20180118 Form 8-K - Project Gamma





UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549



FORM 8-K





CURRENT REPORT PURSUANT TO

SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): January 16, 2018 

 

SPECTRUM BRANDS HOLDINGS, INC.

(Exact Name of Registrant as Specified in its Charter)



 

 

 

 

 

Delaware

 

001-34757

 

27-2166630

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

SB/RH HOLDINGS, LLC 

(Exact Name of Registrant as Specified in its Charter)





 

 

 

 

 

 

 

 

 

Delaware

 

333-192634-03

 

27-2812840

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)



3001 Deming Way

Middleton, Wisconsin 53562

(Address of principal executive offices)



(608) 275-3340

(Registrant’s telephone number, including area code)

 

Not applicable

(Former Name or Former Address, if Changed Since Last Report) 





Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:



 



 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 



 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 



 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))



Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§232.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).



Spectrum Brands Holdings, Inc.

 

SB/RH Holdings, LLC



If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.





 

 

 

Spectrum Brands Holdings, Inc.

 

SB/RH Holdings, LLC





 


 

Item 1.01. Entry into a Material Definitive Agreement.



Acquisition Agreement



On January 15, 2018, Spectrum Brands Holdings, Inc., a Delaware corporation (the “Company”), entered into a definitive Acquisition Agreement (the “Acquisition Agreement”) with Energizer Holdings, Inc., a Missouri corporation (“Energizer”).  On the terms and subject to the conditions set forth in the Acquisition Agreement, Energizer will acquire from the Company (the “Acquisition”), its global battery, lighting and portable power business (the “Business”) for an aggregate purchase price of $2.0 billion in cash (the “Purchase Price”), subject to customary purchase price adjustments.



The Acquisition Agreement provides that, upon the terms and subject to the conditions set forth in the Acquisition Agreement, Energizer will purchase the equity of certain subsidiaries of the Company involved in, and assets of Spectrum and its subsidiaries used or held for use primarily in, or that arise primarily out of, the Business and will assume certain liabilities arising primarily out of or relating primarily to the Business.


In the Acquisition Agreement, the Company and Energizer have made customary representations and warranties and have agreed to customary covenants relating to the Acquisition.  Among other things, prior to the consummation of the Acquisition, the Company will be subject to certain business conduct restrictions with respect to its operation of the Business.



The Company and Energizer have agreed to indemnify each other for losses arising from certain breaches of the Acquisition Agreement and for certain other matters.  In particular, the Company has agreed to indemnify Energizer for certain liabilities relating to the assets retained by the Company, and Energizer has agreed to indemnify the Company for certain liabilities assumed by Energizer, in each case as described in the Acquisition Agreement.



The Company and Energizer have agreed to enter into related agreements ancillary to the Acquisition that will become effective upon the consummation of the Acquisition, including a customary transition services agreement and reverse transition services agreement.



The consummation of the Acquisition is subject to certain customary conditions, including, among other things, (i) the absence of a material adverse effect on the Business, (ii) the expiration or termination of required waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, (iii) the receipt of certain other antitrust approvals in certain specified foreign jurisdictions (the conditions contained in (ii) and (iii) together, the “Antitrust Conditions”), (iv) the accuracy of the representations and warranties of the parties (generally subject to a customary material adverse effect standard (as described in the Acquisition Agreement) or other customary materiality qualifications), (v) the absence of governmental restrictions on the consummation of the Acquisition in certain jurisdictions, and (vi) material compliance by the parties with their respective covenants and agreements under the Acquisition Agreement.  The consummation of the Acquisition is not subject to any financing condition. The Acquisition is expected to be consummated prior to the end of calendar 2018.  Energizer has obtained financing commitments with respect to the Acquisition from Barclays Bank PLC and JPMorgan Chase Bank, N.A.



The Acquisition Agreement also contains certain termination rights, including the right of either party to terminate the Acquisition Agreement if the consummation of the Acquisition has not occurred on or before July 15, 2019 (the “Termination Date”).  Further, if the Acquisition has not been consummated by the Termination Date and all conditions precedent to Energizer’s obligation to consummate the Acquisition have otherwise been satisfied except for one or more of the Antitrust Conditions, then Energizer would be required to pay the Company a termination fee of $100 million.



The foregoing description of the Acquisition Agreement and the transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to, the Acquisition Agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 2.1 and the terms of which are incorporated herein by reference.  The Acquisition Agreement has been attached to provide investors with information regarding its terms.  It is not intended to provide any other factual information about the Company, Energizer or the Business.  In particular, the assertions embodied in the representations and warranties in the Acquisition Agreement were made as of a specified date, are modified or qualified by information in a confidential disclosure letter prepared in connection with the execution and delivery of the Acquisition Agreement, may be subject to a contractual standard of materiality different from what might be viewed as material to shareholders, or may have been used for the purpose of allocating risk between the parties.  Accordingly, the representations and warranties in the Acquisition Agreement are not necessarily characterizations of the actual state of facts about the Company, Energizer, or the Business at the time they were made or otherwise and should only be read in conjunction with the other information that the Company makes publicly available in reports, statements and other documents filed with the U.S. Securities and Exchange Commission (the “SEC”).



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Item 7.01. Regulation FD Disclosure.

 

On January 16, 2018, the Company issued a press release announcing the Acquisition. A copy of this press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein.



The information furnished pursuant to this Item 7.01, including the attached exhibits, shall not be deemed “filed” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of such section, nor shall such information or exhibits be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing by the Company with the SEC.



Cautionary Statement Regarding Forward-Looking Statements

 

Certain matters discussed in this report may be forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. the Company has tried, whenever possible, to identify these statements by using words like “future,” “anticipate”, “intend,” “plan,” “estimate,” “believe,” “expect,” “project,” “forecast,” “could,” “would,” “should,” “will,” “may,” and similar expressions of future intent or the negative of such terms. These statements are subject to a number of risks and uncertainties that could cause results to differ materially from those anticipated as of the date of this release. Actual results may differ materially as a result of (1) the ability to consummate the announced transaction on the expected terms and within the anticipated time period, or at all, which is dependent on the parties’ ability to satisfy certain closing conditions, (2) the risk that regulatory approvals that are required to complete the proposed transaction may not be received, may take longer than expected or may impose adverse conditions, (3) the Company’s ability to realize the expected benefits of such transaction and to successfully separate the Business, (4) the outcome of the Company’s exploration of strategic options for the Company’s Appliance business, including uncertainty regarding consummation of any such transaction or transactions and the terms of such transaction or transactions, if any, and, if consummated, the Company’s ability to realize the expected benefits of such transaction; (5) the impact of the Company’s indebtedness on its business, financial condition and results of operations; (6) the impact of restrictions in the Company’s debt instruments on its ability to operate the Company’s business, finance its capital needs or pursue or expand business strategies; (7) any failure to comply with financial covenants and other provisions and restrictions of the Company’s debt instruments; (8) the impact of actions taken by significant stockholders; (9) the Special Committee of the Board of Directors’ exploration and negotiation of a potential transaction with HRG Group, Inc., if any, including uncertainty regarding consummation of such transaction and the terms of such transaction, and, if consummated, the Company’s ability to realize the expected benefits of such transaction, potential disruption to the Company’s business or diverted management attention as a result of the exploration or negotiation of such transaction; (10) the impact of expenses resulting from the implementation of new business strategies, divestitures or current and proposed restructuring activities; (11) the potential disruption to the Company’s business or diverted management attention, and the unanticipated loss of key members of senior management or other employees, in each case as a result of the announced transaction, in connection with the strategic options for the Company’s Appliance business or otherwise; (12) the effects of general economic conditions, including inflation, recession or fears of a recession, depression or fears of a depression, labor costs and stock market volatility or changes in trade, monetary or fiscal policies in the countries where we do business; and (13) the effects of political or economic conditions, terrorist attacks, acts of war or other unrest in international markets, including those discussed herein and those set forth in the combined securities filing of Spectrum Brands Holdings, Inc. and SB/RH Holdings, LLC, including their most recently filed Annual Report on Form 10-K or Quarterly Report on Form 10-Q.



The Company also cautions the reader that its estimates of trends, market share, retail consumption of its products and reasons for changes in such consumption are based solely on limited data available to the Company and management’s reasonable assumptions about market conditions, and consequently may be inaccurate, or may not reflect significant segments of the retail market. The Company also cautions the reader that undue reliance should not be placed on any forward-looking statements, which speak only as of the date of this release. The Company undertakes no duty or responsibility to update any of these forward-looking statements to reflect events or circumstances after the date of this report or to reflect actual outcomes.



Item 9.01 Financial Statements and Exhibits





 

Exhibit No.

Description



 

2.1 

Acquisition Agreement, dated as of January 15, 2018, by and among Spectrum Brands Holidngs, Inc. and Energizer Holdings, Inc. (Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K.  The Company agrees to furnish supplementally to the SEC a copy of any omitted schedule upon request.)



 

99.1 

Press Release, dated January 16, 2018



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SIGNATURES



Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.







 

 

Date: January 16, 2018

SPECTRUM BRANDS HOLDINGS, INC



 

 



By:

/s/ Nathan E. Fagre



Name:

Nathan E. Fagre



Title:

Senior Vice President, Secretary and General Counsel



 

 



SB/RH HOLDINGS, LLC



 

 



By:

/s/ Nathan E. Fagre



Name:

Nathan E. Fagre



Title:

Senior Vice President, Secretary and General Counsel



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20180118 Form 8-K - Project Gamma - Ex 21 Agreement

Exhibit 2.1

EXECUTION VERSION











ACQUISITION AGREEMENT



dated as of January 15, 2018

between

SPECTRUM BRANDS HOLDINGS, INC.

and

ENERGIZER HOLDINGS, INC.





















 

 

 


 

 

TABLE OF CONTENTS

Page

DEFINITIONS1

Certain Defined Terms1

Interpretation26

 PURCHASE AND SALE OF BATTERY COMPANIES EQUITY INTERESTS AND TRANSFERRED ASSETS; ASSUMPTION OF ASSUMED LIABILITIES28

Purchase and Sale of Battery Companies Equity Interests and Transferred Assets; Exclusion of Excluded Assets28

Assumption of Assumed Liabilities; Retention of Retained Liabilities.29

Purchase Price; Allocation of Purchase Price.29

Purchase Price Adjustment.31

The Closing.33

Deliveries for the Closing.34

Accounting35

Withholding36

Acquisition Agreements36

 REPRESENTATIONS AND WARRANTIES RELATING TO SELLER AND THE BATTERY COMPANIES EQUITY INTERESTS36

Organization, Standing and Power.37

Authority; Execution and Delivery; Enforceability37

No Conflicts; Consents and Approvals37

Equity Interests in the Transferred Entities; Equity Interests in Other Persons38

 REPRESENTATIONS AND WARRANTIES RELATING TO THE TRANSFERRED ENTITIES AND THE TRANSFERRED ASSETS39

Organization and Good Standing39

Pre-Signing Financial Statements; Unaudited Annual Financial Statements; Audited Financial Statements40

No Undisclosed Liabilities; Absence of Certain Changes or Events41

Absence of Litigation41

Compliance with Laws42

Governmental Licenses and Permits43

Sufficiency of Assets43

Real Property44

Seller’s Employee Benefit Plans45

Employees and Labor Relations47

Environmental Matters48

Contracts49

Brokers or Finders51

Intellectual Property51

Taxes55

Insurance56

Customer Relationships57

Supplier Relationships57

 


 

TABLE OF CONTENTS
(cont’d)

Page

Inventory57

Products57

Affiliate Transactions58

Exclusivity of Representations and Warranties58

 REPRESENTATIONS AND WARRANTIES OF PURCHASER58

Organization and Good Standing58

Authority59

No Conflict; Consents and Approvals59

Absence of Litigation60

Securities Act60

Brokers or Finders60

Financing60

Solvency61

Exclusivity of Representations and Warranties; Non-Reliance on Seller Estimates62

 COVENANTS62

Conduct of Business Prior to the Closing62

Access to Information65

Confidentiality; Publicity65

Reasonable Best Efforts and Actions to Cause the Closing to Occur66

Bulk Sales68

Insurance68

Certain Services and Benefits Provided by Affiliates; Intercompany Matters; Further Assurances70

Other Intellectual Property71

Ancillary Agreements; Identified Sublease.72

Maintenance of Books and Records; Cooperation73

Endorsement of Checks73

Financing74

Certain Covenants77

Pre-Closing Restructuring79

Notification of Certain Matters80

Exclusivity80

Financial Statements81

Permits82

 EMPLOYEE MATTERS82

Offers of Employment82

Assumption of Assumed Benefit Plans; Transfer of Related Assets86

Liability for Employees87

U.S. Employment Tax Matters88

Mexican Employment Tax Matter88

No Employee Rights88

Deferred Transfer Employee and Deferred Transfer Employee Benefit Plans89

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TABLE OF CONTENTS
(cont’d)

Page

 TAX MATTERS89

Transfer Taxes89

Tax Characterization of Adjustments89

Straddle Periods89

Tax Returns90

Tax Refunds91

Tax Elections and Cooperation91

Tax Clearance Certificates92

 CONDITIONS TO CLOSING92

Conditions to Obligations of Seller92

Conditions to Obligations of Purchaser93

Frustration of Closing Conditions94

 TERMINATION, AMENDMENT AND WAIVER94

Termination of Agreement94

Effect of Termination and Abandonment prior to Closing; Termination Fees95

Limitation; Acknowledgement95

 INDEMNIFICATION96

Indemnification; Remedies96

Notice of Claim; Defense100

No Duplication; Exclusive Remedy102

Limitation on Set-Off102

Mitigation102

Potential Contributors102

Tax Indemnification103

 GENERAL PROVISIONS104

Waiver104

Expenses105

Notices105

Headings106

Severability106

Entire Agreement106

Assignment106

No Third-Party Beneficiaries106

Amendment106

Governing Law; Submission to Jurisdiction107

Counterparts107

Waiver of Jury Trial107

Enforcement108

No Presumption108

Waiver of Claims Against the Financing Sources108

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Exhibits



Exhibit ASubsidiary Transferors and Battery Companies

Exhibit BForm of Assignment and Assumption Agreement

Exhibit CForm of Bill of Sale

Exhibit DForm of IP Assignment Agreement

 

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ACQUISITION AGREEMENT

This ACQUISITION AGREEMENT (this “Agreement”) is dated as of January 15, 2018, between Spectrum Brands Holdings, Inc., a Delaware corporation (“Seller”), and Energizer Holdings, Inc., a Missouri corporation (“Purchaser”).

W I T N E S S E T H:

WHEREAS, Seller beneficially owns and operates (directly and through certain Subsidiaries) the Business;

WHEREAS, Seller, and its wholly owned Subsidiaries listed as Subsidiary Transferors on Exhibit A (as such Exhibit may be amended after the date of this Agreement to add or remove any Subsidiary Transferors in accordance with Section 6.14), are (or will at the Closing be) the direct owners of the equity interests in each of the entities set forth opposite such Person’s name in Exhibit A  (such entities as of the Closing Date are collectively referred to as the “Battery Companies” and such equity interests are collectively referred to as the “Battery Companies Equity Interests”);

WHEREAS, the applicable Battery Company is (or will at the Closing be) the direct or indirect owner of all the equity interests in each of the entities listed below such Battery Company’s name in Exhibit A (such entities as of the Closing Date are collectively referred to as the “Battery Company Subsidiaries” and such equity interests are collectively referred to as the “Battery Company Subsidiaries’ Equity Interests”; the Battery Companies and the Battery Company Subsidiaries are collectively referred to as the “Transferred Entities”; the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests are collectively referred to as the “Transferred Equity Interests”);

WHEREAS, at the Closing, upon the terms and subject to the conditions set forth in this Agreement, Seller and the Subsidiary Transferors desire to sell and transfer to Purchaser or its designees, and Purchaser or its designees desire to purchase and accept and assume from Seller and the Subsidiary Transferors, the Battery Companies Equity Interests, the Transferred Assets and the Assumed Liabilities (the “Acquisition”); and

WHEREAS, immediately after the Closing, Purchaser or its designees shall (a) directly own the Battery Companies Equity Interests and the Transferred Assets, (b) directly be responsible for the Assumed Liabilities, and (c) indirectly own the Battery Company Subsidiaries’ Equity Interests.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

Article I

DEFINITIONS

Certain Defined Terms

. As used in this Agreement, the following terms have the following meanings:

Accounting Arbitrator” has the meaning specified in Section 2.04(d).

 


 

 

Accounts Payable” means (a) all trade accounts payable to suppliers of the Business in respect of the Business, including all trade accounts payable representing amounts payable in respect of goods shipped or products sold or services rendered and (b) all other accounts payable in respect of services rendered to the Business, in each case of clauses (a) and (b), solely to the extent included in the Modified Working Capital.

Accounts Receivable” means (a) all trade accounts receivable and other rights to payments from customers, including all trade accounts receivable representing amounts receivable in respect of goods shipped or products sold or services rendered to customers of the Business, (b) all other accounts receivable of the Business and (c) all claims, remedies and other rights related to any of the foregoing, in each case of clauses (a), (b) and (c), solely to the extent included in the Modified Working Capital.

Acquired Competitive Business” has the meaning specified in Section 6.13(a).

Acquired Intellectual Property” means (a) the Intellectual Property transferred to Purchaser under this Agreement (including any Intellectual Property that constitutes a Transferred Asset), (b) the Intellectual Property owned by the Transferred Entities as of the Closing Date (after giving effect to the Pre-Closing Restructuring), and (c) the Intellectual Property licensed to Purchaser and the Transferred Entities under this Agreement and the Ancillary Agreements.

Acquired Rights Directive” has the meaning specified in the definition of Transfer Regulations.

Acquisition” has the meaning specified in the Recitals.

Action” means any claim, demand, litigation, action, cause of action, suit, audit, hearing, review, charge, indictment, complaint or other judicial or administrative proceeding, at law or in equity, before or by any Governmental Authority or arbitration or other similar dispute resolution proceeding.

Actively at Work” means: (a) at work on the Closing Date; (b) absent on the Closing Date due to job-protected leave under the FMLA; (c) absent on the Closing Date due to maternity leave under Seller’s maternity or short-term disability leave policies; (d) absent on the Closing Date due to military duty; (e) absent on the Closing Date due to jury duty; or (f) absent on the Closing Date due to vacation, personal day, sick, paid time off, approved leave, or other scheduled day off consistent with Seller’s employment policies, or due to any other absence other than Long Term Disability Leave. For avoidance of doubt, any Inactive Employee must be available to return to work within one hundred and eighty (180) days of the Closing Date or within such longer time required by applicable Law or Labor Contract to be considered Actively At Work.

Additional Financial Statements” has the meaning specified in Section 6.17(c).

Affiliate” means, with respect to any specified Person, any other Person who or that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person. For purposes of this Agreement, (a) prior to Closing, the Transferred Entities shall be deemed to be Affiliates of Seller and shall not be deemed to be Affiliates of Purchaser and (b) following the Closing, the Transferred Entities shall be deemed to be Affiliates of Purchaser and shall not be deemed to be Affiliates of Seller.

Agreement” has the meaning specified in the Preamble.

Allocation Certificate” has the meaning specified in Section 2.03(c).

Ancillary Agreements” means the Assignment and Assumption Agreement, the Bill of Sale, the IP Assignment Agreement, the Transition Services Agreement and the Reverse Transition Services Agreement,

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and, except for purposes of Sections 2.06,  6.09,  9.01 and 9.02, the Foreign Acquisition Agreements and other local closing agreements and documents required to effectuate the transactions contemplated hereby for jurisdictions outside of the United States.

Anticipated Closing Date” has the meaning specified in Section 7.01(a).

Applicable Anti-Bribery Law” means the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, and any other applicable anti-bribery or anti-corruption law, rule or regulation of similar purposes and scope to which the Business is subject.

Applicable Exchange Rate” means, as of any date of determination, the exchange rate as published by Bloomberg (BGN New York).

Approvals” has the meaning set specified in Section 2.01(d).

Assignment and Assumption Agreement” means the Assignment and Assumption Agreement to be executed by the parties thereto on the Closing Date substantially in the form attached hereto as Exhibit B.

Assumed Benefit Plan” has the meaning specified in Section 4.09, including the Transferred Pension Plans.

Assumed Liabilities” means the following Liabilities of Seller and its Subsidiaries (including the Transferred Entities), in each case other than the Retained Liabilities:

(a) all Accounts Payable;

(b) all Liabilities, whether arising before or after the Closing, in respect of any Action, pending or threatened, and any claim, whether or not presently asserted, at any time arising primarily out of or relating primarily to the ownership, operation or conduct of the Business or any Transferred Assets;

(c) subject to clause (d) of the definition of “Retained Liabilities”, all Liabilities arising (whether before or after the Closing) primarily out of or relating primarily to any Products manufactured, sold and distributed by Seller or any of its Subsidiaries with respect to the Business before the Closing or by Purchaser or any of its Subsidiaries (including the Transferred Entities) after the Closing;

(d) all Liabilities, whether arising before or after the Closing, under or relating to any Assumed Benefits Plan, in each case to the extent arising out of or relating to the ownership, operation or conduct of the Business, any Transferred Entity or any Transferred Assets and all Liabilities associated with any Transferred Pension Plan;

(e) all Liabilities assumed by, retained or agreed to be performed by Purchaser or any of its Affiliates pursuant to the terms of this Agreement or any of the Ancillary Agreements;

(f) subject to Section 6.07(a) (with respect to Shared Contracts), all Liabilities, whether arising before or after the Closing, under or otherwise arising out of or relating to the Transferred Contracts, in each case to the extent arising out of or relating to the ownership, operation or conduct of the Business or any Transferred Assets;

(g) subject to clause (e) of the definition of “Retained Liabilities”, all Liabilities arising (whether before or after the Closing) under or relating to any Environmental Laws or Hazardous Materials, in each case arising primarily out of or relating primarily to the ownership, operation or conduct of the Business or

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any Transferred Assets;

(h) all Liabilities for (i) Taxes imposed in respect of Transferred Assets or the Business for Post-Closing Tax Periods (which, in the case of Straddle Periods, shall be allocated in a manner consistent with Section 8.03) and (ii) Transfer Taxes for which Purchaser is liable under Section 8.01;  

(i) (A) Funded Indebtedness to the extent included in the calculation of Closing Net Indebtedness (disregarding, for purposes of determining whether Funded Indebtedness is an Assumed Liability under this clause (A), the $20,000,000 cap included in the proviso of the definition of Closing Net Indebtedness with respect to the type of Funded Indebtedness described in clause (e) of the definition thereof) and (B) other Indebtedness of Seller or any of its Subsidiaries that is not Funded Indebtedness and that arises primarily out of or relates primarily to the ownership, operation or conduct of the Business (collectively, the “Transferred Indebtedness”); and

(j) without duplication, expansion, limitation or other modification of any of the categories set forth in items (a) through (i) above, or of any Retained Liability, all other Liabilities, arising (whether before or after the Closing) primarily out of or relating primarily to the ownership, operation or conduct of the Business or any Transferred Asset before or after the Closing.

Audited Financial Statements” has the meaning specified in Section 6.17(b).

Automatic Transfer Employee” means each Employee whose employment or contract of employment transfers or is assigned by operation of Law, or would but for the termination of such contract of employment be so transferred or assigned, to Purchaser or one of its Affiliates, pursuant to the Transfer Regulations on the Closing Date or otherwise in connection with the transactions contemplated by this Agreement.

Battery Companies” has the meaning specified in the Recitals.

Battery Companies Equity Interests” has the meaning specified in the Recitals.

Battery Company Subsidiaries” has the meaning specified in the Recitals.

Battery Company Subsidiaries’ Equity Interests” has the meaning specified in the Recitals.

Benefit Plan” means any scheme, arrangement or agreement for the provision of any pension, retirement, ill-health, death benefit or other employee benefit, including any “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, including each bonus, profit sharing, deferred compensation, incentive compensation, retirement, health benefit, welfare benefit, stock ownership, stock purchase, stock option, phantom stock or other equity-based or other benefit plan, program, policy, practice, arrangement, agreement, fund or commitment, and each employment, retention, consulting, change in control, salary continuation, termination or severance plan, program, policy, practice, arrangement or agreement whether for employees or other service providers, including directors, consultants and advisors; provided that governmental statutory benefit plans and plans, programs, policies, or agreements required to be maintained by applicable Law shall not be considered Benefit Plans for any purpose under this Agreement.

Bill of Sale” means the bill of sale and conveyance to be executed by Seller and certain of its Subsidiaries on the Closing Date, a form of which is attached hereto as Exhibit C.

