UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN
PRIVATE ISSUER
PURSUANT TO RULE
13a-16 OR 15d-16 UNDER THE
SECURITIES EXCHANGE
ACT OF 1934
For the month of July 2024
Commission File Number 001-36906
INTERNATIONAL GAME TECHNOLOGY PLC
(Translation of registrant’s name into English)
10 Finsbury Square, Third Floor
London, EC2A 1AF
United Kingdom
(Address of principal executive offices)
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Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F: |
Form 20-F |
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Form 40-F |
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ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
On July 26, 2024, International Game
Technology PLC (NYSE:IGT), a public limited company incorporated under the laws of England and Wales (the “Company” or “IGT”)
entered into definitive agreements with Everi Holdings Inc., a Delaware corporation (NYSE: EVRI) (“Everi”), Ignite Rotate
LLC, a Delaware limited liability company and a direct wholly owned subsidiary of the Company (“Spinco”), Voyager Parent,
LLC, a Delaware limited liability company (“Buyer”), and Voyager Merger Sub, Inc., a Delaware corporation and a direct
wholly owned subsidiary of Buyer (“Buyer Sub”), with respect to certain transactions (the “Proposed Transaction”)
pursuant to which, among other things, and subject to the terms and conditions of those definitive agreements discussed below, (i) the
Company will transfer (or cause to be transferred) to Spinco substantially all of the assets, and Spinco will assume substantially all
of the liabilities, of the Company’s Gaming and Digital business (the “Spinco Business”) (the “Separation”),
(ii) immediately following the completion of the Separation, prior to, but substantially concurrently with, the Merger Effective
Time (as defined below), Buyer will purchase and acquire from the Company, and the Company will sell to Buyer, all of the outstanding
units of Spinco (the “Spinco Units”) for a purchase price of $4,050,000,000, subject to adjustment in accordance with the
terms and conditions set forth in the Separation Agreement (as defined below), and (iii) at the Merger Effective Time, Buyer Sub
will be merged with and into Everi (the “Merger”), with Everi surviving the Merger as a direct wholly owned subsidiary of
Buyer, and all of the issued and outstanding shares of Everi common stock will be converted into the right to receive $14.25 in cash per
share of Everi common stock, paid in accordance with the terms and conditions set forth in the Merger Agreement (as defined below). Buyer
is a newly formed holding company owned by funds managed by affiliates of Apollo Global Management, Inc. (“Apollo”).
De Agostini S.p.A., a società per azioni
organized under the laws of Italy, the majority shareholder of the Company (“De Agostini”), has entered into a letter agreement
with an affiliate of Buyer, pursuant to which De Agostini will make a minority investment in an indirect parent of Buyer that will own
all of the outstanding Spinco Units following the Equity Sale (as defined below) and Everi following the Merger.
The definitive agreements (the “Proposed
Transaction Agreements”) entered into by the Company and/or Spinco in connection with the Proposed Transaction include: (i) a
Separation and Sale Agreement by and among the Company, Spinco, Everi and Buyer (the “Separation Agreement”); (ii) an
Agreement and Plan of Merger by and among the Company, Spinco, Everi, Buyer and Buyer Sub (the “Merger Agreement”); (iii) an
Employee Matters Agreement by and among the Company, Spinco, Everi and Buyer (the “Employee Matters Agreement”); (iv) a
Real Estate Matters Agreement by and among the Company, Spinco, Everi and Buyer (the “Real Estate Matters Agreement”); (v) a
Tax Matters Agreement by and among the Company, Spinco, Everi and Buyer (the “Tax Matters Agreement”); and (vi) a Support
Agreement by and among the Company, Spinco, Everi, Buyer and De Agostini, each dated as of July 26, 2024.
Concurrently
and effective upon the execution and delivery of the Proposed Transaction Agreements, the Company, Everi and De Agostini are entering
into a Mutual Termination Agreement, dated as of July 26, 2024, pursuant to which the Company, Everi and De Agostini have agreed
to mutually terminate (a) that certain Agreement and Plan of Merger, dated as of February 28, 2024, by and among the Company,
Spinco, Everi and Ember Sub LLC, a Delaware limited liability company and a direct wholly owned subsidiary of Everi (“Everi Sub”),
(b) that certain Separation and Distribution Agreement, dated as of February 28, 2024, by and among the Company, Spinco, International
Game Technology, a Nevada corporation and a direct wholly owned subsidiary of the Company (“Gaming Holdco”), and Everi, (c) that
certain Employee Matters Agreement, dated as of February 28, 2024, by and among the Company, Spinco, Gaming Holdco and Everi, (d) that
certain Tax Matters Agreement, dated as of February 28, 2024, by and among the Company, Spinco, Gaming Holdco and Everi, (e) that
certain Real Estate Matters Agreement, dated as of February 28, 2024, by and among the Company, Spinco, Gaming Holdco and Everi and
(f) that certain Voting and Support Agreement, dated as of February 28, 2024, by and among the Company, Spinco, Everi and De
Agostini. There were no termination or other penalties surrounding the termination of such agreements described in this paragraph.
Additionally, the commitments under that certain
Commitment Letter, dated as of February 28, 2024 and amended and restated as of March 29, 2024, among the Commitment Parties
(as defined therein), Everi and Spinco were terminated by Everi and Spinco on July 26, 2024 pursuant to the terms of the Commitment
Letter.
Separation and Sale Agreement
The Separation Agreement sets forth the terms
and conditions regarding, among other things, the Separation and the sale of all of the Spinco Units from the Company to Buyer (the “Equity
Sale”). The terms and conditions include, among other things, the restructuring and the transfer of assets and assumption of liabilities
by the Company and Spinco and their respective subsidiaries in accordance with the separation plan as provided in the Separation Agreement
to result in Spinco owning substantially all of the assets and assuming substantially all of the liabilities of the Spinco Business, and
the Company owning substantially all of the assets and assuming substantially all of the liabilities of the Company’s business other
than the Spinco Business. The parties will procure satisfaction of Spinco and the Company’s existing credit support instrument release
conditions at the closing of the Equity Sale, as applicable, and may be required to provide further cash or collateral to existing credit
support beneficiaries.
Upon the consummation of the Equity Sale and subject
to the conditions set forth in the Separation Agreement and Merger Agreement, Buyer will pay the Company a purchase price equal to $4,050,000,000
in cash, subject to certain customary adjustments for pre-Closing estimates of cash, debt, working capital and other adjustments with
respect to potential assets and liabilities not transferring from the Company to the Spinco Business (the “Purchase Price”),
in each case, as more fully set forth in the Separation Agreement.
The Separation Agreement also governs certain
aspects of the relationship between Spinco, Everi and Buyer after the closing of the Equity Sale and the Merger (the “Closing”),
including, among other things, provisions with respect to the release of claims, indemnification, restrictive covenants, guarantees, insurance,
access to information, record retention and obligations of the Company with respect to completing certain stand-up activities to the extent
not completed prior to the Closing in accordance with the Separation Agreement. Both the Company and Buyer will be subject to two years
of mutual non-solicitation obligations, and the Company will be subject to a four-year non-compete in favor of Buyer. The parties will
have ongoing indemnification obligations under the Separation Agreement from and after the Closing with respect to the liabilities related
to Spinco assumed by Buyer through Spinco, and the liabilities related to the Company agreed to be retained by the Company, as applicable.
The Separation Agreement provides that, following the effectiveness of the Closing, Buyer and the Company will guarantee the obligations
of their respective subsidiaries under the transaction documents which pursuant to their terms arise at or after the Closing with respect
to obligations to be performed after the effectiveness of the Equity Sale.
The foregoing description of the Separation Agreement
does not purport to be complete and is qualified in its entirety by reference to the full text of the Separation Agreement, which is filed
as Exhibit 10.1 to this Form 6-K and is incorporated herein by reference.
Merger Agreement
As noted above, the Merger Agreement provides
for, among other things, the merger of Buyer Sub with and into Everi, with Everi as the surviving corporation. As a result of the Merger,
Everi would become a direct wholly owned subsidiary of Buyer. In addition, as noted above, prior to the Merger Effective Time, it is contemplated
that the Company will effect the Separation and the sale of all of the outstanding Spinco Units pursuant to the Separation Agreement as
further described above.
In the Merger, each share of Everi common stock
that is issued and outstanding immediately prior to the effective time of the Merger (the “Merger Effective Time”) will be
cancelled, cease to exist and be converted automatically into the right to receive $14.25 in cash per share of Everi common stock, subject
to adjustment in the event of any stock or interest split, division or subdivision of shares, stock dividend, reverse stock split, combination
of shares, reclassification, recapitalization or other similar transaction with respect to Everi common stock.
Consummation
of the Merger is subject to various and customary conditions, including, among other things: the accuracy of representations and warranties
and compliance with covenants, subject to certain customary exceptions; approval by the stockholders
of Everi; the consummation of the Separation; and the receipt of regulatory approvals. The Merger
Agreement provides that the parties will use their reasonable best efforts and take other actions to obtain the specified regulatory approvals
for the Proposed Transaction, subject to certain exceptions as set forth in the Merger Agreement. Assuming the satisfaction of the conditions
set forth in the Merger Agreement, the Company expects the Merger to close by the end of the third quarter of 2025.
The
Company, Spinco and Everi each make certain customary representations, warranties and covenants, as applicable, in the Merger Agreement,
including covenants with respect to the conduct of the Spinco Business and the business of Everi and its subsidiaries, as applicable,
during the period between signing and the earlier of the termination of the Merger Agreement and the Closing. Each of the Company and
Everi also covenants, among other things, that neither party nor any of its subsidiaries will (i) solicit
certain alternative transactions or (ii) enter into discussions concerning, or provide information or data in connection with, such
alternative transactions (except under limited circumstances described in the Merger Agreement, including where such party’s board
of directors has received an unsolicited proposal that could reasonably be expected to lead to a superior proposal and failure to take
such action would be inconsistent with the directors’ fiduciary duties under applicable law, subject to certain notice conditions);
provided that the Company may solicit or enter into discussions concerning, or provide information or data in connection with, transactions
with respect to the business of the Company excluding the Spinco Business. The Merger Agreement also provides for Everi’s board
of directors to recommend that its stockholders vote in favor of the Proposed Transaction, subject to certain exceptions described in
the Merger Agreement.
The Merger Agreement contains specified termination
rights for the Company, Everi and Buyer, including, among other things, that the Company or Buyer may terminate the Merger Agreement if
Everi’s board adopts, approves, endorses, declares advisable or recommends to its stockholders an acquisition proposal other than
the contemplated transaction, and under other circumstances as set forth in the Merger Agreement. The Merger Agreement may also be terminated
by the Company, Everi or Buyer, subject to specified limitations, if the Closing is not consummated by July 26, 2025 (the “Outside
Date”), provided that the Outside Date may be extended under certain circumstances as specified in the Merger Agreement, including
with respect to the timing of regulatory approvals and the Marketing Period (as defined in the Merger Agreement). The Merger Agreement
further provides that in connection with a termination of the Merger Agreement under specified circumstances, each of the Company, Everi
and Buyer may be obligated to pay a termination fee and/or reimburse the other parties for certain specified costs.
The foregoing description of the Merger Agreement
does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed
as Exhibit 2.1 to this Form 6-K and is incorporated herein by reference.
Employee Matters Agreement
The Employee
Matters Agreement, among other things, allocates among the parties the pre-and post-Closing liabilities in respect of the current and
former employees of the Spinco Business (including liabilities in respect of employee compensation and benefit plans covering such employees).
Subject to various exceptions, Spinco will generally assume liabilities in respect of the current and former employees of the Spinco Business
and any assets dedicated thereto, and the Company will generally retain employee liabilities and assets related to the Company.
The foregoing
description of the Employee Matters Agreement does not purport to be complete and is qualified in its entirety by reference to the full
text of the Employee Matters Agreement, which is filed as Exhibit 10.2 to this Form 6-K and is incorporated herein by reference.
Real Estate Matters Agreement
The Real
Estate Matters Agreement governs the allocation and transfer of real estate between the Company and Spinco. Pursuant to the Real Estate
Matters Agreement, the Company may transfer to, or share with, Spinco certain leased property associated with the Spinco Business. The
Real Estate Matters Agreement describes the manner in which the Company will conduct an internal feasibility review to determine the suitability
of certain leased property for a sublease or license to Spinco. Following such review, the Company and Spinco may agree to (i) enter
into a sublease or license of a portion of a leased property, or (ii) secure an alternative location and/or remote work arrangement
for employees and operations which would otherwise have continued at such leased property.
The
foregoing description of the Real Estate Matters Agreement does not purport to be complete and is qualified in its entirety by reference
to the full text of the Real Estate Matters Agreement, which is filed as Exhibit 10.3 to this Form 6-K and
is incorporated herein by reference.
Tax
Matters Agreement
The Tax
Matters Agreement sets forth, among other things, the parties’ respective rights, responsibilities and obligations with respect
to taxes of Spinco, the Company, Buyer and their respective subsidiaries (including taxes arising in the ordinary course of business and
taxes imposed in connection with the Proposed Transaction), tax attributes, the preparation and filing of tax returns, the control of
audits and other tax proceedings, and assistance and cooperation in respect of tax matters. Generally, the Company will be responsible
for taxes incurred by the Spinco Business through the date of the Equity Sale, and Spinco (and Buyer through its ownership of Spinco)
will be responsible for taxes incurred by Spinco following the date of the Equity Sale. The Company will also be responsible for any taxes
imposed on Spinco in connection with the Proposed Transaction.
The foregoing
description of the Tax Matters Agreement does not purport to be complete and is qualified in its entirety by reference to the full text
of the Tax Matters Agreement, which is filed as Exhibit 10.4 to this Form 6-K and is incorporated herein by reference.
Support
Agreement
The Support
Agreement contains, among other things, an agreement by De Agostini not to directly or indirectly, and not to permit any of its affiliates
to, engage in, manage or operate (or own an equity interest in any person who engages in, manages or operates), anywhere in the world,
any business that competes with the Restricted Business (as defined in the Support Agreement), so long as a designee of De Agostini or
its affiliates is serving as a member of the board of directors or similar body of Buyer or an affiliate thereof or De Agostini and its
affiliates collectively own at least 10% of the outstanding equity interests of Buyer. The Support Agreement also contains certain restrictions
on the transfer of all of the shares of capital stock of the Company owned or subsequently acquired by De Agostini if doing so would reasonably
be expected to prevent, materially impede or materially delay consummation of the Proposed Transaction, and a requirement to make and
not withdraw certain regulatory filings, and to provide information in support of the financing and filings with the SEC necessary in
connection with the consummation of the Proposed Transaction. The Support Agreement also provides that De Agostini may not disclose certain
information regarding the Company or Everi to Buyer and its affiliates. The Support Agreement automatically terminates upon the earliest
of the Closing, the valid termination of the Merger Agreement and the valid termination of the Separation Agreement.
The foregoing
description of the Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of
the Support Agreement, which is filed as Exhibit 10.5 to this Current Report on Form 8-K and is incorporated by reference herein.
OTHER
EVENTS
Use
of Proceeds
The Company
expects significant portions of the Purchase Price to be used to repay debt and to be returned to shareholders.
PRESS
RELEASE
On July 26, 2024, Apollo, the Company and
Everi issued a joint press release announcing the parties’ entry into definitive agreements in connection with the Proposed Transaction.
A copy of the press release is attached hereto as Exhibit 99.1 to this Form 6-K and incorporated
by reference herein.
The information in this Exhibit 99.1 to this
Form 6-K shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference
in any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, except as expressly
set forth by specific reference in such a filing.
Forward-Looking
Statements
This Form 6-K contains “forward-looking
statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act related to Proposed
Transaction. All statements other than statements of historical fact are forward-looking statements for purposes of federal and state
securities laws. These forward-looking statements involve risks and uncertainties that could significantly affect the financial or operating
results of IGT. These forward-looking statements may be identified by terms such as “anticipate,” “believe,” “could,”
“estimate,” “expect,” “forecast,” “foresee,” “intend,” “may,”
“plan,” “project,” “should,” “will,” and “would” and the negative of these
terms or other similar expressions. Forward-looking statements in this Form 6-K include, among other things, statements about the
potential benefits of the Proposed Transaction, including future plans, objectives, expectations, and intentions; the anticipated timing
of completing the Proposed Transaction; and the expected use of cash proceeds from the Proposed Transaction. In addition, all statements
that address operating performance, events or developments that IGT expects or anticipates will occur in the future — including
statements relating to creating value for shareholders, benefits of the Proposed Transaction and the expected timetable for completing
the Proposed Transaction — are forward-looking statements. These forward-looking statements involve substantial risks and uncertainties
that could cause actual results to differ materially from those expressed or implied by such statements. These risks and uncertainties
include, among other things, risks related to the possibility that the conditions to the consummation of the Proposed Transaction will
not be satisfied in the anticipated timeframe or at all; risks related to the ability to realize the anticipated benefits of the Proposed
Transaction; the ability to retain and hire key personnel; negative effects of the announcement or failure to consummate the Proposed
Transaction on the market price of IGT’s ordinary shares and on IGT’s operating results; the occurrence of any event, change
or other circumstances that could give rise to the termination of the Separation Agreement or the Merger Agreement; significant transaction
costs, fees, expenses and charges; operating costs, customer loss, and business disruption (including, without limitation, difficulties
in maintaining employee, customer, or other business, contractual, or operational relationships following the Proposed Transaction announcement
or closing of the Proposed Transaction and the diversion of the attention of the management team of IGT from its ongoing business); failure
to consummate or delay in consummating the Proposed Transaction for any reason; risks relating to any resurgence of the COVID-19 pandemic
or similar public health crises; risks related to competition in the gaming and lottery industries; dependence on significant licensing
arrangements, customers, or other third parties; risks related to the financing of the Proposed Transaction; economic changes in global
markets, such as currency exchange, inflation and interest rates, and recession; government policies (including policy changes affecting
the gaming industry, taxation, trade, tariffs, immigration, customs, and border actions) and other external factors that IGT cannot control;
regulation and litigation matters relating to the Proposed Transaction; unanticipated adverse effects or liabilities from business divestitures;
risks related to intellectual property, privacy matters, and cyber security (including losses and other consequences from failures, breaches,
attacks, or disclosures involving information technology infrastructure and data); other business effects (including the effects of industry,
market, economic, political, or regulatory conditions); and other risks and uncertainties, including, but not limited to, those described
in IGT’s Annual Report on Form 20-F on file with the SEC and from time to time in other filed reports including IGT’s
Reports on Form 6-K.
A further description of risks and uncertainties
relating to IGT can be found in its most recent Annual Report on Form 20-F and Reports on Form 6-K, all of which are filed with
the SEC and available at www.sec.gov.
IGT does not intend to update the forward-looking
statements contained in this Form 6-K as a result of new information or future events or developments, except as required by law.
EXHIBITS
Exhibit
Number |
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Description |
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2.1 |
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Agreement
and Plan of Merger by and among International Game Technology PLC, Ignite Rotate LLC, Everi Holdings Inc., Voyager Parent, LLC
and Voyager Merger Sub, Inc., dated as of July 26, 2024. |
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10.1 |
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Separation
and Sale Agreement by and among International Game Technology PLC, Ignite Rotate LLC, Everi Holdings Inc. and Voyager Parent,
LLC, dated as of July 26, 2024. |
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10.2 |
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Employee
Matters Agreement by and among International Game Technology PLC, Ignite Rotate LLC, Everi Holdings Inc. and Voyager Parent,
LLC, dated as of July 26, 2024. |
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10.3 |
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Real
Estate Matters Agreement by and among International Game Technology PLC, Ignite Rotate LLC, Everi Holdings Inc. and Voyager
Parent, LLC, dated as of July 26, 2024. |
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10.4 |
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Tax
Matters Agreement by and among International Game Technology PLC, Ignite Rotate LLC, Everi Holdings Inc. and Voyager Parent,
LLC, dated as of July 26, 2024. |
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10.5 |
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Support
Agreement by and among International Game Technology PLC, Ignite Rotate LLC, Everi Holdings Inc., De Agostini S.p.A. and Voyager
Parent, LLC, dated as of July 26, 2024. |
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99.1 |
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Joint
Press Release, dated as of July 26, 2024 |
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, thereunto duly authorized.
Date: July 26, 2024 |
INTERNATIONAL GAME TECHNOLOGY PLC |
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By: |
/s/ Pierfrancesco Boccia |
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Pierfrancesco Boccia |
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Corporate Secretary |
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
by and among
INTERNATIONAL
GAME TECHNOLOGY PLC
IGNITE ROTATE LLC
EVERI
HOLDINGS INC.
VOYAGER
PARENT, LLC
and
VOYAGER MERGER SUB, INC.
Dated
as of July 26, 2024
TABLE OF CONTENTS
PAGE
ARTICLE I
DESCRIPTION OF TRANSACTION |
3 |
1.1 |
The Equity Sale |
3 |
1.2 |
The Merger; Effective Time |
3 |
1.3 |
Closing; Effective Time |
3 |
1.4 |
Organizational Documents; Managers and Officers |
4 |
1.5 |
Conversion of Merger Partner Common Stock |
4 |
1.6 |
Treatment of Merger Partner Equity Awards |
5 |
1.7 |
Appraisal Rights |
8 |
1.8 |
Exchange of Securities |
8 |
1.9 |
Lost, Stolen or Destroyed Certificates |
11 |
1.10 |
No Further Rights |
11 |
1.11 |
Further Action |
11 |
1.12 |
Withholding |
11 |
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF REMAINCO AND SPINCO |
12 |
2.1 |
Subsidiaries; Due Organization |
12 |
2.2 |
Certificate of Organization and Other Governing Documents |
13 |
2.3 |
Capitalization |
14 |
2.4 |
Authority; Binding Nature of Agreement |
16 |
2.5 |
Non-Contravention; Consents |
17 |
2.6 |
Financial Statements |
18 |
2.7 |
Absence of Certain Changes |
21 |
2.8 |
Sufficiency of Assets; Title to Assets |
21 |
2.9 |
Real Property |
22 |
2.10 |
Intellectual Property |
23 |
2.11 |
Contracts |
25 |
2.12 |
Compliance with Laws; Regulatory Matters |
28 |
2.13 |
Anti-Corruption Compliance; Trade Compliance |
29 |
2.14 |
Permits |
30 |
2.15 |
Tax Matters |
30 |
2.16 |
Benefit Arrangements; Labor Matters |
32 |
2.17 |
Environmental Matters |
36 |
2.18 |
Insurance |
37 |
2.19 |
Absence of Litigation |
37 |
2.20 |
Customers and Suppliers |
38 |
2.21 |
Financial Advisors |
38 |
2.22 |
Takeover Statutes |
38 |
2.23 |
Data Privacy and Information Security |
39 |
2.24 |
Affiliate Transactions |
39 |
2.25 |
Acknowledgement by Remainco and Spinco |
40 |
2.26 |
Gaming Approvals and Licensing Matters |
40 |
2.27 |
Spinco |
41 |
2.28 |
Solvency |
41 |
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MERGER PARTNER |
41 |
3.1 |
Subsidiaries; Due Organization |
42 |
3.2 |
Certificate of Organization and Other Governing Documents |
43 |
3.3 |
Capitalization |
43 |
3.4 |
Authority; Binding Nature of Agreement |
45 |
3.5 |
Non-Contravention; Consents |
46 |
3.6 |
SEC Filings; Financial Statements |
48 |
3.7 |
Absence of Certain Changes |
50 |
3.8 |
Title to Assets |
50 |
3.9 |
Real Property |
51 |
3.10 |
Intellectual Property |
52 |
3.11 |
Contracts |
53 |
3.12 |
Compliance with Laws; Regulatory Matters |
56 |
3.13 |
Anti-Corruption Compliance; Trade Compliance |
57 |
3.14 |
Permits |
58 |
3.15 |
Tax Matters |
59 |
3.16 |
Benefit Arrangements; Labor Matters |
61 |
3.17 |
Environmental Matters |
65 |
3.18 |
Insurance |
65 |
3.19 |
Absence of Litigation |
66 |
3.20 |
Customers and Suppliers |
66 |
3.21 |
Vote Required |
67 |
3.22 |
Financial Advisors |
67 |
3.23 |
Takeover Statutes |
67 |
3.24 |
Data Privacy and Information Security |
67 |
3.25 |
Fairness Opinion |
68 |
3.26 |
Acknowledgement by Merger Partner |
68 |
3.27 |
Gaming Approvals and Licensing Matters |
69 |
ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING BUYER AND BUYER SUB |
69 |
4.1 |
Due Organization; Authority; Binding Nature of Agreement |
69 |
4.2 |
Non-Contravention; Consents |
70 |
4.3 |
Compliance with Laws; Regulatory Matters |
71 |
4.4 |
Absence of Litigation |
71 |
4.5 |
Securities Matters |
72 |
4.6 |
Financing; Solvency |
72 |
4.7 |
Guaranty |
73 |
4.8 |
Certain Arrangements |
74 |
4.9 |
Gaming Approvals and Licensing Matters |
74 |
4.10 |
Proxy Statement |
75 |
4.11 |
Financial Advisors |
75 |
4.12 |
Acknowledgement by Buyer and Buyer Sub |
75 |
4.13 |
CFIUS Foreign Person |
75 |
4.14 |
Buyer Sub |
76 |
ARTICLE V
CERTAIN COVENANTS OF THE PARTIES REGARDING OPERATIONS DURING THE PRE-CLOSING PERIOD |
76 |
5.1 |
Access and Investigation |
76 |
5.2 |
Operation of the Spinco Business |
77 |
5.3 |
Operation of the Merger Partner Business |
82 |
5.4 |
Control of Other Party’s Business |
87 |
5.5 |
No Shop |
87 |
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS OF THE PARTIES |
91 |
6.1 |
Merger Partner Proxy Statement |
91 |
6.2 |
Merger Partner Stockholders’ Meeting |
92 |
6.3 |
Efforts; Regulatory Approvals and Related Matters |
96 |
6.4 |
Disclosure |
104 |
6.5 |
Section 16 Matters |
105 |
6.6 |
Obligations with respect to Merger Partner, Spinco
and Buyer |
105 |
6.7 |
Securityholder Litigation |
106 |
6.8 |
Financing |
107 |
6.9 |
Agreement for Exchange of Information |
116 |
6.10 |
D&O Indemnification and Insurance |
117 |
6.11 |
Stock Exchange Delisting |
119 |
6.12 |
Remainco Equity Awards |
119 |
6.13 |
Employee Benefit Matters |
119 |
6.14 |
R&W Insurance Policy |
121 |
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF MERGER PARTNER |
122 |
7.1 |
Accuracy of Representations |
122 |
7.2 |
Performance of Covenants |
123 |
7.3 |
Stockholder Approval |
123 |
7.4 |
[Intentionally Omitted] |
123 |
7.5 |
Required Governmental Approvals |
123 |
7.6 |
Closing Certificate |
123 |
7.7 |
No Legal Restraints |
124 |
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATION OF REMAINCO AND SPINCO |
124 |
8.1 |
Accuracy of Representations |
124 |
8.2 |
Performance of Covenants |
125 |
8.3 |
Stockholder Approval |
125 |
8.4 |
Separation |
125 |
8.5 |
Required Governmental Approvals |
125 |
8.6 |
Closing Certificate |
126 |
8.7 |
No Legal Restraints |
126 |
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATION OF BUYER AND BUYER SUB |
126 |
9.1 |
Accuracy of Representations |
126 |
9.2 |
Performance of Covenants |
127 |
9.3 |
Stockholder Approval |
128 |
9.4 |
Separation |
128 |
9.5 |
Required Governmental Approvals |
128 |
9.6 |
Closing Certificate |
128 |
9.7 |
No Legal Restraints |
128 |
ARTICLE X
TERMINATION |
129 |
10.1 |
Termination |
129 |
10.2 |
Effect of Termination |
133 |
10.3 |
Fees and Expenses |
134 |
ARTICLE XI
MISCELLANEOUS PROVISIONS |
143 |
11.1 |
Amendment |
143 |
11.2 |
Waiver |
144 |
11.3 |
Survival |
144 |
11.4 |
Entire Agreement; Counterparts; Electronic Exchanges |
144 |
11.5 |
Applicable Law; Jurisdiction |
145 |
11.6 |
Disclosure Letters |
146 |
11.7 |
Assignability; No Third Party Rights |
147 |
11.8 |
Notices |
148 |
11.9 |
Cooperation |
150 |
11.10 |
Severability |
150 |
11.11 |
No Presumption Against Drafting Party |
150 |
11.12 |
Rules of Construction |
151 |
11.13 |
Waiver of Jury Trial |
151 |
11.14 |
Specific Performance |
152 |
11.15 |
Disclaimer of Representations and Warranties |
153 |
11.16 |
Non-Recourse |
155 |
Exhibit A | |
— | |
Certain Definitions |
Exhibit B | |
— | |
Form of Certificate of
Incorporation of the Surviving Corporation |
Schedule A | |
— | |
Knowledge of Remainco |
Schedule B | |
— | |
Knowledge of Merger Partner |
Schedule C-1 | |
— | |
Antitrust Approvals and FDI
Approvals |
Schedule C-2 | |
— | |
Gaming Approvals |
Schedule C-3 | |
— | |
Financial Services Notice Filings
and Approvals |
AGREEMENT AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of July 26, 2024, by
and among: (a) INTERNATIONAL GAME TECHNOLOGY PLC, a public limited company
incorporated under the laws of England and Wales (“Remainco”); (b) IGNITE ROTATE LLC, a Delaware limited
liability company and a direct wholly owned Subsidiary of Remainco (“Spinco”); (c) EVERI
HOLDINGS INC., a Delaware corporation (“Merger Partner”); (d) VOYAGER PARENT, LLC, a Delaware
limited liability company (“Buyer”); and (e) VOYAGER MERGER SUB, INC., a Delaware corporation and
a direct wholly owned Subsidiary of Buyer (“Buyer Sub”) (each a “Party” and together, the “Parties”).
Certain capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
WHEREAS,
Remainco is engaged, directly and indirectly through the other members of the Remainco Group, in the Spinco Business;
WHEREAS,
on the terms and subject to the conditions set forth in the Separation Agreement, Remainco desires to undertake the Separation and, in
connection with the Spinco Contribution, Spinco desires to issue to Remainco additional Spinco Units;
WHEREAS,
on the terms and subject to the conditions set forth in the Separation Agreement, following the completion of the Separation and the
Spinco Contribution, Remainco shall own all of the outstanding Spinco Units;
WHEREAS,
Merger Partner is engaged, directly and indirectly, in the Merger Partner Business;
WHEREAS,
upon the terms and subject to the conditions set forth in this Agreement, the Separation Agreement and the other Transaction Documents,
the Parties have agreed to enter into a business combination transaction pursuant to which, among other things, (a) immediately
following the Spinco Contribution, Remainco will sell to Buyer, and Buyer will purchase from Remainco, all of the Spinco Units owned
by Remainco (the “Equity Sale”), and (b) immediately following the consummation of the Equity Sale (the
“Equity Sale Closing Time”), at the Merger Effective Time, pursuant to this Agreement, Buyer Sub shall be merged with
and into Merger Partner (the “Merger”), with Merger Partner surviving the Merger as a direct wholly owned Subsidiary
of Buyer and all outstanding shares of Merger Partner Common Stock shall be converted into the right to receive the Per Share Price in
accordance with the DGCL and all outstanding Merger Partner Equity Awards shall be converted into the right to receive the consideration
set forth in Section 1.6, in each case, on the terms and subject to the conditions of this Agreement;
WHEREAS,
the Board of Directors of Remainco (the “Remainco Board”) has established a special committee of the Remainco Board
composed solely of independent and disinterested directors (the “Special Committee”) to, among other things, review,
evaluate and negotiate this Agreement, the Separation Agreement, the other Transaction Documents and the Contemplated Transactions and,
if the Special Committee deems appropriate, approve the execution and delivery of this Agreement by Remainco;
WHEREAS,
the Special Committee has unanimously determined that the consummation of the transactions contemplated by the terms and conditions set
forth in this Agreement, the Separation Agreement and the other Transaction Documents, including the Equity Sale, is most likely to promote
the success of Remainco for the benefit of its members as a whole;
WHEREAS,
the Board of Directors of Merger Partner (the “Merger Partner Board”) has determined that the consummation of the
transactions contemplated by the terms and conditions set forth in this Agreement and the other Transaction Documents, including the
Merger, is advisable and in the best interests of Merger Partner and its stockholders;
WHEREAS,
concurrently with the execution and delivery of this Agreement (or, in the case of the following clause (f), by operation of the
applicable terms thereof) and as a condition to Buyer and Buyer Sub entering into this Agreement and the other Transaction Documents,
Remainco, Spinco, Merger Partner and Ember Sub LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of Merger
Partner (“Ember Sub”), are, effective upon the entry into this Agreement, the Separation Agreement, the Employee Matters
Agreement, the Real Estate Matters Agreement and the Tax Matters Agreement, terminating each of the following agreements: (a) the
Agreement and Plan of Merger, dated as of February 28, 2024, by and among Remainco, Spinco, Merger Partner and Ember Sub; (b) the
Separation and Distribution Agreement, dated as of February 28, 2024, by and among Remainco, Spinco, International Game Technology,
a Nevada corporation and a direct wholly owned subsidiary of Remainco (“Gaming Holdco”), and Merger Partner; (c) the
Employee Matters Agreement, dated as of February 28, 2024, by and among Remainco, Spinco, Gaming Holdco and Merger Partner; (d) the
Real Estate Matters Agreement, dated as of February 28, 2024, by and among Remainco, Spinco, Gaming Holdco and Merger Partner; (e) the
Tax Matters Agreement, dated as of February 28, 2024, by and among Remainco, Spinco, Gaming Holdco and Merger Partner; and (f) the
Existing Commitment Documents (collectively, the “Existing Agreements”);
WHEREAS,
concurrently with the execution and delivery of this Agreement and as a condition to the willingness of Remainco, Spinco and Merger
Partner to enter into this Agreement, (a) the Guarantors have delivered to Remainco, Merger Partner and Buyer an equity commitment
letter (the “Equity Commitment Letter”), pursuant to which the Guarantors have committed, subject to the terms and
conditions thereof, to provide equity financing in an aggregate amount set forth therein to Buyer; (b) the Guarantors have entered
into a limited guarantee in favor of Remainco, Spinco and Merger Partner (the “Guaranty”), pursuant to which the Guarantors
are guaranteeing certain of the obligations of Buyer and Buyer Sub in connection with this Agreement;
WHEREAS,
concurrently with the execution and delivery of this Agreement and as a condition to the willingness of Merger Partner and Buyer
to enter into this Agreement, Remainco, Delta, Merger Partner and Buyer have entered into an amended and restated Delta Support Agreement
pursuant to which, among other things, Delta has agreed to certain covenants and obligations with respect to the obligations described
in Sections 6.1(a) and 6.3 and other matters set forth therein; and
WHEREAS,
the Parties desire to set forth the principal arrangements among them regarding the foregoing transactions and to make certain covenants
and agreements specified herein in connection therewith and to prescribe certain conditions relating thereto.
