KLX Energy Services Holdings, Inc.

EX-99.1 · klxewolfpackacquisitionrel.htm

EX-99.1
 3
 klxewolfpackacquisitionrel.htm
 EX-99.1

              News Release
         

 Contacts:
 KLX Energy Services
 Geoffrey C. Stanford, SVP, Interim CFO & CAO
 832-930-8066
 IR@klxenergy.com

 Dennard Lascar Investor Relations
 Ken Dennard / Natalie Hairston
 (713) 529-6600
 KLXE@dennardlascar.com

 KLX Energy Services Acquires the Assets of Wolfpack Rentals, LLC
 Increasing Scale Across Four Major U.S. Operating Areas

 $17 Million Acquisition Adds $38.2 Million Revenue Business at Compelling Valuation

 Transaction Highlights

 • Purchase price of $17 million — $14 million at closing, plus two deferred payments of $1.5 million each at six and twelve months, payable in cash or KLX stock at KLX’s discretion
 • Cashflow accretive. Wolfpack reported 2025 revenue of $38.2 million and Adjusted EBITDA of $5.8 million, yielding a post synergy realization multiple in the low 2x’s range
 • $2 million-plus in expected annual synergies, driven by direct overlap with two existing KLX operating districts and corporate cost savings
 • Differentiated, hard-to-replicate asset base with approximately 350 accommodations trailers and command centers, 14 water filtration systems with exclusive North American oil and gas IP rights, and a full suite of ancillary surface rentals and logistics solutions
 • The acquisition will be funded via a capital lease financing arrangement, ABL borrowings supported by the acquired accounts receivable, and cash on hand

 HOUSTON – June 2, 2026 – KLX Energy Services Holdings, Inc. (NASDAQ: KLXE), (“KLX” or the “Company”) announced today it has acquired all of the assets of Wolfpack Rentals, LLC (“Wolfpack”), a leading provider of surface rental solutions to oil and gas exploration and production (E&P) operators, midstream, and other industrial end users, for total consideration of $17 million. The acquisition is expected to be immediately accretive to KLX on all financial metrics.

 Commenting on the acquisition, Chris Baker, President and Chief Executive Officer of KLX, stated, “We are pleased to welcome Stewart Cooper and the entire Wolfpack team to KLX.

 Wolfpack has built a strong, diversified platform with a blue-chip customer base supported by a culture centered on accountability, safety, and customer service. Wolfpack operates in four areas, two of which overlap directly with our existing KLX Accommodations areas, creating immediate and compelling opportunities to realize synergies, increase scale, and enhance service and product offering for our shared customers. Wolfpack reported 2025 revenue of $38.2 million and Adjusted EBITDA of $5.8 million, and we expect annual synergies in excess of $2 million as we bring the two platforms together.”

 Wolfpack is a Texas-based, one-stop-shop provider of comprehensive surface rental equipment and services, founded in 2005 and operating across four areas — South Texas (STX), West Texas (WTX), East Texas (ETX), and the Northeast (West Virginia and Ohio) — from eight facilities covering major U.S. land basins. Wolfpack's diversified platform includes approximately 350 accommodations trailers and command centers, 14 proprietary water filtration systems with exclusive North American oil and gas intellectual property rights, and a full suite of ancillary surface rentals encompassing communications and connectivity, power generation, lighting, surveillance and security, custom structures, and sanitation services.

 “The transaction structure is both cash flow accretive and deleveraging and will create meaningful, durable value for our stockholders,” added Baker. “Stewart Cooper will join KLX to assist with integration and drive continued growth, and we look forward to the contributions of the Wolfpack team as part of the KLX family.”

 Stewart Cooper, Chief Executive Officer of Wolfpack, said, “We are excited to join KLX and believe the combination creates a stronger, more capable platform to serve our E&P customers across major U.S. land basins. KLX’s scale and complementary service offerings position us to deliver even greater value to our customers, and we look forward to building on what the Wolfpack team has created over the past 20 years.”

 Transaction Details

 Total consideration for the Wolfpack acquisition consisted of $14 million payable at closing and two deferred payments of $1.5 million each, due at six months and twelve months following the closing date, subject to customary post-closing adjustments. Each deferred payment may be made in cash or shares of KLX common stock, at KLX’s sole discretion.
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 KLX’s legal advisor was Vinson & Elkins LLP.

 About KLX Energy Services

 KLX is a growth-oriented provider of diversified oilfield services to leading onshore oil and natural gas exploration and production companies operating in both conventional and unconventional plays in all of the active major basins throughout the United States. The Company delivers mission critical oilfield services focused on drilling, completion, production, and intervention activities for technically demanding wells from over 60 service and support facilities located throughout the United States. KLX’s complementary suite of proprietary products and specialized services is supported by technically skilled personnel and a broad portfolio of innovative in-house manufacturing, repair and maintenance capabilities. More information is available at www.klx.com .

 About Wolfpack Rentals

 Wolfpack Rentals is a leading one-stop-shop provider of surface rental solutions to oil and gas E&P, construction, and events customers across the United States. Founded in 2005 and headquartered in Fulshear, Texas, Wolfpack operates eight facilities across four areas — South Texas, West Texas, East Texas, and the Northeast (West Virginia/Ohio) — serving leading publicly traded E&P operators with a comprehensive suite of rental assets and services. Please visit www.wolfpackind.com for more information.

 Forward Looking Statements

 This release includes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements include all statements that are not historical facts, including statements regarding the Wolfpack acquisition, expected synergies, financial performance, integration, and growth strategy. Words such as "believe," "expect," "anticipate," "estimate," "intend," "may," "should," "could," "will" and similar expressions identify forward-looking statements, though not all forward-looking statements contain such words.

 These forward-looking statements are based on our current expectations and assumptions about future events and are based on currently available information as to the outcome and timing of future events with respect to, among other things: our operating cash flows; the availability of capital and our liquidity; our ability to renew and refinance our debt; our future revenue, income and operating performance; our ability to sustain and improve our utilization, revenue and margins; our ability to maintain acceptable pricing for our services; future capital expenditures; our ability to finance equipment, working capital and capital expenditures; our ability to execute our long-term growth strategy and to integrate our acquisitions; our ability to successfully develop our research and technology capabilities and implement technological developments and enhancements; and the timing and success of strategic initiatives and special projects, as well as our ability to integrate the business of Wolfpack and realize the expected benefits of the Wolfpack acquisition.

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 Forward-looking statements are not guarantees of future performance, and actual results could differ materially from our current expectations. Known material factors that could cause actual results to differ materially from those in the forward-looking statements include, but are not limited to, risks associated with the following: general economic conditions, including inflation, increases in interest rates, or a recession; persistent volatility in national and global crude oil demand and crude oil prices, which generally leads to decreased spending by our customers and negatively impacts drilling, completion and production activity; the cyclical nature and volatility of the oil and gas industry, which impacts the level of exploration, production and development activity and spending patterns by oil and natural gas exploration and production companies; overall domestic and global political and economic conditions, including the imposition of tariffs or trade or economic sanctions, political instability or armed conflict, including the ongoing conflicts in Ukraine, the Israel-Gaza region and elsewhere in the Middle East; the level of capital spending and access to capital markets by our customers; overcapacity and other competitive factors affecting our industry; supply chain issues; legislative or regulatory changes affecting the energy industry; the loss of or interruption in operations of one or more key suppliers; hazards and operational risks that may not be fully covered by insurance; increased labor costs or the inability to employ a sufficient number of key employees and skilled workers; reliance on information technology and the possibility of cyberattacks; and other risks and uncertainties listed in our filings with the U.S. Securities and Exchange Commission, including our Current Reports on Form 8-K that we file from time to time, Quarterly Reports on Form 10-Q and Annual Report on Form 10-K. We undertake no obligation to update any forward-looking statement, except as required by law.

 Non-GAAP Measures
 This release references Wolfpack Adjusted EBITDA, a non-GAAP financial measure. We define Wolfpack Adjusted EBITDA as Wolfpack’s net earnings (loss) before interest, taxes, depreciation and amortization, further adjusted for impairment charges, stock-based compensation, restructuring charges, acquisition-related transaction and integration costs, and other items not reflective of ongoing business performance. Wolfpack revenue and Adjusted EBITDA are based on Wolfpack’s internally prepared financial statements. Our independent auditors have not audited, reviewed, compiled, or performed any procedures with respect to Wolfpack revenue or Adjusted EBITDA for the purpose of their inclusion in this communication, and accordingly, have not expressed an opinion or provided any other form of assurance with respect thereto for the purpose of this communication.

 Historical Wolfpack revenue and Adjusted EBITDA and revenue are not guarantees of future performance, and actual results in future periods may differ materially from prior periods.

 Adjusted EBITDA should not be considered an alternative to net income or any other GAAP measure, and our calculation may not be comparable to similarly titled measures used by other companies.
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EX-2.1 · wolfpackapa.htm

EX-2.1
 2
 wolfpackapa.htm
 EX-2.1

 Execution Version

 ASSET PURCHASE AGREEMENT
 BY AND AMONG
 WOLF PACK RENTALS, LLC,
 AS SELLER,
 KLX ENERGY SERVICES LLC,
 as Buyer,
 KLX ENERGY SERVICES HOLDINGS, INC.,
 as Issuer,
 and
 (solely for purposes of Section 8.05 )
 STEVIE COOPER and STEWART COOPER

 Dated: June 2, 2026

 TABLE OF CONTENTS
 Page
 Section 1.01      Certain Defined Terms     5
 Section 1.02      Other Definitional and Interpretive Matters     17
 ARTICLE II SALE AND PURCHASE OF ASSETS     18
 Section 2.01      Assets to be Acquired     18
 Section 2.02      Assumed Obligations     20
 Section 2.03      Excluded Assets     20
 Section 2.04      Limitation on Assumption of Liabilities and Obligations     21
 Section 2.05      Consent to Assignment     21
 ARTICLE III PURCHASE PRICE: POST-CLOSING ADJUSTMENT; INVESTMENT ALLOCATIONS     22
 Section 3.01      Purchase Price and Payment     22
 Section 3.02      Deferred Payments     25
 Section 3.03      Purchase Price Allocation     27
 Section 3.04      Withholding     28
 ARTICLE IV CLOSING; DOCUMENTS OF CONVEYANCE     28
 Section 4.01      Closing     28
 Section 4.02      Bill of Sale and Assignment and Assumption Agreement     28
 Section 4.03      Other Instruments of Conveyance     29
 Section 4.04      Other Deliveries at Closing     29
 Section 4.05      Transfer Taxes     30
 Section 4.06      Certain Matters Related to Asset Taxes     30
 Section 4.07      Transfer of Possession     31
 Section 4.08      Other Actions and Instruments     31
 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE BUYER AND ISSUER     31
 Section 5.01      Organization, Good Standing and Qualification     31
 Section 5.02      Power and Authority     32
 Section 5.03      Validity of Contemplated Transactions     32
 Section 5.04      Regulatory Approvals     32
 Section 5.05      Litigation     32
 Section 5.06      Brokers’ or Finders’ Fees     32
 Section 5.07      Issuer SEC Reports; Financial Statements     33
 Section 5.08      Listing Exchange     33
 Section 5.09      Disclaimer     33
 ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE SELLER     34
 Section 6.01      Organization, Good Standing and Qualification     34
 Section 6.02      Power and Authority     34
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 Section 6.03      Validity of Contemplated Transactions     35
 Section 6.04      Consents     35
 Section 6.05      Organizational Documents     35
 Section 6.06      [Reserved]     35
 Section 6.07      Condition of and Title to Purchased Assets     35
 Section 6.08      Material Contracts     35
 Section 6.09      Real Property     38
 Section 6.10      Assumed Obligations     39
 Section 6.11      Financial Statements     39
 Section 6.12      Taxes     40
 Section 6.13      No Undisclosed Liabilities     40
 Section 6.14      Litigation; Compliance with Laws     40
 Section 6.15      Permits and Licenses     41
 Section 6.16      Intellectual Property     41
 Section 6.17      Sufficiency of Purchased Assets     42
 Section 6.18      Labor and Employment Matters     42
 Section 6.19      Inventory     44
 Section 6.20      Absence of Changes     44
 Section 6.21      No Affiliates’ Assets, Leases or Contracts     46
 Section 6.22      Insurance Coverages     46
 Section 6.23      Environmental Matters     46
 Section 6.24      Customers and Sales     48
 Section 6.25      Accounts and Notes Receivable and Payable     48
 Section 6.26      Uncleared Checks     48
 Section 6.27      Benefit Plans     49
 Section 6.28      Broker’s or Finder’s Fees     50
 Section 6.29      Foreign Person     50
 Section 6.30      Anti-Corruption and Trade Controls     50
 Section 6.31      Disclaimer     50
 ARTICLE VII INDEMNIFICATION     51
 Section 7.01      Indemnification by the Seller     51
 Section 7.02      Indemnification by the Buyer     51
 Section 7.03      Certain Limitations     52
 Section 7.04      Notice and Procedure     54
 Section 7.05      Manner of Payment     55
 Section 7.06      Exclusive Remedy     56
 ARTICLE VIII CONDUCT OF THE PARTIES AFTER CLOSING     56
 Section 8.01      Cooperation; Receivables     56
 Section 8.02      Access to Books and Records; Financial Statements     57
 Section 8.03      Manufacturers’ Warranties     57
 Section 8.04      Ownership and Use of Name     58
 Section 8.05      Non-competition; Non-solicitation; Non-disparagement; Confidentiality     58
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 Section 8.06      Transactional Expenses     61
 Section 8.07      Tax Cooperation; Tax Proceedings     61
 Section 8.08      Employee Matters     61
 Section 8.09      Insurance Matters     62
 ARTICLE IX MISCELLANEOUS     63
 Section 9.01      Notices     63
 Section 9.02      Assignability and Parties in Interest     64
 Section 9.03      Counterparts     64
 Section 9.04      Waiver     65
 Section 9.05      Complete Agreement     65
 Section 9.06      Modifications and Waivers     65
 Section 9.07      Amendments     65
 Section 9.08      Severability     65
 Section 9.09      Time of Essence     65
 Section 9.10      No Benefit to Others     65
 Section 9.11      Attorneys’ Fees     66
 Section 9.12      Public Announcements     66
 Section 9.13      Survival of Agreement     66
 Section 9.14      Specific Performance     67
 Section 9.15      Choice of Law; Jurisdiction; Venue; Waiver of Jury Trial     67