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Business” means the global battery, lighting and portable power business of Seller and its Subsidiaries as conducted on the date hereof and as of the Closing, including the design, manufacture, marketing, distribution and sale of Products.

Business Benefit Plan” means each Benefit Plan entered into, maintained, sponsored or contributed to by Seller or any of its Subsidiaries or to which Seller or any of its Subsidiaries has any obligation to contribute, or with respect to which Seller or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including a liability arising out of an indemnification, guarantee, hold harmless or similar agreement), in each case with respect to any Business Employee or Former Business Employee or to any beneficiary or dependent thereof.

Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in New York, New York.

Business Employee” means each individual who, as of the applicable date of determination, is (i) employed by any Transferred Entity, other than those individuals identified on Section 1.01(a)(i) of the Seller Disclosure Letter or (ii) exclusively or primarily engaged in the Business, other than a Deferred Transfer Employee. Section 1.01(a)(ii) of the Seller Disclosure Letter sets forth an anonymized list of each Business Employee as of December 31, 2017, along with a notation as to which Business Employees are employed by a Transferred Entity.

Cap” has the meaning specified in Section 11.01(b)(v).

Cash and Cash Equivalents” means, as of a given date and time with respect to any Person, all cash and cash equivalents, in each case determined in accordance with U.S. GAAP, including security deposits, held by or for the benefit of such Person.

Claim Notice” has the meaning specified in Section 11.02(a).

Closing” has the meaning specified in Section 2.05(a).

Closing Date” has the meaning specified in Section 2.05(a).

Closing Net Indebtedness” means, as of immediately before the effective time of the Closing, the amount (which may be positive or negative), equal to the difference of (a) the aggregate amount of all Transferred Cash and Cash Equivalents (determined on a combined basis) as of such time, minus (b) the aggregate amount (determined on a combined basis in accordance with U.S. GAAP) as of such time, without double counting, of all outstanding Funded Indebtedness of the Transferred Entities and Funded Indebtedness of the Business; provided that, Funded Indebtedness of the type described in clause (d) of the definition thereof will only be included in the calculation of Closing Net Indebtedness to the extent the amount of such Indebtedness exceeds $20,000,000 (in which case, for the avoidance of doubt, only the amount in excess of $20,000,000 will be included).

Closing Notice” has the meaning specified in Section 2.03(b).

Closing Statement” has the meaning specified in Section 2.04(c).

Closing Transaction Expenses” means, as of immediately before the effective time of the Closing (as set forth in Section 2.05(a)), the aggregate amount, without double counting, of all Transaction Expenses of the Transferred Entities and Transaction Expenses of the Business to the extent (if any) included in the Assumed Liabilities.

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COBRA” has the meaning specified in Section 7.03(c).

Code” means the Internal Revenue Code of 1986, as amended.

Combined Tax Return” shall mean any Tax Return of any affiliated group within the meaning of Section 1504(a) of the Code or any other affiliated, combined, unitary or similar group defined under any state, local, or non-U.S. law that includes Seller or any of its Affiliates that are not being transferred pursuant to this Agreement, on the one hand, and one or more Transferred Entities, on the other hand. 

Compliant” means, with respect to any Required Information, that (i) such Required Information does not, as of the time furnished and throughout the Marketing Period, when taken as a whole, contain any untrue statement of a material fact or omit to state any material fact. necessary in order to make such Required Information, in the light of the circumstances, under which they were made, not misleading, (ii) such Required Information is, and remains throughout the Marketing Period, compliant in all material respects with all requirements of Regulation S-K and Regulation S-X under the Securities Act for a registered public offering of non-convertible debt securities on Form S‑1 by a non-accelerated filer, to be declared effective on the last day of the Marketing Period, but limited to such information customarily included in a preliminary offering memorandum for an offering of high-yield debt securities pursuant to Rule 144A; provided that such information shall not be required to include (A) financial statements or other information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or “segment reporting”, (B) Compensation Discussion and Analysis required by Item 402 of Regulation S-K or (C) other information customarily excluded from an offering memorandum involving an offering of high-yield debt securities pursuant to Rule 144A, (iii) the Business’ auditors have not withdrawn or qualified any audit opinion with respect to any financial statements contained in the Required Information (it being understood that the Required Information will be Compliant if the Business’s independent auditors have delivered an unqualified audit opinion with respect to such financial statements following a prior withdrawal or qualification), (iv) any interim quarterly financial statements included in such Required Information have been reviewed by the Business’ independent auditors as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722 and (v) the Required Information is sufficient to permit the Business’s auditors and such auditors have confirmed they are prepared to issue customary comfort letters addressed to the Financing Parties (including underwriters, placement agents or initial purchasers), including customary negative assurance comfort with respect to periods following the end of the latest fiscal year or fiscal quarter for which historical financial statements are included in or incorporated by reference into any offering documents in connection with any bond offering being conducted by Purchaser through “pricing” of the debt securities included in the Debt Financing on the last day of the Marketing Period.

Confidentiality Agreement” has the meaning specified in Section 6.03(a).

Consent” has the meaning specified in Section 3.03(b).

Contract” means any contract, agreement, indenture, note, bond, loan, lease, sublease, conditional sales contract, mortgage, license, sublicense, obligation, promise, undertaking, commitment or other binding arrangement (in each case, whether written or oral).

Control” means, as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise. The term “Controlled”, “Controlling” and “under common Control by” shall have correlative meanings.

Customs and International Trade Laws” means any domestic Law, license, directive, award or other decision or requirement, including any amendments, having the force or effect of law, of any Governmental Authority, concerning (a) the importation, exportation, reexportation or deemed exportation of products, technical data, technology and/or services, and the terms and conduct of transactions and making or receiving of payment

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related to such importation, exportation, reexportation or deemed exportation or (b) trade, economic or financial sanctions, embargoes or similar measures against individuals, entities or countries, including, with respect to (a) or (b) as applicable, the Tariff Act of 1930, as amended, and other Laws and programs administered or enforced by the U.S. Department of Commerce, U.S. International Trade Commission, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement and their predecessor agencies; the Export Administration Act of 1979, as amended; the Export Administration Regulations, including related restrictions with regard to transactions involving persons and entities on the U.S. Department of Commerce Denied Persons List or Entity List; the Arms Export Control Act, as amended; the International Traffic in Arms Regulations, including related restrictions with regard to transactions involving persons and entities on the Debarred List; the International Emergency Economic Powers Act, as amended; the Trading With the Enemy Act, as amended; the embargoes and restrictions administered by OFAC; orders of the president or head of state for any country regarding embargoes and restrictions on transactions with designated countries and entities, including persons and entities designated on OFAC’s list of Specially Designated Nationals and Blocked Persons; the antiboycott regulations administered by the U.S. Department of Commerce; and the antiboycott regulations administered by the U.S. Department of the Treasury. 

De Minimis” has the meaning specified in Section 11.01(b)(iv).

Debt Financing” has the meaning specified in Section 5.07(a).

Debt Financing Commitment” has the meaning specified in Section 5.07(a).

Deductible” has the meaning specified in Section 11.01(b)(iii).

Deferred Asset Jurisdiction” has the meaning specified in Section 2.05(b).

Deferred Assets and Liabilities” has the meaning specified in Section 2.05(b).

Deferred Transfer Closing” has the meaning specified in Section 2.05(c).

Deferred Transfer Employee” means each individual, as of the applicable date of determination, (a) whose employment or services will transfer to Purchaser or its Affiliate pursuant to the Transition Services Agreement or (b) who is listed on Section 1.01(b) of the Seller Disclosure Letter.

Deferred Transfer Employee Benefit Plan” means each Benefit Plan that is an Assumed Benefit Plan entered into, maintained, sponsored or contributed to by Seller or any of its Subsidiaries or to which Seller or any of its Subsidiaries has any obligation to contribute, or with respect to which Seller or any of its Subsidiaries has any liability, direct or indirect, contingent or otherwise (including a liability arising out of an indemnification, guarantee, hold harmless or similar agreement), in each case with respect to any Deferred Transfer Employee or to any beneficiary or dependent thereof.

Direct Claim” has the meaning specified in Section 11.02(a).

Disagreement Notice” has the meaning specified in Section 2.04(c).

Employee” means any Business Employee or Deferred Transfer Employee.

Employee Indemnified Party” has the meaning specified in Section 6.06(c).

Employment Agreement” means any employment Contract, consulting agreement, termination or severance agreement, salary continuation agreement, change of control agreement or any other agreement

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respecting the terms and conditions of employment or payment of compensation, or of a consulting or independent contractor relationship in respect to any current or former officer, employee, consultant or independent contractor.

Employment Matters” has the meaning specified in Section 4.10(b).

Environmental Claim” has the meaning specified in Section 11.01(b)(ix).

Environmental Costs and Liabilities” means all Liabilities, Losses, and Remedial Actions incurred as a result of any claim or demand by any third Person arising or imposed under any Environmental Law (including in response to any violation of Environmental Law), to the extent any of the above (a) are based upon, relate to or arise under or pursuant to any Environmental Law, Environmental Permit, Governmental Order, or, with the prior consent of Seller and Purchaser, voluntary cleanup agreement or similar agreement with a Governmental Authority, or agreement between the parties, and (b) relate to a violation of Environmental Law or a Release or threatened Release of Hazardous Materials legally requiring Remedial Action under any Environmental Law, Environmental Permit, or Governmental Order.

Environmental Law” means any applicable Law, Permit or common law relating to pollution, protection of the environment, protection of natural resources, or protection of human health from Hazardous Materials.

Environmental Permits” has the meaning specified in Section 4.11(a).

Equipment” means computers (including personal computers), furniture, fixtures, machinery, vehicles and telecommunications, manufacturing and other equipment and other interests in tangible personal property, excluding in all cases any Intellectual Property covering, embodied in or connected to any of the foregoing.

ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

Estimated Closing Net Indebtedness” has the meaning specified in Section 2.03(b).

Estimated Closing Transaction Expenses” has the meaning specified in Section 2.03(b).

Estimated Modified Working Capital” has the meaning specified in Section 2.03(b).

Estimated Purchase Price” has the meaning specified in Section 2.03(b).

Exchange Act” means the Securities Exchange Act of 1934, as amended, together with the rules, regulations, schedules and forms thereunder.

Excluded Assets” means all assets, properties, claims, goodwill and rights of Seller or any of its Subsidiaries (including the Transferred Entities), other than the Transferred Assets, including the following:

(a) all Contracts to which Seller or any of its Subsidiaries is a party that are not Transferred Contracts, including any Shared Contract that is not used or held for use primarily in, or that arises primarily out of, the Business (collectively, the “Excluded Contracts”);

(b) all owned real property and interests in owned real property of Seller or any of its Subsidiaries other than the Owned Real Property, in each case together with all buildings, structures, improvements and fixtures thereon and all easements and rights of way pertaining thereto or accruing to the

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benefit thereof and all other appurtenances and real property rights pertaining thereto;

(c) all leasehold interests in real property of Seller or any of its Subsidiaries other than the Leased Real Property, in each case together with all buildings, structures, improvements and fixtures thereon;

(d) the minute books, stock ledgers, business records, Tax records and other similar documents relating to the organization, maintenance and existence of Seller and its Subsidiaries, in each case other than the Transferred Books and Records;

(e) all claims, Actions and suits and defenses to the extent relating to any Excluded Asset or any Retained Liability, including any such item arising under any guarantee, warranty, indemnity or similar right in favor of Seller or any of its Subsidiaries in respect of any Excluded Asset or any Retained Liability;

(f) all rights to Tax refunds, credits or similar benefits of Seller or any of its Subsidiaries, limited, in the case of such refunds, credits or benefits relating to the Transferred Assets, to those that are attributable to Pre-Closing Tax Periods (which, in the case of Straddle Periods, shall be allocated in a manner consistent with Section 8.03);

(g) all rights of Seller and its Subsidiaries under this Agreement and the Ancillary Agreements;

(h) all assets, properties, interest and rights of a corporate overhead, administrative, technological or other similar nature that are primarily used or primarily held for use by Seller or any of its Subsidiaries in the performance of (i) any Excluded Contract, (ii) Seller’s obligations under the Transition Services Agreement and (iii) the following services provided to or in support of the Business prior to Closing: corporate management, insurance, treasury (other than banking and cash management, foreign exchange and commodity hedging, and intercompany cash settlement), tax (other than regional tax reporting and tax compliance), travel and meeting planning services, public affairs, internal audit, logistics purchasing, services related to patents, patent applications, trademarks and trademark applications, legal services, credit assessment and related issues and decisions concerning delinquent account collections and services related to environmental and other permits and regulatory approvals (in the case of clause (iii), other than such services provided in Ellwangen, Germany and Brazil) (collectively, the “Overhead and Shared Services”);

(i) all Cash and Cash Equivalents of Seller or any of its Subsidiaries, other than the Transferred Cash and Cash Equivalents;

(k) all shares of capital stock of, or other equity interests in, any Subsidiary or Affiliate of Seller or any other Person, other than the Transferred Entities;

(l) all personnel and other records relating to Transferred Employees that cannot be transferred to Purchaser under applicable Law, subject to the requirements of Section 7.01(m);

(j) the Seller Policies (but excluding proceeds thereunder to the extent contemplated by Section 6.06(b));

(k) except as required by applicable Law or to the extent segregated under any Assumed Benefit Plan, all of the assets of, all of the assets relating to, and all rights under, any Benefit Plan or any related contract between any Person and Seller or any of its Affiliates (including the Business Benefit Plans);

(l) the assets, interests and rights not used or held for use primarily in the operation or conduct of the Business, including the assets, interests and rights used or held for use in connection with the

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operation or conduct of any business of Seller or its Subsidiaries as of the Closing Date other than the Business and not used or held for use primarily in the operation or conduct of the Business;

(m) the assets, interests and rights located in, or used or held for use in the operation or conduct of the Business in, Iran prior to the Closing; and

(n) the assets, interests and rights (including Intellectual Property) set forth on Section 1.01(c)(p) of the Seller Disclosure Letter.

Excluded Contracts” has the meaning specified in the definition of “Excluded Assets”

Financing Indemnitees” has the meaning specified in Section 6.12(d).

Financing Sources” means the Persons that have committed to provide or arrange or otherwise entered into agreements in connection with the Debt Financing, the Debt Financing Commitment or other financings (including, for the avoidance of doubt, any alternative debt financings pursuant to Section 6.12) in connection with the transactions contemplated hereby, including the parties to any commitment letters, engagement letters, joinder agreements, indentures or credit agreements entered pursuant thereto or relating thereto, together with their respective Affiliates, and their respective Affiliates’ officers, directors, employees, agents and representatives and their respective successors and assigns.

FLSA” means the U.S. Fair Labor Standards Act and the rules and regulations promulgated thereunder, together with any similar local, state or foreign Laws.

FMLA” means the U.S. Family and Medical Leave Act and the rules and regulations promulgated thereunder, together with any similar local, state or foreign Laws.

Foreign Acquisition Agreements” has the meaning specified in Section 2.09.

Former Business Employee” means any individual formerly employed at any time prior to Closing by Seller or any of its Subsidiaries in connection with the operation of the Business.

FOSS” means all Software or other material that is distributed as “free software,” “open source software” or under a similar licensing or distribution model, including the GNU General Public License (GPL) (including the GNU Affero GPL License), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License.

Funded Indebtedness” means, with respect to any Person, without duplication: (a) any obligations for borrowed money or obligations issued or incurred in substitution or exchange for obligations for borrowed money, (b) any obligations evidenced by bonds, notes, debentures, mortgages, letters of credit (to the extent drawn) or other debt instruments or securities, (c) any accrued interest, premiums, penalties, breakages, “make whole amounts” and other obligations relating to the foregoing that would be payable in connection with the repayment of the foregoing, (d) any obligations to guarantee any of the foregoing types of obligations on behalf of any such Person and (e) all obligations as lessee under any leases which are required to be capitalized in accordance with U.S. GAAP; provided,  however, that “Funded Indebtedness” shall be deemed not to include any intercompany Funded Indebtedness owing by Seller to any of its Subsidiaries, by a Subsidiary of Seller to Seller or by one Subsidiary of Seller to another Subsidiary of Seller (it being understood that all such intercompany Funded Indebtedness, other than any such intercompany Funded Indebtedness between two (2) Transferred Entities, shall be cancelled at or prior to the Closing pursuant to Section 6.07(b) without any liability to Purchaser). For the avoidance of doubt, “Funded Indebtedness” shall exclude any item to the extent taken into

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account in the determination of Modified Working Capital or Transaction Expenses as a reduction to the Purchase Price.

GDPR” has the meaning specified in the definition of Privacy and Information Security Requirements.

Governmental Authority” means: (a) any federal, state, provincial, local, municipal, foreign or international government or governmental authority, quasi-governmental entity of any kind, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, organization, arbitrator or arbitral body (public or private), (b) any self-regulatory organization (including any stock exchange), or (c) any subdivision, department or branch of any of the foregoing.

Governmental Authorization” means any licenses, approvals, clearances, permits, certificates, waivers, amendments, consents, exemptions, variances, expirations and terminations of any waiting period requirements (including pursuant to Competition Laws), other actions by, and notices, filings, registrations, qualifications, declarations and designations with, and other authorizations and approvals issued by or obtained from, a Governmental Authority.

Government Instrumentality” means any public international organization or enterprise partially or wholly owned or controlled by a Governmental Authority.

Government Official” means any official, employee or representative of any Government Authority or Government Instrumentality.

Governmental Order” means any decision, ruling, order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

Hazardous Materials” means (a) petroleum, petroleum products, asbestos in any form that is friable or polychlorinated biphenyls and (b) any chemical, material, waste or other substance regulated under any Environmental Law due to its hazardous, toxic, dangerous or deleterious properties or characteristics.

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

Identified Lease” has the meaning specified in Section 6.09(c).

Improvements” means all buildings, structures, improvements, fixtures, building systems and equipment, and all components thereof, included in the Real Property.

Inactive Employee” has the meaning specified in Section 7.01(a).

Indebtedness” means, with respect to any Person, without duplication: (a) any obligations for borrowed money or obligations issued or incurred in substitution or exchange for obligations for borrowed money, (b) any obligations evidenced by bonds, notes, debentures, mortgages, letters of credit or other debt instruments or securities, (c) any obligations owing as deferred purchase price of property, services, securities or other assets (including all seller notes and “earn-out” payments), (d) all obligations as lessee under any leases which are required to be capitalized in accordance with U.S. GAAP, (e) any net cash payment obligations in respect of interest rate, currency or commodity swaps, collars, caps, hedges, futures contract, forward contract, option or other derivative instruments or arrangements that will be payable upon termination thereof (assuming they were terminated on the date of determination), (f) all obligations requiring the reimbursement of any obligor under any performance bond, letter of credit or similar credit transaction, (g) all indebtedness of others secured by

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(or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owed or acquired by any such Person, (h) all obligations of any such Person under conditional sale or other title retention agreements relating to property or assets purchased by any such Person, (i) any accrued interest, premiums, penalties, breakages, “make whole amounts” and other obligations relating to the foregoing that would be payable in connection with the repayment of the foregoing and (j) any obligations to guarantee any of the foregoing types of obligations on behalf of any such Person; provided,  however, that “Indebtedness” shall not be deemed to include any intercompany Indebtedness owing by Seller to any of its Subsidiaries, by a Subsidiary of Seller to Seller or by one Subsidiary of Seller to another Subsidiary of Seller (it being understood that all such intercompany Indebtedness, other than any such intercompany Indebtedness between two (2) Transferred Entities, shall be cancelled at or prior to the Closing pursuant to Section 6.07(b) without any liability to Purchaser).

Indemnified Party” has the meaning specified in Section 11.02(a).

Indemnifying Party” has the meaning specified in Section 11.02(a).

Information Technology” means any tangible or digital or other electronic computer and information technology systems and services (including computers, Software, screens, servers, workstations, memory, routers, hubs, switches, networks, data centers, data communications lines and hardware), information systems and telecommunications systems, including all tangible or digital or electronic technology comprising or supporting any of the foregoing.

Insurance Policies” has the meaning specified in Section 4.16.

Intellectual Property” means all proprietary and intellectual property rights, whether registered or unregistered, which may exist under the laws of any jurisdiction in the world, including (a) inventor’s certificates, patent disclosures and invention disclosures, and patents and patent applications, registered designs and registered design applications, together with reissuances, continuations, continuations-in-part, continuing prosecution applications, re-issues, divisionals, revisions, utility models, certificates of invention, extensions and reexaminations, and post-grant review, covered business method review and inter partes review proceedings thereof; (b) registered and unregistered trademarks, domain names, service marks, brand names, certification marks, trade dress, logos, slogans, trade names, corporate names, social media identifiers, handles and tags, and other indications of origin, together with the goodwill associated therewith (“Trademarks”); (c) original works of authorship, registered and unregistered copyrights, moral rights, and rights equivalent thereto, including the rights of attribution, assignation and integrity; (d) trade secrets, know-how, distribution networks, customer lists, and confidential business information, including but not limited to any business plans, technical data, invention disclosures, customer data, financial information, pricing and cost information or other similar information; (e) rights of privacy and publicity; (f) other similar intangible intellectual property or proprietary rights to the foregoing (in whatever form or medium); (g) all applications to register, registrations and renewals or extensions of the foregoing; and (h) all goodwill associated with each of the foregoing and together with any and all rights to income, royalties, damages and payments due or payable with respect thereto.

International Benefit Plan” means each Business Benefit Plan sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which Seller or any of its Subsidiaries may have any Liability, direct or indirect, contingent or otherwise (including a Liability arising out of an indemnification, guarantee, hold harmless or similar agreement), pursuant to any laws other than the laws of the United States (excluding any such plan, fund, program, agreement or arrangement sponsored by a government, governmental entity, Government Instrumentality or Governmental Authority).

Inventory” means all raw materials, components, ingredients, work-in-process, finished goods, demonstration equipment, parts, packaging materials and other accessories related thereto and other inventories,

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in each of the foregoing cases, that, as of the Closing Date, are used or held for use primarily in the operation or conduct of the Business, including any such inventories held at, or in transit from or to, the facilities of the Business, or located at customers’ premises on consignment from the Business.

IP Assignment Agreement” means the intellectual property assignment agreement to be executed by the parties thereto on the Closing Date substantially in the form of Exhibit D.

IP License” has the meaning specified in Section 4.12(a)(v).

IRS” means the United States Internal Revenue Service.

Knowledge of Purchaser” or “Purchaser’s Knowledge” means the actual knowledge any of the individuals listed in Section 1.01(d) of the Seller Disclosure Letter, and shall be deemed to include such knowledge as could have been obtained upon reasonable inquiry by any such individuals.

Knowledge of Seller” or “Seller’s Knowledge” means the actual knowledge of any of the individuals listed in Section 1.01(e) of the Seller Disclosure Letter, and shall be deemed to include such knowledge as could have been obtained upon reasonable inquiry by any such individuals.

Labor Contracts” has the meaning specified in Section 4.10(a).

Labor Organization” has the meaning specified in Section 4.10(a).

Law” means any law, statute, regulation, rule, code, decree, constitution, ordinance, treaty, rule of common law, decree or directive of any Governmental Authority, including any Governmental Order.

Leased Real Property” has the meaning specified in Section 4.08(a).

Liabilities” means debts, liabilities and obligations (including guarantees and other forms of credit support), whether accrued or fixed, absolute or contingent, known or unknown, matured or unmatured, on- or off-balance sheet, including those arising under any Law or Action and those arising under any contract, agreement, arrangement, commitment or undertaking or otherwise.

Licensed Intellectual Property” has the meaning specified in Section 4.14(a).

Lien” means, with respect to any property or asset, any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, security interest, claim, encumbrance, restriction, covenant, condition, encroachment or other survey defect, charge, option, pledge, easement, purchase right, instrument, preference, priority, option, right of first refusal, conditional sale agreement or other similar restriction (including restriction on transfer), whether secured or unsecured, choate or inchoate, filed or unfiled, scheduled or unscheduled, recorded or unrecorded, contingent or non-contingent, material or non-material, known or unknown.

Long Term Disability Leave” means any leave of absence allowed under the applicable Business Benefit Plan or International Benefit Plan or provided for under applicable Law, including any governmental statutory benefit plan or policy, program or agreement, in each case which provides benefits or compensation to Employees who experience a long term disability and are impaired from performing their regular job duties for the Seller or its Subsidiaries (including any Transferred Entity) prior to the Transition Period.

Losses” means all debts, losses, damages, expenses, Liabilities, obligations, assessments, judgments, awards, civil and criminal penalties, fines, Taxes, levies, imposts, duties, deficiencies, charges and settlements (whether payable to a third party or otherwise) and reasonable out-of-pocket costs and expenses

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(including interest actually payable to third parties, court costs and reasonable fees and expenses of counsel, accountants and other outside consultants and expert witnesses) of investigating, defending or asserting any of the foregoing.