NOW,
THEREFORE, in consideration of the foregoing and the covenants and agreements contained herein, and intending to be legally
bound hereby, the Parties agree as follows:
ARTICLE I
DESCRIPTION OF TRANSACTION
1.1 The
Equity Sale. Immediately following the Spinco Contribution (and immediately prior to the Merger Effective Time), Remainco and Buyer
shall consummate the Equity Sale in accordance with the terms and conditions set forth in the Separation Agreement.
1.2 The
Merger; Effective Time. Upon the terms and subject to the conditions set forth in this Agreement, at the Merger Effective Time, Buyer
Sub shall be merged with and into Merger Partner. By virtue of the Merger, at the Merger Effective Time, the separate existence of Buyer
Sub shall cease and Merger Partner shall continue as the surviving corporation in the Merger (the “Surviving Corporation”)
as a direct wholly owned Subsidiary of Buyer, and the Surviving Corporation shall succeed to and assume all the property, rights, privileges,
powers and franchises and be subject to all of the restrictions, debt and duties of Merger Partner and Buyer Sub in accordance with the
DGCL. Subject to the provisions of this Agreement, a certificate of merger satisfying the applicable requirements of the DGCL shall be
duly executed by Merger Partner and Buyer Sub and concurrently with the Closing shall be filed with the Secretary of State of the State
of Delaware. The Merger shall become effective at the time of the filing of such certificate of merger with the Secretary of State of
the State of Delaware or at such later time as may be designated jointly by Remainco, Merger Partner and Buyer and specified in such
certificate of merger (the time as of which the Merger becomes effective being referred to as the “Merger Effective Time”);
provided, that the Merger Effective Time shall be immediately following the Equity Sale Closing Time. At the Merger Effective Time, the
Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL.
1.3 Closing;
Effective Time. Unless this Agreement shall have been terminated pursuant to Section 10.1, the closing of the Equity
Sale and the Merger (the “Closing”) shall occur at 10:00 a.m., Central time, remotely via the exchange of executed
documents and the Closing deliverables on a date to be designated jointly by Remainco, Merger Partner and Buyer, which shall be (a) no
later than the third (3rd) Business Day following the later of (i) the date on which the conditions set forth in Articles VII,
VIII and IX are satisfied or waived (other than the conditions, which by their nature cannot be satisfied until the Closing,
but subject to the satisfaction or waiver of each of such conditions at the Closing) and (ii) the earlier of (A) a Business
Day during the Marketing Period specified by Buyer on no less than three (3) Business Days’ prior written notice to Merger
Partner and Remainco and (B) the final day of the Marketing Period (subject, in the case of each of clauses (A) and
(B), to the satisfaction or waiver of the conditions set forth in Articles VII, VIII and IX (other than
the conditions, which by their nature cannot be satisfied until the Closing, but subject to the satisfaction or waiver of each of such
conditions at the Closing)) or (b) such other date and time as Merger Partner, Remainco and Buyer may mutually agree; provided
that the Equity Sale shall occur substantially concurrently with the Merger Effective Time; provided, further, that
notwithstanding the foregoing, Buyer shall not be required to effect the Closing prior to the third (3rd) Business Day following the
Inside Date. The date on which the Closing actually occurs is referred to as the “Closing Date”.
1.4 Organizational
Documents; Managers and Officers.
(a) The
certificate of incorporation of the Surviving Corporation shall, by virtue of the Merger and without any action on the part of the Parties
or any other Person, be amended so as to read in its entirety in the form set forth as Exhibit B hereto until thereafter
amended in accordance with such certificate of incorporation and applicable Law.
(b) The
bylaws of Buyer Sub as in effect immediately prior to the Merger Effective Time shall, by virtue of the Merger and without any action
on the part of the Parties or any shareholder of Remainco or any stockholder of Merger Partner, be the bylaws of the Surviving Corporation
until thereafter amended in accordance with such bylaws and applicable Law.
(c) The
directors of the Surviving Corporation immediately after the Merger Effective Time shall be the same as the directors of Buyer Sub
as of immediately prior to the Merger Effective Time.
(d) Except
as otherwise determined by Buyer in its sole discretion, the officers of the Surviving Corporation immediately after the Merger Effective
Time shall be the same as the officers of Merger Partner as of immediately prior to the Merger Effective Time.
1.5 Conversion
of Merger Partner Common Stock.
(a) Subject
to the terms and conditions of this Agreement, at the Merger Effective Time, by virtue of the Merger and without any further action on
the part of the Parties, or any stockholder of Buyer Sub or any stockholder of Merger Partner, respectively, the following will occur:
(i) each
share of Merger Partner Common Stock that is issued and outstanding immediately prior to the Merger Effective Time, other than Dissenting
Shares and Owned Merger Partner Shares, shall be cancelled and shall cease to exist and shall be converted automatically into the right
to receive $14.25 in cash per share of Merger Partner Common Stock, without interest (the “Per Share Price”), in accordance
with Section 1.8 (or, in the case of a lost, stolen or destroyed certificate, upon delivery of an affidavit (and bond, if
required) in accordance with Section 1.9);
(ii) each
share of Merger Partner Common Stock that is (A) held by Merger Partner in treasury or (B) owned by any member of the Merger
Partner Group or any member of the Buyer Group as of immediately prior to the Merger Effective Time (in each case, other than any such
shares held in a fiduciary, representative or other capacity on behalf of third parties) (each, an “Owned Merger Partner Share”),
shall be cancelled and shall cease to exist without any conversion thereof or consideration paid therefor; and
(iii) all
outstanding shares of capital stock of Buyer Sub held immediately prior to the Merger Effective Time shall be converted into and become
(in the aggregate) one (1) share of newly and validly issued, fully paid and non-assessable shares of common stock of the Surviving
Corporation.
(b) If,
during the period from the date hereof through the Merger Effective Time, the issued and outstanding shares of Merger Partner Common
Stock are changed into a different number or class of shares by reason of any stock or interest split, division or subdivision of shares,
stock dividend, reverse stock split, combination of shares, reclassification, recapitalization or other similar transaction, then the
Per Share Price shall be adjusted to the extent appropriate to provide the same economic effect as contemplated by this Agreement prior
to such action; provided that nothing in this Section 1.5(b) shall be construed to permit Merger Partner to take
any action with respect to its Equity Interests that is prohibited by the terms of this Agreement.
1.6 Treatment
of Merger Partner Equity Awards.
(a) Subject
to the terms and conditions of this Agreement, at the Merger Effective Time, by virtue of the Merger and without any further action on
the part of any Party, or any other Person, respectively, the following will occur:
(i) each
Merger Partner RSU that is outstanding as of immediately prior to the Merger Effective Time shall, be cancelled and automatically converted
into a right to receive, in full satisfaction of the rights of such holder with respect thereto, a cash payment from a member of the
Buyer Group equal to the product of (A) the number of shares of Merger Partner Common Stock subject to each such Merger Partner
RSU, and (B) the Per Share Price (a “Surviving Corporation RSU Cash Award”). The Surviving Corporation RSU Cash
Awards shall be subject to the same time-based vesting terms and otherwise substantially the same terms and conditions (excluding the
form of settlement, but including the double-trigger vesting provisions) as in effect for the corresponding Merger Partner RSUs immediately
prior to the Merger Effective Time; provided that any portion of the Surviving Corporation RSU Cash Award that becomes vested
following the Merger Effective Time shall be paid to the holder no later than seven (7) Business Days following the vesting date,
less any applicable Taxes required to be withheld with respect to such payment. Notwithstanding the foregoing, if a Merger Partner RSU
vests prior to the Merger Effective Time, such award shall be settled in shares of Merger Partner Common Stock, less any applicable Taxes
required to be withheld with respect to such settlement in accordance with the terms of such Merger Partner RSUs no later than immediately
prior to the Merger Effective Time; provided that with respect to any such Merger Partner RSU that (1) constitutes nonqualified
deferred compensation subject to Section 409A of the Code, and (2) fully vests prior to the Merger Effective Time but is not
permitted to be paid at the Merger Effective Time without triggering a Tax or other penalty under Section 409A of the Code, such
award shall be converted to a Surviving Corporation RSU Cash Award as described above and be settled in cash at the earliest time permitted
under the applicable Merger Partner Equity Plan and award agreement that will not trigger a Tax or other penalty under Section 409A
of the Code.
(ii) each
Merger Partner PSU that is outstanding as of immediately prior to the Merger Effective Time shall be cancelled and automatically converted
into a right to receive, in full satisfaction of the rights of such holder with respect thereto, a cash payment from a member of the
Buyer Group equal to the product of (A) the number of shares of Merger Partner Common Stock subject to each such Merger Partner
PSU (based on the achievement of 100% of performance under each such Merger Partner PSU) and (B) the Per Share Price (a “Surviving
Corporation PSU Cash Award”). The Surviving Corporation PSU Cash Awards shall be subject to the same time-based vesting terms
and otherwise substantially the same terms and conditions (excluding the form of settlement and any terms related to performance which
will be fixed as of the Merger Effective Time, but including the double-trigger vesting provision) as in effect for the corresponding
Merger Partner PSUs immediately prior to the Merger Effective Time; provided that any portion of the Surviving Corporation PSU
Cash Award that becomes vested following the Merger Effective Time shall be paid to the holder no later than seven (7) Business
Days following the vesting date, less any applicable Taxes required to be withheld with respect to such payment. Notwithstanding the
foregoing, if a Merger Partner PSU vests prior to the Merger Effective Time, such award shall be settled in shares of Merger Partner
Common Stock, less any applicable Taxes required to be withheld with respect to such settlement in accordance with the terms of such
Merger Partner PSUs no later than immediately prior to the Merger Effective Time; provided that with respect to any such Merger
Partner PSU that (x) constitutes nonqualified deferred compensation subject to Section 409A of the Code, and (y) fully
vests prior to the Merger Effective Time but is not permitted to be paid at the Merger Effective Time without triggering a Tax or other
penalty under Section 409A of the Code, such award shall be converted to a Surviving Corporation PSU Cash Award as described above
and be settled in cash at the earliest time permitted under the applicable Merger Partner Equity Plan and award agreement that will not
trigger a Tax or other penalty under Section 409A of the Code.
(iii) each
Merger Partner Option that is outstanding and unexercised immediately prior to the Merger Effective Time shall, be cancelled and automatically
converted into a right to receive, in full satisfaction of the rights of such holder with respect thereto, a cash payment from a member
of the Buyer Group equal to the excess, if any, of (A) the Per Share Price over the per share exercise price of such Merger Partner
Option, multiplied by (B) the number of shares of Merger Partner Common Stock covered by such Merger Partner Option immediately
prior to the Merger Effective Time (a “Surviving Corporation Option Cash Award”). The Surviving Corporation Option
Cash Awards shall be subject to the same time-based vesting terms and as in effect for the corresponding Merger Partner Options immediately
prior to the Merger Effective Time. Any portion of the Surviving Corporation Option Cash Award that is attributable to Merger Partner
Options that are vested prior to the Merger Effective Time shall be paid to the holder no later than seven (7) Business Days following
the Merger Effective Time, less any applicable Taxes required to be withheld with respect to such payment. Any portion of the Surviving
Corporation Option Cash Award that is attributable to Merger Partner Options that are unvested as of the Merger Effective Time shall
be paid to the holder no later than seven (7) Business Days following the vesting date, less any applicable Taxes required to be
withheld with respect to such payment. Notwithstanding anything to the contrary contained in this Agreement, if the per share exercise
price of such Merger Partner Option equals or exceeds the Per Share Price, such Merger Partner Option shall be cancelled for no consideration.
From and after the Merger Effective Time, no Merger Partner Option shall be exercisable, and each Merger Partner Option shall entitle
the holder thereof only to the cash payment, if any, provided for in this Section 1.6.
(b) The
Surviving Corporation shall, and Buyer shall cause the Surviving Corporation to, pay to the holders of Merger Partner Equity Awards the
amounts described in Section 1.6(a), less any Taxes required to be withheld under applicable Law with respect to such payments,
and the Surviving Corporation shall be permitted to withhold any such Taxes.
(c) As
of the Merger Effective Time, the Merger Partner Equity Plans shall be terminated and no further shares of Merger Partner Common Stock,
Merger Partner Equity Awards or other rights with respect to shares of Merger Partner Common Stock shall be granted thereunder. Following
the Merger Effective Time, no such Merger Partner Equity Award or other right that was outstanding immediately prior to the Merger Effective
Time shall remain outstanding and each former holder of any such Merger Partner Equity Award shall cease to have any rights with respect
thereto, except the right to receive the cash consideration set forth in this Section 1.6 without interest and less all applicable
Taxes.
(d) Prior
to the Merger Effective Time, the Merger Partner Board (or, if appropriate, any committee thereof) shall adopt appropriate resolutions
and take such other actions as are necessary or advisable to effect the transactions described in this Section 1.6, and Merger
Partner has the authority to effectuate the foregoing.
(e) By
approving the adoption of this Agreement, the Merger Partner Board intends to exempt from the short-swing profit recovery provisions
of Section 16(b) of the Exchange Act, by reason of the application of Rule 16b-3 thereunder, all acquisitions and dispositions
of equity incentive awards by directors and officers of the Merger Partner Group, and the Merger Partner Board also intends expressly
to approve, in respect of any equity-based award, the satisfaction of any applicable Tax withholding (specifically including the actual
or constructive tendering of shares in payment of an exercise price and the withholding of shares from delivery in satisfaction of applicable
Tax withholding requirements) to the extent that such method is permitted under the applicable Merger Partner Equity Plan.
(f) Upon
the vesting or payment, as applicable, of the Surviving Corporation RSU Cash Award, the Surviving Corporation PSU Cash Award, or the
Surviving Corporation Option Cash Award, a member of the Buyer Group and the holder of such award shall be responsible for ensuring the
satisfaction of all applicable Tax payment and withholding requirements in respect thereof and for ensuring the collection and remittance
of applicable Taxes to the applicable Governmental Authority, and the Surviving Corporation shall be permitted to withhold any such Taxes.
1.7 Appraisal
Rights. Notwithstanding anything to the contrary contained in this Agreement, shares of Merger Partner Common Stock that are outstanding
immediately prior to the Merger Effective Time (other than Owned Merger Partner Shares) and that are held by stockholders or beneficial
owners thereof who, in either case, have not voted in favor of the adoption of this Agreement and who have demanded, properly in writing,
appraisal for such shares of Merger Partner Common Stock in accordance with Section 262 of the DGCL (collectively, the “Dissenting
Shares”) shall not be cancelled and converted into, or represent the right to receive, the Per Share Price in accordance with
Section 1.5, but instead will entitle such person only to such rights as are afforded a holder or beneficial owner of Dissenting
Shares under Section 262 of the DGCL. Any Dissenting Shares held by stockholders or beneficial owners, as applicable, who have demanded
appraisal thereof but who shall have failed to perfect or who effectively shall have withdrawn or otherwise lost their rights to appraisal
of such shares of Merger Partner Common Stock under Section 262 of the DGCL shall thereupon cease to remain Dissenting Shares and
resume the state of Merger Partner Common Stock converted into and be exchangeable for, as of the Merger Effective Time, the right to
receive the Per Share Price in accordance with Section 1.5, without any interest thereon, upon surrender, in the manner provided
in Section 1.8 of such shares of Merger Partner Common Stock. Merger Partner shall give Buyer prompt notice and copies of
any demands for appraisal received by Merger Partner, withdrawals of such demands and any other instruments served pursuant to the DGCL
and received by Merger Partner, and Buyer and Merger Partner shall consult with each other with respect to all negotiations and proceedings
with respect to such appraisals and demands. Merger Partner shall not, except with the prior written consent of Buyer, make any payment,
or offer or agree to make any payment, with respect to any demands for appraisal or offer to settle or settle any such demands in respect
of Dissenting Shares.
1.8 Exchange
of Securities.
(a) Prior
to the Closing, Buyer shall appoint a nationally recognized bank or trust company reasonably satisfactory to Merger Partner to act as
the paying agent for the Merger (the “Paying Agent”) pursuant to a customary paying agent agreement (approved by Merger
Partner prior to the Closing (such approval not to be unreasonably withheld, conditioned or delayed)) providing for, among other things,
the matters set forth in this Section 1.8 and otherwise reasonably satisfactory to Merger Partner. At or prior to the Closing,
Buyer will deposit (or cause to be deposited) with the Paying Agent pursuant to irrevocable instructions from Buyer, by wire transfer
of immediately available funds, for the payment to the holders of shares of Merger Partner Common Stock pursuant to Section 1.5,
an amount of cash sufficient, when taken together with available cash of the Merger Partner Group that is deposited with the Paying Agent
at the Closing, to pay the aggregate consideration to which holders of shares of Merger Partner Common Stock (other than holders of Owned
Merger Partner Shares and Dissenting Shares) become entitled pursuant to Section 1.5 (such cash being deposited with the
Paying Agent is hereinafter referred to as the “Payment Fund”). The Payment Fund shall not be used for any other purpose
other than as contemplated by this Agreement. The Paying Agent may invest any cash included in the Payment Fund as directed by Buyer;
provided that (i) no such investment shall relieve Buyer (or its applicable Affiliates) or the Paying Agent from making the
payments contemplated hereunder, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant
to this Agreement and (iii) any such investments shall be in obligations of, or guaranteed by, the United States government or rated
A-1 or P-1 or better by Moody’s Investor Service, Inc. or Standard & Poor’s Corporation. Any and all interest
or other amounts earned with respect to the Payment Fund shall be the property of the Surviving Corporation. To the extent that there
are losses with respect to such investments, or the Payment Fund is reduced for other reasons below the level required to make prompt
payments of the Per Share Price to holders of shares of Merger Partner Common Stock (other than Owned Merger Partner Shares and Dissenting
Shares), Buyer shall promptly replace or restore (or cause to be replaced or restored) the portion of the Payment Fund lost through investments
or other events so as to ensure that the Payment Fund is, at all times, maintained at a level sufficient to make such payments. All fees
and expenses of the Paying Agent shall be borne by Buyer or the Surviving Corporation upon the Closing.
(b) Promptly
following the Closing (and in no event later than two (2) Business Days thereafter), Buyer and the Surviving Corporation will direct
the Paying Agent to mail to each holder of record of a certificate or certificates that immediately prior to the Merger Effective Time
represented issued and outstanding shares of Merger Partner Common Stock (other than Owned Merger Partner Shares and Dissenting Shares)
(the “Certificates”): (i) a letter of transmittal in customary form (approved by Merger Partner prior to the
Closing (such approval not to be unreasonably withheld, conditioned or delayed)) (which will specify that delivery will be effected,
and risk of loss and title to the Certificates will pass, only upon delivery of the Certificates to the Paying Agent) and (ii) instructions
for use in effecting the surrender of the Certificates in exchange for the Per Share Price, payable in respect thereof pursuant to Section 1.5.
Upon surrender of Certificates for cancellation to the Paying Agent, together with such letter of transmittal, duly completed and validly
executed in accordance with the instructions thereto, the holders of such Certificates will be entitled to receive in exchange therefor
the Per Share Price, payable in respect thereof pursuant to Section 1.5 (subject to Section 1.12), and the Certificates
so surrendered will forthwith be cancelled. No interest will be paid or will accrue for the benefit of holders of the Certificates on
the Per Share Price payable upon surrender of such Certificates pursuant to this Section 1.8(b). Until so surrendered, outstanding
Certificates shall be deemed, from and after the Merger Effective Time, to evidence only the right to receive the Per Share Price without
interest thereon, payable in respect thereof pursuant to Section 1.5.
(c) Upon
receipt of an “agent’s message” by the Paying Agent (or such other evidence, if any, of transfer as the Paying Agent
may reasonably request) in the case of a book-entry transfer of uncertificated shares of Merger Partner Common Stock (other than Owned
Merger Partner Shares and Dissenting Shares) (“Uncertificated Shares”), the holders of such Uncertificated Shares
will be entitled to receive in exchange therefor the Per Share Price, payable in respect thereof pursuant to Section 1.5
(subject to Section 1.12), and the transferred Uncertificated Shares so surrendered will be cancelled. No interest will be
paid or will accrue for the benefit of holders of the Uncertificated Shares on the Per Share Price payable upon surrender of such Uncertificated
Shares pursuant to this Section 1.8(c). Until so surrendered, outstanding Uncertificated Shares will be deemed from and after
the Merger Effective Time to evidence only the right to receive the Per Share Price without interest thereon, payable in respect thereof
pursuant to Section 1.5. Notwithstanding anything to the contrary contained in this Agreement, no holder of Uncertificated
Shares will be required to provide a Certificate or an executed letter of transmittal to the Paying Agent in order to receive the payment
that such holder is entitled to receive pursuant to Section 1.5.
(d) Prior
to the Closing, Merger Partner and Buyer will cooperate to establish procedures with the Paying Agent and the Depository Trust Company
(“DTC”) with the objective that (i) if the Closing occurs prior to 1:00 p.m. Central time on the Closing
Date, then the Paying Agent will transmit to DTC or its nominees on the Closing Date an amount, in cash, by wire transfer of immediately
available funds, equal to the product of (A) the number of shares of Merger Partner Common Stock (other than Owned Merger Partner
Shares and Dissenting Shares) held of record by DTC or such nominee immediately prior to the Merger Effective Time and (B) the Per
Share Price (such amount, the “DTC Payment”); and (ii) if the Closing occurs after 1:00 p.m. Central time
on the Closing Date, then the Paying Agent will transmit the DTC Payment to DTC or its nominees on the first (1st) Business Day after
the Closing Date.
(e) If
payment of the Per Share Price is to be made to a Person other than the Person in whose name the surrendered Certificate in exchange
therefor is registered, it shall be a condition of payment that (i) the Person requesting such exchange present proper evidence
of transfer or shall otherwise be in proper form for surrender and transfer and (ii) the Person requesting such payment shall have
paid any transfer and other Taxes required by reason of the payment of the Per Share Price to a Person other than the registered holder
of such Certificate surrendered or shall have established to the reasonable satisfaction of Buyer that such Tax either has been paid
or is not applicable. Payment of the Per Share Price in respect of Uncertificated Shares will only be made to the Person in whose name
such Uncertificated Shares are registered as of immediately prior to the Merger Effective Time.
(f) None
of the Paying Agent, the Surviving Corporation, any Party or any other Person shall be liable to any holder or former holder of shares
of Merger Partner Common Stock or to any other Person with respect to any shares of Merger Partner Common Stock (or dividends or distributions
with respect thereto), or for any cash amounts, required to be delivered to any public official pursuant to any applicable abandoned
property law, escheat law or other applicable Law.
(g) Any
portion of the Payment Fund that remains undistributed to the holders of the Certificates or the Uncertificated Shares on the date that
is one (1) year after the Closing Date, as applicable, will be delivered to the Surviving Corporation (as directed by Buyer) upon
demand, and any holders of shares of Merger Partner Common Stock that were issued and outstanding immediately prior to the Merger Effective
Time that have not theretofore surrendered or transferred their Certificates or their Uncertificated Shares representing such shares
of Merger Partner Common Stock for exchange pursuant to this Section 1.8 will thereafter look for payment of the Per Share
Price without interest thereon, payable in respect of the shares of Merger Partner Common Stock represented by such Certificates or such
Uncertificated Shares, solely to Buyer (subject to abandoned property, escheat or similar laws), solely as general creditors thereof,
for any claim to the Per Share Price to which such holders may be entitled pursuant to Section 1.5. Any amounts remaining
unclaimed by holders of any such Certificates or such Uncertificated Shares at such date as is immediately prior to the time at which
such amounts would otherwise escheat to, or become property of, any Governmental Authority, will, to the extent permitted by applicable
Law, become the property of the Surviving Corporation, free and clear of any claims or interest of any such holders (and their successors,
assigns or personal representatives) previously entitled thereto.
1.9 Lost,
Stolen or Destroyed Certificates. If any Certificates have been lost, stolen or destroyed, the Paying Agent will issue in exchange
therefor, upon making of an affidavit of that fact by the holder thereof, the Per Share Price payable in respect thereof pursuant to
Section 1.5. Buyer or the Paying Agent may, in its discretion and as a condition precedent to the payment of such Per Share
Price, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in such customary amount as it may direct
as indemnity against any claims that may be made against Buyer, the Surviving Corporation or the Paying Agent with respect to the Certificates
alleged to have been lost, stolen or destroyed.
1.10 No
Further Rights. From and after the Merger Effective Time, (a) all shares of Merger Partner Common Stock will no longer be outstanding
and will automatically be converted or cancelled and retired, as applicable, in accordance with Section 1.5 and cease to
exist and (b) each holder of Certificates or Uncertificated Shares theretofore representing any shares of Merger Partner Common
Stock will cease to have any rights with respect thereto, except to receive the Per Share Price payable therefor in accordance with Section 1.5
and, in the case of Dissenting Shares, the rights pursuant to Section 1.7. The Per Share Price paid in accordance with
the terms of this Article I will be deemed to have been paid in full satisfaction of all rights pertaining to such shares
of Merger Partner Common Stock. From and after the Merger Effective Time, there will be no further registration of transfers on the books
and records of the Surviving Corporation of shares of Merger Partner Common Stock that were issued and outstanding immediately prior
to the Merger Effective Time, other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior
to the Merger Effective Time. If, after the Merger Effective Time, Certificates or Uncertificated Shares are presented to the Surviving
Corporation for any reason, they will (subject to compliance with the exchange procedures of Section 1.8) be cancelled and
exchanged as provided in this Article I. No dividends or other distributions with respect to the capital stock of the Surviving
Corporation with a record date on or after the Merger Effective Time will be paid to the holder of any unsurrendered Certificates or
Uncertificated Shares.
1.11 Further
Action. Subject to the terms and limitations set forth herein, if, at any time after the Closing, the Parties reasonably believe
that any further instruments, deeds, assignments or assurances are reasonably necessary or desirable to consummate the Contemplated Transactions
or to carry out the purposes and intent of this Agreement, the Parties and their respective directors and officers shall execute and
deliver all such instruments, deeds, assignments or assurances and do all other things reasonably necessary or desirable to consummate
the Contemplated Transactions and to carry out the purposes and intent of this Agreement.
1.12 Withholding.
Each of the Paying Agent, Buyer, Buyer Sub and the Surviving Corporation shall be entitled to deduct and withhold from any consideration
payable or otherwise deliverable pursuant to this Agreement such amounts as may be required to be deducted or withheld from such consideration
under the Code or any provision of state, local or foreign tax law or under any other applicable Law. To the extent such amounts are
so deducted or withheld and paid to the appropriate Governmental Authority, such amounts shall be treated for all purposes under this
Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF REMAINCO
AND SPINCO
Except as set forth (a) in
the part or subpart of the Remainco Disclosure Letter corresponding to the particular Section or subsection in this Article II
in which such representation and warranty appears, (b) in any other part or subpart of the Remainco Disclosure Letter to the
extent it is reasonably apparent on the face of such disclosure that such disclosure is relevant to such other representation and warranty
and (c) other than with respect to the representations and warranties in Section 2.3 (Capitalization), Section 2.4
(Authority; Binding Nature of Agreement), Section 2.5 (Non-Contravention; Consents), Section 2.21 (Financial
Advisors) and Section 2.22 (Takeover Statutes), any information set forth in the Remainco SEC Documents filed on the SEC’s
EDGAR database on or after the Lookback Date and publicly available at least three (3) Business Days prior to the date hereof (the
“Qualifying Remainco SEC Documents”) (but excluding any supplements or amendments thereto to the extent such supplement
or amendment is not publicly filed prior to the date hereof) to the extent it is reasonably apparent on the face of such disclosure that
such information is relevant to such representation or warranty, other than information set forth therein under the headings “Risk
Factors” or “Forward-Looking Statements” and any other information or statement set forth therein that is primarily
cautionary, predictive or forward-looking in nature, Remainco and Spinco hereby represent and warrant to Merger Partner, Buyer and Buyer
Sub as follows:
2.1 Subsidiaries;
Due Organization.
(a) Section 2.1(a) of
the Remainco Disclosure Letter identifies, as of the date hereof, each existing Entity that will be a Subsidiary of Spinco, in each case,
as of immediately following the Spinco Contribution as contemplated by the Separation Plan as of the date hereof and indicates its jurisdiction
of organization.
(b)
(i) Each
of Remainco and Spinco is an Entity duly organized and validly existing under the laws of the jurisdiction of its organization. Remainco
and Spinco are each in good standing (to the extent that the laws of the jurisdiction of its organization recognize the concept of good
standing or any similar concept) under the laws of the jurisdiction of its organization, and has all necessary corporate or other Entity
right, power and authority (A) to conduct its business and, if applicable, any business that will be transferred to it pursuant
to the Separation Agreement in the manner in which its business is currently being conducted; (B) to own and use its assets and,
if applicable, any assets that will be transferred to it pursuant to the Transaction Documents in the manner in which such assets are
currently owned and used; and (C) to perform its obligations under all Contracts by which it is bound or, if applicable, which will
be transferred to it pursuant to the Transaction Documents, other than in the case of clauses (A) through (C) as,
individually or in the aggregate, would not reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as
a whole, or would not reasonably be expected to prevent, materially delay, materially interfere with or materially impair the ability
of any member of the Remainco Group to consummate the Contemplated Transactions.
(ii) Each
member of the Spinco Group (other than Spinco) is (or, if formed after the date hereof, shall be at the Equity Sale Closing Time) an
Entity duly organized and validly existing under the laws of the jurisdiction of its organization. Each member of the Spinco Group (other
than Spinco) is in good standing (to the extent that the laws of the jurisdiction of its organization recognize the concept of good standing
or any similar concept) under the laws of the jurisdiction of its organization, and has all necessary corporate or other Entity right,
power and authority (A) to conduct its business and, if applicable, any business that will be transferred to it pursuant to the
Separation Agreement in the manner in which its business is currently being conducted; (B) to own and use its assets and, if applicable,
any assets that will be transferred to it pursuant to the Transaction Documents in the manner in which such assets are currently owned
and used; and (C) to perform its obligations under all Contracts by which it is bound or, if applicable, which will be transferred
to it pursuant to the Transaction Documents, other than in the case of clauses (A) through (C) as, individually
or in the aggregate, would not reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole, or
would not reasonably be expected to prevent, materially delay, materially interfere with or materially impair the ability of any member
of the Remainco Group to consummate the Contemplated Transactions.
(c) Each
member of the Spinco Group is (or, if formed after the date hereof, shall be at the Equity Sale Closing Time) qualified to do business
as a foreign corporation, and is in good standing (to the extent that the laws of the applicable jurisdiction recognize the concept of
good standing or any similar concept), under the laws of all jurisdictions where the nature of its business requires such qualification,
except for jurisdictions in which the failure to be so qualified or in good standing, individually or in the aggregate, would not reasonably
be expected to be material to the Spinco Business or the Spinco Group, taken as a whole, or would not reasonably be expected to prevent,
materially delay, materially interfere with or materially impair the ability of any member of the Remainco Group to consummate the Contemplated
Transactions.
2.2 Certificate
of Organization and Other Governing Documents. Remainco has delivered or Made Available to Merger Partner and Buyer accurate and
complete copies of the Organizational Documents of Remainco and each member of the Spinco Group, including all amendments thereto as
in effect on the date hereof. Remainco and each member of the Spinco Group has complied with its Organizational Documents except for
such non-compliance that, individually or in the aggregate, would not reasonably be expected to be material to the Spinco Business or
the Spinco Group, taken as a whole.
2.3 Capitalization.
(a) Spinco
Group Capitalization.
(i) On
the date hereof there are ten (10) Spinco Units issued and outstanding. Immediately following the Spinco Contribution, all the outstanding
Spinco Units will be owned directly by Remainco free and clear of any Encumbrance, other than restrictions under applicable securities
Laws. As of the date hereof and as of the Equity Sale Closing Time, all of the outstanding Spinco Units have been and will be duly authorized
and validly issued, and are and will be fully paid and nonassessable and the only Equity Interests of Spinco will be the Spinco Units.
(ii) Section 2.3(a)(ii) of
the Remainco Disclosure Letter sets forth for each member of the Spinco Group, as of the date hereof and, assuming the Separation is
completed, as of immediately following the Spinco Contribution, the member of the Spinco Group that is the record and beneficial owner
of any outstanding Equity Interests of such member of the Spinco Group and the percentage of the total outstanding Equity Interests owned
by such member of the Spinco Group.
(iii) Except
as set forth on Section 2.3(a)(iii) of the Remainco Disclosure Letter, as of the date hereof, there are no outstanding
or existing (A) securities of any member of the Spinco Group convertible into or exchangeable for other Equity Interests of any
member of the Spinco Group; (B) options, calls, warrants, pre-emptive rights, anti-dilution rights or other rights, rights agreements,
shareholder rights plans or other agreements, arrangements or commitments of any character (other than publicly traded options listed
on a national exchange) binding on any member of the Spinco Group that relate to the issued or unissued Equity Interests of any member
of the Spinco Group; (C) obligations of any member of the Spinco Group to repurchase, redeem or otherwise acquire any Equity Interest
of any member of the Spinco Group or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise)
in, any member of the Spinco Group; (D) phantom stock, restricted stock units or other contractual rights binding on any member
of the Spinco Group the value of which is determined in whole or in part by reference to the value of any Equity Interest of any member
of the Spinco Group and there are no outstanding stock appreciation rights issued by any member of the Spinco Group with respect to the
Equity Interests of any member of the Spinco Group; (E) voting trusts or other agreements or understandings to which any member
of the Spinco Group or any of their directors or officers is a party with respect to the voting of Equity Interests of any member of
the Spinco Group; or (F) bonds, debentures, notes or other indebtedness of any member of the Spinco Group having the right to vote
(or convertible into, or exchangeable or exercisable for, securities having the right to vote) on any matter on which the stockholders
or other equityholders of any member of the Spinco Group may vote.
