanding Company RSUs, (v) 524,095 Company Class A Common Shares subject to outstanding Company PSUs (assuming target performance),
(vi) 174,259 Company Class A Common Shares subject to outstanding Company Options (vii) 5,444,302 Company Class A Common Shares outstanding
and available for issuance under the Company Stock Plan, (viii) 5,290,687 Company Class A Common Shares outstanding and available for
issuance under the Company ESPP and (ix) 31,519 Company Class A Common Shares subject to outstanding Company Warrants.
(b) As
of the date of this Agreement, there are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right
to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Common
Shares may vote.
(c) Except
as set forth in Section 4.05(a), as of the Capitalization
Date there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or ownership
interests in the Company, (ii) securities of the Company convertible into or exchangeable or exercisable for shares of capital stock
or other voting securities of or ownership interests in the Company, (iii) warrants, calls, options or other rights to acquire from the
Company, or other obligation of the Company to issue, any capital stock or other voting securities or ownership interests in or any securities
convertible into or exchangeable or exercisable for capital stock or other voting securities or ownership interests in the Company or
(iv) share options, restricted shares, restricted share units, share appreciation rights, “phantom” equity, profits interests,
contingent value rights, performance units or similar securities or rights issued by the Company that are derivative of, or provide economic
benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities or ownership interests of the
Company (the items in clauses (i) through (iv) being referred to collectively as the “Company Securities”).
(d) Except
pursuant to the Stockholder Agreement or the Registration Rights Agreement, there are no outstanding obligations of the Company or any
of its Subsidiaries to issue, transfer, exchange, register, repurchase, redeem or otherwise acquire or sell any of the Company Securities.
There are no accrued and unpaid dividends with respect to any outstanding shares of capital stock of the Company. Except pursuant to
the Stockholder Agreement or the Registration Rights Agreement, there are no (i) voting trusts, proxies or similar agreements, arrangements
or understandings to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound
with respect to the voting of any shares of capital stock of, or other equity or voting interest in, the Company or any of its Subsidiaries
or (ii) obligations or binding commitments of any character to which the Company or any of its Subsidiaries is a party or by which it
is bound (A) restricting the transfer of any shares of capital stock of, or other equity or voting interest in, the Company or any of
its Subsidiaries, (B) granting any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect
to any Company Securities, (C) relating to the voting, or requiring registration, of any Company Securities or (D) requiring the Company
or any of its Subsidiaries to make any payments based on the price or value of any Company Securities. None of (1) the shares of capital
stock of the Company or (2) Company Securities are owned by any Subsidiary of the Company.
Section
4.06. Subsidiaries. (a) Each Subsidiary of the Company has been duly formed, is validly existing and (where applicable) in
good standing under the laws of its jurisdiction of organization and has all organizational powers required to carry on its business
as now conducted and to own, lease or operate its respective properties, rights and assets, except for any failure to be so formed, existing
and in good standing or any failure to have such power or authority as has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect. Each such Subsidiary is duly qualified to do business as a foreign entity and
(where applicable) is in good standing in each jurisdiction where the properties, or assets owned, operated or leased by it or the conduct
of its business in such jurisdiction, as currently conducted, requires such qualification, except for those jurisdictions where failure
to be so qualified or in good standing has not had, and would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect. All “significant subsidiaries” (as defined in Rule 1-02(w) of Regulation S-X promulgated
by the SEC) of the Company and their respective jurisdictions of organizations as of the date hereof are identified in the Company’s
annual report on Form 10-K for the fiscal year ended December 30, 2023. There are no non-wholly owned Subsidiaries of the Company as
of the date hereof. None of the Subsidiaries of the Company is in material violation of its organizational documents.
(b) All
of the outstanding capital stock or other voting securities of, or ownership interests in, each Subsidiary of the Company is owned by
the Company, directly or indirectly, free and clear of any Liens (other than Permitted Liens). As of the date hereof, there are no issued,
reserved for issuance or outstanding (i) securities of the Company or any of its Subsidiaries convertible into, or exchangeable or exercisable
for, shares of capital stock or other voting securities of, or ownership interests in, any Subsidiary of the Company, (ii) warrants,
calls, options or other rights to acquire from the Company or any of its Subsidiaries, or other obligations of the Company or any of
its Subsidiaries to issue, any capital stock or other voting securities of, or ownership interests in, or any securities convertible
into, or exchangeable or exercisable for, any capital stock or other voting securities of, or ownership interests in, any Subsidiary
of the Company or (iii) share options, restricted shares, share appreciation rights, phantom equity, profits interests, performance units
or similar securities or rights issued by the Company or any of its Subsidiaries that are derivative of, or provide economic benefits
based, directly or indirectly, on the value or price of, any capital stock or other voting securities of, or ownership interests in,
any Subsidiary of the Company (the items in clauses (i) through
(iii) being referred to collectively as the “Company Subsidiary
Securities”). There are no outstanding obligations of the Company or any of its Subsidiaries to issue, transfer, exchange,
register, repurchase, redeem or otherwise acquire or sell any of the Company Subsidiary Securities. Except for the capital stock or other
voting securities of or equity or ownership interests in its Subsidiaries, the Company does not own, directly or indirectly, any capital
stock or other voting securities or ownership interests of any Person.
Section
4.07. SEC Filings; Internal Control. (a) Since January 1, 2022, the Company has filed with or furnished to the SEC on a timely
basis all reports, schedules, forms, statements, prospectuses, registration statements and other documents required to be filed with
or furnished to the SEC by the Company pursuant to Applicable Laws (collectively, together with any exhibits and schedules thereto and
other information incorporated therein, the “Company SEC Documents”).
(b) As
of its filing or furnishing date (or, if amended or superseded by a filing prior to the date hereof, as of the date of such amended or
superseded filing), each Company SEC Document complied, and each Company SEC Document filed or furnished subsequent to the date hereof
will when so filed or furnished comply, as to form in all material respects with the applicable requirements of the 1933 Act and the
1934 Act, as the case may be.
(c) As
of its filing or furnishing date (or, if amended or superseded by a filing prior to the date hereof, as of the date of such amended or
superseded filing), each Company SEC Document did not, and each Company SEC Document filed or furnished subsequent to the date hereof
will not, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not misleading.
(d) The
Company and each of its officers are in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act.
Since January 1, 2022, the Company has, in material compliance with Rule 13a-15 under the 1934 Act, (i) designed, established and maintained
disclosure controls and procedures to ensure that material information relating to the Company, including its consolidated Subsidiaries,
is timely recorded and made known to the management, including the chief executive officer and chief financial officer, of the Company
by others within those entities and (ii) designed, established and maintained internal controls over financial reporting (“Internal
Controls”), as defined in Section 13a-15 under the 1934 Act, to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in accordance with GAAP. Since January 1, 2022, neither the
Company nor, to the Knowledge of the Company, the Company’s independent auditors has identified or been made aware of significant
deficiencies or material weaknesses in the design or operation of the Company’s Internal Controls that are reasonably likely to
adversely affect the Company’s ability to record, process, summarize and report financial data and have identified for the Company’s
auditors any material weaknesses in Internal Controls. Since January 1, 2022, neither the Company nor, to the Knowledge of the Company,
the Company’s independent auditors have identified or been made aware of any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company’s Internal Controls, including management or other employees who
have a role in the preparation of financial statements or the internal control over financial reporting utilized by the Company and its
Subsidiaries. Since January 1, 2022, there has been no material complaint, allegation, assertion or claim, regarding deficiencies in
the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective
Internal Controls. Since January 1, 2022, no attorney representing the Company or any of its Subsidiaries, whether or not employed by
the Company or any of its Subsidiaries, has reported evidence of a violation of securities laws, breach of fiduciary duty or similar
material violation by the Company or any of its officers, directors, employees or agents to the Company’s chief legal officer,
audit committee (or other committee designated for the purpose) of the Board of Directors or the Board of Directors pursuant to the rules
adopted pursuant to Section 307 of the Sarbanes-Oxley Act or any Company policy contemplating such reporting, including in instances
not required by those rules.
(e) As
of the date hereof, none of the Company SEC Documents is the subject of any unresolved or outstanding SEC comment or, to the Knowledge
of the Company, the subject of ongoing SEC review.
(f) The
Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NYSE.
(g) Except
as permitted under the 1934 Act and disclosed in the Company SEC Documents, neither the Company nor any of its Affiliates has made, arranged
or modified any extensions of credit in the form of a personal loan to any executive officer of the Company or member of the Board of
Directors.
(h) No
Subsidiary of the Company is required to file, or files, any reports, schedules, forms, statements, prospectuses, registration statements
or other documents with the SEC.
Section
4.08. Financial Statements. The audited consolidated financial statements (including any related notes and schedules) and unaudited
consolidated interim financial statements (including any related notes and schedules) of the Company included or incorporated by reference
in the Company SEC Documents (a) were prepared in accordance with GAAP (except as may be indicated in the notes thereto or as otherwise
permitted by Form 10-Q with respect to any financial statements filed on Form 10-Q) and (b) fairly present in all material respects,
in conformity with GAAP applied on a consistent basis throughout the periods covered thereby (except as may be indicated in the notes
thereto), the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their consolidated
results of operations and cash flows for the periods then ended (subject to, in the case of any unaudited consolidated interim financial
statements, normal year-end audit adjustments and the absence of footnotes). There are no unconsolidated Subsidiaries of the Company
or any off-balance sheet arrangements (and neither the Company nor any Subsidiary of the Company has any commitment to become a party
to any off-balance sheet arrangement) of the type required to be disclosed pursuant to Item 303(a)(4) of Regulation S-K promulgated by
the SEC.
Section
4.09. Disclosure Documents. The Proxy Statement will, with respect to information regarding the Company, when filed, comply
as to form in all material respects with the applicable requirements of the 1934 Act. None of the information supplied or to be supplied
by or on behalf of the Company specifically for inclusion or incorporation by reference in the Proxy Statement will, at the date it (and
any amendments or supplements thereto) is first mailed to the stockholders of the Company and at the time of the Company Stockholders
Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation
or warranty is made by the Company with respect to statements made or incorporated by reference therein based on information supplied
by Parent or Merger Sub or any of their respective Representatives in writing specifically for use or incorporation by reference therein.
Section
4.10. Absence of Certain Changes. Since December 30, 2023 (the “Balance Sheet Date”) through the date of
this Agreement, (a) the business of the Company and its Subsidiaries has been conducted in the ordinary course in all material respects
and (b) there has not been any Effect that has had or would reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. Since the Balance Sheet Date through the date of this Agreement, there has not been any action taken by the
Company or any of its Subsidiaries that, if taken during the period from the date of this Agreement through the Effective Time without
Parent’s consent, would constitute a material breach of clauses (d), (e), (g), (j), (l), (n), (o) or (p) of Section 6.01.
Section
4.11. No Undisclosed Material Liabilities. There are no liabilities or obligations of the Company or any of its Subsidiaries
of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, other than: (a) liabilities or
obligations to the extent disclosed and provided for in the Company Balance Sheet (or notes thereto); (b) liabilities or obligations
to the extent incurred in the ordinary course of business since the Balance Sheet Date; (c) liabilities or obligations incurred in connection
with the transactions contemplated hereby; and (d) liabilities or obligations which has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect.
Section
4.12. Compliance with Laws; Permits. (a) Except as has not been, and would not reasonably be expected to be, material to the
Company and its Subsidiaries, taken as a whole, (i) the Company and each of its Subsidiaries are, and since January 1, 2021 have been,
in compliance with all Applicable Laws and (ii) neither the Company nor any of its Subsidiaries nor any of their respective assets is,
to the Knowledge of the Company, under investigation with respect to or has been threatened to be charged with or given notice of, nor
has any Governmental Authority notified the Company or any of its Subsidiaries in writing of its intent to conduct an investigation of,
any violation of any Applicable Law.
(b) Except
as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries,
taken as a whole, since January 1, 2021, (i) the Company and its Subsidiaries are in possession of, and in compliance with, all Permits
necessary for those entities for the ownership and operation of their respective businesses as now being conducted, under and pursuant
to Applicable Laws, (ii) all such Permits are in full force and effect and (iii) no suspension, cancellation, withdrawal or revocation
thereof is pending or threatened.
(c) The
Company and its directors, officers and each of its Subsidiaries, and, to the Knowledge of the Company, the directors and officers of
each such Subsidiary and the respective employees, consultants and agents of the Company and its Subsidiaries (in each case, to the extent
acting for or on behalf of the Company or any of its Subsidiaries), are and for the past five years have been in compliance with Anti-Corruption
Laws in all material respects and have not (i) used any corporate funds for unlawful contributions, gifts, entertainment or other expenses
related to political activity; (ii) made any unlawful payments to any government officials; or (iii) otherwise made any unlawful bribe,
rebate, payoff, influence payment, kickback or similar payment in violation of any applicable Anti-Corruption Law. The Company and each
of its Subsidiaries have adhered to a code of ethics with respect to compliance and internal controls that is reasonably designed to
ensure compliance with Anti-Corruption Laws.
(d) None
of the Company, its directors, officers or any of its Subsidiaries, or, to the Knowledge of the Company, the directors and officers of
each such Subsidiary and the respective employees, consultants and agents of the Company or its Subsidiaries (in each case, to the extent
acting for or on behalf of the Company or any of its Subsidiaries): is or has been for the past five years (i) a Sanctioned Person; (ii)
transacted business with or for the benefit of any Sanctioned Person or otherwise violated Sanctions; or (iii) violated any Ex-Im Law.
(e) Neither
the Company nor any of its Subsidiaries has been for the past five years the subject of any allegation or enforcement proceeding, nor
to the Knowledge of the Company, any inquiry or investigation, regarding any possible violation of applicable Anti-Corruption Laws, Ex-Im
Laws or Sanctions.
(f) As
of the date hereof, neither the Company nor any of its Subsidiaries has applied for and obtained any benefit, loan, right or amount under
the CARES Act or any other Applicable Law intended to address COVID-19 that would reasonably be expected to result in material restrictions
on the business of the Company and its Subsidiaries.
Section
4.13. Litigation. There is, and since January 1, 2021 has been, no (a) Proceeding pending, or, to the Knowledge of the Company,
threatened, against the Company or any of its Subsidiaries or any officer, director or employee of the Company or any of its Subsidiaries
in such capacity before any Governmental Authority or (b) Order outstanding against the Company or any of its Subsidiaries, in each case,
except as has not been, and would not reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole. As
of the date hereof, there is no Proceeding pending, or, to the Knowledge of the Company, threatened, against the Company and there is
no Order outstanding that in any manner seeks to prevent, enjoin or materially delay the Company’s ability to consummate the Merger
or any of the other transactions contemplated hereby.
Section
4.14. Properties. (a) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect, the Company and its Subsidiaries have good title to, or valid leasehold interests in, all property
and assets reflected on the Company Balance Sheet or acquired after the Balance Sheet Date, except as have been disposed of since the
Balance Sheet Date in the ordinary course of business.
(b) Section
4.14(b) of the Company Disclosure Schedule sets forth a true, correct and complete (in all material respects) list of all Owned Real
Property comprising each Material Site (“Material Owned Real Property”). Except as has not had, and would not reasonably
be expected to have, a Company Material Adverse Effect, the Company and its Subsidiaries have good and valid fee simple title to all
Material Owned Real Property, free and clear of all Liens other than Permitted Liens.
(c) Section
4.14(c) of the Company Disclosure Schedule sets forth a true, correct and complete (in all material respects) list, as of the date
of this Agreement, of all Leases of Real Property included in each Material Site (each, a “Material Lease”). The Company
has made available to Parent a true and complete copy of each such Material Lease. Except as has not had, and would not reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Material Lease is valid and in full force
and effect and no event has occurred that, with notice, lapse of time or both, would constitute a material default by the Company or
any of its Subsidiaries or, to the Company’s Knowledge, any other party under any Material Lease and (ii) neither the Company nor
any of its Subsidiaries, nor to the Company’s Knowledge any other party to a Material Lease, is in violation of any provision of
any Material Lease which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Material
Lease.
(d) None
of the Leased Real Property or Owned Real Property of the Company, other than the Material Sites, is material to the Company and its
Subsidiaries, taken as a whole.
Section
4.15. Intellectual Property. (a) Except as has not had, and would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect: (i) the conduct of the business of the Company and its Subsidiaries as currently conducted
does not currently infringe on, misappropriate or otherwise violate, and since January 1, 2022, the conduct of the Company and its Subsidiaries
has not infringed on, misappropriated or otherwise violated, the Intellectual Property rights of any Person, and (ii) there is no claim
or Proceeding pending or, to the Company’s Knowledge, threatened, against the Company or any of its Subsidiaries alleging any of
the foregoing.
(b) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i)
to the Knowledge of the Company, no Person is infringing, misappropriating or otherwise violating, or since January 1, 2022 has infringed,
misappropriated or otherwise violated the Company-Owned Intellectual Property, and neither the Company nor any of its Subsidiaries have
sent written notice or initiated any Proceeding alleging the same; and (ii) no Company-Owned Intellectual Property is subject to any
outstanding judgment, injunction, Order or decree restricting the use thereof by the Company or its Subsidiaries.
(c) Section
4.15(c) of the Company Disclosure Schedule sets forth a true and complete list, as of the date hereof, of all registrations and applications
for registration and Internet domain names for Company-Owned Intellectual Property (the “Company Registered Intellectual Property”).
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(i) none of the Company Registered Intellectual Property has been adjudged invalid or unenforceable in whole or in part; (ii) there is
no, and has not since January 1, 2022 been any, pending or, to the Company’s Knowledge, threatened Proceeding (A) challenging or
contesting the ownership, validity, registrability, scope or enforceability of any Company-Owned Intellectual Property or (B) brought
by the Company or one of its Subsidiaries and challenging or contesting the ownership, validity, registrability, scope or enforceability
of any Intellectual Property rights of any other Person; and (iii) all required filings and fees required to maintain the Company Registered
Intellectual Property have been filed and paid to the relevant Governmental Authority and authorized registrars.
(d) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect: (i)
either the Company or one of its Subsidiaries exclusively owns all right, title and interest in and to the Company-Owned Intellectual
Property; (ii) the Company and its Subsidiaries have valid rights to use all other Intellectual Property used in or necessary for the
conduct of the business of the Company and its Subsidiaries as currently conducted, in each case of clause (i) and clause (ii), free
and clear of any Liens (other than Permitted Liens); and (iii) the transactions contemplated hereby will not (A) impair any such ownership
or rights or (B) pursuant to any contract to which the Company or its Subsidiaries are a party, result in Parent or any of its Affiliates
granting any right to any Intellectual Property owned by, or licensed to, any of them.
(e) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the
Company and its Subsidiaries have taken and currently take reasonable steps in accordance with generally accepted industry practice to
protect, defend and enforce all Company-Owned Intellectual Property and to maintain the confidentiality of all trade secrets and other
confidential information held by the Company or any of its Subsidiaries. Except as has not had, and would not reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect, all current and former employees, contractors, consultants,
agents, and other individuals with access to any trade secrets or other material confidential information held by the Company or any
of its Subsidiaries have executed a valid and enforceable agreement (or are bound by comparable professional obligations of confidentiality)
providing for non-disclosure of such trade secrets and other confidential information.
(f) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, all
Persons who have developed any Intellectual Property on behalf of the Company or its Subsidiaries have done so pursuant to a valid and
enforceable agreement that assigns to the Company or one of its Subsidiaries any ownership right such Person may have in such Intellectual
Property. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, all material Company-Owned Intellectual Property was developed by (i) an employee of the Company or its Subsidiaries working
within the scope of his or her employment at the time of such development, or (ii) a contractor, consultant, agent, or other Person that
has executed an appropriate instrument of assignment in favor of the Company or one of its Subsidiaries as assignee that conveys to the
Company or one of its Subsidiaries ownership of all rights in the Company-Owned Intellectual Property.
(g) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the
Company and its Subsidiaries are in compliance with, and since January 1, 2022 have materially complied with, all applicable Data Security
Requirements and neither the Company nor any of its Subsidiaries has received any notice from any Governmental Authority alleging any
violation thereof. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect, since January 1, 2022, the Company and its Subsidiaries have used commercially reasonable efforts to implement and maintain
reasonable and appropriate technical and organizational safeguards designed to protect confidential, proprietary or sensitive information,
payment card data, personally identifiable information, or other protected information relating to individuals in their possession or
under their control against loss, theft, misuse or unauthorized access, use, modification, alteration, destruction or disclosure. Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, since
January 1, 2022, (i) the Company and its Subsidiaries have not experienced any incident in which confidential, proprietary or sensitive
information, payment card data, personally identifiable information, or other protected information relating to individuals was or may
have been stolen, misused, misappropriated or improperly accessed, including any breach of security, and (ii) there have been no disruptions,
failures of, or unauthorized access to or unauthorized use of the information technology systems, computers, computer systems and networks,
software, databases, servers, and communication systems, including all software and data stored on or contained therein or transmitted
thereby, owned or controlled by the Company and its Subsidiaries (the “Company IT Systems”) and the Company and its
Subsidiaries have not sent or received any written notices or written complaints from any Person with respect to either of the foregoing
clauses (i) and (ii).
(h) Except
as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries,
taken as a whole, the Company and its Subsidiaries own or have sufficient rights to use all Company IT Systems. Except as has not had,
and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company IT
Systems are sufficient for the conduct of the business of the Company and its Subsidiaries as currently conducted and (ii) the Company
and its Subsidiaries have used and currently use commercially reasonable efforts consistent with generally accepted industry practice
to protect the confidentiality, integrity and security of the Company IT Systems from any unauthorized use, access, interruption, or
modification and from any bugs, defects, “back doors,” “drop dead devices,” “time bombs,” “Trojan
horses,” “viruses,” “worms,” “spyware,” “malware” or any other disabling or malicious
code. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, the Company and each of its Subsidiaries uses commercially reasonable efforts to have in place adequate security, business continuity,
and disaster recovery plans and procedures, and acts in material compliance therewith.
Section
4.16. Taxes. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect:
(a) All
Tax Returns required by Applicable Law to be filed with any Taxing Authority by, or on behalf of, the Company or any of its Subsidiaries
have been filed when due in accordance with all Applicable Law (taking into account all extensions), and all such Tax Returns are true,
correct and complete.
(b) The
Company and each of its Subsidiaries has timely paid (or has had paid on its behalf) to the appropriate Taxing Authority all Taxes due
and payable. The Company and its Subsidiaries have deducted, withheld and timely paid to the appropriate Taxing Authority all material
Taxes required to be deducted, withheld or paid in connection with amounts paid or owing to any employee, former employee, independent
contractor, creditor, stockholder or other third party.
(c) There
is no Proceeding pending or, to the Company’s Knowledge, threatened against or with respect to the Company or its Subsidiaries
in respect of any Tax. No claim that remains outstanding has ever been made by a Taxing Authority in a jurisdiction where the Company
or any of its Subsidiaries does not file Tax Returns that the Company or any of its Subsidiaries is or may be subject to taxation by,
or required to file Tax Returns in, that jurisdiction.
(d) There
are no Liens on any of the assets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure)
to pay any Tax, other than Permitted Liens.
(e) With
respect to any tax years open for audit as of the date of this Agreement, neither the Company nor any of its Subsidiaries has granted
any waiver of any statute of limitations with respect to, or any extension of a period for the assessment of, any material Tax.
(f) No
Taxes that otherwise would have been required to be remitted or paid in connection with amounts paid by the Company or any of its Subsidiaries
to any employee or individual service provider have been deferred as permitted under the CARES Act and such Taxes have not yet been paid.
(g) Neither
the Company nor any of its Subsidiaries (i) has been a member of an affiliated, combined, consolidated, unitary or other group for Tax
purposes (other than any such group the common parent of which is or was the Company or any of its Subsidiaries), (ii) has any liability
for the Taxes of any Person (other than the Company or its Subsidiaries) under Treasury Regulations Section 1.1502-6 or any similar provision
of state, local or foreign Applicable Law or as a successor or transferee, (iii) is a party to or bound by any Tax sharing agreement,
Tax allocation agreement or Tax indemnity agreement or other similar arrangement (other than (A) any agreements not primarily related
to Tax, (B) any agreements among or between only the Company and any of its Subsidiaries, or (C) the Tax Receivable Agreement) or (iv)
has been either a “distributing corporation” or a “controlled corporation” in a transaction intended to be governed
(in whole or in part) by Section 355 (or so much of Section 356 as relates to Section 355) of the Code in the two-year period ending
on the date of this Agreement.
(h) Neither
the Company nor any of its Subsidiaries has participated in any “listed transactions” within the meaning of Treasury Regulations
Section 1.6011-4.
Notwithstanding
anything else in this Agreement to the contrary, the representations and warranties set forth in this Section 4.16 and those portions
of Section 4.17 that relate to Taxes are the only representations and warranties of the Company being made hereunder with respect
to Tax matters.
Section
4.17. Employee Benefit Plans. (a) Section 4.17(a) of the Company Disclosure Schedule contains a true and complete
list of each material Company Plan. For each such Company Plan, the Company has made available to Parent a current, accurate and complete
copy of such Company Plan and all amendments thereto (or a written summary in the case of an unwritten plan) and, to the extent applicable:
(i) any related trust agreement, insurance policy or other funding instrument and all amendments thereto, (ii) any summary plan description
or summary of material modifications, (iii) for the most recent plan year, the filed Form 5500 annual report (with applicable schedules
and attachments thereto); (iv) the most recent favorable determination letter from the IRS or opinion issued to the prototype sponsor
with respect to each such Company Plan intended to qualify under Section 401 of the Code; and (v) any material non-routine communication
with any Governmental Authority since January 1, 2022, including any such filings or applications to any Governmental Authority pursuant
to any amnesty or correction program.
