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)



 

SB/RH HOLDINGS, LLC 

(Exact Name of Registrant as Specified in its Charter)





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:



 

 

 

 



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).





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.







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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





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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.







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ACQUISITION AGREEMENT



dated as of January 15, 2018

between

SPECTRUM BRANDS HOLDINGS, INC.

and

ENERGIZER HOLDINGS, INC.





















 

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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

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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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 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:

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).

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“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:

“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:

“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:

“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:

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“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:

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

.

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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.

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.

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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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

.

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

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No Undisclosed Liabilities; Absence of Certain Changes or Events

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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

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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

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Real Property

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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:

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Employees and Labor Relations

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Environmental Matters

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Contracts

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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

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Taxes

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Insurance 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

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