 Annex A – Accounting Principles
 Annex B – Form of Registration Rights Agreement
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 ASSET PURCHASE AGREEMENT
 THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”), is made and entered into June 2, 2026, by and among Wolf Pack Rentals, LLC , a Texas limited liability company (the “ Seller ”), KLX Energy Services LLC , a Delaware limited liability company (the “ Buyer ”), KLX Energy Services Holdings, Inc., a Delaware corporation and parent company of the Buyer (the “ Issuer ”) and, solely for purposes of Section 8.05 , Stevie Cooper and Stewart Cooper (collectively, the “ Seller Owners ”).
 W I T N E S S E T H:
 WHEREAS, the Seller is engaged in the business of renting accommodation units and related support services to customers in the oilfield industry (the “ Business ”); provided that, for the avoidance of doubt, the term “Business” shall not include manufacturing of accommodation units;
 WHEREAS, the Seller desires to directly or indirectly grant, sell, transfer, convey, assign and deliver to the Buyer, and the Buyer desires to purchase and acquire from the Seller, all of the Purchased Assets (as defined herein), upon the terms and subject to the conditions set forth herein;
 WHEREAS, the Purchased Assets constitute substantially all of the assets of the Seller; and
 WHEREAS, the Seller, the Buyer and certain of their respective Affiliates shall enter into the Ancillary Agreements (as defined herein) as set forth herein.
 NOW, THEREFORE, in consideration of the foregoing premises and of the mutual promises, covenants, representations, warranties and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties to this Agreement do hereby agree as follows:
 ARTICLE I
 DEFINITIONS
 Section 1.01     Certain Defined Terms . Except as otherwise defined in this Agreement, capitalized terms used herein will have the respective meanings set forth below:
 “ AAA ” is defined in Section 3.01(c)(iii) .
 “ Accounting Principles ” means the accounting principles set forth in Annex A hereto.
 “ Accounts Receivable ” means all accounts receivable of the Seller as of the Effective Time and the proceeds thereof after the Effective Time.
 “ Additional Ford Indebtedness ” means the outstanding indebtedness in respect of the following vehicles: (i) Ford F350 with vehicle identification number 1FD8X3FT2TED78115 (Asset ID WP 181), (ii) Ford F350 with vehicle identification number 1FD8X3FT6TED92180
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 (Asset ID WP 182) and (iii) Ford F250 with vehicle identification number 1FT7W2BTXTEC47307 (Asset ID WP 183).
 “ Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such Person, and the term “ control ” (including the terms “ controlled by ” and “ under common control with ”) as used in this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.
 “ Aggregate Deferred Payment Amount ” means the First Deferred Payment Amount and the Second Deferred Payment Amount, collectively.
 “ Agreement ” is defined in the Preamble.
 “ Ancillary Agreements ” means the Bill of Sale and Assignment and Assumption Agreement, the Transition Services Agreement, the Employment Agreement and any other documents contemplated hereby or executed in connection herewith.
 “ Asset Taxes ” means ad valorem, property, excise, sales, use and similar Taxes based upon the operation or ownership of the Purchased Assets or the Business or the receipt of proceeds therefrom, but excluding, for the avoidance of doubt, Income Taxes and Transfer Taxes.
 “ Assumed Contracts ” is defined in Section 2.02(c) .
 “ Assumed Obligations ” is defined in Section 2.02 .
 “ Assumed Purchase Orders ” is defined in Section 2.02(d) .
 “ Base Purchase Price ” means $17,000,000.
 “ Basket ” is defined in Section 7.03(c) .
 “ Bill of Sale and Assignment and Assumption Agreement ” is defined in Section 4.02 .
 “ Business ” is defined in the Recitals.
 “ Business Day ” means any day which is not a Saturday, Sunday or legal holiday under the laws of the United States or the State of Texas.
 “ Buyer ” is defined in the Preamble.
 “ Buyer Fundamental Representations ” is defined in Section 7.03(b) .
 “ Buyer Indemnitees ” is defined in Section 7.01(a) .
 “ Buyer Material Adverse Effect ” is defined in Section 5.01 .
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 “ Cap ” is defined in Section 7.03(c) .
 “ CERCLA ” is defined in Section 6.23(b) .
 “ Chosen Courts ” is defined in Section 9.15(a) .
 “ Claim Notice ” is defined in Section 7.04(a) .
 “ Closing ” is defined in Section 4.01 .
 “ Closing Date ” is defined in Section 4.01 .
 “ Closing Statement Dispute Notice ” is defined in Section 3.01(c)(ii) .
 “ Code ” means the Internal Revenue Code of 1986, as amended.
 “ Command Center 1 and 2 Amount ” means the financed balance on Command Center 1 (Asset ID T900) and Command Center 2 (Asset ID T901) (as such assets are referenced on Section 2.02(a) of the Disclosure Schedules under the heading “Certain Assumed Debt Obligations).
 “ Command Center 3 and 4 Amount ” means the account payable in respect of Command Center 3 (Asset ID T902) and Command Center 4 (Asset ID T903) (as such assets are referenced on Section 2.02(a) of the Disclosure Schedules under the heading “Certain Assumed Debt Obligations).
 “ Confidential Information ” means any information with respect to the Seller, the Purchased Assets, or the Business, including methods of operation, customer lists, products, prices, fees, costs, technology, inventions, trade secrets, know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters. “ Confidential Information ” does not include, and there will be no obligation hereunder with respect to, information that (i) is generally available to the public on the Closing Date, (ii) becomes generally available to the public after the Closing Date other than as a result of a disclosure not otherwise permitted hereunder or (iii) is solely related to the Excluded Obligations.
 “Controlled Group Liabilities ” means any and all Liabilities of the Seller or any of its ERISA Affiliates (i) under Title IV of ERISA, (ii) under Sections 206(g), 302 or 303 of ERISA, (iii) under Section 412, 430, 431, 436 or 4971 of the Code, (iv) as a result of the failure to comply with the continuation of coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, and (v) under corresponding or similar provisions of any foreign Laws.
 “ Customer Lists ” is defined in Section 2.01(g) .
 “ Debt-Like Items Amount ” means, without duplication, the amounts of (i) any accrued state income Tax, (ii) capital expenditures treated as accounts payable, (iii) unpaid customer
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 audit settlements, and (iv) accrued vacation pay with respect to any of the Transferred Employees.
 “ De Minimis Threshold ” is defined in Section 7.03(c) .
 “ Disputed Items ” is defined in Section 3.01(c)(ii) .
 “ Effective Time ” is defined in Section 4.01 .
 “ Employee ” is defined in Section 6.18(a) .
 “ Employee Benefit Plan ” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), whether or not such plan is subject to any provisions of ERISA, or any qualified or non-qualified current or deferred compensation (other than base salary and base wages), incentive, personnel policy, stock right, stock purchase, stock appreciation right, stock option, restricted stock, equity or equity-based, phantom equity, severance, separation, retention, employment, consulting, change-of-control, bonus, incentive, deferred compensation, paid time off, executive compensation or supplemental income, phantom equity, independent contractor, employment, change of control, retirement, pension, profit-sharing, stock bonus, salary continuation, tuition assistance, dependent care assistance, legal assistance, vacation, fringe benefit (cash and non-cash), group or individual health, medical, dental, vision, disability, life insurance or survivor benefit, and any other type of benefit or compensation plan, program, agreement, policy, contract or arrangement, whether written or unwritten, that the Seller maintains, sponsors or contributes to, either directly or indirectly, or with respect to which the Seller has any Liability.
 “ Employment Agreement ” is defined in Section 4.04(a)(ii) .
 “ Encumbrance ” means any mortgage, pledge, hypothecation, lien (statutory or otherwise), preference, priority, charge, claim, easement, license, adverse claim of ownership or use, restriction on transfer or preferential purchase right (such as a right of first refusal or similar right), defect of title, security interest, financing statement or other encumbrance of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any lease having substantially the same effect as any of the foregoing and any assignment or deposit arrangement in the nature of a security device).
 “ Enterprise Lease ” means that certain Master Equity Lease Agreement, dated March 20, 2023, by and between Enterprise FM Trust, a Delaware statutory trust and Wolf Pack Energy Services, LLC .
 “ Environmental Laws ” is defined in Section 6.23(f)(ii) .
 “ Environmental Permits ” is defined in Section 6.23(a) .
 “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the rulings and regulations thereunder.
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 “ ERISA Affiliate ” means, with respect to any Person, any entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes such Person, or that is a member of the same “controlled group” as such Person pursuant to Section 4001(a)(14) of ERISA.
 “ Estimated Adjusted Purchase Price ” means the Base Purchase Price, minus the Estimated Indebtedness Adjustment, minus the Estimated Property Tax Adjustment, plus the Command Center 1 and 2 Amount, minus the Debt-Like Items Amount.
 “ Estimated Closing Statement ” is defined in Section 3.01(a) .
 “ Estimated Indebtedness Adjustment ” is defined in Section 3.01(a) .
 “ Estimated Property Tax Adjustment ” is defined in Section 3.01(a) .
 “ Estimated Working Capital ” is defined in Section 3.01(a) .
 “ Estimated Working Capital Excess ” means the amount, if any, by which (i) the Estimated Working Capital exceeds (ii) the Working Capital Target; provided , however, that the aggregate Estimated Working Capital Excess shall not exceed $300,000.
 “ Estimated Working Capital Shortfall ” means the amount, if any, by which (i) the Working Capital Target exceeds (ii) the Estimated Working Capital; provided, however, that the Estimated Working Capital Shortfall shall be deemed to be $0 until the shortfall exceeds $300,000 (the “ Shortfall Deductible ”), in which event the Estimated Working Capital Shortfall shall be deemed to be an amount equal to the excess of such shortfall above the Shortfall Deductible.
 “ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
 “ Excluded Assets ” is defined in Section 2.03 .
 “ Excluded Obligations ” means all Liabilities and obligations of the Seller or its Affiliates (or otherwise relating to the Seller, its Affiliates, the Business or the Purchased Assets) other than the Assumed Obligations, including all Liabilities and obligations:
 (i)    relating to any claims (whether asserted before or after the Closing Date) for any breach of a representation, warranty or covenant, or for any claim for indemnification, contained in any Assumed Contract agreed to be performed pursuant to this Agreement by the Buyer, to the extent that such breach or claim arises out of or by virtue of the Seller’s performance or nonperformance thereunder prior to the Effective Time, it being understood that, as between the Parties hereto, this subsection will apply notwithstanding any provision which may be contained in any form of consent to the assignment of any such Assumed Contract, which by its terms, imposes such Liabilities upon the Buyer and which assignment is accepted by the Buyer notwithstanding the presence of such a provision;
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 (ii)    relating to product warranty or other warranty Liabilities of the Seller with respect to any products, merchandise or services of the Business sold or rendered on or prior to the Effective Time, including product recalls as a result of design defects or defective materials; it being understood and agreed that any such claim or Liability asserted after the Closing Date arising out of any such sale or service prior to the Effective Time will be considered to be a claim against or a Liability of the Seller and therefore not assumed hereunder by the Buyer;
 (iii)    relating to Liabilities of the Seller or its Affiliates for injury to or death of persons or damage to or destruction of property (including any worker’s compensation claim) with respect to acts or omissions by the Seller or its Affiliates or the Business which occur on or prior to the Effective Time regardless of when said claim or Liability is asserted; it being understood and agreed that any such claim or Liability asserted after the Closing Date, but arising from acts or omissions by the Seller or its Affiliates which occur before the Effective Time will be considered to be a claim against or a Liability of the Seller for injury to or death of persons or damages to or destruction of property and therefore not assumed hereunder by the Buyer;
 (iv)    of the Seller or any of its Affiliates arising out of or relating to infringement, misappropriation of or other conflict with the rights of any Person;
 (v)    arising out of violations of any Law;
 (vi)    arising out of or relating to any Environmental Law or Hazardous Material;
 (vii)    in respect of any Proceeding involving the Seller or related to the Business or any Purchased Asset (arising on or prior to the Closing Date) (whether asserted or commenced before or after the Closing Date);
 (viii)    relating to the Excluded Assets;
 (ix)    with respect to Indebtedness of the Seller or dividends payable by the Seller whether incurred or accrued before or after the Closing Date;
 (x)    relating to the equity interests of the Seller, or any shareholders agreement or partnership operating agreement to which the Seller is a party;
 (xi)    relating to obligations of the Seller under this Agreement;
 (xii)    relating to any transactions between the Seller and any of its Affiliates whether occurring before or after the Closing Date;
 (xiii)    for any and all Seller Taxes;
 (xiv)    under capitalized leases with respect to which the Seller is liable, contingently or otherwise, as obligor, guarantor or otherwise, or with respect to which the Seller assures a creditor against loss;
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 (xv)    relating to Encumbrances on the Purchased Assets arising on or before the Closing Date other than Permitted Encumbrances;
 (xvi)    any amounts payable for fees or expenses incurred by the Seller in respect to this Agreement or any agreement contemplated hereby and/or the Transactions or otherwise in connection with the Seller’s sale of the Business and all amounts payable in connection with any employee transaction bonuses;
 (xvii)    that are Retained Employee-Related Liabilities;
 (xviii)    set forth on Schedule 1.01(a) ; and
 (xix)    without limitation by the specific enumeration of the foregoing, any other obligation or Liability not expressly included in the definition of Assumed Obligations.
 “ Facilities ” is defined in Section 6.09(c) .
 “ Final Adjusted Purchase Price ” means the Base Purchase Price plus the Working Capital Excess or minus the Working Capital Shortfall, as applicable, minus the Indebtedness Adjustment, minus the Property Tax Adjustment, plus the Command Center 1 and 2 Amount, minus the Debt-Like Items Amount. For purposes of this definition, the Working Capital Excess or the Working Capital Shortfall, as applicable, will be finally determined pursuant to Section 3.01(c) .
 “ Final Closing Statement ” is defined in Section 3.01(c)(i) .
 “ Financial Statement Date ” is defined in Section 6.10 .
 “ Financial Statements ” is defined in Section 6.10 .
 “ First Deferred Payment Amount ” means an amount equal to $1,500,000, as it may be reduced pursuant to Section 2.05(b) , Section 3.01(d)(ii) and Section 7.05(a)(ii) .