(iv) All
outstanding Spinco Units and other Equity Interests of the members of the Spinco Group have been issued and granted in compliance in
all material respects with (A) all applicable securities Laws and (B) all requirements set forth in applicable Organizational
Documents and were not issued in violation of any preemptive or participation rights. All of the outstanding Equity Interests of each
member of the Spinco Group have been duly authorized and validly issued, are fully paid and nonassessable (to the extent applicable)
and free of preemptive rights, with no personal liability attaching to the ownership thereof. All of the outstanding Equity Interests
of each member of the Spinco Group (other than Spinco) are, or following the Spinco Contribution will be owned beneficially and of record,
directly or indirectly, by Spinco free and clear of any material Encumbrances, other than restrictions under applicable securities Laws
or set forth in their respective Organizational Documents.
(v) Except
for its interests in the other members of the Spinco Group or as set forth on Section 2.3(a)(v)(I) of the Remainco Disclosure
Letter, as of the Equity Sale Closing Time, Spinco will not own, directly or indirectly, any Equity Interests in, other Entities with
an aggregate value in excess of $2,500,000. Except as set forth on Section 2.3(a)(v)(II) of the Remainco Disclosure
Letter, no member of the Spinco Group has any obligation in connection with any joint venture, investment Contract or similar Contract
to contribute or loan any funds to other Persons in excess of $2,500,000 individually or in the aggregate.
(b) Remainco
Capitalization.
(i) As
of the close of business on July 25, 2024 (the “Remainco Specified Time”), (A) a maximum of zero (0) of
Remainco Ordinary Shares may be issued in connection with Remainco RSUs held by Spinco Employees, (B) a maximum of 2,318,524 of
Remainco Ordinary Shares may be issued in connection with Remainco PSUs held by Spinco Employees and (C) a maximum of zero (0) of
Remainco Ordinary Shares are subject to stock options held by Spinco Employees.
(ii) Remainco
has delivered or Made Available to Merger Partner and Buyer a complete and accurate list that sets forth the following information with
respect to Remainco Equity Awards held by a Spinco Employee as of the Remainco Specified Time: (A) the type of such Remainco Equity
Award (i.e., whether a Remainco RSU or Remainco PSU); (B) the name of the Remainco Equity Plan under which the Remainco Equity Award
was issued; (C) the number of Remainco Ordinary Shares subject to such Remainco Equity Award; (D) the per share exercise price
(if any) of such Remainco Equity Award; (E) the applicable vesting schedule in respect of such Remainco Equity Award; (F) the
number of Remainco Ordinary Shares which are vested and unvested with respect to the Remainco Equity Award; (G) the grant date of
the Remainco Equity Award; and (H) the expiration date of the term of such Remainco Equity Award (if applicable).
(iii) There
are no outstanding or existing obligations of any member of the Remainco Group to repurchase, redeem or otherwise acquire any Equity
Interests of any member of the Spinco Group or to provide funds to, or make any investment (in the form of a loan, capital contribution
or otherwise) in, any member of the Spinco Group.
(iv) Except
as permitted after the date hereof pursuant to Section 5.2, there are no Spinco Employees or independent contractors with
an offer letter, other employment Contract or other arrangement or Contract that contemplates a grant of options to purchase Remainco
Ordinary Shares or of any other equity or equity-based award, or who has otherwise been promised options to purchase Remainco Ordinary
Shares or other securities of Remainco, which options or other awards have not been granted as of the Remainco Specified Time. All Remainco
Equity Awards held by Spinco Employees and all other outstanding securities of the members of the Spinco Group have been issued and granted
in compliance in all material respects with (A) all applicable securities Laws and other applicable Law and (B) all requirements
set forth in applicable Contracts.
2.4 Authority;
Binding Nature of Agreement. Remainco and Spinco each have all requisite corporate or other Entity right, power and authority to
enter into and perform their respective obligations under the Transaction Documents, as applicable, to which it is or will be a party
and has all requisite corporate or other Entity right, power and authority to consummate the Contemplated Transactions. The Special Committee,
at a meeting duly called and held and not subsequently rescinded or modified in any way, has (a) determined that this Agreement,
the other Transaction Documents, the Separation and the Equity Sale are most likely to promote the success of Remainco for the benefit
of its members as a whole and Spinco and its members, respectively, and (b) authorized and approved the execution, delivery and
performance of the Transaction Documents by Remainco and Spinco, as applicable, and approved the Contemplated Transactions. No vote of
Remainco’s shareholders is necessary to consummate the Contemplated Transactions. This Agreement has been duly executed and delivered
by Remainco and Spinco, and assuming the due authorization, execution and delivery of this Agreement by Merger Partner, Buyer and Buyer
Sub, this Agreement constitutes a legal, valid and binding obligation of each of Remainco and Spinco, enforceable against each of Remainco
and Spinco in accordance with its terms, subject to the effect of any applicable bankruptcy, reorganization, insolvency, moratorium,
rehabilitation, liquidation, fraudulent conveyance or similar Laws relating to or affecting creditors’ rights generally and subject,
as to enforceability, to the effect of general equitable principles (regardless of whether such enforceability is considered in a proceeding
in equity or at law) (the “Bankruptcy and Equity Exceptions”). The Separation Agreement, the Employee Matters Agreement,
the Intellectual Property License Agreement, the Real Estate Matters Agreement and the Tax Matters Agreement have been (and the Transition
Services Agreement and the IP License and Technology Agreements will be as of immediately prior to the Equity Sale Closing Time) duly
executed and delivered, as applicable, by the members of the Remainco Group that are or will be party thereto, and assuming the due authorization,
execution and delivery of such agreements by the applicable members of the Merger Partner Group and the applicable Buyer Parties, each
such agreement does (or, in the case of each of the Transition Services Agreement and the IP License and Technology Agreements will when
executed and delivered) constitute a legal, valid and binding obligation of each member of the Remainco Group party thereto, as applicable,
enforceable against each of them party thereto in accordance with its terms, subject to the Bankruptcy and Equity Exceptions.
2.5 Non-Contravention;
Consents.
(a) Assuming
compliance with the applicable provisions of the Companies Act, the HSR Act and all applicable foreign Antitrust Laws and FDI Laws, the
listing requirements of the NYSE, and provided that all consents, approvals, authorizations and other actions described in Section 2.5(b) have
been obtained or taken, except as set forth in Section 2.5(a) of the Remainco Disclosure Letter, neither (1) the
execution, delivery or performance of this Agreement or the other Transaction Documents nor (2) the consummation of any of the Contemplated
Transactions, will, directly or indirectly (with or without notice or lapse of time) (i) require a consent or approval under, contravene,
conflict with or result in a violation of any of the provisions of the Organizational Documents of (A) Remainco or Spinco or (B) any
other member of the Spinco Group, except, in the case of clause (B), where such consent, approval, contravention, conflict
or violation, individually or in the aggregate, would not reasonably be expected to (1) be material to the Spinco Business or the
Spinco Group, taken as a whole, or (2) prevent or materially delay, materially interfere with or materially impair the consummation
by the members of the Remainco Group of the Equity Sale or any of the other material Contemplated Transactions; (ii) contravene,
conflict with or result in a violation of, or give any Governmental Authority or other Person the right to challenge the Contemplated
Transactions or to exercise any remedy to obtain any relief under, any Law or any Governmental Order to which any member of the Remainco
Group, or any of the assets owned or used by any member of the Spinco Group, is subject, except where such contravention, conflict, violation,
challenge or remedy, individually or in the aggregate, would not reasonably be expected to (1) be material to the Spinco Business
or the Spinco Group, taken as a whole, or (2) prevent or materially delay, materially interfere with or materially impair the consummation
by the members of the Remainco Group of the Equity Sale or any of the other material Contemplated Transactions; (iii) contravene,
conflict with or result in a violation of any of the terms or requirements of any Permit that is held by any member of the Spinco Group
or that relates to the Spinco Business or to any of the assets owned or used by any member of the Spinco Group or the Spinco Business,
except where such contravention, conflict or violation, individually or in the aggregate, would not reasonably be expected to (A) be
material to the Spinco Business or the Spinco Group, taken as a whole, or (B) prevent or materially delay, materially interfere
with or materially impair the consummation by the members of the Remainco Group of the Equity Sale or any of the other material Contemplated
Transactions; or (iv) require a consent or approval under, contravene, conflict with or result in a violation or breach of, or result
in a termination (or right of termination) or default under, any provision of any Spinco Material Contract, or give any Person the right
to (A) declare a default or exercise any remedy under any such Spinco Material Contract; (B) accelerate the maturity or performance
of any such Spinco Material Contract (other than any Remainco Benefit Arrangement); (C) cancel, terminate or modify any right, benefit,
obligation or other term of such Spinco Material Contract; or (D) result in the imposition or creation of any Encumbrance (other
than a Permitted Encumbrance) upon or with respect to any asset owned or used by any member of the Spinco Group or the Spinco Business,
in each case, except where such consent, approval, contravention, conflict, violation, default, acceleration, cancellation, termination,
modification or Encumbrance, individually or in the aggregate, would not reasonably be expected to (1) be material to the Spinco
Business or the Spinco Group, taken as a whole, or (2) prevent or materially delay, materially interfere with or materially impair
the consummation by the members of the Remainco Group of the Equity Sale or any of the other material Contemplated Transactions.
(b) Except
(i) as set forth in Section 2.5(b) of the Remainco Disclosure Letter, or (ii) as may be required by the Securities
Act, the Exchange Act, state securities Laws or “blue sky” Laws, the Companies Act, the receipt of Governmental Approvals
under the HSR Act, Gaming Laws, all applicable foreign Antitrust Laws and FDI Laws, Financial Services Laws or the listing requirements
of the NYSE, no member of the Remainco Group is or will be required to make any filing with or give any notice to, or to obtain any Consent
from, any Governmental Authority in connection with (A) the execution, delivery or performance of this Agreement or the other Transaction
Documents or (B) the consummation of any of the Contemplated Transactions, except where the failure to make any such filing or give
any such notice or to obtain any such Consent would not, individually or in the aggregate, reasonably be expected to (1) be material
to the Spinco Business or the Spinco Group, taken as a whole, or (2) prevent or materially delay, materially interfere with or materially
impair the consummation by the members of the Remainco Group of the Equity Sale or any of the other material Contemplated Transactions.
2.6 Financial
Statements.
(a) Section 2.6(a) of
the Remainco Disclosure Letter sets forth (i) (A) the audited, combined balance sheet of the Spinco Business (the “Spinco
Reference Balance Sheet”) as of December 31, 2023 and the audited combined statements of operations, other comprehensive
income, net parent investment and cash flows of the Spinco Business for the year ended on December 31, 2023, together with all related
notes thereto and (B) the audited, combined balance sheet of the Spinco Business as of December 31, 2022 and the audited combined
statements of operations, other comprehensive income, net parent investment and cash flows of the Spinco Business for the year ended
on December 31, 2022, together with all related notes thereto (collectively, the “Spinco Business Audited Financial Statements”)
and (ii) the unaudited combined balance sheet of the Spinco Business as of the Spinco Reference Balance Sheet Date and the unaudited
combined statements of operations, other comprehensive income, net parent investment and cash flows of the Spinco Business for the three
(3)-month period ended on the Spinco Reference Balance Sheet Date (the “Spinco Business Interim Financial Statements”,
and together with the Spinco Business Audited Financial Statements, the “Spinco Business Financial Statements”). The
Spinco Business Financial Statements (1) have been derived from Remainco’s consolidated financial information and other books
and records of the Remainco Group, (2) have been prepared in good faith by management of Remainco from source documentation subject
to the controls and procedures of Remainco’s accounting systems, (3) were prepared in accordance with GAAP consistently applied
based on the historic practices and accounting policies of Remainco (to the extent compliant with GAAP) throughout the periods involved,
except as noted therein, and (4) conform in all material respects to the published rules and regulations of the SEC applicable
to financial statements for such periods. The books, records and other financial reports of Remainco relating to the operations of the
Spinco Business used by Remainco as source documentation for the Spinco Business Financial Statements are correct in all material respects
and have been maintained in accordance with sound business practices. The Spinco Business Financial Statements fairly present, in all
material respects, the financial position, the results of operations and cash flows of the Spinco Business, in the aggregate, as of the
dates thereof and for the periods presented; provided that (A) the Spinco Business has not operated on a separate standalone
basis and has historically been reported within Remainco’s combined financial statements and (B) the Spinco Business Financial
Statements assume certain allocated charges and credits, which do not necessarily reflect what the consolidated results of operations
and financial positions would have been if the Spinco Business had been operated a standalone basis independently of the Remainco Retained
Business during the periods presented. The Spinco Business Audited Financial Statements have been audited in accordance with AICPA auditing
standards and with the auditing standards generally accepted in the United States by a PCAOB-registered auditor.
(b) The
members of the Spinco Group are not subject to any Liabilities of any nature whatsoever (whether accrued, absolute, contingent or otherwise)
required to be reflected on a balance sheet prepared in accordance with GAAP, except (i) as set forth in Section 2.6(b) of
the Remainco Disclosure Letter or the Spinco Business Financial Statements; (ii) for those Liabilities that have been incurred by
the members of the Spinco Group since the Spinco Reference Balance Sheet Date in the ordinary course of the Spinco Business consistent
with past practice; (iii) for Remainco Retained Liabilities; (iv) for Liabilities under this Agreement or the Separation Agreement
or incurred in connection with the Contemplated Transactions and in compliance with the Transaction Documents; and (v) for Liabilities
that do not, individually or in the aggregate, exceed $7,500,000.
(c) When
delivered pursuant to Section 6.8, the Audited Financial Statements and the Interim Financial Statements will have been prepared
in accordance with GAAP, consistently applied based on the historic practices and accounting policies of Remainco (to the extent compliant
with GAAP) throughout the periods involved (except that the Interim Financial Statements may not contain footnotes and are subject to
normal and recurring year-end adjustments, none of which will be material), and fairly present in all material respects the financial
position, results of operations and cash flows of the Spinco Business as of the dates and for the periods presented on the basis for
the periods presented (subject to year-end adjustments, in the case of the Interim Financial Statements); provided that (i) the
Spinco Business has not operated on a separate standalone basis and has historically been reported within Remainco’s combined financial
statements and (ii) the Audited Financial Statements and the Interim Financial Statements assume certain allocated charges and credits,
which do not necessarily reflect what the consolidated results of operations and financial positions would have been if the Spinco Business
had been operated a standalone basis independently of the Remainco Retained Business during the periods presented. The Audited Financial
Statements and the Interim Financial Statements shall conform in all material respects to the published rules and regulations of
the SEC applicable to financial statements for such periods.
(d) Remainco
has delivered or Made Available to Merger Partner and Buyer accurate and complete copies of all Remainco SEC Documents. All statements,
reports, schedules, forms and other documents required to have been filed by Remainco or its officers with the SEC since the Lookback
Date have been so filed on a timely basis. None of the members of the Spinco Group is required to file any documents with the SEC. As
of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date hereof, then on the date of such filing)
(i) each of the Remainco SEC Documents complied as to form in all material respects with the applicable requirements of the Securities
Act or the Exchange Act (as the case may be) and (ii) none of the Remainco SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Each of the certifications and statements relating to the Remainco SEC Documents
required by (A) Rule 13a-14 or Rule 15d-14 under the Exchange Act; (B) 18 U.S.C. §1350 (Section 906 of
the Sarbanes-Oxley Act); or (C) any other rule or regulation promulgated by the SEC or applicable to the Remainco SEC Documents
(collectively, the “Remainco Certifications”) is accurate and complete, and complies as to form in all material respects
with all applicable Law.
(e) The
Remainco Group maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act with
respect to the Remainco Group. Such disclosure controls and procedures are effective to ensure that all information required to be disclosed
by Remainco is reported on a timely basis to the individuals responsible for the preparation of Remainco Group filings with the SEC and
other public disclosure documents. Remainco’s management has completed an assessment of the effectiveness of the Remainco Group’s
internal control over financial reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal
year ended as of December 31, 2023, and such assessment concluded that such internal control system was effective. Remainco’s
internal control over financial reporting (as defined in Rule 13a-15 or Rule 15d-15, as applicable, under the Exchange Act)
is effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP and includes policies and procedures that (i) pertain to the maintenance of records
that are in reasonable detail and accurately and fairly reflect the transactions and dispositions of the assets of the Remainco Group;
(ii) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance
with GAAP, and that receipts and expenditures of the Remainco Group are being made only in accordance with authorizations of management
and directors of Remainco; and (iii) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition,
use or disposition of the Remainco Group’s assets that could have a material effect on its financial statements.
(f) Remainco
has disclosed, based on its assessment of internal controls as of the Spinco Reference Balance Sheet Date, to Remainco’s auditors
and audit committee (i) any significant deficiencies and material weaknesses in the design or operation of internal controls over
financial reporting which are reasonably likely to adversely affect Remainco’s ability to record, process, summarize and report
financial information with respect to the Spinco Business and (ii) any fraud, whether or not material, that involves management
or other employees who have a significant role in Remainco’s internal control over financial reporting with respect to the Spinco
Business.
(g) Remainco’s
auditor has at all times since the date of enactment of the Sarbanes-Oxley Act been (i) a registered public accounting firm (as
defined in Section 2(a)(12) of the Sarbanes-Oxley Act); (ii) “independent” with respect to Remainco within the
meaning of Regulation S-X under the Exchange Act; and (iii) to the Knowledge of Remainco, in compliance with subsections (g) through
(l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company Accounting
Oversight Board (the “PCAOB”) thereunder. All non-audit services performed by Remainco’s auditors for the Remainco
Group that were required to be approved in accordance with Section 202 of the Sarbanes-Oxley Act were so approved.
(h) None
of the information supplied or to be supplied by or on behalf of Remainco or Spinco for inclusion or incorporation by reference in the
Merger Partner Proxy Statement will (i) at the time the Merger Partner Proxy Statement is filed with the SEC or (ii) after
giving effect to any amendments or supplements that have theretofore been made thereto, (A) at the time the Merger Partner Proxy
Statement is first mailed to the stockholders of Merger Partner or (B) at the time of the Merger Partner Stockholders’ Meeting
(or any adjournment or postponement thereof), contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading.
2.7 Absence
of Certain Changes. Except as contemplated by this Agreement or the other Transaction Documents (including the Separation), since
December 31, 2023, (a) the members of the Remainco Group (to the extent related to the Spinco Business) have conducted the
Spinco Business in all material respects in the ordinary course consistent with past practice, (b) there has not occurred any event
or events that, individually or in the aggregate, have had or would reasonably be expected to have a Spinco Material Adverse Effect and
(c) none of Remainco or any member of the Spinco Group has taken any action or failed to take any action that would constitute a
breach of Sections 5.2(b)(iii), 5.2(b)(iv), 5.2(b)(vi), 5.2(b)(xii), 5.2(b)(xiii) (solely with
respect to material waivers, amendments and terminations), 5.2(b)(xiv), 5.2(b)(xv), 5.2(b)(xvi), 5.2(b)(xvii) 5.2(b)(xix),
5.2(b)(xx), 5.2(b)(xxi), or 5.2(b)(xxiii) (solely with respect to the foregoing Sections) had such Sections
been in effect from December 31, 2023.
2.8 Sufficiency
of Assets; Title to Assets.
(a) On
the Closing Date (after giving effect to the Separation and assuming the receipt of all consents, approvals and authorizations under
any Contracts, Intellectual Property, Laws and Permits, including relating to the matters set forth in Section 2.5(a) or
Section 2.5(b) of the Remainco Disclosure Letter or as contemplated by Section 2.5), the Spinco Assets and
the properties and rights of the members of the Spinco Group, taken together with the benefits of any alternative arrangements actually
provided pursuant to Section 1.4 of the Separation Agreement, the services available from Remainco under the Transition Services
Agreement and the licenses and agreements from Remainco under the Intellectual Property License Agreement, the IP License and Technology
Agreements, the Real Estate Matters Agreement and the other Transaction Documents, will constitute all of the assets, rights and properties
(other than Intellectual Property (which are addressed in Section 2.10(j)) and rights under Insurance Policies) necessary
to conduct the Spinco Business immediately following the Closing Date in all material respects in substantially the same manner as the
Spinco Business is being conducted as of the date hereof, as it has been conducted in the twelve (12) months prior to the date hereof
and as conducted as of the Closing; provided that (i) nothing in this Section 2.8 shall be deemed to constitute
a representation or warranty regarding (A) the adequacy of the amounts of cash or working capital (or the availability of the same),
(B) whether the Spinco Employees who become (or remain) employed by a member of the Spinco Group following the Closing will be sufficient
to permit Buyer and the members of the Spinco Group to conduct the Spinco Business immediately following Closing in all material respects
in substantially the same manner as it is conducted immediately prior to Closing or (C) any infringement, misappropriation, dilution
or violation of any Intellectual Property of any Third Party (which are addressed in Section 2.10); and (ii) the representations
and warranties set forth in this Section 2.8 shall not be breached or inaccurate or deemed to be breached or inaccurate as
a result of any Remedial Action taken with respect to Remainco or any member of the Spinco Group in accordance with Section 6.3
or for which Buyer has provided its written consent (including pursuant to Section 5.2). The buildings, plants, structures,
furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property included in the Spinco Assets are structurally
sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such buildings,
plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property is in need of maintenance
or repairs except (i) for ordinary, routine maintenance and repairs or (ii) as would not, individually or in the aggregate,
reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole.
(b) The
members of the Spinco Group own as of the date hereof, or will own as of the Closing (assuming the consummation of the Separation Plan
as in effect on the date hereof), and have as of the date hereof, or will have as of the Closing (assuming the consummation of the Separation
Plan as in effect on the date hereof), good and valid title, in all material respects, to all assets purported to be owned by them, including
(i) all assets reflected on the Spinco Business Financial Statements, including the Spinco Assets, except for assets sold or otherwise
disposed of in the ordinary course of business since the Spinco Reference Balance Sheet Date, and (ii) all other assets reflected
in the books and records of the members of the Spinco Group as being owned by a member of the Spinco Group. All of such assets are owned,
or will be owned assuming the consummation of the Separation Plan (as in effect on the date hereof) by the members of the Spinco Group
free and clear of any Encumbrances, except (A) where the failure to have such good and valid title results from any liens described
in Section 2.8(b) of the Remainco Disclosure Letter or (B) any other Permitted Encumbrance. The members of the Spinco
Group are the lessees of (or will be lessees of assuming the consummation of the Separation Plan (as in effect on the date hereof)), and
hold valid leasehold interests in (or will hold valid leasehold interests in assuming the consummation of the Separation Plan (as in effect
on the date hereof)), all personal property purported to have been leased by them, and the members of the Spinco Group enjoy (or will
enjoy assuming the consummation of the Separation Plan (as in effect on the date hereof)) undisturbed possession of such leased personal
property, except where the failure to have such valid leasehold interest results from any liens described in Section 2.8(b) of
the Remainco Disclosure Letter, liens created or otherwise imposed by any Buyer Party or any other Permitted Encumbrance.
2.9 Real
Property.
(a) The
members of the Spinco Group hold, or will hold (assuming the Separation is completed), valid fee simple title to the Spinco Owned Real
Property set forth in Section 2.9(a) of the Remainco Disclosure Letter, in each case, free and clear of Encumbrances
other than Permitted Encumbrances. Neither the whole nor any part of the Spinco Owned Real Property is subject to any pending suit for
condemnation or other taking by any Governmental Authority and, to the Knowledge of Remainco, no such condemnation or other taking is
threatened or contemplated. To the Knowledge of Remainco, all improvements constituting part of the Spinco Owned Real Property (i) comply
with valid and current certificates of occupancy or similar Permits to the extent required by applicable Laws for the use thereof, (ii) are
in good operating condition and repair (ordinary wear and tear excepted), (iii) are adequately served with all necessary utilities
for the operation of the business of the Spinco Business in the ordinary course of business in all material respects, and (iv) have
current uses and operations that do not violate in any material respect any Laws, covenants, conditions, restrictions, easements, licenses,
permits, or agreements except in the case of clauses (i) through (iv), as would not, individually or in the aggregate,
reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole.
(b) The
members of the Spinco Group have, or will have after giving effect to the Contemplated Transactions described in or contemplated by the
Separation Agreement and the Real Estate Matters Agreement, a valid leasehold interest (as lessee, sublessee, licensee or sublicensee)
in all real property leased, licensed or otherwise used by the members of the Spinco Group (collectively with all buildings, structures,
fixtures and other improvements leased thereunder, the “Spinco Leased Real Property”). After giving effect to the Contemplated
Transactions described in or contemplated by the Separation Agreement and the Real Estate Matters Agreement, each of the leases or other
Contracts relating to the Spinco Leased Real Property will create (or will have created) as of the Closing (i) a valid and subsisting
leasehold interest, or valid right to use, of one of the members of the Spinco Group; (ii) a valid and binding obligation of such
member of the Spinco Group free of Encumbrances (other than Permitted Encumbrances); and (iii) enforceable by and against such member
of the Spinco Group in accordance with its terms except in the case of clauses (i) through (iii), as would not,
individually or in the aggregate, reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole.
None of the members of the Spinco Group, nor, to the Knowledge of Remainco, any other party to any such lease or other Contract (each,
a “Spinco Real Property Lease”) is in breach or default under such Spinco Real Property Lease, and no event has occurred
or failed to occur or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a breach
or default, or permit the termination, modification or acceleration of rent under such Spinco Real Property Lease, except as individually
or in the aggregate, would not reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole. Remainco
has Made Available to Merger Partner and Buyer complete and correct copies of (A) all leases, licenses, subleases or other Contracts
pursuant to which any member of the Spinco Group leases or uses (or intends to lease or use upon the Spinco Contribution) real property
and (B) all subleases, licenses, occupancy agreements and other Contracts granting to any Person (other than any member of the Spinco
Group ) a right of use or occupancy of any of the Spinco Leased Real Property in effect as of the date hereof. There are no material disputes
with respect to any Spinco Real Property Lease. The Spinco Leased Real Property is adequately served with all necessary utilities for
the operation of the business of the Spinco Business in the ordinary course of business in all material respects and has current uses
and operations that do not violate in any material respect any Laws, covenants, conditions, restrictions, easements, licenses, permits,
or agreements. Except as set forth in Section 2.9(b) of the Remainco Disclosure Letter, no consent of any lessor, sublessor,
licensor or other third-party to a Spinco Real Property Lease is required in connection with the execution and delivery of this Agreement
or the other Transaction Documents by the applicable members of the Spinco Group or the consummation of the Contemplated Transactions.
Section 2.9(b) of the Remainco Disclosure Letter includes an accurate and complete list, as of the date hereof, of all
Spinco Real Property Leases.
(c) None
of the members of the Remainco Group (to the extent related to the Spinco Business) owns, leases, subleases, licenses or occupies any
real property other than the Spinco Real Property.
2.10 Intellectual
Property.
(a) Section 2.10(a) of
the Remainco Disclosure Letter identifies, as of the date hereof, each item of Registered IP included in the Spinco Owned Intellectual
Property (the “Spinco Registered IP”). For each item of Registered IP, Section 2.10(a) of the Remainco
Disclosure Letter includes, where applicable, as of the date hereof (excluding with respect to internet domain names), (i) the current
owner and the current registrant; (ii) the jurisdiction where the application, registration or issuance is filed; (iii) the
application, registration or issue number; and (iv) the application, registration or issue date.
(b) The
Spinco Registered IP is, to the Knowledge of Remainco, subsisting, valid and enforceable. A member of the Remainco Group owns and has
the right to transfer to the Spinco Group all Spinco Owned Intellectual Property. Except as would not, individually or in the aggregate,
reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole, the Spinco Owned Intellectual Property
is solely owned by a member of the Remainco Group free and clear of all Encumbrances, except for Permitted Encumbrances. The members of
the Remainco Group (to the extent related to the Spinco Business) have taken commercially reasonable actions to maintain the confidentiality
of all trade secrets and other material confidential information included in the Spinco Owned Intellectual Property.
(c) To
the Knowledge of Remainco, since the Lookback Date, the operation of the Spinco Business, including the sale of any products or the provision
of any services by the members of the Spinco Group, has not infringed, misappropriated, diluted or violated any Intellectual Property
of any third party. To the Knowledge of Remainco, since the Lookback Date, no Person has been or is engaging in any activity that infringes,
misappropriates, dilutes or violates any of the Spinco Owned Intellectual Property.
(d) There
is no pending Action with respect to which any member of the Remainco Group (to the extent related to the Spinco Business) has been served
with written notice, or any other Action pending or threatened in writing against any member of the Remainco Group (to the extent related
to the Spinco Business) alleging that the operation of the Spinco Business as conducted since the Lookback Date, including the sale of
any products or the provision of any services by the members of the Spinco Group, infringes, misappropriates, dilutes or violates the
Intellectual Property of any third party in any manner which would, individually or in the aggregate, reasonably be expected to be material
to the Spinco Business or the Spinco Group, taken as a whole.
(e) Each
current and former employee, consultant and contractor of any member of the Remainco Group (to the extent related to the Spinco Business)
who materially contributed to the development of any material Spinco Owned Intellectual Property has executed a written Contract in a
form substantially as that which has been provided by the Remainco Group (i) assigning all right, title, and interest of such employee,
consultant or contractor in such developments to a member of the Remainco Group, as applicable, except where a member of the Remainco
Group owns the Spinco Owned Intellectual Property by operation of law, and (ii) acknowledging confidentiality obligations that
such employee, consultant or contractor has with respect to the treatment of confidential information of any confidential materials of
the Spinco Group or any third party.
(f) The
members of the Remainco Group have taken commercially reasonable steps to maintain the confidentiality of and otherwise protect and enforce
their respective rights in all trade secrets and material proprietary information pertaining to the Spinco Business and the products and
services of the members of the Spinco Group.
(g) The
manner in which any Open Source Software is incorporated into, linked to or called by, or otherwise combined or distributed with any
Spinco Owned Software has complied, in all materials respects, with the terms of the Open Source Software license applicable to such
Software and does not, according to the terms of the license applicable to such Open Source Software, obligate any member of the Remainco
Group (to the extent related to the Spinco Business) to disclose, make available, offer or deliver all or any portion of any source code
of any such software product or service or any component thereof to any third party, other than the applicable Open Source Software.
(h) No
material source code for any Spinco Owned Software has been made available to any third party except for disclosures to third parties
subject to written agreements containing reasonable protections of such source code.
(i) No
Spinco Owned Intellectual Property is subject to any outstanding judgment, injunction, Governmental Order, decree or agreement materially
restricting any member of the Remainco Group’s (to the extent related to the Spinco Business) use or licensing thereof.
(j) A
member of the Remainco Group owns or otherwise has, and after giving effect to the Separation and the Intellectual Property License Agreement
(and assuming the transfer of Spinco Employees to the applicable members of the Spinco Group and the receipt of all consents, approvals
and authorizations under any Contracts, Intellectual Property and Permits set forth in Section 2.5(a) or Section 2.5(b) of
the Remainco Disclosure Letter or as contemplated by Section 2.5) one of the members of the Spinco Group will have (including
after giving effect to the contemplated transfers under the Separation Agreement and the Intellectual Property License Agreement), taken
together with the benefits of any alternative arrangements provided pursuant to Section 2.5 of the Separation Agreement, the services
available from Remainco under the Transition Services Agreement and the licenses from Remainco under the Intellectual Property License
Agreement and the IP License and Technology Agreements, all Intellectual Property and Technology needed to conduct the Spinco Business
immediately following the Closing Date in all material respects in substantially the same manner as it is being conducted as of the date
hereof and as it has been conducted in the twelve (12) months prior to the date hereof and as conducted as of the Closing.
2.11 Contracts.
(a) Section 2.11(a) of
the Remainco Disclosure Letter contains a true and correct list of each of the following undischarged or unsatisfied Contracts in force
as of the date hereof to which any member of the Remainco Group is a party that are primarily used in or primarily related to the Spinco
Business or which are contemplated after giving effect to the Separation to be binding on a member of the Spinco Group (each such Contract,
a “Spinco Material Contract”):
(i) any
Contract that involved during the twelve (12) months ended on the Spinco Reference Balance Sheet Date aggregate payments or receipts in
excess of $25,000,000 by the Spinco Business or any Contract under which the Spinco Business reasonably expects to receive or make payments
during the twelve (12) months ending on December 31, 2024 in excess of $25,000,000;
(ii) any
distribution, dealer, representative, agency or similar Contract that involved during the twelve (12) months ended on the Spinco Reference
Balance Sheet Date, or is expected to involve during the twelve (12) months ending on December 31, 2024, aggregate payments in
excess of $25,000,000, other than any such Contract that is terminable on less than sixty (60) days’ notice without penalty or
payment in connection with termination (other than amounts accrued prior to such termination);
(iii) any
Contract that involved a non-affiliated Person license (as licensor or licensee) of Intellectual Property or Software to or from the
Spinco Business that involved during the twelve (12) months ended on the Spinco Reference Balance Sheet Date, or is expected to involve
during the twelve (12) months ending on December 31, 2024, aggregate payments in excess of $25,000,000, or pursuant to which any
third party creates, develops or customizes Intellectual Property or Software material to the operation of the Spinco Business as conducted
on the date hereof for or on behalf of the Spinco Business to the extent created, developed or customized exclusively in connection with
the Spinco Business, except to the extent (A) any of the foregoing is shrink-wrap or off-the-shelf license for Software or (B) were
entered into in the ordinary course of business consistent with past practice where such licenses were incidental to the transactions
contemplated by such Contracts;
(iv) any
Contract that is material to the Spinco Business that (A) prohibits the Spinco Business from engaging or competing in any line
of business, in any geography or with any Entity (other than any Contract that would otherwise be included in this clause solely because
it requires any member of the Remainco Group with respect to the Spinco Business to operate in a geographic location where wager-based
gaming is permitted by Laws, or with a Person properly licensed to sell or otherwise place wager-based games), (B) requires the
Spinco Business to deal exclusively with any Person or contains “most favored nation” or similar provision in favor of the
counterparty thereto, (C) is with a vendor, supplier or service provider and requires the Spinco Business to purchase a minimum
amount of product or provide a minimum amount of revenue to the counterparty and was entered into outside the ordinary course of business
or (D) was entered into outside the ordinary course of business and prohibits the Spinco Business from soliciting any customer
of another Person;
(v) any
collective bargaining agreements (including any material memorandums of understanding), works council or similar labor Contracts with
a labor union or works council or similar organization;
(vi) any
mortgage, deeds of trust, indenture, loan or credit agreement, security agreement or other agreement or instrument evidencing the Indebtedness
of any member of the Spinco Group in excess of $10,000,000 (other than Indebtedness between members of the Spinco Group);
(vii) any
Contract that creates a strategic alliance, joint venture or partnership with a Person that is not a member of the Remainco Group, profit
sharing or other similar Contract with respect to the Spinco Business and is material to the Spinco Business;
(viii) any
Contract to which any member of the Spinco Group is a party in favor of a credit support provider relating to a Credit Support Instrument
with aggregate face amounts in excess of $20,000,000;
(ix) any
Contract for the pending acquisition or disposition of any business or Person with a purchase price in excess of $10,000,000 or any Contract
with respect to any consummated acquisition or disposition of a business under which the Spinco Business has any future liability with
respect to an “earn-out,” contingent purchase price, deferred purchase price or similar contingent payment obligations in
excess of $10,000,000 individually;
(x) any
Contract with a Spinco Top Customer that provides for some or all of the payments from such Person that resulted in such Person being
considered a Spinco Top Customer;
(xi) any
Contract with a Spinco Top Supplier that provides for some or all of the payments to such Person that resulted in such Person being considered
a Spinco Top Supplier;
(xii) any
Contract with a Governmental Authority that is not a customer Contract and is material to the Spinco Business;
(xiii) any
Contract containing any future capital expenditure obligation of the members of the Spinco Group or the Spinco Business in excess of
$5,000,000;
(xiv) any
Contract that restricts the ability of any member of the Spinco Group from pledging any of its assets or making a dividend or distribution
to any holder of its Equity Interests; and
(xv) any
Contract with (A) a provider of transaction processing or settlement services for the funding of transfers initiated using products
of the members of the Spinco Group; (B) any Person appointing any member of the Spinco Group to act as the agent or authorized
delegate of such Person pursuant to any Money Services Laws; or (C) any Person providing services to the Spinco Group in connection
with the purchase, sale, exchange, trading or custody of virtual currency or digital assets.