(b) (i)
Each Company Plan has been established, maintained, operated, funded, invested and administered in accordance with its terms and in compliance
with ERISA, the Code and other Applicable Law, (ii) none of the Company or any Subsidiary has incurred, and, to the Knowledge of the
Company, no facts exist which reasonably could be expected to result in, any liability (direct or indirect, contingent or otherwise)
to the Company or any Subsidiary with respect to any Company Plan including any liability, tax, penalty or fee under ERISA, the Code
or any other Applicable Law (other than to pay premiums, contributions or benefits in the ordinary course consistent with the terms of
such plans) and (iii) there have been no prohibited transactions or breaches of any of the fiduciary duties imposed on “fiduciaries”
(within the meaning of Section 3(21) of ERISA) with respect to any of the Company Plans that has resulted, or would reasonably be expected
to result in, in any liability or excise Tax under ERISA or the Code being imposed on the Company or any of its Subsidiaries., except
in the case of clauses (i), (ii) and (iii) as has not been, and would not reasonably be expected to be, individually or in the aggregate,
material to the Company and its Subsidiaries, taken as a whole. Each Company Plan intended to be “qualified” under Section
401(a) of the Code is so qualified and the trusts maintained thereunder that are intended to be exempt from taxation under Section 501(a)
of the Code are so exempt; and each such Company Plan has received or is eligible to rely upon a favorable determination or opinion letter
from the IRS or has applied to the IRS for such a letter within the applicable remedial amendment period that the Company Plan is so
qualified and the trusts maintained thereunder are exempt from taxation under Section 501(a) of the Code; and, nothing has occurred,
and, to the Knowledge of the Company, no condition exists, that would reasonably be expected to cause the loss of such qualified status
of such Company Plan or result in the loss of qualified or tax-exempt status of each trust intended to qualify under Section 501(a) of
the Code.
(c) Each
Company Plan that is subject to Section 409A of the Code has been maintained in writing and operated in all material respects in compliance
with Section 409A of the Code and all applicable regulatory guidance (including notices, rulings, and proposed and final regulations).
The cancellation and payout of outstanding Company Equity Awards pursuant to Section 2.05 (a) through (c) complies with Section 409A
of the Code.
(d) There
is no pending or, to the Knowledge of the Company, threatened assessment, complaint, proceeding or investigation of any kind in any court,
by any Governmental Authority or otherwise with respect to any Company Plan (in each case, other than routine claims for benefits in
the ordinary course and consistent with the terms of the plan), in each case, except as has not been, and would not reasonably be expected
to be, individually or in the aggregate material to the Company and its Subsidiaries, taken as a whole.
(e) Neither
the execution of this Agreement nor the consummation of the transactions contemplated hereby will, either alone or in conjunction with
any other event, including termination of employment or other service, (i) other than with respect to the treatment of Company RSUs,
Company PSUs, Company Options and any rights under the Company ESPP in accordance with Section
2.05, entitle any Company Service Provider to any payment or benefit, or accelerate the time of payment, funding or vesting, or otherwise
increase the amount of, compensation due or payable or the level of benefits to be provided to any Company Service Provider under any
Company Plan or otherwise, (ii) limit the right to merge, amend or terminate any Company Plan (except any limitations imposed by Applicable
Law) or (iii) result in any Company Service Provider receiving any “excess parachute payment” (within the meaning of Section
280G of the Code) from the Company or its Subsidiaries (excluding the impact of any arrangements established by, adopted by or entered
into with Parent or any of its Affiliates).
(f) No
Company Plan requires any indemnity or gross up or contains any other obligation to reimburse any Company Employee for any Taxes imposed
under Section 4999 or 409A of the Code.
(g) Except
as set forth in Section 4.17(g) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries sponsors, maintains,
contributes to or has in the past six years sponsored, maintained, contributed to, or is required to sponsor, maintain or contribute
to, or has or is reasonably expected to have any liability or other obligation (contingent or otherwise), including as the result of
any ERISA Affiliate, with respect to, any (i) Pension Plan; (ii) plan or arrangement providing for post-employment health or life insurance
benefits or coverage, or other retiree welfare benefits, to any Person (other than as required under Part 6 of Subtitle B of Title I
of ERISA, Section 4980B of the Code, or any similar state Laws, at the sole expense of such Person and on an after-tax basis); (iii)
“multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA: or (iv) trust that is intended to meet
the requirements of Section 501(c)(9) of the Code.
(h) With
respect to each Company Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code (other than a “multiemployer
plan” within the meaning of Section 3(37) or 4001(a)(3) of ERISA (a “Multiemployer Plan”)): (i) there has not
been any failure to satisfy the minimum funding rules under Section 412 of the Code or Section 302 of ERISA for any plan year, (ii) no
reportable event within the meaning of Section 4043(c) of ERISA has occurred; (iii) no event has occurred or circumstances exist that
would be reasonably expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Company Plan; (iv) no amendment has been made or is reasonably expected to be made, to any Company Plan that has required
or could require the provision of security under Section 307 of ERISA or Section 401(a)(29) of the Code; and (v) all premiums to the
PBGC have been timely paid in full, except in the case of clauses (i) through (v) as has not been, and would not reasonably be expected
to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. All liabilities of the Company
and its Subsidiaries in connection with the termination of any such employee pension benefit plan that was sponsored, maintained, or
contributed to by the Company, any of its Subsidiaries or any ERISA Affiliate at any time within the past six years have been fully satisfied.
(i) Each
Company Plan that is a “pension plan” within the meaning of Section 3(2) of ERISA but is not qualified under Code Section
401(a) is exempt from Parts 2, 3 and 4 of Title I of ERISA is an unfunded plan within the meaning under ERISA that is maintained primarily
for the purpose of providing deferred compensation for a select group of management or highly compensated employees, pursuant to Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA, and the Company has made the one-time filing with the Department of Labor with respect to each
such plan on a timely basis. No assets of any Company Plan are allocated to or held in a “rabbi trust” or similar funding
vehicle and the transactions contemplated by this Agreement will not cause or require the Company or any of its Subsidiaries to establish
or make any contribution to a rabbi trust or similar funding vehicle.
(j) With
respect to each Company Plan that is a Multiemployer Plan, (i) neither the Company, any of its Subsidiaries nor their ERISA Affiliates
has incurred any withdrawal liability under Title IV of ERISA that remains unsatisfied and (ii) no such Company Plan has an “accumulated
funding deficiency” within the meaning of Section 302 of ERISA; is in “endangered status” or “critical status;”
is a party to a rehabilitation plan; or is in reorganization or insolvent (as those terms are defined in ERISA).
Section
4.18. Employee and Labor Matters. (a) Except as set forth on Section 4.18(a) of the Company Disclosure Schedule, neither
the Company nor any of its Subsidiaries is a party to, bound by, or subject to any collective bargaining agreement or other contract
with any labor union or other labor organization (each, a “CBA”). Except as is not, and would not reasonably be material
to the Company and its subsidiaries taken as a whole (i) since January 1, 2022, no labor union, other labor organization, or group of
Company Employees has made a written demand to the Company for recognition or certification, (ii) to the Knowledge of the Company, since
January 1, 2022, there have been no labor organizing activities with respect to any Company Employees and no such activities have been
threatened, (iii) (A) since January 1, 2022, there have been no unfair labor practice charges, labor grievances, labor arbitrations,
strikes, lockouts, work stoppages, slowdowns, picketing, hand billing or other labor disputes against the Company or its Subsidiaries,
and (B) there is no unfair labor practice charge, labor grievance, labor arbitration, strike, lockout, work stoppage, slowdown, picketing,
hand billing or other labor dispute pending as of the date hereof, or to the Knowledge of the Company, threatened, against the Company
or any of its Subsidiaries.
(b) Except
as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries,
taken as a whole, the Company and its Subsidiaries are, and since January 1, 2022 have been, in compliance with all Applicable Laws respecting
labor, employment and employment practices, including, but not limited to, Applicable Laws related to terms and conditions of employment,
wages and hours, overtime, meal, and rest breaks, employment discrimination, harassment, and retaliation, employee whistle-blowing, reasonable
accommodation, employee and independent contractor classification, labor practices, plant closures or layoffs, unemployment insurance,
workers’ compensation, family and medical and other leaves of absence, privacy, background checks, drug or alcohol testing, affirmative
action, immigration and occupational safety and health requirements.
(c) There
are no currently pending, or to the Knowledge of the Company, threatened, employment-related Proceedings against the Company or its Subsidiaries
based on, arising out of, in connection with, or otherwise relating to the employment, application for employment, or termination of
any Service Provider by the Company or its Subsidiaries, and no such Proceedings have been brought since January 1, 2022, in each case,
except as has not been, and would not reasonably be expected to be, material to the Company and its Subsidiaries, taken as a whole.
Section
4.19. Environmental Matters. Except as has not had, and would not reasonably be expected to have, a Company Material Adverse
Effect:
(a) there
are no judicial, administrative or other Proceedings pending or, to the Company’s Knowledge, threatened which allege a violation
by, or liability of, the Company or any of its Subsidiaries under any Environmental Laws, and there is no administrative or judicial
Order of any Governmental Authority pursuant to any Environmental Laws outstanding against the Company or any of its Subsidiaries;
(b) the
Company and each of its Subsidiaries have all Permits necessary for their operations as currently conducted to comply with all applicable
Environmental Laws and are in compliance with the terms of such Permits;
(c) the
operations of the Company and each of its Subsidiaries are in compliance with all applicable Environmental Laws;
(d) neither
the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any other Person to the extent giving rise to liability
for the Company or any of its Subsidiaries, has released or disposed of any Hazardous Substance on or under real property currently or,
to the Knowledge of the Company, formerly owned, leased or operated, by the Company or any of its Subsidiaries, or, to the Knowledge
of the Company, any other location where Hazardous Substances generated by the Company or any of its Subsidiaries have been disposed,
in quantities or concentrations that require investigation, remediation or monitoring by the Company or any of its Subsidiaries pursuant
to any Environmental Law;
(e) neither
the Company nor any of its Subsidiaries has received any written request for information pursuant to section 104(e) of the Comprehensive
Environmental Response, Compensation and Liability Act or similar state statute, concerning any release or threatened release of Hazardous
Substances at any location except, with respect to any such request for information concerning any such release or threatened release,
to the extent such matter has been resolved with the appropriate foreign, federal, state or local regulatory authority or otherwise;
and
(f) the
Company has delivered or otherwise made available for inspection to Parent true, complete and correct copies of any material reports,
investigations, audits, assessments (including Phase I environmental site assessments and Phase II environmental site assessments), studies,
analyses, tests or monitoring in the possession of the Company or any of its Subsidiaries pertaining to: (i) any unresolved liabilities
of the Company or any of its Subsidiaries under Environmental Law; (ii) any releases or disposal of Hazardous Substances by the Company
or any of its Subsidiaries or to the extent giving rise to liability for the Company or any of its Subsidiaries in, on, or beneath any
property currently or formerly owned, operated or leased by the Company or any of its Subsidiaries; or (iii) the Company’s or any
of its Subsidiaries’ noncompliance with applicable Environmental Laws, in each case to the extent prepared since January 1, 2022.
Section
4.20. Material Contracts. (a) Section 4.20(a) of the Company Disclosure Schedule contains an accurate and complete list
of each contract described below in this Section 4.20(a) (other than a Company Plan or, only for purposes of Section 4.20(a)(i),
Section 4.20(a)(ii) and Section 4.20(a)(iii), purchase orders or invoices entered into in the ordinary course of business
substantially consistent with the form listed in Section 4.20(a)(i) or Section 4.20(a)(ii) of the Company Disclosure Schedule)
to which the Company or any of its Subsidiaries is a party as of the date hereof (together with any contract of the type described in
clauses (i) through (xvii) of this Section 4.20(a) entered into after the date of this Agreement and prior to the Closing Date)
(each contract of a type described in this Section 4.20(a), a “Material Contract”):
(i) any
contract with a top 20 customer (determined on the basis of the aggregate revenues recognized by the Company and its Subsidiaries during
calendar year 2023 through the date hereof);
(ii) any
contract with a top 20 vendor or supplier of goods, services or other assets (determined on the basis of the aggregate dollar volume
of purchases made by the Company and its Subsidiaries during calendar year 2023 through the date hereof);
(iii) any
contract that is not a lease for real property and that both (A) requires or is reasonably likely to require the payment or delivery
of cash or other consideration by or to the Company or any of its Subsidiaries after the date hereof in an amount having an expected
value in excess of $30,000,000 and (B) cannot be cancelled by the Company or any of its Subsidiaries without penalty or further payment
(other than liabilities incurred prior to the time of termination) without more than 90 days’ notice (for avoidance of doubt, excluding
the Tax Receivable Agreement);
(iv) any
contract relating to the acquisition or disposition of any material securities, assets or businesses or exclusive licensing agreement
(whether by merger, purchase of stock, purchase of assets or otherwise) that contains any material outstanding non-competition, earn-out
or other contingent payment obligations of the Company or any of its Subsidiaries that would reasonably be expected to result in the
Company’s or any of its Subsidiaries’ receipt or making of future payments in excess of $15,000,000;
(v) any
contract (other than agreements with employees, contractors, consultants, agents or other Persons entered into in the ordinary course
of business) for the development of any material Intellectual Property for the benefit of Company or its Subsidiaries;
(vi) any
contract involving the licensing of or other grant of rights in material Intellectual Property (excluding, in each case, (A) licenses
for unmodified, commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms with an aggregate
annual license fee of less than $1,000,000 and (B) non-exclusive licenses granted by the Company or any of its Subsidiaries in the ordinary
course of business);
(vii) any
contract under which the Company or any of its Subsidiaries (A) is lessee of, or holds or operates, any personal property owned by any
other Person, for which the annual rent exceeds $2,000,000 and (B) cannot cancel without penalty or further payment (other than liabilities
incurred prior to the time of termination) without more than 90 days’ notice;
(viii) any
contract that expressly prohibits the payment of dividends or distributions in respect of the capital stock or voting or equity securities
of the Company or any of its Subsidiaries, or prohibits the pledging of the capital stock or voting or equity securities or other equity
interests of the Company or any of its Subsidiaries or the issuance of any guaranty by the Company or any of its Subsidiaries;
(ix) any
contract with any Affiliate, director, officer (as such term is defined in the 1934 Act), holder of 1% or more of the shares of capital
stock of the Company or, to the Knowledge of the Company, any of their respective Affiliates (other than the Company or its Subsidiaries)
or immediate family members (other than (A) any indemnity under the certificate of incorporation and bylaws or other organizational documents
of the Company and its Subsidiaries and (B) the Tax Receivable Agreement) that is required to be disclosed pursuant to Item 404 of Regulation
S-K promulgated by the SEC in the Form 10-K or proxy statement pertaining to an annual meeting of stockholders;
(x) any
contract that (A) limits in any material respect the freedom of the Company or any of its Subsidiaries to compete in any line of business
or geographic region, or offer or sell any products, assets or services, with or to any Person, or (B) expressly contains any material
“most favored nation” provision, exclusive dealing arrangement or arrangement that grants any right of first refusal, first
offer, first negotiation or similar preferential right to any other Person, in the case of this clause (B), to the extent such contract
contributed, or, in the event not a contract of the Company or any of its Subsidiaries for the duration of such fiscal year, would reasonably
have been expected to contribute, individually, more than $10,000,000 to the revenue of the Company or any of its Subsidiaries for the
fiscal year ended December 30, 2023;
(xi) any
partnership, joint venture, joint development, strategic alliance or other similar contract that is material to the Company and its Subsidiaries,
taken as a whole;
(xii) any
contract relating to outstanding indebtedness of the Company or the Subsidiaries of the Company, including any indenture, loan or credit
agreement, or indebtedness in connection with any settlement facilities or lines of credit or any financial guaranty or credit support,
indemnification, assumption or endorsement thereof (in each case whether incurred, assumed, guaranteed or secured by any asset), in each
case, in the principal amount of $3,000,000 or more (including any related security or pledge agreements), other than (A) the Tax Receivable
Agreement, (B) contracts among the Company and its wholly owned Subsidiaries and (C) contracts relating solely to any construction bond
that are entered into in the ordinary course of business;
(xiii) any
contract requiring contributions of capital, capital expenditures or the acquisition or construction of fixed assets in excess of $15,000,000
in the next 12 months (excluding contributions made to the Company by its Subsidiaries);
(xiv) any
contract that is a CBA or other contract with any labor union, organization or association;
(xv) any
contract providing for the settlement of any Proceeding asserted by any Person (including a Governmental Authority) (A) involving payment
by the Company or any of its Subsidiaries after the date hereof in excess of $5,000,000 or (B) that imposes continuing requirements,
obligations, liabilities or restrictions after the date hereof that are material to the Company and its Subsidiaries, taken as a whole;
(xvi) any
other contract, arrangement, commitment or understanding that is a “material contract” (as such term is defined in Item 601(b)(10)
of Regulation S-K promulgated by the SEC) (excluding any Company Plan); and
(xvii) any
other contract that commits the Company or any of its Subsidiaries to enter into any contracts of the types described in foregoing clauses
(i) through (xvi).
(b) The
Company has made available to Parent an accurate and complete copy of each Material Contract as in effect as of the date hereof. Except
for breaches, violations or defaults which has not had, and would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect, as of the date hereof, (i) each Material Contract is valid and in full force and effect and (ii) neither
the Company nor any of its Subsidiaries, nor to the Company’s Knowledge any other party to a Material Contract, is in breach or
default of any provision of, or taken or failed to take any act which, with or without notice, lapse of time or both, would constitute
a default under the provisions of such Material Contract, and, except as has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has received written notice that
it has breached, violated or defaulted under any Material Contract.
Section
4.21. Insurance. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect, (i) the Company and its Subsidiaries maintain insurance in such amounts and against such risks and with such
carriers as the Company reasonably has determined to be prudent, taking into account the industries in which the Company and its Subsidiaries
operate and as is sufficient to comply with Applicable Law, (ii) all insurance policies of the Company and its Subsidiaries are in full
force and effect, except for any expiration thereof in accordance with the terms thereof and the limits and sub limits of such policies
have not been exhausted or materially diminished, (iii) all premiums payable under all such policies have been timely paid, the Company
and its Subsidiaries are in compliance with all other terms and conditions (including any notification requirements) of all such policies
and neither the Company nor any of its Subsidiaries is in breach of, or default under, any such insurance policy and (iv) no written
notice of cancellation or termination or premium increase has been received with respect to any such insurance policy.
Section
4.22. Products. (a) Except as has not had, and would not reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect, the products designed, produced or distributed by the Company do not suffer from any defects that
give rise to or would reasonably be likely to give rise to any product liability or warranty claims.
(b) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, since
January 1, 2022, (i) no product designed, produced or distributed by the Company has been the subject of any recall or warranty claim,
(ii) the Company has not received any written notice alleging material defects in any such product and (iii) to the Company’s Knowledge,
none of its customers have terminated or threatened in writing to terminate the distribution or sale of any such product based on any
such defects or recalled, or issued a product warning with respect to, any such product.
Section
4.23. Finders’ Fees. Except for Morgan Stanley & Co. LLC and Evercore Group L.L.C., there is no investment banker,
financial advisor, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of the Company or
any of its Subsidiaries who might be entitled to any material fee or commission from the Company or any of its Affiliates in connection
with the transactions contemplated by this Agreement.
Section
4.24. Opinions of Financial Advisors. The Company has received the opinion of Morgan Stanley & Co. LLC, financial advisor
to the Company, to the effect that, as of the date of such opinion, and based upon and subject to the qualifications, assumptions and
limitations set forth therein, the Merger Consideration to be received by the holders of Company Common Shares in the Merger is fair
to such holders from a financial point of view. The Company has received the opinion of Evercore Group L.L.C., financial advisor to the
Company, to the effect that, as of the date of such opinion, and based upon and subject to the qualifications, assumptions and limitations
set forth therein, the Merger Consideration to be received by holders of the Company Common Shares in the Merger is fair, from a financial
point of view, to such holders other than Parent or any Subsidiary of Parent, the Company or any Subsidiary of the Company, or holders
of the Dissenting Company Shares.
Section
4.25. Antitakeover Statutes. The Company has taken all necessary actions so that the restrictions on business combinations
set forth in Section 203 of the DGCL and any other similar applicable “anti-takeover” law will not be applicable to the Merger.
Section
4.26. Affiliate Transactions. Except for directors’ and employment-related contracts filed or incorporated by reference
as an exhibit to a Company SEC Document filed by the Company prior to the date hereof and for any intercompany agreements, as of the
date of this Agreement, neither any executive officer or director of the Company nor any Principal Stockholder or its Affiliates (other
than the Company and its Subsidiaries) is a party to any contract with or binding upon the Company or any of its Subsidiaries or any
of their respective properties or assets or has any material interest in any material property owned by the Company or any of its Subsidiaries
or has engaged in any material transaction with any of the foregoing within the last 12 months, in each case, that would be required
to be disclosed under Item 404 of Regulation S-K under the 1933 Act and that have not been disclosed in the Company SEC Documents.
Section
4.27. Acknowledgement of No Other Representations and Warranties. Except for the representations and warranties set forth in
Article 5, in any certificate delivered pursuant to this Agreement, the Company acknowledges and agrees that no representation
or warranty of any kind whatsoever, express or implied, at law or in equity, is made or shall be deemed to have been made by or on behalf
of Parent or Merger Sub to the Company, and the Company hereby disclaims reliance on any such other representation or warranty, whether
by or on behalf of Parent or Merger Sub, and notwithstanding the delivery or disclosure to the Company, or any of its Representatives
or Affiliates, of any documentation or other information by Parent, Merger Sub or any of their respective Representatives or Affiliates
with respect to any one or more of the foregoing.
Article
5
Representations
and Warranties of Parent and Merger Sub
Subject
to Section 11.05, except to the extent set forth in the Parent
Disclosure Schedule, Parent represents and warrants to the Company that:
Section
5.01. Corporate Existence and Power. Each of Parent and Merger Sub (a) is a limited liability company or corporation, as applicable,
duly formed or incorporated, as applicable, validly existing and in good standing under the laws of its jurisdiction of formation or
incorporation and (b) has all limited liability company or corporate powers required to carry on its business as now conducted, except
in the case of this clause (b) where the failure to have such power or authority has not had, and would not reasonably be expected to
have, individually or in the aggregate, a Parent Material Adverse Effect. Since the date of its incorporation, Merger Sub has not engaged
in any activities other than in connection with or as contemplated by this Agreement. Merger Sub was incorporated solely for the purpose
of consummating the transactions contemplated by this Agreement. All of the outstanding shares of capital stock of Merger Sub have been
validly issued, are fully paid and nonassessable and are indirectly owned by, and at the Effective Time will be indirectly owned by,
Parent, free and clear of all Liens, excluding restrictions on transfer arising under applicable securities laws.
Section
5.02. Corporate Authorization. The execution, delivery and performance by each of Parent and Merger Sub of this Agreement and
the consummation by Parent and Merger Sub of the transactions contemplated hereby are within the limited liability company or corporate,
as applicable, powers of each of Parent and Merger Sub and have been duly authorized by all necessary limited liability company or corporate,
as applicable, action on the part of each of Parent and Merger Sub, and no vote of the members of Parent is necessary to authorize the
execution, delivery or performance of this Agreement. Each of Parent and Merger Sub has duly executed and delivered this Agreement, and,
assuming due authorization, execution and delivery by the Company, this Agreement constitutes a valid and binding agreement of each of
Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms (except insofar as such enforceability
may be limited by the Enforceability Exceptions).
Section
5.03. Governmental Authorization. The execution, delivery and performance by each of Parent and Merger Sub of this Agreement
and the consummation by each of Parent and Merger Sub of the transactions contemplated hereby require no action by or in respect of,
or filing by Parent or Merger Sub with, any Governmental Authority, other than (a) compliance with any applicable requirements of the
HSR Act and any other applicable Competition Laws, (b) compliance with any applicable requirements of the 1933 Act, the 1934 Act and
any other applicable securities laws, (c) compliance with the rules and regulations of the NYSE, (d) the filing of the Certificate of
Merger with the Secretary of State of the State of Delaware and appropriate documents with the relevant authorities of the other jurisdictions
in which Merger Sub is qualified to do business and (e) any other actions or filings (i) required solely by reason of the participation
of the Company (as opposed to any Third Party) in the transactions contemplated hereby or (ii) the absence of which has not had, and
would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Section
5.04. Non-Contravention. The execution, delivery and performance by each of Parent and Merger Sub of this Agreement and, assuming
compliance with the matters referred to in Section 5.03, the consummation of the transactions contemplated hereby do not and will
not (a) contravene, conflict with, or result in any violation or breach of any provision of the organizational documents of Parent or
Merger Sub, (b) contravene, conflict with or result in a violation or breach of any provision of any Applicable Law, (c) require any
consent or other action by any Person under, violate, conflict with, result in breach of, constitute a default (or an event that, with
notice or lapse of time or both, would become a default) under, or cause or permit the termination, acceleration of performance or cancellation
of any agreement binding upon Parent or Merger Sub or any of their respective Subsidiaries or (d) result in the creation or imposition
of any Lien on any properties, rights or asset of Parent or Merger Sub or any of their respective Subsidiaries, with only such exceptions,
in the case of each of clauses (b) through (d), as has not had, and would not reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect.
Section
5.05. Disclosure Documents. None of the information supplied or to be supplied by or on behalf of Parent specifically for inclusion
or incorporation by reference in the Proxy Statement will, at the date it (and any amendments or supplements thereto) is first mailed
to the stockholders of the Company and at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent with respect to
statements made or incorporated by reference therein based on information supplied by the Company or any of its Representatives in writing
specifically for use or incorporation by reference therein.
Section
5.06. Compliance with Laws. Parent and each of its Subsidiaries are,
and since January 1, 2023 have been, in compliance with all Applicable Laws, except for failure to comply or violations that would not
reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Section
5.07. Litigation. As of the date hereof, there is no Proceeding pending, or to the Knowledge of Parent, threatened, against
Parent and there is no Order outstanding that in any manner seeks to prevent, enjoin, materially impair or materially delay Parent’s
or Merger Sub’s ability to consummate the Merger or any of the other transactions contemplated hereby.