 “ First Deferred Payment Date ” means the date that is 180 days following the Closing Date.
 “ Fixed Assets ” is defined in Section 2.01(a) .
 “ GAAP ” means the United States generally accepted accounting principles.
 “ General Survival Period ” is defined in Section 7.03(a) .
 “ Governmental Entity ” means any government, agency, governmental department, commission, board, body, department, authority, bureau, court, arbitration panel, arbitrator or arbitration body, or instrumentality of the United States of America or any other country or any tribal, state or other political subdivision thereof (whether now or hereafter constituted and/or
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 existing) and any entity exercising executive, legislative, judicial, regulatory, administrative or taxing functions of or pertaining to government.
 “ Hazardous Materials ” is defined in Section 6.23(f)(i) .
 “ Income Taxes ” means any income, capital gains, franchise and similar Taxes.
 “ Indebtedness ” means, without duplication, (i) any indebtedness for borrowed money or issued in substitution for or exchange of indebtedness for borrowed money, (ii) any indebtedness evidenced by any note, bond, mortgage, debenture or other debt security, (iii) any indebtedness for the deferred purchase price of property or services with respect to which a Person is liable, contingently or otherwise, as obligor or otherwise, (iv) any commitment by which a Person assures a creditor against loss (including contingent reimbursement obligations with respect to letters of credit), (v) any indebtedness guaranteed in any manner by a Person (including guarantees in the form of an agreement to repurchase or reimburse), (vi) any indebtedness secured by an Encumbrance on a Person’s assets, (vii) any obligations of a Person under any capitalized lease according to GAAP (including amounts owing under the Enterprise Lease), (viii) any payment to be made pursuant to sale-leaseback transactions, (ix) any payment to be made pursuant to a non-compete payment obligation or change of control payment obligation, (x) Liabilities related to acquisition of or by the Seller and including earn-out or similar contingent purchase amounts, (xi) any unsatisfied obligation for “withdrawal liability” to a “multiemployer plan” as such terms are defined under ERISA, (xii) any amounts outstanding under any letters of credit, surety bonds, performance bonds, banker’s acceptance or similar instrument, whether or not drawn upon by third parties, (xiii) any obligations consisting of accounts payable or other monetary liabilities (other than any such liabilities included in Working Capital) that do not fall into the foregoing categories of Indebtedness, including without limitation the obligations under the Enterprise Lease and the balance due thereunder as of the Closing Date inclusive of excess mileage charges, (xiv) any interest owed with respect to the indebtedness referred to above and prepayment premiums or fees related thereto. For the avoidance of doubt, notwithstanding the foregoing, Indebtedness shall not include (a) any liabilities relating to operating leases (including, without limitation, any related right-of-use liability), (b) the Additional Ford Indebtedness, or (c) the Debt-Like Items.
 “ Indebtedness Adjustment ” means the aggregate amount of all Indebtedness incurred by the Seller or any of its Affiliates prior to the Closing and for which the Buyer or any of its Affiliates becomes liable at or after the Closing.
 “ Indemnified Party ” is defined in Section 7.04(a) .
 “ Indemnifying Party ” is defined in Section 7.04(a) .
 “ Independent Accountant ” is defined in Section 3.01(c)(ii) .
 “ Intellectual Property ” means any intellectual property rights arising out of, or associated with any of the following in any jurisdiction: including trademarks, patents, service marks, domain names, trade names, other indicia of origin, copyrights, works of authorship,
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 moral rights, trade secrets, know-how, proprietary information, inventions, designs, drawings, software including those set forth on Schedule 2.01(d) , and goodwill associated with any of the foregoing, and any applications, renewals, or therefor or registrations thereof.
 “ Inventory ” means all merchandise and all inventory and other products held for sale to customers.
 “ IRS ” means the United States Internal Revenue Service.
 “ Issuer ” is defined in the Preamble.
 “ Issuer Common Stock ” means the Common Stock, par value $0.01 per share, of Issuer.
 “ Issuer Financial Statements ” is defined in Section 5.07(b) .
 “ Issuer SEC Reports ” is defined in Section 5.07(a) .
 “ Law ” means all federal, tribal, state and local laws, statutes, codes, ordinances, regulations, rules, orders, judgments, writs, injunctions, acts or decrees of any Governmental Entity, including common law.
 “ Leased Real Property ” is defined in Section 6.09(b) .
 “ Liability ” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.
 “ Loss ” is defined in Section 7.01(a)(i) .
 “ Material Contract ” is defined in Section 6.08 .
 “ NASDAQ ” is defined in Section 5.08 .
 “ Non-Party Affiliate ” is defined in Section 9.10 .
 “ Organizational Documents ” means, with respect to a particular Person (other than a natural person), the certificate or articles of incorporation, bylaws, partnership agreement, limited liability company agreement, trust agreement or similar organizational document or agreement, as applicable, of such Person.
 “ Party ” or “ Parties ” means the Seller, the Buyer and, solely for purposes of Section 8.05 , the Seller Owners.
 “ PCBs ” is defined in Section 6.23(f)(i) .
 “ Permits ” is defined in Section 6.15 .
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 “ Permitted Encumbrances ” means, (i) Encumbrances for current period Taxes that are not yet due and payable or that are being contested in good faith by appropriate Proceedings and for which adequate reserves have been established in the Financial Statements, (ii) mechanics’, workmen’s, repairmen’s, warehousemen’s, carriers’ or other similar Encumbrances (including Encumbrances created by operation of Laws) for charges not yet due and payable or which are being contested in good faith by appropriate Proceedings and for which adequate reserves have been established in the Financial Statements, (iii) municipal bylaws, development restrictions or regulations, and zoning, building or planning restrictions that do not materially interfere with the use of the assets or property subject thereto, (iv) Encumbrances listed on Schedule 1.01(b) ; (v) Encumbrances created by the acts of the Buyer and the Buyer’s Affiliates, and (vi) easements, rights-of-way, servitudes, permits, licenses, restrictions and other similar matters affecting real property that in each case do not materially interfere with the use of the property subject thereto (but not violations thereof).
 “ Person ” means an individual, partnership, corporation, trust, unincorporated organization, or a federal, state, local or foreign Governmental Entity.
 “ Pre-Closing Insurance Policies ” is defined in Section 8.09 .
 “ Pre-Closing Matters ” is defined in Section 8.09 .
 “ Pre-Closing Tax Period ” means any Tax period ending on or before the Closing Date.
 “ Private Placement Legend ” is defined in Section 3.02(a) .
 “ Proceeding ” means any action, arbitration, audit, charge, claim, complaint, decree, demand, dispute, grievance, hearing, investigation, assessment, judgment, litigation, order or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before (or that could come before), or otherwise involving, any Governmental Entity.
 “ Property Tax Adjustment ” means the positive or negative amount that is (i) the amount of all Asset Taxes (other than Sales Taxes) allocated to the Seller in accordance with Section 4.06(a) but paid or otherwise economically borne by the Buyer minus (ii) the amount of all Asset Taxes (other than Sales Taxes) allocated to the Buyer in accordance with Section 4.06(a) but paid or otherwise economically borne by the Seller.
 “ Purchase Price ” means the Final Adjusted Purchase Price.
 “Purchase Price Allocation ” is defined in Section 3.03(a) .
 “ Purchased Assets ” is defined in Section 2.01 .
 “ Real Property Leases ” is defined in Section 6.09(b) .
 “ Release ” is defined in Section 6.23(f)(iii) .
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 “ Required Consents ” is defined in Section 4.03 .
 “ Restricted Business ” is defined in Section 8.05(b) .
 “ Retained Employee-Related Liabilities ” means all Liabilities that are attributable to, associated with or related to, or that arise out of or in connection with (i) any Employee Benefit Plan or any other employee benefit or compensation plan, program, agreement, contract or arrangement sponsored, maintained or contributed to by the Seller or any of its Affiliates or ERISA Affiliates or to which Seller or any of its Affiliates or ERISA Affiliates is or was obligated to contribute at any time, including all Controlled Group Liabilities; or (ii) Seller’s or its Affiliates’ employment or engagement of any individual, or decision not to employ or engage any individual, including all Liabilities arising at any time with respect to any act or omission or other practice arising from or relating to an employment or independent contractor relationship or termination thereof (other than any Liabilities reasonably incurred by Seller or its Affiliates pursuant to an Employee Benefit Plan set forth on Schedule 6.27(a) arising from or relating to the termination of the employment by Seller or its Affiliates of any Employee with respect to whom Buyer or its Affiliate fails to make an offer of employment required by Section 8.08(a) ), including any claims related to employee or independent contractor wages, hours or classification.
 “ Sales Taxes ” means Asset Taxes that are sales, use and similar Taxes.
 “ Schedules ” means the disclosure schedules prepared by the Seller and attached to this Agreement.
 “ SEC ” means the U.S. Securities and Exchange Commission.
 “ Second Deferred Payment Amount ” means an amount equal to $1,500,000, as it may be reduced pursuant to Section 2.05(b) , Section 3.01(d)(ii) and Section 7.05(a)(ii) .
 “ Second Deferred Payment Date ” means the date that is 360 days following the Closing Date.
 “ Securities Act ” means the Securities Act of 1933, as amended.
 “ Seller ” is defined in the Preamble.
 “ Seller Fundamental Representations ” is defined in Section 7.03(b) .
 “ Seller Indemnitee ” is defined in Section 7.02(a) .
 “ Seller Material Adverse Effect ” is defined in Section 6.01 .
 “ Seller Marks ” is defined in Section 8.04 .
 “ Seller Owners ” is defined in the Preamble.
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 “ Seller Taxes ” means any and all (i) Income Taxes imposed by any applicable Laws on the Seller or the Seller Owners, any of their respective direct or indirect owners or Affiliates, or any combined, unitary or consolidated group of which any of the foregoing is or was a member, as applicable, (ii) any social security, Medicare, unemployment or other employment or withholding Taxes payable by Seller or any of its Affiliates in connection with any payments or other consideration made to any employees of Seller or any of its Affiliates, (iii) Asset Taxes allocable to the Seller pursuant to Section 4.06(a) (taking into account, and without duplication of, such Asset Taxes effectively borne by the Seller as a result of the Estimated Property Tax Adjustment or the Property Tax Adjustment, as applicable, and any payments made from the Seller to the Buyer in respect of Asset Taxes pursuant to Section 4.06(a) ), (iv) Taxes imposed on or with respect to the ownership or operation of the Excluded Assets or that are attributable to any asset or business of the Seller that is not part of the Purchased Assets and (v) Taxes (other than the Taxes described in clauses (i) , (ii) , (iii) or (iv) of this definition) imposed on or with respect to the ownership or operation of the Purchased Assets or the Business or the receipt of proceeds therefrom for any Tax period (or portion thereof) ending on or before the Closing Date.
 “ Straddle Period ” means any Tax period beginning on or before and ending after the Closing Date.
 “ Survival Period ” is defined in Section 7.03(a) .
 “ Tax ” or “ Taxes ” means (i) any taxes, assessments, fees, unclaimed property and escheat obligations, and other similar governmental charges imposed by any Governmental Entity, including income, profits, gross receipts, net proceeds, alternative or add on minimum, ad valorem, value added, turnover, sales, use, property, personal property (tangible and intangible), environmental, stamp, leasing, lease, user, excise, duty, franchise, capital stock, transfer, registration, license, withholding, social security (or similar), unemployment, disability, payroll, employment, social contributions, fuel, excess profits, occupational, premium, windfall profit, severance, estimated, or similar other charge of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not; (ii) any liability for the payment of any amounts of the type described in clause (i) as a result of being a member of any affiliated, combined, consolidated, unitary, or similar group with respect to any Taxes for any period; and (iii) any liability for the payment of any amounts of the type described in clauses (i) or (ii) as a result of the operation of Law or any express or implied obligation to indemnify any other Person.
 “ Tax Return ” means any declaration, report, statement, form, return, election, document, estimated tax filing, claim for refund, property tax rendition, information return, or other document or information required to be supplied to a Taxing Authority in connection with Taxes, including any schedule or attachment thereto, and including any amendment thereof.
 “ Tax Proceeding ” is defined in Section 8.07 .
 “ Taxing Authority ” means, with respect to any Tax, the governmental entity or political subdivision thereof that imposes such Tax, and the agency (if any) charged with collection of such Tax for such entity or subdivision.
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 “ Third Party Claim ” is defined in Section 7.04(a) .
 “ Third Party Notice ” is defined in Section 7.04(a) .
 “ Top Customers ” is defined in Section 6.24(a) .
 “ Top Suppliers ” is defined in Section 6.24(a) .
 “ Transactions ” means the transactions contemplated by this Agreement and the Ancillary Agreements.
 “ Transfer Taxes ” is defined in Section 4.05 .
 “ Transferred Employees ” is defined in Section 8.08(a) .
 “ Transition Services Agreement ” is defined in Section 4.04(a)(i) .
 “ Treasury Regulations ” means the regulations promulgated under the Code.
 “ Unobtained Consent Asset ” is defined in Section 2.05(b) .
 “ VWAP ” means the volume-weighted average price of the Issuer Common Stock on The Nasdaq Global Select Market for the 90 consecutive trading days ending on (and including) the date of determination, rounded to two decimal places.
 “ Working Capital ” means, as of a given time, the difference between the current assets of the Business as of such time that are included in the line item categories of non-cash current assets specifically identified in the example calculation set forth on Annex A , less the current liabilities of the Business (excluding the Command Center 3 and 4 Amount) as of such time that are included in the line item categories of current liabilities specifically identified in the example calculation set forth on Annex A , in each case, without duplication, and as determined (i) in a manner strictly consistent with the Accounting Principles consistently applied, and (ii) without giving effect to the Transactions. An example calculation of Working Capital is set forth on Annex A .
 “ Working Capital Excess ” means the amount, if any, by which (i) the Working Capital exceeds (ii) the Working Capital Target; provided , however, that the aggregate Working Capital Excess shall not exceed $300,000.