(b) Remainco
has delivered or Made Available to Merger Partner and Buyer an accurate and complete copy of each Spinco Material Contract. Except as
would not, individually or in the aggregate, reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as
a whole, (i) each Spinco Material Contract is a legal, valid and binding obligation of a member of the Remainco Group (to the extent
related to the Spinco Business), and, to the Knowledge of Remainco, each other party to such Spinco Material Contract, and is enforceable
against the applicable member of the Remainco Group, and, to the Knowledge of Remainco, such other party, in accordance with its terms
subject, in each case, to the effect of any Bankruptcy and Equity Exceptions, and (ii) neither the applicable member of the Remainco
Group nor, to the Knowledge of Remainco, any other party to a Spinco Material Contract is in material default or breach of a Spinco Material
Contract, and, to the Knowledge of Remainco, there does not exist any event, condition or omission that would constitute such a material
default or breach by any member of the Remainco Group (whether by lapse of time or notice or both) under any Spinco Material Contract.
2.12 Compliance
with Laws; Regulatory Matters.
(a) Each
member of the Remainco Group (to the extent related to the Spinco Business) is, and since the Regulatory Lookback Date has been, in compliance
with all applicable Laws, including Laws relating to money transmission, virtual currency or other digital assets, consumer protection,
credit reporting, data privacy, financial privacy, cybersecurity, securities Law matters, and payment services Law matters (including
payment network rules) and Governmental Orders directly applicable to it, except where failure to so comply would not, individually or
in the aggregate, reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole. Since the Regulatory
Lookback Date, none of the members of the Remainco Group (to the extent related to the Spinco Business) have received any written notice
or other written communication from any Governmental Authority or any written notice from any other Person (i) regarding any actual
or possible violation of, or failure to comply with, any Law or (ii) that it is or has been the subject of any inspection, investigation,
survey, audit, monitoring or other form of review by any Governmental Authority, except as would not, individually or in the aggregate,
reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole.
(b) Since
the Regulatory Lookback Date, none of the members of the Spinco Group have been in violation of Money Services Laws, or, to the extent
applicable, denied a Money Services Permit or other Permit by any Governmental Authority or had any Money Services Permit or other Permit
revoked or suspended.
(c) Each
member of the Remainco Group is, and at all times since the Regulatory Lookback Date has been, in compliance with all applicable Laws,
including the Bank Secrecy Act and the USA PATRIOT Act, related to recordkeeping, reporting, and the prevention of money laundering or
terrorist financing (collectively, the “Anti-Money Laundering Laws”). None of the members of the Remainco Group or
any of their respective directors, officers, employees or, to the Knowledge of Remainco, agents designated by the applicable member of
the Remainco Group to act on behalf of any member of the Spinco Group is in violation of any applicable Anti-Money Laundering Laws.
(d) Since
the Regulatory Lookback Date, none of the members of the Remainco Group (to the extent related to the Spinco Business) have (i) received
written notice of any actual, alleged or potential violation of any Anti-Money Laundering Laws or (ii) been a party to or the subject
of any pending (or to the Knowledge of Remainco, threatened) action, audit, or investigation, by or before any Governmental Authority
(including receipt of any subpoena) related to any actual, alleged or potential violation of any applicable Anti-Money Laundering Laws.
(e) The
Remainco Group maintains, and has at all times since the Regulatory Lookback Date maintained, (i) an adequate system of internal
controls reasonably designed to ensure compliance with the Anti-Money Laundering Laws and to prevent and detect violations of the Anti-Money
Laundering Laws and (ii) an operational and effective anti-money laundering compliance program that includes, at a minimum, policies,
procedures and training intended to detect, prevent and deter violations of applicable Anti-Money Laundering Laws.
2.13 Anti-Corruption
Compliance; Trade Compliance.
(a) Except
as would not reasonably be expected to be, individually or in the aggregate, material to the Spinco Business or the Spinco Group, taken
as a whole, since the Statutory Lookback Date, the members of the Remainco Group (to the extent related to the Spinco Business) and,
to the Knowledge of Remainco, their respective agents, channel partners, Affiliates, distributors, resellers or other representatives
to the extent related to any member of the Spinco Group or the Spinco Business and acting on their behalf, have complied in all respects
with the Anti-Corruption Laws and International Trade Laws of each jurisdiction in which the members of the Remainco Group (to the extent
related to the Spinco Business) operate. Since January 1, 2018, the members of the Remainco Group (to the extent related to the
Spinco Business) have maintained accurate books and records and implemented adequate internal accounting controls and policies to enforce
the Anti-Corruption Laws.
(b) Except
as would not reasonably be expected to be, individually or in the aggregate, material to the Spinco Business or the Spinco Group, taken
as a whole, since the Statutory Lookback Date, none of the members of the Remainco Group (to the extent related to the Spinco Business)
or, to the Knowledge of Remainco, their respective agents, channel partners, Affiliates, distributors, resellers or other representatives
to the extent related to any member of the Spinco Group or the Spinco Business and acting on their behalf, (i) have directly or indirectly
offered, given, reimbursed, paid or promised to pay, or authorized the payment of, any money or other thing of value (including any fee,
gift, travel expense or entertainment) in the course of their actions for, or on behalf of, the Spinco Business payable to (A) any
Person who is an official, officer, or employee of any Governmental Authority or of any existing or prospective customer (whether or not
owned by a Governmental Authority); (B) any political party or official thereof; (C) any candidate for political or political
party office; or (D) any other Person affiliated with any such customer, political party or official or political office, or (ii) have
otherwise violated any Anti-Corruption Laws.
(c) (i) Since
the Statutory Lookback Date, the members of the Remainco Group (to the extent related to the Spinco Business) and their respective directors,
officers, employees and, to the Knowledge of Remainco, agents, have complied with all applicable International Trade Laws; (ii) since
the Statutory Lookback Date, none of the members of the Remainco Group (to the extent related to the Spinco Business) have (A) received
written notice of any actual, alleged or potential violation of any International Trade Laws or (B) been a party to or the subject
of any pending (or to the Knowledge of Remainco, threatened) action, audit, disclosure, or investigation, by or before any Governmental
Authority (including receipt of any subpoena) related to any actual, alleged or potential violation of any International Trade Laws;
(iii) none of the members of the Remainco Group (to the extent related to the Spinco Business) or any of their respective directors,
employees, officers or, to the Knowledge of Remainco, agents, are Sanctioned Parties; and (iv) to the extent related to the Spinco
Business, none of the members of the Remainco Group or any of their respective directors, officers or, to the Knowledge of Remainco,
employees or agents have engaged in any transactions with or dealt with the property of Sanctioned Parties in violation of International
Trade Laws.
2.14 Permits.
Since the Lookback Date, the members of the Remainco Group have held, and after giving effect to the Separation (and assuming the receipt
of all consents, approvals and authorizations under any Contracts and Permits, including relating to the matters set forth in Section 2.5(a) or
Section 2.5(b)), the members of the Spinco Group will hold, all Permits necessary to enable the members of the Spinco Group
to conduct the Spinco Business in the manner in which it is currently being conducted, except where the failure to so hold would not,
individually or in the aggregate, reasonably be expected to be material and adverse to the Spinco Business or the members of the Spinco
Group. Since the Lookback Date, (a) all such Permits are valid and in full force and effect and (b) none of the members of
the Remainco Group (to the extent related to the Spinco Business) is in default or violation, in any material respect, of any such Permits.
Since the Lookback Date, none of the members of the Remainco Group (to the extent related to the Spinco Business) has received any written
notice or written communication from any Governmental Authority regarding any default or violation in any material respect of any Permit.
The foregoing representations and warranties set forth in this Section 2.14 shall not apply to Permits required under Environmental
Laws, which are exclusively set forth in Section 2.17.
2.15 Tax
Matters.
(a) Each
material Tax Return required to be filed by or on behalf of the respective members of the Spinco Group or with respect to the Spinco Business
with any Governmental Authority with respect to any taxable period ending on or before the Closing Date (the “Spinco Company
Returns”) (i) has been or will be filed on or before the applicable due date (including any extensions of such due date)
and (ii) has been, or will be when filed, prepared in all material respects in compliance with all applicable Law. All material Taxes
required to be paid by or with respect to the members of the Spinco Group have been duly paid, except for Taxes contested in good faith
in appropriate proceedings and for which adequate reserves have been established in accordance with GAAP.
(b) No
member of the Spinco Group and no Spinco Company Return is subject to an audit with respect to Taxes by any Governmental Authority. No
extension or waiver of the limitation period applicable to any of the Spinco Company Returns has been granted (by Remainco, Spinco or
any other Person), and no such extension or waiver has been requested from any member of the Spinco Group.
(c) No
claim or Action is pending, has been asserted in writing or, to the Knowledge of Remainco, has been threatened against or with respect
to any member of the Spinco Group or with respect to the Spinco Business in respect of any material Tax. There are no unsatisfied liabilities
for material Taxes with respect to any notice of deficiency or similar document received by any member of the Remainco Group with respect
to the Spinco Business with respect to any material Tax (other than liabilities for Taxes asserted under any such notice of deficiency
or similar document which are being contested in good faith by the members of the Spinco Group and with respect to which adequate reserves
for payment have been established on the Spinco Business Financial Statements). There are no liens for material Taxes upon any of the
Spinco Assets except Permitted Encumbrances.
(d) There
are no Contracts relating to the allocation, sharing or indemnification of Taxes to which any member of the Spinco Group is a party, other
than (i) the Tax Matters Agreement; (ii) Contracts containing customary gross-up or indemnification provisions in credit agreements,
derivatives, leases and similar agreements entered into in the ordinary course of business and the primary purposes of which do not relate
to Taxes; and (iii) Contracts which solely involve any member of the Spinco Group.
(e) No
member of the Spinco Group has participated in, or is currently participating in, a “listed transaction” within the meaning
of Treasury Regulation Section 1.6011-4(b).
(f) The
members of the Spinco Group have withheld and paid all material Taxes required to have been withheld and paid in connection with amounts
paid or owing to any employee, independent contractor, creditor, shareholder or other Person.
(g) No
written claim has ever been made by any Governmental Authority in a jurisdiction where a member of the Spinco Group does not file a Tax
Return that it is or may be subject to taxation by that jurisdiction which has resulted or could reasonably be expected to result in an
obligation to pay material Taxes.
(h) No
member of the Spinco Group will be required to include any material item of income in, or exclude any material item of deduction from,
taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (i) a change in method of
accounting for a taxable period ending on or prior to the Closing Date; (ii) a “closing agreement” as described in Section 7121
of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) entered into on or prior to the Closing Date;
(iii) deferred intercompany gain or any excess loss account described in Treasury Regulations under Section 1502 of the Code
(or any corresponding or similar provision of state, local or non-U.S. Law) with respect to a transaction occurring on or prior to the
Closing Date; (iv) an installment sale or open transaction disposition made on or prior to the Closing Date; (v) a prepaid amount
received or deferred revenue accrued on or prior to the Closing Date; or (vi) Section 965 of the Code.
(i) No
member of the Spinco Group (i) has been a member of an affiliated group as defined in Section 1504 of the Code (or any analogous
combined, consolidated or unitary group defined under state, local or non-U.S. Tax Law), other than a group the common parent of which
was a current member of the Spinco Group or (ii) has any liability for the Taxes of any Person under Treasury Regulations Section 1.1502-6
(or any corresponding or similar provision of state, local or non-U.S. Law), as a transferee or successor or by contract (other than agreements
or contracts entered into in the ordinary course of business and not primarily related to Taxes).
(j) No
member of the Spinco Group has constituted either a “distributing corporation” or a “controlled corporation” within
the meaning of Section 355(a)(1)(A) of the Code, in each case, within the two (2)-year period ending on the date hereof.
(k) Section 2.15
and, to the extent related to Tax matters, Section 2.16, contain the sole and exclusive representations and warranties of
Remainco and Spinco herein with respect to Tax matters.
2.16 Benefit
Arrangements; Labor Matters.
(a) Section 2.16(a) of
the Remainco Disclosure Letter sets forth an accurate and complete list, as of the date hereof, of each material Remainco Benefit Arrangement
(to the extent related to any Spinco Employees) and each material Spinco Benefit Arrangement, and separately identifies each as such.
Remainco has delivered or Made Available to Merger Partner and Buyer accurate and complete copies of the following with respect to each
material Spinco Benefit Arrangement, as applicable: (i) the plan document (or, in the case of any unwritten Spinco Benefit Arrangement,
a description of the material terms thereof), all related trust agreements, insurance contracts and policy documents, and any amendments
thereto; (ii) the most recent summary plan description and any summaries of material modifications thereto; (iii) the three
most recently filed annual reports (Form 5500 series), if any, with all corresponding schedules and financial statements attached
thereto (including any related actuarial valuation report); (iv) the most recent IRS determination, advisory or opinion letter issued
with respect to any Spinco Benefit Arrangement intended to be qualified under Section 401(a) of the Code; and (v) any
material notices, letters or other correspondence with the IRS, the DOL, the Pension Benefit Guaranty Corporation or any other Governmental
Authority. Remainco has delivered to Merger Partner and Buyer accurate and complete copies of the following with respect to each material
Spinco Benefit Arrangement, as applicable: (A) the plan document or a description of the material terms and (B) the most recent
IRS determination, advisory or opinion letter issued with respect to any Spinco Benefit Arrangement intended to be qualified under Section 401(a) of
the Code.
(b) None
of the members of the Spinco Group or any of their respective ERISA Affiliates has ever maintained, contributed, had an obligation to
contribute to, or had any Liability with respect to, (i) a “defined benefit plan” within the meaning of Section 3(35)
of ERISA or pension plan subject to the funding standards of Title IV or Section 302 of ERISA or Section 412 of the Code; (ii) a
“multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) a “multiple employer plan”
described in Section 413 of the Code. No Spinco Benefit Arrangement provides, and, with respect to the Spinco Employees, the members
of the Spinco Group are not obligated to provide, or have an obligation to provide, post-termination or retiree life insurance, post-termination
or retiree health benefits or other post-termination or retiree employee welfare benefits to any Spinco Employee or any Spinco Former
Employee, except as may be required by COBRA or other applicable Law. None of the members of the Spinco Group or any of their respective
ERISA Affiliates have any material Liability on account of a violation of COBRA.
(c) Each
Spinco Benefit Arrangement has been established, maintained and administered in all material respects in accordance with its terms and
in compliance with the applicable provisions of ERISA, the Code and other Laws. Except as would not reasonably be expected to result in
material liability to the members of the Spinco Group, (i) the members of the Spinco Group have timely performed all obligations
required to be performed by it under each Spinco Benefit Arrangement; (ii) there are no Actions pending or, to the Knowledge of Remainco,
threatened or reasonably anticipated with respect to any Spinco Benefit Arrangement, its assets or any fiduciary thereof (other than routine
claims for benefits); and (iii) no event has occurred and no condition exists that would subject any member of the Spinco Group to
any excise Tax, fine, Encumbrance, material penalty or other liability imposed by ERISA, the Code or any other applicable Law with respect
to any Spinco Benefit Arrangement.
(d) Each
Spinco Benefit Arrangement that is intended to be qualified under Section 401(a) of the Code is so qualified and has received
a favorable determination letter, or is the subject of an opinion or advisory letter, from the IRS, and to the Knowledge of Remainco,
no fact or event has occurred since the date of such determination letter that would reasonably be expected to adversely affect such qualification.
(e) Except
as would not reasonably be expected to result in material liability to any member of the Spinco Group or the imposition of a material
Tax on any Spinco Employee under Section 409A(a)(1)(B) of the Code, each Remainco Benefit Arrangement (to the extent related
to any Spinco Employees) and Spinco Benefit Arrangement that is a “nonqualified deferred compensation plan” (as defined under
Section 409A of the Code) has been operated in compliance with Section 409A of the Code and has complied with applicable documentary
requirements of Section 409A of the Code.
(f) Except
as set forth in Section 2.16(f) of the Remainco Disclosure Letter, none of the execution or delivery of this Agreement
or the other Transaction Documents, the consummation of any of the Contemplated Transactions will, either alone or in conjunction with
any other event, (i) entitle any Spinco Employee or any Spinco Former Employee to any payment or benefit (or result in the funding
of any such payment or benefit); (ii) increase the amount or value of any benefit or compensation otherwise payable or required to
be provided to any Spinco Employee or any Spinco Former Employee; or (iii) accelerate the time of payment, funding or vesting of
amounts due to any Spinco Employee or any Spinco Former Employee. No amount paid or payable by Remainco and its Affiliates (whether in
cash, in property, or in the form of benefits) to any Spinco Employee as a result of the consummation of the Contemplated Transactions
will, either alone or in conjunction with any other event, be an “excess parachute payment” within the meaning of Section 280G
of the Code. No Spinco Benefit Arrangement provides, and, with respect to the Spinco Employees, Remainco is not obligated to provide,
or has an obligation to provide, compensation to any Person for excise taxes payable pursuant to Section 4999 of the Code or for
taxes payable pursuant to Section 409A of the Code.
(g) With
respect to each Benefit Arrangement maintained primarily for current and Spinco Former Employee located outside the United States (each,
a “Spinco International Benefit Plan”), in all material respects, (i) if intended to qualify for special Tax treatment,
each Spinco International Benefit Plan is so qualified; (ii) if required to be registered with a Governmental Authority, is so registered;
and (iii) the fair market value of the assets of each Spinco International Benefit Plan, the liability of each insurer for any Spinco
International Benefit Plan funded through insurance, or the book reserve established for any such plan, together with any accrued contributions,
is sufficient to procure or provide for the accrued benefit obligations, as of the date hereof, with respect to all current and former
participants in such plan according to the actuarial assumptions and valuations most recently used to determine employer contributions
to such plan. As of the Closing Date, each transfer of employment of a Spinco Employee from a member of the Remainco Group to a member
of the Spinco Group (or applicable Spinco EOR (as defined in the Employee Matters Agreement)) implemented under the Separation Plan will
comply in all material respects with applicable Law.
(h) With
respect to Spinco Employees, no member of the Remainco Group has been a party to, a sponsoring employer of, or otherwise is under any
liability with respect to any defined benefit pension scheme, any final salary scheme or any death, disability or retirement benefit
calculated by reference to age, salary or length of service or any other item.
(i) Remainco
has provided to Merger Partner and Buyer a list as of July 1, 2024 of the Spinco Employees (by unique identifier), and including
the following information pertaining to each such Spinco Employee: (i) job title; (ii) location of employment (including, for
U.S. employees, state of residence); (iii) employing Entity; (iv) annual base salary or hourly rate of pay; (v) targets
under short term incentive, long term incentive or sales incentive plan, to the extent applicable; (vi) employment status (active
or on leave, and, if on leave, expected return date); (vii) date of commencement of employment; (viii) for U.S.-based employees,
accrued and unused paid-time off; (x) for U.S. Spinco Employee, status as exempt or nonexempt under the federal Fair Labor Standards
Act of 1938 (the “Fair Labor Standards Act ”) or similar state law; and (xi) whether covered by the terms of a
collective bargaining agreement.
(j) Remainco
has provided to Merger Partner and Buyer a list as of July 1, 2024 of all independent contractors and consultants engaged by any
member of the Remainco Group to perform work for the Spinco Business containing (i) country where engaged (including, for U.S. based
contractors, state where work was performed); (ii) engaging Entity (or Entity such individual provides services to, if different);
(iii) whether the individual is engaged directly or via an intermediary; and (iv) contract rate or amount paid to each such
independent contractor or consultant, year to date in calendar year 2024. To the Knowledge of Remainco, no independent contractor or consultant
performs services for the Spinco Business in the State of California.
(k) To
the Knowledge of Remainco, as of the date hereof, all Spinco Employees who are based and ordinarily working in the U.S. (the “U.S.
Spinco Employees”) are authorized to work in the United States. Since the Statutory Lookback Date, each member of the Remainco
Group has complied in all material respects with all applicable Laws regarding immigration and U.S. work authorization compliance, and,
to the Knowledge of Remainco, has a valid Form I-9 on file for each U.S. Spinco Employee. To the Knowledge of Remainco, all Spinco
Employees who are based and ordinarily working outside of the U.S. have the legal right to work in the country in which they are employed,
and the members of the Remainco Group (to the extent related to the Spinco Business) have complied in all material respects with their
respective obligations under applicable non-U.S. Laws with respect to such Spinco Employees.
(l) As
of the date hereof (and, except as would not, individually or in the aggregate be material to the Spinco Business, after the date hereof
and prior to the Closing), (i) there are no strikes or work stoppages pending or, to the Knowledge of Remainco, threatened by
any Spinco Employees; (ii) no such strike or work stoppage involving Spinco Employees has occurred since the Lookback Date;
and (iii) to the Knowledge of Remainco, there is no organizing activity by any union or labor organization as to any Spinco Employees.
(m) Each
member of the Remainco Group (to the extent related to the Spinco Business) is, and since the Lookback Date has been, in material compliance
with all applicable Laws directly applicable to the Spinco Business respecting labor, employment, fair employment practices, terms and
conditions of employment, workers’ compensation, occupational safety and health requirements, employment classification, immigration,
the WARN Act, plant closings and layoffs, the Fair Labor Standards Act, employment discrimination, equal opportunity, employee leave issues
and unemployment insurance. Each member of the Reimainco Group (to the extent related to the Spinco Business) is, and since the Lookback
Date has been, operating in a manner consistent in all material respects with the United Nations Convention on the Rights of the Child
and International Labor Organization’s Minimum Age Convention (No. 138).
(n) Except
as set forth in Section 2.16(n) of the Remainco Disclosure Letter, (and, except as would not, individually or in the
aggregate be material to the Spinco Business, after the date hereof and prior to the Closing), (i) there is no trade union recognized
by, or works council, staff association or other employee representative body established by any member of the Remainco Group (to the
extent related to the Spinco Business); (ii) there is no outstanding material dispute between any member of the Remainco Group (to
the extent related to the Spinco Business) and any trade union, or, to the Knowledge of Remainco, threatened in writing; and (iii) there
is no collective bargaining agreement or other labor arrangement in place or currently being negotiated with any trade union or employee
representatives to which any member of the Remainco Group (to the extent related to the Spinco Business) is a party or subject. Since
the Lookback Date, no member of the Remainco Group (to the extent related to the Spinco Business) has received any written requests for
recognition from a trade union.
(o) Except
as set forth in Section 2.16(o) of the Remainco Disclosure Letter, (i) to the Knowledge of Remainco, since the Lookback
Date, to the extent related to any Spinco Employee, the members of the Remainco Group have not received notice of any charge or complaint
or of the intent to conduct an investigation (or notice that such an investigation is in progress) from, or pending before, any Governmental
Authority responsible for the enforcement of labor, employment, wages and hours of work, immigration, or occupational safety and health
Laws, and (ii) there is no charge, complaint, lawsuit, or other proceeding pending or, to the Knowledge of Remainco, threatened against
any member of the Remainco Group before any Governmental Authority by or on behalf of any Spinco Employee, any Spinco Former Employee
or any applicant for employment as a Spinco Employee, in each case alleging breach of any express or implied contract of employment, any
applicable Law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with
the employment relationship, in the case of each of clause (i) and (ii), that would, individually or in the aggregate,
reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole.
(p) To
the Knowledge of Remainco, since the Lookback Date, (i) no allegations of sexual or other harassment or misconduct have been made
against any Spinco Employee with a title above Vice President and (ii) no Action is pending or threatened, and no settlement agreement
has been entered into, with respect to any member of the Remainco Group involving allegations of sexual or other harassment or misconduct
by any Spinco Employee, in each case, that, individually or in the aggregate, is reasonably be expected to be material to the Spinco Business
or the Spinco Group, taken as a whole.
(q) Except
as set forth in Section 2.16(q)(i) of the Remainco Disclosure Letter, since the Lookback Date, no member of the Remainco
Group (to the extent related to the Spinco Business) has implemented any employee layoffs or plant closings that would require notice
under the WARN Act. No member of the Remainco Group (to the extent related to the Spinco Business) has any outstanding WARN Act liability.
Section 2.16(q)(ii) of the Remainco Disclosure Letter, which shall be supplemented in advance of the Closing, contains
an accurate and complete list of all employees who would be Spinco Employees if employed on the date hereof and who experienced an “employment
loss” (as defined in the WARN Act) during the ninety (90) days prior to July 1, 2024 (and, with respect to the supplement,
prior to the estimated Closing), listing for each such employee the date and nature of the employment loss and the individual’s
position and work location.
(r) Since
the Lookback Date, the members of the Remainco Group (to the extent related to the Spinco Business) have not made, or started implementation
of, any collective dismissals that have required or will require notification or consultation with any state authority, trade union, works
or supervisory council, staff association or body representing or in relation to any of their employees.
2.17 Environmental
Matters. Except as set forth in Section 2.17 of the Remainco Disclosure Letter, (a) each of the members of the Remainco
Group (to the extent related to the Spinco Business) is, and at all times since the Regulatory Lookback Date has been, in compliance
in all material respects with all Environmental Laws applicable to the Spinco Business, (b) each of the members of the Remainco
Group (to the extent related to the Spinco Business) possess and are, and at all times since the Regulatory Lookback Date have been,
in compliance in all material respects with all Environmental Permits that are required for the operation of the Spinco Business, (c) there
are no Actions pending or, to the Knowledge of Remainco, threatened that seek the revocation, cancellation, or suspension of any of the
Environmental Permits, (d) none of the members of the Remainco Group (to the extent related to the Spinco Business) have
received any written notice, complaint or claim, and there are no Actions pending or, to the Knowledge of Remainco, threatened against
any member of the Spinco Group or with respect to the Spinco Business, in each case, alleging a violation of or Liability (including
any investigatory, remedial or corrective action liability) under any Environmental Law that, in each case, would reasonably be expected
to result in material Liability to any member of the Spinco Group, (e) no member of the Remainco Group (to the extent related to
the Spinco Business) is currently operating the Spinco Business subject to any Governmental Order addressing a violation of or Liability
under any Environmental Law, (f) no member of the Remainco Group (to the extent related to the Spinco Business) has assumed by contract
or, to the Knowledge of Remainco, by operation of law, any material Liability of any third party arising under any Environmental Law
and (g) there has been no Release of Hazardous Materials by any member of the Remainco Group (to the extent related to the Spinco
Business) or, to the Knowledge of Remainco, at, on, in, under or from (i) the Spinco Real Property, (ii) any real property
formerly owned, leased, licensed, used or operated by any member of the Remainco Group (to the extent related to the Spinco Business)
or (iii) at any facility to which any Hazardous Materials generated by the Spinco Business were sent for disposal, in each case
of subclauses (i) through (iii), in a manner that could reasonably be expected to result in material liability
under any Environmental Law. Notwithstanding any of the representations and warranties contained elsewhere in this Agreement, the representations
and warranties in this Section 2.17 and in Section 2.7 shall be the sole representations and warranties of Remainco
and Spinco with respect to environmental matters, Environmental Laws, Environmental Permits or Hazardous Materials.
2.18 Insurance.
Except as would not reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole, each Insurance
Policy and Self-Insurance program and arrangement relating to the Spinco Business and the members of the Spinco Group is binding and
in full force and effect. With respect to each such Insurance Policy, and except as would not reasonably be expected to be, individually
or in the aggregate, material to the Spinco Business or the Spinco Group, taken as a whole, (i) all premiums with respect thereto
are currently paid; (ii) none of the members of the Remainco Group is in breach or default and, to the Knowledge of Remainco, no
event has occurred which, with notice or lapse or time, would constitute a breach or default or permit termination or modification of
the policy; (iii) none of Remainco or any member of the Spinco Group has received any written notice of cancellation or non-renewal
of the policy; and (iv) the consummation of the Contemplated Transactions will not cause a breach, termination or modification of
the policy.
2.19 Absence
of Litigation.
(a) Except
as set forth in Section 2.19(a) of the Remainco Disclosure Letter, (i) there are no Actions pending or, to the
Knowledge of Remainco, threatened, against any member of the Remainco Group relating to the Spinco Business which would, individually
or in the aggregate, reasonably be expected to have a Spinco Material Adverse Effect and (ii) as of the date hereof, there are no
Actions pending or, to the Knowledge of Remainco, threatened, against any member of the Remainco Group relating to the Spinco Business
alleging Liabilities or Losses in excess of $1,000,000.
(b) As
of the date hereof, there are no Actions pending or, to the Knowledge of Remainco, threatened against any member of the Remainco Group
that question the validity of, or seek injunctive relief with respect to, any of the Transaction Documents or the right of any member
of the Remainco Group to enter into any of the Transaction Documents.
(c) No
member of the Spinco Group is a party to or subject to the provisions of any Governmental Order that would reasonably be expected, individually
or in the aggregate, to be material to the Spinco Business or the Spinco Group, taken as a whole.
(d) As
of the date hereof, no member of the Spinco Group is a party to or subject to the provisions of any Governmental Order that would reasonably
be expected to prevent or materially delay, materially interfere with or materially impair (i) the consummation by the members of
the Remainco Group of the Contemplated Transactions or (ii) the compliance by any member of the Remainco Group with the Transaction
Documents.
2.20 Customers
and Suppliers.
(a) Section 2.20(a) of
the Remainco Disclosure Letter sets forth (i) a correct and complete list identifying the top ten (10) customers of the Spinco
Business, measured by revenue recognized by the Spinco Business on a combined basis during the one (1)-year period ended on the Spinco
Reference Balance Sheet Date (collectively, the “Spinco Top Customers”); and (ii) a correct and complete list
identifying the top ten (10) suppliers of the Spinco Business, measured by expense incurred by the Spinco Business on a combined
basis during the one (1)-year period ended on the Spinco Reference Balance Sheet Date (collectively, the “Spinco Top Suppliers”).
(b) Since
the Spinco Reference Balance Sheet Date through the date hereof, to the Knowledge of Remainco, Remainco has not received, from any Spinco
Top Customer or Spinco Top Supplier, written communications (i) terminating, not renewing or materially reducing (or stating the
intent to terminate, not renew or materially reduce), or materially altering the terms (or stating the intent to materially alter the
terms) of such Spinco Top Customer’s or Spinco Top Supplier’s relationship with any member of the Remainco Group (to the extent
related to the Spinco Business) or (ii) indicating a material breach of the terms of any Contracts with such Spinco Top Customer,
or Spinco Top Supplier, in each case, except as, individually or in the aggregate, would not reasonably be expected to be material to
the Spinco Business or the Spinco Group, taken as a whole.
2.21 Financial
Advisors. Remainco is solely responsible for the payment of the fees and expenses of any broker, investment banker, financial advisors
or other Person acting in a similar capacity in connection with the transactions contemplated by any of the Transaction Documents based
upon arrangements made by or on behalf of Remainco or any of its Affiliates, including Spinco.
2.22 Takeover
Statutes. As of the date hereof, there is no stockholder rights plan, “poison pill,” anti-takeover plan or other similar
device in effect to which any member of the Remainco Group is a party or otherwise is bound. The Contemplated Transactions are and, as
of the Closing, shall be exempt from any such stockholder rights plan, “poison pill,” anti-takeover plan or other similar
device adopted prior to the Closing to which any member of the Remainco Group is a party or otherwise is bound. No “fair price,”
“moratorium,” “control share acquisition,” “business combination,” “interested stockholder,”
“stockholder protection” or other similar anti-takeover law applicable to Remainco or Spinco enacted under Law applies to
this Agreement, the Merger or any other Contemplated Transactions.
2.23 Data
Privacy and Information Security.
(a) The
members of the Remainco Group (to the extent related to the Spinco Business) and, to the Knowledge of Remainco, its Data Processors and
other Persons with whom the Remainco Group (to the extent related to the Spinco Business) has shared Personal Data, in each case since
the Lookback Date, (i) have complied with applicable Privacy Laws, Spinco Company Privacy Policies and other Contracts relating to
the collection, use, protection, or processing of Spinco IT Systems or Spinco Company Data, (ii) have not suffered and are not currently
suffering a Security Incident and (iii) have not been subject to any complaints, litigation or regulatory investigations or enforcement
actions from any Person or Governmental Authority and have not received any notices or inquiries alleging noncompliance with any applicable
Privacy Laws in each case, except in the case of each of clause (i) through (iii), as would not, individually
or in the aggregate, reasonably be expected to be material to the Spinco Business or the Spinco Group, taken as a whole. To the Knowledge
of Remainco, neither the execution, delivery or performance of any of the Transaction Documents, nor the consummation of the Contemplated
Transactions, violate any Privacy Laws or Spinco Company Privacy Policies, except as, individually or in the aggregate, would not reasonably
be expected to (A) be material to the Spinco Business or the Spinco Group, taken as a whole or (B) prevent or materially delay,
materially interfere with or materially impair (1) the consummation by the members of the Remainco Group of the Contemplated Transactions
or (2) the compliance by any member of the Remainco Group with the Transaction Documents. When any member of the Spinco Group uses
a Data Processor to Process Personal Data, the relevant Data Processor has provided guarantees, warranties or covenants in relation to
the Processing of Personal Data, confidentiality, and security measures, and has agreed to comply with those obligations in a manner sufficient
for the relevant member of the Spinco Group’s material compliance with applicable Privacy Law.