Malicious Code” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware” or “adware” (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing or facilitating, any of the following functions: (a) disrupting, disabling, harming, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed, or (b) compromising the privacy or data security of a user or damaging or destroying any data or file without the user’s consent.

Marketing Period” means the first period of eighteen (18) Business Days after the date of this Agreement commencing on the first day on which: (a) Purchaser shall have received (provided, that Purchaser is permitted to provide such information to the Financing Sources upon receipt) the Required Information from Seller pursuant to Section 6.12(c), and such Required Information is Compliant; and (b) nothing has occurred and no condition exists that would cause any of the conditions set forth in Section 9.02(a),  Section 9.02(b) or Section 9.02(d) to fail to be satisfied assuming the Closing were to be scheduled for any time during such eighteen (18) Business Day period (it being understood that if Seller in good faith reasonably believes that the conditions in clauses (a) and (b) hereof have been satisfied and would be satisfied throughout and on the last day of such eighteen (18) Business Day period and delivers to Purchaser a written notice to this effect, then the Marketing Period shall be deemed to have commenced on the date specified in such notice (subject to all of the provisos below) unless, as of the date of the delivery of such notice, Purchaser in good faith reasonably believes that one or more conditions in clauses (a) or (b) hereof have not been satisfied or such conditions would not be satisfied throughout and on the last day of such eighteen (18) Business Day period and, within two (2) Business Days of such receipt, delivers a written notice to Seller to that effect (stating with reasonable specificity which Required Information Seller has not been delivered or is not Compliant, or which elements of the conditions in clause (b) have not been satisfied)); provided, that such period shall not commence earlier than the date of the first to occur of (1) the date that would be eighteen (18) Business Days prior to the date that is one hundred and eighty (180) days from the date of this Agreement or (2) the satisfaction of the conditions set forth in Section 9.02(c);  provided,  further, that if the Marketing Period (i) has not ended on or prior to August 17, 2018, such period shall be deemed not to have commenced until September 4, 2018, (ii) the days from November 22, 2018 through November 25, 2018 shall not be included when counting the eighteen (18) Business Day period, (iii) if such period has not ended on or before December 21, 2018, it shall not commence until January 2, 2019 and (iv) if such period has not ended on or before November 12, 2018, it will not commence until audited carve-out financial statements of the Business for the year ended September 30, 2018 meeting the requirements of the definition of “Required Information” have been delivered to Purchaser; provided,  further, that the “Marketing Period” shall not commence or be deemed to have commenced if, prior to the completion of such eighteen (18) Business Day period, (I) the financial statements or any other information included in the Required Information fail to be Compliant throughout and on the last day of such eighteen (18) Business Day period, in which case the Marketing Period shall not be deemed to commence until the receipt by Purchaser of updated Required Information that would be Compliant or (II) Seller or the Subsidiary Transferors shall have publicly announced any intention to, or determines that it must, restate any historical financial statements or other financial information included in the Required Information or that any such restatement is under consideration or may be a possibility, in which case the Marketing Period shall be deemed not to commence, at the earliest, unless and until such restatement has been completed and the Required Information has been amended and updated or Seller and the Subsidiary Transferors have determined that no restatement shall be required; provided, further, that (A) the first eighteen (18) Business Day period that satisfies the requirements of this definition shall be deemed to be the “Marketing Period”, and there shall not be more than one such eighteen (18) Business Day period that is required to be completed to satisfy this definition, other than as a result of the occurrence of the events specified in clauses (I) or (II) of the second proviso to this definition and (B) the Marketing Period shall end on any earlier date on which (x) the Debt

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Financing is consummated or (y) both (i) the definitive documentation for the term loan facility contemplated by the Debt Financing Commitment has been executed and (ii) Purchaser or its Subsidiary has completed a bond offering (including such an offering in which the proceeds are held in escrow or trust pending the Closing).

Material Adverse Effect” means any event, change or circumstance that has had, or is reasonably likely to have, individually or in the aggregate, a material adverse effect on the assets, business, results of operations or financial condition of the Business, taken as a whole; provided,  however, that no event, change or circumstance resulting from or arising out of any of the following shall be deemed to constitute, or shall be taken into account in determining whether there has been, a “Material Adverse Effect”: (a) events, changes or circumstances generally affecting the industries or markets in which the Business operates, (b) macroeconomic factors, exchange rates, interest rates or general financial, credit, debt or capital market conditions (including changes in interest or exchange rates), (c) earthquakes, floods, hurricanes, tornadoes, natural disasters or other acts of nature, (d) general global, national or regional political conditions, including hostilities, acts of war, sabotage or terrorism or military actions or any escalation, worsening or diminution of any such hostilities, acts of war, sabotage or terrorism or military actions existing or underway as of the date hereof, (e) changes in Law, generally accepted accounting principles or official interpretations of the foregoing, (f) compliance with this Agreement (other than Section 6.01 or Section 3.03) or the Ancillary Agreements or any action taken or omitted to be taken by Seller or any of its Subsidiaries (including the Transferred Entities) at the written request of Purchaser that neither Seller nor its Subsidiaries is obligated to take, or omit from taking, pursuant to this Agreement or the Ancillary Agreements, (g)(i) the transactions contemplated hereby, the entry into or any announcement of this Agreement (except for purposes of Section 3.03 or any other representation or warranty that expressly refers to the consequences of the transactions contemplated hereby or the entry into or consummation of this Agreement) or (ii) any Ancillary Agreements or the identity of Purchaser or any of its Affiliates, (h) any failure by the Business or any of the Transferred Entities to meet projections, forecasts or estimates (but not the underlying reasons for or factors contributing to such failure, unless otherwise contemplated by the exceptions in clauses (a) through (f) or clause (i) of this definition), or (i) any breach by Purchaser of this Agreement; provided,  however, that the foregoing clauses (a),  (b),  (c),  (d) and (e) shall not apply to the extent such events, changes or circumstances have had or are reasonably likely to have, individually or in the aggregate, a disproportionate effect on the Business, taken as a whole, compared to other Persons which operate in the same industries in which the Business operates (in which case only such extent of the effect of such events, changes or circumstances shall be taken into account in determining whether there has been a Material Adverse Effect).

Material Contract” and/or “Material Contracts” have the meaning specified in Section 4.12(a).

Material Software” has the meaning specified in Section 4.14(i).

Materials” has the meaning specified in Section 6.08(e).

Modified Working Capital” has the meaning specified in Section 2.04(a).

Objections Notice” has the meaning specified in Section 2.03(c).

OFAC” means the U.S. Office of Foreign Assets Control.

Offer Employees” has the meaning specified in Section 7.01(a).

Offered Employees” has the meaning specified in Section 4.09(g).

Outside Consultants” has the meaning specified in Section 6.06(b).

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Overhead and Shared Services” has the meaning specified in the definition of “Excluded Assets”.

Owned Intellectual Property” has the meaning specified in Section 4.14(a).

Owned Real Property” has the meaning specified in Section 4.08(b).  

Pension Plan Purchase Price Adjustment” has the meaning specified on Section 1.01(f) of the Seller Disclosure Letter.

Permits” means licenses, permits, approvals, certificates, authorizations, operating permits, easements, registrations, qualifications, rulings, waivers, variances or other forms of permission, consents, exemptions, plans and the like, used or held for use in connection with the ownership, conduct or operation of the Business of any Governmental Authority.

Permitted Liens” means the following Liens: (a) Liens for Taxes not yet due and payable or the validity of which is being timely contested in good faith by appropriate proceedings and for which adequate accruals or reserves have been established in accordance with U.S. GAAP (or otherwise in accordance with applicable accounting standards); (b) statutory Liens of landlords, lessors or renters for amounts not yet due or payable or that are being contested in good faith, (c) Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by Law, in each case, arising or incurred in the ordinary course of business; (d) Liens on Owned Real Property that do not render title unmarketable and do not affect the current use, value, occupancy or current operation or enjoyment; (e) easement, zoning, entitlement, building and land use regulations imposed by any Governmental Authority having jurisdiction over the Owned Real Property which are not violated by the current use or occupancy of such Real Property or the operation of the Business thereon; (f) customary covenants and conditions, defects of title, easements, encroachments, rights-of-way, restrictions and other similar non-monetary charges or encumbrances of record not interfering with the ordinary conduct of the Business consistent with past practice which would not materially impair the use, operation or occupancy of the Transferred Assets and do not secure Indebtedness; (g) Liens that will be released prior to or as of the Closing; (h) non-exclusive licenses of or grants of rights to Intellectual Property ancillary to commercial agreements entered into in the ordinary course of business (including with respect to manufacturing, customer, supply, distribution, retail and marketing agreements); and (i) Liens under any of the Transaction Documents or as a result of any action of Purchaser or its Affiliates.

Person” means any natural person, corporation, company, general or limited partnership, association, firm, limited liability company, limited liability partnership, trust or other legal entity or organization, including any Governmental Authority.

Personal Data” means, collectively, (a) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license number, passport number, credit card number, bank account information and other financial information, customer or account numbers, account access codes and passwords, or any other piece of information that, alone or in combination with other information collected, held or otherwise managed by Seller, allows the identification of such natural person or enables access to such person’s financial information; (b) any information relating to an identified natural person or a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person; (c) all data and content uploaded or otherwise provided by or on behalf of Seller’s customers to Seller, or stored by such customers on any medium provided or controlled by Seller; and (d) any other data collected by or on behalf of Seller that pertains to Seller’s customers or to any other natural persons, in each case regardless of the media on

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which any such data is contained. Any information created or processed by Seller that is based on Personal Data shall also be Personal Data.

Post-Closing Tax Period” means any taxable period (or portion thereof in the case of a Straddle Period) beginning after the Closing Date.

Pre-Closing Restructuring” has the meaning specified in Section 6.14(a).

Pre-Closing Restructuring Steps” has the meaning specified in Section 6.14(a).  

Pre-Closing Tax Period” means any taxable period (or portion thereof in the case of a Straddle Period) ending on or prior to the Closing Date.

Pre-Closing Tax Returns” has the meaning specified in Section 8.04(a).

Pre-Signing Financial Statements” has the meaning specified in Section 4.02(a).

Pre-Signing Identified Jurisdictions” has the meaning specified in Section 4.02(a).

Privacy and Information Security Requirements” means (a) all applicable international, federal, state, provincial and local Laws, rules regulations, directives and governmental requirements relating in any way to the privacy, security, collection, storage, use, disclosure, retention, transfer or Processing of Personal Data, including (i) the EU Data Protection Directive (Directive 95/46/EC) and any successor or replacement directive thereof (including the General Data Protection Regulation (the “GDPR”); (ii) the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.); (iii) the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d); (iv) the Payment Card Industry Data Security Standard, as such may be amended, restated, extended or otherwise superseded from time to time; (v) Laws regulating unsolicited email communications; (vi) security breach notification Laws; (vii) Laws imposing minimum security requirements; (viii) Laws requiring the secure disposal of records containing certain Personal Data; (ix) all Contracts to which Seller, the Subsidiary Transferors, the Transferred Entities, or those of Seller’s Controlled Affiliates that are or will be parties to the Ancillary Agreements, is a party or is otherwise bound that relate to Personal Data and/or protecting the security or privacy of personal information; (x) with respect to Seller, the Subsidiary Transferors, the Transferred Entities, and those of Seller’s Controlled Affiliates that are or will be parties to the Ancillary Agreements, the policies and notices (e.g., posted privacy policies or notices provided in connection with the collection, storage, use, disclosure, retention or transfer of Personal Data, posted policies or notices concerning the security of Seller’s Products and/or Seller’s Information Technology, internal policies and standards concerning the treatment of personal information and/or the security of Seller’s Products and/or Seller’s Information Technology) thereof relating to Personal Data, privacy and/or the security of Seller’s Products, Information Technology and/or other personal information); (xi) all other similar international, federal, state, provincial and local requirements; and (b) all applicable Laws concerning the information security of Products or Information Technology systems.

Privacy Contracts” means any Contract that requires the transfer of Personal Data by Seller or any of its Subsidiaries (including the Transferred Entities) to a third party, or that requires a third party to transfer Personal Data to Seller or any of its Subsidiaries (including the Transferred Entities), in each case with respect to the Business.

Privacy Policies” has the meaning specified in Section 4.14(e).

Process” or “Processing” means any operation performed upon Personal Data, including but not limited to creating, collecting, obtaining, accessing, recording, organizing, storing, altering, retrieving, using, disclosing or destroying Personal Data.

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Products” means all alkaline, lithium, zinc carbon batteries along with batteries operating with other chemistries, hearing aid batteries, rechargeable batteries, specialty batteries, lighting products, light bulbs and other products marketed by the Business designed, formulated, manufactured, constructed, processed, marketed, stored, sold, distributed, sourced, placed in the stream of commerce, delivered, transported, installed or supported by Seller or any of its Subsidiaries, or any of their respective predecessors in interest.

Proposal” has the meaning specified in Section 6.16(a).

Purchase Price” has the meaning specified in Section 2.03(a).

Purchaser” has the meaning specified in the Preamble.

Purchaser 401(k) Plan” has the meaning specified in Section 7.02(e).

Purchaser Benefit Plan” means each Benefit Plan sponsored, maintained or contributed to by Purchaser or any of its Affiliates or with respect to which Purchaser or any of its Affiliates is a party or has any liability to and in which any Transferred Employee, or any beneficiary thereof, is or becomes eligible to participate or derive a benefit on or after the Closing Date.

Purchaser FSA Plan” has the meaning specified in Section 7.02(d).

Purchaser Fundamental Representations” means the representations and warranties of Purchaser set forth in Section 5.01 (Organization and Good Standing),  Section 5.02 (Authority), Section 5.03 (other than Section 5.03(d) thereof) (No Conflicts; Consents and Approvals) and Section 5.06 (Brokers or Finders) and the corresponding representations and warranties of Purchaser set forth in any certificate delivered by Purchaser pursuant to Section 9.01(a).

Purchaser Indemnified Persons” has the meaning specified in Section 11.01(a).

Purchaser Related Parties” means Purchaser and any of its former, current and future Subsidiaries or Affiliates and each of their respective former, current and future Representatives, lenders, successors and assigns.

Real Property” has the meaning specified in Section 4.08(b).

Real Property Leases” has the meaning specified in Section 4.08(a).

Registered Intellectual Property” has the meaning specified in Section 4.14(a).

Regulatory Termination Fee” has the meaning specified in Section 10.02(b).

Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, migrating or disposing into the environment.

Remedial Action” means all actions to (a) clean up, remove, treat or in any other way remediate any Hazardous Material, (b) prevent the Release of any Hazardous Material so it does not endanger or threaten to endanger public health or welfare or the environment, (c) perform pre-remedial studies and investigations or post-remedial monitoring and care or (d) correct a condition of noncompliance with Environmental Laws.

Representatives” has the meaning specified in Section 6.12(c).

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Required Information” shall mean (a) the historical financial statements regarding the Business required pursuant to paragraph 2 of Annex D of the Debt Financing Commitment, (b) the financial data reasonably requested in writing by Purchaser and solely to the extent necessary to prepare pro forma consolidated balance sheets and related pro forma consolidated statements of income of Purchaser required pursuant to paragraph 8 of Annex D of the Debt Financing Commitment as of and for the twelve (12)-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (a) of this definition, it being understood that in no event shall the Required Information be deemed to include or shall Seller be required to provide (i) a description of all or any component of the Debt Financing, including any “description of notes”, (ii) risk factors relating solely to all or any component of the Debt Financing, (iii) separate subsidiary financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or “segment reporting”, (iv) Compensation Discussion and Analysis required by Item 402 of Regulation S-K, (v) other information customarily excluded from an offering memorandum involving an offering of high-yield debt securities pursuant to Rule 144A, or (vi) any pro forma financial statements or projections.

Response Period” has the meaning specified in Section 2.03(c).

Restraint” has the meaning specified in Section 9.01(d).

Restricted Activities” means owning, operating, controlling, managing, financing or participating in any business that is competitive with the Business or otherwise engaged in the design, formulation, manufacture, construction, processing, marketing, storage, sale, distribution, sourcing, placing in the stream of commerce, delivery, transportation, installation or support of Products in the Territory; provided that, for the avoidance of doubt, the purchase of inventories in the ordinary course of business for use as a component in Seller’s products unrelated to the Business and the design, manufacture, marketing, distribution and sale of such products shall not constitute a Restricted Activity.

Restricted Assets” has the meaning specified in Section 2.01(b).

Restricted Financing Commitment Amendments” has the meaning specified in Section 6.12(a).

Restricted Parties” means Seller, its Subsidiaries and their respective Controlled Affiliates, collectively.

Restricted Period” means a period commencing on the Closing Date and ending on the earlier to occur of (a) five (5) years following the Closing Date and (b) if applicable Law in any particular jurisdiction would require a period of less than five (5) years for the covenant set forth in Section 6.13 not to be rendered void or unenforceable, the maximum permissible period such that the covenant set forth in Section 6.13 would not be rendered void or unenforceable; provided that, in respect of the jurisdictions set forth on Section 1.01(g) of the Seller Disclosure Letter, the maximum period shall be as indicated therein; and provided further, that, except with respect to the jurisdictions set forth on Section 1.01(g) of the Seller Disclosure Letter, such period shall be automatically extended by any period in which a Restricted Party is in violation of the covenants in Section 6.13.

Retained Environmental Liabilities” has the meaning specified in Section 1.01(h) of the Seller Disclosure Letter.

Retained Liabilities” means all Liabilities of Seller or any of its Subsidiaries (including, if applicable, the Transferred Entities) other than the Assumed Liabilities, including the following Liabilities:

(a) the Liabilities expressly retained by Seller pursuant to Article VII of this Agreement or (if applicable) any Foreign Acquisition Agreement in respect of (i) any of the Former Business Employees or

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Employees or (ii) any of the Business Benefit Plans (other than the Assumed Benefit Plans);

(m) subject to Section 8.01, all Liabilities for Taxes imposed on Seller or any of its Affiliates relating to the Transferred Assets or the Business or otherwise for all Pre-Closing Tax Periods (which, in the case of Straddle Periods, shall be allocated in a manner consistent with Section 8.03);

(n) all Liabilities primarily arising out of or primarily relating to the Excluded Assets (except to the extent related to the Assumed Benefit Plans and as otherwise provided in Article VII with respect to the Business Benefit Plans);

(o) without expanding or otherwise modifying the definition of Retained Environmental Liabilities, and except with respect to Liabilities arising out of or relating to product warranty (which, for the avoidance of doubt, shall constitute Assumed Liabilities to the extent covered by clause (c) of the definition thereof), Liabilities of Seller or its Subsidiaries arising primarily out of or relating primarily to any Products manufactured, sold or distributed prior to the Closing Date by Seller or any of its Subsidiaries with respect to the Business to the extent such Products were defective or otherwise not made to specification (which, for the avoidance of doubt, shall include claims based in negligence or strict product liability);

(p) all Retained Environmental Liabilities;

(q) All Indebtedness of Seller or any of its Subsidiaries that is not Transferred Indebtedness;

(r) all Liabilities under the WARN Act solely caused by any action of Seller prior to or on the Closing Date;

(s) all Liabilities assumed by, retained or agreed to be performed by Seller or any of its Subsidiaries pursuant to the terms of this Agreement or any of the Ancillary Agreements;

(t) all Liabilities relating to, arising out of, or in any way in respect of the operation or conduct of the Business in Iran prior to the Closing; and

(u) all Liabilities set forth on Section 1.01(i)(a) of the Seller Disclosure Letter.

Retained Trademarks” has the meaning specified in Section 6.07(c).

Reverse Transition Services Agreement” means the Reverse Transition Services Agreement to be entered into between Seller and Purchaser at the Closing, which shall be on terms substantially consistent with the terms set forth in Section 1.01(j) of the Seller Disclosure Letter (the “Framework TSA Terms”).

Review Laws” means the HSR Act or other antitrust, competition or pre-merger notification, trade regulation Law, regulation or order of any jurisdiction, including those set forth on Section 1.01(k) of the Seller Disclosure Letter.

SEC” means the United States Securities and Exchange Commission.

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

Seller” has the meaning specified in the Preamble.

Seller 401(k) Plan” has the meaning specified in Section 7.02(e).

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Seller Disclosure Letter” means the letter delivered by Seller to Purchaser on the date hereof.

Seller FSA Plan” has the meaning specified in Section 7.02(d).

Seller Fundamental Representations” means the representations and warranties of Seller set forth in Section 3.01(a) (Organization, Standing and Power),  Section 3.02 (Authority; Execution and Delivery; Enforceability),  Section 3.03 (other than Section 3.03(d) and Section 3.03(e) thereof) (No Conflicts; Consents and Approvals), Section 3.04 (Equity Interests in the Transferred Entities; Equity Interests in Other Persons), Section 4.01(a) (Organization and Good Standing) and Section 4.13 (Brokers or Finders) and the corresponding representations and warranties of Seller set forth in any certificate delivered by Seller pursuant to Section 9.02(a).

Seller Indemnified Persons” has the meaning specified in Section 11.01(c).

Seller Licensed IP” has the meaning specified in Section 4.14(a).

Seller Policies” has the meaning specified in Section 4.16.

Seller Related Parties” means Seller and any of its former, current and future Subsidiaries or Affiliates and each of their respective former, current and future Representatives, lenders, successors and assigns.

Shared Contracts” has the meaning specified in Section 4.12(b).

Software” means any and all computer programs, operating systems, applications systems, firmware or software code of any nature (including but not limited to object code and source code), whether operational or under development, and any derivations, updates, enhancements and customizations of any of the foregoing, and any related processes, know-how, APIs, user interfaces, command structures, menus, buttons and icons, flow-charts, and related documentation, operating procedures, methods, tools, developers’ kits, utilities, developers’ notes, technical manuals, user manuals and other documentation thereof, including comments and annotations related thereto, whether in machine-readable form, programming language or any other language or symbols and whether stored, encoded, recorded or written on disk, tape, film, memory device, paper or other media of any nature, and whether in source code or object code.

Solvent” has the meaning specified in Section 5.08.

Specified Jurisdictions” has the meaning specified in Section 9.01(c).

Specified Representations” means the representations and warranties of Seller set forth in Section 4.02 (Pre-Signing Financial Statements; Unaudited Annual Financial Statements; Audited Financial Statements), Section 4.03(e) (No Undisclosed Liabilities; Absence of Certain Changes or Events), Section 4.07(a) and Section 4.07(c) (Sufficiency of Assets), Section 4.09 (Seller’s Employee Benefit Plans), Section 4.11 (Environmental Matters) and Section 4.14 (Intellectual Property) and the corresponding representations and warranties of Seller set forth in any certificate delivered by Seller pursuant to Section 9.02(a).

Straddle Period” means any taxable period that includes (but does not end on) the Closing Date.

Straddle Period Tax Returns” has the meaning specified in Section 8.04(b).

Subsidiary” means, with respect to any Person, any corporation, limited liability company, joint venture or partnership of which such Person (a) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests, or (iii) the capital or profit interests, in the case of a partnership; or (b) otherwise has

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the power to vote or to direct the voting of sufficient securities to elect a majority of the board of directors or similar governing body. For the avoidance of doubt, prior to the Closing Date, Subsidiaries of Seller shall include each of the Transferred Entities to be sold by Seller to Purchaser at the Closing.

Subsidiary Transferor” means each Subsidiary of Seller that holds any of the Transferred Assets or Battery Companies Equity Interests, including the Subsidiaries of Seller listed on Exhibit A under the heading “Subsidiary Transferors.

Target Working Capital” means $122,665,000.

Tax” or “Taxes”  means (a) any and all taxes, charges (including customs duties or fines), fees, levies, tariffs, imposts, duties or other assessments of any kind whatsoever, in each case, in the nature of a tax, imposed by or payable to any federal, state, provincial, local, or foreign tax authority, including any gross income, net income, alternative or add-on minimum, franchise, profits or excess profits, gross receipts, estimated, capital, goods, services, documentary, use, transfer, ad valorem, value added, sales, customs, real or personal property, intangibles, capital stock, license, payroll, withholding or back-up withholding, employment, social security, workers’ compensation, unemployment compensation, production, excise, stamp, occupation, premium, windfall profits, occupancy, transfer and gains taxes, together with any interest, penalties, additions to tax or additional amounts imposed with respect thereto, (b) any and all Liability for the payment of any items described in clause (a) above as a result of being (or ceasing to be) a member of an affiliated, consolidated, combined, unitary or aggregate group (or being included (or being required to be included) in any Tax Return related to such group) and (c) any and all liability for the payment of any amounts described in clause (a) or (b) above as transferee or successor or by Contract (other than contracts that do not primarily relate to Taxes).