 “ Working Capital Shortfall ” means the amount, if any, by which (i) the Working Capital Target exceeds (ii) the Working Capital; provided , however, that the Working Capital Shortfall shall be deemed to be $0 until the shortfall exceeds the Shortfall Deductible, in which event the Working Capital Shortfall shall be deemed to be an amount equal to the excess of such shortfall above the Shortfall Deductible.
 “ Working Capital Target ” means $3,028,000.00.
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 Section 1.02     Other Definitional and Interpretive Matters . Unless otherwise expressly provided in this Agreement, the following rules of interpretation will apply:
 (a)    The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.
 (b)    Words of gender may be read as masculine, feminine, or neuter, as required by context. Words of number may be read as singular or plural, as required by context. All terms such as “herein,” “hereby” or “hereunder” refer to this Agreement as a whole. The word “or” is not exclusive, and the word “including” (in its various forms) means “including without limitation”.
 (c)    All exhibits or schedules annexed hereto and the documents and instruments referred to herein or required to be delivered simultaneously herewith or at the Closing are expressly made a part of this Agreement as fully as though completely set forth herein, and all references to this Agreement herein or in any of such exhibits, schedules, documents or instruments will be deemed to refer to and include all such exhibits, schedules, documents and instruments.
 (d)    For the purposes of this Agreement, the knowledge of the Seller will be deemed to be the knowledge that Stewart Cooper, Stevie Cooper and Mike Ligon possess or would obtain upon reasonable inquiry of their direct reports.
 (e)    For the purposes of this Agreement, the knowledge of the Buyer will be deemed to be the knowledge that Christopher Baker and Max Bouthillette possess or would obtain upon reasonable inquiry of their direct reports.
 (f)    Any reference in this Agreement to dollars or $ will mean U.S. dollars.
 (g)    If any period of time or other deadline ends on a day that is not a Business Day, then such period or deadline shall be extended to the next Business Day.
 (h)    When calculating any period of time, such period shall not include the first day but shall include the last day (i.e. if a period is five days from January 1st, then such period shall begin on January 2nd and end on January 6th).
 (i)    Except as otherwise provided herein, any accounting term that is used but not otherwise defined herein, and any accounting term that is partly defined herein, to the extent not defined, shall be construed in conformity with GAAP.
 (j)    An item shall be considered “provided” or “made available” to a Party, to the extent the other Party is permitted or required to provide such item or make such item available to the other Party, only if such item has been provided in writing to such Party or posted in a specific folder or other location in an electronic data room accessible by the Party at least two Business Days prior to the Closing Date.
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 ARTICLE II
SALE AND PURCHASE OF ASSETS
 Section 2.01     Assets to be Acquired . Upon the terms and subject to the conditions set forth herein, on the Closing Date, the Seller will grant, sell, assign, transfer, convey and deliver to the Buyer, free and clear of all Encumbrances, other than Permitted Encumbrances, and the Buyer will purchase and acquire, all of the Seller’s rights, privileges, title and interests in and to the assets, properties and rights of every nature, kind and description, wherever located, held by the Seller or its Affiliates and that are owned by the Seller or its Affiliates and used primarily in the operation of the Business, whether real, personal or mixed, and whether tangible or intangible (hereafter collectively referred to as the “ Purchased Assets ”) other than any asset that is an Excluded Asset. The Purchased Assets include the following to the extent owned by the Seller or its Affiliates and primarily used in operation of the Business (in each case, excluding any asset that is an Excluded Asset):
 (a)     Fixed Assets . All vehicles, trailers, units, generators, light towers, communication towers, portable toilet and related facilities, bins, tools, furniture, furnishings, signs, displays and other fixed assets, including computer hardware and software, and those assets more particularly described on Schedule 2.01(a) attached hereto (hereafter collectively referred to as the “ Fixed Assets ”);
 (b)     Inventory . All Inventory;
 (c)     Supplies . All supplies, including all fuel, chemicals, filters, parts, packaging materials, sacks, bags, containers, shop supplies, office supplies and cleaning supplies;
 (d)     Intellectual Property . All Intellectual Property, including those set forth on Schedule 2.01(d) , which lists all Intellectual Property owned by, or exclusively licensed to, the Seller or its Affiliates that is (i) subject of a registration or application for registration (including domain names) and (ii) material unregistered Intellectual Property; provided , however , that the following shall be expressly excluded from the definition of “Intellectual Property”: the name “Wolf Pack Rentals”, “Wolf Pack”, “Wolfpack”, “WolfPack” or names, service marks, trademarks, trade names, d/b/a names, fictitious names, identifying symbols, logos, emblems, signs or insignia related thereto;
 (e)     Promotional Rights . All marketing or promotional designs, brochures, advertisements, concepts, literature, books, media rights, rights against any other Person in respect of any of the foregoing and all other promotional properties;
 (f)     Accounts Receivable . All Accounts Receivable;
 (g)     Customer Lists and other Intangible Assets . All other intangible assets and deposits with others such as utility deposits, including all customer lists (the “ Customer Lists ”), goodwill, “know-how,” and, to the extent assignable, all supplier and manufacturers’ warranties (including pending warranty claims) and manuals in Seller’s or its Affiliates’ possession relating to the Purchased Assets and used in the operation of the Business;
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 (h)     Seller’s Prepayments . All of the Seller’s or its Affiliates’ prepayments existing as of the Effective Time;
 (i)     Permits . All Permits, to the extent such Permits are transferable and whether or not all action necessary to effect such transfer has been taken prior to the Closing;
 (j)     Telephone and Fax Numbers . The right, title and interest in the telephone and fax machine numbers (including any mobile telephone numbers) listed on Schedule 2.01(j );
 (k)     Books and Records . True and correct copies of all papers, documents, computerized databases, records, files, data, plans and other information of the Seller or its Affiliates relating in any way to the Business, including all environmental records, sales records, Tax records, marketing records, accounting and financial records, and maintenance records;
 (l)     Claims Relating to Purchased Assets . To the extent assignable, all claims, causes of action, rights of recovery and rights of set-off of every type and kind relating to the Purchased Assets and the Business, including supplier and manufacturers’ warranties issued with respect to the Purchased Assets and all claims, causes of action, rights of recovery and rights of set-off of every type and kind relating to the Assumed Obligations, in each case whether accruing before, on, or after the Closing Date;
 (m)     Contracts . The contracts described on Schedule 2.01(m) ;
 (n)     Real Property Leases . The Real Property Leases;
 (o)     Liquid Assets . Any notes receivable and other liquid assets of a similar nature of the Seller or its Affiliates (excluding cash, cash equivalents and marketable securities of the Seller or its Affiliates);
 (p)     Insurance Benefits . All insurance benefits, including rights and proceeds from Pre-Closing Insurance Policies and subject to the terms and conditions of such policies, arising from or relating to the Purchased Assets, the Assumed Obligations, or the operation of the Business prior to the Closing Date, to the extent such benefits, rights and proceeds relate to losses or liabilities reasonably expected to be borne by Buyer, except as described in Section 2.03(c) ; and
 (q)     Other Property and Rights . All other assets that are included in Working Capital.
 Section 2.02     Assumed Obligations . Upon the terms and subject to the conditions set forth herein, on the Closing Date, the Seller will assign to the Buyer and the Buyer will assume, pay and discharge in full when due only the following rights, liabilities and obligations of the Seller, without duplication (hereafter collectively referred to as the “ Assumed Obligations ”):
 (a)     Certain Payables, and Accrued Expenses . Those payables and other accrued expenses (but excluding any Asset Taxes) as of the Effective Time, in each case, solely
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 to the extent described on Schedule 2.02(a) and reflected in the Working Capital, as finally determined hereunder in accordance with the Accounting Principles;
 (b)     Leases . All liabilities and obligations arising under the Real Property Leases, in each case, except as described on Schedule 2.02(b) , solely to the extent arising from and after the Effective Time;
 (c)     Assumed Contracts . All liabilities and obligations under the contracts described on Schedule 2.01(m) (hereafter referred to as the “ Assumed Contracts ”), in each case, except as described on Schedule 2.02(c) , solely to the extent arising from and after the Effective Time;
 (d)     Open Customer and Vendor Purchase Orders . The Seller’s obligations to (i) deliver products to customers who have placed orders with the Seller for products which have not been delivered and (ii) purchase products from vendors that have not been fulfilled, in each case, as of the Effective Time and which are listed on Schedule 2.02(d) , including all customer purchase orders and contracts relating thereto and which are listed on Schedule 2.02(d) (hereafter referred to as the “ Assumed Purchase Orders ”); and
 (e)     Buyer’s Share of Asset Taxes . The Buyer’s share of Asset Taxes as set forth in Section 4.06(a) .
 Section 2.03     Excluded Assets . Notwithstanding anything to the contrary in Section 2.01 , the Purchased Assets will not include any of the Seller’s rights, privileges, title or interest in any of the following assets (hereafter referred to as the “ Excluded Assets ”):
 (a)     Cash Equivalents . All cash, cash equivalents and marketable securities of the Seller;
 (b)     Bank Accounts . All bank and other depository accounts;
 (c)     Insurance Policies . Subject to Section 8.09 , all insurance policies, including all claims and rights of the Seller to premium refunds;
 (d)     Books and Records . (i) all of the Seller’s minute books, stock books, Tax Returns, (ii) books and records directly relating to the Excluded Assets and the Excluded Obligations, and all personnel and employee records relating to the employees of Seller or its Affiliates (iii) books and records subject to attorney-client privilege, or other legal privilege, (iv) books and records required to be retained by the Seller by Law (provided that Buyer shall be entitled receive copies of any such books and records referred to in this clause (iv) except to the extent they are separately Excluded Assets);
 (e)     Claims Against Third Parties . Any claim of the Seller against any Person unless such claim is a Purchased Asset under Section 2.01 hereof, including all claims and causes of action of the Seller to the extent arising from or related to any of the Excluded Assets, in each case, arising out of or relating to facts, events or circumstances occurring on, prior to, or after the Closing Date;
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 (f)     Rights Hereunder . All rights and claims of the Seller under this Agreement and the Ancillary Agreements;
 (g)     Employee Benefit Plans . The sponsorship of and the assets maintained pursuant to or in connection with any Employee Benefit Plan, including any Employee Benefit Plan that is a defined contribution plan that is tax-qualified under Section 401(a) of the Code and that contains a Section 401(k) feature; and
 (h)     Specified Excluded Assets . Any items set forth on Schedule 2.03(h) .
 Section 2.04     Limitation on Assumption of Liabilities and Obligations . Except as expressly set forth in Section 2.02 with respect to the Assumed Obligations, the Buyer will not assume, pay, satisfy, perform or discharge, and the Buyer will have no responsibility for, any of the Seller’s or its Affiliates’ Liabilities or obligations (including contracts, leases, purchase orders and Liabilities of any type, kind or nature), or any other Liabilities or obligations in any way relating to the Seller, its Affiliates, the Business or the Purchased Assets, including the Excluded Obligations, and all such Liabilities and obligations will remain with the Seller or its applicable Affiliate. The Buyer’s assumption of the Assumed Obligations will in no way expand the rights or remedies of third parties against the Buyer as compared to the rights and remedies which such parties would have had against the Seller had the Transactions not been consummated. The Seller will retain, pay, perform, satisfy and discharge each of the Excluded Obligations as they become due and will have sole responsibility for such Excluded Obligations.
 Section 2.05     Consent to Assignment .
 (a)    Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to sell, assign, transfer or convey any Purchased Asset or any claim, right or benefit thereunder or arising therefrom (collectively, the “ Interests ”), if an attempted sale, assignment, transfer or conveyance of such Interest would constitute a breach or a violation of any applicable Law, or would adversely affect the rights of the Buyer or its Affiliates thereunder, or if such Interest cannot be sold, assigned, transferred or conveyed without any third-party consent that has not been obtained by (or does not remain in full force and effect at) the Closing (any such Interest, an “ Excluded Interest ”), unless and until (i) such Excluded Interest can be sold, assigned, transferred or conveyed in accordance with this Agreement without such a breach, violation of Law or adverse effect on the Buyer’s rights thereunder or (ii) such third-party consent is obtained, at which time, in the case of clauses (i) and (ii) , such Excluded Interest shall be deemed to be sold, assigned, transferred or conveyed in accordance with this Agreement and shall cease to be an Excluded Interest. During the twenty-four months following the Closing Date, to the extent any Interest remains an Excluded Interest, the Seller shall provide the benefits of such Excluded Interest to the Buyer, and the Buyer shall promptly pay or satisfy the corresponding liabilities and obligations with respect to such Excluded Interest to the same extent the Buyer would have been responsible therefor if such Excluded Interest had been transferred to the Buyer as of the Closing. During such twenty four month period Seller shall continue to seek the consent or approval required in connection with each Excluded Interest, or otherwise remove the impediment to the sale, assignment, transfer or conveyance of each Excluded Interest to the Buyer.