(b) The
members of the Remainco Group (to the extent related to the Spinco Business) have established and maintain a Spinco Information Security
Program, and since the Lookback Date there have been no material violations of the Spinco Information Security Program. The Spinco Information
Security Program has been assessed and tested on a no less than annual basis; all critical and high risks and vulnerabilities have been
remediated; and the Spinco Information Security Program has proven sufficient and compliant with applicable Privacy Laws in all material
respects. The Spinco IT Systems currently used by the members of the Remainco Group (to the extent related to the Spinco Business) are
in good working condition, do not contain any Malicious Code or defect, and operate and perform as necessary to conduct the Spinco Business.
All Spinco Company Data will continue to be available for Processing by the relevant member of the Spinco Group following the Closing
on substantially the same terms and conditions as existed immediately before the Closing.
2.24 Affiliate
Transactions.
(a) Section 2.24(a) of
the Remainco Disclosure Letter sets forth a true and correct list, as of the date hereof, of all material Contracts between a member
of the Spinco Group, on the one hand, and a member of the Remainco Group (other than a member of the Spinco Group) or any director, officer
or equityholder of any member of the Remainco Group, on the other hand, that will not terminate at the Closing (in each case, other than
any Benefit Arrangement).
(b) Section 2.24(b) of
the Remainco Disclosure Letter sets forth a true and correct list and amount, as of the date hereof, of each intercompany loan, note,
advance, receivable and payable, in each case, between a member of the Spinco Group, on one hand, and a member of the Remainco Group (other
than a member of the Spinco Group) or any director, officer or equityholder of any member of the Remainco Group, on the other hand, that
will not be settled, terminated or extinguished as of the Closing (in each case, other than any Benefit Arrangement).
(c) Section 2.24(c) of
the Remainco Disclosure Letter sets forth a true and correct list and amount, as of the date hereof of any Shared Contract with aggregate
payments by the member of the Remainco Group that were allocated by Remainco to the Spinco Business or a member of the Spinco Group that
were in excess of $2,500,000 during the twelve (12) months ended on the Spinco Reference Balance Sheet Date (other than Shared Contracts
that (A) are Remainco Retained Assets and relate to services to be provided by members of the Remainco Group under the Transition
Services Agreement or (B) relate to enterprise-wide or other administrative services of the Remainco Group prior to the Equity Sale
Closing Time).
(d) Immediately
after the Closing, except for the Delta Support Agreement, there will not be any Contracts between a member of the Spinco Group, on the
one hand, and Delta or any of its Subsidiaries (other than members of the Remainco Group), directors, officers or equityholders holding
greater than five (5%) of the Equity Interests in Delta, on the other hand.
2.25 Acknowledgement
by Remainco and Spinco. Neither Remainco nor Spinco is relying or has relied on any representations or warranties whatsoever regarding
the subject matter of this Agreement, express or implied, except for the representations and warranties in Article III, in
Article IV or in any of the other Transaction Documents, in each case, to the extent made to Remainco or Spinco. The representations
and warranties by Merger Partner contained in Article III, by Buyer and Buyer Sub contained in Article IV, or
by any of them in any of the other Transaction Documents, in each case, to the extent made to Remainco or Spinco, constitute the sole
and exclusive representations and warranties of Merger Partner and the members of the Merger Partner Group, of Buyer and Buyer Sub and
of each of their respective Representatives in connection with the Contemplated Transactions, and each of Remainco and Spinco understand,
acknowledge and agree that all other representations and warranties of any kind or nature whether express, implied or statutory are specifically
disclaimed by Merger Partner, Buyer and Buyer Sub. Without limiting the generality of the foregoing, each of Remainco and Spinco acknowledges
that, except for the representations and warranties of Merger Partner contained in Article III, of Buyer and Buyer Sub contained
in Article IV or of any of them in any of the other Transaction Documents, in each case, to the extent made to Remainco or
Spinco, no representations or warranties are made by Merger Partner, Buyer, Buyer Sub or their respective Representatives with respect
to the accuracy or completeness of any information, documents or other materials (including any such materials contained in any data
room or otherwise reviewed by Remainco or Spinco or any of their respective Representatives) or any management presentations that have
been or shall hereafter be provided to Remainco or Spinco or any of their respective Representatives. Notwithstanding the foregoing,
nothing in this Section 2.25 shall limit Remainco’s rights and remedies in the event of Fraud.
2.26 Gaming
Approvals and Licensing Matters.
(a) As
of the date hereof, none of Spinco Business Required Gaming Licensees has ever been denied a gaming license, approval, or related finding
of suitability by any Gaming Authority or had any gaming license or approval revoked, suspended or denied, except for such denials, suspensions
or revocations that, individually or in the aggregate, would not reasonably be expected to be material to the Spinco Business or the Spinco
Group, taken as a whole. To the Knowledge of Remainco, there are no facts or circumstances with respect to any Spinco Business Required
Gaming Licensee that have had or would reasonably be expected to have a Spinco Material Adverse Effect.
(b) There
are no conditions, constraints, limitations or qualifications existing with respect to any gaming license or approval previously granted
to Remainco or any of its Affiliates (including, for purposes of this sentence, Delta and its Affiliates), in respect of the ownership,
management and operation of the Spinco Business that materially affect the ownership, management or operation of the Spinco Business,
other than those that are generally applicable to similar licensed gaming businesses. The members of the Remainco Group with respect to
the Spinco Business are in compliance with all Gaming Laws applicable to the Spinco Business in all material respects.
2.27 Spinco.
Spinco was formed solely for the purpose of engaging in the transactions contemplated by the Existing Agreements and the Contemplated
Transactions and it has not engaged in any business activities or conducted any operations other than in connection with the transactions
contemplated by the Existing Agreements and the Contemplated Transactions. As of the date hereof, Spinco does not have any assets or
liabilities other than those incident to its formation or related to the evaluation, negotiation and execution of the Existing Agreements
and the Transaction Documents.
2.28 Solvency.
Immediately after giving effect to the Contemplated Transactions, the Remainco Group (excluding, for the avoidance of doubt, the members
of the Spinco Group) will be Solvent. No transfer of property is being made by any member of the Remainco Group and no obligation is
being incurred by any member of the Remainco Group in connection with the Contemplated Transactions with the actual intent to hinder,
delay or defraud either present or future creditors of Remainco or any other member of the Remainco Group.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MERGER
PARTNER
Except as set forth (a) in
the part or subpart of the Merger Partner Disclosure Letter corresponding to the particular Section or subsection in this Article III
in which such representation and warranty appears, (b) in any other part or subpart of the Merger Partner Disclosure Letter to the
extent it is reasonably apparent on the face of such disclosure that such disclosure is relevant to such other representation and warranty
and (c) other than with respect to the representations and warranties in Section 3.3 (Capitalization), Section 3.4
(Authority; Binding Nature of Agreement), Section 3.5 (Non-Contravention; Consents), Section 3.21 (Vote Required),
Section 3.22 (Financial Advisors) and Section 3.23 (Takeover Statutes), any information set forth in the Merger
Partner SEC Documents filed on the SEC’s EDGAR database on or after the Lookback Date and publicly available at least three (3) Business
Days prior to the date hereof (the “Qualifying Merger Partner SEC Documents ”) (but excluding any supplements or amendments
thereto to the extent such supplement or amendment is not publicly filed prior to the date hereof) to the extent it is reasonably apparent
on the face of such disclosure that such information is relevant to such representation or warranty, other than information set forth
therein under the headings “Risk Factors” or “Forward-Looking Statements” and any other information or statement
set forth therein that is primarily cautionary, predictive or forward-looking in nature, Merger Partner hereby represents and warrants
to Remainco, Spinco, Buyer and Buyer Sub as follows:
3.1 Subsidiaries;
Due Organization.
(a) Section 3.1(a) of
the Merger Partner Disclosure Letter identifies, as of the date hereof, each Entity that is a Subsidiary of Merger Partner and indicates
its jurisdiction of organization.
(b)
(i) Merger
Partner is an Entity duly organized and validly existing under the laws of the state of Delaware. Merger Partner is in good standing
under the laws of the state of Delaware, and has all necessary corporate or other Entity right, power and authority (A) to conduct
its business in the manner in which its business is currently being conducted; (B) to own and use its assets in the manner in which
such assets are currently owned and used; and (C) to perform its obligations under all Contracts by which it is bound, other than
in the case of clauses (A) through (C) as, individually or in the aggregate, would not reasonably be
expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole, or would not reasonably be expected
to prevent, materially delay, materially interfere with or materially impair the ability of any member of the Merger Partner Group to
consummate the Contemplated Transactions.
(ii) Each
member of the Merger Partner Group (other than Merger Partner) is (or, if formed after the date hereof, shall be at the Merger Effective
Time) an Entity duly organized and validly existing under the laws of the jurisdiction of its organization. Each member of the Merger
Partner Group (other than Merger Partner) is in good standing (to the extent that the laws of the jurisdiction of its organization recognize
the concept of good standing or any similar concept) under the laws of the jurisdiction of its organization, and has all necessary corporate
or other Entity right, power and authority (A) to conduct its business in the manner in which its business is currently being conducted;
(B) to own and use its assets in the manner in which such assets are currently owned and used; and (C) to perform its
obligations under all Contracts by which it is bound, other than in the case of clauses (A) through (C) as,
individually or in the aggregate, would not reasonably be expected to be material to the Merger Partner Business or the Merger Partner
Group, taken as a whole, or would not reasonably be expected to prevent, materially delay, materially interfere with or materially impair
the ability of any member of the Merger Partner Group to consummate the Contemplated Transactions.
(c) Each
member of the Merger Partner Group is (or, if formed after the date hereof, shall be at the Merger Effective Time) qualified to do business
as a foreign corporation, and is in good standing (to the extent that the laws of the applicable jurisdiction recognize the concept of
good standing or any similar concept), under the laws of all jurisdictions where the nature of its business requires such qualification,
except for jurisdictions in which the failure to be so qualified or in good standing, individually or in the aggregate, would not reasonably
be expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole, or would not reasonably be expected
to prevent, materially delay, materially interfere with or materially impair the ability of any member of the Merger Partner Group to
consummate the Contemplated Transactions.
3.2 Certificate
of Organization and Other Governing Documents. Merger Partner has delivered or Made Available to Remainco and Buyer accurate and
complete copies of the Organizational Documents of the members of the Merger Partner Group, including all amendments thereto as in effect
on the date hereof. Merger Partner and each member of the Merger Partner Group has complied with its Organizational Documents except
for such non-compliance that, individually or in the aggregate, would not reasonably be expected to be material to the Merger Partner
Business or the Merger Partner Group, taken as a whole.
3.3 Capitalization.
(a) The
authorized capital stock of Merger Partner consists of 550,000,000 shares of capital stock, consisting of 500,000,000 shares of Merger
Partner Common Stock and 50,000,000 shares of preferred stock (“Merger Partner Preferred Stock”). As of the close
of business on July 18, 2024 (the “Merger Partner Specified Time”), (i) 85,137,909 shares of Merger Partner
Common Stock were issued and outstanding; (ii) 39,451,042 shares of Merger Partner Common Stock were held in the treasury of Merger
Partner and none were held by any other member of the Merger Partner Group; (iii) no shares of Merger Partner Preferred Stock were
issued and outstanding or held in the treasury of Merger Partner; (iv) 2,104,536 shares of Merger Partner Common Stock were subject
to outstanding Merger Partner RSUs; (v) 1,013,930 shares of Merger Partner Common Stock were subject to outstanding Merger Partner
PSUs, assuming performance at target level; and (vi) 4,256,444 shares of Merger Partner Common Stock were subject to outstanding
Merger Partner Options. As of the date hereof and as of the Merger Partner Specified Time, all of the outstanding shares of Merger Partner
Common Stock have been and will be duly authorized and validly issued, and are and will be fully paid and nonassessable.
(b) Merger
Partner has delivered or Made Available to Remainco and Buyer a complete and accurate list that sets forth the following information with
respect to Merger Partner Equity Awards held by each Merger Partner Employee as of the Merger Partner Specified Time: (i) the type
of such Merger Partner Equity Award (i.e., whether a Merger Partner Option, Merger Partner RSU or Merger Partner PSU); (ii) the name
of the Merger Partner Equity Plan under which the Merger Partner Equity Award was issued; (iii) the number of shares of Merger Partner
Common Stock subject to such Merger Partner Equity Award; (iv) the per share exercise price (if any) of such Merger Partner Equity
Award; (v) the applicable vesting schedule in respect of such Merger Partner Equity Award; (vi) the number of shares of Merger
Partner Common Stock which are vested and unvested with respect to the Merger Partner Equity Award; (v) the grant date of the Merger
Partner Equity Award; and (vi) the expiration date of the term of such Merger Partner Equity Award (if applicable).
(c) Except
for Merger Partner Options, Merger Partner RSUs and Merger Partner PSUs, and except as permitted under Section 5.3(b)(vii),
there are no outstanding or existing (i) securities of any member of the Merger Partner Group convertible into or exchangeable for
Equity Interests of any member of the Merger Partner Group; (ii) options, calls, warrants, pre-emptive rights, anti-dilution rights
or other rights, rights agreements, shareholder rights plans or other agreements, arrangements or commitments of any character (other
than publicly traded options listed on a national exchange) binding on any member of the Merger Partner Group that relate to the issued
or unissued Equity Interests of any member of the Merger Partner Group; (iii) obligations of any member of the Merger Partner Group
to repurchase, redeem or otherwise acquire any Equity Interests of any member of the Merger Partner Group or to provide funds to, or make
any investment (in the form of a loan, capital contribution or otherwise) in, any other member of the Merger Partner Group; (iv) phantom
stock, restricted stock units or other contractual rights binding on any member of the Merger Partner Group the value of which is determined
in whole or in part by reference to the value of any Equity Interests of any member of the Merger Partner Group and there are no outstanding
stock appreciation rights issued by any member of the Merger Partner Group with respect to the Equity Interests of any member of the Merger
Partner Group; (v) voting trusts or other agreements or understandings to which any member of the Merger Partner Group or any of
their directors or officers is a party with respect to the voting of Equity Interests of any member of the Merger Partner Group; or (vi) bonds,
debentures, notes or other indebtedness of any member of the Merger Partner Group having the right to vote (or convertible into, or exchangeable
or exercisable for, securities having the right to vote) on any matter on which the stockholders or other equityholders of any member
of the Merger Partner Group may vote.
(d) Since
the Merger Partner Specified Time, Merger Partner has not issued, granted, delivered, sold, pledged, disposed of or encumbered any shares
of its capital stock, except (i) as permitted by Section 5.3 or (ii) pursuant to the vesting of Merger Partner Options,
Merger Partner RSUs or Merger Partner PSUs described in Section 3.3(a) or Section 3.3(b) in accordance
with their terms as in effect as of the Merger Partner Specified Time. Except as permitted after the date hereof pursuant to Section 5.3,
there are no employees, directors, independent contractors or other service providers with an offer letter, other employment Contract
or other arrangement or Contract that contemplates a grant of options to purchase Merger Partner Common Stock or other equity or equity-based
awards with respect to Merger Partner Common Stock, or who has otherwise been promised options to purchase Merger Partner Common Stock
or other securities of Merger Partner or other equity or equity-based awards with respect to Merger Partner Common Stock or other securities
of Merger Partner, which options or other awards have not been granted as of the Merger Partner Specified Time. All outstanding shares
of Merger Partner Common Stock, all Merger Partner Equity Awards and all other outstanding securities of the members of the Merger Partner
Group have been issued and granted in compliance in all material respects with (A) all applicable securities Laws and other applicable
Law and (B) all requirements set forth in applicable Contracts.
(e) All
outstanding shares of Merger Partner Common Stock, and all Merger Partner Equity Awards and other outstanding Equity Interests of the
members of the Merger Partner Group, have been issued and granted in compliance in all material respects with (i) all applicable
securities Laws and (ii) all requirements set forth in applicable Organizational Documents and were not issued in violation of any
preemptive or participation rights. All of the outstanding Equity Interests of each member of the Merger Partner Group have been duly
authorized and validly issued, are fully paid and nonassessable (to the extent applicable) and free of preemptive rights, with no personal
liability attaching to the ownership thereof. All of the outstanding Equity Interests of each member of the Merger Partner Group are beneficially
and of record, directly or indirectly, owned by a member of the Merger Partner Group free and clear of any material Encumbrances, other
than restrictions under applicable securities Laws or set forth in their respective Organizational Documents.
(f) Except
for its interests in the other members of the Merger Partner Group, Merger Partner does not own, directly or indirectly, any Equity Interests
in, other Entities with an aggregate value in excess of $2,500,000. No member of the Merger Partner Group has any obligation in connection
with any joint venture, investment Contract or similar Contract to contribute or loan any funds to other Persons in excess of $2,500,000
individually or in the aggregate.
(g) Except
for the Merger Partner Options, Merger Partner RSUs and Merger Partner PSUs referred to in Section 3.3(a) or granted
after the date hereof in accordance with Section 5.3(b)(vii), (i) none of the Equity Interests of any member of the Merger
Partner Group are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance
or any similar right and none of the outstanding securities of any of members of the Merger Partner Group were issued in violation of
any preemptive or participation rights; (ii) none of the outstanding Equity Interests of any member of the Merger Partner Group is
subject to any right of first refusal; (iii) there is no Contract relating to the voting or registration of, or restricting any Person
from purchasing, selling, pledging or otherwise disposing of or from granting any option or similar right with respect to, any Equity
Interests of any member of the Merger Partner Group; and (iv) none of the members of the Merger Partner Group is under any obligation,
or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding Equity
Interests of any member of the Merger Partner Group.
3.4 Authority;
Binding Nature of Agreement. Merger Partner has all requisite corporate power and authority to enter into and perform their respective
obligations under the Transaction Documents, as applicable, to which it is or will be a party and, subject to obtaining the Required
Merger Partner Stockholder Vote, has all requisite corporate or other Entity right, power and authority to consummate the Contemplated
Transactions. The Merger Partner Board (at a meeting duly called and held and not subsequently rescinded or modified in any way) has
(a) determined and declared that this Agreement, the other Transaction Documents and the Merger are advisable and in the best interests
of Merger Partner and its stockholders (such determination by the Merger Partner Board, the “Merger Partner Board Determination”);
(b) authorized and approved the execution, delivery and performance of the Transaction Documents by Merger Partner; and (c) recommended
the adoption of this Agreement by the holders of Merger Partner Common Stock and directed that this Agreement be submitted for adoption
by Merger Partner’s stockholders at the Merger Partner Stockholders’ Meeting. This Agreement has been duly executed and delivered
by Merger Partner, and assuming the due authorization, execution and delivery of this Agreement by Remainco, Spinco, Buyer and Buyer
Sub, this Agreement constitutes a legal, valid and binding obligation of Merger Partner, enforceable against Merger Partner in accordance
with its terms, subject to the Bankruptcy and Equity Exceptions. The Separation Agreement, the Employee Matters Agreement, the Real Estate
Matters Agreement and the Tax Matters Agreement have been duly executed and delivered by the members of the Merger Partner Group that
are or will be party thereto, and assuming the due authorization, execution and delivery of such agreements by the applicable members
of the Remainco Group and the applicable Buyer Parties, each such agreement does constitute a legal, valid and binding obligation of
each member of the Merger Partner Group party thereto, as applicable, enforceable against each of them party thereto in accordance with
its terms, subject to the Bankruptcy and Equity Exceptions.
3.5 Non-Contravention;
Consents.
(a) Assuming
compliance with the HSR Act and all applicable foreign Antitrust Laws and FDI Laws, the listing requirements of the NYSE and the filing
of the Certificate of Merger with the Secretary of State of the State of Delaware, pursuant to the applicable provisions of the DGCL,
and provided that all consents, approvals, authorizations and other actions described in Section 3.5(b) have been obtained
or taken, except as set forth in Section 3.5(a) of the Merger Partner Disclosure Letter, neither (1) the execution,
delivery or performance of this Agreement or the other Transaction Documents nor (2) the consummation of any of the Contemplated
Transactions, will, directly or indirectly (with or without notice or lapse of time), (i) require a consent or approval under, contravene,
conflict with or result in a violation of any of the provisions of the Organizational Documents of (A) Merger Partner or (B) any
of the other members of the Merger Partner Group, except, in the case of clause (B), where such contravention, conflict or
violation, individually or in the aggregate, would not reasonably be expected to (1) be material to the Merger Partner Business
or the Merger Partner Group, taken as a whole, or (2) prevent or materially delay, materially interfere with or materially impair
the consummation by the members of the Merger Partner Group of the Merger or any of the other material Contemplated Transactions; (ii) contravene,
conflict with or result in a violation of, or give any Governmental Authority or other Person the right to challenge the Contemplated
Transactions or to exercise any remedy to obtain any relief under, any Law or any Governmental Order to which any member of the Merger
Partner Group, or any of the assets owned or used by any member of the Merger Partner Group, is subject, except where such contravention,
conflict, violation, challenge or remedy, individually or in the aggregate, would not reasonably be expected to (1) be material
to the Merger Partner Business or the Merger Partner Group, taken as a whole, or (2) prevent or materially delay, materially interfere
with or materially impair the consummation by the members of the Merger Partner Group of the Merger or any of the other material Contemplated
Transactions; (iii) contravene, conflict with or result in a violation of any of the terms or requirements of any Permit that is
held by any member of the Merger Partner Group or that relates to the Merger Partner Business or to any of the assets owned or used by
any member of the Merger Partner Group, except where such contravention, conflict or violation, individually or in the aggregate, would
not reasonably be expected to (A) be material to the Merger Partner Business or the Merger Partner Group, taken as a whole, or (B) prevent
or materially delay, materially interfere with or materially impair the consummation by the members of the Merger Partner Group of the
Merger or any of the other material Contemplated Transactions; or (iv) require a consent or approval under, contravene, conflict
with or result in a violation or breach of, or result in a termination (or right of termination) or default under, any provision of any
Merger Partner Material Contract, or give any Person the right to, (A) declare a default or exercise any remedy under any such Merger
Partner Material Contract; (B) accelerate the maturity or performance of any such Merger Partner Material Contract (other than any
Merger Partner Benefit Arrangement); (C) cancel, terminate or modify any right, benefit, obligation or other term of such Merger
Partner Material Contract; or (D) result in the imposition or creation of any Encumbrance (other than a Permitted Encumbrance) upon
or with respect to any asset owned or used by any member of the Merger Partner Group or the Merger Partner Business, in each case, except
where such consent, approval, contravention, conflict, violation, default, acceleration, cancellation, termination, modification or Encumbrance,
individually or in the aggregate, would not reasonably be expected to (1) be material to the Merger Partner Business or the Merger
Partner Group, taken as a whole, or (2) prevent or materially delay, materially interfere with or materially impair the consummation
by the members of the Merger Partner Group of the Merger or any of the other material Contemplated Transactions.
(b) Except
(i) as set forth in Section 3.5(b) of the Merger Partner Disclosure Letter, or (ii) as may be required by the
Securities Act, the Exchange Act (including the filing of the Merger Partner Proxy Statement with the SEC), state securities Laws or “blue
sky” Laws, the DGCL (including the Required Merger Partner Stockholder Vote), the receipt of Governmental Approvals under the HSR
Act, Gaming Laws, all applicable foreign Antitrust Laws and FDI Laws, Financial Services Laws, the listing requirements of the NYSE and
those matters, regulatory Consents, approvals and waivers set forth in Section 3.5(c) of the Merger Partner Disclosure
Letter (which shall include a list of all Consents required under any Money Services Laws), no member of the Merger Partner Group is or
will be required to make any filing with or give any notice to, or to obtain any Consent from, any Governmental Authority in connection
with (A) the execution, delivery or performance of this Agreement or the other Transaction Documents or (B) the consummation
of any of the Contemplated Transactions, except where the failure to make any such filing or give any such notice or to obtain any such
Consent would not, individually or in the aggregate, reasonably be expected to (1) be material to the Merger Partner Business or
the Merger Partner Group, taken as a whole, or (2) prevent or materially delay, materially interfere with or materially impair the
consummation by the members of the Merger Partner Group of the Merger or any of the other material Contemplated Transactions.
(c) Section 3.5(c) of
the Merger Partner Disclosure Letter sets forth each jurisdiction in which each member of the Merger Partner Group holds any Money Services
Permits and other Permits that are required for each member of the Merger Partner Group (as applicable) to operate the Merger Partner
Business and indicates whether any Consent or approval from, or notice to or registration with, any Governmental Authority is required
in connection with the change of control of the Merger Partner Business as a result of or in connection with the Contemplated Transactions.
To the extent that any member of the Merger Partner Group engages in activities in any jurisdiction, directly or indirectly through agents,
authorized delegates, or other third parties, involving money transmission, the sale of payment instruments, the issuance, sale or loading
of prepaid or stored value, the cashing of checks or the sale, exchange, trading or custody of virtual currency or other digital assets
and such activity is not conducted pursuant to a Money Services Permit of such member of the Merger Partner Group, Section 3.5(c) of
the Merger Partner Disclosure Letter sets forth each contractual or other arrangement currently in place upon which such member of the
Merger Partner Group relies as a basis for engaging in such conduct in such jurisdiction without a Money Services Permit.
3.6 SEC
Filings; Financial Statements.
(a) Merger
Partner has delivered or Made Available to Remainco and Buyer accurate and complete copies of all registration statements, proxy statements,
Merger Partner Certifications and other statements, reports, schedules, forms and other documents filed by Merger Partner with the SEC,
including all amendments or supplements thereto, since the Lookback Date (collectively, the “Merger Partner SEC Documents”).
All statements, reports, schedules, forms and other documents required to have been filed by Merger Partner or its officers with the
SEC since the Lookback Date have been so filed on a timely basis. No member of the Merger Partner Group other than Merger Partner is
required to file any documents with the SEC. As of the time it was filed with the SEC (or, if amended or superseded by a filing prior
to the date hereof, then on the date of such filing), (i) each of the Merger Partner SEC Documents complied as to form in all material
respects with the applicable requirements of the Securities Act or the Exchange Act (as the case may be) and (ii) none of the Merger
Partner SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each of the
certifications and statements relating to the Merger Partner SEC Documents required by (A) Rule 13a-14 or Rule 15d-14
under the Exchange Act; (B) 18 U.S.C. §1350 (Section 906 of the Sarbanes-Oxley Act); or (C) any other rule or
regulation promulgated by the SEC or applicable to the Merger Partner SEC Documents (collectively, the “Merger Partner Certifications”)
is accurate and complete, and complies as to form in all material respects with all applicable Law.
(b) The
financial statements (including any related notes) contained or incorporated by reference in the Merger Partner SEC Documents (i) complied
as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared
in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such
financial statements or, in the case of unaudited financial statements, as permitted by Form 10-Q, Form 8-K or any successor
form under the Exchange Act, and except that the unaudited financial statements may not contain footnotes and are subject to normal and
recurring year-end adjustments, none of which will be material); and (iii) fairly present, in all material respects, the consolidated
financial position of the Merger Partner Group as of the respective dates thereof and the consolidated results of operations and cash
flows of the Merger Partner Group for the periods covered thereby. No financial statements of any Person other than the members of the
Merger Partner Group are required by GAAP to be included in the consolidated financial statements of Merger Partner. There are no comments
from the SEC or its staff pending with respect to any statements, reports, schedules, forms or other documents filed by Merger Partner
with the SEC that remain outstanding and unresolved. The members of the Merger Partner Group are not subject to any Liabilities of any
nature whatsoever (whether accrued, absolute, contingent or otherwise) required to be reflected on a balance sheet prepared in accordance
with GAAP, except (A) as set forth in Section 3.6(b) of the Merger Partner Disclosure Letter or those liabilities
that are reflected or reserved for in the latest balance sheet included in the Merger Partner SEC Documents filed with the SEC prior to
the date hereof; (B) for those Liabilities that have been incurred by the members of the Merger Partner Group since the Merger Partner
Reference Balance Sheet Date in the ordinary course of the Merger Partner Business consistent with past practice; (C) for Liabilities
under this Agreement or the Separation Agreement or incurred in connection with the Contemplated Transactions and in compliance with the
Transaction Documents; and (D) for Liabilities that do not, individually or in the aggregate, exceed $3,750,000.
(c) Merger
Partner maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act. Such disclosure
controls and procedures are effective to ensure that all information required to be disclosed by Merger Partner is reported on a timely
basis to the individuals responsible for the preparation of Merger Partner’s filings with the SEC and other public disclosure documents.
Merger Partner’s management has completed an assessment of the effectiveness of Merger Partner’s internal control over financial
reporting in compliance with the requirements of Section 404 of the Sarbanes-Oxley Act for the fiscal year ended December 31,
2023, and such assessment concluded that such internal control system was effective. Merger Partner’s internal control over financial
reporting (as defined in Rule 13a-15 or Rule 15d-15, as applicable, under the Exchange Act) is effective in providing reasonable
assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance
with GAAP and includes policies and procedures that (i) pertain to the maintenance of records that are in reasonable detail and accurately
and fairly reflect the transactions and dispositions of the assets of Merger Partner, (ii) provide reasonable assurance that transactions
are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of
Merger Partner are being made only in accordance with authorizations of management and directors of Merger Partner and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of Merger Partner’s
assets that could have a material effect on its financial statements.
(d) Merger
Partner has disclosed, based on its assessment of internal controls as of the Merger Partner Reference Balance Sheet Date, to Merger Partner’s
auditors and audit committee (i) any significant deficiencies and material weaknesses in the design or operation of internal controls
over financial reporting which are reasonably likely to adversely affect Merger Partner’s ability to record, process, summarize
and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have
a significant role in Merger Partner’s internal control over financial reporting.
(e) Merger
Partner’s auditor has at all times since the date of enactment of the Sarbanes-Oxley Act been (i) a registered public accounting
firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act); (ii) “independent” with respect to Merger Partner
within the meaning of Regulation S-X under the Exchange Act; and (iii) to the Knowledge of Merger Partner, in compliance with
subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the
SEC and the PCAOB thereunder. All non-audit services performed by Merger Partner’s auditors for the Merger Partner Group that were
required to be approved in accordance with Section 202 of the Sarbanes-Oxley Act were so approved.
(f) None
of the information supplied or to be supplied by or on behalf of Merger Partner for inclusion or incorporation by reference in the Merger
Partner Proxy Statement will (i) at the time the Merger Partner Proxy Statement is filed with the SEC or (ii) after giving effect
to any amendments or supplements that have theretofore been made thereto, (A) at the time the Merger Partner Proxy Statement is first
mailed to the stockholders of Merger Partner or (B) at the time of the Merger Partner Stockholders’ Meeting (or any adjournment
or postponement thereof), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. The Merger Partner
Proxy Statement will, at the time the Merger Partner Proxy Statement is mailed to the stockholders of Merger Partner or at the time of
the Merger Partner Stockholders’ Meeting (or any adjournment or postponement thereof), comply as to form in all material respects
with the provisions of the Exchange Act and the rules and regulations promulgated by the SEC thereunder. For the avoidance of doubt,
no representation or warranty is made by Merger Partner with respect to any statements made or incorporated by reference in the Merger
Partner Proxy Statement based on information supplied, or required to be supplied, by or on behalf of Remainco or Spinco or by Buyer or
Buyer Sub or any of its Affiliates for inclusion, use, or incorporation by reference in the Merger Partner Proxy Statement.
3.7 Absence
of Certain Changes. Except as contemplated by this Agreement or the other Transaction Documents, since December 31, 2023, (a) the
members of the Merger Partner Group have conducted the Merger Partner Business in all material respects in the ordinary course consistent
with past practice, (b) there has not occurred any event or events that, individually or in the aggregate, have had or would reasonably
be expected to have a Merger Partner Material Adverse Effect and (c) none of the members of the Merger Partner Group has taken any
action or failed to take any action that would constitute a breach of Sections 5.3(b)(iii), 5.3(b)(iv), 5.3(b)(vi),
5.3(b)(xi), 5.3(b)(xii) (solely with respect to material waivers, amendments and terminations), 5.3(b)(xiii),
5.3(b)(xiv), 5.3(b)(xv), 5.3(b)(xvi), 5.3(b)(xviii), 5.3(b)(xix), 5.3(b)(xx) or 5.3(b)(xxii) (solely
with respect to the foregoing Sections) had such Sections been in effect from December 31, 2023.
3.8 Title
to Assets. The members of the Merger Partner Group own, and have good and valid title, in all material respects, to all assets purported
to be owned by them, including (a) all assets reflected on the Merger Partner Reference Balance Sheet (except for assets sold or
otherwise disposed of in the ordinary course of business since the Merger Partner Reference Balance Sheet Date) and (b) all other
assets reflected in the books and records of the members of the Merger Partner Group as being owned by the members of the Merger Partner
Group. All of such assets are owned by the members of the Merger Partner Group free and clear of any Encumbrances, except (i) for
Encumbrances securing the Merger Partner Credit Agreement (provided that if Buyer pays, or provides Merger Partner sufficient
cash to pay, all amounts outstanding under the Merger Partner Credit Agreement, then such Encumbrances will be released on or prior to
the Closing); (ii) where the failure to have such good and valid title results from any liens described in Section 3.8
of the Merger Partner Disclosure Letter; or (iii) any other Permitted Encumbrance. The members of the Merger Partner Group are the
lessees of, and hold valid leasehold interests in, all personal property purported to have been leased by them, and the members of the
Merger Partner Group enjoy undisturbed possession of such leased personal property, except where the failure to have such valid leasehold
interest results from any liens described in Section 3.8 of the Merger Partner Disclosure Letter, liens created or otherwise
imposed by any Buyer Party or any other Permitted Encumbrance. The buildings, plants, structures, furniture, fixtures, machinery, equipment,
vehicles and other items of tangible personal property included in the assets of the members of the Merger Partner Group are structurally
sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such buildings,
plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property is in need of maintenance
or repairs except for ordinary, routine maintenance and repairs and except as would not, individually or in the aggregate, reasonably
be expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole.
3.9 Real
Property.
(a) The
members of the Merger Partner Group hold valid fee simple title to the Merger Partner Owned Real Property set forth in Section 3.9(a) of
the Merger Partner Disclosure Letter, in each case, free and clear of Encumbrances other than Permitted Encumbrances. Neither the whole
nor any part of the Merger Partner Owned Real Property is subject to any pending suit for condemnation or other taking by any Governmental
Authority and, to the Knowledge of Merger Partner, no such condemnation or other taking is threatened or contemplated. To the Knowledge
of Merger Partner, all improvements constituting part of the Merger Partner Owned Real Property (i) comply with valid and current
certificates of occupancy or similar Permits to the extent required by applicable Laws for the use thereof, (ii) are in good operating
condition and repair (ordinary wear and tear excepted), (iii) are adequately served with all necessary utilities for the operation
of the business of the Merger Partner Business in the ordinary course of business in all material respects, and (iv) have current
uses and operations that do not violate in any material respect any Laws, covenants, conditions, restrictions, easements, licenses, permits,
or agreements, except in the case of each of clauses (i) through (iv), as would not, individually or in the aggregate,
reasonably be expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole.