Tax Asset” has the meaning specified in Section 8.05.

Tax Controversy” has the meaning specified in Section 11.07(c)(i).

Tax Indemnified Party” has the meaning specified in Section 11.07(c)(i).

Tax Indemnifying Party” has the meaning specified in Section 11.07(c)(i).

Tax Proceeding” means any audit, request for information, investigation, hearing, litigation, legal action, administrative or judicial contest or proceeding relating to Taxes.

Tax Returns” means all returns, reports (including elections, declarations, disclosures, schedules, estimates, claims for refunds, and information returns) and other information required to be supplied to a Tax authority relating to Taxes, including any supporting information on any schedule or attachment thereto and any amendment or supplement thereof.

Tax Sharing Agreement” has the meaning specified in Section 4.15(e).

Termination Date” has the meaning specified in Section 10.01(b).

Territory” means any jurisdiction worldwide.

Third-Party Claim” has the meaning specified in Section 11.02(a).

Trademarks” has the meaning specified in the definition of Intellectual Property.

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Transaction Documents” means this Agreement, the Ancillary Agreements and any certificate or other document delivered by any party hereto or thereto in connection herewith or therewith, collectively.

Transaction Expenses” means, to the extent not paid immediately before the effective time of the Closing, the amount of any fees, costs and expenses incurred or accrued at or prior to Closing by or on behalf of Seller or any of its Subsidiaries to any third party in connection with the preparation, negotiation, execution and delivery of, and/or their performance under, the Transaction Documents or the transactions contemplated thereby or the sale process involving the Business to the extent such fees, costs and expenses are or become obligations of Purchaser or any of its Subsidiaries (including, from and after the Closing, the Transferred Entities), including (a) legal, accounting, consulting, investment banking, financial advisory, brokerage and other third party advisory, agent or consulting fees, costs and expenses, (b) the aggregate amount payable (including “success fees”, retention or transaction-related bonuses, any amounts payable to offset any excise Taxes imposed under Section 4999 of the Code and any related income Taxes, and the employer portion of any applicable payroll or employment Taxes relating to any payment described in clause (b)) to or for the benefit of Business Employees or Former Business Employees pursuant to any applicable agreement (whether written or oral) or other governing document or policy solely as a result of the transactions contemplated by this Agreement.

Transfer Date” has the meaning specified in Section 7.01(a).

Transfer Regulations” means the Council Directive 2001/23/EC of 12 March 2001 and any subsequent amendments (“Acquired Rights Directive”), and any equivalent Law (a) in any jurisdiction that has either implemented the Acquired Rights Directive or (b) that provides for or requires the automatic transfer or assignment of any person’s employment to Purchaser or one of its Affiliates, or to Seller or one of its Affiliates, as a result of the transactions contemplated by this Agreement, including the Pre-Closing Restructuring.

Transfer Taxes” means all transfer, notarial, filing, recordation, goods, services, sales, use, real or personal property transfer, documentary, VAT, stamp and all other similar Taxes or other like charges, together with interest, penalties or additional amounts imposed with respect thereto.

Transferable Permits” means all those Permits and Environmental Permits used or held for use primarily in the operation or conduct of the Business (and all applications pertaining thereto) that are transferable under applicable Law (including Environmental Laws) from Seller to Purchaser or its designees.

Transferred Assets” means Seller’s and its Subsidiaries’ (including the Transferred Entities’) right, title and interest in the following property and assets, real, personal, mixed, tangible and intangible, of every kind and description, whether or not reflected on the books and records of Seller and its Subsidiaries and wherever located, in each case other than the Excluded Assets:

(a) all Inventory, including those items set forth on Section 1.01(l)(a) of the Seller Disclosure Letter;

(v) all machinery, equipment, hardware (including computer hardware), furniture, fixtures, vehicles, tools, repair and replacement parts, supplies, materials, dies, molds and all other tangible personal property or personal property leases, located on the premises of any Real Property, including those items set forth on Section 1.01(l)(b) of the Seller Disclosure Letter;

(w) all Owned Real Property set forth on Section 1.01(l)(c) of the Seller Disclosure Letter;

(x) all Leased Real Property set forth on Section 1.01(l)(d) of the Seller Disclosure Letter;

(y) all Intellectual Property used or held for use primarily in, or that arise primarily out of,

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the Business, including those items set forth on Section 1.01(l)(e) of the Seller Disclosure Letter, and all rights to sue or recover or retain damages costs and attorneys’ fees for past, present and future infringement or misappropriation of any of the foregoing;

(z) all Information Technology and Software used or held for use primarily in, or that arise primarily out of, the Business, including those items set forth on Section 1.01(l)(f) of the Seller Disclosure Letter;

(aa) all Contracts (including Shared Contracts) that are used or held for use primarily in, or that arise primarily out of, the Business, including those items set forth on Section 1.01(l)(g) of the Seller Disclosure Letter (collectively, the “Transferred Contracts”), and all claims, causes of action, defenses and rights of offset or counterclaim, or settlement agreements (in any manner arising or existing, whether choate or inchoate, known or unknown, contingent or non-contingent) arising therefrom;

(bb) all Contracts (including any nondisclosure or confidentiality agreements) relating to or evidencing any restrictive covenant obligation of any Employee or independent contractor who provides services to the Business (including outside sales representatives) and all enforcements rights thereunder;

(cc) all Transferable Permits to the extent assignable or transferrable under applicable Law, including those items set forth on Section 1.01(l)(i) of the Seller Disclosure Letter, and all pending applications therefor or renewals thereof;

(dd) all Accounts Receivable;

(ee) all prepaid expenses, security deposits, bonds, credits, deferred charges, advance payments, and other deposits, rebates, claims for refunds, rights to offset and prepaid items as of immediately prior to the Closing, in each case to the extent arising out of or related to a Transferred Asset or that arise primarily out of or relate primarily to the Business;

(ff) the Assumed Benefit Plans and the Transferred Pension Plans, and all assets related thereto, set forth on Section 1.01(l)(l) of the Seller Disclosure Letter;

(gg) all claims, Actions and suits and defenses, in each case to the extent arising out of or related to a Transferred Asset or any Assumed Liability or that arise primarily out of the Business;

(hh) all rights under unfilled purchase orders for the purchase of goods or services;

(ii) all documents, information, files, correspondence, data, instruments, papers, books, records, plans, reports, contracts, books of account, files brochures, catalogs, sales literature, promotional materials, certificates, schematic drawings, blueprints, engineering data and other documents or recorded knowledge (including customer and supplier lists, price and mailing lists, and repair and performance records), in whatever media retained or stored, including computer programs and disks, in each case to the extent related to a Transferred Entity or the Business and in the possession of Seller and its Subsidiaries (the “Transferred Books and Records”), other than (i) any books, records or other materials that Seller is required by applicable Law to retain (copies of which, to the extent permitted by applicable Law, will be made available to Purchaser upon Purchaser’s reasonable request) and (ii) personnel and employment records for (A) employees and former employees who are not Employees and (B) to the extent such records cannot be provided to Purchaser under applicable Law, Employees; provided that, with respect to any such books, records or other materials that are Transferred Assets pursuant to this clause, Seller shall be permitted to keep (A) one (1) copy of such books, records or other materials to the extent required to demonstrate compliance with applicable Law or pursuant to bona fide internal compliance procedures and (B) such books, records or other materials in the form of so-called “back-up” electronic tapes in the ordinary course of business;

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(jj) all goodwill, if any, of the Business, together with the right to represent to third parties that Purchaser is the successor of the Business;

(kk) all Transferred Cash and Cash Equivalents; and

(ll) without duplication, expansion, limitation or other modification of any of the categories of assets, property, claims, goodwill or rights set forth in items (a) through (q) above or of any Excluded Assets, all other assets, properties, claims, goodwill and rights of Seller or any of its Subsidiaries used or held for use primarily in, or that arise primarily out of, the Business.

Transferred Books and Records” has the meaning specified in clause (o) of the definition of “Transferred Assets”.

Transferred Cash and Cash Equivalents” has the meaning specified on Section 1.01(m) of the Seller Disclosure Letter.

Transferred Contracts” has the meaning specified in clause (g) of the definition of “Transferred Assets”

Transferred Employee” has the meaning specified in Section 7.01(a).

Transferred Entities” has the meaning specified in the Recitals.

Transferred Entity Voting Debt” has the meaning specified in Section 3.04(a).

Transferred Equity Interests” has the meaning specified in the Recitals.

Transferred FSA Balances” has the meaning specified in Section 7.02(d).

Transferred Indebtedness” has the meaning specified in the definition of Assumed Liabilities.

Transferred Information Technology” has the meaning specified in Section 4.14(i).

Transferred Pension Plans” means assets and liabilities associated with any Business Benefit Plan set forth on Section 1.01(n) of the Seller Disclosure Letter.

Transferred Policies” has the meaning specified in Section 4.16.

Transition Period” has the meaning specified in Section 7.01(c).

Transition Services Agreement” means the Transition Services Agreement to be entered between Seller and Purchaser at the Closing, which shall be on terms substantially consistent with the terms set forth in the Framework TSA Terms.

U.S. GAAP” means generally accepted accounting principles in the United States, consistently applied and as in effect from time to time.

Unadjusted Purchase Price” has the meaning specified in Section 2.03(a).

Unaudited Annual Financial Statements” has the meaning specified in Section 6.17(a).

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U.K. Pension Scheme” means any defined contribution pension arrangement operated by the Transferred Entities in respect of U.K. Transferred Employees for the purpose of complying with their statutory obligations.

U.K. Transferred Employees” means those Transferred Employees employed by the Business in the United Kingdom.

VAT” means (a) any value-added or similar tax (including, for the avoidance of doubt, any goods and services tax, or harmonized sales tax) imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112), and (b) any other Tax of a similar nature whether imposed in a Member State of the European Union in substitution for, or levied in addition to, such Tax referred to in clause (a) above, or imposed elsewhere.

VDR” means the electronic data room for Project Gamma maintained by Merrill Datasite.

WARN Act” means the U.S. Worker Adjustment and Retraining Notification Act and the rules and regulations promulgated thereunder, together with any similar local, state or foreign Laws.

Working Capital Lower Target” shall mean $117,665,000.

Working Capital Upper Target” shall mean $127,665,000.

Interpretation

. Unless the context otherwise requires expressly:

(a) Words in the singular shall include the plural and vice versa, and words of one gender shall include the other genders, in each case, as the context requires;

(b) the term “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement and not to any particular provision of this Agreement, and Article, Section, paragraph, clause, subclause, Exhibit and Schedule references are to the Articles, Sections, paragraphs, clauses, subclauses, Exhibits and Schedules to this Agreement unless otherwise specified;

(c) the word “including” and words of similar import when used in this Agreement shall mean “including, without limitation,” unless otherwise specified;

(d) the terms “Dollars” and “$” mean U.S. Dollars, the lawful currency of the United States of America and shall be deemed to include the equivalent amount in any other currency on the relevant date, calculated at the rate of exchange for that currency into Dollars as provided in Section 2.04(f);

(e) references herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and assigns; provided, that nothing contained in this Section 1.02, is intended to authorize any assignment or transfer not otherwise permitted by this Agreement;

(f) references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity;

(g) with respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”;

(h) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other things extends, and such phrase shall not mean simply “if”;

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(i) the word “or” shall be disjunctive but not exclusive;

(j) references herein to any Law shall be deemed to refer to such Law as amended, modified, codified, reenacted, supplemented or superseded in whole or in part and in effect from time to time, and also to all rules and regulations promulgated thereunder;

(k) references herein to any Contract mean such Contract as amended, supplemented or modified (including any waiver thereto) in accordance with the terms thereof;

(l) references to “made available” shall mean that such documents or information referenced shall have been contained in the VDR at 5:00 p.m. New York time on the day prior to the execution and delivery of this Agreement. Notwithstanding the foregoing, to the extent that any document or information in the VDR (including, for clarity, the portions of the VDR designated as “outside advisors only” and “clean rooms”) has been redacted or is otherwise incomplete, then the portion so redacted or incomplete shall be deemed not to have been “made available” to Purchaser and, without limiting the generality of the foregoing, to the extent any such redacted terms or any information not provided in the VDR affects the meaning, interpretation or enforceability of any of the non-redacted terms of such agreement or of the other information provided in the VDR, such agreement or other information shall be deemed not to have been “made available” to Purchaser (it being understood in each case that the failure, in and of itself, to make any information available to Purchaser as a result of redactions in such information shall not constitute a breach of any provision of this Agreement by Seller).

(m) if the last day for the giving of any notice or the performance of any act required or permitted under this Agreement is a day that is not a Business Day, then the time for the giving of such notice or the performance of such action shall be extended to the next succeeding Business Day;

(n) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded;

(o) any reference to “days” means calendar days unless Business Days are expressly specified;

(p) references to “written” or “in writing” include in electronic form; and

(q) references herein to “as of the date hereof,” “as of the date of this Agreement” or words of similar import shall be deemed to mean “as of the date of the execution and delivery of this Agreement.

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Article II

PURCHASE AND SALE OF BATTERY COMPANIES EQUITY INTERESTS AND TRANSFERRED ASSETS; ASSUMPTION OF ASSUMED LIABILITIES

Purchase and Sale of Battery Companies Equity Interests and Transferred Assets; Exclusion of Excluded Assets

.

(a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall (or, as applicable, shall cause the Subsidiary Transferors to) sell, transfer, convey, assign and deliver to Purchaser (or, as applicable, one or more Affiliates of Purchaser designated by Purchaser not less than five (5) Business Days prior to the Closing Date), and Purchaser shall (or, as applicable, shall cause such Affiliates of Purchaser to) purchase and accept from Seller (or, as applicable, the Subsidiary Transferors) all of (i) Seller’s and Subsidiary Transferors’ right, title and interest in the Battery Companies Equity Interests, free and clear of all Liens, other than Liens arising pursuant to the terms of this Agreement or Liens created by or through Purchaser or any of its Affiliates and Liens related to applicable securities Laws and any Lien arising under the organizational documents of a Battery Company, correct and complete copies of which have been made available to Purchaser and (ii) Seller’s and its Subsidiaries’ right, title and interest in the Transferred Assets. For the avoidance of doubt, the property and assets of the Transferred Entities constituting Transferred Assets shall transfer to Purchaser automatically by operation of Law upon the sale of the Battery Companies Equity Interests.

(b) Notwithstanding any other provision in this Agreement to the contrary, no asset, claim, right or benefit, the assignment or transfer of which is otherwise contemplated by this Agreement, shall be assigned or transferred if such assignment or transfer (or attempt to make such an assignment or transfer) without the consent or approval of a third party would constitute a breach or other contravention of the rights of such third party or would constitute a violation of or be ineffective under applicable Law (such assets, claims, rights or benefits being collectively referred to herein as “Restricted Assets”) until such consent or approval is obtained, or other action has been taken, at which time such Restricted Asset shall be automatically assigned or transferred. Subject to the final sentence of Section 6.04(a), each party shall use its commercially reasonable efforts to obtain any such consent or approval as promptly as practicable after the date hereof. If any such consent or approval is not obtained prior to the Closing, (i) each party shall use its commercially reasonable efforts to obtain any such consent or approval as promptly as practicable, (ii) the assigning party shall endeavor to provide the assignee party, to the extent practicable and permitted by applicable Law, with the benefits (including Tax benefits) of or with respect to the applicable Restricted Asset as if such Restricted Asset had been assigned to the assignee party (including by means of any licensing, operating, subcontracting, sublicensing or subleasing arrangement), if the same is permitted under the applicable Restricted Asset and (iii) the assignee party shall bear and indemnify the assigning party for (except to the extent resulting from or arising out of the bad faith, gross negligence, willful misconduct or violation of applicable Law by the assigning party) all the costs (including Tax costs), liabilities, burdens and other Losses incurred with respect to any such Restricted Asset to the extent that it receives the corresponding benefits of or with respect to the applicable Restricted Asset under clause (ii) and subject to the limitation set forth in the final sentence of Section 6.04(a). Notwithstanding anything to the contrary herein, the foregoing provisions of this Section 2.01(b) shall not apply with respect to the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests.

(c) Notwithstanding any other provision in this Agreement to the contrary, to the extent that registered ownership of the Battery Companies Equity Interests or the Battery Company Subsidiaries’ Equity Interests is not transferred to Purchaser or its designated Affiliate as of the Closing Date, (i) Seller (or, as applicable, the Subsidiary Transferor) shall to the maximum extent permitted by applicable Law hold the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests as nominee or trustee for the benefit of Purchaser or its designated Affiliate until the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests have been formally registered in the name of Purchaser or its designated

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Affiliate and (ii) Seller shall to the maximum extent permitted by applicable Law provide to Purchaser or its designated Affiliate the benefits associated with the registered ownership of the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests and to take or cause its applicable Affiliate to take, such other actions (including voting as Purchaser shall direct as the registered holder of such Equity Interests) as may be reasonably requested by Purchaser in order to place Purchaser and its Affiliates, to the maximum extent permitted by applicable Law, in the same position as if Purchaser or its designated Affiliate were the registered holder of the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests. Purchaser shall, except to the extent resulting from or arising out of the bad faith, gross negligence, willful misconduct or violation of applicable Law by Seller or its Affiliates, indemnify and hold harmless Seller (or, as applicable, the Subsidiary Transferor) against any and all Losses incurred, suffered or sustained by Seller (or, as applicable, the Subsidiary Transferor) or asserted against Seller (or, as applicable, the Subsidiary Transferor) in connection with Seller (or, as applicable, the Subsidiary Transferor) holding the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests as nominee or trustee for Purchaser or its designated Affiliate.

(d) Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary, this Agreement shall not constitute an agreement to sell, transfer, convey, assign and deliver any Battery Companies Equity Interest or Transferred Asset or perform any Pre-Closing Restructuring activities, if an attempted sale, transfer, conveyance, assignment, delivery or performance thereof would, without the approval, authorization or consent of, or notification, information and/or consultation with, any trade union, employee representatives, works councils or health and safety committees or employees, or similar Persons in foreign jurisdictions (collectively, “Approvals”), (i) constitute a material breach or violation thereof, (ii) be ineffective, void or voidable, or (iii) materially and adversely affect the rights thereunder of Seller, the Subsidiary Transferors, Purchaser, or any of their respective officers, directors, agents or Affiliates, in each case unless such Approval is obtained or such notification, information and/or consultation has been completed. In such case, the Foreign Acquisition Agreements would be signed and effective only once employee representatives, works councils or health and safety committees have been duly notified, informed and/or consulted under applicable Law, and Seller agrees to, and to cause its applicable Subsidiaries to, timely use their reasonable best efforts to obtain each such Approval or complete such notification, information and/or consultation in accordance with applicable Law following the execution and delivery of this Agreement.

Section 2.02 Assumption of Assumed Liabilities; Retention of Retained Liabilities.

(a) At the Closing, Purchaser shall (or shall cause one or more of its Affiliates designated by Purchaser in writing not less than five (5) Business Days prior to the Closing Date to) assume and become obligated to pay, perform and discharge, when due, all Assumed Liabilities. For the avoidance of doubt, the Liabilities of the Transferred Entities constituting Assumed Liabilities shall be assumed by Purchaser automatically by operation of Law upon the sale of the Battery Company Equity Interests.

(b) At the Closing, Seller and its applicable Subsidiaries, as the case may be, shall keep or assume at the Closing and remain or become at the Closing obligated to pay, perform and discharge when due all Retained Liabilities.

Section 2.03 Purchase Price; Allocation of Purchase Price.

(a) Subject to the terms and conditions of this Agreement, in consideration for the sale and transfer of the Battery Companies Equity Interests and the Transferred Assets under Section 2.01(a) and the assumption of the Assumed Liabilities, Purchaser shall pay, or cause to be paid, to Seller (or, as applicable, one or more Affiliates of Seller designated by Seller, which is the transferor of the relevant Battery Company Equity Interests or Transferred Assets not less than three (3) Business Days prior to the Closing Date) an amount of cash equal to Two Billion Dollars ($2,000,000,000) (the “Unadjusted Purchase Price”) plus (A)(i) if the Modified

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Working Capital is greater than the Working Capital Upper Target, the amount equal to the Modified Working Capital minus the Working Capital Upper Target or (ii) if the Modified Working Capital is less than the Working Capital Lower Target, the amount equal to the Modified Working Capital minus the Working Capital Lower Target plus (B) the amount, which may be positive or negative, equal to the Closing Net Indebtedness, minus (C) the amount equal to the Closing Transaction Expenses, minus (D) the Pension Plan Purchase Price Adjustment (the Unadjusted Purchase Price, so adjusted, the “Purchase Price”).

(b) As used in this Agreement, the “Estimated Purchase Price” shall mean an amount equal to the Unadjusted Purchase Price plus (A)(i) if the Estimated Modified Working Capital is greater than the Working Capital Upper Target, the amount equal to the Estimated Modified Working Capital minus the Working Capital Upper Target or (ii) if the Estimated Modified Working Capital is less than the Working Capital Lower Target, the amount equal to the Estimated Modified Working Capital minus the Working Capital Lower Target, plus (B) the amount, which may be positive or negative, equal to the Estimated Closing Net Indebtedness, minus (C) the amount equal to the Estimated Closing Transaction Expenses, minus (D) the Pension Plan Purchase Price Adjustment. For purposes of determining the amount of cash to be paid as the Estimated Purchase Price by Purchaser at the Closing pursuant to Section 2.06(b)(ii), Seller shall prepare and deliver to Purchaser, not less than three (3) Business Days before the Closing Date, a written statement certified by an officer of Seller (the “Closing Notice”) setting forth Seller’s good faith estimate of: (i) the Modified Working Capital (such amount, the “Estimated Modified Working Capital”), (ii) the Closing Net Indebtedness (the “Estimated Closing Net Indebtedness”), (iii) the Closing Transaction Expenses (“Estimated Closing Transaction Expenses”) and (iv) the Estimated Purchase Price. Seller agrees that it shall prepare such Closing Notice in accordance with, as applicable, the definitions of “Closing Net Indebtedness” and “Closing Transaction Expenses” and, in the case of the Estimated Modified Working Capital, such Closing Notice shall be prepared in accordance with Section 2.03(b) of the Seller Disclosure Letter, and Seller shall deliver together with such Closing Notice any reasonable supporting material with respect to any estimated amounts used by Seller in calculating the amounts set forth on such Closing Notice. Purchaser shall have two (2) Business Days from the receipt of the Closing Notice to provide Seller any comments with respect to the computation of any of the components of Estimated Modified Working Capital, Estimated Closing Net Indebtedness and Estimated Closing Transaction Expenses, which comments shall be considered by Seller in good faith (it being understood that Seller shall be under no obligation to revise such Closing Notice in response to Purchaser’s comments). In the event Seller revises such Closing Notice in response to Purchaser’s comments, the revised statement incorporating revised estimates of the Estimated Modified Working Capital, Estimated Closing Net Indebtedness and Estimated Closing Transaction Expenses, as applicable, shall be treated as the Closing Notice hereunder.