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 (b)    In the event that any Required Consent has not been obtained within the time frame specified in Section 4.03 , Buyer shall have the right to elect (in its sole discretion) at any time to exclude the Real Property Lease, the Assumed Contract, the Assumed Purchase Order or any other Purchased Asset subject to such unobtained Required Consent (the “ Unobtained Consent Assets ”) from the Transactions and (i) within five (5) Business Days following such election, Seller shall execute transfer documents as reasonably requested by Buyer which transfers and assigns the applicable Unobtained Consent Asset to Seller or one of its designated Affiliates, (ii) any Liabilities or Indebtedness associated such Unobtained Consent Asset shall become Excluded Liabilities, and (iii) (A) if the First Deferred Payment has not yet been made, the First Deferred Payment will be reduced by the fair market value reasonably attributable to such Unobtained Consent Asset or (B) if the First Deferred Payment has been made but not the Second Deferred Payment (or if the amount of the First Deferred Payment is less than the fair market value reasonably attributable to such Unobtained Consent Asset), the Second Deferred Payment will be reduced by the fair market value reasonably attributable to such Unobtained Consent Asset (or such remaining amount not deducted from the First Deferred Payment). If the Parties are unable agree on the fair market value of any Unobtained Consent Asset within a twenty Business Day period following Buyer’s election to exclude the Unobtained Consent Asset, either Party may elect to refer the dispute to a nationally-recognized independent valuator reasonably acceptable to both Parties. The valuator shall promptly determine the fair market value of the Unobtained Consent Asset (such determination, the “ Independent Appraisal ”). The valuator or appraiser shall render its decision within twenty Business Days and such decision shall be final and binding upon the parties. The fees and expenses of the valuator shall be borne by the Party whose proposed fair market value is further from the Independent Appraisal; provided , that if both Parties’ proposed values are within ten percent of the same distance from the Independent Appraisal, such fees and expenses shall be borne equally by the Parties.
 ARTICLE III
PURCHASE PRICE: POST-CLOSING ADJUSTMENT;
INVESTMENT ALLOCATIONS
 Section 3.01     Purchase Price and Payment . In consideration of the sale and purchase contemplated herein, the Buyer will assume or pay the Assumed Obligations as herein provided and the Buyer will pay to the Seller the Purchase Price as detailed in this Article III .
 (a)     Estimated Adjusted Purchase Price . The Seller has, in accordance with the Accounting Principles, prepared and delivered to the Buyer a reasonably detailed estimated closing statement (the “ Estimated Closing Statement ”), setting forth the Seller’s good faith calculation of (i) the Working Capital as of the Effective Time (the “ Estimated Working Capital ”), (ii) the Estimated Working Capital Excess, if any, (iii) the Estimated Working Capital Shortfall, if any, (iv) the Indebtedness Adjustment (the “ Estimated Indebtedness Adjustment ”), (v) the Debt-Like Items Amount, (vi) the Property Tax Adjustment as of the Effective Time (the “ Estimated Property Tax Adjustment ”), (vii) Command Center 1 and 2 Amount as of the Effective Time and (viii) the Seller’s determination of the Estimated Adjusted Purchase Price derived therefrom (which, for the avoidance of doubt, shall not include the
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 amounts referenced in clauses (i) through (iii) above). The Estimated Closing Statement will be used as the basis for determining the Estimated Adjusted Purchase Price.
 (b)     Closing Date Payment . On the date hereof, the Buyer will pay to the Seller an amount equal to (i) the Estimated Adjusted Purchase Price minus (ii) an amount equal to the Aggregate Deferred Payment Amount, by wire transfer in immediately available funds.
 (c)     Final Closing Statement and Post-Closing Adjustment Procedures .
 (i)    No later than 90 days after the Closing Date, the Buyer will prepare, or cause to be prepared, in accordance with the Accounting Principles, and deliver to the Seller, a reasonably detailed closing statement (the “ Final Closing Statement ”) setting forth the Buyer’s good faith calculation of (A) the Working Capital as of the Effective Time, (B) the Working Capital Excess, if any, (C) the Working Capital Shortfall, if any, (D) the Indebtedness Adjustment, (E) the Debt-Like Items Amount, (F) the Property Tax Adjustment as of the Effective Time, (G) the Command Center 1 and 2 Amount as of the Effective Time, and (H) the Buyer’s determination of the Final Adjusted Purchase Price derived therefrom (which, for the avoidance of doubt, shall include the amounts referenced in clauses (A) through (C) above).
 (ii)    If the Seller disagrees with anything contained in the Final Closing Statement (the disputed items being the “ Disputed Items ”), then within 30 days after the date of delivery to the Seller of the Final Closing Statement, the Seller may give written notice (a “ Closing Statement Dispute Notice ”) to the Buyer setting forth (A) the Disputed Items, (B) in reasonable detail the Seller’s basis for disagreement with the Disputed Items, (C) the Seller’s proposed resolution of the Disputed Items (including the Seller’s determination of the Working Capital, the Working Capital Excess, if any, the Working Capital Shortfall, if any, the Indebtedness Adjustment, the Property Tax Adjustment and the Final Adjusted Purchase Price derived therefrom taking into account such proposed resolution of the Disputed Items), and (D) include materials showing in reasonable detail the Seller’s support for such position.
 (iii)    (A) The failure by the Seller to provide a Closing Statement Dispute Notice within such 30-day period or (B) the delivery by the Seller to the Buyer during such 30-day period of a written notice stating that the Seller has elected not to deliver a Closing Statement Dispute Notice, will constitute a full and complete acceptance by the Seller of the Final Closing Statement as determined by the Buyer and such Final Closing Statement will be binding and final for all purposes of this Agreement. If the Seller timely delivers a Closing Statement Dispute Notice and the Buyer and the Seller are unable to resolve any disagreement with respect to the Final Closing Statement within 30 days after the delivery of such Closing Statement Dispute Notice by the Seller to the Buyer, then the dispute may be referred by either the Buyer or the Seller for determination to a nationally or regionally recognized accounting firm not affiliated with the Seller or the Buyer that is mutually selected by the Buyer and the Seller. If the Buyer and the Seller are unable to select a nationally or regionally recognized accounting firm within 15 Business Days of the notice by the Seller or the Buyer to submit the dispute, either the Buyer or the Seller may thereafter request that the American Arbitration Association (the “ AAA ”) make such selection (as applicable, the firm selected by the Buyer and the Seller or the AAA is referred to as the “ Independent Accountant ”); provided , in no event shall the
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 Independent Accountant be the regular auditing firm of either Party. The Independent Accountant’s determination shall be based solely on (1) the definitions and other applicable provisions of this Agreement, and (2) presentations consisting of (x) a single written presentation submitted by each of the Seller and the Buyer (which the Independent Accountant shall be instructed to distribute to the Seller and the Buyer upon receipt of both such presentations) and (y) a single written response submitted by each of the Seller and the Buyer to each such presentation and any interrogatories of the Independent Accountant (which the Independent Accountant shall be instructed to distribute to the Seller and the Buyer upon receipt of such responses). For the avoidance of doubt, neither the Seller nor the Buyer shall have any ex parte communications with the Independent Accountant relating to this Section 3.01(c) or this Agreement, and the Independent Accountant shall not conduct an independent investigation in respect of its determination. The Independent Accountant will make a written determination as promptly as practicable, but in any event within 30 days after the date on which the dispute is referred to the Independent Accountant (which determination shall be made regarding each Disputed Item by selecting only the position with respect to such Disputed Item that is claimed by the Buyer in the Final Closing Statement or by the Seller in the Closing Statement Dispute Notice). If at any time the Seller and the Buyer resolve their dispute, then notwithstanding the preceding provisions of this Section 3.01(c) , the Independent Accountant’s involvement promptly will be discontinued and the Final Closing Statement will be revised, if necessary, to reflect such resolution and thereupon will be final and binding for all purposes of this Agreement. The Seller and the Buyer will make readily available to the Independent Accountant all books and records relating to the Final Closing Statement and all other items reasonably requested by the Independent Accountant in connection with resolving the Disputed Items. The costs and expenses of the Independent Accountant will be borne by the Seller and the Buyer in proportion to their relative success as determined by the Independent Accountant (with the more successful party bearing the lesser portion of such fees). The decision of the Independent Accountant will be final, binding and non-appealable for all purposes of this Agreement, and the Final Closing Statement will be revised, if necessary, to reflect such decision and thereupon will be final, binding and non-appealable for all purposes of this Agreement. Any statement, calculation or notice delivered by the Seller or the Buyer pursuant to this Section 3.01(c) (including the Estimated Closing Statement) and any negotiation, communication or discussion with respect thereto, is being delivered for settlement purposes only and will be subject to Rule 408 of the Federal Rules of Evidence.
 (d)     Final Adjusted Purchase Price Settlement . Following the final determination of the Final Adjusted Purchase Price as provided in Section 3.01(c) :
 (i)    if the Final Adjusted Purchase Price is greater than or equal to the Estimated Adjusted Purchase Price, then, (A) if the Final Adjusted Purchase Price has been determined at least ten (10) days prior to the First Deferred Payment Date, the First Deferred Payment Amount will be increased by an amount equal to such excess and (B) if the Final Adjusted Purchase Price has been determined later than ten (10) days prior to the First Deferred Payment Date, the Second Deferred Payment Amount will be increased by an amount equal to such excess; and
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 (ii)    if the Final Adjusted Purchase Price is less than the Estimated Adjusted Purchase Price (such difference, the “ Final Adjustment Shortfall ”), then (A) if the Final Adjusted Purchase Price has been determined prior to the First Deferred Payment Date, the First Deferred Payment Amount will be decreased by an amount equal to the lesser of the Final Adjustment Shortfall and the full amount of the First Deferred Payment Amount and (B) if the Final Adjusted Purchase Price has been determined following the First Deferred Payment Date or if the Final Adjustment Shortfall was greater than the First Deferred Payment Amount, then the Second Deferred Payment Amount will be reduced by the Final Adjustment Shortfall (or such remaining portion thereof not deducted from the First Deferred Payment Amount) and any remaining portion of the Final Adjustment Shortfall shall be immediately due and payable by Seller by wire transfer of immediately available funds, including if the Final Adjusted Purchase Price is determined following the Second Deferred Payment Date.
 Section 3.02     Deferred Payments .
 (a)     First Deferred Payment . On the First Deferred Payment Date, the Buyer or the Issuer shall pay to the Seller an amount equal to the First Deferred Payment Amount. At the Buyer’s election, the First Deferred Payment Amount may be paid by (i) wire transfer of immediately available funds or (ii) causing to be issued to the Seller in book entry form a number of shares of Issuer Common Stock having a value, based upon the VWAP as of the trading day immediately preceding the First Deferred Payment Date, equal to the First Deferred Payment Amount, rounded to the nearest whole share, all of which shares shall contain or be subject to the standard private placement legend applied to shares of Issuer Common Stock that are issued pursuant to an exemption from the SEC’s registration requirements (the “ Private Placement Legend ”); provided , that in no event shall the shares issued under this Section 3.02(a) represent a number of shares equal to more than 19.9% of the outstanding shares of Issuer Common Stock as of immediately prior to the First Deferred Payment Date (the “ Issuer Common Stock Consideration Cap ”); provided , further , that in the event that the aggregate number of shares of Issuer Common Stock to be issued under this Section 3.02(a) would result in the issuance of shares of Issuer Common Stock in an amount in excess of the Issuer Common Stock Consideration Cap, then the Buyer shall issue a number of shares of Issuer Common Stock up to the Issuer Common Stock Consideration Cap and shall satisfy the remaining balance of the First Deferred Payment Amount by wire transfer of immediately available funds.
 (b)     Second Deferred Payment . On the Second Deferred Payment Date, the Buyer or the Issuer shall pay to the Seller an amount equal to the Second Deferred Payment Amount. At the Buyer’s election, the Second Deferred Payment Amount may be paid by (i) wire transfer of immediately available funds or (ii) causing to be issued to the Seller in book entry form a number of shares of Issuer Common Stock having a value, based upon the VWAP as of the trading day immediately preceding the Second Deferred Payment Date, equal to the Second Deferred Payment Amount, rounded to the nearest whole share, all of which shares shall contain or be subject to the Private Placement Legend; provided , that in no event shall the aggregate number of shares issued under Section 3.02(a) and this Section 3.02(b) exceed the Issuer Common Stock Consideration Cap; provided , further , that in the event that the aggregate number of shares of Issuer Common Stock to be issued under this Section 3.02(b) would result in the issuance of shares of Issuer Common Stock under Section 3.02(a) and this Section 3.02(b) in an
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 aggregate amount in excess of the Issuer Common Stock Consideration Cap, then the Buyer shall issue an aggregate number of shares of Issuer Common Stock under Section 3.02(a) and this Section 3.02(b) up to the Issuer Common Stock Consideration Cap and shall satisfy the remaining balance of the Second Deferred Payment Amount by wire transfer of immediately available funds.
 (c)     Change of Control . In the event of a merger or change of control of Issuer, the obligations under Section 3.02(a) and Section 3.02(b) must be expressly assumed by the surviving entity or successor. In the event of a merger or change or control of Buyer, Issuer shall remain liable for the obligations under Section 3.02(a) and Section 3.02(b) .
 (d)     Issuer. The Issuer agrees to issue the Issuer Common Stock to the extent required under this Section 3.02 .
 (e)     Officer’s Certificate . In the event that the Buyer elects to pay any amounts owed under this Section 3.02 through the issuance of shares of Issuer Common Stock, then as a condition to the Seller receiving such shares of Issuer Common Stock, the Seller shall deliver to the Issuer a certificate, duly executed by an authorized officer of the Seller, certifying that the following representations and warranties are true and correct as of the date thereof:
 (i)    the Seller is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act;