Section
5.08. Finders’ Fees. Except for Wells Fargo Bank, N.A., there is no investment banker, financial advisor, broker, finder
or other intermediary that has been retained by or is authorized to act on behalf of Parent or any of its Subsidiaries who might be entitled
to any fee or commission from Parent or any of its Affiliates in connection with the transactions contemplated by this Agreement.
Section
5.09. Financing. (a) Parent has delivered to the Company a true, complete and fully executed copy of a debt commitment letter,
dated as of the date of this Agreement (including all related exhibits, schedules, annexes, supplements and term sheets thereto, and
including any fee letter as described below and redacted in accordance with Section 5.09(c), as each of the foregoing may be amended,
supplemented, replaced, substituted, terminated or otherwise modified or waived from time to time after the date hereof in compliance
with Section 6.06, the “Debt Commitment Letter”), from the Debt Financing Sources party thereto confirming
their respective commitments to provide Parent with debt financing, subject to the terms and conditions thereof, in connection with the
transactions contemplated hereby in the amount set forth therein (the “Debt Financing”) (which may include up to $6,700,000,000
in bridge financing (the “Bridge Financing”) to be utilized in the event the placement of bonds in a comparable amount
(the “Bond Financing”) is not consummated).
(b) The
Debt Commitment Letter is in full force and effect and is a valid and binding obligation of Parent and, to the knowledge of Parent, the
other parties thereto, enforceable against Parent and, to the knowledge of Parent, the other parties thereto in accordance with its terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’
rights generally and general principles of equity). As of the date hereof, the Debt Commitment Letter has not been amended or modified,
the respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded or otherwise modified, and to the
knowledge of Parent no such amendment, modification, withdrawal or rescission of the Debt Commitment Letter is currently contemplated
or the subject of current discussions (other than amendments to the Debt Commitment Letter to add additional lenders, arrangers and agents
or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto). As of the date
hereof, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute
a default or breach on the part of Parent, Merger Sub or any of their respective Affiliates or, to the knowledge of Parent, any other
Person, under the Debt Commitment Letter. All fees (if any) required to be paid under the Debt Commitment Letter on or prior to the date
hereof have been paid in full.
(c) There
are no conditions precedent directly or indirectly related to the funding of the full amount of the Debt Financing other than as expressly
set forth in the Debt Commitment Letter. Other than the Debt Commitment Letter, there are no other contracts, arrangements or understandings
entered into by Parent or any Affiliate thereof related to the funding or investing, as applicable, of the Debt Financing (except for
(i) customary fee letters relating to the commitments in the Debt Commitment Letter, a true, complete and fully executed copy of each
of which has been provided to the Company, with only the fee amounts, “market flex,” pricing terms, pricing caps and other
commercially sensitive terms redacted; provided that Parent represents and warrants that the market flex provisions in such fee letter
do not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) and (ii) customary engagement
letters or non-disclosure agreements which do not impact the conditionality or amount of the Debt Financing). As of the date hereof,
assuming the satisfaction of the conditions to Parent’s obligation to consummate the Merger, Parent has no reason to believe that
any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing will not be available to Parent on the Closing
Date in an amount sufficient to enable Parent and Merger Sub to (A) satisfy all of their obligations required to be satisfied by them
under this Agreement at the Closing, (B) consummate the transactions contemplated by this Agreement, including the payment of the Merger
Consideration and all other amounts required to be paid at the Closing pursuant to this Agreement, (C) repay, prepay or discharge (after
giving effect to the Merger) the principal of, and interest on, outstanding indebtedness for borrowed money of the Company and its Subsidiaries
(other than any such indebtedness as is permitted to remain outstanding pursuant to the terms of such Debt Financing) and (D) pay all
fees and expenses in connection therewith required to be paid by it at the Closing (collectively, the “Required Funds”).
(d) Assuming
the Debt Financing is funded on the Closing Date in accordance with the Debt Commitment Letter and the Closing is consummated in accordance
with the terms of this Agreement following satisfaction of the conditions precedent thereto, the aggregate proceeds of the Debt Financing
(after giving effect to any market flex provisions), together with any cash on hand, available lines of credit and other sources of immediately
available funds, will be in an amount not less than the Required Funds. Parent acknowledges and agrees that the availability of funds
(including the Debt Financing) will not be a condition to the obligation of Parent or Merger Sub to consummate the transactions contemplated
hereby.
Section
5.10. Solvency. Assuming (a) the satisfaction of the conditions to Parent’s obligation to consummate the Merger, (b)
the accuracy of the representations and warranties set forth in Article 4 in all material respects and (c) the Company and its
Subsidiaries, on a consolidated basis, are Solvent immediately prior to the Effective Time, after giving effect to the transactions contemplated
by this Agreement (including the payment of the aggregate Merger Consideration and the payment of all related fees and expenses), the
Surviving Corporation on a consolidated basis will be Solvent as of the Effective Time and immediately after the consummation of the
transactions contemplated hereby. For purposes of this Agreement, “Solvent” when used with respect to any Person,
means that as of any date of determination (i) the fair value of the assets of such Person and its Subsidiaries on a consolidated basis,
at a fair valuation, will exceed the debts and liabilities, contingent, subordinated or otherwise, of such Person and its Subsidiaries
on a consolidated basis, (ii) the present fair salable value of the property of such Person and its Subsidiaries on a consolidated basis
will be greater than the amount that will be required to pay the probable liability of such Person and its Subsidiaries on a consolidated
basis on their debts and liabilities as they become absolute and matured, (iii) such Person and its Subsidiaries on a consolidated basis
will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as they become absolute and matured and become
due in the usual course of their affairs and (iv) such Person and its Subsidiaries on a consolidated basis will not have unreasonably
small capital with which to conduct the business in which they are engaged as such businesses are now conducted and proposed to be conducted
following the Closing Date.
Section
5.11. Ownership of Common Shares. Neither Parent nor Merger Sub nor any of their respective Affiliates or “associates”
is the beneficial owner (within the meaning of Section 13 of the 1934 Act and the rules and regulations promulgated thereunder) of any
Company Common Shares or other Company Securities, or is a party to any agreement, arrangement or understanding (other than this Agreement)
for the purpose of acquiring, holding, voting, directing the voting of or disposing of any Company Common Shares or other Company Securities.
Neither Parent nor Merger Sub nor any of their respective Affiliates or “associates” is, or has been within the past three
(3) years, an “associate” of the Company. For purposes of this Section 5.11, the term “associate” shall
have the meaning ascribed to it in Rule 12b-2 of the 1934 Act.
Section
5.12. Acknowledgement of No Other Representations and Warranties. Except for the representations and warranties set forth in
Article 4, in any certificate delivered pursuant to this Agreement, each of Parent and Merger Sub acknowledges and agrees
that no representation or warranty of any kind whatsoever, express or implied, at law or in equity, is made or shall be deemed to have
been made by or on behalf of the Company to Parent or Merger Sub, and each of Parent and Merger Sub hereby disclaims reliance on any
such other representation or warranty, whether by or on behalf of the Company, and notwithstanding the delivery or disclosure to Parent
or Merger Sub, or any of their respective Representatives or Affiliates, of any documentation or other information by the Company or
any of their respective Representatives or Affiliates with respect to any one or more of the foregoing.
Article
6
Covenants
of the Company
Section
6.01. Conduct of the Company. Except (w) with the prior written consent of Parent (which consent shall not be unreasonably
withheld, conditioned or delayed), (x) as required or expressly contemplated or permitted by this Agreement, (y) as set forth in Section
6.01 of the Company Disclosure Schedule or (z) as required by Applicable Law, from the date hereof until the Effective Time, the
Company shall, and shall cause each of its Subsidiaries to, (i) use reasonable best efforts to (A) conduct its business in accordance
with Applicable Law and in the ordinary course of business and (B) preserve intact in all material respects its current business operations,
organization, ongoing businesses, license, permits and material business relationships with third parties, including vendors, suppliers,
customers, partners and Governmental Authorities and maintaining in full force and effect its insurance policies (including, for the
avoidance of doubt, paying all premiums thereon and renewing or replacing such insurance policies on or prior to their expiration), in
each case, consistent with past practice or customs in the industries in which the Company and its Subsidiaries conduct business (provided
that, in the case of the foregoing clause (i), no action with respect to the matters addressed by any subclause of the following
clause (ii) shall constitute a breach of clause (i) unless any such action would constitute a breach of such subclause of the following
clause (ii)) and (ii) not:
(a) amend
its certificate of incorporation, bylaws or other similar organizational documents of the Company or any of its Subsidiaries, other than
immaterial amendments to the organizational documents of the Company’s Subsidiaries that would not prevent, materially delay or
materially impair the Merger or the other transactions contemplated by this Agreement;
(b) (i)
adjust, split, combine, subdivide or reclassify any shares of its capital stock, (ii) declare, set aside, make or pay any dividend or
other distribution (whether in cash, shares or property or any combination thereof) in respect of its capital stock, except for dividends
or other such distributions by any of its wholly owned Subsidiaries to the Company or to other Subsidiaries of the Company or (iii) redeem,
repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary
Securities, except as required by the terms of any Company Plan;
(c) (i)
issue, deliver or sell, or authorize the issuance, delivery or sale of, any Company Securities or Company Subsidiary Securities, other
than (A) the issuance of any shares of Company Class A Common Shares upon the settlement or exercise (as applicable) of Company RSUs,
Company PSUs, Company Options or Company Warrants, in each case, outstanding on the date of this Agreement (or issued after the date
hereof in accordance with the terms of this Agreement, other than Company PSUs) in accordance with their terms, (B) subject to Section
2.05(d), the issuance of shares of Company Class A Common Shares upon the exercise of the rights under the Company ESPP in accordance
with the terms thereof as in effect on the date hereof (or as amended after the date hereof in accordance with the terms of this Agreement)
and (C) any issuance, delivery or sale among the Company and any of its wholly owned Subsidiaries or between any of such wholly owned
Subsidiaries or (ii) except as required by the terms of any Company Plan as in effect on the date of this Agreement, amend any term of
any Company Security or any Company Subsidiary Security; provided, that, notwithstanding the foregoing, the Company shall not issue,
deliver or sell, or authorize the issuance, delivery or sale of, any Company Class B Common Shares;
(d) acquire
(by merger, consolidation, acquisition of shares or assets or otherwise), directly or indirectly, any securities or business, division
or other business organization in excess of $50,000,000 in the aggregate in any one transaction or series of related transactions (for
the avoidance of doubt, it being understood that the foregoing is subject to the provisions of Section 8.01(b));
(e) enter
into any material new line of business outside the existing business of the Company and its Subsidiaries as of the date of this Agreement;
(f) sell,
lease, license, assign or otherwise transfer, abandon or otherwise dispose, voluntarily permit to lapse or expire, encumber or subject
to any Lien (in each case, other than Permitted Liens) any businesses, properties or assets of the Company or any of its Subsidiaries,
including Company-Owned Intellectual Property, other than (i) such sales, leases, non-exclusive licenses, assignments, transfers, Liens
or other dispositions of inventory or other assets that are in the ordinary course of business, (ii) pursuant to existing contracts or
commitments or (iii) natural statutory expirations of Company-Owned Intellectual Property, which could not be maintained through applicable
filings or payments of fees;
(g)
make or authorize any capital expenditure other than any capital expenditures that when added to all other capital expenditures made
on behalf of the Company and its Subsidiaries since the date of this Agreement, do not exceed the aggregate amount set forth in the Company’s
capital expense budget set forth in Section 6.01(g) of the Company Disclosure Schedule plus $5,000,000;
(h) other
than in connection with actions permitted by Section 6.01(d), make any loans, advances or capital contributions to, or investments
in, any other Person (other than loans or advances among the Company and any of its wholly owned Subsidiaries and capital contributions
to or investments in its wholly owned Subsidiaries), other than trade credit and similar loans and advances made to employees, customers
and suppliers in the ordinary course of business;
(i) other
than (i) borrowings under the Company’s existing credit agreements in the ordinary course of business and in an aggregate principal
amount not to exceed $25,000,000 or (ii) indebtedness incurred between the Company and any of its wholly owned Subsidiaries or between
any of such wholly owned Subsidiaries or guarantees by the Company of indebtedness of any wholly owned Subsidiary of the Company that
exists as of the date hereof, (A) incur (or amend in any material respect the terms of) any indebtedness for borrowed money or any debt
securities (or, in each case, guarantees thereof) or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for any indebtedness for borrowed money of any other Person;
(j) other
than in connection with any stockholder or derivative litigation, which is the subject of Section 8.08, commence (other than any
collection action in the ordinary course of business), waive, release, assign, compromise or settle any Proceedings that would require
a payment by the Company in excess of $5,000,000 in the aggregate (net of amounts covered by insurance or indemnification agreements
with third parties), other than (i) as required by their terms as in effect as the date hereof or (ii) claims reserved against in the
financial statements of the Company (for amounts not materially in excess of such reserves); provided that, the payment, discharge,
settlement or satisfaction of such Proceeding does not include any material obligation (other than the payment of money and confidentiality
and other similar obligations incidental to such waiver, release, assignment, compromise or settlement) to be performed, or the admission
of wrongdoing, by the Company or any of its Subsidiaries or any of their respective officers or directors;
(k) (i)
amend or modify in any material respect, waive any material rights under, or voluntarily terminate (other than any termination in accordance
with the terms of an existing Material Contract) any Material Contract or (ii) enter into any contract which if entered into prior to
the date of this Agreement would have been a Material Contract, in each case other than the automatic renewal or extension of any Material
Contract pursuant to its terms or on terms not materially less favorable for the Company or otherwise in the ordinary course of business;
(l) except
to the extent required by Applicable Law (including Section 409A of the Code) or a Company Plan existing as of the date of this Agreement,
(i) increase or grant any increase in the compensation or benefits (except as permitted under clause (ii) below) of any current or former
Company Service Provider, other than (x) increases in base wages or salary in the ordinary course of business consistent with past practice
or (y) increases in annual cash bonus targets in the ordinary course of business consistent with past practice, (ii) amend any Company
Plan (other than annual renewals in the ordinary course of business consistent with past practice or any amendment that does not materially
increase the benefits under, or materially increase the cost to the Company or any of its Subsidiaries of maintaining, the applicable
Company Plan) or establish or adopt any new Company Plan, (iii) accelerate the vesting of or the lapsing of restrictions with respect
to, or otherwise fund or secure the payment of, any compensation or benefits under any Company Plan, (iv) amend or modify the terms of
any outstanding Company Equity Awards or Company Warrants, (v) provide any obligation to gross-up, indemnify or otherwise reimburse any
Company Service Providers for any Tax incurred by any such individual, including under Section 409A or 4999 of the Code, (vi) grant or
provide any severance or termination payments or benefits to any Company Service Providers other than the payment of severance amounts
or benefits in the ordinary course of business consistent with past practice and subject to the execution and non-revocation of a release
of claims in favor of the Company and its Subsidiaries, or (vii) hire or fire any employees with annual base compensation of greater
than $200,000, except for terminations for “cause” or to the extent consistent with the Company’s employment policies;
(m) unless
required by Applicable Law or pursuant to existing CBAs, (i) enter into or materially amend any CBAs, or (ii) recognize or certify any
labor organization or group of employees as the bargaining representative for any employees of the Company or any of its Subsidiaries;
(n) adopt
a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company (other
than the Merger);
(o) change
the Company’s methods of financial accounting or make any material change in any method of financial accounting practice or working
capital or cash management practice or policy applicable to the Company or its Subsidiaries, except as required by concurrent changes
in GAAP or in Regulation S-X of the 1934 Act, as agreed to by its independent public accountants;
(p) make,
change or revoke any material Tax election, change any Tax accounting period, make any material change in any of its methods of Tax accounting,
consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment with respect to any material amount
of Taxes, enter into any material Tax sharing, closing, or similar agreement in respect of any material Taxes, obtain or request any
material Tax ruling, or settle or compromise any material Tax claim, audit or assessment;
(q) engage
in any transaction with, or enter into any agreement, arrangement or understanding with, any Person covered by Item 404 of Regulation
S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404;
(r) adopt
or implement any stockholder rights agreement, “poison pill” or similar antitakeover agreement or plan (provided that, for
the avoidance of doubt, this Section 6.01(r) shall not limit the Company’s right to take the actions contemplated by Section
6.04 or Section 10.01); or
(s) agree,
resolve or commit to do any of the foregoing.
Section
6.02. Company Stockholders Meeting. The Company shall (a) as soon as reasonably practicable (and in any event within five Business
Days) following the date the SEC staff advises that it has no further comments on the Proxy Statement or that the Company may commence
mailing the Proxy Statement, duly call (including establishing a record date for) and give notice of, and commence mailing of the Proxy
Statement to the holders of Company Common Shares as of the record date established for, a meeting of holders of the Company Common Shares
(the “Company Stockholders Meeting”) to take place within 40 days following the first mailing of the Proxy Statement
to the Company’s stockholders for purposes of seeking the Company Stockholder Approval, (b) initiate or cause to be initiated a
“broker search” in accordance with Rule 14a-13 of the 1934 Act in order for the Company to comply with its obligations set
forth in the foregoing clause (a), and (c) as soon as reasonably practicable following the commencement of the mailing of the Proxy Statement
pursuant to the foregoing clause (a), convene and hold the Company Stockholders Meeting in accordance with the DGCL and applicable requirements
of the NYSE; provided that the Company may adjourn or postpone the Company Stockholders Meeting to a later date (i) with the consent
of Parent or (ii) to the extent the Company believes in good faith (after consultation with outside legal counsel) that such adjournment
or postponement is reasonably necessary (A) to ensure that any required supplement or amendment to the Proxy Statement is provided to
the holders of Company Common Shares within a reasonable amount of time in advance of the Company Stockholders Meeting, (B) due to Applicable
Law (including fiduciary duties) or a request from the SEC or its staff, (C) to allow reasonable additional time to solicit additional
proxies necessary to obtain the Company Stockholder Approval or (D) to ensure that there are sufficient Company Common Shares represented
(either in person or by proxy) and voting to constitute a quorum necessary to conduct the business of the Company Stockholders Meeting.
Subject to Section 6.04, the Board of Directors shall recommend that the holders of the Company Common Shares adopt this Agreement,
and the Company shall (x) include the Company Recommendation in the Proxy Statement, (y) use its reasonable best efforts to obtain the
Company Stockholder Approval and (z) otherwise comply in all material respects with all legal requirements applicable to such meeting.
The Company agrees to use reasonable efforts to provide Parent periodic updates concerning proxy solicitation results as reasonably requested
by Parent (including, if requested, providing daily voting reports to the extent reasonably practicable). In the event that the Board
of Directors makes an Adverse Recommendation Change pursuant to Section 6.04 and this Agreement has not been terminated in accordance
with its terms in connection therewith, the Company will nevertheless submit this Agreement to the Company’s stockholders for the
purpose of obtaining the Company Stockholder Approval unless this Agreement shall have been terminated in accordance with its terms prior
to the Company Stockholders Meeting. Without the prior written consent of Parent, the adoption of this Agreement shall be the only matter
(other than procedural or routine matters and other matters required by Applicable Law) that the Company may propose to be acted on by
the Company’s stockholders at the Company Stockholders Meeting. The Company shall permit Parent and its Representatives to attend
the Company Stockholders Meeting.
Section
6.03. Access to Information. (a) From the date hereof until the Effective Time, subject to Applicable Law and other than any
such matters that relate to the negotiation and execution of this Agreement (including matters that relate to any Acquisition Proposal
or Superior Proposal), in each case, solely for purposes of consummating the Merger (including for integration planning), the Company
shall (i) give Parent and its Representatives, upon reasonable notice, reasonable access during normal business hours to the offices,
properties, assets, books and records and personnel (including employees and agents) of the Company and its Subsidiaries, (ii) promptly
furnish to Parent and its Representatives such financial and operating data and other information (including, for the avoidance of doubt,
the work papers of the Company’s auditors to the extent Parent has executed a release in a form reasonably satisfactory to the
Company’s auditors) as such Persons may reasonably request and (iii) instruct its Representatives to cooperate reasonably with
Parent in its investigation of the Company and its Subsidiaries (provided that the Company’s investment bankers, attorneys,
accountants and other advisors will not be required to furnish to Parent or its Representatives any of their internal documents or materials);
provided that, in each case, such access may be limited to the extent, that such access would jeopardize the health and safety
of any of its Representatives; provided, further, that the Company may, in its sole discretion, designate any competitively
sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall
be furnished only to the outside counsel of Parent and will not be disclosed to any other Persons unless express permission is obtained
in advance from the Company or its legal counsel. The Company shall have the right to have its Representatives present in any investigation
pursuant to this Section 6.03, and such investigation shall be conducted in such manner as not to interfere unreasonably
with the conduct of the business of the Company and its Subsidiaries. Nothing in this Section 6.03 shall require the Company
to provide any access, or to disclose any (A) information if providing such access or disclosing such information would violate any Applicable
Law (including Competition Laws and privacy laws), (B) communications between the Company and its investment bankers, attorneys, accountants
and other advisors or (C) information protected by attorney-client privilege to the extent such privilege cannot be protected by the
Company through exercise of its reasonable best efforts; provided that, in the case of clauses (A) and (C), the Company shall
use reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that would not violate
any such Applicable Law or jeopardize the protection of the attorney-client privilege. Notwithstanding the foregoing, Parent and its
Representatives shall not be permitted to perform any intrusive environmental study or assessment with respect to any property of the
Company or any of its Subsidiaries without the prior written consent of the Company.
(b) All
information exchanged or otherwise received pursuant to Section
6.03(a) will be subject to the confidentiality agreement dated as of October 25, 2024, between the Company and Parent (the “Confidentiality
Agreement”). No information or knowledge obtained in any investigation pursuant to this Section 6.03 shall affect or
limit or be deemed to modify any representation or warranty made by any party hereunder or any rights or remedies available to any party
under this Agreement.
Section
6.04. No-Shop; Other Offers. (a) No-Shop. Except as otherwise expressly permitted by the remainder of this Section
6.04, until the earlier to occur of the termination of this Agreement pursuant to Article 10 and the Effective Time,
the Company shall not, shall cause its Subsidiaries as well as the Company’s and its Subsidiaries’ respective officers and
directors, and the Company’s financial advisors referred to in Section 4.24, in their capacity as such, not to and shall
instruct its and its Subsidiaries’ other Representatives not to, directly or indirectly, (i) solicit, initiate or take any action
to knowingly induce the making, submission or announcement of, or knowingly facilitate or encourage the submission of any inquiry or
proposal that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, (ii) enter into, participate in, engage
in or respond to any discussions or negotiations with, furnish any material nonpublic information relating to the Company or any of its
Subsidiaries or knowingly afford access to the business, properties, assets, books or records, or to any personnel of the Company or
any of its Subsidiaries to, or otherwise knowingly cooperate with, any Third Party, in each case relating to an Acquisition Proposal
by such Third Party or that would reasonably be expected to lead to an Acquisition Proposal, (iii) (A) withhold (or qualify or modify
in a manner adverse to Parent or Merger Sub), or publicly announce its intention to do the same, the Company Recommendation, or fail
to include the Company Recommendation in the Proxy Statement in accordance with Section 6.02, (B) other than with respect to a
tender offer or exchange offer, within 10 Business Days of Parent’s written request, fail to make or reaffirm the Company Recommendation
following the date any Acquisition Proposal or any material modification thereto is first published or broadly sent or given to the stockholders
of the Company (provided that Parent shall be entitled to make such a written request for reaffirmation only once for each Acquisition
Proposal and for each material modification to such Acquisition Proposal) or (C) fail to recommend, in a Solicitation/Recommendation
Statement on Schedule 14D-9, against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation D promulgated
under the 1934 Act within 10 Business Days after the commencement (within the meaning of Rule 14d-2 under the 1934 Act) of such tender
offer or exchange offer (any of the foregoing in clauses (A) through (C), an “Adverse Recommendation Change”) or (iv)
enter into any agreement in principle, letter of intent, term sheet, memorandum of understanding, merger agreement, acquisition agreement,
option agreement, share exchange agreement, joint venture agreement, other agreement or other similar instrument providing for, or that
would reasonably be expected to lead to, an Acquisition Proposal. Subject to Section 6.04(b), the Company shall, and shall cause its
Subsidiaries and the Company’s and its Subsidiaries’ respective officers and directors, and shall instruct its and its Subsidiaries’
other Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations with
any third party and its Representatives first conducted on or prior to the date hereof with respect to any Acquisition Proposal. Within
four Business Days after the date hereof, the Company shall (A) request in writing that each Person that has heretofore executed a confidentiality
agreement in connection with its consideration of an Acquisition Proposal or potential Acquisition Proposal promptly destroy or return
to the Company all nonpublic information heretofore furnished by the Company or any of its Representatives to such person or any of its
Representatives in accordance with the terms of such confidentiality agreement and (B) terminate access to any physical or electronic
data rooms relating to a possible Acquisition Proposal by such Person and its Representatives.
(b) Exceptions.