(c) The Unadjusted Purchase Price shall be allocated in accordance with the principles set forth in Section 2.03(b) of the Seller Disclosure Letter. Within sixty (60) days after the Purchase Price shall have been deemed to be final pursuant to Section 2.04 below, Seller shall deliver to Purchaser a certificate that reasonably allocates the Purchase Price and the Assumed Liabilities among the Transferred Entities (or the assets thereof in the case of any Transferred Entity the assets of which are treated as being acquired by Purchaser or any of its designated Affiliates for U.S. federal income tax purposes) and the Transferred Assets in a manner consistent with Section 2.03(b) of the Seller Disclosure Letter and in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder (the “Allocation Certificate”). Purchaser shall have a period of twenty (20) days after the delivery of the Allocation Certificate (the “Response Period”) to present in writing to Seller notice of any objections Purchaser may have to the allocation set forth therein (an “Objections Notice”). Unless Purchaser timely objects, such Allocation Certificate shall be binding on the parties without further adjustment, absent manifest error. If Purchaser raises any objections within the Response Period, Purchaser and Seller shall negotiate in good faith and use their reasonable best efforts to resolve such dispute. If the parties fail to agree within fifteen (15) days after the delivery of the Objections Notice, then the disputed items shall be resolved by the Accounting Arbitrator, whose determination shall be final and binding on the parties. The Accounting Arbitrator shall resolve the dispute within thirty (30) days after the item has been referred to it. The costs, fees and expenses of the Accounting Arbitrator shall be borne equally by Seller and Purchaser. Except as

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otherwise required by a final determination (within the meaning of Section 1313(a) of the Code or similar provision of applicable Tax law or any other event (including the execution of a Form 870-AD) that finally and conclusively establishes the amount of any liability for Tax), (i) Purchaser and Seller shall (and shall cause their respective Subsidiaries, or, in the case of Purchaser, its Affiliates, to) report the national, federal, state, provincial and local income and other Tax consequences of the transactions contemplated by this Agreement in a manner consistent with the Allocation Certificate, and (ii) neither Purchaser nor Seller shall (and neither party shall permit its respective Subsidiaries to) take a position inconsistent with the Allocation Certificate on any Tax Return or filings (including any forms required to be filed pursuant to Section 1060 of the Code). Each of Seller and Purchaser shall cooperate with the other in preparing IRS Form 8594 or any equivalent statements required by any Governmental Authority charged with the collection of any income Tax for filing within a reasonable period before its filing due date. Notwithstanding anything in this Section 2.03(c) to the contrary, to the extent it is necessary to allocate the Estimated Purchase Price and the Assumed Liabilities among the Transferred Entities and the Transferred Assets (or any subset thereof) prior to the final determination of the Allocation Certificate in connection with any of the transactions governed by the Foreign Acquisition Agreements (or other local closing agreements and documents required to effectuate the transactions contemplated hereby for jurisdictions outside of the United States), each of Seller and Purchaser shall (and shall cause their Subsidiaries to) reasonably cooperate in good faith to agree upon such allocation in a manner consistent with Section 2.03(b) of the Seller Disclosure Letter.

Section 2.04 Purchase Price Adjustment.

(a) Section 2.04(a) of the Seller Disclosure Letter sets forth certain current assets and current liabilities accounts and certain accounting principles, methodologies and policies used in the determination of such accounts. Such accounts of the Business, cumulatively, as of immediately before the effective time of the Closing (as set forth in Section 2.05(a)), determined in accordance with Section 2.04(a) of the Seller Disclosure Letter, and the principles, methodologies and policies set forth therein and, to the extent not set forth therein, in accordance with U.S. GAAP, shall constitute the “Modified Working Capital”. For the avoidance of doubt, amounts included in the determination of Closing Net Indebtedness, Closing Transaction Expenses and Pension Plan Purchase Price Adjustment shall be excluded from the determination of the Modified Working Capital.

(b) If the Purchase Price as finally determined in accordance with this Section 2.04 is less than the Estimated Purchase Price, Seller shall pay to Purchaser the total amount of such deficit, and if the Purchase Price as finally determined in accordance with this Section 2.04 exceeds the Estimated Purchase Price, Purchaser shall pay to Seller the total amount of such excess, in either case by wire transfer of immediately available U.S. dollar funds, within three (3) Business Days after the final determination of the Purchase Price, to an account designated by the party receiving payment no later than two (2) Business Days after the final determination of the Purchase Price.

(c) As promptly as practicable (and, in any event, within ninety (90) days after the Closing), Purchaser shall prepare and deliver to Seller a statement setting forth Purchaser’s calculation of (i) Modified Working Capital, (ii) Closing Net Indebtedness, (iii) Closing Transaction Expenses and (iv) the Purchase Price pursuant to this Section 2.04 (the “Closing Statement”), which shall be prepared in accordance with the accounting principles, methodologies and policies set forth in Section 2.04 of the Seller Disclosure Letter  (and, to the extent not set forth therein, in accordance with U.S. GAAP). The parties agree to provide each other and their respective Representatives reasonable access, during normal business hours and upon reasonable notice, to their respective books, records, work papers and personnel (and any other information which either party reasonably requests to the extent relating to the Business (including, for the avoidance of doubt, the Business in any Deferred Asset Jurisdictions)) throughout the periods during which the Closing Statement is being prepared or evaluated and any disputes that may arise under this Section 2.04 are being resolved, in each case in a manner that does not interfere unreasonably with the operations of such party’s businesses. Notwithstanding the foregoing, neither Purchaser nor Seller shall be required to (x) violate any obligation of confidentiality to which Purchaser or Seller

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may be subject in discharging their obligations pursuant to the immediately preceding sentence, and (y) provide access to or disclose information where, upon the advice of counsel, such access or disclosure would jeopardize the attorney-client privilege of such party or contravene any applicable Laws. If Seller disagrees with the determination of the Closing Statement, Seller shall notify Purchaser in writing of such disagreement within sixty (60) days after delivery of the Closing Statement, which written notice shall set forth any such disagreement in reasonable detail (“Disagreement Notice”). If Seller fails to deliver a Disagreement Notice by the end of such 60-day period, Seller shall be deemed to have accepted the Closing Statement delivered by Purchaser. Matters included in the calculations in the Closing Statement to which Seller does not object in the Disagreement Notice shall be deemed accepted by Seller and shall not be subject to further dispute or review. Purchaser and Seller shall negotiate in good faith to resolve any such disagreement, and any resolution agreed to in writing by Purchaser and Seller shall be final and binding upon the parties.

(d) If Purchaser and Seller are unable to resolve any disagreement as contemplated by Section 2.04(c) within thirty (30) days after delivery by Seller of a Disagreement Notice, Purchaser and Seller shall jointly select a mutually acceptable nationally recognized third party accounting firm, the retention of which will not give rise to present or potential future auditor independence problems for Seller, Purchaser or any of their respective Affiliates or Subsidiaries, as determined by the reasonable discretion of Seller and Purchaser, to resolve such disagreement (the firm so selected shall be referred to herein as the “Accounting Arbitrator”). In the event that Purchaser and Seller are unable to agree on the appointment of the Accounting Arbitrator, as provided above, then the Accounting Arbitrator shall be appointed, at the request of either Purchaser or Seller, by the American Arbitration Association, which Accounting Arbitrator shall be another nationally recognized third party accounting firm. The parties shall instruct the Accounting Arbitrator to consider only those items and amounts set forth in the Closing Statement as to which Purchaser has disagreed pursuant to a Disagreement Notice and Purchaser and Seller have not resolved their disagreement. The scope of the disputes to be resolved by the Accounting Arbitrator shall be limited to whether such calculation was done in accordance with the terms hereof, the accounting methods, standards, policies, practices, classifications, estimation methodologies, assumptions or procedures used to prepare the Closing Statement, and whether there were mathematical errors in the calculation of the Closing Statement, and the Accounting Arbitrator shall not make any other determination. The Accounting Arbitrator shall make its determination based solely on written submissions, presentations and supporting material provided by Purchaser and Seller and not pursuant to any independent review. In resolving any such disagreement, the Accounting Arbitrator may only select an amount for each item in dispute that is within range of values established for such disputed item as determined by reference to the value assigned to such item by Seller in the Disagreement Notice and by Purchaser in the Closing Statement. Purchaser and Seller shall use commercially reasonable efforts to cause the Accounting Arbitrator to deliver to all parties, as promptly as practicable, a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. Such report shall be final and binding upon the parties, absent manifest error. The fees, costs and expenses of the Accounting Arbitrator arising in connection with this Section 2.04 shall be borne by Purchaser, on the one hand, and Seller, on the other hand, in proportion to the differences between the Purchase Price as determined by the Accounting Arbitrator and the asserted Purchase Price set forth in the Closing Statement and the Disagreement Notice, respectively.

(e) Purchaser and Seller agree that any payments made pursuant to this Section 2.04 shall be allocated in a manner consistent with any allocation agreed to pursuant to Section 2.03(c).

(f) With respect to Cash and Cash Equivalents and Indebtedness of the Business denominated in currencies other than U.S. dollars, the Applicable Exchange Rate for each such currency as of immediately before the effective time of the Closing as published by Bloomberg (BGN New York), shall be used to convert such amounts into U.S. dollars for purposes of determining Closing Net Indebtedness in connection with the adjustments pursuant to this Section 2.04.

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Section 2.05 The Closing.

(a) Subject to the terms and conditions of this Agreement (including Section 2.05(b)), the sale and purchase of the Battery Companies Equity Interests and the Transferred Assets and the assumption of the Assumed Liabilities (all as contemplated hereby, the “Closing”) shall take place by electronic exchange of documents, (i) on the later of (A) the third (3rd) Business Day following satisfaction or waiver in writing (to the extent permitted by applicable Law) of the party entitled to the benefit thereof of all of the conditions to the obligations of the parties set forth in Article IX (other than those conditions that, by their nature, are to be satisfied only at the Closing, but subject to the written waiver (to the extent permitted by applicable Law) of the party entitled to the benefit thereof or fulfillment of those conditions) and (B) the earlier of (I) a date during the Marketing Period to be specified by Purchaser on no fewer than three (3) Business Days’ notice to Seller, and (II) the third (3rd) Business Day immediately following the final day of the Marketing Period (subject, in the case of each of subclauses (I) and (II) of this clause (B), to the satisfaction or waiver in writing (to the extent permitted by applicable Law) of the party entitled to the benefit thereof of all of the conditions set forth in Article IX as of the date determined pursuant to this Section 2.05(a) (other than those conditions that, by their nature, are to be satisfied only at the Closing, but subject to the satisfaction or written waiver (to the extent permitted by applicable Law) of the party entitled to the benefit thereof of those conditions)) or (ii) at such other time and date or at such other place as Seller and Purchaser may mutually agree upon in writing (the day on which the Closing takes place being the “Closing Date”). For the sake of clarity, the transfer of the Battery Companies Equity Interests and the Transferred Assets and Assumed Liabilities will be deemed to take place and be effective in each jurisdiction at 12:01 A.M. local time (in the case of the United States, local time being New York time), on the day of the Closing Date (x) where the principal office or facilities of such Battery Company is located or (y) in the case of Transferred Assets or Assumed Liabilities, where the Transferred Asset or Assumed Liability resides, exists or arises.

(b) Notwithstanding anything to the contrary in this Agreement, if (i) any Consent of a Governmental Authority required to consummate the sale and transfer of the Battery Companies Equity Interests and the Transferred Assets or the assumption of the Assumed Liabilities in any applicable jurisdiction has not been obtained at the time of Closing (other than, for the avoidance of doubt, the expiration or termination of the waiting period (and any extension thereof) under the HSR Act, and the waiting periods, clearances, approvals and/or Consents under the applicable Review Law in each of the other Specified Jurisdictions), (ii) despite the exercise by Seller of its reasonable best efforts, the Pre-Closing Restructuring has not been completed in any applicable jurisdiction as of the Closing, (iii) despite the exercise by Purchaser of its reasonable best efforts, Purchaser’s designated Affiliate in any applicable jurisdiction (A) is not fully formed, organized or incorporated, or (B) has not received the Governmental Authorizations necessary for the conduct of the Business in such jurisdiction prior to the Closing Date or (iv) either party determines, in good faith, that it is not reasonably practicable to consummate the sale and transfer of the Battery Companies Equity Interests or the Transferred Assets and the assumption of the Assumed Liabilities in particular jurisdictions on the Closing Date (each such jurisdiction in which the circumstances described in clauses (i) through (iv) above apply, a “Deferred Asset Jurisdiction”), then Purchaser and Seller shall, subject to this Section 2.05(b) and Section 2.05(c), agree to defer (to the extent permitted under applicable Law) the consummation of the portion of the transactions contemplated in such Deferred Asset Jurisdiction solely with respect to the sale and transfer of the Battery Companies Equity Interests or the Transferred Assets and the assumption of the Assumed Liabilities, as applicable, in respect of such Deferred Asset Jurisdiction (such items for each Deferred Asset Jurisdiction, the “Deferred Assets and Liabilities”); provided,  however, that, without the written consent of the other party, in no event shall either party have the right to defer the consummation of the sale and transfer of the Battery Companies Equity Interests or the Transferred Assets and the assumption of the Assumed Liabilities, as applicable, (x) in the United States or in the other jurisdictions set forth on Section 2.05(b) of the Seller Disclosure Letter or (y) if such deferral would result in the Deferred Asset Jurisdictions accounting for 10% or more of the net sales of the Business in fiscal year 2017.

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(c) From and after the Closing, and until such time as the applicable Deferred Assets and Liabilities have been transferred to Purchaser pursuant to Section 2.05(b) (each, a “Deferred Transfer Closing”), such Deferred Assets and Liabilities will be held for Purchaser’s benefit and account and will be managed and operated by Seller and its Subsidiaries for the benefit and account of Purchaser, with all gains, income, Losses, Taxes and Tax benefits or other items generated thereby to be for the account of Purchaser or its designated Affiliate. Seller and Purchaser will use their respective reasonable best efforts to allow Purchaser or its designated Affiliate to receive the uninterrupted use and benefit of any Deferred Assets and Liabilities from the Closing Date to the date of its Deferred Transfer Closing. Except as otherwise contemplated by this Section 2.05 or the other provisions of this Agreement, to the extent permitted under applicable Law, until the applicable Deferred Transfer Closing occurs, Seller will conduct the Business in such Deferred Asset Jurisdiction in accordance with the reasonable and lawful instructions of Purchaser and, except to the extent resulting from or arising out of the bad faith, gross negligence, willful misconduct or violation of applicable Law by Seller or its Affiliates, Purchaser shall defend and indemnify the Seller Indemnified Persons and save and hold each of them harmless against any Losses incurred, sustained or suffered by them arising out of or as a result of the performance by Seller and its Affiliates of its and their respective obligations under this Section 2.05 in respect of any Deferred Assets and Liabilities from and after the Closing until the applicable Deferred Transfer Closing in accordance with the terms and provisions of this Section 2.05.

(d) The Deferred Transfer Closing of any Deferred Assets and Liabilities shall occur as promptly as is reasonably practicable after the resolution of the applicable circumstance described in clauses (i) through (iv) of the first sentence of Section 2.05(b) that caused such jurisdiction to be a Deferred Asset Jurisdiction or at such time as the Parties may mutually agree upon in writing. In connection with any Deferred Transfer Closing where the parties jointly determine that the applicable portion of the Purchase Price is required to be paid on such Deferred Transfer Closing by Purchaser’s designated Affiliate to the applicable Subsidiary Transferor in local currency: (a) at the Deferred Transfer Closing, Purchaser shall, or shall cause the applicable designated Affiliate to, deliver such portion of the Purchase Price by wire transfer in immediately available funds, to an account or accounts designated at least three (3) Business Days prior to the Deferred Closing Date by Seller in a written notice to Purchaser; and (b) no later than two (2) Business Days following such Deferred Transfer Closing, Seller shall return to Purchaser that portion of the Estimated Purchase Price or Purchase Price (as applicable) allocated to the applicable Deferred Transfer Jurisdiction in accordance with Section 2.03(c) of this Agreement by wire transfer in immediately available funds, to an account or accounts designated at least three (3) Business Days prior to the Deferred Closing Date by Purchaser in a written notice to Seller. Any amounts payable in local currency shall be determined by reference to the applicable spot rate published by Bloomberg (BGN New York) as of 5:00 P.M., New York time, on the date that is three (3) Business Days prior to the Closing Date (and, for clarity, not the date of the Deferred Transfer Closing).

(e) For purposes of Sections 2.01,  2.02,  2.06(a)(i),  2.06(a)(ii),  2.06(a)(iii),  2.06(b)(i),  3.04(c),  6.02,  6.04(a),  6.06,  6.10, 6.14(d),  7.01,  7.02,  8.04 and 8.05, to the extent applicable in connection with any Deferred Asset Jurisdiction, all references to the Closing or the Closing Date in such instances shall be deemed to be references to the applicable Deferred Transfer Closing or date of the applicable Deferred Transfer Closing, respectively.

Section 2.06 Deliveries for the Closing.

(a) At the Closing, Seller shall deliver or cause to be delivered to Purchaser:

(i) instruments of transfer and conveyance, properly executed and acknowledged by Seller and/or its applicable Subsidiaries in such customary form as is reasonably acceptable to both Seller and Purchaser, that are necessary to effect or evidence the transfer of the Transferred Assets and Assumed Liabilities to Purchaser (or to such Affiliate(s) of Purchaser designated pursuant to Section 2.01(a)), including, a warranty deed (in form customary in the applicable jurisdiction) with respect to each Owned Real Property, conveying to

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Purchaser (or to such Affiliate(s) of Purchaser designated pursuant to Section 2.01(a)) fee simple title (or local equivalent) to such Owned Real Property, subject only to Permitted Liens, and in form and substance reasonably satisfactory to Purchaser and an assignment and assumption of lease with respect to each of the Real Property Leases in form and substance reasonably satisfactory to Purchaser;

(ii) certificates representing the Battery Companies Equity Interests (to the extent certificated), duly endorsed in blank or accompanied by stock or unit powers duly endorsed in blank in proper form for transfer or other proper instruments of transfer, along with such other documentation or filings as may be required under applicable Law to vest in Purchaser (or in such Affiliate(s) of Purchaser designated pursuant to Section 2.01(a)) the Battery Company Interests;

(iii) a counterpart of each of the Ancillary Agreements, executed by each of Seller and any of its Subsidiaries that is a party thereto, to the extent not previously delivered;

(iv) a receipt for the Estimated Purchase Price;

(v) the certificates referred to in Section 9.02(a) and Section 9.02(b);  

(vi) a certification of non-foreign status from Seller signed by an authorized officer of Seller that satisfies the requirements of Treasury Regulation Section 1.1445-2(b)(2); and

(vii) a written consent in form and substance reasonably satisfactory to Purchaser from the counterparty under the Real Property Lease set forth on Section 2.06(a)(vii) of the Seller Disclosure Letter to the assignment of such Real Property Lease (the “Lease Consent”).

(b) At the Closing, Purchaser shall deliver to Seller:

(i) a counterpart of each of the Ancillary Agreements (other than the Bill of Sale), executed by each of Purchaser and any of its Affiliates that is a party thereto, to the extent not previously delivered;

(ii) the Estimated Purchase Price by wire transfer in immediately available funds, to an account or accounts designated at least three (3) Business Days prior to the Closing Date by Seller in a written notice to Purchaser;

(iii) a receipt for the Transferred Assets and Battery Companies Equity Interests acknowledging the purchase of the Transferred Assets and Battery Companies Equity Interests pursuant to this Agreement; and

(iv) the certificates referred to in Section 9.01(a) and Section 9.01(b).

Accounting

. To the extent that, after the Closing, (a) Purchaser or any of its Affiliates receives any payment that is properly for the account of Seller or any of its Subsidiaries (other than, for the avoidance of doubt, the Transferred Entities) according to the terms of this Agreement (including any payment in respect of or under any Excluded Asset or otherwise due to Seller or any of its Subsidiaries) or, with the prior written consent of Purchaser, Seller or any of its Subsidiaries makes a payment on behalf of Purchaser or any of its designated Affiliate(s) (including any payment in respect of or under any Assumed Liability or otherwise payable by the Business), Purchaser shall promptly deliver such amount to Seller, and (b) Seller or any of its Subsidiaries (other than, for the avoidance of doubt, the Transferred Entities) receives any payment that is properly for the account of Purchaser or any of its Affiliates according to the terms of this Agreement (including any payment in respect of or under any Transferred Asset or otherwise due to the Business) or, with the prior

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written consent of Seller, Purchaser or any of its Affiliates makes a payment on behalf of Seller (including any payment in respect of or under any Retained Liability or otherwise payable by Seller or any of its Subsidiaries), Seller shall promptly deliver such amount to Purchaser, in each case, pursuant to a mutually agreed weekly cash reconciliation and off-set process conducted by the parties. All amounts due and payable under this Section 2.07 shall be due and payable by the applicable party in immediately available funds, by wire transfer to the account designated in writing by the other party.

Withholding

. Purchaser shall be entitled to deduct and withhold (or cause to be deducted and withheld) from the consideration otherwise payable pursuant to this Agreement such amounts as Purchaser or any of its designated Affiliates is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law; provided that Purchaser shall provide written notice to Seller of any expected deduction or withholding at least five (5) Business Days prior to the withholding (which notice shall specify the legal authority and the calculation method for the expected withholding); provided,  further, that Purchaser shall cooperate in good faith with Seller (including by providing Seller with a reasonable opportunity to provide any applicable certificates, forms or documentation that would reduce or eliminate any such deduction or withholding) and shall otherwise take such steps as Seller may reasonably request to reduce or eliminate, such requirement to withhold Tax. To the extent that such amounts are so withheld and paid over to the proper Governmental Authority, such withheld and deducted amounts will be treated for all purposes of this Agreement as having been paid to Seller and the Subsidiary Transferors (as applicable) in respect of which such deduction and withholding was made.

Acquisition Agreements

. Subject to the terms and conditions hereof, the parties shall, or shall cause their respective Subsidiaries to, enter into such agreements and instruments (collectively, the “Foreign Acquisition Agreements”) providing for the sale, transfer, conveyance, assignment or delivery of any Transferred Asset, Battery Companies Equity Interest and/or the assumption of any Assumed Liability located outside the United States of America as the parties jointly determine would be required or advisable pursuant to, or to comply with, requirements of applicable local Law to be documented separately from this Agreement, which Foreign Acquisition Agreements shall be negotiated in good faith between the parties, but in all events shall be consistent with the terms of this Agreement and have appropriate provisions to pay the applicable portion of the Purchase Price, as applicable, in local currency if necessary (which will reduce the corresponding obligation to make payment under this Agreement) in such amounts and such countries as jointly determined by the parties and shall contain customary provisions as agreed to by the parties with respect to local law and Tax matters not inconsistent with this Agreement. Any amounts payable in local currency shall be determined by reference to the applicable spot rate published by Bloomberg (BGN New York) as of 5:00 P.M., New York time, on the date that is three (3) Business Days prior to the Closing.

Article III

REPRESENTATIONS AND WARRANTIES RELATING TO SELLER AND THE BATTERY COMPANIES EQUITY INTERESTS

Except as set forth in the Seller Disclosure Letter delivered by Seller to Purchaser simultaneously with the execution hereof, Seller represents and warrants to Purchaser that all of the statements contained in this Article III are true and correct. Notwithstanding anything herein to the contrary, Seller makes no representations and warranties in this Article III relating to the Excluded Assets or Retained Liabilities. For purposes of the representations and warranties of Seller contained herein, disclosure in one Section of the Seller Disclosure Letter of any items, facts or circumstances shall be deemed to be disclosure of such items, facts or circumstances with respect to any other representations or warranties by Seller calling for disclosure of such information, whether or not such disclosure is specifically associated with or purports to respond to one or more of such other representations or warranties, if it is reasonably apparent on the face of the Seller Disclosure Letter that such disclosure is applicable. The inclusion of any information in any Section of the Seller Disclosure Letter or other

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document delivered by Seller pursuant to this Agreement shall not be deemed to be an admission or evidence of the materiality of such item, nor shall it establish a standard of materiality for any purpose whatsoever.

Section 3.01 Organization, Standing and Power.

(a) Each of Seller, the Subsidiary Transferors and those of Seller’s Controlled Affiliates that are or will be parties to the Ancillary Agreements is an entity duly organized, validly existing and in good standing (except in any jurisdiction that does not recognize such a concept) under the Laws of the jurisdiction of its organization. Each of Seller, the Subsidiary Transferors and those of Seller’s Controlled Affiliates that are or will be parties to the Ancillary Agreements (i) has all requisite power and authority to own, lease or otherwise hold or operate its assets and properties and to conduct its business as currently conducted, and (ii) is duly qualified or licensed to do business and is in good standing (except in any jurisdiction that does not recognize such a concept) in each jurisdiction in which the nature of its business or the ownership, leasing, holding or operation of its assets and properties and the conduct of its business as currently conducted makes such qualification or licensing necessary, except, in each case of clauses (i) and (ii), where the failure to be so qualified, licensed or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

(b) Seller has made available to Purchaser complete and correct copies of the organizational documents of each of Seller and each Subsidiary Transferor, each as amended, supplemented or otherwise modified through (and including) the date of this Agreement.

Authority; Execution and Delivery; Enforceability

. Seller and its Subsidiaries have all requisite corporate power and authority and full legal capacity to execute this Agreement and the Ancillary Agreements to which it is, or is specified to be, a party, to fully perform its obligations hereunder or thereunder and to consummate the Acquisition, and the other transactions contemplated hereby and thereby. The execution and delivery by Seller and its Subsidiaries of this Agreement and the Ancillary Agreements to which it is, or is specified to be, a party and the consummation by Seller and the Subsidiary Transferors of the Acquisition and the other transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of Seller and the Subsidiary Transferors, and no other action on the part of Seller or the Subsidiary Transferors is necessary to authorize this Agreement or the Ancillary Agreements or the consummation of the Acquisition or the other transactions contemplated hereby or thereby. Seller has duly executed and delivered this Agreement and, at or prior to the Closing, Seller and its Subsidiaries will have duly executed and delivered each Ancillary Agreement to which it is, or is specified to be, a party, and, assuming the due execution and delivery by Purchaser, this Agreement constitutes Seller’s, and each Ancillary Agreement to which Seller or its Subsidiary is, or is specified to be, a party will, after execution and delivery by Seller or its Subsidiary (as the case may be), constitute Seller’s and such Subsidiary’s legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law.