 (ii)    the Seller is receiving such shares of Issuer Common Stock for its own account with the present intention of holding such shares of Issuer Common Stock for investment purposes and not with a view to, or for sale in connection with, any distribution;
 (iii)    the Seller has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the shares of Issuer Common Stock;
 (iv)    with the assistance of the Seller’s own professional advisors, to the extent that the Seller has deemed appropriate, the Seller has made its own legal, tax, accounting and financial evaluation of the merits and risks of an investment in the Issuer Common Stock;
 (v)    the Seller confirms that it is not relying on any communication (written or oral) of the Buyer, Issuer or any of their Affiliates, as investment or tax advice or as a recommendation to acquire any Issuer Common Stock, and that neither the Buyer, Issuer nor any of their Affiliates is acting or has acted as an advisor to the Seller with respect to its decision to acquire the Issuer Common Stock;
 (vi)    in accepting such shares of Issuer Common Stock, the Seller has made its own independent decision that an investment in such shares of Issuer Common Stock is suitable and appropriate for the Seller;
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 (vii)    the Seller understands that such shares of Issuer Common Stock have not been registered under the Securities Act or any state securities laws by reason of specific exemptions under the provisions thereof that depend in part upon the investment intent of the Seller and of the other representations made by Seller in such certificate, and that Issuer is relying upon such representations for the purposes of determining whether the issuance of such shares to the Seller meets the requirements for such exemptions;
 (viii)    the Seller understands that such shares of Issuer Common Stock will constitute “restricted securities” under applicable federal securities laws and that the Securities Act and the rules of the SEC provide in substance that the Seller may dispose of any such shares of Issuer Common Stock only pursuant to an effective registration under the Securities Act or an exemption therefrom;
 (ix)    the Seller acknowledges that such shares of Issuer Common Stock have not been registered under applicable federal and state securities laws and may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless such transfer, sale, assignment, pledge, hypothecation or other disposition is registered under applicable federal and state securities laws or is made pursuant to an exemption from registration under any federal or state securities laws;
 (x)    the Seller understands that no federal or state agency has passed upon the merits of an investment in such shares of Issuer Common Stock or made any finding or determination concerning the fairness or advisability of such an investment; and
 (xi)    the Seller understands that the Issuer may have material non-public information concerning the Issuer and its condition (financial and otherwise), results of operations, businesses, properties, plans and prospects and that such information could be material to an investment decision.
 (f)     Registration Rights Agreement . In the event that the Buyer elects to pay any amounts owed under this Section 3.02 through the issuance of shares of Issuer Common Stock, then on the First Deferred Payment Date or the Second Deferred Payment Date, as applicable, the Issuer and the Seller shall enter into a Registration Rights Agreement with respect to such shares of Issuer Common Stock in substantially the form attached hereto as Annex B .
 Section 3.03     Purchase Price Allocation .
 (a)    The Purchase Price (and any other items constituting consideration for U.S. federal income tax purposes) will be allocated among the Purchased Assets in accordance with the six categories of assets specified in Part II of IRS Form 8594 (Asset Acquisition Statement under Section 1060) in a manner consistent with the principles of Section 1060 of the Code and the Treasury Regulations promulgated thereunder (the “ Purchase Price Allocation ”). On or prior to the date that is 60 days after the final determination of the Final Adjusted Purchase Price, the Buyer will provide the Seller with the Buyer’s proposed Purchase Price Allocation. The Seller may propose to the Buyer any changes to such Purchase Price Allocation in writing within 30 days after the date of delivery of such proposed allocation to the Seller in accordance with the preceding sentence (or otherwise will be deemed to have agreed with such allocation
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 upon the expiration of such 30-day period). The Buyer and the Seller shall work together in good faith to agree upon a final binding Purchase Price Allocation within 30 days after the date of any requested changes by the Seller. In the event that the Buyer and the Seller cannot so agree, following such 30-day period (or such other time period mutually agreed upon between the Seller and the Buyer), the Buyer and the Seller will select an Independent Accountant, in the same manner as provided for the selection of the Independent Accountant under Section 3.01(c)(iii) , to determine the final Purchase Price Allocation. The cost of such expert will be divided equally between the Buyer and the Seller. The Buyer will update the Purchase Price Allocation as finally agreed in good faith to take into account any subsequent adjustments to the Purchase Price, including any adjustment pursuant to this Agreement, and any changes to any other items constituting consideration for U.S. federal income tax purposes, in a manner consistent with the principles of Section 1060 of the Code and the Treasury Regulations thereunder.
 (b)    Each of the Parties will report the U.S. federal, state and local and other Tax consequences of the purchase and sale contemplated hereby (including the timely filing of IRS Form 8594) in a manner consistent with the Purchase Price Allocation and not take any position for U.S. federal, state and local and other Tax purposes inconsistent with the Purchase Price Allocation unless otherwise required by applicable Law; provided , however , that neither Party shall be unreasonably impeded in its ability and discretion to negotiate, compromise and/or settle any Tax audit, claim or other similar proceedings in connection with the Purchase Price Allocation.
 Section 3.04     Withholding . The Buyer will be entitled to deduct and withhold from any amounts otherwise payable or deliverable pursuant to this Agreement such amounts as are required to be deducted or withheld therefrom under applicable Law; provided that, other than with respect to withholding Taxes owed as a result of the failure of Seller to deliver the form described in Section 4.04(a)(v) , the Buyer will use commercially reasonable efforts to provide the Seller with reasonable advance notice of any such withholding and shall reasonably cooperate with the Seller to reduce or eliminate such withholding to the extent permitted by Law. To the extent such amounts are so deducted or withheld, such amounts will be treated for all purposes as having been paid to the Person to whom such amounts would otherwise have been paid absent such deduction or withholding.
 ARTICLE IV
CLOSING; DOCUMENTS OF CONVEYANCE
 Section 4.01     Closing . The purchase and sale contemplated hereby will be consummated at a closing (referred to herein as the “ Closing ”) on the date hereof (the “ Closing Date ”) upon the execution and exchange by transmission by digital or electronic means of a copy of an executed counterpart of this Agreement and the other documents required hereby by each of the parties thereto or by the exchange of counterpart signature pages. The purchase and sale will be deemed effective for all purposes as of 12:01 a.m. (in Houston, Texas) on the Closing Date (the “ Effective Time ”).
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 Section 4.02     Bill of Sale and Assignment and Assumption Agreement . At the Closing, the Buyer and the Seller (and any Affiliate of the Seller which holds any of the Purchased Assets) will execute and deliver to each other a bill of sale and instrument of assignment and assumption pursuant to which the Seller will convey the Purchased Assets and assign the Assumed Obligations (to the extent legally transferable to the Buyer) to the Buyer and the Buyer will assume such obligations. Such instrument is referred to herein as the “ Bill of Sale and Assignment and Assumption Agreement ”.
 Section 4.03     Other Instruments of Conveyance . At the Closing (or within 60 days after Closing), the Seller will execute and/or deliver to the Buyer, or cause to be delivered, all necessary consents, waivers, approvals, or authorization from third parties which are necessary in connection with the assignment of the Real Property Leases, the Assumed Contracts, the Assumed Purchase Orders or any other Purchased Asset as contemplated herein (including those listed on Schedule 4.03 ) (collectively, the “ Required Consents ”).
 Section 4.04     Other Deliveries at Closing . At or prior to the Closing, in addition to the instruments described in Sections 4.02 and 4.03 , the following documents will be executed and the following deliveries will be made:
 (a)    By the Seller to the Buyer:
 (i)    the transition services agreement (the “ Transition Services Agreement ”), duly executed by the Seller;
 (ii)    the employment agreement (the “ Employment Agreement ”), duly executed by Stewart Cooper;
 (iii)    copies of all assignments of Intellectual Property from the Seller to the Buyer in a form suitable for filing and acceptable for registration with the United States Patent and Trademark Office, United States Copyright Office, and/or any appropriate international or domestic body regulating any of the same, as applicable;
 (iv)    copies of UCC-3 termination statements (that have been obtained by Seller prior to Closing) and other terminations, pay-offs and/or releases (that have been obtained by Seller prior to Closing) necessary to terminate or release, as the case may be, all Encumbrances, other than Permitted Encumbrances on any Purchased Asset;
 (v)    a valid and duly executed IRS Form W-9 with respect to the Seller, dated as of the Closing Date;
 (vi)    a copy of resolutions authorizing the execution of this Agreement and all of the Transactions; and
 (vii)    a certificate of good standing of the Seller certified by the Secretary of State of Texas and dated within two Business Days of the Closing Date.
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 (b)    By the Buyer:
 (i)    to the Seller, by wire transfer of immediately available funds, an amount equal to the Estimated Adjusted Purchase Price minus an amount equal to the Aggregate Deferred Payment Amount;
 (ii)    to the Seller, a duly executed counterpart of the Transition Services Agreement;
 (iii)    to Stewart Cooper, a duly executed counterpart of the Employment Agreement;
 (iv)    to the Seller, a certificate of good standing of the Buyer certified by the Secretary of State of the State of Delaware and dated within two Business Days of the Closing Date; and
 (v)    a certified copy of a resolution authorizing the execution of this Agreement and all of the Transactions by Buyer.
 Section 4.05     Transfer Taxes . To the extent that any sales, purchase, use, transfer, stamp, gross receipts tax, documentary, registration, filing, recording, or similar fees or Taxes or governmental charges are payable by reason of the consummation of the transactions contemplated by this Agreement (collectively, “ Transfer Taxes ”), such Transfer Taxes shall be borne by the Buyer. The Seller and the Buyer shall reasonably cooperate in good faith to minimize, to the extent permissible under applicable Law, the amount of any such Transfer Taxes.
 Section 4.06     Certain Matters Related to Asset Taxes .
 (a)     Allocation of Asset Taxes . The Seller shall be allocated and bear all Asset Taxes attributable to (i) any Pre-Closing Tax Period and (ii) the portion of any Straddle Period ending on the Closing Date (determined in accordance with Section 4.06(b) ). The Buyer shall be allocated and bear all Asset Taxes attributable to (A) any Tax period beginning after the Closing Date and (B) the portion of any Straddle Period beginning after the Closing Date (determined in accordance with Section 4.06(b) ). To the extent the actual amount of an Asset Tax is not known at the time an adjustment is to be made with respect to the Estimated Property Tax Adjustment or the Property Tax Adjustment, as applicable, the Parties shall utilize the most recent information available in estimating the amount of such Asset Tax for purposes of such adjustment. To the extent one Party bears Asset Taxes that are to be borne by the other Party pursuant to this Section 4.06(a) (taking into account, and without duplication of, the Estimated Property Tax Adjustment and the Property Tax Adjustment, as applicable, to the extent resulting in payments or adjustments under Section 3.01(d) ), timely payments will be made from one Party to the other to the extent necessary to cause each Party to bear the amount of such Asset Tax that is allocable to such Party under this Section 4.06(a) .
 (b)     Tax Proration Methodologies . For purposes of determining the portion of any Taxes that are payable with respect to any Straddle Period:
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 (i)    Asset Taxes that are based upon or related to sales or receipts or imposed on a transactional basis (other than such Asset Taxes described in clause (ii) below) shall be allocated to the period in which the transaction giving rise to such Asset Taxes occurred.
 (ii)    In the case of Asset Taxes that are ad valorem, property, or other Asset Taxes imposed on a periodic basis relating to a Straddle Period, the portion of any such Asset Taxes that is attributable to the portion of such Straddle Period ending on the Closing Date shall be deemed to be the amount of such Asset Taxes for the entire Straddle Period multiplied by a fraction the numerator of which is the number of calendar days in the portion of such Straddle Period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period. For purposes of the preceding sentence, the period for such ad valorem, property, or other Asset Taxes shall begin on the date on which ownership of the applicable Purchased Asset gives rise to liability for such Tax and shall end on the day before the next such date.
 (c)     Tax Returns for Asset Taxes . Subject to the Buyer’s indemnification rights under Article VII and the Seller’s payment obligation under Section 4.06(a) , the Buyer will (i) file any Tax Return with respect to Asset Taxes attributable to a Pre-Closing Tax Period or Straddle Period that are required to be filed after the Closing and will pay any such Asset Taxes shown as due and owing on such Tax Return, (ii) submit each such Tax Return to Seller for its review and comment reasonably in advance of the due date therefor, and (iii) timely file any such Tax Return, incorporating any reasonable comments received from Seller prior to the due date therefor. The Parties agree that (i) this Section 4.06(c) is intended to solely address the timing and manner in which certain Tax Returns relating to Asset Taxes are filed and the Asset Taxes shown thereon are paid to the applicable Taxing Authority and (ii) nothing in this Section 4.06(c) shall be interpreted as altering the manner in which Asset Taxes are allocated to and economically borne by the Parties.
 Section 4.07     Transfer of Possession . Except as otherwise provided herein, simultaneously with the Effective Time, the Seller will give the Buyer full possession and enjoyment of the Purchased Assets.
 Section 4.08     Other Actions and Instruments . The Buyer and the Seller will take such other actions and will execute and deliver such other instruments, documents and certificates at the Closing as are required by the terms of this Agreement or as may be reasonably requested by the Buyer or the Seller in connection with the Closing of the Transactions.
 ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER AND ISSUER
 Except as and to the extent disclosed in the Issuer SEC Reports, the Buyer and the Issuer, jointly and severally, represent and warrant to the Seller that the statements contained in this Article V are true, accurate, correct and complete as of the Closing Date:
 Section 5.01     Organization, Good Standing and Qualification . The Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. The Buyer is duly qualified to do business and is in good standing in each and every jurisdiction where it is required to so qualify and where the failure to qualify or to be in
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 good standing would prevent, materially impede or materially delay the ability of the Buyer to timely consummate the Transactions (a “ Buyer Material Adverse Effect ”). The Issuer is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Issuer is duly qualified to do business and is in good standing in each and every jurisdiction where it is required to so qualify and where the failure to qualify or to be in good standing would prevent, materially impede or materially delay the ability of the Issuer to timely consummate the Transactions.
 Section 5.02     Power and Authority . Each of the Buyer and Issuer has the requisite power and authority to execute, deliver and perform its obligations under and pursuant to this Agreement, and all documents executed and delivered by the Buyer and the Issuer in connection herewith, including the requisite power and authority to acquire the Purchased Assets and assume the Assumed Obligations upon the terms and conditions set forth herein. The execution and delivery of this Agreement and all documents executed and delivered by the Buyer and the Issuer in connection herewith and the consummation of the Transactions have been duly authorized by all necessary action on the part of the Buyer or the Issuer. This Agreement and all documents required under the terms of this Agreement to be executed and delivered by the Buyer and the Issuer in connection herewith will be duly executed and upon the execution and delivery thereof will be the legal, valid and binding obligations of the Buyer and the Issuer, enforceable against the Buyer and the Issuer in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
 Section 5.03     Validity of Contemplated Transactions . The execution, delivery and performance of this Agreement and all documents executed and delivered in connection herewith, and the consummation of the Transactions do not and will not (a) contravene any provision of the Organizational Documents of the Buyer or the Issuer as in effect as of the date hereof, (b) violate, be in conflict with, constitute a default under, result in the termination of, cause the acceleration of any payments pursuant to, or otherwise impair the good standing, validity, and effectiveness of any agreement, contract, commitment, indenture, lease or mortgage applicable to the Buyer or the Issuer, (c) violate any provision of Law, permit, authorization, or approval to which the Buyer or the Issuer is subject or (d) violate any judgment, order, writ, prohibition, injunction or decree of any Governmental Entity by which the Buyer or the Issuer is bound except, in each case, other than with respect to clause (a) , as would not reasonably be expected, individually or in the aggregate, to have a Buyer Material Adverse Effect.
 Section 5.04     Regulatory Approvals . All consents, waivers, approvals, authorization or exemptions from Governmental Entities and other requirements prescribed by any Law, which must be obtained or satisfied by the Buyer or the Issuer in order to permit the consummation of the Transactions have been obtained and satisfied, other than (i) such filings with the SEC as may be required under the rules and regulations of the SEC or NASDAQ in connection with this Agreement and the Transactions and (ii) such other declarations, filings, registrations, notices, authorizations, consents or approvals which (A) are customarily made or obtained after the closing of transactions similar to the Transactions or (B) if not obtained or made, would not reasonably be expected to have a Buyer Material Adverse Effect.
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 Section 5.05     Litigation . There is no Proceeding pending or, to the knowledge of the Buyer, threatened against the Buyer, which would reasonably be expected to have a Buyer Material Adverse Effect.
 Section 5.06     Brokers’ or Finders’ Fees . No broker, Person or firm acting on behalf of the Buyer or under its authority is or will be entitled to any commission, broker’s or finder’s fee or financial advisory fee from the Buyer in connection with any of the Transactions for which the Seller could become liable.
 Section 5.07     Issuer SEC Reports; Financial Statements .
 (a)    Since December 31, 2024, Issuer has filed or furnished with the SEC, on a timely basis, all forms, reports, certifications, schedules, statements and documents required to be filed or furnished under the Securities Act or the Exchange Act, including all amendments thereto (such forms, reports, certifications, schedules, statements, documents, and amendments thereto collectively, the “ Issuer SEC Reports ”). As of their respective dates, each of the Issuer SEC Reports, as amended, complied with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act of 2002, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Issuer SEC Reports, and the Issuer SEC Reports did not, when filed (or, if amended prior to the Closing Date, as of the date of such amendment with respect to those disclosures that are amended), (A) in the case of any registration statement, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (B) in the case of Issuer SEC Reports other than registration statements, include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
 (b)    The financial statements of Issuer included in the Issuer SEC Reports, including all notes and schedules thereto (“ Issuer Financial Statements ”), complied as to form in all material respects, when filed (or if amended prior to the Closing Date, as of the date of such amendment) with the rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP as in effect from time to time applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC) and such Issuer Financial Statements fairly present in all material respects in accordance with applicable requirements of GAAP (subject, in the case of the unaudited statements, to normal year-end audit adjustments) the financial position of Issuer and its consolidated subsidiaries as of their respective dates and the results of operations and the cash flows and stockholders’ equity of Issuer and its consolidated subsidiaries for the periods presented therein.
 Section 5.08     Listing Exchange . The Issuer Common Stock is registered under Section 12(b) of the Exchange Act and is listed on The Nasdaq Global Select Market (“ NASDAQ ”), and Issuer has not received any notice of delisting or any notice of non-compliance. The issuance of the Issuer Common Stock pursuant to this Agreement does not contravene any NASDAQ rules and regulations. Issuer has taken no action reasonably likely to have the effect of, terminating the registration of the Issuer Common Stock under the Exchange Act or delisting the Issuer Common Stock from NASDAQ, nor has Issuer received any notification that the SEC or NASDAQ is contemplating terminating such registration or listing, nor does the Issuer have knowledge of any
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 facts or circumstances that could reasonably be expected to result in termination of such registration or the listing.
 Section 5.09     Disclaimer . EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT (AS MODIFIED BY THE ISSUER SEC REPORTS) AND IN THE OTHER APPLICABLE ANCILLARY AGREEMENTS, NEITHER THE BUYER NOR ANY OTHER PERSON ON BEHALF OF THE BUYER, MAKES ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE BUYER, AND ALL OTHER REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE BUYER ARE HEREBY DISCLAIMED. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT AND IN THE OTHER APPLICABLE ANCILLARY AGREEMENTS, NEITHER THE BUYER NOR ANY OTHER PERSON ON BEHALF OF THE BUYER IS, DIRECTLY OR INDIRECTLY, MAKING ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY PRO-FORMA FINANCIAL INFORMATION, FINANCIAL PROJECTIONS OR OTHER FORWARD-LOOKING STATEMENTS WITH RESPECT TO THE BUYER.
 ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE SELLER
 The Seller represents and warrants to the Buyer that the statements contained in this Article VI are true, accurate, correct and complete as of the Closing Date, except as set forth in the Schedules accompanying the respective Sections of this Article VI . Disclosures contained in the Schedules as exceptions to a specifically identified Section shall be deemed disclosures against another Section of this Agreement solely to the extent that it is reasonably apparent on the face of such disclosure that such information also constitutes a disclosure to such other Section of this Agreement.
 Section 6.01     Organization, Good Standing and Qualification . The Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Texas. The Seller is duly qualified to do business and is in good standing in each and every jurisdiction where it is required to so qualify and where the failure to qualify or to be in good standing would prevent, materially impede or materially delay the ability of the Seller to timely consummate the Transactions or have a material adverse effect on the consolidated assets, liabilities, financial condition or results of operations of the Seller, the conduct of the Business or the ownership of the Purchased Assets (a “ Seller Material Adverse Effect ”).
 Section 6.02     Power and Authority . The Seller has the requisite limited liability company power and authority to execute and deliver the Agreement and to perform its obligations under and pursuant to this Agreement and all documents required under the terms of this Agreement to be executed and delivered by the Seller in connection herewith, including the requisite limited liability company power and authority to sell the Purchased Assets and transfer the Assumed Obligations upon the terms and conditions set forth herein. The execution and delivery of this Agreement and all documents executed and delivered by the Seller in connection herewith, the consummation of the Transactions have been duly authorized by all necessary action on the part of the Seller. This Agreement and all documents executed and delivered by the Seller in connection herewith will be duly executed and upon the execution and delivery thereof
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 will be legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with their respective terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles. Schedule 6.02 sets forth a true and complete list of the Seller’s outstanding equity interests or other voting securities, together with the names and percentage ownership of each member owning such class of securities. The Persons identified on Schedule 6.02 collectively own all of the outstanding equity interests or other voting securities of the Seller.
 Section 6.03     Validity of Contemplated Transactions . The execution, delivery and performance of this Agreement and all documents executed and delivered in connection herewith, and the consummation of the Transactions by the Seller does not and will not (a) contravene any provision of the Organizational Documents of the Seller as in effect as of the date hereof, (b) violate, be in conflict with, or constitute a default under, any agreement, contract, commitment, indenture, lease or mortgage, to which the Seller is a party or by which the Seller, the Business or the Purchased Assets are bound (including the Assumed Contracts, the Real Property Leases and the Assumed Purchase Orders), (c) violate any Law applicable to the Seller, the Business or the Purchased Assets or (d) violate any judgment, order, writ, prohibition, injunction or decree specifically applicable to the Seller, the Business or the Purchased Assets except, in each case, other than with respect to clause (a) , as would not reasonably be expected, individually or in the aggregate, to have a Seller Material Adverse Effect.
 Section 6.04     Consents . Except as set forth on Schedule 4.03 , all consents, waivers, notices, approvals, authorizations or exemptions from Governmental Entities or any other Person and other material requirements prescribed by any Law, which must be obtained or satisfied by the Seller in order to permit the consummation of the Transactions have been obtained or satisfied.
 Section 6.05     Organizational Documents . The Seller has provided true, complete and correct copies of the Seller’s Organizational Documents to the Buyer, each of which are in full force and effect as of the date hereof.
 Section 6.06     [Reserved]
 Section 6.07     Condition of and Title to Purchased Assets . (a) Except as disclosed on Schedule 6.07 , the Purchased Assets taken as a whole are in all material respects in good operating condition and repair, ordinary wear and tear excepted, and adequate and suitable in all material respects for their present operations and (b) immediately after giving effect to the Closing, the Buyer will have good, valid and marketable title to all of the Purchased Assets, free and clear of any and all Encumbrances and restrictions of any nature whatsoever, other than Permitted Encumbrances. In the case of leased assets which are included in the Purchased Assets, all such assets have been maintained in a condition required by their respective leases in all material respects, none of which will result in material charges to the Buyer for excess wear and tear on or to such items.
 Section 6.08     Material Contracts . Schedule 6.08 attached hereto sets forth a true and complete list of all oral and written contracts currently in effect to which the Seller is a party or by which the Seller, or, with respect to the Purchased Assets or the Business, any Affiliate of Seller, or the Purchased Assets are bound, that fall into one or more of the following (each such contract, whether or not identified on Schedule 6.08 , a “ Material Contract ”):
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 (a)    any contract or agreement relating to capital expenditures in excess of $250,000 in the aggregate;
 (b)    all current or pending contracts or agreements between the Seller and any other party which involve the payment or receipt by the Seller of more than $250,000 in any fiscal year or more than $1,000,000 in the aggregate during the term thereof, or require performance by any party more than one year from the date hereof, which cannot be cancelled by the Seller without penalty upon 30 days’ notice;
 (c)    any loan or advance to, or investment in, any Person or any contract or agreement relating to the making of any such loan, advance, or investment;
 (d)    any guarantee or other contingent Liability in respect of any Indebtedness or obligation of any Person;
 (e)    any management, consulting, contractor, employment, severance, retention, change of control, termination, or similar contract or agreement, including any contract or agreement with any current or former employee, officer, director, independent contractor or consultant of the Seller, which agreement is not terminable at will without prior notice or Liability to the Seller or its Affiliates;
 (f)    any collective bargaining agreement or other contract with any labor union, works council, or other labor organization;
 (g)    any contract for the sale of any of the Purchased Assets other than in the ordinary course of business or for the grant to any Person of any preferential right to purchase any of the Purchased Assets;