Notwithstanding anything contained in this Section 6.04 to the contrary, at any time prior to receipt of the Company Stockholder
Approval:
(i) the
Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with any Third Party and its
Representatives that has made a bona fide written offer, inquiry, proposal or indication of interest with respect to an Acquisition
Proposal that did not result from a material breach of Section 6.04(a) that the Board of Directors determines in good faith, after
consultation with its outside legal counsel and financial advisor, constitutes or would reasonably be expected to lead to a Superior
Proposal and (B) furnish to such Third Party or its Representatives nonpublic information relating to the Company or any of its Subsidiaries
and afford access to the business, properties, assets, books or records and personnel of the Company or any of its Subsidiaries pursuant
to an Acceptable Confidentiality Agreement; provided that, to the extent that any material nonpublic information relating to the
Company or its Subsidiaries is provided to any such Third Party or any such Third Party is given access which was not previously provided
to or made available to Parent, such material nonpublic information or access is provided or made available to Parent or its Representatives
substantially contemporaneously with (and in any event within 24 hours of) the time it is provided to such Third Party; provided, further,
that if the third Person making such Acquisition Proposal is a competitor of the Company or its Subsidiaries or Parent, the Company shall
use reasonable best efforts to not provide any competitively sensitive information to such Person in connection with any actions permitted
by this Section 6.04(b)(i) other than in accordance with customary “clean
room” or other similar procedures designed to limit the disclosure of competitively sensitive information; and
(ii) subject
to compliance with Section 6.04(d), the Board of Directors may, (A) in response to a bona fide written offer, inquiry,
proposal or indication of interest with respect to an written Acquisition Proposal that did not result from a material breach of Section
6.04(a) that the Board of Directors has determined in good faith, after consultation with its outside legal counsel and financial
advisor, constitutes a Superior Proposal, make an Adverse Recommendation Change or terminate this Agreement pursuant to and in accordance
with Section 10.01(d)(i) in order to substantially
concurrently enter into a written definitive agreement for such Superior Proposal or (B) in response to an Intervening Event make an
Adverse Recommendation Change, if the Board of Directors determines in good faith, after consultation with its outside legal counsel
and financial advisor, that the failure to take such action would be reasonably expected to be inconsistent with its fiduciary duties
under Applicable Law.
In addition, nothing
contained in this Agreement shall prevent the Company or the Board of Directors (or any committee thereof) from (1) taking and disclosing
to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the 1934 Act (or any similar
communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally
required disclosure to stockholders with regard to the transactions contemplated by this Agreement or an offer, inquiry, proposal or
indication of interest with respect to an Acquisition Proposal (provided that neither the Company nor the Board of Directors may
make an Adverse Recommendation Change unless permitted by this Section
6.04(b)), (2) issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule
14d-9(f) under the 1934 Act or (3) contacting and engaging in discussions with any person or group and their respective Representatives
who has made an offer, inquiry, proposal or indication of interest with respect to an Acquisition Proposal that was not solicited in
breach of this Section 6.04 solely for the purpose of clarifying such offer, inquiry, proposal or indication of interest and the
terms thereof or informing such Third Party of the restrictions imposed by this Section
6.04.
(c) Required
Notices. Prior to the earlier of the termination of this Agreement pursuant to Article
10 and the Effective Time, the Company shall (i) notify Parent promptly (and in any event no later than 24 hours) (A) of the receipt
by the Company of any Acquisition Proposal (including any bona fide offer, inquiry, proposal or indication of interest with respect
to thereto) or any amendment or modification to the material terms of any Acquisition Proposal and such notice shall include, to the
extent then known to the Company, the identity of the Person making the Acquisition Proposal (or bona fide offer, inquiry, proposal
or indication of interest with respect to thereto) and the material terms and conditions thereof (along with unredacted copies of all
material proposed transaction agreements and other material documents provided in connection therewith, including copies of all portions
of written materials sent or provided to the Company or any of its Subsidiaries that describe such material terms and conditions thereof)
and (B) of any request for nonpublic information relating to the Company or any of its Subsidiaries or for access to the business, properties,
assets, books or records or personnel of the Company or any of its Subsidiaries by any Third Party that has notified the Company that
it is considering making, or has made, an Acquisition Proposal and (ii) keep Parent reasonably informed on a reasonably current basis
(but in no event less often than once every 24 hours) of any changes (or any material discussions with respect thereto) to the status
and material terms and conditions (along with unredacted copies of all material proposed transaction agreements and other material documents
provided in connection therewith, including copies of all portions of written materials sent or provided to the Company or any of its
Subsidiaries that describe such material terms and conditions thereof) of any Acquisition Proposal (or bona fide offer, inquiry,
proposal or indication of interest with respect to thereto).
(d) Last
Look. Neither the Board of Directors nor the Company shall be permitted to take any of the actions referred to in Section
6.04(b)(ii) unless (i) the Company shall have notified Parent, in writing and at least four Business Days prior to taking such action,
of its intention to take such action, specifying, in reasonable detail, the reasons for the Adverse Recommendation Change, and (A) in
the case of a Superior Proposal, including the identity of the Person or group making such proposal, the terms thereof and attaching
a copy of all proposed agreements (including a true and complete copy of any proposed definitive agreement for such Superior Proposal,
if any) and other documents and information contemplated by Section 6.04(c)(i) for the Superior Proposal, if applicable or (B)
in the case of an Intervening Event, reasonably detailed description of the facts and circumstances relating to such Intervening Event,
(ii) during such four Business Day period following the date on which such notice is received, the Company shall have and shall have
caused its Representatives to, negotiate with Parent in good faith (to the extent Parent wishes to negotiate) to make such adjustments
to the terms and conditions of this Agreement as Parent may propose, (iii) upon the end of such notice period (or such subsequent notice
period as contemplated by clause (iv) below), the Board of Directors
shall have considered in good faith any revisions to the terms of this Agreement proposed in writing by Parent that, if accepted by the
Company, would be binding upon Parent, and shall have determined in good faith, after consultation with its outside legal counsel and
financial advisor, that the failure of the Board of Directors to make such Adverse Recommendation Change would be inconsistent with its
fiduciary duties under Applicable Law, and, in the case of Superior Proposal, that such Acquisition Proposal continues to constitute
a Superior Proposal and (iv) in the event of any change to any of the financial terms (including the form, amount and timing of payment
of consideration) or any other material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an
additional notice consistent with that described in clause (i) above
and a new notice period under clause (i) shall commence (provided
that the notice period thereunder shall only be three Business Days) during which time the Company shall be required to comply with
the requirements of this Section 6.04(d) with respect to
such additional notice, including clauses (i) through (iii) above.
(e) Definition
of Superior Proposal. For purposes of this Agreement, “Superior Proposal” means a bona fide, written Acquisition
Proposal, made after the date of this Agreement (but substituting “50%” for all references to “20%” in the definition
of such term) that the Board of Directors determines in good faith, after consultation with its outside legal counsel and financial advisor,
is more favorable from a financial point of view to the Company’s stockholders (solely in their capacity as such) than the Merger,
in each case, taking into consideration (i) all relevant factors (including the identity of the counterparty, the terms and conditions
of such Acquisition Proposal (including the transaction consideration, conditionality, timing, legal and financial terms (including any
break-up fee), certainty of financing and regulatory approvals and the expected timing and likelihood of consummation and such other
factors determined by the Board of Directors in good faith to be relevant)) and (ii) if applicable, any changes to the terms of this
Agreement proposed by Parent pursuant to this Section 6.04 that, if accepted by the Company, would be binding upon Parent.
(f) Definition
of Intervening Event. For purposes of this Agreement, “Intervening Event” means a material event, fact, circumstance,
development or occurrence that (i) was not known to or reasonably foreseeable by the Board of Directors as of the date of this Agreement,
which event or circumstance becomes known to or by the Board of Directors prior to receipt of the Company Stockholder Approval or (ii)
was known to or reasonably foreseeable by the Board of Directors as of the date of this Agreement, but the consequences of which (or
the magnitude thereof) were not and, in each case, does not relate to an Acquisition Proposal; provided, that in no event shall
the following constitute or be taken into account in determining the existence of an Intervening Event: (A) the fact, in and of itself,
of the Company meeting, failing to meet or exceeding any internal or published revenue or earnings forecasts or projections for any period
or (B) changes in the market price or trading volume of Company Common Shares, provided, that in the case of the foregoing clauses
(A) and (B), the underlying causes of such Effect may be considered and taken into account in determining whether there has been an Intervening
Event, or (C) a breach of this Agreement by the Company or events, facts, circumstance, developments or occurrences resulting from a
breach of this Agreement by the Company.
Section
6.05. Stock Exchange Delisting. Prior to the Effective Time, the Company shall cooperate with Parent and use its reasonable
best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable
on its part under Applicable Laws and the rules and policies of the NYSE to enable the delisting by the Surviving Corporation of the
Company Common Shares from the NYSE and the deregistration of the Company Common Shares under the 1934 Act as promptly as practicable
after the Effective Time.
Section
6.06. Debt Financing Cooperation.
(a) The
Company shall use its reasonable best efforts to, and shall cause its Subsidiaries and its and their respective Representatives to use
their reasonable best efforts to, provide all cooperation in connection with the arrangement of the Debt Financing as may be reasonably
requested by Parent that is necessary and customary for financings of the type contemplated by the Debt Commitment Letter as in effect
on the date hereof, including using reasonable best efforts in connection with the following:
(i) participating
in a reasonable number of meetings, due diligence sessions, presentations, drafting sessions, lender meetings, “road shows”
and similar sessions with the Debt Financing Sources and other prospective financing sources, investors and ratings agencies, in each
case on reasonable advance notice;
(ii) (A)
assisting with the preparation of materials for rating agency presentations, offering memoranda, private placement memoranda,
prospectuses, prospectus supplements, registration statements, lender and investor presentations, bank information memoranda
(including a bank information memorandum that does not include material non-public information and the delivery of customary
authorization letters with respect to the bank information memoranda executed by a senior officer of the Company authorizing the
distribution of information to prospective lenders or investors and containing a representation to the Debt Financing Sources that
the public side versions of such documents, if any, do not include material non-public information about the Company or its
Subsidiaries or their securities; (B) providing a “10b-5” representation by the Company (consistent with the Debt
Commitment Letter) and similar marketing documents required in connection with the Debt Financing; (C) (x) furnishing Parent and
Merger Sub (and Parent and Merger Sub may then furnish to applicable Debt Financing Sources) with historical financial statements of
the Company and its Subsidiaries required to be provided to Parent, Merger Sub or the Debt Financing Sources solely pursuant to
paragraph 6(b) of Annex B of the Debt Commitment Letter (as in effect on the date hereof) (the “Required
Information”) (in each case, which may be satisfied by including such information in the Company SEC Documents), (y) using
reasonable best efforts to cause the applicable independent auditors to reasonably cooperate with Parent in connection with the Debt
Financing, including by participating in accounting due diligence sessions upon reasonable advance notice and (z) using reasonable
best efforts to obtain the consent of, and facilitate the delivery of, customary “comfort letters” (including as to
customary negative assurance) for a Rule 144A private placement of debt securities from, the applicable independent auditors if
reasonably necessary or customary for Parent’s use of the financial statements of the Company and its subsidiaries in any
marketing or offering materials to be used in connection with the Debt Financing;
(iii) participating
in meetings with ratings agencies at mutually convenient times on reasonable notice and providing other customary assistance in connection
with any ratings agency processes;
(iv) furnishing,
at least three Business Days prior to the Closing, such documentation and information as is reasonably requested in writing by the Parent
at least 10 Business Days prior to the Closing to the extent required under applicable “know your customer” and anti-money
laundering rules and regulations, including the USA PATRIOT Act and 31 C.F.R. §1010.230;
(v) (A)
providing customary assistance to Parent and Merger Sub in connection with the preparation of any pledge and security documents and other
definitive financing documents, including cooperation in connection with the payoff of existing Indebtedness under the Company Credit
Agreement, the 2027 Notes Indenture, the 2029 Notes Indenture and the 2031 Notes Indenture, and the release of related Liens, (B) executing
and delivering any credit or purchase agreements, indentures, pledge and security documents, guarantees, mortgages, deeds of trusts,
other definitive financing documents and schedules thereto or other requested certificates or documents; provided that (x) none
of the foregoing agreements, documents or certificates shall be executed and/or delivered, except in connection with the Closing and
(y) the effectiveness thereof shall be conditioned upon, or become operative only after or concurrently with, the occurrence of the Closing
and (C) facilitating the obtaining of guarantees and pledging of collateral, granting of security interests and other similar matters
ancillary to the Debt Financing, in each case as may be reasonably requested by Parent;
(vi) providing
customary preliminary “flash” numbers in connection with any Marketing Period occurring between ten (10) and forty (40) days
following the end of one of the Company’s fiscal quarters and a chief financial officer certificate relating to such customary
preliminary “flash” numbers;
(vii) taking
certain corporate and other customary actions, subject to the occurrence of the Closing, reasonably requested by Parent or Merger Sub
to permit the consummation of the Debt Financing (including distributing the proceeds of the Debt Financing, if any, obtained by any
Subsidiary of the Company to the Surviving Corporation); and
(viii) providing
reasonable and customary cooperation to Parent, Merger Sub and the Debt Financing Sources (or third party evaluators on their behalf)
in obtaining customary appraisals and field exams in connection with the Debt Financing upon reasonable prior notice during normal business
hours and in providing such available information as is reasonably requested to assist Parent and Merger Sub in their preparation of
borrowing base certificates in connection with the Debt Financing and in the determination of eligible borrowing base assets, in each
case, to the extent customary to obtain any portion of the Debt Financing consisting of an asset-based credit facility.
(b) Notwithstanding
the foregoing, nothing in this Section 6.06 shall require the Company or any of its Subsidiaries to:
(i) take
any action in respect of the Debt Financing to the extent that such action would cause any condition to Closing set forth in Article
9 to fail to be satisfied by the Outside Date or otherwise result in a breach of this Agreement by the Company;
(ii) take
any action in respect of the Debt Financing that would conflict with or violate the Company’s or any if its Subsidiary’s
organizational documents or any Applicable Law, or result in the contravention of, or violation of breach of, or default under, any contract
to which the Company or any of its subsidiaries is a party;
(iii) take
any action to the extent such action would (A) unreasonably interfere with the business or operations of the Company or its Subsidiaries
or (B) cause competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated;
(iv) execute
and deliver any letter, agreement, document or certificate in connection with the Debt Financing or take any corporate action that is
not contingent on, or that would be effective prior to, the occurrence of the Closing;
(v) pay
any commitment fee or other fee or payment to obtain consent or incur any liability with respect to or cause or permit any Lien to be
placed on any of their respective assets in connection with the Debt Financing prior to the Closing Date;
(vi) provide
access to or disclose information where the Company determines that such access or disclosure would reasonably be expected to jeopardize
the attorney-client privilege or contravene any Applicable Law or contract;
(vii) subject
the Company or any of its Subsidiaries, respective directors, managers, officers or employees to any actual or potential personal liability;
(viii) cause
the directors and managers of the Company and its Subsidiaries to adopt resolutions (or take other corporate action) approving the agreements,
documents and instruments pursuant to which the Debt Financing is obtained unless Parent shall have determined that such directors and
managers are to remain as directors and managers of the Company and the applicable Subsidiaries on and after the Closing Date and such
resolutions (or take other corporate action) are contingent upon the occurrence of, or only effective as of, the Closing;
(ix) waive
or amend any terms of this Agreement or any other contract to which the Company or its Subsidiaries is party; or
(x) take
any action that would subject it to actual or potential liability, to bear any cost or expense or to make any other payment or agree
to provide any indemnity in connection with the Debt Commitment Letter, the definitive documents related to the Debt Financing or any
information utilized in connection therewith (in each case, except following the Closing).
(c) Parent
shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses
(including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the cooperation of
the Company and its Subsidiaries contemplated by this Section 6.06 and shall indemnify and hold harmless the Company, its Subsidiaries
and their respective Representatives from and against any and all losses, damages, claims, costs or expenses actually suffered or incurred
by any of them of any type in connection with the arrangement of any Debt Financing and any information used in connection therewith,
except to the extent such losses, damages, claims, costs or expenses result from the gross negligence, bad faith or willful misconduct
of the Company, any of its Subsidiaries or their respective Representatives or Affiliates, and the foregoing obligations shall survive
the termination of this Agreement.
(d) All
material non-public information provided by the Company or any of its Subsidiaries or any of their Representatives pursuant to this Section
6.06 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent and Merger Sub shall be permitted
to disclose such information to the financing sources, other potential sources of capital, rating agencies and prospective lenders during
syndication of the Debt Financing or any permitted replacement, amended, modified or alternative financing subject to the potential sources
of capital, ratings agencies and prospective lenders and investors entering into customary confidentiality undertakings with respect
to such information (including through a notice and undertaking in a form customarily used in confidential information memoranda for
senior credit facilities).
(e) Parent
and Merger Sub acknowledge and agree that, notwithstanding anything in this Agreement to the contrary, the obligations to perform their
respective agreements hereunder, including to consummate the Closing subject to the terms and conditions hereof, are not conditioned
on obtaining of the Debt Financing or any alternative Debt Financing or on the performance of any party to the Debt Commitment Letter.
(f) Notwithstanding
anything to the contrary in this Agreement, for all purposes of this Agreement (including the condition set forth in Section 9.02(a)(i)
as it applies to the Company’s obligations under this Section 6.06), the Company’s obligations under this
Section 6.06 shall be deemed satisfied unless (i) the Company has willfully and materially breached its obligations under this
Section 6.06, (ii) Parent has promptly notified the Company of such breach and (iii) such breach substantially contributed to
Parent or Merger Sub’s failure to receive any material portion of the proceeds of the Debt Financing.
Section
6.07. Tax Receivable Agreement. The Company shall use its reasonable best effort to cause the provisions of the Tax Receivable
Agreement to be terminated on or before the Closing Date.
Article
7
Covenants
of Parent
Section
7.01. Conduct of Parent. Parent shall not, and shall cause its Subsidiaries not to, from the date of this Agreement to the
earlier of the Effective Time and the termination of this Agreement in accordance with Article 10, take any action or fail to
take any action that is intended to, or would reasonably be expected to, individually or in the aggregate, prevent, materially delay
or materially impede the ability of Parent and Merger Sub to consummate the Merger or the other transactions contemplated by this Agreement,
including the financing thereof; provided, however, that this Section 7.01 shall not apply to the matters covered by Section
8.01, which shall be exclusively governed by Section 8.01.
Section
7.02. Director and Officer Liability. Parent shall cause the Surviving Corporation to do the following:
(a) For
a period of six years after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless
the present and former directors and officers of the Company and its Subsidiaries and their respective successors and heirs and any individuals
serving in such capacity at or with respect to other Persons at the Company’s or its Subsidiaries’ request (each, an “Indemnified
Person”) from and against any losses, damages, liabilities, costs, expenses (including reasonable attorneys’ fees), judgments,
fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection
with or in respect of any thereof) in respect of the Indemnified Persons’ having served in such capacity prior to the Effective
Time, in each case to the fullest extent permitted by the DGCL or any other Applicable Law or provided under the Company’s certificate
of incorporation and bylaws or other organizational documents of the Company or any of its Subsidiaries in effect on the date hereof.
If any Indemnified Person is made party to any claim, action, suit, proceeding or investigation arising out of or relating to matters
that would be indemnifiable pursuant to the immediately preceding sentence, the Surviving Corporation shall (and Parent shall cause the
Surviving Corporation to), advance fees, costs and expenses (including reasonable attorneys’ fees and disbursements) as incurred
by such Indemnified Person in connection with and prior to the final disposition of such claim, action, suit, proceeding or investigation;
provided that such Indemnified Person agrees in advance to return any such funds to which it is determined in a final, non-appealable
judgment that such Indemnified Person is not ultimately entitled to indemnification. Notwithstanding anything to the contrary in this
Agreement, Parent and the Surviving Corporation shall control any action for which indemnification may be sought by an Indemnified Person
pursuant to this Agreement, and no Indemnified Person shall settle or otherwise compromise or consent to the entry of any judgment with
respect to, or otherwise seek termination of, any such action without the Surviving Corporation’s prior written consent. Any determination
required to be made with respect to whether the conduct of any Indemnified Person complies or complied with any applicable standard will
be made by independent legal counsel selected by the Surviving Corporation (which counsel will be reasonably acceptable to such Indemnified
Person), the fees and expenses of which shall be paid by the Surviving Corporation. At its own expense, an Indemnified Person may, but
will not be obligated to, employ separate counsel and participate in the defense of any action involving such Indemnified Person and
so controlled by the Surviving Corporation; provided that if (i) the named parties to any such action include the Surviving Corporation
and such Indemnified Person and such Indemnified Person is advised in writing by its own counsel that there are legal defenses available
to it that are different from or additional to those available to the Surviving Corporation or any other Indemnified Person that is party
thereto, (ii) a conflict of interest exists between such Indemnified Person and the Surviving Corporation or (iii) the Surviving Corporation
and such Indemnified Person shall have mutually agreed in writing to the retention of such counsel for such Indemnified Person, then
in each such case such Indemnified Person will be entitled to obtain its own separate counsel and the Surviving Corporation shall pay
the reasonable and documented fees and expenses of such counsel. The Surviving Corporation shall not settle any action that is indemnifiable
pursuant to this Section 7.02, except (A) with the consent of the applicable Indemnified Persons, which consent shall not be unreasonably
withheld, conditioned or delayed or (B) if such settlement or compromise includes an unconditional release thereof from all liability
arising out of such action. No Indemnified Person will be liable for any settlement entered into in contravention of the foregoing sentence.
(b) For
a period of six years after the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to)
maintain in effect provisions in the certificate of incorporation, bylaws or other organizational documents of the Surviving Corporation
and its Subsidiaries (or in such documents of any successor to the business of the Surviving Corporation or any such Subsidiary) regarding
elimination of liability of directors, indemnification of directors, officers, employees, fiduciaries and agents and advancement of fees,
costs and expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the
date of this Agreement.
(c) From
and after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, honor and comply with
their respective obligations under any indemnification agreement with any Indemnified Person that exists as of the date hereof, and not,
without the written agreement of the Indemnified Person, amend, repeal or otherwise modify any such agreement in any manner that would
adversely affect any right of any Indemnified Person thereunder.
(d) Prior
to the Effective Time, (x) the Company shall, (y) if Parent elects, Parent shall, or (z) if the Company is unable to, the Surviving Corporation
shall (and Parent shall cause the Surviving Corporation to) as of the Effective Time, purchase (and fully pay the premium for) a prepaid,
noncancellable “tail policy” on terms and conditions (in both amount and scope) no less favorable than the current directors’
and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the
Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), which D&O
Insurance shall (i) be for a claims reporting or discovery period of at least six years from and after the Effective Time with respect
to any claim related to any period of time at or prior to the Effective Time, (ii) be from an insurance carrier with the same or better
credit rating as the Company’s current insurance carrier with respect to D&O Insurance and (iii) have terms, conditions, retentions
and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies as of the date
hereof; provided that the Company shall not be permitted to pay a premium amount in excess of 300% of the premium amount per annum
for the Company’s existing policies for any such extension policy without Parent’s prior written consent. If the Company
or the Surviving Corporation for any reason fails to obtain such “tail” insurance policies as of the Effective Time, the
Surviving Corporation shall continue to maintain in effect, for a period of at least six years from and after the Effective Time, the
D&O Insurance in place as of the date hereof with the Company’s current insurance carrier or with an insurance carrier with
the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance with terms, conditions,
retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies
as of the date hereof, or the Surviving Corporation shall purchase from the Company’s current insurance carrier or from an insurance
carrier with the same or better credit rating as the Company’s current insurance carrier with respect to D&O Insurance comparable
D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are no less favorable than
as provided in the Company’s existing policies as of the date hereof; provided that in no event shall Parent or the Surviving
Corporation be required to expend for such policies pursuant to this sentence a premium amount in excess of 300% of the premium amount
per annum for the Company’s existing policies; and provided, further, that if the aggregate premiums of such insurance
coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available, with
respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(e) If
Parent, the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not
the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all
of its properties and assets to any Person, then, and in each such case, to the extent necessary, Parent and the Surviving Corporation
shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be,
shall assume the obligations set forth in this Section 7.02.
(f) The
rights of each Indemnified Person under this Section 7.02 will be in addition to any rights such Person may have under the certificate
of incorporation or bylaws of the Company or any of its Subsidiaries, under the DGCL or any other Applicable Law or under any agreement
of any Indemnified Person with the Company or any of its Subsidiaries. These rights will survive consummation of the Merger and are intended
to benefit, and shall be enforceable by, each Indemnified Person.
Section
7.03. Employee Matters. (a) The Company and Parent hereby acknowledge and agree that a “Change in Control” (or
similar phrase) within the meaning of any Company Plan will occur as of the Effective Time.
(b) For
the period commencing at the Effective Time and ending on the date that is 12 months thereafter (or, if shorter, the employee’s
remaining period of employment), Parent shall cause the Surviving Corporation and/or its Subsidiaries to provide each employee of the
Company or its Subsidiaries as of immediately prior to the Effective Time whose employment continues with the Surviving Corporation or
any of its Subsidiaries after the Effective Time (each, a “Continuing Employee”) (i) an annual rate of base salary
or wages, as applicable, that is no less favorable than the annual rate of base salary or wages provided to such Continuing Employee
as of immediately prior to the Effective Time, (ii) target annual cash bonus or other short-term cash incentive opportunities that are
no less favorable than the target annual cash bonus or other short-term cash incentive opportunities provided to such Continuing Employee
as of immediately prior to the Effective Time, (iii) employee benefits (excluding equity and other long-term incentive compensation and
awards, change in control and retention bonuses, defined benefit pension plans, nonqualified deferred compensation, post-employment welfare
benefits and severance) that, on an aggregate basis, are at least substantially comparable to the employee benefits (excluding equity
and other long-term incentive compensation and awards, change in control and retention bonuses, defined benefit pension plans, nonqualified
deferred compensation, post-employment welfare benefits and severance) provided to such Continuing Employee as of immediately prior to
the Effective Time, and (iv) severance protections no less favorable than those set forth on Section 7.03(b) of the Company Disclosure
Schedule. Notwithstanding the foregoing, nothing herein obligates Parent to provide compensation and/or benefits to employees covered
under any collective bargaining agreement that are outside the terms of the collective bargaining agreement.