No Conflicts; Consents and Approvals

. Subject to (x) receipt of the consents, approvals and waivers, and the making of the filings and notifications, in each case listed in Section 3.03 of the Seller Disclosure Letter,  (y) compliance with any requirements of the HSR Act and applicable Review Laws and (z) the filing by Seller of reports under the Exchange Act and as contemplated by the rules of the New York Stock Exchange, none of (1) the execution and delivery by Seller of this Agreement and by Seller and its Subsidiaries of each Ancillary Agreement to which it is or will be a party, (2) the consummation by Seller or each such Subsidiary Transferor, of the transactions contemplated hereby or thereby or (3) the compliance by Seller with any of the provisions hereof or thereof, as the case may be, will:

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(c) conflict with, violate or result in the breach of, any provision of the certificate of incorporation or by-laws or other organizational documents of Seller or any of its Subsidiaries;

(d) require Seller or any of its Subsidiaries to make any material registration, declaration or filing with, or obtain any material license, waiver, permit, authorization, clearance, consent or approval (each, a “Consent”) from any Governmental Authority;

(e) conflict with, violate, or result in the breach by Seller or any of its Subsidiaries of any applicable Law;

(f) conflict with, violate, result in the breach or termination of, or constitute (with or without notice or lapse of time or both) a default under, require Seller or any of its Subsidiaries to obtain any consent, approval or action of, make any filing with or give any notice to any Person under, give rise to any right of termination or acceleration or otherwise adversely modify the terms, under any Material Contract or Real Property Lease to which Seller or any of its Subsidiaries is a party or by which any of the assets or properties of Seller or any of its Subsidiaries is bound; or

(g) result in the creation of any Lien (other than any Permitted Lien or any Lien created by or through Purchaser) upon any of the Transferred Assets, any of the assets of the Transferred Entities (after giving effect to the Pre-Closing Restructuring) or any of the Battery Companies Equity Interests;

except, in the case of each of (b),  (c),  (d) and (e), where such conflict, violation, breach, termination, default, requirement, acceleration, increase in obligations, adverse modification or creation of Lien, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

Equity Interests in the Transferred Entities; Equity Interests in Other Persons

.

(h) Exhibit A sets forth (i) the name and the jurisdiction of organization of each Battery Company and each Battery Company Subsidiary (in each case to the extent designated as such as of the date of this Agreement) and (ii) for each of the Battery Companies and Battery Company Subsidiaries, the percentage of all outstanding equity interests in such Battery Company or Battery Company Subsidiary, as applicable, held by Seller, the applicable Subsidiary Transferor or Battery Company, as the case may be. Except for the Transferred Equity Interests, there are no (x) equity interests in a Transferred Entity issued, reserved for issuance or outstanding and (y) preemptive or similar rights on the part of any holder of any class of securities of any Transferred Entity. One or more of the Transferred Entities are, and will be after giving effect to the Pre-Closing Restructuring, the legal, record and beneficial owner of all the Battery Company Subsidiaries’ Equity Interests free and clear of all Liens, other than Liens arising pursuant to the terms of this Agreement or Liens created by or through Purchaser or any of its Affiliates and Liens related to applicable securities Laws and any Lien arising under the organizational documents of a Battery Company. The Transferred Equity Interests have been and after giving effect to the Pre-Closing Restructuring, will be, duly authorized and validly issued and are fully paid and nonassessable. There are not any bonds, debentures, notes or other indebtedness of any Transferred Entity having the right to vote (or that are convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which holders of the Transferred Equity Interests may vote (“Transferred Entity Voting Debt”). There are no options, calls, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings to which any Transferred Entity is a party or by which any of them is bound (A) obligating any Transferred Entity to issue, deliver or sell, or cause to be issued, delivered or sold, additional units of its equity interests or any security convertible into, or exercisable or exchangeable for, any equity interest in any Transferred Entity or any Transferred Entity Voting Debt, (B) obligating any Transferred Entity to issue, grant, extend or enter into any such option, call, warrant, security, right, unit, commitment, contract, arrangement or undertaking or (C) that give any Person the right to receive any economic or governance benefit or right similar to

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or derived from the economic or governance benefits and rights accruing to holders of the Transferred Equity Interests. All Transferred Equity Interests have been issued in compliance with all applicable Laws and not in violation of any applicable preemptive rights.

(i) Except for equity interests in another Transferred Entity, as of the date of this Agreement, no Transferred Entity owns, directly or indirectly, any equity interests in any other Person.

(j) Seller and/or one or more of its wholly owned Subsidiaries is the direct or indirect legal, record and beneficial owner of the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests. Assuming Purchaser or its applicable designee, as the case may be, has the requisite power and authority to be the lawful owner of the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests, upon (i) delivery to Purchaser or its designees at the Closing of certificates representing the Battery Companies Equity Interests, duly endorsed in blank or accompanied by stock or unit powers duly endorsed in blank in proper form for transfer or other proper instruments of transfer and (ii) Seller’s receipt of the Estimated Purchase Price, direct or indirect legal, record and beneficial ownership of the Battery Companies Equity Interests and the Battery Company Subsidiaries’ Equity Interests will pass to Purchaser or its designees, free and clear of any Liens, other than Liens arising pursuant to the terms of this Agreement or Liens created by or through Purchaser or any of its Affiliates and Liens related to applicable securities Laws and any Lien arising under the organizational documents of a Battery Company.

Article IV

REPRESENTATIONS AND WARRANTIES RELATING TO THE TRANSFERRED
ENTITIES AND THE TRANSFERRED ASSETS

Except as set forth in the Seller Disclosure Letter delivered by Seller to Purchaser simultaneously with the execution hereof, Seller represents and warrants to Purchaser that all of the statements contained in this Article IV are true and correct. Except as set forth in Section 4.07(a),  Section 4.09(d),  Section 4.14(a) and Section 4.16,  Seller makes no representations and warranties in this Article IV to the extent relating to Excluded Assets or Retained Liabilities. For purposes of the representations and warranties of Seller contained herein, disclosure in one Section of the Seller Disclosure Letter of any items, facts or circumstances shall be deemed to be disclosure of such items, facts or circumstances with respect to any other representations or warranties by Seller calling for disclosure of such information, whether or not such disclosure is specifically associated with or purports to respond to one or more of such other representations or warranties, if it is reasonably apparent on the face of the Seller Disclosure Letter that such disclosure is applicable. The inclusion of any information in any Section of the Seller Disclosure Letter or other document delivered by Seller pursuant to this Agreement shall not be deemed to be an admission or evidence of the materiality of such item, nor shall it establish a standard of materiality for any purpose whatsoever.

Organization and Good Standing

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(a) Each of the Transferred Entities is an entity duly organized, validly existing and in good standing (except in any jurisdiction that does not recognize such a concept) under the Laws of the jurisdiction of its organization. Each of the Transferred Entities (i) has all requisite power and authority to own, lease or otherwise hold or operate its assets and properties and to conduct its business as currently conducted, and (ii) is duly qualified or licensed to do business and is in good standing (except in any jurisdiction that does not recognize such a concept) in each jurisdiction in which the nature of its business or the ownership, leasing, holding or operation of its assets and properties and the conduct of its business as currently conducted makes such qualification or licensing necessary, except, in each case of clauses (i) and (ii), where the failure to be so qualified, licensed or in good standing, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

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(b) Seller has made available to Purchaser complete and correct copies of the organizational documents of each Transferred Entity, each as amended, supplemented or otherwise modified through (and including) the date of this Agreement.

Pre-Signing Financial Statements; Unaudited Annual Financial Statements; Audited Financial Statements

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(c) Section 4.02(a) of the Seller Disclosure Letter sets forth complete and correct copies of (i) the unaudited, combined carve-out balance sheets for the portion of the Business conducted in the jurisdictions identified on Section 4.02(a) of the Seller Disclosure Letter (collectively, the “Pre-Signing Identified Jurisdictions”) as of September 30, 2016 and September 30, 2017 and (ii) the unaudited, combined carve-out statements of income of the portion of the Business conducted in the Pre-Signing Identified Jurisdictions for each of the fiscal years ended September 30, 2015, September 30, 2016 and September 30, 2017 (collectively, the “Pre-Signing Financial Statements”). The Pre-Signing Financial Statements (A) have been prepared in accordance with Regulation S-X and U.S. GAAP applied on a consistent basis throughout the periods indicated and on that basis fairly present, in all material respects, the financial position and the results of operations of the portion of the Business conducted in the Pre-Signing Identified Jurisdictions, as of the dates indicated, with the exception that the unaudited financial statements do not include footnotes and remain subject to changes resulting from normal year-end adjustments (it being agreed that the reference to preparation in accordance with Regulation S-X shall not require (x) separate subsidiary financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or “segment reporting” or (y) the inclusion of other information customarily excluded from an offering memorandum involving an offering of high-yield debt securities pursuant to Rule 144A) and (B) have been prepared in all material respects in accordance with the books of account and records of the Business.

(d) Section 6.17 contemplates the delivery of the Unaudited Annual Financial Statements, the Audited Financial Statements and the Additional Financial Statements. On the Closing Date, the Unaudited Annual Financial Statements, the Audited Financial Statements and the Additional Financial Statements will have been (i) prepared in accordance with Regulation S-X and U.S. GAAP applied on a consistent basis throughout the periods indicated and on that basis fairly present, in all material respects, the financial position and the results of operations of the Business, as of the dates indicated, with the exception that unaudited financial statements have been reviewed by the Business’ independent accountants as provided in the procedures specified by the Public Company Accounting Oversight Board in AU 722 and remain subject to changes resulting from normal year-end adjustments (it being agreed that the reference to preparation in accordance with Regulation S-X shall not require (x) separate subsidiary financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or “segment reporting” or (y) the inclusion of other information customarily excluded from an offering memorandum involving an offering of high-yield debt securities pursuant to Rule 144A) and (ii) prepared in all material respects in accordance with the books of account and records of the Business, which books of account and records are true, correct and complete in all material respects.

(e) The accounting controls of the Business, when taken together with the Overhead and Shared Services, have been and are sufficient to provide reasonable assurances that (i) all transactions are executed in accordance with management’s general or specific authorization and (ii) all transactions are recorded as necessary to permit the accurate preparation of financial statements in accordance with U.S. GAAP. To Seller’s Knowledge, as of the date hereof, neither Seller nor any of its Subsidiaries has received any written or oral material complaint, allegation, assertion or claim regarding deficiencies with respect to the Business in the account or auditing practices, procedures, methodologies or methods of Seller or any of its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that Seller or any of its Subsidiaries has engaged in questionable accounting or auditing practices with respect to the Business.

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No Undisclosed Liabilities; Absence of Certain Changes or Events

.

(f) With respect to the portion of the Business conducted in the Pre-Signing Identified Jurisdictions, there are no Liabilities that would be Assumed Liabilities and no Transferred Entity (to the extent applicable to its ownership of the Transferred Assets or its operations or conduct of the portion of the Business conducted in the Pre-Signing Identified Jurisdictions) has any Liability that would be required by U.S. GAAP to be reflected or reserved against on a balance sheet prepared in accordance with U.S. GAAP, except for (i) Liabilities included or reserved against in the Pre-Signing Financial Statements or disclosed in the notes thereto, (ii) Liabilities incurred in the ordinary course of business after September 30, 2017, (iii) future performance Liabilities (but excluding Liabilities arising from any breach or default that has occurred at any time at or prior to the Closing) under Contracts that either are (A) disclosed in the Seller Disclosure Letter or (B) not required to be disclosed in the Seller Disclosure Letter because their size, term or subject matter are not covered by any representations or warranties in Article III or Article IV, (iv) as permitted or contemplated by this Agreement, (v) Liabilities that will be discharged or paid off in full prior to or at the Closing, or (vi) Liabilities that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Material Adverse Effect on the Business.

(g) There are no Liabilities related to the Business that will be Assumed Liabilities and no Transferred Entity (after giving effect to the Pre-Closing Restructuring) will have any Liability that will be required by U.S. GAAP to be reflected or reserved against on a balance sheet prepared in accordance with U.S. GAAP, except for (i) Liabilities included or reserved against in the Audited Financial Statements prepared pursuant to Section 6.17(b) or disclosed in the notes thereto, (ii) Liabilities incurred in the ordinary course of business after September 30, 2017, (iii) future performance Liabilities (but excluding Liabilities arising from any breach or default that has occurred at any time at or prior to the Closing) under Contracts that either are (A) disclosed in the Seller Disclosure Letter or (B) not required to be disclosed in the Seller Disclosure Letter because their size, term or subject matter are not covered by any representations or warranties in Article III or Article IV, (iv) as permitted or contemplated by this Agreement, (v) Liabilities that will be discharged or paid off in full prior to or at the Closing, or (vi) Liabilities that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Material Adverse Effect on the Business.

(h) Since September 30, 2017, there has not been any event, change or circumstance that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on the Business.

(i) Since September 30, 2017, Seller and its Subsidiaries have conducted the Business in the ordinary course consistent with past practice and have not taken or suffered to exist any action that, if taken between the date hereof and the Closing, would constitute a breach of Section 6.01(b)(ii),  (vi),  (vii),  (viii),  (ix),  (xiii),  (xv),  (xx), or, with respect to the foregoing clauses, (xxii).

Absence of Litigation

. As of the date hereof, (a) there are no Actions pending or, to Seller’s Knowledge, threatened, and, to Seller’s Knowledge, there are no investigations or examinations pending or threatened, against the Business or any of its assets or properties or any present or former officer or director of any Transferred Entity (in such person’s capacity as such), other than Actions that, individually would not reasonably be expected to result in an actual or potential Liability to the Business or the Transferred Entities (or to Purchaser or any of its Affiliates following the Closing) of $250,000 or more, (b) there are no Actions or any criminal or regulatory investigations or proceedings pending or, to the Knowledge of Seller, threatened, seeking to prevent, hinder, modify or delay the transactions contemplated hereby, and (c) neither the Business nor any of its properties or assets is subject to any material outstanding Governmental Order.

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Compliance with Laws

.

(j) The Business is, and since September 30, 2013 has been, in compliance with all applicable Laws, except for such noncompliance that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Since September 30, 2013 until the date of this Agreement, except as is not and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, neither Seller nor any of its Subsidiaries, nor, to the Knowledge of Seller, any of their respective Representatives has received (i) any written notice or other written communication from any court, administrative or other Governmental Authority that alleges that the Business is not in compliance with any Law applicable to the Business or the operations, properties or assets of the Business, or (ii) any written notice or other written communication, or, to the Knowledge of Seller, any oral complaint, allegation, assertion or claim on a hotline or whistleblower or similar telephone line or service regarding deficiencies in the compliance practices, procedures, methodologies or methods of the Business or its employees or internal compliance controls, including any complaint, allegation, assertion or claim that the Business or its employees has engaged in illegal practices.

(k) Since September 30, 2013, the Business and all entities that it owns or controls, its owners, directors, officers, and Employees and, to Seller’s Knowledge, agents of the Business, have not offered, paid, promised to pay or authorized the payment of any money or anything else of value, whether directly or through another Person, to (i) any Government Official in order to (A) influence any act or decision of any Government Official, (B) induce such Government Official to use his or her influence with a Governmental Authority or Government Instrumentality, or (C) otherwise secure any improper advantage; (ii) any foreign political party or official thereof or any candidate for foreign political office in order to (A) influence any act or decision of such party, official or candidate in its, his or her official capacity, (B) induce such party, official or candidate to use its, his or her influence with a Governmental Authority or Government Instrumentality, or (C) otherwise secure any improper advantage; or (iii) any other Person in any manner that would violate any Applicable Anti-Bribery Law. Since September 30, 2013, Seller has not, with respect to the Business, conducted or initiated an internal investigation, made a voluntary or other disclosure to a Governmental Authority or Government Instrumentality, or received any notice, citation, report or allegation, including, to Seller’s Knowledge, any oral complaint, allegation, assertion or claim on a hotline or whistleblower or similar telephone line or service, related to alleged violations of Applicable Anti-Bribery Law. Insofar as it relates to the Business, no Government Official, no foreign political party official, no candidate for office, (i) holds a direct ownership or other economic interest in any of Seller’s Subsidiaries or (ii) serves as an officer, director, or employee of Seller or any of its Subsidiaries. Seller and its Subsidiaries maintain policies and procedures reasonably designed to ensure compliance with Applicable Anti-Bribery Law. Seller and its Subsidiaries have maintained complete and accurate books and records, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the Business and all entities engaged in the Business as required by the Foreign Corrupt Practices Act.

(l) With respect to the Business, Seller and its Subsidiaries are, and since September 30, 2013, have been, in compliance in all material respects with applicable Customs and International Trade Laws, and there are no unresolved questions, claims, enquiries, investigations, enforcement proceedings or remediation required by a Governmental Authority concerning any liability of Seller or any of its Subsidiaries with respect to any such Customs and International Trade Laws. Since September 30, 2013, none of Seller or any of its Subsidiaries, nor any officer, director, or employee of Seller or any of its Subsidiaries, nor, to Seller’s Knowledge, any agent acting on behalf of Seller or any of its Subsidiaries, in each case who or which is engaged in the conduct of the Business, (i) has been or is designated on any restricted, designated, or prohibited-party list of any U.S. Governmental Authority or of any country in which the Business is conducted, including the OFAC Specially Designated Nationals and Blocked Persons List, the U.S. Department of Commerce Denied Persons List, the U.S. Department of Commerce Entity List, the U.S. Department of State Debarred List, (ii) to Seller’s Knowledge, has participated in any transaction involving such designated person or entity, or, any country that is the subject of U.S. comprehensive sanctions as of the date of this Agreement (Cuba, Iran, North Korea, Syria and

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the Crimea region of Ukraine) administered by OFAC, (iii) has exported (including deemed exportation) or re-exported, directly or, knowingly, indirectly, any goods, technology or services in violation of any applicable export control or economic sanctions Laws administered by OFAC, the U.S. Department of Commerce or the U.S. Department of State or of any Governmental Authority in any country in which Seller or any of its Subsidiaries conduct business, or (iv) has participated in any export, re-export or transaction connected, to the Knowledge of Seller, with any purpose prohibited by U.S. export control and economic sanctions Laws, the Laws of any applicable Governmental Authority, or any applicable Customs and International Trade Law of any Governmental Authority in any country in which Seller or any of its Subsidiaries conduct business, including support for international terrorism and nuclear, chemical or biological weapons proliferation.

(m) As of the date of this Agreement, Seller and its Subsidiaries have no pending Contracts or contractual obligations concerning the provision of goods, services or technology to Iran or to Syria.

(n) With respect to the Business, Seller and its Subsidiaries are, and since September 30, 2013, have been, in compliance in all material respects with all applicable unclaimed property and escheat Laws, and there are no unresolved questions, claims, audits or examinations concerning any liability of Seller or any of its Subsidiaries with respect to any such Laws.

Governmental Licenses and Permits

. Seller and its Subsidiaries, in the aggregate, hold all Permits that are necessary to own, lease or operate the assets or properties of the Business and for the operation of the Business as currently operated, except where the failure to hold such Permits, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. Except for such matters that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect all such Permits held by Seller and its Subsidiaries are in full force and effect and, to the Knowledge of Seller, there has occurred no material violation of, default under or event, or written notice of any material violation, default under or event, giving to others any right of revocation, non- renewal, adverse modification or cancellation of, with or without notice or lapse of time or both, any such Permit, nor would any such revocation, non-renewal, adverse modification or cancellation result from the consummation of the transactions contemplated hereby or by the Ancillary Agreements.

Sufficiency of Assets

.

(o) The Transferred Assets and the assets, properties and rights of the Transferred Entities (after giving effect to the Pre-Closing Restructuring), together with the rights of Purchaser under this Agreement and the Ancillary Agreements, constitute all assets, properties and rights (other than Intellectual Property, which is addressed in Section 4.14) necessary to operate the Business, in all material respects, in the manner and to the extent conducted as of the date of this Agreement and as of the Closing Date except, in each case, for any Overhead and Shared Services and the Seller Policies (other than with respect to insurance proceeds that Purchaser is entitled to receive under Section 6.06).

(p) The Transferred Entities (after giving effect to the Pre-Closing Restructuring) will hold good and valid title to or have valid leases, licenses or rights to use, in all material respects, all of their assets, properties and rights (other than Intellectual Property, which is addressed in Section 4.14) free and clear of any and all Liens, except for Permitted Liens. Seller or a Subsidiary Transferor holds good and valid title to or has valid leases, licenses or rights to use, in all material respects, all assets, properties and rights of the Business (including, for the avoidance of doubt, the Transferred Equity Interests and the Transferred Assets) (other than those referenced in the preceding sentence and Intellectual Property, which are addressed in Section 4.14) free and clear of all Liens, except for Permitted Liens.

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Real Property

.

(q) Section 4.08(a) of the Seller Disclosure Letter contains a true, correct and complete list, as of the date hereof, (including the date and name of the parties and the street address) of all leases, subleases, licenses, concessions, ground leases and other agreements (written or oral) used or held for use primarily in the operation or conduct of the Business (“Real Property Leases”; and the real property leased, subleased or licensed thereunder, the “Leased Real Property”). Seller has delivered to Purchaser a true and complete copy of each Real Property Lease and any material ancillary agreement to each such Real Property Lease. Subject to the circumstances described in the proviso to the following sentence, each of the Real Property Leases is legal, valid, binding and in full force and effect in all material respects and is enforceable in accordance with its terms against Seller or its Subsidiaries and, to the Knowledge of Seller, each other party thereto. Neither Seller’s nor any of its Subsidiaries’ possession and quiet enjoyment of the Leased Real Property under any Real Property Lease has been disturbed in any material respect, and to Seller’s Knowledge, there are no material disputes with respect to any Real Property Lease. Neither Seller or any of its Subsidiaries nor, to the Knowledge of Seller, any other party to any Real Property Lease is in material breach or material default under any Real Property Lease, and no event or condition has occurred that constitutes or would constitute (with or without notice or lapse of time or both), a material breach or material default on the part of Seller or any of its Subsidiaries, or to Seller’s Knowledge, any other party to such Real Property Lease, nor has Seller or any of its Subsidiaries received any notice of any such material breach or material default, event or condition; provided, that, for purposes of this sentence, it shall not be a material default with respect to any such Real Property Lease if such Real Property Lease is not in effect on the Closing Date because (x) its term has ended pursuant to the terms thereof or (y) the other party under such Real Property Lease has terminated such Real Property Lease for any reason other than a default by Seller or any of its Subsidiaries thereunder. Neither Seller nor any of its Subsidiaries has subleased, licensed or otherwise granted any Person the right to use or occupy any Leased Real Property or any portion thereof. Neither Seller nor any of its Subsidiaries has collaterally assigned or granted any other security interest in such Real Property Lease or any interest therein.

(r) Section 4.08(b) of the Seller Disclosure Letter sets forth the street address of all real property that is both (i) owned by Seller and its Subsidiaries and (ii) used or held for use primarily in the operation or conduct of the Business (Seller’s fee simple interest therein together with all buildings, improvements and structures thereon, the “Owned Real Property” and together with the Leased Real Property, the “Real Property”). Seller or one of its Subsidiaries owns the Owned Real Property in fee simple and has good and marketable title to such Owned Real Property subject to no Liens except for Permitted Liens. There are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein. For purposes of this Section, “used or held for use primarily in the operation or conduct of the Business” does not include real property that is, or real property that has, a building, improvement or structure thereon that is, closed or otherwise no longer actively involved in Business, including real property where Seller’s involvement and obligations are limited to closure or remediation. 

(s) To Seller’s Knowledge, all Improvements owned, leased, licensed or otherwise occupied by Seller or any of its Subsidiaries located on the Real Property are in reasonable working order and repair in all material respects and are and suitable for the purpose for which they are currently used and sufficient for the operation of the Business as currently conducted. Except as would not reasonably be expected to have a Material Adverse Effect, (i) no condemnation, rezoning, dedication or expropriation proceeding is pending or, to Seller’s Knowledge, threatened against the Real Property or the Improvements and (ii) to Seller’s Knowledge, there are no structural deficiencies or latent defects affecting any of the Improvements and, to Seller’s Knowledge, there are no facts or conditions affecting any of the Improvements which would, individually or in the aggregate, interfere in any material respect with the use or occupancy of the Improvements or any portion thereof in the operation of the business as currently conducted.