(b) The
members of the Merger Partner Group have a valid leasehold interest (as lessee, sublessee, licensee or sublicensee) in all real property
leased, licensed or otherwise used by the members of the Merger Partner Group (collectively with all buildings, structures, fixtures
and other improvements leased thereunder, the “Merger Partner Leased Real Property”). After giving effect to the Contemplated
Transactions and in the event that all necessary consents (written or otherwise) are obtained from the relevant lessors, sublessors,
or licensors of each lease or Contract relating to the Merger Partner Leased Real Property, each of the leases or other Contracts relating
to the Merger Partner Leased Real Property will create (or will have created) as of the Closing (i) a valid and subsisting leasehold
interest, or valid right to use, of one of the members of the Merger Partner Group; (ii) a valid and binding obligation of such
member of the Merger Partner Group free of Encumbrances (other than Permitted Encumbrances); and (iii) enforceable by and against
such member of the Merger Partner Group in accordance with its terms, except in the cases of clauses (i) through (iii),
as would not, individually or in the aggregate, reasonably be expected to be material to the Merger Partner Business or the Merger Partner
Group, taken as a whole. None of the members of the Merger Partner Group, nor, to the Knowledge of Merger Partner, any other party to
any such lease or other Contract (each, a “Merger Partner Real Property Lease”) is in breach or default under such
Merger Partner Real Property Lease, and no event has occurred or failed to occur or circumstance exists which, with the delivery of notice,
the passage of time or both, would constitute such a breach or default, or permit the termination, modification or acceleration of rent
under such Merger Partner Real Property Lease, except as individually or in the aggregate, would not reasonably be expected to be material
to the Merger Partner Business or the Merger Partner Group, taken as a whole. Merger Partner has Made Available to Remainco and Buyer
complete and correct copies of (A) all leases, licenses, subleases or other Contracts pursuant to which any member of the Merger
Partner Group leases or uses real property and (B) all subleases, licenses, occupancy agreements and other Contracts granting to
any Person (other than any member of the Merger Partner Group) a right of use or occupancy of any of the Merger Partner Leased Real Property
in effect as of the date hereof. There are no material disputes with respect to any Merger Partner Real Property Lease. The Merger Partner
Leased Real Property is adequately served with all necessary utilities for the operation of the business of the Merger Partner Business
in the ordinary course of business in all material respects and has current uses and operations that do not violate in any material respect
any Laws, covenants, conditions, restrictions, easements, licenses, permits, or agreements. Except as set forth in Section 3.9(b) of
the Merger Partner Disclosure Letter, no consent of any lessor, sublessor, licensor or other third-party to a Merger Partner Real Property
Lease is required in connection with the execution and delivery of this Agreement or the other Transaction Documents by the applicable
members of Merger Partner Group or the consummation of the Contemplated Transactions. Section 3.9(b) of the Merger Partner
Disclosure Letter includes an accurate and complete list, as of the date hereof, of all Merger Partner Real Property Leases.
(c) None
of the members of the Merger Partner Group owns, leases, subleases, licenses or occupies any real property other than the Merger Partner
Real Property.
3.10 Intellectual
Property.
(a) Section 3.10(a) of
the Merger Partner Disclosure Letter identifies, as of the date hereof, each item of Merger Partner Registered IP. For each item
of Merger Partner Registered IP, Section 3.10(a) of the Merger Partner Disclosure Letter includes, where applicable,
as of the date hereof (excluding with respect to internet domain names), (i) the current owner and the current registrant; (ii) the
jurisdiction where the application, registration or issuance is filed; (iii) the application, registration or issue number; and
(iv) the application, registration or issue date.
(b) The
Merger Partner Registered IP is, to the Knowledge of Merger Partner, subsisting, valid and enforceable. A member of the Merger Partner
Group, as applicable, owns or has the rights to use all Merger Partner IP. Except as would not, individually or in the aggregate, reasonably
be expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole, the Merger Partner IP is solely
owned by a member of the Merger Partner Group free and clear of all Encumbrances, except for Permitted Encumbrances. The members of the
Merger Partner Group have taken commercially reasonable actions to maintain the confidentiality of all trade secrets and other material
confidential information included in the Merger Partner IP.
(c) To
the Knowledge of Merger Partner, since the Lookback Date, the operation of the Merger Partner Business, including the sale of any products
or the provision of any services by the members of the Merger Partner Group, has not infringed, misappropriated, diluted or violated
any Intellectual Property of any third party. To the Knowledge of Merger Partner, since the Lookback Date, no Person has been or is engaging
in any activity that infringes, misappropriates, dilutes or violates any of the Merger Partner IP.
(d) There
is no pending Action with respect to which any member of the Merger Partner Group has been served with written notice, or any other Action
pending or threatened in writing against any member of the Merger Partner Group, in any case, alleging that the operation of the Merger
Partner Business as conducted since the Lookback Date, including the sale of any products or the provision of any services by the members
of the Merger Partner Group, infringes, misappropriates, dilutes or violates the Intellectual Property of any third party in any manner
which would, individually or in the aggregate, reasonably be expected to be material to the Merger Partner Business or the Merger Partner
Group, taken as a whole.
(e) Each
current and former employee, consultant and contractor of any member of the Merger Partner Group who materially contributed to the development
of any material Merger Partner IP has executed a written Contract in a form substantially as that which has been provided by the Merger
Partner Group (i) assigning all right, title, and interest of such employee, consultant or contractor in such developments to a
member of the Merger Partner Group, as applicable, except where a member of the Merger Partner Group owns the Merger Partner IP by operation
of law, and (ii) acknowledging confidentiality obligations that such employee, consultant or contractor has with respect to the
treatment of confidential information of any confidential materials of the Merger Partner or any third party.
(f) The
members of the Merger Partner Group have taken commercially reasonable steps to maintain the confidentiality of and otherwise protect
and enforce their respective rights in all trade secrets and material proprietary information pertaining to the Merger Partner Business
and the products and services of the members of the Merger Partner Group.
(g) The
manner in which any Open Source Software is incorporated into, linked to or called by, or otherwise combined or distributed with any
Merger Partner Software has complied, in all materials respects, with the terms of the Open Source Software license applicable to such
Software and does not, according to the terms of the license applicable to such Open Source Software, obligate any member of the Merger
Partner Group to disclose, make available, offer or deliver all or any portion of any source code of any such software product or service
or any component thereof to any third party, other than the applicable Open Source Software.
(h) No
material source code for any Merger Partner Software has been made available to any third party except for disclosures to third parties
subject to written agreements containing reasonable protections of such source code.
(i) No
Merger Partner IP is subject to any outstanding judgment, injunction, Governmental Order, decree or agreement materially restricting
any member of the Merger Partner Group use or licensing thereof.
(j) A
member of the Merger Partner Group owns or otherwise has all Intellectual Property and Technology needed to conduct the Merger Partner
Business in all material respects as it is being conducted as of the date hereof and as it has been conducted in the twelve (12) months
prior to the date hereof; provided that the foregoing is not a representation or warranty with respect to infringement, misappropriation
or other violation of third party Intellectual Property or unfair competition.
3.11 Contracts.
(a) Section 3.11(a) of
the Merger Partner Disclosure Letter contains a true and correct list of each of the following undischarged or unsatisfied Contracts
in force as of the date hereof to which any member of the Merger Partner Group is a party or by which the Merger Partner Business or
any member of the Merger Partner Group is bound (each such Contract, a “Merger Partner Material Contract”):
(i) any
Contract that involved during the twelve (12) months ended on the Merger Partner Reference Balance Sheet Date aggregate payments or receipts
in excess of $12,500,000 by the Merger Partner Business or any Contract under which the Merger Partner Business reasonably expects to
receive or make payments during the twelve (12) months ending on March 31, 2024 in excess of $12,500,000;
(ii) any
distribution, dealer, representative, agency or similar Contract that involved during the twelve (12) months ended on the Merger Partner
Reference Balance Sheet Date, or is expected to involve during the twelve (12) months ending on March 31, 2024, aggregate payments
in excess of $12,500,000, other than any such Contract that is terminable on less than sixty (60) days’ notice without penalty
or payment in connection with termination (other than amounts accrued prior to such termination);
(iii) any
Contract that involved a non-affiliated Person license (as licensor or licensee) of Intellectual Property or Software to or from the
Merger Partner Business that involved during the twelve (12) months ended on the Merger Partner Reference Balance Sheet Date, or is expected
to involve during the twelve (12) months ending on March 31, 2024, aggregate payments in excess of $12,500,000, or pursuant to which
any third party creates, develops or customizes Intellectual Property or Software material to the operation of the Merger Partner Business
as conducted on the date hereof for or on behalf of the Merger Partner Business to the extent created, developed or customized exclusively
in connection with the Merger Partner Business, except to the extent (A) any of the foregoing is shrink-wrap or off-the-shelf license
for Software or (B) were entered into in the ordinary course of business consistent with past practice where such licenses were
incidental to the transactions contemplated by such Contracts;
(iv) any
Contract that is material to the Merger Partner Business that (A) prohibits the Merger Partner Business from engaging or competing
in any line of business, in any geography or with any Entity (other than any Contract that would otherwise be included in this clause
solely because it requires any member of the Merger Partner Group to operate in a geographic location where wager-based gaming is permitted
by Laws, or with a Person properly licensed to sell or otherwise place wager-based games), (B) requires the Merger Partner Business
to deal exclusively with any Person or contains “most favored nation” or similar provision in favor of the counterparty thereto,
(C) is with a vendor, supplier or service provider and requires the Merger Partner Business to purchase a minimum amount of product
or provide a minimum amount of revenue to the counterparty and was entered into outside the ordinary course of business or (D) was
entered into outside the ordinary course of business and prohibits the Merger Partner Business from soliciting any customer of another
Person;
(v) any
collective bargaining agreements (including any material memorandums of understanding), works council or similar labor Contracts with
a labor union or works council or similar organization;
(vi) any
mortgage, deeds of trust, indenture, loan or credit agreement, security agreement or other agreement or instrument evidencing the Indebtedness
of any member of the Merger Partner Group in excess of $5,000,000 (other than Indebtedness between members of the Merger Partner Group);
(vii) any
Contract that creates a strategic alliance, joint venture or partnership with a Person that is not a member of the Merger Partner Group,
profit sharing or other similar Contract with respect to the Merger Partner Business and is material to the Merger Partner Business;
(viii) any
Contract to which any member of the Merger Partner group is a party in favor of a credit support provider relating to a Credit Support
Instrument with aggregate face amounts in excess of $10,000,000;
(ix) any
Contract for the pending acquisition or disposition of any business or Person with a purchase price in excess of $5,000,000 or any Contract
with respect to any consummated acquisition or disposition of a business under which the Spinco Business has any future liability with
respect to an “earn-out,” contingent purchase price, deferred purchase price or similar contingent payment obligations in
excess of $5,000,000 individually;
(x) any
Contract with a Merger Partner Top Customer that provides for some or all of the payments from such Person that resulted in such Person
being considered a Merger Partner Top Customer;
(xi) any
Contract with a Merger Partner Top Supplier that provides for some or all of the payments to such Person that resulted in such Person
being considered a Merger Partner Top Supplier;
(xii) any
Contract with a Governmental Authority that is not a customer Contract and is material to the Merger Partner Business;
(xiii) any
Contract containing any future capital expenditure obligation of a member of the Merger Partner Group or the Merger Partner Business
in excess of $2,500,000;
(xiv) any
Contract that restricts the ability of any member of the Merger Partner Group from pledging any of its assets or making a dividend or
distribution to any holder of its Equity Interests; and
(xv) any
Contract with (A) a provider of transaction processing or settlement services for the funding of transfers initiated using Merger
Partner Products; (B) any Person appointing any member of the Merger Partner Group to act as the agent or authorized delegate of
such Person pursuant to any Money Services Laws; or (C) any Person providing services in connection with the purchase, sale, exchange,
trading or custody of virtual currency or digital assets.
(b) Merger
Partner has delivered or Made Available to Remainco and Buyer an accurate and complete copy of each Merger Partner Material Contract.
Except as would not, individually or in the aggregate, reasonably be expected to be material to the Merger Partner Business or the Merger
Partner Group, taken as a whole, (i) each Merger Partner Material Contract is a legal, valid and binding obligation of a member
of the Merger Partner Group and, to the Knowledge of Merger Partner, each other party to such Merger Partner Material Contract, and is
enforceable against the applicable member of the Merger Partner Group and, to the Knowledge of Merger Partner, such other party, in accordance
with its terms subject, in each case, to the effect of any Bankruptcy and Equity Exceptions, and (ii) neither the applicable member
of the Merger Partner Group nor, to the Knowledge of Merger Partner, any other party to a Merger Partner Material Contract is in material
default or breach of a Merger Partner Material Contract, and, to the Knowledge of Merger Partner, there does not exist any event, condition
or omission that would constitute such a material default or breach by any member of the Merger Partner Group (whether by lapse of time
or notice or both) under any Merger Partner Material Contract.
3.12 Compliance
with Laws; Regulatory Matters.
(a) Each
member of the Merger Partner Group is, and since the Regulatory Lookback Date has been, in compliance with all applicable Laws, including
Laws relating to money transmission, virtual currency or other digital assets, consumer protection, credit reporting, data privacy, financial
privacy, cybersecurity, securities Law matters, and payment services Law matters (including payment network rules) and Governmental Orders
directly applicable to it, except where failure to so comply would not, individually or in the aggregate, reasonably be expected to be
material to the Merger Partner Business or the Merger Partner Group, taken as a whole. Since the Regulatory Lookback Date, none of the
members of the Merger Partner Group has received any written notice or other written communication from any Governmental Authority or
any written notice from any other Person (i) regarding any actual or possible violation of, or failure to comply with, any Law or
(ii) that it is or has been the subject of any inspection, investigation, survey, audit, monitoring or other form of review by any
Governmental Authority, except as would not, individually or in the aggregate, reasonably be expected to be material to the Merger Partner
Business or the Merger Partner Group, taken as a whole.
(b) Since
the Regulatory Lookback Date, none of the members of the Merger Partner Group have been in violations of Money Services Laws, or, to
the extent applicable, been denied a Money Services Permit or other Permit by any Governmental Authority or had any Money Services Permit
or other Permit revoked or suspended.
(c) Each
member of the Merger Partner Group is, and at all times since the Regulatory Lookback Date has been, in compliance with all applicable
Anti-Money Laundering Laws. None of the members of the Merger Partner Group or any of their respective directors, officers, employees
or, to the Knowledge of Merger Partner, agents designated by any member of the Merger Partner Group to act on behalf of any member of
the Merger Partner Group is in violation of any applicable Anti-Money Laundering Laws.
(d) Since
the Regulatory Lookback Date, none of the members of the Merger Partner Group have (i) received written notice of any actual, alleged
or potential violation of any Anti-Money Laundering Laws or (ii) been a party to or the subject of any pending (or to the Knowledge
of Merger Partner, threatened) action, audit, or investigation, by or before any Governmental Authority (including receipt of any subpoena)
related to any actual, alleged or potential violation of any applicable Anti-Money Laundering Laws.
(e) Each
member of the Merger Partner Group maintains, and has at all times since the Regulatory Lookback Date maintained, (i) an adequate
system of internal controls reasonably designed to ensure compliance with the Anti-Money Laundering Laws and to prevent and detect violations
of the Anti-Money Laundering Laws and (ii) an operational and effective anti-money laundering compliance program that includes,
at a minimum, policies, procedures and training intended to detect, prevent and deter violations of applicable Anti-Money Laundering
Laws.
(f) None
of the members of the Merger Partner Group, nor any of their respective Representatives or Affiliates, nor any other Person associated
with or acting on behalf of any of the foregoing, has at any time taken or failed to take any action, or engaged in any activity, practice,
or conduct that would result in a violation by such member of the Merger Partner Group, or its Representatives or Affiliates, or any
other Person associated with or acting on behalf of any of the foregoing, of the FCRA. Each member of the Merger Partner Group has in
place, and each has caused each of its Affiliates to maintain, a compliance program and internal controls and procedures appropriate
to the applicable requirements of the FCRA. Except as set forth in Section 3.12(f) of the Merger Partner Disclosure
Letter, no member of the Merger Partner Group, nor any of their respective Representatives or Affiliates, nor any other Person associated
with or acting on behalf of any of the foregoing, is the subject of any pending or, to the Knowledge of Merger Partner, threatened claims,
allegations, charges, investigations, violations, settlements, voluntary disclosures, prosecutions, civil or criminal actions, lawsuits,
or other court or enforcement actions with respect to the FCRA.
3.13 Anti-Corruption
Compliance; Trade Compliance.
(a) Except
as would not reasonably be expected to have, individually or in the aggregate, material to the Merger Partner Business or the Merger
Partner Group, taken as a whole, since the Statutory Lookback Date, the members of the Merger Partner Group and, to the Knowledge of
Merger Partner, their respective agents, channel partners, Affiliates, distributors, resellers or other representatives to the extent
related to any member of the Merger Partner Group or the Merger Partner Business and acting on their behalf, have complied in all material
respects with the Anti-Corruption Laws of each jurisdiction in which the members of the Merger Partner Group operate. Since January 1,
2018, the members of the Merger Partner Group have maintained accurate books and records and implemented adequate internal accounting
controls and policies to enforce the Anti-Corruption Laws.
(b) Except
as would not reasonably be expected to be, individually or in the aggregate, material to the Merger Partner Business or the Merger Partner
Group, taken as a whole, since the Statutory Lookback Date, none of the members of the Merger Partner Group or, to the Knowledge of Merger
Partner, their respective agents, channel partners, Affiliates, distributors, resellers or other representatives to the extent related
to any member of the Merger Partner Group or the Merger Partner Business and acting on their behalf, (i) have directly or indirectly
offered, given, reimbursed, paid or promised to pay, or authorized the payment of, any money or other thing of value (including any fee,
gift, travel expense or entertainment) in the course of their actions for, or on behalf of, the Merger Partner Business payable to (A) any
Person who is an official, officer, or employee of any Governmental Authority or of any existing or prospective customer (whether or
not owned by a Governmental Authority); (B) any political party or official thereof; (C) any candidate for political or political
party office; or (D) any other Person affiliated with any such customer, political party or official or political office, or (ii) have
otherwise violated any Anti-Corruption Laws.
(c) (i) Since
the Statutory Lookback Date, the members of the Merger Partner Group and their respective directors, officers, employees and, to the
Knowledge of Merger Partner, agents, have complied with all applicable International Trade Laws; (ii) since the Statutory Lookback
Date, none of the members of the Merger Partner Group have (A) received written notice of any actual, alleged or potential violation
of any International Trade Laws or (B) been a party to or the subject of any pending (or to the Knowledge of Merger Partner, threatened)
action, audit, disclosure or investigation, by or before any Governmental Authority (including receipt of any subpoena) related to any
actual, alleged or potential violation of any International Trade Laws; (iii) none of the members of the Merger Partner Group or
any of their respective directors, officers, employees or, to the Knowledge of Merger Partner, agents, are Sanctioned Parties; and (iv) none
of the members of the Merger Partner Group or any of their respective directors, officers or, to the Knowledge of Merger Partner, employees
or agents have engaged in any transactions with or dealt with the property of Sanctioned Parties in violation of International Trade
Laws.
3.14 Permits.
(a) Since
the Lookback Date, the members of the Merger Partner Group have held all Permits (including all Money Services Permits) necessary to
enable the members of the Merger Partner Group to conduct the Merger Partner Business in the manner in which it is currently being conducted,
except where the failure to so hold would not, individually or in the aggregate, reasonably be expected to be material and adverse to
the Merger Partner Business or the members of the Merger Partner Group. Since the Lookback Date, (i) all such Permits are valid
and in full force and effect and (ii) none of the members of the Merger Partner Group is in default or violation, in any material
respect, of any such Permits. Since the Lookback Date, none of the members of the Merger Partner Group has received any written notice
or written communication from any Governmental Authority regarding any default or violation in any material respect of any Permit. The
foregoing representations and warranties set forth in this Section 3.14 shall not apply to Permits required under Environmental
Laws, which are exclusively set forth in Section 3.17.
(b) Except
as would not reasonably be expected to be, individually or in the aggregate, material to the Merger Partner Business or the Merger Partner
Group, taken as a whole, routine examination findings in connection with the maintenance of applicable Money Services Permits that do
not, individually or when taken in the aggregate, allege a violation of Laws, for which no fine or other sanction has been imposed or
remains pending, and that have been fully remediated, or as set forth in Section 3.14(b) of the Merger Partner Disclosure
Letter, since the Lookback Date, none of the members of the Merger Partner Group have received any notice or other communication from
any Governmental Authority regarding (i) any actual or possible violation of or failure to comply with any term or requirement of
any material Money Services Permits; (ii) any actual or possible revocation, withdrawal, suspension, cancellation, termination or
modification of any Money Services Permits; or (iii) any failure to obtain or receive any material Money Services Permit. Except
as would not reasonably be expected to be, individually or in the aggregate, material to the Merger Partner Business or the Merger Partner
Group, taken as a whole, no member of the Merger Partner Group has any pending or outstanding memorandum of understanding, Governmental
Order, or other form of formal or informal written Contract, arrangement or understanding with any Governmental Authority with respect
to any such Money Services Permit. Except as set forth in Section 3.14(b) of the Merger Partner Disclosure Letter or
as would not reasonably be expected to be, individually or in the aggregate, material to the Merger Partner Business or the Merger Partner
Group, taken as a whole, each Consent of a Governmental Authority required for any acquisition or disposition completed by any member
of the Merger Partner Group was timely obtained in final form. Except as set forth in Section 3.14(b) of the Merger
Partner Disclosure Letter or as would not reasonably be expected to be, individually or in the aggregate, material to the Merger Partner
Business or the Merger Partner Group, taken as a whole, each member of the Merger Partner Group has fully and timely performed in all
material respects any and all conditions or requirements of such Consents prior to the date hereof.
3.15 Tax
Matters.
(a) Each
material Tax Return required to be filed by or on behalf of the respective members of the Merger Partner Group or with respect to the
Merger Partner Business with any Governmental Authority with respect to any taxable period ending on or before the Closing Date (the
“Merger Partner Returns”) (i) has been or will be filed on or before the applicable due date (including any extensions
of such due date) and (ii) has been, or will be when filed, prepared in all material respects in compliance with all applicable
Law. All material Taxes required to be paid by or with respect to the members of the Merger Partner Group have been duly paid, except
for Taxes contested in good faith in appropriate proceedings and for which adequate reserves have been established in accordance with
GAAP.
(b) No
member of the Merger Partner Group and no Merger Partner Return is subject to an audit with respect to Taxes by any Governmental Authority.
No extension or waiver of the limitation period applicable to any of the Merger Partner Returns has been granted (by Merger Partner or
any other Person), and no such extension or waiver has been requested from any member of the Merger Partner Group.
(c) No
claim or Action is pending, has been asserted in writing or, to the Knowledge of Merger Partner, has been threatened against or with
respect to any member of the Merger Partner Group or with respect to the Merger Partner Business in respect of any material Tax. There
are no unsatisfied liabilities for material Taxes with respect to any notice of deficiency or similar document received by any member
of the Merger Partner Group or with respect to the Merger Partner Business with respect to any material Tax (other than liabilities for
Taxes asserted under any such notice of deficiency or similar document which are being contested in good faith by the members of the
Merger Partner Group and with respect to which adequate reserves for payment have been established on the Merger Partner Reference Balance
Sheet). There are no liens for material Taxes upon the assets of any member of the Merger Partner Group except Permitted Encumbrances.
(d) There
are no Contracts relating to the allocation, sharing or indemnification of Taxes to which any member of the Merger Partner Group is a
party, other than (i) the Tax Matters Agreement; (ii) Contracts containing customary gross-up or indemnification provisions
in credit agreements, derivatives, leases and similar agreements entered into in the ordinary course of business and the primary purposes
of which do not relate to Taxes; and (iii) Contracts which solely involve any member of the Merger Partner Group.
(e) No
member of the Merger Partner Group has participated in, or is currently participating in, a “listed transaction” within the
meaning of Treasury Regulation Section 1.6011-4(b).
(f) The
members of the Merger Partner Group have withheld and paid all material Taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor, shareholder or other Person.
(g) No
written claim has ever been made by any Governmental Authority in a jurisdiction where a member of the Merger Partner Group does not
file a Tax Return that it is or may be subject to taxation by that jurisdiction which has resulted or could reasonably be expected to
result in an obligation to pay material Taxes.
(h) No
member of the Merger Partner Group will be required to include any material item of income in, or exclude any material item of deduction
from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of (i) a change in method
of accounting for a taxable period ending on or prior to the Closing Date; (ii) a “closing agreement” as described in
Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) entered into on or prior to
the Closing Date; (iii) deferred intercompany gain or any excess loss account described in Treasury Regulations under Section 1502
of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) with respect to a transaction occurring on or
prior to the Closing Date; (iv) an installment sale or open transaction disposition made on or prior to the Closing Date; (v) a
prepaid amount received or deferred revenue accrued on or prior to the Closing Date; or (vi) Section 965 of the Code.
(i) No
member of the Merger Partner Group (i) has been a member of an affiliated group as defined in Section 1504 of the Code (or
any analogous combined, consolidated or unitary group defined under state, local or non-U.S. Tax Law), other than a group the common
parent of which was a current member of the Merger Partner Group or (ii) has any liability for the Taxes of any Person under Treasury
Regulations Section 1.1502-6 (or any corresponding or similar provision of state, local or non-U.S. Law), as a transferee or successor
or by contract (other than agreements or contracts entered into in the ordinary course of business and not primarily related to Taxes).
(j) No
member of the Merger Partner Group has constituted either a “distributing corporation” or a “controlled corporation”
within the meaning of Section 355(a)(1)(A) of the Code, in each case, within the two (2)-year period ending on the date hereof.
(k) Section 3.15
and, to the extent related to Tax matters, Section 3.16, contain the sole and exclusive representations and warranties
of Merger Partner herein with respect to Tax matters.
3.16 Benefit
Arrangements; Labor Matters.
(a) Section 3.16(a) of
the Merger Partner Disclosure Letter sets forth an accurate and complete list, as of the date hereof, of each material Merger Partner
Benefit Arrangement, and separately identifies each as such. Merger Partner has delivered or Made Available to Remainco and Buyer accurate
and complete copies of the following with respect to each material Merger Partner Benefit Arrangement, as applicable: (i) the plan
document (or, in the case of any unwritten Merger Partner Benefit Arrangement, a description of the material terms thereof), all related
trust agreements, insurance contracts and policy documents, and any amendments thereto; (ii) the most recent summary plan description
and any summaries of material modifications thereto; (iii) the three most recently filed annual reports (Form 5500 series),
if any, with all corresponding schedules and financial statements attached thereto (including any related actuarial valuation report);
(iv) the most recent IRS determination, advisory or opinion letter issued with respect to any Merger Partner Benefit Arrangement
intended to be qualified under Section 401(a) of the Code; and (v) any material notices, letters or other correspondence
with the IRS, the DOL, the Pension Benefit Guaranty Corporation or any other Governmental Authority. Merger Partner has delivered to
Remainco and Buyer accurate and complete copies of the following with respect to each material Merger Partner Benefit Arrangement, as
applicable: (A) the plan document or a description of the material terms and (B) the most recent IRS determination, advisory
or opinion letter issued with respect to any Merger Partner Benefit Arrangement intended to be qualified under Section 401(a) of
the Code.
(b) None
of the members of the Merger Partner Group or any of their respective ERISA Affiliates has ever maintained, contributed, had an obligation
to contribute to, or had any Liability with respect to, (i) a “defined benefit plan” within the meaning of Section 3(35)
of ERISA or pension plan subject to the funding standards of Title IV or Section 302 of ERISA or Section 412 of the Code; (ii) a
“multiemployer plan” within the meaning of Section (3)(37) of ERISA; or (iii) a “multiple employer plan”
described in Section 413 of the Code. No Merger Partner Benefit Arrangement provides, and, with respect to the Merger Partner Employees,
the members of the Merger Partner Group are not obligated to provide, or have an obligation to provide, post-termination or retiree life
insurance, post-termination or retiree health benefits or other post-termination or retiree employee welfare benefits to any current
or former Merger Partner Employee, except as may be required by COBRA or other applicable Law. None of the members of the Merger Partner
Group or any of their respective ERISA Affiliates have any material Liability on account of a violation of COBRA.
(c) Each
Merger Partner Benefit Arrangement has been established, maintained and administered in all material respects in accordance with its
terms and in compliance with the applicable provisions of ERISA, the Code and other Laws. Except as would not reasonably be expected
to result in material liability, (i) the members of the Merger Partner Group have timely performed all obligations required to be
performed by it under each Merger Partner Benefit Arrangement; (ii) there are no Actions pending or, to the Knowledge of Merger
Partner, threatened or reasonably anticipated with respect to any Merger Partner Benefit Arrangement, its assets or any fiduciary thereof
(other than routine claims for benefits); and (iii) no event has occurred and no condition exists that would subject any member
of the Merger Partner Group to any excise Tax, fine, Encumbrance, material penalty or other liability imposed by ERISA, the Code or any
other applicable Law with respect to any Merger Partner Benefit Arrangement.
(d) Each
Merger Partner Benefit Arrangement that is intended to be qualified under Section 401(a) of the Code is so qualified and has
received a favorable determination letter, or is the subject of an opinion or advisory letter, from the IRS, and to the Knowledge of
Merger Partner, no fact or event has occurred since the date of such determination letter that would reasonably be expected to adversely
affect such qualification.
(e) Except
as would not reasonably be expected to result in material liability to any member of the Merger Partner Group or the imposition of a
material Tax on any Merger Partner Employee under Section 409A(a)(1)(B) of the Code, each Merger Partner Benefit Arrangement
that is a “nonqualified deferred compensation plan” (as defined under Section 409A of the Code) has been operated in
compliance with Section 409A of the Code and has complied with applicable documentary requirements of Section 409A of the Code.
(f) Except
as set forth in Section 3.16(f) of the Merger Partner Disclosure Letter, none of the execution or delivery of this Agreement
or the other Transaction Documents, the consummation of any of the Contemplated Transactions will, either alone or in conjunction with
any other event, (i) entitle any current or former Merger Partner Employee to any payment or benefit (or result in the funding of
any such payment or benefit); (ii) increase the amount or value of any benefit or compensation otherwise payable or required to
be provided to any current or former Merger Partner Employee; or (iii) accelerate the time of payment, funding or vesting of amounts
due to any current or former Merger Partner Employee. No amount paid or payable by Merger Partner and its Affiliates (whether in cash,
in property, or in the form of benefits) to any Merger Partner Employee as a result of the consummation of the Contemplated Transactions
will, either alone or in conjunction with any other event, be an “excess parachute payment” within the meaning of Section 280G
of the Code. No Merger Partner Benefit Arrangement provides, and, with respect to the Merger Partner Employees, Merger Partner is not
obligated to provide, or has an obligation to provide, compensation to any Person for excise taxes payable pursuant to Section 4999
of the Code or for taxes payable pursuant to Section 409A of the Code.
(g) With
respect to each Benefit Arrangement maintained primarily for current and former Merger Partner Employees located outside the United States
(each, a “Merger Partner International Benefit Plan”), in all material respects (i) if intended to qualify for
special Tax treatment, each Merger Partner International Benefit Plan is so qualified; (ii) if required to be registered with a
Governmental Authority, is so registered; and (iii) the fair market value of the assets of each Merger Partner International Benefit
Plan, the liability of each insurer for any Merger Partner International Benefit Plan funded through insurance, or the book reserve established
for any such plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations,
as of the date hereof, with respect to all current and former participants in such plan according to the actuarial assumptions and valuations
most recently used to determine employer contributions to such plan. None of the members of the Merger Partner Group have been a party
to, a sponsoring employer of, or otherwise is under any liability with respect to any defined benefit pension scheme, any final salary
scheme or any death, disability or retirement benefit calculated by reference to age, salary or length of service or any other item.
(h) Merger
Partner has provided to Remainco and Buyer a list as of June 17, 2024 of the Merger Partner Employees, and includes the following
information pertaining to each such Merger Partner Employee: (i) job title; (ii) location of employment (including, for U.S.
employees, state of residence); (iii) employing Entity; (iv) annual base salary or hourly rate of pay; (v) bonus or other
incentive opportunity; (vi) employment status (active or on leave, and, if on leave, expected return date); (vii) date of commencement
of employment; (viii) notice period, if applicable; (ix) accrued and unused paid-time off; (x) with respect to U.S. Merger
Partner Employees, status as exempt or nonexempt under the federal Fair Labor Standards Act or similar state law; and (xi) whether
covered by the terms of a collective bargaining agreement.
(i) Merger
Partner has provided to Remainco and Buyer a list as of June 30, 2024 of all independent contractors or consultants currently engaged
by any member of the Merger Partner Group, containing (i) country where engaged (including, for U.S. based contractors, state where
work was performed); (ii) engaging Entity (or Entity such individual provides services to, if different); (iii) whether the
individual is engaged directly or via an intermediary; and (iv) amount paid to each such independent contractor or consultant, year
to date in calendar year 2024.
(j) To
the Knowledge of Merger Partner, as of the date hereof, all Merger Partner Employees who are based and ordinarily working in the U.S.
(the “U.S. Merger Partner Employees”) are authorized to work in the United States. Since the Statutory Lookback Date,
each member of the Merger Partner Group has complied in all material respects with all applicable Laws regarding immigration and U.S.
work authorization compliance, and, to the Knowledge of Merger Partner, has a valid Form I-9 on file for each U.S. Merger Partner
Employee. To the Knowledge of Merger Partner, all Merger Partner Employees who are based and ordinarily working outside of the U.S. have
the legal right to work in the country in which they are employed, and each of the members of the Merger Partner Group have complied
in all material respects with their respective obligations under applicable non-U.S. Laws with respect to such Merger Partner Employees.
(k) As
of the date hereof (and, except as would not, individually or in the aggregate be material to the Merger Partner Business, after the
date hereof and prior to the Closing), (i) there are no strikes or work stoppages pending or, to the Knowledge of Merger Partner,
threatened by any Merger Partner Employees, (ii) no such strike or work stoppage involving Merger Partner Employees has occurred
since the Lookback Date and (iii) to the Knowledge of Merger Partner, there is no organizing activity by any union or labor organization
as to any Merger Partner Employees.