(c) Parent
shall, or shall cause the Surviving Corporation and any applicable Subsidiary to, use commercially reasonable best efforts to, (i) waive
all limitations as to any pre-existing condition or waiting periods with respect to participation and coverage requirements applicable
to each Continuing Employee under any employee benefit plan that is a “group health plan” within the meaning of Section 5000(b)(1)
of the Code (including any flexible spending account or similar arrangement) and in which such Continuing Employees may be eligible to
participate for the plan year which includes the Effective Time to the extent such pre-existing condition or waiting period was not applicable
as of immediately prior to the Effective Time under any similar Company Plan that is a “group health plan” within the meaning
of Section 5000(b)(1) of the Code (including any flexible spending account or similar arrangement), and (ii) credit each Continuing Employee
for any copayments, deductibles, offsets or similar payments made under the group health plan of the Company or any of its Subsidiaries
within the meaning of Section 5000(b)(1) of the Code (including any flexible spending account or similar arrangement) for the plan year
which includes the Effective Time for purposes of satisfying any applicable copayment, deductible, offset or similar requirements under
the similar group health plans of Parent, the Surviving Corporation or any of their respective Subsidiaries within the meaning of Section
5000(b)(1) of the Code (including any flexible spending account or similar arrangement) for the plan year which includes the Effective
Time, if and to the extent the claims incurred and amounts paid by, and amounts reimbursed to, the Continuing Employee under the Company
Plan for the plan year which includes the Effective Time can be reasonably substantiated and only if permitted under the insurance policies
or other funding vehicles under the similar group health plans of Parent, the Surviving Corporation or any of their respective Subsidiaries
after the Effective Time. In addition, as of the Effective Time, Parent shall, and shall cause the Surviving Corporation and any applicable
Subsidiary to, give all Continuing Employees full credit for such Continuing Employees’ service with the Company or any of its
Subsidiaries prior to the Effective Time for purposes of (i) eligibility and vesting and (ii) vacation and severance benefit levels (and
not for purposes of benefit accruals under any other benefit plans) under any employee benefit plans, programs, policies, agreements
and arrangements maintained by Parent, the Surviving Corporation or an applicable Subsidiary in which any Continuing Employee may be
eligible to participate after the Effective Time, to the same extent that such service was credited under any similar Company Plan immediately
prior to the Effective Time; provided that such credit for service shall not apply to the extent it would result in a duplication
of benefits or compensation or for any other purpose.
(d) With
respect to annual bonuses relating to the performance year in which the Effective Time occurs, Parent shall cause each Continuing Employee
who remains employed through the date that such bonuses would be paid in the ordinary course of business to receive an amount in respect
of such bonus that is no less than what has been accrued by the Company through the Effective Time (with such accruals projected forward
through the Effective Time to the extent not fully accrued through the Effective Time) in respect of such bonus and reflected in the
Company’s financial statements.
(e) At
least 10 days (or such shorter period agreed to by the parties) prior to the Closing Date, to the extent that Parent has requested it
in writing at least 30 days prior to the Closing Date (or such shorter period reasonably agreed to by the parties), the Company shall
take, and shall cause its Subsidiaries to take, all actions that may be necessary or appropriate to, conditioned on the occurrence of
the Effective Time, (i) cause one or more of the Company Plans (to the extent permitted under the terms of such Company Plan) to terminate
as of a date on, immediately before or after the Effective Time (as determined by Parent), (ii) cause benefit accruals and entitlements
under any Company Plan to cease as of a date on, immediately before or after the Effective Time, (iii) use commercially reasonable efforts
to cause the continuation on and after the Effective Time of any contract, arrangement or insurance policy relating to any Company Plan
for such period as may be reasonably requested by the Parent, and/or (iv) facilitate the merger of any Company Plan into any Parent plan
in accordance with Applicable Law. All resolutions, notices, or other documents issued, adopted or executed in connection with the implementation
of this Section 7.03(e) shall be subject to Parent’s reasonable prior review and approval, which will not be unreasonably
withheld, conditioned or delayed. For the avoidance of doubt, no such Company Plan amendments, modifications or terminations shall in
any way reduce, mitigate or eliminate Parent’s obligations under Section 7.03(a).
(f) In
the event that Parent requests that the Company’s 401(k) plan (the “Company 401(k) Plan”) be terminated pursuant
to Section 7.03(e), the Company and Parent shall take all actions as may be reasonably required, including amendments to the Company
401(k) Plan and/or the tax-qualified defined contribution retirement plan designated by Parent (the “Parent 401(k) Plan”)
to permit each Continuing Employee to make rollover contributions of “eligible rollover distributions” (within the meaning
of Section 401(a)(31) of the Code) in the form of cash, the Continuing Employee’s plan loan promissory note, or a combination thereof,
in an amount equal to the full account balance distributed or distributable to such Continuing Employee from the Company 401(k) Plan
to the Parent 401(k) Plan. In the event that Parent requests that the Company 401(k) Plan be terminated pursuant to Section 7.03(e),
each Continuing Employee shall be eligible to become a participant in the Parent 401(k) Plan as soon as administratively practicable
after the Effective Time (giving effect to the service crediting provisions of Section 7.03(c)).
(g) Prior
to making any broad-based written or formal oral communications to the directors or employees (including any officers) of the Company
or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement,
the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and
provide reasonable comments on the communication. The Company and Parent shall cooperate in providing any such mutually agreeable communication.
(h) Without
limiting the generality of Section 11.06, the provisions
of this Section 7.03 are solely for the benefit of the parties to this Agreement, and no Company Employee, Continuing Employee
or any other individual associated therewith shall be regarded for any purpose as a third-party beneficiary of this Section
7.03. Nothing herein shall, or shall be deemed to, (i) establish, terminate, amend or modify any Company Plan or any other compensation
or benefit plan, program, policy, agreement or arrangement maintained or sponsored by Parent, the Surviving Corporation, the Company
or any of their respective Affiliates; (ii) alter or limit Parent’s, the Surviving Corporation’s or any of their respective
Affiliates’ ability to establish, terminate, amend or modify any particular benefit plan, program, policy, agreement or arrangement,
(iii) be treated as an amendment to any Company Plan or any compensation or benefit plan, program, policy, agreement or arrangement maintained
or sponsored by Parent, the Surviving Corporation, or any of their respective Affiliates, or obligate Parent, the Surviving Corporation
or any of their respective Affiliates to maintain any particular benefit plan, program, policy, agreement or arrangement, or (iv) confer
upon any Company Employee any right to employment or continued employment for any period of time by reason of this Agreement, or any
right to a particular term or condition of employment.
Section
7.04. Debt Financing Covenants. (a) Parent and Merger Sub shall (and shall cause their Subsidiaries to) use their reasonable
best efforts to arrange and obtain the Debt Financing, including using their reasonable best efforts to (i) maintain in effect the Debt
Commitment Letter in accordance with the terms and subject to the conditions thereof (subject to any amendment, supplement, replacement,
substitution, termination or other modification or waiver that is not prohibited by clause (c) below), (ii) negotiate and enter into
definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter (including the flex provisions)
or on other terms taken as a whole, not materially less favorable to Parent and Merger Sub, (iii) satisfy, or obtain a waiver thereof,
on a timely basis all conditions that are within their control and applicable to Parent and Merger Sub to funding the Debt Commitment
Letter and such definitive agreements related thereto, (iv) assuming that all conditions contained in the Debt Commitment Letter have
been satisfied, consummate the Debt Financing at or prior to the Closing and (v) enforce their rights under the Debt Commitment Letter.
(b) Parent
shall keep the Company reasonably informed with respect to all material activity concerning the status of the Debt Financing contemplated
by the Debt Commitment Letter and shall give the Company notice of any material adverse change with respect to the Debt Financing as
promptly as practicable. Parent and Merger Sub shall give the Company prompt notice (i) of the termination, repudiation, rescission,
cancellation or expiration of the Debt Commitment Letter or the definitive agreements related to the Debt Financing, (ii) of any material
breach or material default by any party to the Debt Commitment Letter, or any definitive agreements related to the Debt Financing, in
each case of which Parent or Merger Sub becomes aware, (iii) of the receipt of any written notice or other written communication, in
each case received from any Debt Financing Source with respect to any (A) actual or threatened breach of Parent’s or Merger Sub’s
(or any of their respective Subsidiaries’) obligations under the Debt Commitment Letter or definitive agreements related to the
Debt Financing, or actual default, termination or repudiation by any party to any of the Debt Commitment Letter or definitive agreements
related to the Debt Financing (including any proposal by any Debt Financing Source, lender or other Person to withdraw, terminate, repudiate,
rescind or make a material change in the terms of the Debt Commitment Letter) or (B) material dispute between or among any parties to
the Debt Commitment Letter or definitive agreements related to the Debt Financing and (iv) of the receipt of any written notice or other
written communication on the basis of which Parent expects that a party to the Debt Financing will fail to fund the Debt Financing or
is reducing the amount of the Debt Financing. As soon as reasonably practicable, but in any event within three Business Days of the date
the Company delivers to Parent or Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested
by the Company relating to any circumstance referred to in clauses (i), (ii), (iii) or (iv) of the immediately preceding sentence; provided
that none of Parent or Merger Sub shall be required to disclose or provide any such information, the disclosure of which, in the judgement
of Parent upon advice of outside counsel, is subject to attorney-client privilege or which would be in violation of any confidentiality
obligation.
(c) For
the avoidance of doubt, Parent shall have the right from time to time to amend, supplement, replace, substitute, terminate or otherwise
modify or waive its rights under the Debt Commitment Letter, including to (i) add lenders, lead arrangers, bookrunners, syndication agents
or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement or (ii) terminate or reduce any
commitments under the Debt Commitment Letter in order to obtain alternative sources of debt financing in lieu of all or a portion of
the Debt Financing, including in connection with a private placement of securities pursuant to Rule 144A under the 1933 Act; provided
that no such amendment, supplement, replacement, substitution, termination, modification or waiver shall (A) reduce the aggregate amount
of available Debt Financing (including by increasing the amount of fees to be paid or original issue discount (except as set forth in
any “market flex” provisions existing on the date of this Agreement)) such that Parent and Merger Sub would not have the
Required Funds (after taking into account funds otherwise actually available from internally generated cash flow), (B) impose new or
additional conditions precedent or expand upon the conditions precedent to the Debt Financing as set forth in the existing Debt Commitment
Letter, (C) adversely change the timing of the funding of the Debt Financing thereunder in a manner that is reasonably expected to impair,
delay or prevent the availability of all or a portion of the Debt Financing or the consummation of the transactions contemplated by this
Agreement or (D) otherwise materially adversely affect the ability of Parent to consummate the transactions contemplated by this Agreement.
Parent shall furnish to the Company a copy of any executed written amendment, supplement, replacement, substitution, termination, modification
or waiver of the Debt Commitment Letter.
(d) In
the event that any portion of the Debt Financing necessary for Parent to consummate the Closing becomes unavailable on the terms and
conditions contemplated by the Debt Commitment Letter (including the flex provisions) (other than as a result of the Company’s
breach of any provision of this Agreement or failure to satisfy the conditions set forth in Section 9.03), (i) Parent shall promptly
notify the Company and (ii) Parent and Merger Sub shall use their reasonable best efforts to (A) arrange and obtain, as promptly as practicable
following the occurrence of such event (but in no event later than the last day of the Marketing Period), any such portion from alternative
sources (an “Alternative Financing”) on terms that (1) taken as whole, are no more adverse to Parent and Merger Sub
than the existing Debt Commitment Letter (including after giving effect to the market flex provisions), (2) do not impose new or additional
conditions precedent or expand upon the conditions precedent to the Debt Financing set forth in the existing Debt Commitment Letter and
(3) do not reduce the aggregate amount of available Debt Financing to less than the amount required to consummate the transactions contemplated
by this Agreement and (B) provide the Company with a copy of the new financing commitment that provides for such Alternative Financing
(including all related exhibits, schedules, annexes, supplements and term sheets thereto, and including any related fee letter, which
may be redacted in a manner consistent with Section 5.09, as each of the foregoing may be amended, supplemented, replaced, substituted,
terminated or otherwise modified or waived from time to time thereafter in compliance with this Section
7.04, the “Alternative Financing Commitment Letter”). Notwithstanding anything to the contrary contained in this
Agreement, in no event shall Parent or its Affiliates be required to pay any fees or any interest rates applicable to the Alternative
Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the market flex provisions)
or agree to any term (including any market flex term) less favorable to Parent than such term contained in the Debt Commitment Letter
as in effect on the date hereof (including the market flex provisions).
(e) For
purposes of this Agreement (other than with respect to representations in this Agreement made by or with respect to Parent or Merger
Sub that speak as of the date hereof or another specified date), references to the “Debt Commitment Letter” shall include
such document as permitted or required by this Section
7.04 to be amended, supplemented, replaced, substituted, terminated or otherwise modified or waived, in each case from and after
such amendment, supplement, replacement, substitution, termination or other modification or waiver and, for the avoidance of doubt, references
to “Debt Financing” shall include, in whole or in part (as applicable), any supplemental, replacement or substitute financing
provided for thereunder.
Article
8
Covenants
of Parent and the Company
Section
8.01. Regulatory Undertakings. (a) Subject to the terms and conditions of this Agreement (including, for the avoidance of doubt,
any actions taken by the Company permitted by Section 6.02 or Section 6.04), the Company and Parent shall use
reasonable best efforts to take, or cause to be taken (including by causing their Affiliates to take), all actions (including instituting
or defending any Proceeding), and to do, or cause to be done, all things necessary, proper or advisable under Applicable Law to consummate
the transactions contemplated by this Agreement as soon as reasonably practicable (and in any event, at least five Business Days prior
to the Outside Date), including (i) preparing and filing as promptly as reasonably practicable with any Governmental Authority or other
third party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions
of information, applications, and other documents; and (ii) obtaining and maintaining all approvals, consents, registrations, permits,
authorizations, and other confirmations required to be obtained from any Governmental Authority or other third party that are necessary,
proper, or advisable to consummate the transactions contemplated by this Agreement as soon as practicable (and in any event, at least
five Business Days prior to the Outside Date).
(b) In
furtherance and not in limitation of the foregoing, each of the Company and Parent shall (and Parent shall cause its Affiliates to) make
(i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby
with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department
of Justice (the “Antitrust Division”) as promptly as reasonably practicable and in any event within 10 Business Days
after the date hereof (unless the revised rules governing the form and information required in such filings under the HSR Act, published
in the Federal Register on November 12, 2024, are in effect at the time such a filing would have to be made, in which case the Notification
and Report Form pursuant to the HSR Act shall be filed as promptly as reasonably practicable), and such filings shall request early termination
of any applicable waiting period under the HSR Act, and (ii) any other required filings pursuant to applicable Competition Laws as promptly
as practicable after the date hereof. To facilitate these filings, each of the Company and Parent shall (and Parent shall cause its Affiliates
to) furnish to the other party as promptly as practicable all information within its (or its Affiliates’) control requested by
such other party and required for such other party to make any application or other filing to be made by it pursuant to any Applicable
Law in connection with the transactions contemplated by this Agreement. Each of Parent and the Company shall respond as promptly as practicable
to any inquiries received from the FTC or the Antitrust Division or any other Governmental Authority for additional information or documentary
material that may be requested pursuant to the HSR Act or any other applicable Competition Laws and shall use reasonable best efforts
to promptly take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods
under the HSR Act and, if applicable, any other Competition Laws as promptly as practicable.
(c) If
any objections are asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement under the HSR
Act, or any other applicable Competition Law, or any other Applicable Law, or if any Proceeding is instituted or threatened by any Governmental
Authority challenging any of the transactions contemplated by this Agreement, Parent and the Company shall take, or cause to be taken
(including by causing their Affiliates to take), all actions necessary to resolve such objections or Proceedings as promptly as practicable
and obtain any needed authorization, consent or approval of a Governmental Authority or avoid or eliminate any impediments under the
HSR Act, any such other Competition Law, or other Applicable Law. Without limiting the foregoing, in connection with any such objection
or Proceeding (including solely for the purposes of clause (G) of this Subsection 8.01(c), any Proceeding instituted or threatened by
a Third Party), Parent shall, and shall cause its Subsidiaries and Affiliates to, (i) take any such actions as may be necessary to obtain
any authorization, consent or approval of a Governmental Authority or to avoid or eliminate any impediments under the HSR Act, any such
other Competition Law, or other Applicable Law so as to enable the consummation of the transactions hereby to occur no later than 5 Business
Days prior to the Outside Date, including (A) agreeing to hold separate, sell, license, divest or otherwise dispose of any of the businesses
or properties or assets of Parent, the Company or any of their respective Affiliates, (B) terminating, amending or assigning any existing
relationships and contractual rights and obligations, (C) terminating any venture or other arrangement, (D) granting any right or commercial
or other accommodation to, or entering into any contractual or other commercial relationship with, any Third Party, (E) imposing limitations
on Parent, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all
or any portion of their respective businesses or assets, (F) effectuating any other change to, or restructuring of, Parent, the Company
or any of their respective Affiliates, and (G) opposing (1) any administrative or judicial Proceeding that is initiated or threatened
to be initiated challenging this Agreement or the consummation of the transactions contemplated hereby (including seeking to have any
stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed) and (2) any request for,
the entry of, and seek to have vacated or terminated, any Order that could reasonably be expected to restrain, prevent or materially
delay the consummation of the transactions contemplated hereby, including in the case of either (1) or (2),
by defending through litigation any Proceeding brought by any Person in any court or before any Governmental Authority, and pursuing
all available avenues of administrative and judicial appeal, in each case, as may be required (x) by the applicable Governmental Authority
in order to resolve such objections as such Governmental Authority may have to such transactions under the HSR Act, any such other Competition
Law, or any other Applicable Law or (y) by any domestic or foreign court or other tribunal in any Proceeding challenging such transactions
as violative of any Competition Law or any other Applicable Laws, in order to avoid the entry of, or to effect the dissolution, vacating,
lifting, altering or reversal of, any Order that has the effect of restricting, preventing or prohibiting the consummation of the transactions
contemplated by this Agreement and (ii) not take any action (including entering into or consummating any contracts or arrangements for
an acquisition, however structured, of any ownership interest, assets or rights in any Person) if such action would (A) reasonably be
expected to make it materially more likely that there would arise any impediments under any Competition Law or any other Applicable Laws
that may be asserted by any Governmental Authority to the consummation of the Merger and the other transactions contemplated hereby as
promptly as practicable or (B) impose any material delay in the expiration of any waiting period or obtaining of any approval from any
Governmental Authority applicable to the transactions contemplated by this Agreement (the actions set forth in clauses (A)
through (F) of this Section 8.01(c)(i) referred to collectively as, “Regulatory Actions”); provided,
however, that nothing in this Section 8.01(c) shall require Parent or its Subsidiaries to (and, except as otherwise permitted
by Section 6.01, the Company and its Subsidiaries shall not, without Parent’s prior written consent) agree to or take any
Regulatory Action with respect to any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent,
the Company or the Surviving Corporation (or any of their respective Affiliates), that generated in the aggregate EBITDA during the fiscal
year ended December 31, 2024 in excess of $25,000,000 (the “Cap”), provided, however, that Parent can compel
the Company to use its reasonable best efforts (and to cause the Company’s Subsidiaries to use their reasonable best efforts) to
take any of the actions referred to in this sentence (or agree to take such actions) with respect to the assets, licenses, operations,
rights, product lines, businesses or interests of the Company and its Subsidiaries so long as the effectiveness of such action is contingent
upon the consummation of the transactions contemplated by this Agreement.
(d) Each
party shall (i) promptly notify the other parties of any substantive communication to that party from the FTC, the Antitrust Division,
any State Attorney General or any other Governmental Authority regarding this Agreement or the transactions contemplated hereby and,
subject to Applicable Law, permit the other parties to review, reasonably in advance, any written communication or presentation proposed
to be submitted to any Governmental Authority with respect to the foregoing and consider in good faith any comments such other may party
may provide thereto; (ii) not agree to participate in any substantive meeting or discussion with any Governmental Authority in respect
of any filings, investigation or inquiry concerning any competition or antitrust matters in connection with this Agreement or the Merger
and the other transactions contemplated hereby unless in each case it consults with the other parties in advance and, to the extent permitted
by such Governmental Authority, gives the other parties the opportunity to attend and participate thereat; and (iii) furnish the other
parties with copies of all filings and material correspondences and communications (and memoranda setting forth the substance thereof)
between them and their Affiliates and their respective representatives, on the one hand, and any Governmental Authority or members or
their respective staffs, on the other hand, with respect to any Competition Laws in connection with this Agreement. The parties hereto
will 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 hereto relating to proceedings under any Competition Law. Notwithstanding
anything to the contrary in this Agreement, and without limiting or expanding the rights and obligations set forth in this Section
8.01, Parent shall have the right to direct all matters with any Governmental Authority consistent with its obligations hereunder;
provided that Parent reasonably consults with, and considers in good faith, the input of the Company; provided, further,
that Parent shall not extend any waiting period under the HSR Act or under any other applicable Competition Law or enter into any agreement
with the FTC or the Antitrust Division or any other Governmental Authority not to consummate the transactions contemplated by this Agreement
without the prior written consent of the Company, which, in the case of the extending any such waiting period, shall not be unreasonably
withheld.
(e) Parent
shall pay and be responsible for all filing fees incurred in connection with the matters contemplated by this Section 8.01.
Section
8.02. Certain Filings. (a) As promptly as practical following the date of this Agreement (any in any event, no later than 15
Business Days after the date of this Agreement, unless the parties otherwise agree in writing), the Company shall prepare (with the assistance
and cooperation of Parent as reasonably requested by the Company) and file or cause to be filed with the SEC a preliminary proxy statement
relating to the Company Stockholders Meeting (as amended or supplemented, the “Proxy Statement”).
(b) The
Company and Parent shall cooperate with one another (i) in connection with the preparation of the Proxy Statement, (ii) in determining
whether any action by or in respect of, or filing with, any Governmental Authority is required, or any actions, consents, approvals or
waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated
by this Agreement and (iii) in taking such actions or making any such filings, furnishing information required in connection therewith
or with the Proxy Statement and seeking timely to obtain any such actions, consents, approvals or waivers.
(c) Each
of Parent and Merger Sub shall, upon the Company’s request, promptly furnish to the Company all information concerning itself,
its Subsidiaries, directors and officers as may be reasonably necessary or advisable in connection with any statement, filing, notice
or application made to the SEC or the NYSE in connection with the Proxy Statement. Parent and the Company shall each use reasonable best
efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after filing. Prior to each filing of the
Proxy Statement or responding to any comments of the SEC with respect thereto, the Company shall provide Parent and its counsel a reasonable
opportunity to review and comment on such document or response (including the proposed final version of such document or response) and
give reasonable and good-faith consideration to any comments made by Parent and its counsel in connection with any such document or response.
The Company shall provide Parent and its counsel with any comments or other communications, whether written or oral, that the Company
or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after receipt of
those comments or other communications. None of the Company, Parent or their respective Representatives shall agree to participate in
any material or substantive meeting or conference (including by telephone) with the SEC, or any member of the staff thereof, in respect
of the Proxy Statement unless it consults with the other party in advance and, to the extent permitted by the SEC, allows the other party
to participate.
(d) The
Company agrees, as to itself and its Subsidiaries, that the Proxy Statement will comply as to form in all material respects with applicable
Law, including the provisions of the 1934 Act and the rules and regulations thereunder. The Company and Parent each agrees, as to itself
and its Subsidiaries, that none of the information supplied or to be supplied by it or its Subsidiaries for inclusion or incorporation
by reference in the Proxy Statement and any amendment or supplement thereto will, at the date of mailing to stockholders and at the times
of the meeting of stockholders of the Company to be held in connection with the Merger, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) If
at any time prior to the receipt of the Company Stockholder Approval, any information relating to the Company, Parent, or any of their
respective Affiliates, officers or directors, should be discovered by the Company or Parent that should be set forth in an amendment
or supplement to the Proxy Statement, so that it would not include any misstatement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which
discovers such information shall promptly notify the other parties and an appropriate amendment or supplement describing such information
shall promptly be prepared and filed with the SEC and, to the extent required under Applicable Law, disseminated to the stockholders
of the Company.
Section
8.03. Public Announcements. The initial press release relating to this Agreement shall be a joint press release mutually agreed
and issued by the Company and Parent. Except in connection with the matters contemplated by Section 6.04 or in connection
with any dispute between the parties regarding this Agreement, the Merger or the other transactions contemplated hereby, Parent and the
Company (a) shall consult with each other before issuing any further press release, having any communication with the press (whether
or not for attribution) or making any other public statement (including any announcement to officers or employees of the Company or its
Subsidiaries), or scheduling any press conference or conference call with investors or analysts, with respect to this Agreement or the
transactions contemplated hereby (other than any press release, communication, public statement, press conference or conference call
which has a bona fide purpose that does not relate to this Agreement or the transactions contemplated hereby and in which this
Agreement and the transactions contemplated hereby are mentioned only incidentally and in a manner consistent with previous press releases,
public disclosures or public statements made jointly by the parties (or individually, if approved by the other party)) and (b) except
in respect of any public statement or press release as may be required by Applicable Law or any listing agreement with or rule of any
national securities exchange or association (provided, in such case, such party has given advance notice (and an opportunity to
review and comment to the extent practicable) to the other party), shall not issue any such press release or make any such other public
statement or schedule any such press conference or conference call before such consultation. Notwithstanding the foregoing, after the
issuance of any press release or the making of any public statement with respect to which the foregoing consultation procedures have
been followed, either party may issue such additional publications or press releases and make such other customary announcements without
consulting with any other party hereto so long as such additional publications, press releases and announcements do not disclose any
nonpublic information regarding the transactions contemplated by this Agreement beyond the scope of the disclosure included in a previous
press release or public statement and such additional publications, press releases or announcements are otherwise consistent with those
with respect to which the other party had consented (or been consulted) in accordance with the terms of this Section 8.02(e).
Section
8.04. Merger without Meeting of Stockholders. Parent shall take all action necessary to cause Merger Sub to perform its obligations
under this Agreement and to consummate the Merger in accordance with and subject to the terms and conditions of this Agreement. Immediately
following the execution of this Agreement, Parent, as sole stockholder of Merger Sub, shall adopt this Agreement.
Section
8.05. Further Assurances. At and after the Effective Time, the officers and directors of the Surviving Corporation shall be
authorized to execute and deliver, in the name and on behalf of the Company or Merger Sub, any deeds, bills of sale, assignments or assurances
and to take and do, in the name and on behalf of the Company or Merger Sub, any other actions and things to vest, perfect or confirm
of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties
or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.