 (h)    any contract that contains provisions relating to a change of control of the Seller, including with respect to a sale of all or substantially all of its assets;
 (i)    any contract for joint ventures, strategic alliances, partnerships, licensing arrangements, or sharing of proprietary information;
 (j)    any license or other contract with respect to material Intellectual Property used or owned by the Seller (other than any “shrink wrap” or other standard end user license for commercially available off-the-shelf software with a replacement cost or annual license, maintenance or subscription fees of less than $50,000);
 (k)    any contract relating to the acquisition or disposition by the Seller of the equity or assets of any company or any operating business or interests of another Person (by asset sale, stock sale, merger or otherwise);
 (l)    any contract providing for the deferred payment of any material purchase price including any “earn out” or other contingent fee arrangement;
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 (m)    any contract creating an Encumbrance on any of the Purchased Assets that will not be discharged at or prior to the Closing;
 (n)    any settlement, conciliation or similar agreement that requires satisfaction by the Seller of any obligations after the date of this Agreement;
 (o)    any contract or agreement limiting the freedom of the Seller or its successors from engaging in any line of business or with any Person in any geographical area, soliciting employees or customers, or competing with any Person, and any contract or agreement where any Person has agreed not to compete with the Seller or its Affiliates;
 (p)    any contract where the Seller grants any Person, or any Person grants the Seller, the exclusive right to sell products or provide services within any geographical region;
 (q)    any contract, agreement or obligation to complete an existing customer’s job or purchase order;
 (r)    the Real Property Leases;
 (s)    any contract that provides for the purchase or sale of real property or the lease (including any master lease covering multiple items of personal property) of any item or items of personal property with rental expenses under such lease (whether for a single item or multiple items) in excess of $100,000 annually;
 (t)    any contract involving interest rate swaps, cap or collar agreements, commodity or financial future or option contracts or similar derivative hedging contracts;
 (u)    any contract containing a “most favored nation” pricing clause or similar provision with a customer;
 (v)    any contract with a Top Customer or Top Supplier;
 (w)    any contract, commitment, or agreement between (i) the Seller or its Affiliates and (ii) any member, manager, officer, employee or director (or any of their Affiliates) of the Seller;
 (x)    all concession agreements;
 (y)    any contract under which the Seller is expected to incur a contingent liability or a loss; and
 (z)    any other contract that is otherwise related to the Business or the Purchased Assets and material to the Seller.
 The Seller has made available to the Buyer a true, complete and correct copy of all Material Contracts, in each case together with all amendments, waivers or other changes thereto. Schedule 6.08 contains an accurate and complete description of all material terms of all oral
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 contracts and other oral items which are described or required to be described thereon. Each Material Contract is in full force and effect in all material respects, and is the legal, valid and binding obligation of the Seller and, to Seller’s knowledge, any other Person party thereto, binding and enforceable against the Seller and, to Seller’s knowledge, any other Person party thereto, in accordance with its terms and is not subject to any material claims, charges set-offs or defenses, in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles. No Material Contract has been terminated other than upon expiration in accordance with its terms without action by any party thereto. Neither the Seller nor, to the knowledge of the Seller, any other Person is in breach or default of a Material Contract. No event has occurred that with notice or lapse of time, or both, would constitute a material breach or default on the part of the Seller or, to the knowledge of the Seller, any other party under any Material Contract, which would give rise of notice, modification, acceleration, payment, cancellation or termination by the Seller under, or in any manner release any party thereto from any obligation under, any Material Contract. Except as set forth on Schedule 6.08 , the Seller has not received any written notice, nor does the Seller have any knowledge, that a counterparty to any Material Contract is terminating, not renewing, modifying, repudiating or rescinding, or intends to terminate, not renew, modify, repudiate or rescind such Material Contract. Since the Financial Statement Date, the Seller has not received written (or, to the knowledge of the Seller, other) notice regarding any actual or alleged violation or breach of, or default under any Material Contract. To the knowledge of the Seller, no facts exist which would render the performance by a party to a Material Contract of its obligations thereunder unlikely and no party to a Material Contract has claimed a force majeure with respect thereto. Since the Financial Statement Date, there have been no material disputes under any Material Contracts.
 Section 6.09     Real Property .
 (a)    The Seller does not own any real property.
 (b)     Schedule 6.09(b) lists all leases, licenses or occupancy agreements for real property pursuant to which the Seller leases, licenses or otherwise occupies any real property (together with any and all amendments or supplements thereto, the “ Real Property Leases ”). The real property subject to the Real Property Leases, and all buildings, fixtures, structures and improvements situated thereon, are referred to herein as the “ Leased Real Property .” A true, correct and complete copy of each of the Real Property Leases, as amended to date, has been provided to the Buyer. The Seller is the lessee, sublessee or licensee under any particular Real Property Lease and owns the leasehold or license interest created pursuant to each of the Real Property Leases free and clear of all Encumbrances, other than Permitted Encumbrances. Each Real Property Lease is in full force and effect and constitutes a binding obligation of the Seller and, to the Seller’s knowledge, of the applicable counterparty under such Real Property Lease. There is not, under any such Real Property Lease, any existing default by the Seller, or, to the Seller’s knowledge, by the applicable counterparty thereto. No event has occurred and is continuing that constitutes, or that with the giving of notice or the passage of time or both would constitute, a default by the Seller, or the knowledge of the Seller, the applicable counterparty under such Real Property Lease, under any Real Property Lease. There are no existing disputes with respect to the Real Property Leases.
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 (c)    The Leased Real Property constitutes all of the real property which is (i) currently used in connection with the operation of the Business, and (ii) except for leases of real property no longer used in the Business, necessary and sufficient to conduct the Business in the manner in which the Business is currently being conducted and proposed to be conducted. Other than the Seller, there is no party in possession of any portion of any Leased Real Property as lessees, subtenants, tenants at sufferance or trespassers. The Leased Real Property complies, in all material respects, with all applicable Laws and matters of record. Subject to the terms of the Real Property Leases, the Seller has full right and authority to occupy, use and operate all of the improvements located on the Leased Real Property, subject to applicable Laws. No casualty loss has occurred with respect to the improvements located on the Leased Real Property (the “ Facilities ”). There is no pending or, to the knowledge of the Seller, threatened condemnation, eminent domain or similar Proceeding or special assessment affecting any of the Leased Real Property, nor has the Seller received written notification that any such Proceeding or assessment is being contemplated. Except as set forth on Schedule 6.09(c) , the Facilities, including roofs, are in good order and state of repair, are free from material structural and material mechanical defects and have been used by the Seller in the ordinary course of business and remain as of the Closing Date in suitable and adequate condition for such continued use. The Seller has not deferred maintenance of the Facilities in contemplation of the Transactions.
 (d)    The Seller has provided the Buyer with true, correct and complete copies of all property condition reports and surveys in the possession of the Seller that relate to the Leased Real Property.
 Section 6.10     Assumed Obligations . At the Closing, the Buyer will receive the Seller’s entire right, title and interest in the Real Property Leases, the Assumed Purchase Orders and the Assumed Contracts, free and clear of all Encumbrances. Each of the Real Property Leases and Assumed Contracts is valid, binding, in full force and effect, and enforceable by or against the Seller in accordance with their respective terms and conditions and upon assignment and assumption by the Buyer will be enforceable by the Buyer in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles. There is no existing default thereunder or breach thereof or condition which, with the passage of time or notice or both, might constitute a default thereunder by the Seller, or to the Seller’s knowledge, any other party thereto. There has been no termination or, to the knowledge of the Seller, threatened termination or notice of default or significant dispute (not heretofore cured) relating to any such lease or contract. The Seller has not waived or assigned any of its material rights under any Real Property Lease, Assumed Contract or Assumed Purchase Order with respect to any period following the Closing Date.
 Section 6.11     Financial Statements . The Seller’s Financial Statements consisting of: (i) an audited balance sheet and statement of income for the years ended December 31, 2024 and December 31, 2023; and (ii) an unaudited balance sheet and statement of income for the year ended December 31, 2025 are attached hereto as Schedule 6.11 and incorporated by reference herein (such balance sheets and statements being referred to herein collectively as the “ Financial Statements ”). December 31, 2025 is referred to herein as the “ Financial Statement Date .” The Seller’s Financial Statements were prepared in accordance with GAAP consistently applied
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 throughout the periods noted, except for the absence of footnotes for the interim periods and present fairly in all material respects the financial condition of the Seller on the last day of and the results of operations for the respective periods ended on such dates. Since the Financial Statement Date, there has been no material adverse change in the financial condition of the Seller and no event, circumstance or fact has occurred that can reasonably be expected to, result in a Seller Material Adverse Effect. The income statements included in the Financial Statements do not materially overstate net income before Income Taxes for the periods included therein.
 Section 6.12     Taxes .
 (a)    All Tax Returns required to be filed with respect to Asset Taxes have been timely and properly filed with the appropriate Taxing Authority, and each such Tax Return is true, correct and complete in all material respects. All Asset Taxes that have become due and payable have been timely paid in full, whether disputed or not, and whether or not shown on any Tax Return. All withholding Tax requirements imposed with respect to the Purchased Assets or the Business have been satisfied in full in all respects.
 (b)    There are no claims by any Taxing Authority pending for any unpaid Asset Taxes, and no assessment, deficiency, or adjustment with respect to Asset Taxes has been asserted or proposed or threatened in writing. No Tax audits or administrative or judicial proceedings with respect to Asset Taxes are being conducted or are pending or have been threatened in writing. There are no agreements, waivers, or other arrangements in force or effect providing for an extension of time with respect to the due date for the filing of any Tax Return for Asset Taxes or for the assessment or collection of any Asset Tax.
 (c)    There are no Encumbrances (other than Permitted Encumbrances for current period Taxes not yet due and payable) on any of the Purchased Assets attributable to any Tax liability.
 (d)    All of the Purchased Assets, to the extent required to be included on any applicable property tax roll under any applicable Law, have been properly listed and described on the applicable property tax rolls prior to and including the Closing Date and no portion of the Purchased Assets constitutes omitted property for property Tax purposes.
 (e)    The Purchased Assets do not consist of property or obligations, including uncashed checks to vendors, customers, or employees, non-refunded overpayments, or unclaimed subscription balances, that is escheatable or reportable as unclaimed property to any state or municipality under any applicable escheatment or unclaimed property laws.
 (f)    None of the Purchased Assets are subject to any tax partnership agreement or otherwise treated, or required to be treated, as held in an arrangement requiring a partnership income Tax Return to be filed under Subchapter K of Chapter 1 of Subtitle A of the Code.
 Section 6.13     No Undisclosed Liabilities . The Seller does not have any Liabilities relating to the Business or the Purchased Assets (required under GAAP to be reflected on its financial statements or the notes thereto) other than those (i) specifically reflected on and fully reserved against in the Financial Statements, (ii) incurred in the ordinary course of business since
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 the Financial Statement Date, or (iii) that would not reasonably be expected, individually or in the aggregate, to be material to the Business.
 Section 6.14     Litigation; Compliance with Laws . The Seller has not (a) received any notice of any Proceeding, and there is no Proceeding pending, and to the knowledge of the Seller, there is no Proceeding threatened, against the Seller (or any of the officers, managers, directors or employees of the Seller with respect to their business activities on behalf of the Seller or with respect to the Business) or the Purchased Assets nor to the knowledge of the Seller is there any reasonable basis for any such Proceeding, (b) failed to comply with any Law in any material respect, nor (c) violated in any material respect any order, writ, injunction, judgment, or decree of any Governmental Entity. The Seller is not engaged in any Proceeding to recover monies due it or for damages sustained by it. There are no Proceedings pending or, to the knowledge the Seller, threatened against the Seller or to which the Seller is otherwise a party relating to this Agreement or the Transactions. The Seller and its employees and, to the knowledge of the Seller, each of its respective independent contractors and agents, have complied with and are in compliance in all material respects with all applicable Laws which affect the Business or any Purchased Asset and to which the Seller or any Purchased Asset is subject, and no claim has been filed against, nor any notice given to, the Seller alleging a violation of any such Law.
 Section 6.15     Permits and Licenses . The only permits, licenses, approvals or other authorizations (hereafter referred to as the “ Permits ”) necessary for the complete operation of the Business as it is prese…