(l) Each
of the members of the Merger Partner Group is, and since the Lookback Date has been, in material compliance with all applicable Laws
directly applicable to the Merger Partner Business respecting labor, employment, fair employment practices, terms and conditions of employment,
workers’ compensation, occupational safety and health requirements, employment classification, immigration, the WARN Act, plant
closings and layoffs, the Fair Labor Standards Act, employment discrimination, equal opportunity, employee leave issues and unemployment
insurance. Each member of the Merger Partner Group is, and since the Lookback Date has been, operating in a manner consistent in all
material respects with the United Nations Convention on the Rights of the Child and the International Labor Organization’s Minimum
Age Convention (No. 138).
(m) As
of the date hereof (and, except as would not, individually or in the aggregate be material to the Merger Partner Business, after the
date hereof and prior to the Closing), (i) there is no trade union recognized by, or works council, staff association or other employee
representative body established by any member of the Merger Partner Group, (ii) there is no outstanding material dispute between
any member of the Merger Partner Group and any trade union, or, to the Knowledge of Merger Partner, threatened in writing and (iii) there
is no collective bargaining agreement or other labor arrangement in place or currently being negotiated with any trade union or employee
representatives to which any member of the Merger Partner Group is a party or subject. Since the Lookback Date, none of the members of
the Merger Partner Group has received any written requests for recognition from a trade union.
(n) Except
as set forth in Section 3.16(n) of the Merger Partner Disclosure Letter, (i) to the Knowledge of Merger Partner,
since the Lookback Date, to the extent related to any Merger Partner Employee, the members of the Merger Partner Group have not received
notice of any charge or complaint or of the intent to conduct an investigation (or notice that such an investigation is in progress)
from, or pending before, any Governmental Authority responsible for the enforcement of labor, employment, wages and hours of work, immigration,
or occupational safety and health Laws and (ii) there is no charge, complaint, lawsuit, or other material proceeding pending or,
to the Knowledge of Merger Partner, threatened against any member of the Merger Partner Group before any Governmental Authority by or
on behalf of any Merger Partner Employee or former Merger Partner Employee or any applicant for employment as a Merger Partner Employee,
in each case alleging breach of any express or implied contract of employment, any applicable Law governing employment or the termination
thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship, in the case of each of
clause (i) and (ii), that would, individually or in the aggregate, reasonably be expected to be material to the Merger
Partner Business or the Merger Partner Group, taken as a whole.
(o) To
the Knowledge of Merger Partner, since the Lookback Date, (i) no allegations of sexual or other harassment or misconduct have been
made against any employee of Merger Partner with a title above Vice President and (ii) no Action is pending or threatened, and no
settlement agreement has been entered into, with respect to any member of the Merger Partner Group involving allegations of sexual or
other harassment or misconduct by any Merger Partner Employee, in each case, that, individually or in the aggregate, is reasonably be
expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole.
(p) Except
as set forth in Section 3.16(p)(i) of the Merger Partner Disclosure Letter, since the Lookback Date, none of members
of the Merger Partner Group has implemented any employee layoffs or plant closings that would require notice under the WARN Act. None
of the members of the Merger Partner Group has any outstanding WARN Act liability. Section 3.16(p)(ii) of the Merger
Partner Disclosure Letter, which shall be supplemented through Closing, further contains an accurate and complete list of all employees
who experience an “employment loss” (as defined in the WARN Act) during the ninety (90) days prior to the Closing Date, listing
for each such employee the date and nature of the employment loss and the employee’s position and work location.
(q) Since
the Lookback Date, the members of the Merger Partner Group have not made, or started implementation of, any collective dismissals that
have required or will require notification or consultation with any state authority, trade union, works or supervisory council, staff
association or body representing or in relation to any of their employees.
3.17 Environmental
Matters. Except as set forth in Section 3.17 of the Merger Partner Disclosure Letter, (a) each of the members of
the Merger Partner Group is, and at all times since the Regulatory Lookback Date has been, in compliance in all material respects with
all Environmental Laws applicable to the Merger Partner Business, (b) each of the members of the Merger Partner Group possess and
are, and at all times since the Regulatory Lookback Date have been, in compliance in all material respects with all Environmental Permits
that are required for the operation of the Merger Partner Business, (c) there are no Actions pending or, to the Knowledge of Merger
Partner, threatened that seek the revocation, cancellation, or suspension of any of the Environmental Permits, (d) none of
the members of the Merger Partner Group have received any written notice, complaint or claim, and there are no Actions pending or, to
the Knowledge of Merger Partner, threatened against any member of the Merger Partner Group or with respect to the Merger Partner Business,
in each case, alleging a violation of or Liability (including any investigatory, remedial or corrective action liability) under any Environmental
Law that, in each case, would reasonably be expected to result in material Liability to any member of the Merger Partner Group, (e) none
of the members of the Merger Partner Group is currently operating the Merger Partner Business subject to any Governmental Order addressing
a violation of or Liability under any Environmental Law, (f) none of the members of the Merger Partner Group has assumed by contract
or, to the Knowledge of Merger Partner, by operation of law, any material Liability of any third party arising under any Environmental
Law and (g) there has been no Release of Hazardous Materials by any member of the Merger Partner Group or, to the Knowledge of Merger
Partner, at, on, in, under or from (i) the Merger Partner Real Property, (ii) any real property formerly owned, leased, or
operated by any member of the Merger Partner Group or (iii) at any facility to which any Hazardous Materials generated by the Merger
Partner Business were sent for disposal, in each case of subclauses (i) through (iii), in a manner that could
reasonably be expected to result in material liability under Environmental Law. Notwithstanding any of the representations and warranties
contained elsewhere in this Agreement, the representations and warranties in this Section 3.17 and in Section 3.7
shall be the sole representations and warranties of Merger Partner with respect to environmental matters, Environmental Laws, Environmental
Permits or Hazardous Materials.
3.18 Insurance.
Except as would not reasonably be expected to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole,
each Insurance Policy and Self-Insurance program and arrangement relating to the Merger Partner Business and the members of the Merger
Partner Group is binding and in full force and effect. With respect to each such Insurance Policy, and except as would not reasonably
be expected to be, individually or in the aggregate, material to the Merger Partner Business or the Merger Partner Group, taken as a
whole, (i) all premiums with respect thereto are currently paid, (ii) none of the members of the Merger Partner Group is in
breach or default and, to the Knowledge of Merger Partner, no event has occurred which, with notice or lapse or time, would constitute
a breach or default or permit termination or modification of the policy, (iii) none of the members of the Merger Partner Group has
received any written notice of cancellation or non-renewal of the policy and (iv) the consummation of the Contemplated Transactions
will not cause a breach, termination or modification of the policy.
3.19 Absence
of Litigation.
(a) Except
as set forth in Section 3.19(a) of the Merger Partner Disclosure Letter, (i) there are no Actions pending or, to
the Knowledge of Merger Partner, threatened, against any member of the Merger Partner Group which would, individually or in the aggregate,
reasonably be expected to have a Merger Partner Material Adverse Effect and (ii) as of the date hereof, there are no Actions pending
or, to the Knowledge of Merger Partner, threatened, against any member of the Merger Partner Group alleging Liabilities or Losses in
excess of $1,000,000.
(b) As
of the date hereof, there are no Actions pending or, to the Knowledge of Merger Partner, threatened against any member of the Merger
Partner Group that question the validity of, or seek injunctive relief with respect to, any of the Transaction Documents or the right
of any member of the Merger Partner Group to enter into any of the Transaction Documents.
(c) None
of the Merger Partner Business or any member of the Merger Partner Group is a party to or subject to the provisions of any Governmental
Order that would reasonably be expected, individually or in the aggregate, to be material to the Merger Partner Business or the Merger
Partner Group, taken as a whole.
(d) As
of the date hereof, none of the Merger Partner Business or any member of the Merger Partner Group is a party to or subject to the provisions
of any Governmental Order that would reasonably be expected to prevent or materially delay, materially interfere with or materially impair
(i) the consummation by the members of the Merger Partner Group of the Contemplated Transactions or (ii) the compliance by
any member of the Merger Partner Group with the Transaction Documents.
3.20 Customers
and Suppliers.
(a) Section 3.20(a) of
the Merger Partner Disclosure Letter sets forth (i) a correct and complete list identifying the top ten (10) customers of
Merger Partner Business, measured by revenue recognized by the Merger Partner Business on a consolidated basis during the one (1)-year
period ended on the Merger Partner Reference Balance Sheet Date (collectively, the “Merger Partner Top Customers”);
and (ii) a correct and complete list identifying the top ten (10) suppliers of the Merger Partner Business, measured by expense
incurred by the Merger Partner Business on a consolidated basis during the one (1)-year period ended on the Merger Partner Reference
Balance Sheet Date (collectively, the “Merger Partner Top Suppliers”).
(b) Since
the Merger Partner Reference Balance Sheet Date through the date hereof, to the Knowledge of Merger Partner, Merger Partner has not received,
from any Merger Partner Top Customer or Merger Partner Top Supplier, written communications (i) terminating, not renewing or materially
reducing (or stating the intent to terminate, not renew or materially reduce), or materially altering the terms (or stating the intent
to materially alter the terms) of such Merger Partner Top Customer’s or Merger Partner Top Supplier’s relationship with the
members of the Merger Partner Group or (ii) indicating a material breach of the terms of any Contracts with such Merger Partner
Top Customer, or Merger Partner Top Supplier, in each case, except as, individually or in the aggregate, would not reasonably be expected
to be material to the Merger Partner Business or the Merger Partner Group, taken as a whole.
3.21 Vote
Required. The only vote of Merger Partner’s stockholders required to consummate the Contemplated Transactions is the affirmative
vote of the holders of a majority of the outstanding shares of Merger Partner Common Stock entitled to vote thereon to adopt this Agreement
in accordance with the DGCL (the “Required Merger Partner Stockholder Vote”).
3.22 Financial
Advisors. Except for Global Leisure Partners LLP (“GLP”) and Houlihan Lokey Capital, Inc. (“Houlihan
Lokey”), no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in
connection with any of the Contemplated Transactions based upon arrangements made by or on behalf of any member of the Merger Partner
Group. Prior to the date hereof, Merger Partner has provided Remainco and Buyer with copies of all engagement letters and similar Contracts
with GLP and Houlihan Lokey concerning or related to any of the Contemplated Transactions.
3.23 Takeover
Statutes. As of the date hereof, there is no stockholder rights plan, “poison pill,” anti-takeover plan or other similar
device in effect to which any member of the Merger Partner Group is a party or otherwise is bound. The Contemplated Transactions are
and, as of the Closing, shall be exempt from any such stockholder rights plan, “poison pill,” anti-takeover plan or other
similar device adopted prior to the Closing to which any member of the Merger Partner Group is a party or otherwise is bound. No “fair
price,” “moratorium,” “control share acquisition,” “business combination,” “interested
stockholder,” “stockholder protection” or other similar anti-takeover law applicable to Merger Partner enacted under
Law applies to this Agreement, the Merger or any other Contemplated Transactions.
3.24 Data
Privacy and Information Security.
(a) The
members of the Merger Partner Group and, to the Knowledge of Merger Partner, the Merger Partner Data Processors and other Persons with
whom the Merger Partner Group has shared Personal Data, in each case since the Lookback Date, (i) have complied with applicable
Privacy Laws, Merger Partner Privacy Policies and other Contracts relating to the collection, use, protection, or processing of Merger
Partner IT Systems or Merger Partner Data, (ii) have not suffered and are not currently suffering a Security Incident and (iii) have
not been subject to any complaints, litigation or regulatory investigations or enforcement actions from any Person or Governmental Authority
and have not received any notices or inquiries alleging noncompliance with any applicable Privacy Laws in each case, except in the case
of each of clause (i) through (iii), as would not, individually or in the aggregate, reasonably be expected to
be material to the Merger Partner Business or the Merger Partner Group, taken as a whole. To the Knowledge of Merger Partner, neither
the execution, delivery or performance of any of the Transaction Documents, nor the consummation of the Contemplated Transactions, violate
any Privacy Laws or Merger Partner Privacy Policies, except as, individually or in the aggregate, would not reasonably be expected to
(A) be material to the Merger Partner Business or the Merger Partner Group, taken as a whole, or (B) prevent or materially
delay, materially interfere with or materially impair (1) the consummation by the members of the Merger Partner Group of any of
the Contemplated Transactions or (2) the compliance by any member of the Merger Partner Group with the Transaction Documents. When
any member of the Merger Partner Group uses a Merger Partner Data Processor to Process Personal Data, the relevant Merger Partner Data
Processor has provided guarantees, warranties or covenants in relation to the Processing of Personal Data, confidentiality, and security
measures, and has agreed to comply with those obligations in a manner sufficient for the relevant member of the Merger Partner Group’s
material compliance with applicable Privacy Law.
(b) Merger
Partner has established and maintains a Merger Partner Information Security Program, and since the Lookback Date there have been no material
violations of the Merger Partner Information Security Program. The Merger Partner Information Security Program has been assessed and
tested on a no less than annual basis; all critical and high risks and vulnerabilities have been remediated; and the Merger Partner Information
Security Program has proven sufficient and compliant with applicable Privacy Laws in all material respects. The Merger Partner IT Systems
currently used by the members of the Merger Partner Group are in good working condition, do not contain any Malicious Code or defect,
and operate and perform as necessary to conduct the Merger Partner Business. All Merger Partner Data will continue to be available for
Processing by the relevant member of the Merger Partner Group following the Closing on substantially the same terms and conditions as
existed immediately before the Closing.
3.25 Fairness
Opinion. The Board of Directors (in such capacity) of Merger Partner has received the written opinion of Houlihan Lokey to the effect
that, as of the date of such opinion, based upon and subject to the assumptions, limitations, conditions, qualifications and other matters
considered in connection with the preparation of such opinion, the Per Share Price to be received by the holders of shares of Merger
Partner Common Stock in the Merger pursuant to this Agreement is fair, from a financial point of view, to such holders. It is agreed
and understood that such opinion is for the benefit of the Merger Partner Board and may not be relied on by Remainco, Spinco, Buyer or
Buyer Sub for any purpose. A written copy of such opinion will be delivered to Remainco and Buyer promptly following the date hereof,
solely for informational purposes.
3.26 Acknowledgement
by Merger Partner. Merger Partner is not relying and has not has relied on any representations or warranties whatsoever regarding
the subject matter of this Agreement, express or implied, except for the representations and warranties in Article II, in
Article IV or in any of the other Transaction Documents, in each case, to the extent made to Merger Partner. The representations
and warranties by Remainco and Spinco contained in Article II, by Buyer and Buyer Sub contained in Article IV,
or by any of them in any of the other Transaction Documents, in each case, to the extent made to Merger Partner, constitute the sole
and exclusive representations and warranties of Remainco and the members of the Remainco Group, of Buyer and Buyer Sub and of each of
their respective Representatives in connection with the Contemplated Transactions, and Merger Partner understands, acknowledges and agrees
that all other representations and warranties of any kind or nature whether express, implied or statutory are specifically disclaimed
by Remainco, Spinco, Buyer and Buyer Sub. Without limiting the generality of the foregoing, Merger Partner acknowledges that, except
for the representations and warranties of Remainco and Spinco contained in Article II, of Buyer and Buyer Sub contained in
Article IV or of any of them in any of the other Transaction Documents, in each case, to the extent made to Merger Partner,
no representations or warranties are made by Remainco, Spinco, Buyer, Buyer Sub or their respective Representatives with respect to the
accuracy or completeness of any information, documents or other materials (including any such materials contained in any data room or
otherwise reviewed by Merger Partner or any of its respective Representatives) or any management presentations that have been or shall
hereafter be provided to Merger Partner or any of its Representatives. Notwithstanding the foregoing, nothing in this Section 3.26
shall limit Merger Partner’s rights and remedies in the event of Fraud.
3.27 Gaming
Approvals and Licensing Matters.
(a) As
of the date hereof, none of Merger Partner Required Gaming Licensees has ever been denied a gaming license, approval, or related finding
of suitability by any Gaming Authority or had any gaming license or approval revoked, suspended or denied, except for such denials, suspensions
or revocations that, individually or in the aggregate, would not reasonably be expected to be material to the Merger Partner Business
or the Merger Partner Group, taken as a whole. To the Knowledge of Merger Partner, there are no facts or circumstances with respect to
any Merger Partner Required Gaming Licensee that have had or would reasonably be expected to have a Merger Partner Material Adverse Effect.
(b) There
are no conditions, constraints, limitations or qualifications existing with respect to any gaming license or approval previously granted
to Merger Partner or any of its Affiliates that materially affect the management and operation of the Merger Partner Business, other
than those that are generally applicable to similar licensed gaming businesses. The members of the Merger Partner Group are in compliance
with all Gaming Laws applicable to the Merger Partner Group in all material respects.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING
BUYER AND
BUYER SUB
Except
as set forth (a) in the part or subpart of the Buyer Disclosure Letter corresponding to the particular Section or subsection
in this Article IV in which such representation and warranty appears or (b) in any other part or subpart
of the Buyer Disclosure Letter to the extent it is reasonably apparent on the face of such disclosure that such disclosure is relevant
to such other representation and warranty, Buyer and Buyer Sub hereby represent and warrant to Remainco, Spinco and Merger Partner as
follows:
4.1 Due
Organization; Authority; Binding Nature of Agreement. Each of Buyer and Buyer Sub is an Entity duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization. Buyer and Buyer Sub each have all requisite corporate or other
Entity right, power and authority to enter into and perform their respective obligations under the Transaction Documents, as applicable,
to which it is or will be a party and has all other requisite corporate or other Entity right, power and authority to consummate the
Contemplated Transactions. The execution and delivery by Buyer and Buyer Sub of the Transaction Documents, the consummation by Buyer
and Buyer Sub of the Contemplated Transactions by, and the performance by Buyer and Buyer Sub of their respective obligations under,
the Transaction Documents have been duly authorized by all requisite corporate action on the part of Buyer and Buyer Sub, subject, in
the case of Buyer Sub, to the adoption of this Agreement by Buyer as the sole stockholder of Buyer Sub immediately following the execution
and delivery of this Agreement. The Board of Directors of Buyer Sub has (a) determined and declared that this Agreement, the other
Transaction Documents and the Merger are advisable and in the best interests of Buyer Sub and its stockholder; (b) authorized and
approved the execution, delivery and performance of the Transaction Documents by Buyer Sub; and (c) recommended the adoption of
this Agreement by the holders of common stock of Buyer Sub and directed that this Agreement be submitted for adoption by Buyer Sub’s
sole stockholder immediately following the execution and delivery of this Agreement. This Agreement has been duly executed and delivered
by Buyer and Buyer Sub, and assuming the due authorization, execution and delivery of this Agreement by Remainco, Spinco and Merger Partner,
this Agreement constitutes a legal, valid and binding obligation of Buyer and Buyer Sub, enforceable against Buyer and Buyer Sub in accordance
with its terms, subject to the Bankruptcy and Equity Exceptions. The Separation Agreement, the Employee Matters Agreement, the Intellectual
Property License Agreement, the Real Estate Matters Agreement and the Tax Matters Agreement have been (and the Transition Services Agreement
and the IP License and Technology Agreements will be as of immediately following the Spinco Contribution) duly executed and delivered
by the applicable Buyer Party or Buyer Parties that are or will be party thereto, and assuming the due authorization, execution and delivery
of such agreements by the applicable members of the Remainco Group and the applicable members of the Merger Partner Group, each such
agreement does (or, in the case of each of the Transition Services Agreement and the IP License and Technology Agreements will when executed
and delivered) constitute a legal, valid and binding obligation of the Buyer Parties party thereto, as applicable, enforceable against
each of them party thereto in accordance with its terms, subject to the Bankruptcy and Equity Exceptions. Buyer has Made Available to
Remainco and Merger Partner all Organizational Documents of Buyer, Buyer Sub and VoteCo. Buyer is the sole stockholder of Buyer Sub.
4.2 Non-Contravention;
Consents.
(a) Provided
that all consents, approvals, authorizations and other actions described in Section 4.2(b) have been obtained or taken,
neither (1) the execution, delivery or performance of this Agreement or the other Transaction Documents nor (2) the consummation
of any of the Contemplated Transactions, will, directly or indirectly (with or without notice or lapse of time) (i) require a consent
or approval under, contravene, conflict with or result in a violation of any of the provisions of the Organizational Documents of any
Buyer Party, (ii) contravene, conflict with or result in a violation of, or give any Governmental Authority or other Person the
right to challenge the Contemplated Transactions or to exercise any remedy to obtain any relief under, any Law or any Governmental Order
to which any Buyer Party, or any of the assets owned or used by any Buyer Party, is subject; or (iii) require a consent or approval
under, contravene, conflict with or result in a violation or breach of, or result in a termination (or right of termination) or default
under, any provision of any material Contract binding on a Buyer Party or give any Person the right to (A) declare a default or
exercise any remedy under any such Contract; (B) accelerate the maturity or performance of any such Contract; (C) cancel, terminate
or modify any right, benefit, obligation or other term of such Contract; or (D) result in the imposition or creation of any Encumbrance
(other than a Permitted Encumbrance) upon or with respect to any asset owned or used by any Buyer Party except, in the case of each of
clauses (i), (ii) and (iii), as do not have, and would not, individually or in the aggregate, reasonably be expected
to have, a Buyer Material Adverse Effect.
(b) Except
(i) as set forth in Section 4.2(b) of the Buyer Disclosure Letter, or (ii) as may be required by the Securities
Act, the Exchange Act, state securities Laws or “blue sky” Laws, the Companies Act, the DGCL, the receipt of Governmental
Approvals under the HSR Act, Gaming Laws, all applicable foreign Antitrust Laws and FDI Laws, Financial Services Laws or the listing
requirements of the NYSE, no Buyer Party or Buyer Required Gaming Licensee is or will be required to make any filing with or give any
notice to, or to obtain any Consent from, any Governmental Authority in connection with (A) the execution, delivery or performance
of this Agreement or the other Transaction Documents or (B) the consummation of any of the Contemplated Transactions, except where
the failure to make any such filing or give any such notice or to obtain any such Consent would not, individually or in the aggregate,
reasonably be expected to have a Buyer Material Adverse Effect.
4.3 Compliance
with Laws; Regulatory Matters.
(a) Each
Buyer Party is, and since the Regulatory Lookback Date has been, in compliance with all applicable Laws, including Laws relating to money
transmission, virtual currency or other digital assets, consumer protection, credit reporting, data privacy, financial privacy, cybersecurity,
securities Law matters, and payment services Law matters (including payment network rules) and Governmental Orders directly applicable
to it, except where failure to so comply would not, individually or in the aggregate, reasonably be expected to have a Buyer Material
Adverse Effect. Since the Regulatory Lookback Date, no Buyer Party has received any written notice or other written communication from
any Governmental Authority or any written notice from any other Person (i) regarding any actual or possible violation of, or failure
to comply with, any Law or (ii) that it is or has been the subject of any inspection, investigation, survey, audit, monitoring or
other form of review by any Governmental Authority, except as would not, individually or in the aggregate, reasonably be expected to
have a Buyer Material Adverse Effect.
(b) Since
the Regulatory Lookback Date, no Buyer Party or any other member of the Buyer Licensing Group, has been in violation of Money Services
Laws, or, to the extent applicable, been denied a Money Services Permit or other Permit by any Governmental Authority or had any Money
Services Permit or other Permit revoked or suspended.
(c) Each
Buyer Party is, and at all times since the Regulatory Lookback Date has been, in compliance with all applicable Anti-Money Laundering
Laws. None of the Buyer Parties or any other member of the Buyer Licensing Group, nor any of their respective directors, officers, employees
or, to the knowledge of Buyer, agents designated by any Buyer Party or any other member of the Buyer Licensing Group to act on behalf
of any Buyer Party or any other member of the Buyer Licensing Group, is in violation of any applicable Anti-Money Laundering Laws.
4.4 Absence
of Litigation. As of the date hereof, there are no Actions pending with respect to which Buyer has been served with written notice,
or, to the knowledge of Buyer, any other Action pending or threatened in writing against any Buyer Party or any other member of the Buyer
Licensing Group that has had, or would reasonably be expected to have, individually or in the aggregate, a Buyer Material Adverse Effect.
4.5 Securities
Matters. None of Buyer, Buyer Sub or the Guarantors beneficially owns, directly or indirectly (including pursuant to any derivatives
contract), any Equity Interests of member of the Remainco Group or any Equity Interests of any member of the Merger Partner Group. The
Spinco Units are being acquired by Buyer in the Equity Sale for its own account and without a view to the public distribution or sale
of the Spinco Units or any interest in them. Buyer has sufficient knowledge and experience in financial and business matters so as to
be capable of evaluating the merits and risks of its investment in the Spinco Units and Buyer is capable of bearing the economic risks
of such investment, including a complete loss of its investment in the Spinco Units. Buyer (i) acknowledges that the Spinco Units
have not been registered under the Securities Act, or any securities Laws of any state or other jurisdiction and (b) understands
that it may not sell, transfer, assign, pledge or otherwise dispose of any of the Spinco Units other than pursuant to a registered offering
in compliance with, or in a transaction exempt from, the registration requirements of the Securities Act and applicable securities Laws
of any state or other jurisdiction. None of Buyer, Buyer Sub nor any of their respective “affiliates” or “associates”
is, or at any time during the last three (3) years has been, an “interested stockholder” of Merger Partner (as each
such term is defined in Section 203 of the DGCL).
4.6 Financing;
Solvency.
(a) As
of the date hereof, Buyer has delivered to Remainco and Merger Partner (i) a true, correct and complete copy of the executed debt
commitment letter, dated as of the date hereof, from the Debt Financing Sources party thereto, together with true, correct and complete
copies of any related executed fee letters (each, a “Fee Letter”); provided that, solely with respect to any
Fee Letter, the economic and financial terms, including fee amounts, “market flex” provisions, “securities demand”
provisions, pricing terms, pricing caps and other commercially sensitive terms (none of which, individually or in the aggregate, adversely
affects availability, timing, conditionality, enforceability, termination or aggregate principal amount of the Debt Financing below the
amount required to pay the Required Amount) may be redacted in a customary manner from such true, correct and complete copies (collectively,
including all exhibits, schedules and annexes thereto, the “Debt Commitment Letter”), pursuant to which, and subject
only to the terms and conditions thereof, the Debt Financing Sources party thereto have committed to lend the aggregate amount of Debt
Financing set forth therein to Buyer for the purpose of funding the Contemplated Transactions on the date on which the Closing should
occur pursuant to Section 1.3 (together with any Alternative Financing pursuant to Section 6.8, the “Debt
Financing”) and (ii) a true, correct and complete copy of the executed Equity Commitment Letter (together with the Debt
Commitment Letter, the “Financing Commitments”) from each of the Guarantors, pursuant to which the Guarantors have,
on the terms and subject to the conditions set forth therein, committed to invest in Buyer the amounts set forth therein (the “Equity
Financing” and, together with the Debt Financing, the “Financing”). The Equity Commitment Letter expressly
provides that Remainco and Merger Partner are third party beneficiaries thereof as provided therein.
(b) Assuming
the Financing is funded in accordance with the Financing Commitments, the aggregate net proceeds from the Financing (after netting out
applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect of the maximum amount of
“flex” (including any original issue discount flex) provided for under the Debt Financing) when funded in accordance with
the Financing Commitments are sufficient to fund the Required Amount.
(c) As
of the date hereof, the Financing Commitments are in full force and effect and have not been withdrawn, terminated or rescinded or otherwise
amended, supplemented or modified in any respect and, except to the extent permitted by Section 6.8, no such amendment, supplement
or modification is contemplated by Buyer or Buyer Sub or, to the knowledge of Buyer, by the other parties thereto. The Financing Commitments,
in the form delivered to Remainco and Merger Partner, constitute legal, valid and binding obligations of Buyer and, to the knowledge
of Buyer, the other parties thereto and are enforceable against such parties in accordance with their respective terms, except, in each
case, subject to the Bankruptcy and Equity Exceptions. There are no side letters or other Contracts or written agreements to which Buyer
is a party relating to the Financing Commitments that could (i) adversely affect the conditionality or enforceability of, or termination
rights under, the Financing Commitments or the availability of the Financing or (ii) reduce the aggregate amount of the Financing
below the Required Amount, other than as expressly contained in the Financing Commitments. As of the date hereof, to the knowledge of
Buyer, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of
Buyer or any other Buyer Party under any term, or a failure of any condition, of the Financing Commitments or otherwise result in the
amount of Financing necessary to fund the Required Amount being unavailable on the date on which the Closing should occur pursuant to
Section 1.3. As of the date hereof and assuming the conditions set forth in Article IX have been satisfied, Buyer
has no reason to believe that it or, to the knowledge of Buyer, any other party to the Financing Commitments would be unable to satisfy
on a timely basis any term or condition of the Financing Commitments required to be satisfied by it. Buyer has fully paid any and all
commitment fees or other fees required by the Financing Commitments to be paid on or before the date hereof. There are no conditions
precedent related to the funding or investing, as applicable, of the full amount of the Financing necessary, other than as expressly
set forth in the Financing Commitments.
(d) Assuming
(i) the accuracy of the representations and warranties of Remainco and Spinco set forth in Article II (to the extent
required by Article IX), (ii) the accuracy of the representations and warranties of Merger Partner set forth in Article III
(to the extent required by Article IX), (iii) the satisfaction of the conditions to Buyer and Buyer Sub set forth
in Article IX and (iv) that each of (x) Spinco and (y) Merger Partner are Solvent on the Closing Date immediately
prior to giving effect to the Equity Sale and the Merger, immediately following the Equity Sale and the Merger and after giving effect
to all of the Contemplated Transactions, Buyer will be Solvent. No transfer of property is being made by Buyer or Buyer Sub, and no obligation
is being incurred by Buyer or Buyer Sub in connection with the Contemplated Transactions, with the actual intent to hinder, delay or
defraud either present or future creditors of Buyer, any member of the Spinco Group or any member of the Merger Partner Group or, in
each case, any Affiliates thereof.
4.7 Guaranty.
Concurrently with the execution of this Agreement, Buyer has delivered to Remainco and Merger Partner a duly and validly executed Guaranty
of the Guarantors, dated as of the date hereof, in favor of Remainco and Merger Partner in respect of certain obligations of Buyer under
this Agreement as set forth therein. The Guaranty is in full force and effect, has not been withdrawn, rescinded or terminated or otherwise
amended or modified in any respect, and is a legal, valid and binding obligation of each of the Guarantors and is enforceable by Remainco
and Merger Partner in accordance with its terms (subject to the Bankruptcy and Equity Exceptions). None of the Guarantors is in default
or breach under the terms and conditions of the Guaranty, and no event has occurred or circumstances exist which, with or without notice,
lapse of time or both, would or would reasonably be expected to constitute or result in a default or breach under, or a failure to satisfy
any condition provided by, the terms and conditions of the Guaranty. Each of the Guarantors has access to sufficient capital to satisfy
the amount of its guaranteed obligations under the Guaranty in full.
4.8 Certain
Arrangements. There are no Contracts or other legally binding commitments, whether written or oral, in effect on the date hereof,
(a) between any Buyer Party or their respective Affiliates or the Guarantors, on the one hand, and (i) any beneficial owner
(or Affiliate of a beneficial owner) of more than five percent (5%) of the shares of Merger Partner Common Stock or (ii) any member
of Merger Partner’s management or the Merger Partner Board, on the other hand, relating in any way to the Contemplated Transactions
or the operations of the Combined Company following the Closing, (b) pursuant to which any stockholder of Merger Partner would be
entitled to receive consideration for such stockholder’s Merger Partner Common Stock of a different amount or nature than the Per
Share Price (excluding any Owned Merger Partner Shares) or (c) pursuant to which any stockholder of Merger Partner has agreed to
vote to adopt this Agreement or has agreed to vote against any Acquisition Proposal or Merger Partner Superior Proposal.
4.9 Gaming
Approvals and Licensing Matters.
(a) As
of the date hereof, to Buyer’s knowledge, each of (x) the Buyer Required Gaming Licensees set forth in clause (a)(i) of
the definition thereof and (y) the Buyer Required Gaming Licensees described in clause (b) of the definition thereof (who are
set forth on Section 4.9(a) of the Buyer Disclosure Letter) are reasonably likely to be authorized, licensed or found
suitable under the Applicable Gaming Laws in connection with the consummation of Contemplated Transactions.
(b) Except
as set forth on Section 4.9(b) of the Buyer Disclosure Letter, no Person (i) is or will be immediately following
the Closing, the holder, directly or indirectly, of five percent (5%) or more of the voting stock, economic interests or Equity Interests
of Buyer or (ii) will be immediately following the Closing, the holder, directly or indirectly, of five percent (5%) or more of
the voting stock, economic interests or Equity Interests of Merger Partner or Spinco, in each case, other than any Persons who will be
licensed by, or obtain any qualification, approval or suitability determinations by or from any Gaming Authority as required in connection
with such ownership in the voting stock, economic interests or Equity Interests of Buyer, Merger Partner or Spinco, as applicable, and
whose licensing, qualification, approval or suitability determination, as applicable, is not reasonably expected to prevent or materially
delay receipt of any Gaming Approvals.
(c) As
of the date hereof, none of Buyer, Buyer Sub, the Buyer Regulatory Affiliates or any of the Buyer Required Gaming Licensees described
in clauses (x) or (y) of Section 4.9(a) has ever been denied a gaming license, approval, or related finding
of suitability by any Gaming Authority or had any gaming license or approval revoked, suspended or denied. As of the date hereof, to
the knowledge of Buyer, there are no facts or circumstances with respect to Buyer, any Buyer Regulatory Affiliate or any other Buyer
Required Gaming Licensee described in clauses (x) or (y) of Section 4.9(a) that would prevent or materially
delay receipt of any Gaming Approvals required to consummate the Contemplated Transactions. As of the date hereof, there is no pending
or, to the knowledge of Buyer, threatened investigation being conducted by any Gaming Authority which would reasonably be expected to
result in the denial, revocation, limitation or suspension of any Permit under any Gaming Laws with respect to Buyer, Buyer Sub or any
Buyer Required Gaming Licensee described in clauses (x) or (y) of Section 4.9(a).