Section
8.06. Section 16 Matters. Prior to the Effective Time, the Company shall take all such steps as may be required to cause any
dispositions of Company Class A Common Shares (as well as Company RSUs, Company PSUs, Company Options and other derivative securities
of Company Class A Common Shares) in connection with the transactions contemplated by this Agreement by each individual who is subject
to the reporting requirements of Section 16(a) of the 1934 Act with respect to the Company to be exempt under Rule 16b-3 promulgated
under the 1934 Act.
Section
8.07. Notices of Certain Events. Each of the Company and Parent shall promptly notify the other of any of the following: (a)
any written notice or other written communication from any Person alleging that the consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement; (b) any written notice or other written communication from any Governmental Authority
in connection with the transactions contemplated by this Agreement; and (c) any Proceedings commenced or, to its Knowledge, threatened
in writing against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries or Parent or any of its Subsidiaries,
as the case may be, that relate to the consummation of the transactions contemplated by this Agreement; provided that a party’s
good-faith failure to comply with this Section 8.07 shall not constitute a breach of this Section 8.07, and shall
not provide any other party the right not to effect, or the right to terminate, the transactions contemplated by this Agreement, except
to the extent that any other provision of this Agreement independently provides such right.
Section
8.08. Litigation and Proceedings. The Company shall promptly notify Parent of any action brought by stockholders of the Company
against the Company and/or its directors relating to this Agreement, the Merger or the other transactions contemplated by this Agreement
(whether directly or on behalf of the Company and its Subsidiaries or otherwise). Prior to the Effective Time, the Company shall control
the defense or settlement of any litigation or other Proceedings against the Company or any of its directors relating to this Agreement,
the Merger or the other transactions contemplated by this Agreement; provided that, other than Proceedings between or among the
parties hereto, the Company shall give Parent the opportunity to consult with the Company prior to the Effective Time and keep Parent
reasonably apprised on a reasonably prompt basis with respect to the defense or settlement of any litigation or other Proceedings against
the Company or any of its directors relating to this Agreement, the Merger and the other transactions contemplated by this Agreement,
including by giving Parent an opportunity to participate, at Parent’s expense, in such litigation or other Proceedings; and provided,
further, that other than Proceedings between or among the parties hereto, the Company agrees that it shall not settle any such litigation
or other Proceedings without the prior written consent of Parent, which shall not be unreasonably withheld, delayed or conditioned.
Section
8.09. Takeover Statutes. If any “control share acquisition,” “fair price,” “moratorium,”
“business combination” or other similar antitakeover statute or regulation shall become applicable to the transactions contemplated
by this Agreement, each of the Company, Parent and Merger Sub and the respective members of their boards of directors shall, to the extent
permitted by Applicable Law, use reasonable best efforts to grant such approvals and to take such actions as are reasonably necessary
so that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated herein
and otherwise to take all such other actions as are reasonably necessary to eliminate or minimize the effects of any such statute or
regulation on the transactions contemplated hereby.
Section
8.10. Treatment of Company Credit Agreement. If requested by Parent, at or immediately prior to the Effective Time, the Company
shall use its reasonable best efforts to deliver to Parent copies of payoff letters (subject to delivery of funds as arranged by Parent),
in commercially reasonable form, from the administration agent under the Company Credit Agreement, and shall use its reasonable best
efforts to make arrangements for the release of all Liens and other security over the Company’s and its Subsidiaries’ properties
and assets securing such obligations on or immediately prior to the Effective Time (subject to delivery of funds as arranged by Parent).
Section
8.11. Treatment of Company Indentures. To the extent requested by Parent and permitted by the terms of the Company Indentures,
the Company shall cooperate with Parent in an offer to purchase at or immediately prior to the Effective Time all of the outstanding
aggregate principal amount of the notes outstanding under the Company Indentures or any other action with respect to such notes reasonably
requested by Parent including delivering (or instructing the applicable trustee to deliver) notices of redemption for the Company Indentures;
provided that (a) in no case will the Company be required to accept for payment any such notes prior to the Effective Time and
(b) Parent agrees to reimburse the Company and its Subsidiaries and hold them harmless from and against any liabilities, losses, costs
and expenses incurred in connection with such offer. Such notices of redemption shall be conditional upon the Closing. The Company shall
reasonably assist Parent in connection with the preparation of such notices of redemption and all other documents as may be required
to affect such redemptions, the discharge of the related indentures and the release of liens in connection therewith, as reasonably requested
by Parent, immediately following the Closing on the Closing Date.
Article
9
Conditions
to the Merger
Section
9.01. Conditions to the Obligations of Each Party. The obligations of the Company, Parent and Merger Sub to consummate the
Merger are subject to the satisfaction of the following conditions:
(a) the
Company Stockholder Approval shall have been obtained in accordance with the DGCL;
(b) no
Order issued by any court of competent jurisdiction or other Governmental Authority, or Applicable Law prohibiting, rendering illegal
or permanently enjoining the consummation of the Merger shall be in effect;
(c) each
approval, as required by the applicable Governmental Authority, set forth in items 1, 2, 4 and 5 of Section 4.03 of the Company
Disclosure Schedule shall have been obtained; and
(d) any
applicable waiting period (including any extension thereof and any timing agreement with a Governmental Authority) under the HSR Act
and the Competition Act (Canada) relating to the Merger shall have expired or been terminated.
Section
9.02. Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger
are subject to the satisfaction of the following additional conditions:
(a) (i)
the Company shall have performed and complied with in all material respects all of the covenants, obligations and agreements hereunder
required to be performed or complied with by it prior to the Closing, (ii) the representations and warranties of the Company contained
in Section 4.01(a) (Corporate Existence and Power),
Section 4.02 (Corporate Authorization), Section 4.04(a) (Non-Contravention), Section 4.05(a) and (b)
(Capitalization), Section 4.23 (Finders’
Fees), Section 4.24 (Opinion of Financial Advisor) and Section 4.25 (Antitakeover Statutes) that (A)
are not qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all respects (but for
de minimis inaccuracies) as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations
and warranties that by their terms address matters only as of another specified time, which shall be so true only as of such time) and
(B) are qualified by Company Material Adverse Effect or other materiality qualifiers shall be true and correct in all respects as of
the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their terms
address matters only as of another specified time, which shall be so true only as of such time) without disregarding such Company Material
Adverse Effect or other materiality qualifiers qualifications, (iii) the representations and warranties of the Company contained in Section
4.10(b) (Absence of Certain Changes) shall be true and correct in all respects as of the Closing Date as if made at and as
of the Closing Date, (iv) the other representations and warranties of the Company contained in this Agreement (disregarding all materiality
and Company Material Adverse Effect qualifications contained therein) shall be true and correct in all respects as of the Closing Date
as if made at and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another
specified time, which shall be so true only as of such time), with only such exceptions in the case of this clause (iv) as have not had
and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and (v) Parent shall
have received a certificate signed by an executive officer of the Company to the effect that the conditions set forth in foregoing clauses
(i) – (iv) have been satisfied.
(b) Since
the date of this Agreement, no Company Material Adverse Effect shall have occurred.
Section
9.03. Conditions to the Obligations of the Company. The obligation of the Company to consummate the Merger is subject to the
satisfaction of the following additional conditions: (a) each of Parent and Merger Sub shall have performed and complied with in all
material respects all of the covenants, obligations and agreements hereunder required to be performed or complied with by it prior to
the Closing, (b) the representations and warranties of Parent and Merger Sub contained in Section 5.01 (Corporate Existence
and Power), Section 5.02 (Corporate Authorization), Section 5.04(a) (Non-Contravention), Section
5.08 (Finders’ Fees) and Section 5.10 (Solvency) that (i) are not qualified by Parent Material Adverse
Effect or other materiality qualifiers shall be true and correct in all respects (but for de minimis inaccuracies) as of the date
hereof and as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that
by their terms address matters only as of another specified time, which shall be so true only as of such time) and (ii) are qualified
by Parent Material Adverse Effect or other materiality qualifiers shall be true and correct in all respects as of the date hereof and
as of the Closing Date as if made at and as of the Closing Date (in each case, other than representations and warranties that by their
terms address matters only as of another specified time, which shall be so true only as of such time) without disregarding such Parent
Material Adverse Effect or other materiality qualifiers qualifications, (c) the other representations and warranties of Parent and Merger
Sub contained in this Agreement (disregarding all materiality and Parent Material Adverse Effect qualifications contained therein) shall
be true and correct in all respects as of the date hereof and as of the Closing Date as if made at and as of the Closing Date (other
than representations and warranties that by their terms address matters only as of another specified time, which shall be so true only
as of such time), with only such exceptions in the case of this clause (c) as have not had and would not reasonably be expected to have,
individually or in the aggregate, a Parent Material Adverse Effect, and (d) the Company shall have received a certificate signed by an
executive officer of Parent to the effect that the conditions set forth in foregoing clauses (a) – (c) have been satisfied.
Article
10
Termination
Section
10.01. Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time
(notwithstanding any approval of this Agreement by the stockholders of the Company and with any termination by Parent also being an effective
termination by Merger Sub):
(a) by
mutual written agreement of the Company and Parent;
(b) by
either the Company or Parent, if:
(i) the
Merger has not been consummated on or before 5:00 p.m. Eastern time on August 24, 2025 (the “Initial Outside Date”,
and as may be extended pursuant to this Section 10.01(b)(i), the “Outside Date”); provided, however,
that the Initial Outside Date shall be automatically extended until 5:00 p.m. New York City time on November 24, 2025 (the “First
Extended Outside Date”) if, on the Initial Outside Date, any of the conditions to Closing set forth in Section 9.01(b)
(to the extent that the failure of such condition to be satisfied arises from an applicable Competition Law) or Section 9.01(d)
shall not have been satisfied or waived and all other conditions to Closing shall have been satisfied or waived (or in the case of conditions
that by their nature are to be satisfied at the Closing, shall be capable of being satisfied on such date); provided further that
the First Extended Outside Date shall be automatically extended until 5:00 p.m. New York City time on February 24, 2026, if, on the First
Extended Outside Date, any of the conditions to Closing set forth in Section 9.01(b) (to the extent that the failure of such condition
to be satisfied arises from an applicable Competition Law) or Section 9.01(d) shall not have been satisfied or waived and all
other conditions to Closing shall have been satisfied or waived (or in the case of conditions that by their nature are to be satisfied
at the Closing, shall be capable of being satisfied on such date); provided, further, that in the event the Marketing Period has
commenced (or would have commenced but for the application of clause (iii) or (v) of the definition of Marketing Period) but has not
completed or has been terminated as of the Outside Date, the Outside Date shall be automatically extended to the date that is seven Business
Days following the then-expected end date of the Marketing Period (assuming, if the Marketing Period has not yet started due to the application
of clause (iii) or (v) of the definition of Marketing Period or has been terminated pursuant to clause (ii) of the definition of Marketing
Period, that the Marketing Period begins as provided therein, and which expected end date shall be further extended if the Marketing
Period restarts as a result of the application of clause (ii) in the definition of Marketing Period); provided further that the
right to terminate this Agreement pursuant to this Section
10.01(b)(i) shall (A) not be available to any party who is in breach of, or has breached, its obligations under this Agreement, where
such breach has materially contributed to or resulted in the failure of the Closing to occur on or before the Outside Date and (B) be
subject to the last sentence of Section 11.13 in all respects;
(ii) there
shall be any Order issued by any court or other Governmental Authority of competent jurisdiction rendering illegal, or permanently restraining,
enjoining or otherwise prohibiting the consummation of the Merger and such Order shall have become final and nonappealable; provided
that, at the time at which such Person would otherwise exercise such termination right, the material breach by such Person (and,
in the case of Parent, Merger Sub’s) of its (or their) obligations under this Agreement has not materially contributed to, or resulted
in, the events specified in this Section 10.01(b)(ii);
or
(iii) at
the Company Stockholders Meeting (including any adjournment or postponement thereof), which shall have been duly convened and at which
a vote on the adoption of this Agreement has been taken, the Company Stockholder Approval shall not have been obtained; or
(c) by
Parent:
(i) prior
to receipt of the Company Stockholder Approval, if an Adverse Recommendation Change shall have occurred; or
(ii) if
a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company set forth in this
Agreement shall have occurred that (A) would cause any of the conditions set forth in Section 9.02(a) not to be satisfied and
(B) is incapable of being cured or, if curable, has not been cured by the date that is 20 Business Days after its receipt of written
notice thereof from Parent (or, if earlier, five Business Days prior to the Outside Date); provided that the right to terminate
this Agreement pursuant to this Section
10.01(c)(ii) shall not be available if Parent or Merger Sub is at such time in material breach, or if there is any inaccuracy, of
any of its representations, warranties, covenants or agreements contained in this Agreement and such breach or inaccuracy would give
rise to the failure of a condition set forth in Section 9.03(a); or
(d) by
the Company, if:
(i) prior
to receipt of the Company Stockholder Approval, the Board of Directors authorizes the Company to enter into a written definitive agreement
concerning a Superior Proposal in accordance and compliance with Section
6.04 (with such agreement being entered into substantially concurrently with the termination of this Agreement); provided that
concurrently with such termination, the Company pays the Company Termination Fee payable pursuant to Section 11.04; or
(ii) a
breach of any representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Sub set forth
in this Agreement shall have occurred (A) that would cause any of the conditions set forth in Section 9.03 not to be satisfied
and (B) that is incapable of being cured or, if curable, has not been cured by the date that is 20 Business Days after its receipt of
written notice thereof from the Company (or, if earlier, five Business Days prior to the Outside Date); provided that the right
to terminate this Agreement pursuant to this Section
10.01(d)(ii) shall not be available if the Company is at such time in material breach, or if there is any inaccuracy, of any of its
representations, warranties, covenants or agreements contained in this Agreement and such breach or inaccuracy would give rise to the
failure of a condition set forth in Section 9.02(a).
The party desiring
to terminate this Agreement pursuant to this Section 10.01
(other than pursuant to Section 10.01(a)) shall give notice
of such termination to the other parties specifying the provision of this Section 10.01 pursuant to which this Agreement is being
terminated.
Section
10.02. Effect of Termination. If this Agreement is terminated pursuant to Section 10.01, this Agreement shall become
void and of no effect without liability of any party to the other parties hereto (or any stockholder, director, officer, employee, agent,
consultant or representative of such party); provided that, subject to Section 11.04(c) and Section 11.04(d) in
all respects, no party shall be relieved of liability to the extent such termination shall result from the fraud or any material and
willful breach of this Agreement by a party prior to termination, and in each such case, such party shall be fully liable for any and
all liabilities and damages that were incurred or suffered by the other parties as a result of such failure or breach (which the parties
acknowledge and agree may not be limited to reimbursement of expenses or out-of-pocket costs and may include the benefit of the bargain
lost by a party’s stockholders (including, in the case of the Company, the premium reflected in the Merger Consideration, which
was specifically negotiated by the Board of Directors on behalf of the Company’s stockholders and taking into consideration all
other relevant matters, including other combination opportunities and the time value of money), which may be deemed in such event to
be damages of such party as determined by the trier of fact). The Confidentiality Agreement and the provisions of this Section 10.02,
Section 6.03(b), Section 8.02(e), this Section 10.02 and Article 11 shall survive any termination
hereof pursuant to Section 10.01; provided that in the event that this Agreement is terminated pursuant to Section
10.01(d)(i), effective immediately as of such termination, Section 9 of the Confidentiality Agreement shall be of no further force
and effect.
Article
11
Miscellaneous
Section
11.01. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including e-mail,
so long as a receipt of such e-mail is requested and received) and shall be given,
if to Parent
or Merger Sub, to:
Quikrete
Holdings, Inc.
5 Concourse
Parkway
Suite 1900
Atlanta,
GA 30328
with a
copy, which shall not constitute notice, to:
Troutman
Pepper Hamilton Sanders LLP
600 Peachtree
St. NE, Suite 3000
Atlanta,
Georgia 30308
| Attention: | David Ghegan; Steven Khadavi |
| E-mail: | david.ghegan@troutman.com |
| |
|
steven.khadavi@troutman.com |
if to the
Company, to:
Summit Materials,
Inc.
1801 California
St. Ste. 3500
Denver, CO
80212
| Attention: | Christopher
B. Gaskill |
with copies,
which shall not constitute notice, to:
Davis Polk
& Wardwell LLP
450 Lexington
Avenue
New York,
New York 10017
| Attention: | James
P. Dougherty |
| | | Evan Rosen |
| E-mail: | james.dougherty@davispolk.com |
| | | evan.rosen@davispolk.com |
or to such other
address or e-mail address as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices,
requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00
p.m. New York City time on a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed
to have been received on the next succeeding business day in the place of receipt.
Section
11.02. No Survival of Representations and Warranties. The representations and warranties contained herein and in any certificate
or other writing delivered pursuant hereto shall not survive the Effective Time.
Section
11.03. Amendments and Waivers. (a) Subject to Section 11.14, any provision of this Agreement may be amended or waived
prior to the Effective Time if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each
party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective; provided that,
after the Company Stockholder Approval has been obtained, there shall be no amendment or waiver that would require the further approval
of the stockholders of the Company under the DGCL without such approval having first been obtained.
(b) No
failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Applicable Law.
Section
11.04. Expenses & Fees. (a) General. Except as otherwise expressly provided herein, all costs and expenses incurred
in connection with this Agreement shall be paid by the party incurring such cost or expense.
(b) Termination
Fee.
(i) If
this Agreement is terminated by the Company pursuant to Section 10.01(d)(i) (Superior Proposal) to enter into a written
definitive agreement with a Third Party or by Parent pursuant to Section 10.01(c)(i) (Adverse Recommendation Change), the
Company shall pay or cause to be paid to Parent in immediately available funds $279,000,000 (in each case, such fee, the “Company
Termination Fee”), in the case of a termination by Parent, within two Business Days after such termination and, in the case
of a termination by the Company, immediately before and as a condition to such termination.
(ii) If,
prior to receipt of the Company Stockholder Approval, (A) this Agreement is validly terminated by (1) Parent or the Company pursuant
to (x) Section 10.01(b)(i) (Outside Date) and at the time of such termination the Company Stockholder Approval has not
been received or (y) Section 10.01(b)(iii) (Company No Vote) or (2) by Parent pursuant to Section 10.01(c)(ii) (Company
Breach), (B) following the execution and delivery of this Agreement and prior to such termination of this Agreement, a bona fide
Acquisition Proposal shall have been publicly announced or publicly disclosed and not publicly withdrawn or otherwise abandoned at
least two Business Days prior to such termination of this Agreement and (C) within 12 months following such termination of this Agreement,
either an Acquisition Proposal is consummated or the Company enters into a definitive agreement providing for the consummation of an
Acquisition Proposal that is subsequently consummated, then the Company shall concurrently with such consummation or entry into a definitive
agreement, pay, or cause to be paid, to Parent the Company Termination Fee by wire transfer of immediately available funds to an account
or accounts designated in writing by Parent. For purposes of this Section
11.04(b)(ii), all references to “twenty percent (20%)” in the definition of “Acquisition Proposal” shall
be deemed to be references to “fifty percent (50%).”
(c) Each
party agrees that (i) the agreements contained in this Section
11.04 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the other parties
would not enter into this Agreement and (ii) in light of the difficulty of accurately determining actual damages with respect to the
foregoing, the right to payment of the Company Termination Fee, as applicable, constitutes a reasonable estimate of the losses, damages,
claims, costs or expenses that will be suffered by reason of any such termination of this Agreement and constitutes liquidated damages
(and not a penalty) (and that neither such amount is excessive or unreasonably large, given the parties’ intent and dealings with
each other) and hereby irrevocably waives, and agrees not to assert in any Proceeding arising out of or relating to this Agreement, any
claim to the contrary.
(d) Notwithstanding
anything herein to the contrary (but subject to Section 11.04(e)), Parent and Merger Sub agree that, except in the case of fraud
by the Company, upon any termination of this Agreement under circumstances where the Company Termination Fee is payable by the Company
pursuant to this Section 11.04 and such Company Termination Fee is paid in full, the receipt by Parent of the Company Termination
Fee shall be deemed to be liquidated damages and the sole and exclusive remedy of Parent and Merger Sub in connection with this Agreement
or the transactions contemplated hereby and neither Parent nor Merger Sub shall seek to obtain any recovery, judgment, or damages of
any kind, including consequential, indirect, or punitive damages, against the Company or any of the Company’s Subsidiaries or any
of their respective directors, officers, employees, partners, managers, members, stockholders, Affiliates or Representatives in connection
with this Agreement or the transactions contemplated hereby, including any breach of this Agreement. Each party acknowledges and agrees
that in no event shall the Company be required to pay the Company Termination Fee on more than one occasion. For the avoidance of doubt,
nothing in this Section 11.04(d) shall limit any remedies of Parent or the Company prior to any such termination of this Agreement
under circumstances where the Company Termination Fee is payable pursuant to this Section 11.04, including specific performance
pursuant to Section 11.13. In no event will any party be entitled to receive both (A) a grant of specific performance which results
in the consummation of the Closing as contemplated in this Agreement and (B) payment of the Company Termination Fee.
(e) If
the Company or Parent fails to promptly pay any amount due pursuant to this Section 11.04 and, in order to obtain such payment,
Parent or the Company, as applicable, commences a Proceeding that results in a judgment against the other for such amount or any portion
thereof, the responsible party will pay the other its reasonable out-of-pocket fees, costs and expenses (including reasonable attorneys’
fees) in connection with such Proceeding, together with interest on such amount due or portion thereof at the annual rate of 5% plus
the prime rate as published in The Wall Street Journal in effect on the date that such payment or portion thereof was required
to be made through the date that such payment or portion thereof was actually received, or a lesser rate that is the maximum permitted
by Applicable Law.
Section
11.05. Disclosure Schedule and SEC Document References. The parties hereto agree that any reference in a particular section
of the Company Disclosure Schedule or Parent Disclosure Schedule shall be deemed to be an exception to (or, as applicable, a disclosure
for purposes of) (a) the representations and warranties (or covenants, as applicable) of the Company or either Parent or Merger Sub,
as applicable, that are contained in the corresponding section of this Agreement and (b) any other representations and warranties (or
covenants, as applicable) of the Company or either Parent or Merger Sub, as applicable, that are contained in this Agreement, but only
if the relevance of that reference as an exception to (or a disclosure for purposes of) such representations and warranties (or covenants,
as applicable) is reasonably apparent on its face. The mere inclusion of an item in the Company Disclosure Schedule or Parent Disclosure
Schedule will not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that
such item has had or would reasonably be expected to have a Company Material Adverse Effect or Parent Material Adverse Effect, and the
disclosure therein of any allegations with respect to any alleged breach, violation or default under any contractual or other obligation,
or any law, is not an admission that such breach, violation or default has occurred. Headings and subheadings have been inserted in certain
sections of the Company Disclosure Schedule and Parent Disclosure Schedule for convenience of reference only and will not be considered
a part of or affect the construction or interpretation of such sections. The information provided in the Company Disclosure Schedule
or Parent Disclosure Schedule is being provided solely for the purpose of making disclosures under this Agreement. In disclosing such
information, the disclosing party does not waive, and expressly reserves any rights under, any attorney-client privilege associated with
such information or any protection afforded by the work-product doctrine with respect to any of the matters disclosed or discussed therein.
Section
11.06. Binding Effect; Third Party Beneficiaries; Assignment. (a) Subject to Section 11.06(b), the provisions of
this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns
and no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any
Person other than the parties hereto and their respective successors and assigns, other than: (i) with respect to the provision of Section
7.02, which shall insure to the benefit of the Persons benefiting therefrom who are intended to be third-party beneficiaries thereof;
(ii) the right of any holders of Company Common Shares, Company RSUs, Company PSUs, Company Warrants and Company Options to receive the
Merger Consideration following the Effective Time in accordance with, and subject to, the terms and conditions of this Agreement (including
Section 11.04(d)); and (iii) the right of the Company, on behalf of the holders of Company Common Shares, Company RSUs, Company
PSUs, Company Warrants and Company Options (each of which are third party beneficiaries of this Agreement to the extent required for
this clause (iii) to be enforceable), to pursue specific performance as set forth in Section 11.13, it being agreed that in no
event shall any such holder be entitled to enforce any of their rights, or any of Parent’s or Merger Sub’s obligations, under
this Agreement in the event of any such breach, but rather the Company shall have the sole and exclusive right to do so, as agent for
such holders.
(b) No
party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other
party hereto; provided that either Parent or Merger Sub may transfer or assign its rights and obligations under this Agreement,
in whole or from time to time in part, to (i) another wholly owned direct or indirect Subsidiary of Parent or (ii) after the Effective
Time, to any Person (provided that, in each case, no such assignment shall relieve Parent or Merger Sub of its obligations under
this Agreement or enlarge, alter or change any obligation of any party hereto or due to Parent or Merger Sub). Any purported assignment,
delegation or other transfer without such consent or otherwise consistent with the foregoing sentence shall be void.
Section
11.07. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware,
without regard to the conflicts of law rules or other rules that would result in the application of the laws of a different jurisdiction.
Any and all claims, controversies, causes of action, or other Proceedings arising out or relating to this Agreement, whether sounding
in contract, tort, or statute, shall be governed by the laws of the State of Delaware, without giving effect to any conflicts of law
rules or other rules that would result in the application of the laws of a different jurisdiction.
Section
11.08. Jurisdiction. The parties hereto agree that any Proceeding seeking to enforce any provision of, relating to, or in connection
with, this Agreement shall be brought exclusively in the Delaware Chancery Court or, if such court shall not have or declines jurisdiction,
any federal court or other Delaware state courts, in each case, located in New Castle County in the State of Delaware (collectively,
the “Chosen Courts”), and each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction
of such Chosen Courts (and of the appropriate appellate courts therefrom) in any such Proceeding and irrevocably waives, to the fullest
extent permitted by Applicable Law, any objection that it may now or hereafter have to the laying of the venue of any such Proceeding
in any such Chosen Court or that any such Proceeding brought in any such Chosen Court has been brought in an inconvenient forum. Process
in any such Proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 11.01 shall
be deemed effective service of process on such party.