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(t) Except as would not reasonably be expected to have a Material Adverse Effect, all Improvements owned, leased, licensed or otherwise occupied by Seller or any of its Subsidiaries located on the Real Property are in a state of good working order and repair and are and suitable for the purpose for which they are currently used and sufficient for the operation of the business as currently conducted.

(u) Except for Permitted Liens, there are no actual, pending or, to the Knowledge of Seller, threatened condemnation or eminent domain proceedings, planned public improvements, annexation, special assessments, zoning or subdivision changes, or other adverse claims affecting any Real Property or any part thereof, and neither Seller or any of its Subsidiaries has received any written notice of the intention of any Governmental Authority or other Person to take or use all or any part thereof. Except as set forth on Section 4.08(e) of the Seller Disclosure Letter and except for Permitted Liens, there are no agreements granting any Person other than Seller or any of its Subsidiaries the right to use or occupy any material portion of the Real Property.  

(v) With respect to the Business, neither Seller nor any of its Subsidiaries is party to or bound by any Contract or option to purchase or sell any real property or interest therein.

Seller’s Employee Benefit Plans

. Each Business Benefit Plan (including, for the avoidance of doubt, each International Benefit Plan) or portion of either thereof, that (i) is sponsored or maintained by a Transferred Entity, (ii) Purchaser or any of its Affiliates has agreed to assume pursuant to this Agreement (including any Transferred Pension Plans) or (iii) Purchaser or any of its Affiliates is required to assume under applicable Law in connection with this Agreement is referred to herein as an “Assumed Benefit Plan.” Section 4.09-1 of the Seller Disclosure Letter contains (1) a list, as of the date of this Agreement, of each material Assumed Benefit Plan (other than the Deferred Transfer Employee Benefit Plans), (2) a list, as of the date of this Agreement, of each material Business Benefit Plan and (3) a copy of each standard form of employment agreement or consulting agreement outside the United States that applies to any Employee; provided,  however, that Seller shall only be required to schedule such Employment Agreements for Employees with an annual salary in excess of $250,000. With respect to each Assumed Benefit Plan required to be set forth on Section 4.09-1 of the Seller Disclosure Letter, Seller has made available to Purchaser complete and correct copies of each such Assumed Benefit Plan and all amendments thereto as of the date of this Agreement, (or, with respect to any unwritten plan, a summary of the terms thereof), and, to the extent applicable, (A) any related trust agreement or other funding instrument, (B) the most recent summary plan description for each such Assumed Benefit Plan for which a summary plan description is required by applicable Law, and if a summary plan description is not required, then any written plan description, summary or informational statement relating to such Assumed Benefit Plan that is available to participants of such Assumed Benefit Plan, (C) for the most recent plan year for which such information is available, with respect to each such Assumed Benefit Plan, all audited financial statements, actuarial valuation reports, and material correspondence (including annual filings) with any Governmental Authority, and (D) the most recent determination or opinion letter, if any, issued by the IRS with respect to any such Assumed Benefit Plan intended to be qualified under Section 401(a) of the Code, or with respect to any International Benefit Plan, documentation or information, if any, evidencing qualification for favorable Tax treatment under the applicable Laws of any jurisdiction. With respect to each Business Benefit Plan that is not an Assumed Benefit Plan and that is required to be listed on Section 4.09-1 of the Seller Disclosure Letter, Seller has made available to Purchaser the most recent summary plan description. Except as disclosed in Section 4.09-2 of the Seller Disclosure Letter:

(w) Each Assumed Benefit Plan has been operated in all material respects in compliance with all applicable Laws and each Assumed Benefit Plan has been administered in all material respects in accordance with its terms, except as would not reasonably be expected to result in a material Liability to Purchaser.

(x) There is no Action pending (other than routine qualification or registration determination filings), or to Seller’s Knowledge, threatened, with respect to any Assumed Benefit Plan before any

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Governmental Authority and, to Seller’s Knowledge, no investigation is pending or has been threatened, except for such Actions or investigations that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.

(y) Other than claims by Former Business Employees or Employees or beneficiaries for benefits received in the ordinary course under an Assumed Benefit Plan, neither Seller nor any of its Subsidiaries has, nor to Seller’s Knowledge has any other Person or body that has responsibility for administering an Assumed Benefit Plan, received written or oral notice of any pending or threatened claim under an Assumed Benefit Plan made by any Former Business Employee or Employee or beneficiary who is eligible to participate therein, that would reasonably be expected to be material to the Business, taken as a whole.

(z) No Assumed Benefit Plan, other than the Transferred Pension Plans, is any of the following: (i) a multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA)); (ii) a single employer plan (within the meaning of Section 4001(a)(15) of ERISA) for which Seller or any of its Subsidiaries has or could incur any Liabilities under Section 4063 or 4064 of ERISA or under other applicable Law; (iii) a plan that is subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code; (iv) a defined benefit pension plan; or (v) a “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA), and in each case, none of the Transferred Entities or any of their Subsidiaries had or has any Liabilities in respect of, any multiemployer plan (within the meaning of Section 4001(a)(3) of ERISA).

(aa) Each Assumed Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) that is subject to Section 409A of the Code has been maintained and operated in all material respects in compliance with Section 409A of the Code, except as would not reasonably be expected to result in a material Liability to Purchaser.

(bb) No Assumed Benefit Plan provides for any post-employment health, medical, disability, life insurance or any other welfare benefits for any Former Business Employees, Employees, directors, other service providers or any other individuals except as (i) required by Section 4980B of the Code, Part 6 of Title I of ERISA, similar applicable state Law or other applicable Law, (ii) required by Law No. 9,656/1998 and Normative Resolution No. 279/2011, applicable to Brazil, or (iii) may be required under applicable Laws.

(cc) If Purchaser complies with its obligations to make offers of employment to the Employees who are required to receive offers of employment pursuant to Section 7.01(a) (for purposes of this Section 4.09(g), the “Offered Employees”) in accordance with Section 7.01, neither the execution and delivery of this Agreement or the Ancillary Agreements nor the consummation of the transactions contemplated hereby or thereby shall (i) cause any payment (including severance, change in control or otherwise) to become due to any Offered Employee under any Business Benefit Plan or Employment Agreement (ii) except as otherwise provided in Article VII, require or be construed to require Purchaser or any of its Affiliates to provide any Tax gross-up or severance to any Offered Employee or any such employee’s dependent or beneficiary, (iii) materially increase any benefits otherwise payable under any Business Benefit Plan or Employment Agreement; or (iv) result in the acceleration of time of payment or vesting of any such benefits under any Business Benefit Plan or Employment Agreement except, in the case of the foregoing for any payments or benefits for which Seller or any of its Subsidiaries (other than any Transferred Entities) shall be solely liable; provided that nothing herein shall be intended to address the consequences of any actions taken by Purchaser or its Affiliates in respect of Transferred Employees under any Assumed Benefit Plan following the Closing Date.

(dd) With respect to each Assumed Benefit Plan maintained outside the jurisdiction of the United States, (i) all material employer and employee contributions required by applicable Law or by the terms of such plan have been made, or, if applicable, accrued in accordance with normal accounting practices, and (ii) each such plan required to be registered has been registered and has been maintained in good standing with applicable Governmental Authorities. 

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(ee) No U.K. Transferred Employee has an entitlement to past or future pension benefits other than “money purchase benefits”, as defined in section 181 of the U.K. Pension Schemes Act 1993 (“Money Purchase Benefits”) as a result of employment with the Transferred Entities and the Transferred Entities do not, and have never at any time, sponsored or contributed, and are not, and have never at any time been, required to sponsor or contribute to any U.K. pension arrangement other than the U.K. Pension Scheme.

Employees and Labor Relations

.

(ff) (i) No Employee is represented by a labor union, works council, or similar employee-representative body (collectively, a “Labor Organization”) in connection with his or her employment with the Business, (ii) no Labor Organization is certified or recognized as a representative of any Employee, and neither Seller nor any of its Subsidiaries is a party to, bound by, or has any obligation under any labor agreement, collective bargaining agreement or any similar agreements or arrangements with any Labor Organization pertaining to or which determines the terms or conditions of employment of any Employee (collectively, “Labor Contracts”), (iii) to Seller’s Knowledge, there are no pending or threatened, and neither Seller nor any of its Subsidiaries has experienced since September 30, 2014, representation campaigns, elections or proceedings concerning union representation involving any Employee or activities or efforts of any Labor Organization to organize any Employee, (iv) there are no pending or, to Seller’s Knowledge, threatened, and neither Seller nor any of its Subsidiaries has experienced since September 30, 2014, picketing, strikes, concerted refusal to work overtime, slowdowns, work stoppages, lock-outs, or similar material labor disruptions by or with respect to any Employee or any representatives thereof with respect to the Business, (v) since September 30, 2014, neither Seller nor any of its Subsidiaries has engaged in, admitted committing or been held by any Governmental Authority to have committed, any material unfair labor practice under the National Labor Relations Act, as amended, or any similar local, state or foreign Law, in respect of any Employee or the Business, (vi) there are no material employment-related controversies, claims, unfair labor practice charges, grievances or arbitrations pending or, to Seller’s Knowledge, threatened with respect to the Business, between Seller or any of its Subsidiaries, on the one hand, and any of the Employees, any representative thereof or any Governmental Authority on the other hand, (vii) to Seller’s Knowledge, all Employees are legally authorized to work in the country where they are located, (viii) except as would not result in material Liabilities for the Business, since September 30, 2014, all Employees have been properly classified as exempt or non-exempt under the FLSA and compensated for all time worked in accordance with all applicable Laws, including all applicable laws relating to the payment of minimum wages and overtime pay and (ix) except as would not result in material Liabilities for the Business, all individuals who have provided services to the Business since September 30, 2014 as consultants, independent contractors, leased employees or in a similar non-employee capacity have been properly classified and compensated as non-employees for purposes of all applicable Laws. Seller has provided to Purchaser true, correct and complete copies of each Labor Contract listed in Section 4.10(a) of the Seller Disclosure Letter, except each such Labor Contract that applies on a regional, national, or industry- or sector-wide basis.

(gg) With respect to Employees, Seller and each of its Subsidiaries are and at all times since September 30, 2014 have been in compliance in all material respects with all applicable Laws, Contracts, policies, plans and programs relating to employment and employment practices, including those relating to wages, hours, collective bargaining, unemployment insurance, workers’ compensation, equal employment opportunity, discrimination, harassment and retaliation, affirmative action, family and medical leave, the payment, reporting and withholding of Taxes, immigration, the employment of non-citizen workers in the Business, background checks, plant closings and mass layoffs and occupational safety and health (“Employment Matters”). There are no pending, or, to Seller’s Knowledge, threatened, material Actions or, to Seller’s Knowledge, investigations or examinations, or material outstanding Governmental Orders, relating to Employment Matters with respect to the Business. 

(hh) Neither Seller nor any of its Subsidiaries has, during the 90-day period preceding the date hereof, effectuated a “plant closing” or a “mass lay-off” (as such terms are defined in the WARN Act, in either

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case affecting any site of employment or facility of Seller or any of its Subsidiaries relating to the Business, and no such “plant closing” or “mass lay-off” is currently planned or anticipated. Section 4.10(c) of the Seller Disclosure Letter sets forth, as of the Closing Date, a list of each Former Business Employee who has been terminated involuntarily within the ninety (90) day period prior to the Closing Date, together with such Former Business Employee’s work location.

(ii) To the extent permitted by applicable Law, Seller has made available to Purchaser a correct and complete list of (i) all Employees, specifying each Employee’s employer, position, date of hire, work location, classification by entity as exempt or non-exempt under the FLSA (with respect to U.S. Employees), status as full-time or part-time, status as active or on leave (with respect to U.S. Employees), annual base salary or hourly rate of pay (as applicable), and target incentive compensation respectively, (ii) all individuals who are directly engaged by Seller or one of its Affiliates to provide services to the Business as independent contractors with annual compensation that is reasonably expected to exceed $250,000, specifying as to each such individual the nature of services provided, date of commencement of services, work location, and annual compensation paid to such individual for services provided to the Business, and (iii) a list of each Employee who has requested FMLA leave to begin after the Closing, the amount of any such FMLA leave utilized by each such Employee during the current year, and a description of the leave requested, and Seller shall update this list within thirty (30) days of the Anticipated Closing Date.

(jj) Seller has provided to Purchaser correct and complete copies of each template Employment Agreement used in the Business, and each Employment Agreement related to the Business that provides for an annual base salary or compensation in excess of $250,000. There is no material existing default or breach by Seller or any Subsidiary, as applicable, under any material Employment Agreement. Except as set forth on Section 4.10(e) of the Seller Disclosure Letter, if Purchaser complies with its obligations to make offers of employment to the Offered Employees in accordance with Section 7.01, neither the execution and delivery of this Agreement or the Ancillary Agreements nor the consummation of the transactions contemplated hereby or thereby shall cause any payment (including severance, change in control or otherwise) to become due to any Offered Employee under any Assumed Business Benefit Plan or Employment Agreement. 

Environmental Matters

.

(kk) In connection with the Business, Seller and its Subsidiaries, in the aggregate, hold all material Permits that are required to be obtained by the Business under Environmental Laws (“Environmental Permits”) in connection with the ownership, occupancy or use of the Real Property or the operation of the Business as currently conducted, except where the failure to hold such Permits, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

(ll) The operations of the Business (and each of Seller and its Subsidiaries, in respect of the Business) is and since September 30, 2014 has been in compliance with: (A) all terms and conditions of all Environmental Permits; (B) all Environmental Laws, which compliance includes obtaining, maintaining in good standing and complying with all Environmental Permits necessary to operate the Business; and (C) all Governmental Orders and settlement agreements that bind the Business and were issued, entered, promulgated or approved under Environmental Laws, in each case except for such noncompliance that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

(mm) With respect to the Business, as of the date hereof, there is no Action pending or, to Seller’s knowledge, threatened against Seller or any of its Subsidiaries (A) relating to the Release of Hazardous Material or the presence of any Hazardous Material at any location or under any Environmental Laws or (B) to revoke, modify or terminate any Environmental Permit other than Actions that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Since September 30, 2014 until the date of this Agreement, except as is not and would not, individually or in the aggregate, reasonably be

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expected to have a Material Adverse Effect, no written claim has been received by any of Seller and its Subsidiaries with respect to the Business or the Transferred Assets alleging that any such Person may be in violation of any Environmental Law or any Environmental Permit or may have any liability under any Environmental Law.

(nn) There has been no Release, including any threatened Release, of any Hazardous Material in, on or from any Real Property or at any other location, in each case for which the Business (or Seller or any of its Subsidiaries with respect to the Business) may have liability under Environmental Law, and all underground and above-ground storage tanks operated by the Business (or Seller or any of its Subsidiaries with respect to the Business) located on any Real Property have, since September 30, 2014, been used and maintained in compliance with all Environmental Laws (and, to Seller’s Knowledge, all underground and above-ground storage tanks located on the Real Property are operated by the Business, or by Seller or any of its Subsidiaries with respect to the Business), in each case except for such liability, noncompliance or tanks that, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

(oo) To Seller’s Knowledge, (i) no Real Property or any location where waste generated in connection with the Business was disposed is listed or is proposed for listing on the National Priorities List pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or on any similar local, state or foreign list of sites requiring investigation or Remedial Action; and (ii) with respect to the Business, no Lien has been filed against either the personal or real property of Seller or any of its Subsidiaries under any Environmental Law, in each case except for listings, proposed listings or Liens the subject matter of which, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

(pp) Seller has provided to Purchaser all material environmental audits prepared since September 30, 2014, and to Seller’s Knowledge, all Phase I and II environmental assessments related to the environment, in each case that (i) have been performed with respect to the Transferred Assets and (ii) are in the possession of Seller or reasonably controlled by it.

(qq) Neither Seller nor any of its Subsidiaries with respect to the Business or the Transferred Assets is the subject of any material outstanding written Governmental Order respecting (i) Environmental Laws, (ii) Remedial Action or (iii) any Release or threatened Release of a Hazardous Material.

(rr) As of the date hereof, there are no (i) pending investigations for which Seller has received notification or (ii) to Seller’s Knowledge threatened investigations of the Business, the Transferred Assets or the Transferred Entities, or currently or previously owned, operated or leased property of Seller or any of its Subsidiaries used in the operation of the Business for which Seller has received notification, in each case of (i) and (ii) which would reasonably be expected to lead to the imposition on the Business, the Transferred Entities, Purchaser or any of its Affiliates of any Environmental Costs and Liabilities or Liens under Environmental Law, other than such costs, Liabilities and Liens that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.

Contracts

.

(ss) Section 4.12(a) of the Seller Disclosure Letter contains a list (or, as applicable, contains a cross-reference to another Section of the Seller Disclosure Letter that lists), organized according to each subsection of this Section 4.12(a) which applies to such Contract, of each of the following Transferred Contracts (other than Real Property Leases, Benefit Plans or Employment Agreements) (the contracts listed on Section 4.12(a) of the Seller Disclosure Letter together with contracts of the type described in subclauses (i)-(xiv) entered into after the date hereof and prior to the Closing Date are collectively referred to herein as the “Material Contracts”):

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(i) any Contract that is required by its terms or is currently expected to result in the payment or receipt by the Business of more than $1,000,000 in the current fiscal year or in any one-year period over its remaining term, other than purchase orders entered into in the ordinary course of business consistent with past practice;

(ii) any Contract entered into with (x) an Affiliate, officer or director of Seller or any of its Subsidiaries or of any Transferred Entity or (y) any entity controlled by an officer or director of Seller or any of its Subsidiaries or of any Transferred Entity;

(iii) any Contract that restricts the Business from competing with any Person or engaging in any line of business or activity in any geographic region in which the Business operates, other than any such restrictions that are not and would not reasonably be expected to be material to the Business, taken as a whole;

(iv) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter pursuant to which the Business has granted exclusive rights to such Person;

(v) all Contracts pursuant to which Seller, its Subsidiaries or any Transferred Entity receives or grants a license to material Intellectual Property from or to any other Person (other than licenses and subscriptions for Software obtained from a third party (A) on general commercial terms and that continues to be widely available on such commercial terms), (B) that is not distributed with or incorporated in any Product, (C) that is used for business infrastructure or other internal purposes and (D) was licensed for fixed payments of less than fifty thousand dollars ($50,000) in the aggregate or annual payments of less than fifty thousand dollars ($50,000) per year) (each, an “IP License”); 

(vi) any joint venture, limited liability company or partnership Contract with any third-party involving a sharing of profits, revenue or expenses;

(vii) any Contract evidencing an outstanding loan, advance or investment by the Business to or in any Person, or guarantee by the Business of the obligations of any Person in respect of any Liability of such Person, including letters of credit and surety bonds, other than Contracts that will be terminated pursuant to and in accordance with Section 6.07(b);

(viii) any Contract to make capital expenditures in excess of $1,000,000;

(ix) any Contract providing for the grant to any third-party of any right of first refusal or other similar rights to purchase any of the Business’ assets, properties or businesses;

(x) any Contract entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter and containing any requirement to grant “most favored nation” pricing and terms in favor of such Person;

(xi) any Contract providing for on-going indemnification obligations as of the date of this Agreement by the Business other than in respect of the performance of its obligations under Contracts or other arrangements to which it is a party for goods or services furnished by or to it, except for any such agreement under which the aggregate remaining liability of the Business for indemnification obligations thereunder does not exceed, in the absence of the breach of the Business’ other covenants and agreements under such agreement, $500,000;

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(xii) any Contracts entered into with the customers or suppliers of the Business listed on Section 4.17 and 4.18 of the Seller Disclosure Letter that require the Business to purchase its total requirements of any product or service from such Person that contain “take or pay” provisions or that contain minimum purchase requirements; and

(xiii) any Contract which involves the sale, transfer or acquisition of any business to or by any third party that was entered into since September 30, 2014 and that contains any material continuing obligations of Seller or any of its Subsidiaries.

(tt) Section 4.12(b) of the Seller Disclosure Letter sets forth a complete and correct list, as of the date hereof, of each Contract pursuant to which Seller or any of its Subsidiaries (other than a Transferred Entity) is a party that is not a Transferred Contract but pursuant to which the Business obtains any material services, assets or benefits other than the Overhead and Shared Services, the Seller Policies and those Contracts entered into in connection with, as contemplated by or otherwise related to the Overhead and Shared Services or Business Benefit Plans (collectively, the “Shared Contracts”).

(uu) Except for terminations in accordance with the terms of such Material Contracts after the date hereof, each Material Contract is a legal, valid and binding obligation of Seller or one of its Subsidiaries, enforceable against such Person in accordance with its terms and, to Seller’s Knowledge, each other party thereto, and is in full force and effect subject in all cases to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law, except for such failures to be a legal, valid and binding obligation, enforceable, or in full force and effect that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect. Seller has made available to Purchaser a complete and correct copy of each written Material Contract, in each case, as amended, supplemented or otherwise modified through (and including) the date of this Agreement. 

(vv) As of the date hereof, none of Seller, any Subsidiary of Seller, or to Seller’s Knowledge, any other party to any Material Contract has exercised any termination rights or indicated to Seller either orally or in writing such party’s intent to terminate such Material Contract, in each case other than any termination at the end of such Material Contract’s term in accordance with its terms.

(ww) Neither Seller nor any of its Subsidiaries is in breach or default under any Material Contract and, to the Knowledge of Seller, no other party to any such Material Contract is in breach or default thereunder, and to Seller’s Knowledge no event or condition has occurred and is continuing that constitutes or would constitute (with or without notice or lapse of time or both), a breach or default on the part of Seller or any of its Subsidiaries, or any other party to such Material Contract, nor has Seller or any of its Subsidiaries received any notice of any such breach, default, event or condition, except, in each case, for any such breach, default, event or condition that individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

Brokers or Finders

. No agent, broker, investment banker or other Person is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee from Seller or its Affiliates (including the Transferred Entities) in connection with the transactions contemplated by this Agreement and the Ancillary Agreements, except RBC Capital Markets, whose fees, costs and expenses will be paid by Seller.

Intellectual Property

.

(xx) Except for any Intellectual Property used for Overhead and Shared Services, the Acquired Intellectual Property, includes all Intellectual Property of Seller and its Subsidiaries necessary to operate the Business in the manner and to the extent conducted as of the date of this Agreement and as of the Closing

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Date (subject to (i) Section 6.07 and Section 6.08, and (ii) the terms governing any Intellectual Property otherwise licensed from Seller to Purchaser under the Transaction Documents). Other than the Seller Licensed IP, the Intellectual Property listed on Section 1.01(c) of the Seller Disclosure Letter, the Excluded Assets, all Intellectual Property used, held for use or necessary for use in the Business in the manner and to the extent currently conducted is either (i) (A) owned by a Transferred Entity or (B) a Transferred Asset owned by Seller or its Subsidiaries (“Owned Intellectual Property”), or (ii) is used by a Transferred Entity pursuant to a valid written Contract (“Licensed Intellectual Property”). All Intellectual Property licensed to Purchaser or the Transferred Entities pursuant to Section 6.08(a) (together with any other Intellectual Property licensed from Seller to Purchaser under the Transaction Documents, the “Seller Licensed IP”) is either owned by Seller or its Subsidiaries or is used and available for a grant of license or sublicense to another Person by either Seller or its Subsidiaries pursuant to a valid written Contract. Section 4.14(a) of the Seller Disclosure Letter sets forth a correct and complete list of all Owned Intellectual Property that is registered, issued or the subject of a pending application (collectively, the “Registered Intellectual Property”) showing in each case the registered or other owner, filing date, date of issuance, expiration date, jurisdiction and registration or application number, if any. The Registered Intellectual Property is subsisting and enforceable and, to Seller’s Knowledge, (other than patent applications) is valid. The Registered Intellectual Property is currently in compliance with any and all formal legal requirements necessary to maintain the validity and enforceability thereof. Subject to (i) Section 6.07 and Section 6.08, and (ii) the terms governing any Intellectual Property otherwise licensed from Seller to Purchaser under the Transaction Documents, upon the Closing Date, Purchaser, its designated Affiliates and the Transferred Entities (as applicable) will continue to have the right to use all Acquired Intellectual Property on substantially similar terms and conditions as Seller and its Subsidiaries enjoyed immediately prior to the Closing (except for any restriction binding upon Purchaser or its pre-Closing Affiliates, including their granting of any Lien in any Acquired Intellectual Property).