Section
11.09. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY AND ALL RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 11.09.
Section
11.10. Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when
each party hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party has
received a counterpart hereof signed by each other party hereto, this Agreement shall have no effect and no party shall have any right
or obligation hereunder (whether by virtue of any other oral or written definitive agreement or other communication).
Section
11.11. Entire Agreement. This Agreement and the Confidentiality Agreement constitute the entire agreement between the parties
with respect to the subject matter of this Agreement and supersede all prior agreements and understandings, both oral and written, between
the parties with respect to the subject matter of this Agreement. Notwithstanding anything in this Agreement to the contrary, the parties
acknowledge and agree that, solely for purposes of Section 251 of the DGCL, the Company Disclosure Schedule is not incorporated by reference
into, and shall not be deemed to constitute a part of, this Agreement or the “agreement of merger.”
Section
11.12. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic
or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated
to the fullest extent possible.
Section
11.13. Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement
were not performed in accordance with its terms, and that monetary damages, even if available, would not be an adequate remedy therefor.
Accordingly, the parties hereto agree that the parties shall be entitled to an injunction or injunctions, or any other appropriate form
of equitable relief, to prevent or restrain breaches or threatened breaches of this Agreement or to enforce specifically the performance
of the terms and provisions hereof, without the necessity of proving that irreparable damage would occur or the inadequacy of money damages
as a remedy (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), in
addition to any other remedy to which they are entitled at law or in equity. The parties hereto hereby waive any defense, and agree not
to assert (or interpose as a defense or in opposition), that a remedy of specific performance or other equitable relief is unenforceable,
invalid, contrary to law or inequitable for any reason, that a remedy of monetary damages would provide an adequate remedy or that the
parties otherwise have an adequate remedy at law.
Section
11.14. Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary, the Company and Parent, on behalf
of themselves and their Subsidiaries, hereby: (a) (i) agree that any action, whether in law or in equity, whether in contract or in tort
or otherwise, involving any Debt Financing Sources Related Party, arising out of or relating to, this Agreement, the Debt Financing or
any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or
the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough
of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and (ii) irrevocably
submits itself and its property with respect to any such action to the exclusive jurisdiction of such court, and such action (except
to the extent relating to the interpretation of any provisions in this Agreement (including any provision in any documentation related
to the Debt Financing that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance
with the law of the State of New York)) shall be governed by the laws of the State of New York (without giving effect to any conflicts
of law principles that would result in the application of the laws of another jurisdiction), (b) agree not to bring or support, or permit
any of their Affiliates to bring or support any action of any kind or description, whether in law or in equity, whether in contract or
in tort or otherwise, against any Debt Financing Sources Related Party in any way arising out of or relating to, this Agreement, the
Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other
than any federal or state court in the Borough of Manhattan, New York, New York, (c) agree that service of process upon the Company or
Parent, or any of their Subsidiaries in any such action or proceeding shall be effective if notice is given in accordance with Section
11.01, (d) waive, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of
such action in any such court, (e) waive, to the fullest extent permitted by Applicable Law, all rights of trial by jury in any action
brought against the Debt Financing Sources Related Parties in any way arising out of or relating to this Agreement, the Debt Financing
or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, and (f) agree that (i) the Debt
Financing Sources Related Parties are express third party beneficiaries of, and may enforce, the foregoing agreements in Section 11.04(b)
(solely to the extent that it relates to the Debt Financing Sources) and this Section 11.14 and (ii) such provisions (and
any other provision of this Agreement to the extent an amendment, supplement, waiver or other modification of such provision would modify
the substance of this Section 11.14) together with Section 11.07 shall not be amended in any way adverse to any Debt Financing
Source Related Parties without the prior written consent of each related Debt Financing Source. Without limiting Parent’s rights
to enforce specifically (or otherwise) the terms and provisions of the Debt Commitment Letter against the Debt Financing Sources Related
Parties, (a) no party hereto nor any of their Affiliates (other than Parent and Merger Sub) shall have any rights or claims against any
Debt Financing Source in connection with this Agreement, the Merger, the Debt Financing or the transactions contemplated hereby or thereby,
and no Debt Financing Source shall have any rights or claims against any party hereto (other than Parent and Merger Sub) in connection
with this Agreement, the Merger, the Debt Financing or the transactions contemplated hereby or thereby, whether at law or equity, in
contract, in tort or otherwise and (b) no Debt Financing Sources Related Party will have any liability to the Company or any of its Subsidiaries
in connection with this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of
any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise. Without limiting Parent’s rights
to enforce specifically (or otherwise) the terms and provisions of the Debt Commitment Letter against the Debt Financing Sources Related
Parties, no Debt Financing Sources Related Party will be liable for any indirect, consequential, special or punitive damages in connection
with this Agreement or any other element of the Merger. For the avoidance of
doubt, nothing in this Section 11.14 shall limit the rights of
the Parent against the Debt Financing Sources under the Debt Commitment Letter or any definitive documentation with respect to the Debt
Financing. This Section 11.14 will, with respect to the matters referenced herein, supersede any provisions of this Agreement
to the contrary. The provisions of this Section 11.14 will survive any termination of this Agreement.
[The remainder
of this page has been intentionally left blank;
the next page
is the signature page.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the
date set forth on the cover page of this Agreement.
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SUMMIT MATERIALS, INC. |
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By: |
/s/ Anne P. Noonan |
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Name: Anne P. Noonan |
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Title: President, Chief Executive
Officer and Director |
[Signature Page
to Merger Agreement]
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QUIKRETE HOLDINGS, INC. |
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|
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By: |
/s/ William R. Magill |
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Name: William R. Magill |
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Title: Chief Executive Officer |
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SOAR SUBSIDIARY, INC. |
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By: |
/s/ William R. Magill |
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Name: William R. Magill |
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|
Title: Chief Executive Officer
|
[Signature Page
to Merger Agreement]
Exhibit 99.1
VOTING AGREEMENT
This
VOTING AGREEMENT (this “Agreement”), dated as of November 24, 2024, is by and among (i) Quikrete Holdings, Inc., a
Delaware corporation (“Parent”), and (ii) in their respective capacities as record and beneficial owners of Common
Shares (as defined below), Cementos Argos S.A., a sociedad anónima incorporated in the Republic of Colombia (“Cementos”),
Argos SEM LLC, a Delaware limited liability company (“Argos SEM”), Valle Cement Investments, Inc., a sociedad anónima
incorporated in the Republic of Panama (“Valle Cement” and, together with Cementos and Argos SEM, the “Stockholders”).
Each of Parent and the Stockholders are sometimes referred to as a “Party” and collectively as the “Parties.”
RECITALS
A. Concurrently
with the execution and delivery of this Agreement, Parent, Summit Materials, Inc., a Delaware corporation (the “Company”),
and Soar Subsidiary, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), are entering
into an Agreement and Plan of Merger (as it may be amended, supplemented or otherwise modified from time to time, the “Merger
Agreement”) that, among other things and subject to the terms and conditions set forth therein, provides for the merger of
Merger Sub with and into the Company, with the Company being the surviving corporation (the “Merger”);
B. As
of the date hereof, (i) each Stockholder is the record holder and “beneficial owner” (within the meaning of Rule 13d-3 under
the Exchange Act) of the number of shares of Class A common stock, par value $0.01 per share, of the Company (“Common Shares”)
set forth next to such Stockholder’s name on Schedule A hereto (the “Owned Shares”, and the Owned Shares
together with any additional Common Shares or other equity interests of the Company (other than the Preferred Share (as defined below))
that the Stockholder may own as of the date hereof or acquire record and/or beneficial ownership of after the date hereof (including
pursuant to a stock split, reverse stock split, stock dividend or distribution or any change in Common Shares by reason of any recapitalization,
reorganization, combination, reclassification, exchange of shares or similar transaction), the Stockholder’s “Covered
Shares”) and (ii) Cementos is the record holder and “beneficial owner” of one share of preferred stock, par value
$0.01 per share (the “Preferred Share”), collectively being all of the Common Shares and Preferred Shares owned of
record or beneficially by the Stockholders as of the date hereof;
C. As
a condition and material inducement to Parent’s and Merger Sub’s willingness to enter into the Merger Agreement, Parent has
required Stockholders, and each Stockholder has agreed to, enter into this Agreement with respect to such Stockholder’s Covered
Shares.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below
and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, do hereby agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
When used in this Agreement, the following terms shall have the meanings assigned to them in this Section 1.
1.1 “Expiration
Time” shall mean the earliest to occur of (a) the Effective Time, (b) such time as the Merger Agreement is validly terminated
in accordance with the terms of Article 10 of the Merger Agreement, (c) the termination of this Agreement by written agreement of all
of the Parties, (d) the date on which any amendment or waiver to the Merger Agreement is effected without the prior written consent of
Cementos that (i) decreases the Merger Consideration, (ii) changes the form of the Merger Consideration or (iii) is otherwise adverse
to the Stockholders in their capacities as record and beneficial owners of Covered Shares, in any material respect, or (e) the occurrence
of an Adverse Recommendation Change in respect of an Intervening Event in accordance with Section 6.04(b)(ii)(B) of the Merger Agreement.
1.2 “Transfer”
shall mean (a) any direct or indirect offer, sale, assignment, encumbrance, gift, tender, exchange, pledge, hypothecation, disposition,
or other transfer (by operation of Law or otherwise), either voluntary or involuntary, or entry into any option or other contract, arrangement
or understanding with respect to any offer, sale, assignment, encumbrance, gift, tender, exchange, pledge, hypothecation, disposition
or other transfer (by operation of Law or otherwise), of the Covered Shares or any interest in the Covered Shares (in each case other
than this Agreement); (b) the deposit of the Covered Shares into a voting trust, the entry into a voting agreement or arrangement (other
than this Agreement) with respect to the Covered Shares or the grant of any proxy or power of attorney (other than this Agreement or
the proxy or power of attorney existing in the Stockholder Agreement as in effect as of the execution of this Agreement) with respect
to the Covered Shares; or (c) any contract or commitment (whether or not in writing) to take any of the actions referred to in the foregoing
clauses (a) or (b) above; provided, that liens on the Covered Shares in favor of a bank or broker-dealer, in each case holding
custody of or otherwise lending against the Covered Shares in the ordinary course of business, shall not be considered a Transfer hereunder
(“Permitted Pledge”).
2. Agreement
to Not Transfer the Covered Shares.
(a) Until
the earlier of the Expiration Time and such time as the Company Stockholder Approval has been obtained, each Stockholder agrees not to
Transfer or cause or permit the Transfer of, directly or indirectly, the Covered Shares, other than with the prior written consent of
Parent or as permitted by Section 2(b). Any Transfer or attempted Transfer of the Covered Shares in violation of this Section
2(a) shall be null and void and of no effect whatsoever.
(b) Section
2(a) above shall not prohibit or otherwise restrict a Transfer of the Covered Shares to any other Stockholder or any of the Affiliates
of any Stockholder in accordance with the Stockholder Agreement; provided, however, that such Transfer shall be permitted only if (1)
all of the representations and warranties in Section 6 of this Agreement with respect to the Stockholders would be true and correct
in all material respects upon such Transfer, subject to necessary adjustment as a result of such Transfer and (2) the transferee has
agreed in a written document, reasonably satisfactory in form and substance to Parent, to be bound by all of the terms of this Agreement.
3. Agreement
to Vote the Covered Shares.
3.1 Voting
Agreement. Until the Expiration Time, at every meeting of the Company’s stockholders at which any of the following matters
are to be voted on (and at every adjournment or postponement thereof), and on any action or approval of the Company’s stockholders
by written consent with respect to any of the following matters, each Stockholder irrevocably and unconditionally agrees to cause to
be present in person or represented by proxy and to vote (including via proxy) all of the Covered Shares (or, if applicable, cause the
holder of record on any applicable record date to vote (including via proxy) all of the Covered Shares) (a) in favor of any proposal
to approve the adoption of the Merger Agreement and approve the Merger; (b) in favor of any proposal to postpone, recess or adjourn a
meeting at which there is a proposal for stockholders of the Company to approve the adoption of the Merger Agreement to a later date
if there are not sufficient votes to approve the adoption of the Merger Agreement or if there are not sufficient Common Shares present
in person or represented by proxy at such meeting to constitute a quorum; and (c) against, and not provide any written consent with respect
to or for, the approval or adoption of (i) any amendment or modification of the Company’s organizational documents, any reorganization,
recapitalization, sale of all or substantially all of the assets, liquidation or winding up of, or any other extraordinary transaction
involving the Company or any of its Subsidiaries or any other action or agreement that is intended or would reasonably be expected to,
result in any of the conditions to the Company’s, Parent’s or Merger Sub’s obligations set forth in Article 9 under
the Merger Agreement not being fulfilled or result in a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company contained in the Merger Agreement or such Stockholder contained in this Agreement, (ii) any Acquisition Proposal,
(iii) any proposal that delays or imposes any additional restrictions or conditions on the payment of the Merger Consideration or imposes
any additional conditions on the consummation of the Merger, or (iv) any proposal that alters or changes the amount or kind of consideration
to be paid to the holders of Company Securities in connection with the Merger.
3.2 Quorum;
Procedure. Until the Expiration Time, at every meeting of the Company’s stockholders (and at every adjournment or postponement
thereof) at which the Merger Agreement (or any amended version thereof) or the transactions contemplated by the Merger Agreement, are
submitted for the consideration and vote of the stockholders of the Company, each Stockholder shall be represented in person or by proxy
at such meeting (or, if applicable, cause the holders of record on any applicable record date to be represented in person or by proxy
at such meeting) in order for the Covered Shares to be counted as present for purposes of establishing a quorum. Any vote required to
be cast hereunder shall be cast in accordance with all applicable procedures so as to ensure that it is duly counted for purposes of
establishing a quorum and for purposes of recording the results of that vote.
3.3 Return
of Proxy. Each Stockholder hereby revokes (and agrees to cause to be revoked and to promptly communicate in writing notice of such
revocation to the relevant proxy holder) any proxies that such Stockholder has heretofore granted with respect to the Covered Shares;
provided that, for the avoidance of doubt, no Stockholder revokes (and shall not cause to be revoked) any proxies granted pursuant
to the Stockholder Agreement. Each Stockholder shall execute and deliver (or, if applicable, cause the holder of record to execute and
deliver), promptly upon receipt (but in any event no later than the deadline for the timely return of such proxy card or voting instructions),
any proxy card or voting instructions it receives that are sent to stockholders of the Company soliciting proxies with respect to any
matters described in Section 3.1, which shall be voted in the manner described in Section 3.1 (with Parent to be promptly
notified (and provided reasonable evidence) of such execution and delivery of such proxy card or voting instructions).
3.4 No
Inconsistent Agreements.
(a) Each
Stockholder hereby represents, warrants, covenants and agrees that, except for this Agreement or pursuant to the Stockholder Agreement,
it (i) has not entered into, and shall not enter into at any time prior to the Expiration Time, any voting agreement or voting trust
with respect to the Covered Shares, except to the extent permitted hereunder and (ii) has not granted, and shall not grant at any time
prior to the Expiration Time, a proxy or power of attorney with respect to the Covered Shares, in either case, which is inconsistent
with such Stockholder’s obligations pursuant to this Agreement.
(b) Until
the Expiration Time, the Stockholder shall not, shall cause its Subsidiaries not to and shall instruct its and their respective Representatives
acting on their behalf not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly induce the making, submission
or announcement of, or knowingly facilitate or encourage the submission of any inquiry or proposal that constitutes, or would reasonably
be expected to lead to, any Acquisition Proposal, (ii) enter into, participate in, engage in or respond to any discussions or negotiations
with or otherwise knowingly cooperate with, any Third Party, in each case relating to an Acquisition Proposal by such Third Party or
that would reasonably be expected to lead to an Acquisition Proposal, or (iii) enter into any agreement in principle, letter of intent,
term sheet, memorandum of understanding, merger agreement, acquisition agreement, option agreement, share exchange agreement, joint venture
agreement, other agreement or other similar instrument providing for, or that would reasonably be expected to lead to, an Acquisition
Proposal. Until the Expiration Time, each Stockholder shall, and shall cause its Subsidiaries and its and their Representatives acting
on their behalf to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations with any
third party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal.
(c) Until
the Expiration Time, each Stockholder shall not, shall cause its Subsidiaries not to and shall instruct its and their respective Representatives
acting on their behalf not to, directly or indirectly, (i) make any Acquisition Proposal to the Company, (ii) form or join a “group”
(as defined in Section 13(d)(3) under the Exchange Act) for the purpose of making any Acquisition Proposal, (iii) other than in accordance
with Section 9.10, make any public announcement with respect to any extraordinary transaction involving the Company or its Subsidiaries
or its or its Subsidiaries’ securities or material assets, or (iv) agree (whether or not in writing) to take any of the actions
referred to in this Section 3.4(c).
(d) Any
action taken in violation of the foregoing shall be null and void ab initio.
(e) This
Agreement shall not restrict the ability of any Stockholder to review any Acquisition Proposal or Superior Proposal received by the Company
and shared with such Stockholder and to discuss and confirm to the Company the willingness of such Stockholder to support and sign a
voting and support agreement with respect to such Acquisition Proposal or Superior Proposal in the event the Merger Agreement is terminated
in accordance with Section 10.01(d)(i) of the Merger Agreement.
3.5 Acquisitions
of Common Shares. Prior to the Expiration Time, in the event that any Stockholder acquires record or beneficial ownership of, or
the power to vote or direct the voting of, any additional Common Shares or other voting securities with respect to the Company, such
Common Shares or voting securities shall, without further action of the parties, be deemed Covered Shares and subject to the provisions
of this Agreement, and the number of Common Shares held by such Stockholder will be deemed amended accordingly and such Common Shares
or voting securities shall automatically become subject to the terms of this Agreement. The applicable Stockholder shall promptly notify
Parent of any such event.
4. Waiver
of Certain Actions; Stop Transfer. Each Stockholder hereby agrees that (a) it shall not commence or pursue and (b) it shall take
all actions necessary to opt out of any class in any class action with respect to, in each of cases (a) and (b), any claim, derivative
or otherwise, against Parent, Merger Sub, the Company or any of their respective Affiliates, successors, directors, managers or officers
(i) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement
(including any claim seeking to enjoin or delay the closing of the Merger), (ii) alleging a breach of any duty of the Board of Directors
of the Company in connection with the Merger Agreement, this Agreement or the transactions contemplated thereby, including the Merger,
or (iii) seeking Appraisal Rights (as defined herein) prior to the Expiration Time in connection with the Merger. The Stockholder hereby
agrees that it shall not assert, exercise or perfect, directly or indirectly, any appraisal rights (including under Section 262 of the
DGCL) with respect to the Merger and any rights to dissent with respect to the Merger (collectively, “Appraisal Rights”),
in each case, prior to the Expiration Time. Each Stockholder hereby agrees that it shall not request that the Company register any transfer
of any Certificate or Uncertificated Share or other interest representing the Covered Shares made in violation of the restrictions set
forth in Section 2 until the Expiration Time. Notwithstanding the foregoing, nothing in this Section 4 shall constitute,
or be deemed to constitute, a waiver or release by any Stockholder of any claim or cause of action against Parent to the extent arising
out of a breach of this Agreement by Parent.
5. Fiduciary
Duties. Nothing in this Agreement shall limit or restrict any actions taken by any Affiliate of the Stockholders, solely in such
Affiliate’s capacity as a director of the Company in order to comply with his or her fiduciary duties while acting in such capacity
as a director of the Company or fulfilling the obligations of such role, including by voting, solely in his or her capacity as a director
of the Company, in his or her sole discretion on any matter (it being understood that this Agreement shall apply to the Stockholders
solely in their respective capacities as stockholders of the Company), including with respect to Section 6.04 of the Merger Agreement.
In this regard, no Stockholder shall be deemed to make any agreement or understanding in this Agreement in such Stockholder’s Affiliates’
capacity as a director of the Company. The representations, warranties, covenants and agreements made herein by each Stockholder are
made solely with respect to such Stockholder and the Covered Shares.
6. Representations
and Warranties of the Stockholder. Each Stockholder hereby represents and warrants to Parent that:
6.1 Due
Authority. Such Stockholder has the full power and authority to make, enter into and carry out the terms of this Agreement. Such
Stockholder (a) is duly organized, validly existing and in good standing in accordance with the Laws of its jurisdiction of formation,
as applicable and (b) has all requisite corporate or similar power (as applicable) and authority and has taken all corporate or similar
action necessary in order to execute and deliver this Agreement, to grant the proxy described in Section 3.4(b), to perform its
obligations under this Agreement and consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement,
the performance of such Stockholder’s obligations hereunder, the consummation of the transactions contemplated hereby have been
validly authorized, and no other consents or authorizations are required to give effect to this Agreement, or the transactions contemplated
by this Agreement. This Agreement has been duly and validly executed and delivered by such Stockholder and, assuming due authorization,
execution and delivery by Parent, constitutes a valid and binding obligation of such Stockholder enforceable against it in accordance
with its terms, subject to the Enforceability Exceptions.
6.2 Ownership
of the Covered Shares. (a) Such Stockholder is, as of the date hereof, the record and beneficial owner of the Covered Shares set
forth next to its name on Schedule A hereto, free and clear of any and all encumbrances other than those (i) created by this Agreement,
or (ii) under the Stockholder Agreement, (iii) arising under applicable securities Laws or (iv) that constitute a Permitted Pledge, and
(b) such Stockholder, together with the other Stockholders has voting and dispositive power over all of the Covered Shares owned of record
and beneficially by such Stockholder. Such Stockholder has not entered into any agreement to Transfer any Covered Shares. As of the date
hereof, such Stockholder does not own, beneficially or of record, any Common Shares or other voting shares of the Company (or any securities
convertible, exercisable or exchangeable for, or rights to purchase or acquire, any Common Shares or other voting shares of the Company,
including Company Securities) other than the Owned Shares and the Preferred Share.
6.3 No
Conflict; Consents.
(a) The
execution and delivery of this Agreement by such Stockholder does not, and the performance by such Stockholder of its obligations under
this Agreement and the compliance by such Stockholder with any provisions hereof does not and will not: (i) conflict with or violate
any Laws, or (ii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become
a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation
of a Lien on any of the Covered Shares of such Stockholder pursuant to any Contract or obligation to which such Stockholder is a party
or by which such Stockholder is subject.
(b) No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations promulgated
under the Exchange Act, filing with, any Governmental Authority or any other Person, is required by or with respect to such Stockholder
in connection with the execution and delivery of this Agreement or the performance by it of its obligations contemplated hereby, except,
in each case, as would not reasonably be expected to, individually or in the aggregate, materially prevent, delay or impair or otherwise
adversely impact such Stockholder’s ability to perform its obligations hereunder.
6.4 Absence
of Litigation. As of the date hereof, there is no legal action pending against, or, to the knowledge of such Stockholder, threatened
against or affecting such Stockholder that would reasonably be expected to impair the ability of such Stockholder to perform its obligations
hereunder or to consummate the transactions contemplated hereby.
6.5 Stockholder
Has Adequate Information. Each Stockholder acknowledges that it is a sophisticated investor with respect to the Covered Shares and
has adequate information concerning the business and financial condition of the Company and the transactions contemplated by the Merger
Agreement to make an informed decision regarding the transactions contemplated by this Agreement and has, independently and without reliance
upon Parent, the Company or any Affiliate of Parent and the Company, and based on such information as such Stockholder has deemed appropriate,
made such Stockholder’s own analysis and decision to enter into this Agreement. Each Stockholder has received and reviewed a copy
of this Agreement and the Merger Agreement and such Stockholder acknowledges that it has had the opportunity to seek, and has sought,
independent legal advice prior to executing this Agreement and fully understands and accepts all of the provisions hereof and of the
Merger Agreement.
6.6 Brokers.
No broker, investment banker, financial advisor, finder, agent or other person is entitled to any broker’s, finder’s, financial
advisor’s or other similar fee or commission that is payable by Parent or any of its Subsidiaries in connection with the transactions
contemplated by the Merger Agreement based upon arrangements made by or on behalf of such Stockholder in such Stockholder’s capacity
as such (excluding, for the avoidance of doubt any such broker, investment banker, financial advisor, finder, agent or other person retained
or engaged by the Company).
7. Representations
and Warranties of Parent. Parent hereby represents and warrants to each Stockholder that:
7.1 Due
Authority. Parent has the full power and authority to make, enter into and carry out the terms of this Agreement. Parent (a) is duly
organized, validly existing and in good standing in accordance with the Laws of its jurisdiction of formation, as applicable, and (b)
has all requisite corporate or similar power (as applicable) and authority and has taken all corporate or similar action necessary in
order to execute and deliver this Agreement, to perform its obligations under this Agreement and consummate the transactions contemplated
by this Agreement. The execution and delivery of this Agreement, the performance of Parent’s obligations hereunder, the consummation
of the transactions contemplated hereby have been validly authorized, and no other consents or authorizations are required to give effect
to this Agreement, or the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered
by Parent and, assuming due authorization, execution and delivery by the Stockholders, constitutes a valid and binding obligation of
Parent enforceable against it in accordance with its terms, subject to the Enforceability Exceptions.
7.2 No
Conflict; Consents.
(a) The
execution and delivery of this Agreement by Parent does not, and the performance by Parent of its obligations under this Agreement and
the compliance by Parent with any provisions hereof does not and will not, conflict with or violate any Laws.
(b) No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations promulgated
under the Exchange Act, filing with, any Governmental Authority or any other Person, is required by or with respect to Parent in connection
with the execution and delivery of this Agreement or the performance by it of its obligations contemplated hereby, except, in each case,
as would not reasonably be expected to, individually or in the aggregate, materially prevent, delay or impair or otherwise adversely
impact Parent’s ability to perform its obligations hereunder.