(yy) Seller and its Subsidiaries together hold all rights, title and interest to the Acquired Intellectual Property free and clear of any and all Liens, except for Permitted Liens.

(zz) The operation of the Business in the manner and to the extent currently conducted by Seller and its Subsidiaries does not infringe, misappropriate or otherwise violate the Intellectual Property of any Person; there are no Actions pending or, to Seller’s Knowledge, threatened in writing, that other than as set forth on Section 4.14(c)(i) of the Seller Disclosure Letter, allege the operation of the Business infringes, misappropriates or is otherwise in violation of any Intellectual Property of any Person or other than as set forth on Section 4.14(c)(ii) of the Seller Disclosure Letter, challenge the validity, enforceability or ownership of or licensed rights under any Acquired Intellectual Property, except in connection with any ordinary course administrative proceeding before or by any Governmental Authority in connection with a pending application. To Seller’s Knowledge, no rights in any Acquired Intellectual Property are being infringed, misappropriated or otherwise violated by any Person.

(aaa) Seller and its Subsidiaries have taken reasonable legal actions to obtain, maintain, enforce or otherwise protect the Acquired Intellectual Property owned by Seller and its Subsidiaries, including making filings and payments of maintenance, renewal or similar fees for registered, issued or pending Acquired Intellectual Property, and have taken reasonable security measures to protect the confidentiality of all trade secrets within the Acquired Intellectual Property. Seller and its Subsidiaries have taken reasonable actions to maintain the validity and enforceability of the Acquired Intellectual Property licensed by Seller and its Subsidiaries to another Person. No current or former Representative of Seller or any of its Subsidiaries has any legal and enforceable right, title, or interest in any Acquired Intellectual Property or has the right to receive or receives a royalty fee or other compensation from Seller or any of its Subsidiaries in connection with the Acquired Intellectual Property.

(bbb) Seller and its Subsidiaries are in material compliance with all applicable Privacy and Information Security Requirements and all applicable contractual obligations regarding the Processing, transmission, storage and protection of Personal Data collected or used in connection with the Business and any

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applicable privacy policies and notices of Seller and its Subsidiaries (e.g., posted privacy policies; notices provided in connection with the Processing of Personal Data; posted policies or notices concerning the security of Information Technology systems, collectively referred to as “Privacy Policies”); and internal policies and standards concerning the treatment of Personal Data and/or the security of Information Technology systems), and, to Seller’s Knowledge, no Person has gained unauthorized access to or made any unauthorized use of any such Personal Data. Each of Seller and its Subsidiaries has implemented, and has required all third party service providers that are a party to any Privacy Contract to implement, adequate security measures in place to protect Personal Data collected or Processed in connection with the Business that is stored in their Information Technology equipment and other computer systems from unlawful use or access by any third party or any other use by a third party that would violate the applicable Privacy Policy or Privacy Contract (as applicable). The execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated thereby do not violate any Privacy and Information Security Requirements, Privacy Contract or any Privacy Policy as it currently exists or as it existed at any time during which any Personal Data was collected or Processed in connection with the Business (to the extent such Privacy Policy still governs the use of such Personal Data). Upon the Closing, Purchaser, its Affiliates or the Transferred Entities will own all such Personal Data and continue to have the right to use such Personal Data on substantially similar terms and conditions as Seller and its Subsidiaries enjoyed immediately prior to the Closing, subject to Purchaser’s compliance with applicable Law and except for any restrictions binding upon Purchaser or its pre-Closing Affiliates (including their granting of any Lien relating thereto). No Actions are pending or, to the Knowledge of Seller, threatened against Seller or its Subsidiaries relating to the collection or Processing of Personal Data in connection with the Business.

(ccc) Seller and its Subsidiaries have not received any, and to the Knowledge of Seller, there has not been any Action (whether formal or informal) against, Seller, its Subsidiaries, or any customers of Seller or its Subsidiaries (in the case of customers, to the extent relating to the Business), by any private party or any regulatory or other governmental body or official, foreign or domestic, regarding the Processing of Personal Data, and no such Action has been threatened in writing against Seller or its Subsidiaries. To the Knowledge of Seller, no facts or circumstances exist that could reasonably be expected to give rise to such an Action insofar as such Action relates to Seller or its Subsidiaries. The Privacy Policies do not require the delivery of any notice to or consent from any Person, or prohibit the transfer of any Personal Data collected and in the possession or control of Seller or its Subsidiaries, in connection with the execution, delivery, or performance of this Agreement or the consummation of any of the transactions contemplated by this Agreement.

(ddd) Each employee and agent of Seller and its Subsidiaries performing work as part of the Business has received training regarding information security that is relevant to each such employee’s or agent’s role and responsibility within the Business. Seller and its Subsidiaries have deployed industry standard encryption or other appropriate security strategies on all portable devices and information systems containing either Personal Data or confidential information of Seller or such Subsidiary.

(eee) Each of Seller and its Subsidiaries is using reasonable efforts in prosecuting all patent applications and all other Intellectual Property applications to register Intellectual Property it has filed which are included in the Acquired Intellectual Property consistent with Seller’s and its Subsidiaries’ past practices. Each of Seller and its Subsidiaries is using reasonable efforts in preparing to file patent and other Intellectual Property applications for all inventions in a manner and within a sufficient time period to avoid statutory disqualification of any potential patent or other Intellectual Property application included in the Acquired Intellectual Property consistent with Seller’s and its Subsidiaries’ past practices but, in any event, only in instances where Seller or one of its Subsidiaries has determined that it wishes to attempt to seek patent protection. To Seller’s Knowledge, all prior art material to the patentability of the claims in any issued or applied-for patents included in the Acquired Intellectual Property is, to the extent required under applicable Law, disclosed or otherwise cited during prosecution in the respective issued patents, applications or associated file histories thereof included in the Acquired Intellectual Property, and, to Seller’s Knowledge, there is no other material prior art with respect thereto that was not disclosed in accordance with applicable Law.

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(fff) Section 4.14(i) of the Seller Disclosure Letter sets forth a true, correct and complete list of all material Software constituting Owned Intellectual Property that is necessary, used or held for use in the operation of the Business (“Material Software”). All Material Software that is owned by a Transferred Entity, included in the Transferred Assets, or services to be provided pursuant to the Transition Services Agreement (A) performs in material conformance with its documentation; (B) is free from any material defect; and (C) does not contain any Malicious Code designed to permit unauthorized access or to disable or otherwise harm any computer, systems or Software, or any Software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than an authorized licensee or owner of such Software. Except for any Information Technology used for Overhead and Shared Services or to be provided pursuant to the Transition Services Agreement, the Information Technology transferred to Purchaser under this Agreement and the Information Technology owned, controlled, licensed, leased, used or subscribed to by the Transferred Entities as of the Closing Date (collectively, the “Transferred Information Technology”), includes all Information Technology necessary to operate the Business in the manner and to the extent currently conducted. The Transferred Information Technology is adequate for, and operates and performs in all material respects as required in connection with, the operation of the Business as currently conducted. Since September 30, 2014, to Seller’s Knowledge, none of the Transferred Entities has had a material unauthorized breach of or access to the Transferred Information Technology.

(ggg) Seller is in compliance with the terms and conditions of all licenses for any FOSS used in or distributed with any Acquired Intellectual Property in all material respects. Seller has not (A) incorporated FOSS into, or combined FOSS with, any Acquired Intellectual Property, (B) distributed FOSS in conjunction with any Acquired Intellectual Property, or (C) used FOSS in such a way that, with respect to this Section 4.14(j), creates, or purports to create obligations for the Transferred Entities with respect to any Acquired Intellectual Property, or grants, or purports to grant, to any third party any rights or immunities under any Acquired Intellectual Property (including but not limited to using any FOSS that requires, as a condition of use, modification and/or distribution of such FOSS, such that other Software incorporated into, derived from or distributed with such FOSS must be (1) disclosed or distributed in source code form, (2) be licensed for the purpose of making derivative works or (3) be redistributable at no charge). Section 4.14(i) of the Seller Disclosure Letter sets forth a true, correct and complete list of all Software constituting FOSS incorporated into, combined with, linked to, used with, or distributed with any of the Products, and the corresponding FOSS license applicable thereto.

(hhh) The source code for all Material Software is and has been maintained in confidence. Consummation of the transactions contemplated hereby shall not trigger any requirement or obligation for Seller or any of its Subsidiaries to release source code for Material Software from a source code escrow to a third party or otherwise provide or license such source code to a third party.

(iii) All Transferred Information Technology, and Seller’s and the Transferred Subsidiaries’ related procedures and practices, are designed, implemented, operated and maintained in accordance with customary industry standards and practices for entities operating businesses similar to the Business, including with the respect to redundancy, reliability, scalability and security. Without limiting the foregoing, (a) Seller and its Subsidiaries have taken reasonable steps and implemented reasonable procedures to ensure that its Information Technology is free from Malicious Code, and (b) Seller and its Subsidiaries have in effect industry standard disaster recovery plans, procedures and facilities for its business and has taken all reasonable steps to safeguard the security and the integrity of its Information Technology, in each case including in accordance with all applicable Privacy and Information Security Requirements and Privacy Policies. There has been no failure or other material substandard performance of any Information Technology of Seller and its Subsidiaries which has caused any material disruption to the Business. Neither Seller nor any of the Transferred Subsidiaries, nor any Transferred Information Technology, have suffered any material data loss, business interruption, or other harm as a result of, any Malicious Code intentionally designed to permit (i) unauthorized access to a computer or network, (ii) unauthorized disablement or erasure of Software, hardware or data, or (iii) any other similar type of

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unauthorized activities. To Seller’s Knowledge, there have been no unauthorized intrusions or breaches of the security with respect to any of the Transferred Information Technology. Seller and its Subsidiaries have implemented any and all security patches or upgrades that are generally available for the Transferred Information Technology. 

(jjj) Upon the Closing, Purchaser, its designated Affiliates and the Transferred Entities (as applicable) will continue to have the right to use all VARTA Trademarks on substantially similar terms and conditions as the Business enjoyed immediately prior to the Closing. “VARTA Trademarks” as used in preceding sentence shall mean, any and all Trademarks to which Seller and its Affiliates have a right to use pursuant to the Trademark and Domain Names Protection and Delimitation Agreement dated October 1, 2002 and any all supplements, amendments, consents, modifications, and other changes thereto.

Taxes

.

(kkk) (i) All material Tax Returns required to be filed by the Transferred Entities, and with respect to the Transferred Assets, have been filed in a timely manner (taking into account all extensions of due dates), (ii) such Tax Returns are correct and complete in all material respects, and (iii) all material Taxes due and owing by any Transferred Entity or with respect to any of the Transferred Assets (whether or not shown on such Tax Returns) have been paid when due.

(lll) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection or assessment or reassessment of, material Taxes due from, the Transferred Entities and no request for any such waiver or extension is currently pending, other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course.

(mmm) (i) There is no ongoing dispute with any Governmental Authority concerning any material amount of Taxes of (A) Seller or any Subsidiary Transferor that may result in Liens for Taxes upon any of the Transferred Assets or Transferred Equity Interests or (B) a Transferred Entity, (ii) no audit or other proceeding by any Governmental Authority is pending or threatened with respect to any material Taxes due from or with respect to the Transferred Entities or the Transferred Assets, and (iii) no claim has been made since September 30, 2012 by any Governmental Authority in a jurisdiction where the Transferred Entities do not file Tax Returns that they are or may be subject to taxation by that jurisdiction.

(nnn) There are no material Liens for Taxes upon or pending against any assets of the Transferred Entities or any of the Transferred Assets other than Permitted Liens.

(ooo) (i) The Transferred Entities have no liability for any material Tax of any Person other than the Transferred Entities, as transferee or successor or by Contract (other than contracts that do not primarily relate to Taxes) and (ii) none of the Transferred Entities is a party to any Tax sharing, allocation or indemnification agreement other than agreements solely among the Transferred Entities (a “Tax Sharing Agreement”).

(ppp) None of the Transferred Entities has participated in any listed transaction within the meaning of Treasury Regulations Section 1.6011-4(b) (or any similar provision of state, local or foreign Tax Law).

(qqq) No Transferred Entity (i) is or has been a member of any affiliated group that filed an affiliated, consolidated, combined or unitary Tax Return (other than a group of which Seller or any of its Affiliates is the common parent), or (ii) has any liability for the Taxes of another Person under Treasury Regulation Section 1.1502-6 (or any comparable provision of applicable Law), other than such liability for the group of which Seller or any of its Affiliates is the common parent.

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(rrr) Section 4.15(h) of the Seller Disclosure Letter sets forth the jurisdiction of incorporation or organization, and the U.S. federal income tax classification (e.g., corporation, partnership, disregarded entity), of each Transferred Entity as of the date hereof. 

(sss) The Transferred Entities have each deducted and withheld (or caused to be deducted and withheld) all material Taxes required to have been deducted and withheld in connection with amounts paid or owing to any employee, independent contractor, creditor, equity holder or other similar third party and timely remitted such amounts to the applicable Governmental Authority.

(ttt) None of the Transferred Entities has constituted a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of shares intended to qualify for tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.

(uuu) None of the Transferred Entities will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) that begins after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or before the Closing Date, (ii) installment sale or open transaction disposition occurring on or before the Closing Date, (iii) intercompany transaction occurring on or prior to the Closing Date or excess loss account established on or prior to the Closing Date, (iv) prepaid amount received on or prior to the Closing Date, (v) ”closing agreement” within the meaning of Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Tax Law) executed on or before the Closing Date or (vi) election pursuant to Section 108(i) of the Code (or any similar provision of state, local or foreign Tax Law).

(vvv) No Transferred Entity that is a “controlled foreign corporation” within the meaning of Section 957 of the Code holds, or is treated as holding, assets that constitute United States property within the meaning of Section 956 of the Code.

(www) To the Knowledge of Seller, there are no Tax holidays or other incentives granted by a Governmental Authority to any Transferred Entity that would terminate or be reduced as a result of transactions contemplated by this Agreement.

(xxx) No Transferred Entity has applied for or obtained any binding German tax ruling (verbindliche Auskunft) or similar binding clearance from any German Governmental Authority with respect to Taxes.

(yyy) None of the Transferred Entities are subject to any holding periods stipulated under German Tax Law, in particular resulting from reorganizations under the German Reorganization Tax Act (Umwandlungssteuergesetz).

(zzz) To the Knowledge of Seller, no Transferred Entity has made extraordinary depreciations, amortizations or impairments on assets pursuant to German Tax Law which could be reversed in Post-Closing Tax Periods.

(aaaa) Section 4.09 and this Section 4.15 contain the sole and exclusive representations and warranties relating to the Transferred Entities, Transferred Assets and the Business with respect to Taxes. 

Insurance

(i) .  Section 4.16(a) of the Seller Disclosure Letter contains a correct and complete list, as of the date hereof, of all insurance policies owned by the Transferred Entities (the “Transferred Policies”). Section 4.16(b) of the Seller Disclosure Letter contains a correct and complete list, as of the date hereof, of all insurance policies owned by Seller and its Subsidiaries (other than the Transferred Entities) relating

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to the Business (the “Seller Policies” and together with the Transferred Policies, the “Insurance Policies”). Correct and complete copies of the Insurance Policies have been made available to Purchaser. With respect to each Transferred Policy, as of the date of this Agreement, (a) such Insurance Policy is in full force and effect, (b) all premiums due and payable have been timely paid, (c) none of Seller, its Subsidiaries or the Transferred Entities, as applicable, has reached or exceeded its policy limits for such Insurance Policy, (d) each of Seller, its Subsidiaries and the Transferred Entities, as applicable, is in compliance in all material respects with the terms and conditions of the Insurance Policies, and (e) no written notice of cancellation or termination has been received with respect to any such Insurance Policy (other than in connection with normal renewals or replacements of such Transferred Policy), except for such cancellations or terminations which would not reasonably be expected to be material to the Business, taken as a whole.

Customer Relationships

.  Section 4.17 of the Seller Disclosure Letter lists the names of the twenty (20) largest customers of the Business measured by dollar value for the twelve (12) months ended September 30, 2017, and sets forth opposite the name of each customer the approximate total amount of sales by the Business to such customer during such period. As of the date hereof, no such customer has (a) threatened in writing to terminate or adversely modify in any material respect, or to the Knowledge of Seller, has otherwise threatened to cancel, terminate or adversely modify in any material respect, the relationship of such customer with the Business, or (b) threatened in writing to decrease materially or, to the Knowledge of Seller, has otherwise threatened to decrease materially its purchases from the Business.

Supplier Relationships

.  Section 4.18 of the Seller Disclosure Letter lists, for the twelve (12) months ended September 30, 2017, the names of the twenty (20) largest suppliers of goods and the twenty (20) largest suppliers of services to the Business measured by dollar value and sets forth opposite the name of each supplier the approximate total amount of purchases by the Business from such supplier during such period. As of the date hereof, no such supplier has (a) threatened in writing to terminate or adversely modify in any material respect, or to the Knowledge of Seller, has otherwise threatened to cancel, terminate or adversely modify in any material respect, the relationship of such supplier with the Business, or (b) threatened in writing to decrease materially or, to the Knowledge of Seller, has otherwise threatened to decrease materially its services or supplies to the Business.

Inventory

. (a) All items of Inventory acquired or manufactured by the Business have been acquired or manufactured, sold and maintained in the ordinary course of business consistent with past practice, and (b) in the case of Inventory held by the Business as of the Closing Date, such Inventory will be merchantable or saleable, except for such failures to be merchantable or saleable which in the aggregate are not in excess of Seller’s inventory reserve in respect of the Business included in the most recent financial statements of the Business as of such date.

Products

.

(bbbb) Except as is not and would not reasonably be expected to be material to the Business, taken as a whole, as of the date of this Agreement, the Business has no outstanding product warranty claims with respect to its products and no outstanding product warranty obligations outside of any customer Contracts or end-user warranty protections entered into in the ordinary course of business consistent with past practice, in each case other than those arising by operation of Law or in the ordinary course of business consistent with past practice. The warranty expense of the Business has not exceeded $3,000,000 in any of the last three (3) fiscal years prior to the date of this Agreement.

(cccc) Except as is not and would not reasonably be expected to be material to the Business, taken as a whole, as of the date of this Agreement, no Person has asserted or threatened in writing, or to the Knowledge of Seller, otherwise threatened to assert, any Action with respect to product safety, defect, negligence or liability with respect to any Products.

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(dddd) Each of the Products are, and since September 30, 2014 have been, in material compliance with all applicable Laws and contractual specifications applicable to such Products, except where the failure to be so in compliance, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.

(eeee) Since September 30, 2014,  (i) there have been no material defects in the design, construction, manufacturing, production, packaging, or advertising of any of the Products, (ii) the Products have been designed, manufactured and distributed, in each case in compliance in all material respects with applicable Laws, and there are no statements, citations or decisions by any Governmental Authority received by or in the possession of Seller or any of its Subsidiaries that indicate that any Product is unsafe or fails to meet any standards promulgated by such Governmental Authority or any other body and (iii) neither Seller nor any Subsidiary Transferor has recalled any Product (whether voluntary or required by applicable Laws), issued any post-sale warning with respect to any Product, or, prior to the date hereof, received notice of any defect in any Product, any claim of personal injury, death or property or economic damages in connection with any Product, or any claim for injunctive relief in connection with any Product, except for any notice or claim that would not reasonably be expected to be material to the Business.

Affiliate Transactions

. Except as set forth in Section 4.21 of the Seller Disclosure Letter, as of the date of this Agreement, no current or, to the Knowledge of Seller, former director, officer, Employee or Affiliate of Seller or any of its Subsidiaries (a) owns any property, assets, interests and rights, tangible or intangible (including any Intellectual Property), that is material to the conduct of the business of the Business (other than property, assets, interests and rights to be included in the Transferred Assets), (b) has, in the case of a director, officer or an Affiliate of Seller or any of its Subsidiaries, filed or otherwise has any Action against the Business, (c) owes money to, or is owed money by, the Business, (d) is a controlling Affiliate of any customer listed on Section 4.17 of the Seller Disclosure Letter or supplier listed on Section 4.18 of the Seller Disclosure Letter or (e) is a party to or the beneficiary of any Contract with the Business, except in each case for compensation and benefits payable under a Business Benefit Plan or Employment Agreement to officers, Employees or directors in their capacity as such.

Exclusivity of Representations and Warranties

. Except for the representations and warranties contained in Article V, in the Ancillary Agreements and in certificates delivered pursuant to Section 2.06(b)(iv), Seller acknowledges that neither Purchaser nor any other Person (i) is making or has made any representation or warranty (whether express or implied) on behalf of Purchaser, any of its Affiliates or their respective businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, or any of their respective Representatives in connection with the this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby and (ii) except as expressly otherwise provided herein or in the Transaction Documents, will have or be subject to any liability or indemnification obligation to Seller resulting from the delivery, dissemination or any other distribution to Seller or any of its Representatives, or the use by Seller or any of its Representatives, of any materials, documentation estimates, projections, forecasts, forward-looking information, business plans or other oral or other information during the course of due diligence or any auction or negotiation process (including, where applicable, information memoranda, data room materials, projections, estimates, management presentations, budgets and financial data and reports).

Article V

REPRESENTATIONS AND WARRANTIES OF PURCHASER

Purchaser hereby represents and warrants to Seller:

Organization and Good Standing

. Each of Purchaser and those of Purchaser’s Affiliates that are or will be parties to the Ancillary Agreements (a) is an entity duly organized, validly existing

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and in good standing (except in any jurisdiction that does not recognize such a concept) under the Laws of the jurisdiction of its organization, (b) has all requisite power and authority to own, lease or otherwise hold or operate its assets and properties and to conduct its business as currently conducted, and (c) is duly qualified or licensed to do business and is in good standing (except in any jurisdiction that does not recognize such a concept) in each jurisdiction in which the nature of its business or the ownership, leasing, holding or operation of its assets and properties and the conduct of its business as currently conducted makes such qualification or licensing necessary, except, in the case of clauses (b) and (c), where the failure to be so qualified, licensed or in good standing, individually or in the aggregate, has not and would not reasonably be expected to materially impair the ability of Purchaser and each of its Affiliates party to the Ancillary Agreements from performing their respective obligations under this Agreement and the Ancillary Agreements, as applicable, or prevent, hinder or materially delay the consummation of any of the transactions contemplated hereby or thereby.

Authority

. Purchaser has all requisite corporate power and authority and full legal capacity to execute and deliver this Agreement and the Ancillary Agreements to which it is, or is specified to be, a party, to fully perform its obligations hereunder and thereunder and to consummate the Acquisition and the other transactions contemplated hereby and thereby. The execution and delivery by Purchaser of this Agreement and the Ancillary Agreements to which it is, or is specified to be, a party and the consummation by Purchaser of the Acquisition and the other transactions contemplated hereby and thereby by each of Purchaser and, if applicable in the case of the Ancillary Agreements, each of Purchaser’s Affiliates that is, or is specified to be, a party thereto, of this Agreement and each Ancillary Agreement to which it is, or is specified to be, a signatory have been duly authorized by all necessary action on the part of Purchaser and, if applicable in the case of the Ancillary Agreements, each such applicable Affiliate, and no other action on the part of Purchaser or any of Purchaser’s Affiliates is necessary to authorize this Agreement or the Ancillary Agreements or the consummation of the Acquisition and the other transactions contemplated hereby and thereby. Purchaser has duly executed and delivered this Agreement and, at or prior to the Closing, Purchaser will have duly executed and delivered each Ancillary Agreement to which it is, or is specified to be, a party, and, assuming the due execution and delivery by Seller, this Agreement constitutes Purchaser’s, and each Ancillary Agreement to which Purchaser is, or is specified to be, a party, will, after execution and delivery by Purchaser, constitute Purchaser’s legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law.

No Conflict; Consents and Approvals

. Subject to (x) compliance with any requirements of the HSR Act and applicable Review Laws and (y) the filing by Purchaser of reports under the Exchange Act and as contemplated by the rules of the New York Stock Exchange, none of (1) the execution and delivery by Purchaser of this Agreement and each Ancillary Agreement to which it is or will be a party, (2) the consummation by Purchaser and its Affiliates of the transactions contemplated hereby or thereby or (3) the compliance by Purchaser with any of the provisions hereof or thereof, as the case may be, will:

(a) conflict with, violate or result in any violation or breach of, any provision of the certificate of incorporation or by-laws or other organizational documents of Purchaser or its Affiliates;

(b) require Purchaser or any of its Affiliates to make any material registration, declaration or filing with, or obtain any material Consent from, any Governmental Authority;

(c) conflict with, violate, or result in the breach by Purchaser or any of its Affiliates of any applicable Law;