7.3 Absence
of Litigation. As of the date hereof, there is no legal action pending against, or, to the knowledge of Parent, threatened against
or affecting Parent that would reasonably be expected to materially impair the ability of Parent to perform its obligations hereunder
or to consummate the transactions contemplated hereby.
8. Restrictive
Covenant Agreement.
8.1 So
long as each of the RCA Conditions has been satisfied, (a) the Parent agrees to take all actions necessary or advisable to ensure that,
effective as of immediately following the Closing, Sections 3 (Non-Compete) and 4 (ROFO Opportunities) of the Restrictive
Covenant Agreement, dated as of January 12, 2024 (the “RCA”), by and between Grupo Argos S.A., Cementos, and the Company,
shall be of no further force and effect, including to, and to cause the Company to execute and deliver a written amendment to the RCA
in the form attached hereto as Exhibit A effective immediately after the Closing, and (b) Parent agrees that neither it nor any
of its Affiliates shall attempt to enforce such provisions after the Closing.
8.2 “RCA
Conditions” means (a) each Stockholder voted (in person or by proxy) in favor of each proposal to approve the adoption of the
Merger Agreement and approve the Merger at each applicable Company Stockholders Meeting to the extent required under this Agreement and
(b) the Closing has occurred.
9. Miscellaneous.
9.1 Certain
Adjustments. In the event of a stock split, stock dividend or distribution, or any change in the Common Shares by reason of any split-up,
reverse stock split, recapitalization, combination, reclassification, exchange of shares or the like, the terms “Common Shares”,
and “Covered Shares” shall be deemed to refer to and include such shares as well as all such stock dividends and distributions
and any securities into which or for which any or all of such shares may be changed or exchanged or which are received in such transaction.
9.2 Amendments
and Waivers. This Agreement may be amended or any provision of this Agreement may be waived by the Parties; provided, that
(i) any amendment shall be binding only if such amendment is set forth in a writing executed by each of the Stockholders and Parent,
and (ii) any waiver of any provision of this Agreement shall be effective against any Stockholder or Parent only if set forth in a writing
executed by such Stockholder or Parent, as applicable; provided, further, that this Agreement may not be amended or modified
and no provision may be waived without the prior written consent of the Company. No course of dealing between or among any Persons having
any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations
of any person under or by reason of this Agreement. No failure or delay of any Party in exercising any right or remedy hereunder shall
operate as a waiver thereof, nor shall 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.
9.3 Expenses.
All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the
Party incurring such fees, costs or expenses.
9.4 Notices.
Any notice or other communication required or permitted hereunder will be in writing and will be deemed given or made on the date of
receipt by the recipient thereof if received prior to 5:00 p.m. (New York time) (or otherwise on the next succeeding Business Day) if
(a) served by personal delivery or by nationally recognized overnight courier service upon the Party or Parties for whom it is intended,
(b) delivered by registered or certified mail, return receipt requested or (c) sent by email; provided, that any email transmission
is promptly confirmed by a responsive electronic communication by the recipient thereof or receipt is otherwise clearly evidenced (excluding
out-of-office replies or other automatically generated responses) or is followed up within one Business Day after such email by dispatch
pursuant to one of the methods described in the foregoing clauses (a) and (b) of this Section 9.4). Such communications must be
sent to the respective Parties at the following street addresses or email addresses (as may be amended, supplemented or modified from
time to time in writing); (it being understood that rejection or other refusal to accept or the inability to deliver because of
changed street address or email address of which no notice was given in accordance with this Section 9.4 shall be deemed to be
receipt of such communication as of the date of such rejection, refusal or inability to deliver):
(a) if
to the Stockholders, to:
Cementos Argos S.A.
Carrera 43A # 1A sur –
143
Centro Santillana, Torre Norte,
Piso 3
Medellín, Colombia
Attention: Maria Isabel
Echeverri
Email: [***]
with a copy (which shall not
constitute notice) to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attention: Sergio Galvis;
Scott Crofton
E-mail: galviss@sullcrom.com
croftons@sullcrom.com
(b) if
to Parent, to:
Quikrete Holdings, Inc.
5 Concourse Parkway, Suite
1900
Atlanta, GA 30328
Attention: Nick Ivezaj
E-mail:
[***]
with a copy (which shall not
constitute notice) to:
Troutman Pepper Hamilton Sanders
LLP
600 Peachtree St. NE, Suite
3000
Atlanta, Georgia 30308
Attention: David Ghegan;
Steven Khadavi
E-mail: david.ghegan@troutman.com
steven.khadavi@troutman.com
9.5 Governing
Law. This Agreement and all Proceedings against any other party hereto in connection with, arising out of or otherwise relating to
this Agreement, shall be interpreted, construed, governed by, and enforced in accordance with, the Laws of the state of Delaware, including,
its statutes of limitations, without regard to the conflicts of laws provisions, rules or principles thereof (or any other jurisdiction)
to the extent that such provisions, rules or principles would direct a matter to another jurisdiction.
9.6 Jurisdiction.
Each of the Parties agrees that: (a) it shall bring any Proceeding against any other Party in connection with, arising out of or otherwise
relating to this Agreement, any instrument or other document delivered pursuant to this Agreement or the transactions contemplated by
this Agreement exclusively in the Chosen Courts; and (b) solely in connection with such Proceedings, (1) irrevocably and unconditionally
submits to the exclusive jurisdiction of the Chosen Courts, (2) irrevocably waives any objection to the laying of venue in any such Proceeding
in the Chosen Courts, (3) irrevocably waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction
over any Party, (4) agrees that mailing of process or other papers in connection with any such Proceeding in the manner provided in Section
9.4 or in such other manner as may be permitted by applicable Law shall be valid and sufficient service thereof and (5) it shall
not assert as a defense any matter or claim waived by this Section 9.6 or that any Order issued by the Chosen Courts may not be
enforced in or by the Chosen Courts.
9.7 Waiver
of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY PROCEEDING AGAINST ANY OTHER PARTY HERETO WHICH MAY BE CONNECTED
WITH, ARISE OUT OF OR OTHERWISE RELATE TO THIS AGREEMENT, ANY INSTRUMENT OR OTHER DOCUMENT DELIVERED PURSUANT TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IS EXPECTED TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HERETO
IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY SUCH PROCEEDING. EACH PARTY HERETO HEREBY ACKNOWLEDGES AND CERTIFIES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTIES HERETO
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTIES HERETO WOULD NOT, IN THE EVENT OF ANY PROCEEDING, SEEK TO ENFORCE THE
FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) IT MAKES THIS WAIVER VOLUNTARILY AND (D)
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE INSTRUMENTS OR OTHER DOCUMENTS DELIVERED PURSUANT TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS, ACKNOWLEDGMENTS AND CERTIFICATIONS SET FORTH IN THIS SECTION
9.7.
9.8 Counterparts
and Signature. This Agreement (i) may be executed in any number of counterparts, each such counterpart being deemed to be an original
instrument, and all such counterparts shall together constitute the same agreement and (ii) shall become effective when each Party shall
have received one or more counterparts hereof signed by each of the other Parties. An executed copy of this Agreement delivered by email
or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this
Agreement.
9.9 No
Ownership Interest. Nothing contained in this Agreement shall be deemed to vest in Parent any direct or indirect ownership or incidence
of ownership of or with respect to the Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares
shall remain vested in and belong to the respective Stockholder, and Parent shall have no authority to exercise any power or authority
to direct any Stockholder in the voting or disposition of any of the Covered Shares, except as otherwise provided herein.
9.10 Documentation
and Information. No Stockholder shall make any public announcement regarding this Agreement or the transactions contemplated hereby
without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed) and the Company, except
as may be required by applicable Law (provided that reasonable notice of, and opportunity to comment on, any such disclosure will be
provided to Parent and the Company), and each Stockholder will consider in good faith the reasonable comments of Parent and the Company
with respect to such disclosure and otherwise cooperate with the Parent and the Company in obtaining confidential treatment with respect
to such disclosure (at the sole cost and expense of Parent or the Company, as applicable); provided, however, that after the issuance
of any press release or the making of any public statement by Parent or the Company or by any Stockholder with respect to which the foregoing
consultation procedures have been followed, any Stockholder may issue such additional publications or press releases and make such other
customary announcements without consulting Parent so long as such additional publications, press releases and announcements do not disclose
any nonpublic information regarding the transactions contemplated by this Agreement beyond the scope of the disclosure included in a
previous press release or public statement and such additional publications, press releases or announcements are otherwise consistent
with those with those issued or made by Parent or the Company or respect to which the other party had consented (or been consulted) in
accordance with the terms of this sentence. Each Stockholder consents to and authorizes the publication and disclosure by Parent
and the Company of such Stockholder’s identity and holding of the Covered Shares, and the terms of this Agreement (including the
disclosure of this Agreement), in any press release, the Proxy Statement, any applicable Current Report on Form 8-K and any other disclosure
document required in connection with the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement
(provided that reasonable notice of, and opportunity to comment on, any such disclosure will be provided to the Stockholders, and Parent
and the Company will consider in good faith the reasonable comments of the Stockholders with respect to such disclosure), and each Stockholder
acknowledges that Parent and the Company may, in their sole discretion, file this Agreement or a form hereof with the SEC or any other
Governmental Authority or securities exchange. Each Stockholder agrees to promptly give the Company and Parent any information it may
reasonably require for the preparation of any such disclosure documents, and each Stockholder agrees to promptly notify the Company and
Parent of any required corrections with respect to any information supplied by such Stockholder specifically for use in any such disclosure
document, if and to the extent that any such information shall have become false or misleading in any material respect. The Stockholders
shall, if applicable and required, promptly and in accordance with applicable law amend their Schedule 13D filed with the SEC to disclose
this Agreement and shall provide a draft of such amendment to Parent and the Company for their review and will consider in good faith
the reasonable comments of Parent and the Company thereto prior to making such filing. Parent shall not make any public announcement
regarding any Stockholder or this Agreement without the prior written consent of such Stockholder (such consent not to be unreasonably
withheld, conditioned or delayed) and the Company, except as may be required by applicable Law.
9.11 Further
Assurances. Each Party agrees that it shall, from time to time, at the reasonable request of the other Parties and without further
consideration, execute and deliver such additional documents and take such further action as may be reasonably required to consummate
and make effective, in the most expeditious manner reasonably practicable, the transactions contemplated by this Agreement.
9.12 Stop
Transfer Instructions. At all times commencing with the execution and delivery of this Agreement and continuing until the earlier
of Expiration Time and such time as the Company Stockholder Approval has been obtained, in furtherance of this Agreement, each Stockholder
hereby authorizes the Company or its counsel to notify the Company’s transfer agent that there is a stop transfer order with respect
to the Covered Shares (and that this Agreement places limits on the voting and transfer of the Covered Shares), subject to the provisions
hereof and provided that any such stop transfer order and notice will immediately be withdrawn and terminated by the Company following
the Expiration Time; provided, that such stop transfer order will not be applicable to any Transfer effectuated in compliance
with Section 2 hereof.
9.13 Specific
Performance. Each of the Parties acknowledges and agrees that the rights of each Party to consummate the transactions contemplated
by this Agreement are special, unique and of extraordinary character and that if for any reason any of the provisions of this Agreement
are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or damage would be
caused for which money damages would not be an adequate remedy. Accordingly, each Party agrees that in addition to any other available
remedies a Party may have in equity or at law, each Party shall be entitled to an injunction to specifically the terms and provisions
of this Agreement or restrain any breach or violation or threatened breach or violation of the provisions of this Agreement, consistent
with the provisions of Sections 9.5, 9.6, and 9.7, in the Chosen Courts, without necessity of posting a bond or
other form of security. In the event that any Proceeding should be brought in equity to enforce the provisions of this Agreement, no
Party shall allege, and each Party hereby waives the defense, that there is an adequate remedy at law.
9.14 Entire
Agreement. This Agreement and the Merger Agreement constitute the entire agreement between the Parties with respect to the subject
matter hereof and thereof and supersede all other prior and contemporaneous agreements, negotiations, understandings, representations
and warranties, whether oral or written, with respect to such matters.
9.15 Interpretation.
The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent
or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. When a reference is made
in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or Schedule
to this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”
The word “or” shall not be exclusive. References to “the date hereof” shall mean the date of this Agreement.
9.16 Assignment;
Third-Party Beneficiaries. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the
Parties and their respective heirs, successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned (including by operation of law) by any Stockholder or Parent without the prior written consent of Parent
or the Stockholders, respectively. Any attempted assignment of this Agreement or any of the rights or obligations hereunder other than
in accordance with the terms of this Section 9.16 shall be void ab initio. Nothing in this Agreement, express or implied,
will confer upon any Person other than the Parties and their respective successors and permitted assigns any right, benefit or remedy
of any nature by reason of this Agreement; provided that the Parties hereby acknowledge and agree that the Company is an express
third party beneficiary of, and may enforce, Sections 2(b), 9.2, 9.10 and 9.19 (including by seeking any
remedy available pursuant to Section 9.12); provided, further, that any action by the Company to enforce this Agreement
shall be subject to the provisions set forth in Sections 9.5, 9.6 and 9.7.
9.17 Severability.
The provisions of this Agreement shall be deemed severable and the illegality, invalidity or unenforceability of any provision shall
not affect the legality, validity or enforceability of the other provisions of this Agreement. If any provision of this Agreement, or
the application of such provision to any Person or any circumstance, is illegal, invalid or unenforceable, (i) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be legal, valid and enforceable, the intent and purpose
of such illegal, invalid or unenforceable provision, and (ii) the remainder of this Agreement and the application of such provision to
other Persons or circumstances shall not be affected by such illegality, invalidity or unenforceability, nor shall such illegality, invalidity
or unenforceability affect the legality, validity or enforceability of such provision, or the application of such provision, in any other
jurisdiction.
9.18 Non-Survival
of Representations and Warranties. None of the representations and warranties in this Agreement shall survive the Effective Time.
9.19 Termination.
This Agreement shall automatically terminate without further action by any of the Parties and shall have no further force or effect as
of the Expiration Time; provided that the provisions of Sections 8, 9.3, 9.4, 9.5, 9.6, 9.7,
9.10, 9.13, 9.14, 9.15, 9.16 and 9.19 shall survive any such termination. Notwithstanding the foregoing,
termination of this Agreement shall not prevent any Party from seeking any remedies (at law or in equity) against any other Party for
that Party’s breach of any of the terms of this Agreement prior to the date of termination.
[Signature
page follows]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered on the date and year first above written.
| |
Cementos Argos S.A. |
| |
|
| |
|
| |
By: |
/s/ Maria Isabel Echeverri |
| |
|
Name: |
Maria Isabel Echeverri |
| |
|
Title: |
Vice President |
| |
Argos SEM LLC |
| |
|
| |
|
| |
By: |
/s/ Gustavo Adolfo Uribe |
| |
|
Name: Gustavo Adolfo Uribe |
| |
|
Title: President |
| |
Valle Cement Investments, Inc. |
| |
|
| |
|
| |
By: |
/s/ Gari Manuel de la Rosa |
| |
|
Name: Gari Manuel de la Rosa |
| |
|
Title: Vice President |
| |
Quikrete Holdings, Inc. |
| |
|
| |
By: |
/s/ William R. Magill |
| |
|
Name: William R. Magill |
| |
|
Title: Chief Executive Officer |
[Signature
Page to Voting Agreement]
Schedule A
| Name |
Common
Shares Held of Record |
| Argos
SEM LLC* |
48,547,584 |
| Valle
Cement Investments, Inc.* |
6,172,416 |
* Cementos is the
sole shareholder of Argos SEM and sole shareholder of Valle Cement. By reason of these relationships and the provisions of Rule 13d-3
of the Securities Exchange Act of 1934, as amended, each Stockholder may be deemed to beneficially own the shares of Common Stock directly
owned by Valle Cement and Argos SEM.
Exhibit 99.2
Summit Materials
Enters into Definitive Agreement to be Acquired by Quikrete for $52.50 Per Share in Cash
Compelling Premium
Maximizes Value to Shareholders
Denver, Co. November
25, 2024 – Summit Materials, Inc. (NYSE: SUM), (“Summit,” “Summit Materials,” “Summit Inc.”
or the “Company”) a leading producer of aggregates and cement, today announced it has entered into a definitive agreement
to be acquired by Quikrete Holdings, Inc. (“Quikrete”) for $52.50 per share in cash, for a total enterprise value of approximately
$11.5 billion, including debt. The transaction price represents an approximately 36% premium to Summit’s unaffected 90-day volume
weighted average price (VWAP)1 and an approximately 29% premium to Summit’s unaffected share price2. The
combination has been unanimously approved by the Summit and Quikrete Boards of Directors.
The transaction
combines Summit’s leading aggregates, cement and ready-mix concrete businesses with Quikrete’s leading concrete and cement-based
products business to create a vertically integrated, North American, construction materials solutions provider with strong customer relationships
and iconic products.
“We are pleased
to have reached this agreement which will deliver significant, immediate and certain cash value to our shareholders,” said Howard
Lance, Chairman of Summit’s Board of Directors. “In reaching this decision, our Board carefully considered a range of alternatives
and determined that this transaction is the best way to maximize value for our shareholders.”
“This combination,
and the value it creates, is a testament to our stellar strategic and financial performance, agile operational and commercial execution,
and to the strength and talent of our entire team who have delivered a 34.6% annualized return since we began to develop our Elevate
strategy on September 1, 2020,” said Anne Noonan, Summit Materials President and Chief Executive Officer. “We believe this
transaction will create new and exciting opportunities for our employees and customers. In Quikrete, we have found a strong partner that
shares our commitment to safety and innovation, and we are excited to join forces with their team.”
“We are thrilled
to welcome Summit into the Quikrete family,” said Will Magill, Chief Executive Officer of Quikrete. “This acquisition represents
a significant milestone in our journey to expand our capabilities and geographic presence. Summit is a recognized leader with a highly
complementary portfolio of trusted aggregate, cement and ready-mix solutions. We look forward to working closely with the talented team
at Summit to achieve our shared vision for the future.”
Approvals and
Timing
The transaction
is expected to close in the first half of 2025, subject to Summit shareholder approval, regulatory approvals and other customary closing
conditions. Upon completion of the transaction, Summit will become a privately held subsidiary of Quikrete and its common stock will
no longer be traded on the NYSE.
Summit’s largest
shareholder, Cementos Argos, has entered into an agreement pursuant to which it has committed to vote all of its shares of Summit’s
common stock in favor of the transaction.
1 Unaffected date of October 23, 2024, the last full day
trading before Summit’s disclosure regarding the receipt of a non-binding acquisition proposal.
2 Unaffected share price of $40.62 as of unaffected date
of October 23, 2024.
Quikrete has obtained
commitment letters for the financing necessary to complete the transaction, which is not subject to a financing condition.
For further information
regarding the terms and conditions contained in the definitive transaction agreement, please see Summit’s current report on Form
8-K, which will be filed with the U.S. Securities and Exchange Commission in connection with the transaction.
Advisors
Morgan Stanley &
Co. LLC and Evercore are acting as financial advisors to Summit, and Davis Polk & Wardwell LLP is
acting as legal advisor. Wells Fargo is acting as exclusive financial advisor to Quikrete, and Troutman Pepper Hamilton Sanders LLP and
Covington & Burling LLP are acting as legal counsel. Wells Fargo has provided a debt financing commitment for the transaction.
About Summit
Materials, Inc.
Summit Materials
is a market-leading producer of aggregates and cement with vertically integrated operations that supply ready-mix concrete and asphalt
in select markets. Summit is a geographically diverse, materials-led business of scale that offers customers in the United States and British
Columbia, Canada high quality products and services for the public infrastructure, residential and non-residential end markets.
Summit has a strong track record of successful acquisitions since its founding and continues to pursue high-return growth opportunities
in new and existing markets. For more information about Summit Materials, please visit www.summit-materials.com.
About Quikrete
Holdings, Inc.
Quikrete Holdings,
Inc. (Quikrete) is a privately owned family business founded in 1940. It is a leading building materials company based in Atlanta, Georgia.
From the original yellow bag of premixed concrete, today Quikrete’s portfolio of brands includes Quikrete, Spec Mix, Rinker Materials,
U.S. Pipe, Contech Engineered Solutions, Keystone Hardscapes, Pavestone, Custom Building Products, QPR, and other leading brands. The
products produced by the collection of brands include packaged cementitious products, pavers, retaining wall systems, masonry units,
tile grouts and thin sets, concrete pipe, box culverts, corrugated metal pipe, ductile iron pipe, engineered storm water systems, structural
precast, and steel pedestrian and vehicular bridges. The company services the US and Canadian commercial construction, residential, and
infrastructure markets. This broad array of products and expertise allows Quikrete to provide nearly every product required for most
any type of construction project.
Cautionary Statement
Regarding Forward-Looking Statements
This press release
includes “forward-looking statements” within the meaning of the federal securities laws, which involve risks and uncertainties.
Forward-looking statements include all statements that do not relate solely to historical or current facts, and you can identify forward-looking
statements because they contain words such as “believes,” “expects,” “may,” “will,” “should,”
“seeks,” “intends,” “trends,” “plans,” “estimates,” “projects”
or “anticipates” or similar expressions that concern our strategy, plans, expectations or intentions. Such forward-looking
statements include but are not limited to statements about the proposed transaction between Summit and Quikrete (the “Transaction”),
including statements that are not historical facts. These forward-looking statements are subject to risks, uncertainties and other factors
that may cause our actual results, performance or achievements to be materially different from future results, performance or achievements
expressed or implied by such forward-looking statements. We derive many of our forward-looking statements from our operating budgets
and forecasts, which are based upon many detailed assumptions. While we believe that our assumptions are reasonable, it is very difficult
to predict the effect of known factors, and, of course, it is impossible to anticipate all factors that could affect our actual results.
In light of the significant uncertainties inherent in the forward-looking statements included herein, the inclusion of such information
should not be regarded as a representation by us or any other person that the results or conditions described in such statements or our
objectives and plans will be realized. Important factors could affect our results and could cause results to differ materially from those
expressed in our forward-looking statements, including but not limited to the factors discussed in the section entitled “Risk Factors”
in Summit’s Annual Report on Form 10-K for the fiscal year ended December 30, 2023, and Quarterly Report on Form 10-Q for the fiscal
quarter ended March 30, 2024, each as filed with the Securities and Exchange Commission (“SEC”), and any factors discussed
in the section entitled “Risk Factors” in any of Summit’s subsequently filed SEC filings; and the following: (i) the
occurrence of any event, change, or other circumstance that could give rise to the right of one or both of the parties to terminate the
definitive transaction agreement between Summit and Quikrete, including in circumstances requiring Summit to pay a termination fee; (ii)
potential litigation relating to the Transaction that could be instituted against the parties to the definitive transaction agreement
or their respective directors or officers, including the effects of any outcomes related thereto; (iii) the possibility that the Transaction
does not close when expected or at all because required regulatory, shareholder, or other approvals and other conditions to closing are
not received or satisfied on a timely basis or at all; (iv) reputational risk and potential adverse reactions of customers, employees
or other business partners and the businesses generally, including those resulting from the announcement of the Transaction; (v) the
risk that any announcements relating to the Transaction could have adverse effects on the market price of Summit’s common stock;
(vi) significant transaction costs associated with the Transaction; and (vii) the diversion of management’s attention and time
from ongoing business operations and opportunities on Transaction-related matters.
All subsequent written
and oral forward-looking statements attributable to us, or persons acting on our behalf, are expressly qualified in their entirety by
these cautionary statements. Any forward-looking statement that we make herein speaks only as of the date of this press release. We undertake
no obligation to publicly update or revise any forward-looking statement as a result of new information, future events or otherwise,
except as required by law.
Additional Information
and Where to Find It
This communication
does not constitute an offer to buy or sell or the solicitation of an offer to buy or sell any securities. This communication relates
to the Transaction. In connection with the Transaction, Summit plans to file with the SEC a proxy statement on Schedule 14A (the “Proxy
Statement”). This communication is not a substitute for the Proxy Statement or any other document that Summit may file with the
SEC and send to its shareholders in connection with the Transaction. The Transaction will be submitted to Summit’s shareholders
for their consideration. Before making any voting decision, Summit’s shareholders are urged to read all relevant documents filed
or to be filed with the SEC, including the Proxy Statement, as well as any amendments or supplements to those documents, when they become
available, because they will contain important information about Summit and the Transaction.
Summit’s shareholders
will be able to obtain a free copy of the Proxy Statement, as well as other filings containing information about Summit, free of charge,
at the SEC’s website (www.sec.gov). Copies of the Proxy Statement and other documents filed by Summit with the SEC may be obtained,
without charge, by contacting Summit through its website at https://investors.summit-materials.com/.
Participants
in the Solicitation
Summit, its directors,
executive officers and other persons related to Summit may be deemed to be participants in the solicitation of proxies from Summit’s
shareholders in connection with the Transaction. Information about the directors and executive officers of Summit and their ownership
of common stock of Summit is set forth in the section entitled “Our Stockholders—Holdings of Major Stockholders” in
Summit’s proxy statement for its 2024 annual meeting of stockholders, which was filed with the SEC on April 8, 2024 (and which
is available at https://www.sec.gov/ix?doc=/Archives/edgar/data/0001621563/000114036124018480/ny20019511x1_def14a.htm). Additional information
regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or
otherwise, will be included in the Proxy Statement and other relevant materials to be filed with the SEC in connection with the Transaction
when they become available. Free copies of these documents may be obtained as described in the preceding paragraph.
Contacts:
Andy Larkin
VP, Investor Relations
Summit Materials,
Inc.
andy.larkin@summit-materials.com
720-618-6013
Jim Barron/Benjamin
Spicehandler/Danielle Berg
FGS Global
Summit@fgsglobal.com
Patrick Lenow
Vice President,
Marketing & Communications
Quikrete Holdings,
Inc.
404-634-9100
Patrick.Lenow@quikrete.com
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