4.10 Proxy
Statement. None of the information supplied or to be supplied by Buyer or Buyer Sub for inclusion or incorporation by reference in
the Merger Partner Proxy Statement will, (i) at the time the Merger Partner Proxy Statement is filed with the SEC or (ii) after
giving effect to any amendments or supplements that have theretofore been made thereto, (A) at the time the Merger Partner Proxy
Statement is first mailed to the stockholders of Merger Partner or (B) at the time of the Merger Partner Stockholders’ Meeting
(or any adjournment or postponement thereof), contain any untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances in which they are made, not misleading. For the avoidance of doubt, no
representation or warranty is made by Buyer or Buyer Sub with respect to any statements made or incorporated by reference in the Merger
Partner Proxy Statement based on information supplied, or required to be supplied, by or on behalf of Remainco, Spinco, Merger Partner
or any of their respective Affiliates for inclusion, use or incorporation by reference in the Merger Partner Proxy Statement.
4.11 Financial
Advisors. Buyer is solely responsible for the payment of the fees and expenses of any broker, investment banker, financial adviser
or other Person acting in a similar capacity in connection with the transactions contemplated by any Transaction Document based upon
arrangements made by or on behalf of Buyer or any Affiliate.
4.12 Acknowledgement
by Buyer and Buyer Sub. No Buyer Party or any of their respective Affiliates is relying or has relied on any representations or warranties
whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties in Article II,
in Article III or in any of the other Transaction Documents. The representations and warranties by Remainco and Spinco contained
in Article II, by Merger Partner contained in Article III, or by any of them in any of the other Transaction
Documents constitute the sole and exclusive representations and warranties of Remainco, Spinco and Merger Partner and the members of
the Spinco Group and the members of the Merger Partner Group, respectively, and of each of their respective Representatives in connection
with the Contemplated Transactions, and each of Buyer and Buyer Sub understand, acknowledge and agree that all other representations
and warranties of any kind or nature whether express, implied or statutory are specifically disclaimed by Remainco, Spinco and Merger
Partner. Without limiting the generality of the foregoing, each of Buyer and Buyer Sub acknowledges that, except for the representations
and warranties of Remainco and Spinco contained in Article II, of Merger Partner contained in Article III or
of any of them in any of the other Transaction Documents, no representations or warranties are made by Remainco, Spinco, Merger Partner
or their respective Representatives with respect to the accuracy or completeness of any information, documents or other materials (including
any such materials contained in any data room or otherwise reviewed by Buyer or Buyer Sub or any of their respective Representatives)
or any management presentations that have been or shall hereafter be provided to Buyer or Buyer Sub or any of their respective Representatives.
Notwithstanding the foregoing, nothing in this Section 4.12 shall limit Buyer’s rights and remedies in the event of
Fraud.
4.13 CFIUS
Foreign Person. Neither Buyer nor Buyer Sub is a foreign person, as defined in 31 C.F.R. § 800.224. No foreign person has an
ownership interest in Buyer or Buyer Sub, except where such investment by a foreign person satisfies the requirements of 31 C.F.R. §
800.307(a).
4.14 Buyer
Sub. Buyer Sub was formed solely for the purpose of engaging in the Contemplated Transactions and it has not engaged in any business
activities or conducted any operations other than in connection with the Contemplated Transactions. All of the outstanding Equity Interests
of Buyer Sub have been duly authorized and validly issued. All of the issued and outstanding Equity Interests of Buyer Sub are, and at
the Merger Effective Time will be, owned directly or indirectly by Buyer. As of the date hereof, Buyer Sub does not have any assets or
liabilities other than those incident to its formation or related to the evaluation, negotiation and execution of the Transaction Documents.
ARTICLE V
CERTAIN COVENANTS OF THE PARTIES REGARDING
OPERATIONS DURING THE PRE-CLOSING PERIOD
5.1 Access
and Investigation. During the period commencing on the date hereof and ending as of the earlier of (x) the termination of this
Agreement and (y) the Closing (the “Pre-Closing Period”), subject to applicable Law, upon reasonable advance
notice, Remainco and Merger Partner shall each, and shall cause each member of their respective Groups to, (a) provide the Representatives
of Buyer (and, at the request of Buyer, the other non-Buyer Party) with reasonable access during normal business hours to its Representatives
and assets and to all existing books, records, work papers and other documents and information relating to such Entity or its applicable
Affiliate (but in the case of the members of the Remainco Group, solely as it relates to the Spinco Business or the Spinco Group), in
each case as reasonably requested by Buyer; provided that such access shall be conducted at Buyer’s sole expense (except
to the extent such access is in connection with the Parties’ obligations pursuant to Section 1.15 of the Separation Agreement
(Separation Planning and Day-One Readiness), in which case such expenses shall be borne by the Parties in accordance with Section 1.15(g) of
the Separation Agreement), in accordance with applicable Laws (including any applicable Laws relating to antitrust, competition, gaming,
employment or privacy issues), under the supervision of the non-requesting party or its personnel and in such a manner as to maintain
confidentiality and not to unreasonably interfere with the normal operations of the non-requesting party; (b) provide the Representatives
of Buyer (and, at the request of Buyer, the other non-Buyer Party) with such copies of the existing books, records, work papers and other
documents and information relating to such Entity and the other members of its respective Group (but in the case of the members of the
Remainco Group, solely as it relates to the Spinco Business or the Spinco Group) as reasonably requested by Buyer; and (c) provide
(1) any material notice, report or other document received by any member of such party’s Group from any Governmental Authority,
including any report of examination conducted by a Governmental Authority in connection with Money Services Laws or compliance with other
Laws, and (2) any notice of any inquiry from a Governmental Authority regarding any member of such party’s Group’s compliance
with Laws promptly following the receipt of such inquiry. Subject in all respects to Section 6.3 and without limiting the
generality of any of the foregoing, during the Pre-Closing Period, Remainco, Merger Partner and Buyer shall provide each other with copies
of any notice, report or other document filed with or sent to any Governmental Authority on behalf of any member of the Remainco Group,
any member of the Merger Partner Group or any Buyer Party, respectively, in connection with any of the Contemplated Transactions a reasonable
time in advance of the filing or sending of such document to permit a review thereof. Nothing in this Agreement shall require Remainco,
Merger Partner or Buyer to disclose any information if, in the reasonable judgement of Remainco, Merger Partner or Buyer, as applicable,
such disclosure would (i) jeopardize any attorney-client privilege, the work product immunity or any other legal privilege or similar
doctrine, (ii) contravene any applicable Law or any Governmental Order, fiduciary duty or contractual confidentiality obligation,
(iii) jeopardize the health and safety of any employee of Remainco, Merger Partner or Buyer, as applicable, or (iv) result
in competitive harm to any member of the Remainco Group, any member of the Merger Partner Group or any Buyer Party, it being understood
that Remainco, Merger Partner and Buyer shall each use commercially reasonable efforts to make other arrangements (including redacting
information or entering into joint defense agreements), in each case, that would enable any otherwise required disclosure to the other
party to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law, Governmental Order, fiduciary
duty or contractual confidentiality obligation. Without limiting the foregoing, each of Remainco and Merger Partner shall, to the extent
reasonably requested by Buyer from time to time and subject to applicable Law, provide Buyer and its Representatives with (x) management
reports to the extent prepared in the ordinary course of business, (y) business reviews to the extent prepared in the ordinary
course of business, and (z) strategic planning studies and capital investment project documents to the extent prepared in the ordinary
course of business; provided that with respect to Remainco, such information shall only be provided to the extent it relates to
the Spinco Business or the Spinco Group. All information exchanged pursuant to this Section 5.1 shall be subject to the Confidentiality
Agreements. This Section 5.1 shall not apply with respect to any Tax matters. Nothing in this Section 5.1 shall
require any member of the Remainco Group to provide any information to any member of the Merger Partner Group or to any Buyer Party relating
to any Excluded Matter.
5.2 Operation
of the Spinco Business.
(a) Except
as required by and subject to applicable Law, as required, contemplated or expressly permitted by the terms of any of the Transaction
Documents, as required or contemplated by any Contract set forth on the Remainco Disclosure Letter, as reasonably necessary to consummate
the Separation or as set forth in Section 5.2 of the Remainco Disclosure Letter, during the Pre-Closing Period, unless Buyer
otherwise consents in advance (which consent shall not be unreasonably withheld, delayed or conditioned), Remainco shall, and shall cause
the other members of the Remainco Group (subject in the case of members of the Remainco Group which are not wholly owned to applicable
fiduciary duties) to, use (i) reasonable best efforts to (A) conduct the business and operations of the Spinco Business in
all material respects in the ordinary course of business consistent with past practice (to the extent within Remainco’s control)
and (B) to the extent consistent therewith, preserve intact in all material respects the material components of their current business
organization and maintain satisfactory relations and goodwill with all Spinco Top Customers, all Spinco Top Suppliers, all material licensors
and all Governmental Authorities, and (ii) commercially reasonable efforts to maintain satisfactory relations and goodwill with
all other customers, suppliers and licensors, in each case of the foregoing clauses (i) and (ii), to the extent related
to the Spinco Business.
(b) Except
as required by and subject to applicable Law, as required, contemplated or expressly permitted by the terms of any of the Transaction
Documents, as reasonably necessary to consummate the Separation or as set forth in Section 5.2 of the Remainco Disclosure
Letter, during the Pre-Closing Period, unless Buyer otherwise consents in advance (which consent shall not be unreasonably withheld,
delayed or conditioned), Remainco shall not, and shall cause the other members of the Remainco Group (subject in the case of members
of the Remainco Group which are not wholly-owned to applicable fiduciary duties) not to, take any of the following actions (it being
agreed that compliance with this clause (b) shall not be deemed to be a breach by Remainco of Section 5.2(a)):
(i) (A) declare,
accrue, set aside or pay any dividend or make any other distribution in respect of any Equity Interests of any member of the Spinco Group
or other securities of any member of the Spinco Group, or repurchase, redeem or otherwise reacquire any Equity Interests of any member
of the Spinco Group or other securities of any member of the Spinco Group, other than dividends or distributions between or among any
of the members of the Spinco Group; provided that members of the Spinco Group shall be permitted to distribute or dividend any
cash or any Remainco Retained Assets to any member of the Remainco Group; or (B) declare, accrue, set aside or pay any dividend
or make any distribution on any Equity Interest of Remainco if doing so would reasonably be expected to result in Remainco failing to
be Solvent;
(ii) amend
the Organizational Documents of Remainco or any member of the Spinco Group in a manner adverse to Merger Partner or Buyer;
(iii) with
respect to the Spinco Business, enter into any material new lines of business, withdraw from any existing material lines of business,
or terminate, discontinue, close or dispose of any material plant, facility or other business operation;
(iv) (A) sell,
transfer, assign, lease, license, exchange or otherwise dispose of, other than in the ordinary course of business or to any member of
the Spinco Group, any Spinco Assets, that is, in the case of this clause (A), material to the Spinco Business or to the members
of the Spinco Group, taken as a whole (each such Spinco Asset, a “Material Spinco Business Asset”); or (B) other
than in the ordinary course of business, grant any Encumbrance other than a Permitted Encumbrance on any Material Spinco Business Asset
that will not be released prior to or at the Closing;
(v) with
respect to the Spinco Business, incur any Indebtedness or obligations relating to Non-Gaming Credit Support Obligations, or assume, grant,
guaranty or endorse, or otherwise as an accommodation become responsible for, the obligations of any Person, or make any loans or advances
to any Person, in each case, other than the incurrence or guaranty of Indebtedness or obligations relating to Non-Gaming Credit Support
Obligations (A) in the ordinary course of business, (B) related to making of loans between members of the Remainco Group, or
(C) that does not exceed $20,000,000 individually or $40,000,000 in the aggregate; provided that no such Indebtedness incurred
pursuant to clause (A) or clause (B) by any member of the Spinco Group shall include any prepayment
penalties or fees and all such Indebtedness shall have terms that permit its repayment at or prior to the Closing;
(vi) (A) with
respect to the Spinco Business, except as permitted by Section 5.5(g), acquire (by merger, consolidation, acquisition of
stock or assets or otherwise) any corporation, partnership, joint venture, association or other business organization or division thereof,
or substantially all of the assets of any of the foregoing or (B) with respect to Remainco or any member of the Spinco Group, liquidate,
dissolve, restructure or reorganize or adopt a plan or agreement therefor;
(vii) (A) sell,
issue, grant, transfer, repurchase, subject to any Encumbrance or redeem, or authorize the sale, issuance, grant, transfer, repurchase,
Encumbrance or redemption of, any Equity Interest or other securities of any member of the Spinco Group (other than to any member of
the Remainco Group), or (B) reclassify, split, combine, subdivide or redeem any Equity Interests or other securities of any member
of the Spinco Group;
(viii) with
respect to any Remainco Equity Awards held by any Spinco Employee, except as otherwise required by the terms of any Remainco Benefit
Arrangement or any Spinco Benefit Arrangement as in effect on the date hereof, (A) amend or waive any of its rights under, or accelerate
the vesting under, any provision of the Remainco Equity Plans, (B) amend any provision of any Contract evidencing any such outstanding
Remainco Equity Award, (C) otherwise modify any of the terms of any such outstanding Remainco Equity Award or related Contract or
(D) grant any Remainco Equity Award to any Spinco Employee;
(ix) other
than to the extent required by applicable Law or the terms of any Remainco Benefit Arrangement or any Spinco Benefit Arrangement as in
effect on the date hereof, or to the extent required for the members of the Remainco Group to comply with their respective obligations
under the Employee Matters Agreement, (A) establish, adopt, enter into, amend, modify, provide discretionary benefits under, or
terminate any Spinco Benefit Arrangement (or any benefit plan, program, agreement or arrangement that would be a Spinco Benefit Arrangement
if in effect on the date hereof), except that Remainco and its Affiliates may make amendments or modifications to such Spinco Benefit
Arrangements in the ordinary course of business in connection with annual enrollment, (B) except as permitted under clause (A) hereof
as a result of amendments to a Remainco Benefit Arrangement made in the ordinary course of business or otherwise applicable to similarly
situated employees of a member of the Remainco Group, modify the compensation or benefits of any Spinco Employee, or (C) accelerate
the timing of payment, funding or vesting under any Spinco Benefit Arrangement or make any discretionary payment under or contribution
to any Spinco Benefit Arrangement, or (D) hire or terminate the employment of any Spinco Employee with a title above Vice President
(each, a “Spinco Senior Executive Employee”) or any Spinco Employee who would be a Spinco Senior Executive Employee
if employed on the date hereof, other than to (1) terminate any Spinco Senior Executive Employee for cause or at the request or
direction of any Gaming Authority (including following a finding of unsuitability by a Gaming Authority) or (1) fill any vacancy
(including any vacancies resulting from any termination in the foregoing clause (1) or resulting from any role that is created to
satisfy a directive or order of a Gaming Authority);
(x) (A) amend
any existing, or enter into any new, employment, change in control, severance, termination or retention agreements with any Spinco Employees
(other than agreements terminable for any or no reason on no more than thirty (30) days’ notice (or statutory notice, if longer)
without resulting in any payment, other obligation or penalty) or (B) modify or waive any non-competition, non-solicitation, confidentiality
or other similar obligation of any Spinco Employee;
(xi) other
than in the ordinary course of business or with respect to transfers of any Spinco Employee who is an Inactive Employee (as defined in
the Employee Matters Agreement), transfer or reallocate the employment or services of any Spinco Employee to a member of the Remainco
Group (other than a member of the Spinco Group) if such transfer or reallocation would result in such employee no longer being a Spinco
Employee, or transfer or reallocate the employment or services of any employee of any member of the Remainco Group (other than a member
of the Spinco Group) who is not a Spinco Employee to the Spinco Business if such transfer or reallocation would result in such employee
becoming a Spinco Employee;
(xii) grant
recognition to any labor union or enter into, modify, amend, or terminate any collective bargaining agreement or similar agreement with
any labor union, labor organization, works council or other staff representative body, in each case, if doing so would be adverse to
the Spinco Business;
(xiii) enter
into, amend in any material respect, terminate or waive performance of any material terms under, any Spinco Real Property Lease or any
Spinco Material Contract, other than (A) amendments that in the aggregate are not materially adverse to the Spinco Business, (B) in
the ordinary course of business or (C) in the case of terminations, other than any termination of any Spinco Real Property Lease
or any Spinco Material Contract occurring pursuant to the terms thereof;
(xiv) enter
into any settlement or release with respect to any Action against any member of the Spinco Group, other than (A) settlements for
the payment of liabilities reflected or reserved against in the Spinco Business Financial Statements or of amounts that do not exceed
$2,500,000 individually or $5,000,000 in the aggregate or (B) any settlement or release in the ordinary course of business, including
any settlement of any action involving any Spinco Employees or any Spinco Former Employees; provided that such settlements and
releases (1) do not impose any restrictions on the operation of the Spinco Business following the Equity Sale Closing Time, (2) do
not admit wrongdoing, and (3) include a full release of the members of the Spinco Group;
(xv) with
respect to the Spinco Business, (A) make or commit to make any capital expenditures for which the aggregate cash consideration paid
or payable in any individual transaction is in excess of $10,000,000 or in the aggregate in excess of $40,000,000; provided that
in addition to the foregoing, the Spinco Business shall be permitted to make capital expenditures in the aggregate in an amount up to
the aggregate amount of capital expenditures contemplated by the Spinco Budget for the period ending on the date three (3) months
after the Outside Date or (B) fail to use commercially reasonable efforts to make any capital expenditures at the times and in the
amounts contemplated by the Spinco Budget;
(xvi) with
respect to the members of the Spinco Group or the Spinco Business, other than (A) in the ordinary course of business and consistent
with past practices or (B) as required by concurrent changes in applicable Laws, GAAP or SEC rules and regulations, change
any of its methods of accounting or accounting policies in any material respect;
(xvii) other
than as required by applicable Law consistent with past practice, (A) make any change (or file any such change) in any method of
Tax accounting other than in the ordinary course of business, (B) make, change or rescind any Tax election other than in the ordinary
course of business, (C) settle or compromise any Tax liability or consent to any claim or assessment relating to Taxes, (D) file
any amended income or other material Tax Return or claim for refund, in each case, other than in the ordinary course of business, (E) make,
rescind or amend any claim for Group Relief in a manner which affects the liability to Tax a member of the Spinco Group, (F) enter
into any closing agreement relating to Taxes or (G) waive or extend the statute of limitations in respect of Taxes other than in
the ordinary course of business; in each case, to the extent that doing so could reasonably be expected to result in a material incremental
cost to Buyer (or any of its Affiliates) or any member of the Spinco Group;
(xviii) with
respect to the members of the Spinco Group or the Spinco Business, change in any material respect its cash management practices, policies
or procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts receivable, accrual
of accounts receivable, inventory control, prepayment of expenses, payment of accounts payable, accrual of other expenses, deferral of
revenue and acceptance of customer deposits, from such practices, policies or procedures with respect thereto used by the Spinco Business
in the ordinary course of business consistent with past practice, or take or refrain from taking any action in respect of working capital
of the members of the Spinco Group or the Spinco Business that is outside of the ordinary course of business consistent with past practices,
in each case including (A) taking (or omitting to take) any action that would have the effect of materially accelerating revenues,
cash receipts or the collection of accounts receivable to pre-Closing periods that would otherwise be expected to take the place or be
incurred in post-Closing periods or (B) taking (or omitting to take) any action that would have the effect of materially delaying
or postponing the payment of any accounts payable to post-Closing periods that would otherwise be expected to be paid in pre-Closing
periods;
(xix) take
any action that will create a notice obligation or other liability under the WARN Act with respect to any Spinco Employee;
(xx) other
than in the ordinary course of business and consistent with past practice, license, covenant not to sue, abandon, disclaim, sell, assign
or grant any security interest in, to or under any material Spinco Intellectual Property, including failing to perform or cause to be
performed all applicable filings, recordings and other acts, or to pay or cause to be paid all required fees and Taxes, to maintain and
protect its interest in any material Spinco Intellectual Property;
(xxi) with
respect to the Spinco Business, permit to expire or fail to timely renew any material Permit;
(xxii) with
respect to the members of the Spinco Group and the Spinco Business, fail to maintain (with insurance companies substantially as financially
responsible as its existing insurance insurers) insurance in at least the same amounts and against at least such risks and losses as
are consistent in all material respects with past practice; or
(xxiii) enter
into any legally binding commitment with respect to any of the foregoing.
(c) During
the Pre-Closing Period, Remainco shall promptly notify Merger Partner and Buyer of any event, condition, fact or circumstance that would
reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article VII or Article IX
impossible or that has had or would reasonably be expected to have or result in a Combined Company Material Adverse Effect. No notification
given to Merger Partner and Buyer pursuant to this Section 5.2(c) shall limit or otherwise affect any of the representations,
warranties, covenants or obligations of Remainco contained in this Agreement or the conditions to the obligations of the Parties under
this Agreement. A failure to comply with this Section 5.2(c) shall not constitute the failure of any condition set forth
in Article VII or Article IX to be satisfied unless the underlying event, condition, fact or circumstance would
independently result in the failure of a condition set forth in Article VII or Article IX to be satisfied. Notwithstanding
anything to the contrary contained in this Agreement, nothing in this Section 5.2 shall be deemed to limit (i) the transfer
of the Remainco Retained Assets or the assumption of the Remainco Retained Liabilities prior to the Closing, or (ii) Remainco’s
ability to cause the other members of the Remainco Group to make any of the transfers or take such other actions contemplated by the
Separation Plan or the Separation Agreement. In furtherance of the foregoing, Merger Partner and Buyer acknowledge that prior to the
Closing, Remainco intends to remove from all of the Spinco Real Property any Remainco Books and Records and any Remainco Retained Assets
and such actions by the members of the Remainco Group shall not be considered a breach of this Agreement.
5.3 Operation
of the Merger Partner Business.
(a) Except
as required by and subject to applicable Law, as required, contemplated or expressly permitted by the terms of any of the Transaction
Documents, as required or contemplated by any Contract set forth on the Merger Partner Disclosure Letter or as set forth in Section 5.3
of the Merger Partner Disclosure Letter, during the Pre-Closing Period, unless Buyer otherwise consents in advance (which consent
shall not be unreasonably withheld, delayed or conditioned), Merger Partner shall, and shall cause the other members of the Merger Partner
Group (subject in the case of members of the Merger Partner Group which are not wholly owned to applicable fiduciary duties) to, use
(i) reasonable best efforts to (A) conduct the business and operations of the Merger Partner Business in all material respects
in the ordinary course of business consistent with past practice (to the extent within Merger Partner’s control), and (B) to
the extent consistent therewith, preserve intact in all material respects the material components of their current business organization
and maintain satisfactory relations and goodwill with all Merger Partner Top Customers, Merger Partner Top Suppliers, material licensors
and Governmental Authorities and (ii) commercially reasonable efforts to maintain satisfactory relations and goodwill with all other
customers, suppliers and licensors.
(b) Except
as required by and subject to applicable Law, as required, contemplated or expressly permitted by the terms of any of the Transaction
Documents, as set forth in Section 5.3 of the Merger Partner Disclosure Letter, during the Pre-Closing Period, unless Buyer
otherwise consents in advance (which consent shall not be unreasonably withheld, delayed or conditioned), Merger Partner shall not, and
shall cause the other members of the Merger Partner Group (subject in the case of members of the Merger Partner Group which are not wholly
owned to applicable fiduciary duties) not to, take any of the following actions, (it being agreed that compliance with this clause (b) shall
not be deemed to be a breach by Merger Partner of Section 5.3(a)):
(i) declare,
accrue, set aside or pay any dividend or make any other distribution in respect of any Equity Interests or other securities, or repurchase,
redeem or otherwise reacquire any Equity Interests or other securities of any member of the Merger Partner Group, other than (A) dividends
or distributions between or among any member of the Merger Partner Group; and (B) in connection with the withholding of Taxes in
connection with the vesting of Merger Partner Equity Awards (to the extent required by the terms as of the date hereof or in the ordinary
course consistent with past practice) or forfeitures of Merger Partner Equity Awards;
(ii) amend
the Organizational Documents of any member of the Merger Partner Group in a manner adverse to Spinco, Remainco or Buyer;
(iii) enter
into any material new lines of business, withdraw from any existing material lines of business, or terminate, discontinue, close or dispose
of any material plant, facility or other business operation;
(iv) (A) sell,
transfer, assign, lease, license, exchange or otherwise dispose of, other than in the ordinary course of business or to any member of
the Merger Partner Group, any asset of any member of the Merger Partner Group or the Merger Partner Business, that is, in the case of
this clause (A), material to the Merger Partner Business or to the members of the Merger Partner Group (each such asset (individually
or in the aggregate), a “Material Merger Partner Business Asset”); or (B) other than in the ordinary course of
business, grant any Encumbrance other than a Permitted Encumbrance on any Material Merger Partner Business Asset that will not be released
prior to or at the Closing;
(v) incur
any Indebtedness or obligations relating to Non-Gaming Credit Support Obligations, or assume, grant, guaranty or endorse, or otherwise
as an accommodation become responsible for, the obligations of any Person, or make any loans or advances, in each case, other than the
incurrence or guaranty of Indebtedness or obligations relating to Non-Gaming Credit Support Obligations (A) in the ordinary course
of business, (B) related to the making of loans between members of the Merger Partner Group or (C) that does not exceed $10,000,000
individually or $20,000,000 in the aggregate; provided that no such Indebtedness incurred pursuant to clause (A) or
clause (B) shall include any prepayment penalties or fees and all such Indebtedness shall have terms that permit its
repayment at or prior to the Closing;
(vi) (A) acquire
(by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership, joint venture, association or other
business organization or division thereof, or substantially all of the assets of any of the foregoing or (B) liquidate, dissolve,
restructure or reorganize or adopt a plan or agreement therefor;
(vii) (A) sell,
issue, grant, transfer, repurchase, subject to any Encumbrance or redeem, or authorize the sale, issuance, grant, transfer, repurchase,
Encumbrance or redemption of, any Equity Interest or other securities of any member of the Merger Partner Group (except that Merger Partner
may issue shares of Merger Partner Common Stock upon the vesting of any Merger Partner Equity Awards outstanding as of the date hereof
pursuant to the terms of such Merger Partner Equity Award as in effect on the date hereof), or (B) reclassify, split, combine, subdivide
or redeem any Equity Interests or other securities of any member of the Merger Partner Group;
(viii) with
respect to any Merger Partner Equity Awards, except as otherwise required by the terms of any Merger Partner Benefit Arrangement as in
effect on the date hereof, (A) amend or waive any of its rights under, or accelerate the vesting under, any provision of the Merger
Partner Equity Plans, (B) amend any provision of any Contract evidencing any outstanding Merger Partner Equity Award, (C) otherwise
modify any of the terms of any outstanding Merger Partner Equity Award or related Contract or (D) grant any Merger Partner Equity
Award;
(ix) other
than to the extent required by applicable Laws or the terms of any Merger Partner Benefit Arrangement as in effect on the date hereof,
to the extent required for the members of the Merger Partner Group to comply with their respective obligations under the Employee Matters
Agreement, (A) establish, adopt, enter into, amend, modify, provide discretionary benefits under, or terminate any Merger Partner
Benefit Arrangement (or any benefit plan, program, agreement or arrangement that would be a Merger Partner Benefit Arrangement if in
effect on the date hereof), except that Merger Partner and its Affiliates may make amendments or modifications to such Merger Partner
Benefit Arrangements in the ordinary course of business in connection with annual enrollment, (B) except as permitted under clause (A) hereof
as a result of amendments to a Merger Partner Benefit Arrangement made in the ordinary course of business, modify the compensation or
benefits of any Merger Partner Employee, or (C) accelerate the timing of payment, funding or vesting under any Merger Partner Benefit
Arrangement or make any discretionary payment under or contribution to any Merger Partner Benefit Arrangement or (D) hire or terminate
the employment of any employee with a title above Vice President (each, a “Merger Partner Senior Executive Employee”
) or any employee who would be a Merger Partner Senior Executive Employee if employed on the date hereof, other than to (1) terminate
any Merger Partner Senior Executive Employee for cause or at the request or direction of any Gaming Authority (including following a
finding of unsuitability by a Gaming Authority) or (2) fill any vacancy (including any vacancies resulting from any termination
in the foregoing clause (1) or resulting from any role that is created to satisfy a directive or order of a Gaming Authority);
(x) (A) enter
into any new employment, change in control, severance, termination or retention agreements with any Merger Partner Employees (other than
agreements terminable for any or no reason on no more than thirty (30) days’ notice (or statutory notice, if longer) without resulting
in any payment, other obligation or penalty) or (B) modify or waive any non-competition, non-solicitation, confidentiality or other
similar obligation of any Merger Partner Employee;
(xi) grant
recognition to any labor union or enter into, modify, amend, or terminate any collective bargaining agreement or similar agreement with
any labor union, labor organization, works council or other staff representative body, in each case, if doing so would be adverse to
the Merger Partner Business;
(xii) enter
into, amend in any material respect, terminate or waive performance of any material terms under, any Merger Partner Real Property Lease
or any Merger Partner Material Contract, other than (A) amendments that in the aggregate are not materially adverse to the Merger
Partner Business, (B) in the ordinary course of business or (C) in the case of terminations, other than any termination of
any Merger Partner Real Property Lease or any Merger Partner Material Contract occurring pursuant to the terms thereof;
(xiii) enter
into any settlement or release with respect to any Action against any member of the Merger Partner Group, other than any settlement or
release in the ordinary course of business, including any settlement of any action involving any Merger Partner Employees;
(xiv) make
or commit to make any capital expenditures, except as set forth on Section 5.3(b)(xiv) of the Merger Partner Disclosure
Letter or (B) fail to use commercially reasonable efforts to make any capital expenditures at the times and in the amounts contemplated
by the Section 5.3(b)(xiv) of the Merger Partner Disclosure Letter;
(xv) other
than (A) in the ordinary course of business and consistent with past practices or (B) as required by concurrent changes in
applicable Laws, GAAP or SEC rules and regulations, change any of its methods of accounting or accounting policies in any material
respect;
(xvi) other
than as required by applicable Law consistent with past practice, (A) make any change (or file any such change) in any method
of Tax accounting other than in the ordinary course of business, (B) make, change or rescind any Tax election other than in the
ordinary course of business, (C) settle or compromise any Tax liability or consent to any claim or assessment relating to Taxes,
(D) file any amended income or other material Tax Return or claim for refund, in each case, other than in the ordinary course of
business, (E) make, rescind or amend any claim for Group Relief in a manner which affects the liability to Tax a member of the Merger
Partner Group, (F) enter into any closing agreement relating to Taxes or (G) waive or extend the statute of limitations in
respect of Taxes other than in the ordinary course of business, in each case, to the extent that doing so could reasonably be expected
to result in a material incremental cost to Buyer (or any of its Affiliates) or any member of the Merger Partner Group;
(xvii) change
in any material respect its cash management practices, policies or procedures with respect to collection of accounts receivable, establishment
of reserves for uncollectible accounts receivable, accrual of accounts receivable, inventory control, prepayment of expenses, payment
of accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits, from such practices, policies
or procedures with respect thereto used by the Merger Partner Business in the ordinary course of business consistent with past practice,
or take or refrain from taking any action in respect of working capital of the members of the Merger Partner Group or the Merger Partner
Business that is outside of the ordinary course of business consistent with past practices, in each case including (A) taking (or
omitting to take) any action that would have the effect of materially accelerating revenues, cash receipts or the collection of accounts
receivable to pre-Closing periods that would otherwise be expected to take the place or be incurred in post-Closing periods or (B) taking
(or omitting to take) any action that would have the effect of materially delaying or postponing the payment of any accounts payable
to post-Closing periods that would otherwise be expected to be paid in pre-Closing periods;
(xviii) take
any action that will create a notice obligation or other liability under the WARN Act;
(xix) other
than in the ordinary course of business and consistent with past practice, license, covenant not to sue, abandon, disclaim, sell, assign
or grant any security interest in, to or under any material Merger Partner IP, including failing to perform or cause to be performed
all applicable filings, recordings and other acts, or to pay or cause to be paid all required fees and Taxes, to maintain and protect
its interest in any material Merger Partner IP;
(xx) permit
to expire or fail to timely renew any material Permit, including any Money Services Permit;
(xxi) fail
to maintain (with insurance companies substantially as financially responsible as its existing insurance insurers) insurance in at least
the same amounts and against at least such risks and losses as are consistent in all material respects with past practice; or
(xxii) enter
into any legally binding commitment with respect to any of the foregoing.
(c) During
the Pre-Closing Period, Merger Partner shall promptly notify Remainco and Buyer of any event, condition, fact or circumstance that would
reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article VIII or Article IX
impossible or that has had or would reasonably be expected to have or result in a Combined Company Material Adverse Effect. No notification
given to Remainco or Buyer pursuant to this Section 5.3(c) shall limit or otherwise affect any of the representations,
warranties, covenants or obligations of Merger Partner contained in this Agreement or the conditions to the obligations of the Parties
under this Agreement. A failure to comply with this Section 5.3(c) shall not constitute the failure of any condition
set forth in Article VIII or Article IX to be satisfied unless the underlying event, condition, fact or circumstance
would independently result in the failure of a condition set forth in Article VIII or Article IX to be satisfied.
5.4 Control
of Other Party’s Business. Nothing contained in this Agreement shall give Remainco, Spinco or Buyer, directly or indirectly,
the right to control or direct Merger Partner’s operations prior to the Merger Effective Time. Nothing contained in this Agreement
shall give Merger Partner or Buyer, directly or indirectly, the right to control or direct the operations of the Spinco Business (prior
to the Equity Sale Closing Time) or the Remainco Retained Business. Prior to the Merger Effective Time, with respect to Merger Partner,
and prior to the Equity Sale Closing Time, with respect to Remainco and Spinco, Remainco, Spinco and Merger Partner shall exercise, consistent
with the terms and conditions of this Agreement, complete control and supervision over its respective operations.
5.5 No
Shop.
(a) During
the Pre-Closing Period, Merger Partner shall not, directly or indirectly, and Merger Partner shall cause the other members of the Merger
Partner Group and shall use reasonable best efforts to cause its and their respective Representatives acting on behalf or at the direction
of a member of the Merger Partner Group not to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate
the making, submission or announcement of any Acquisition Proposal or any Acquisition Inquiry with respect to Merger Partner; (ii) furnish
any information regarding any member of the Merger Partner Group to any Person in connection with or in response to any Acquisition Proposal
or any Acquisition Inquiry with respect to Merger Partner; (iii) engage in discussions or negotiations with any Person relating
to any Acquisition Proposal or any Acquisition Inquiry with respect to Merger Partner (other than to state that they are not currently
permitted to have discussions); (iv) approve, endorse or recommend any Acquisition Proposal or any Acquisition Inquiry with respect
to Merger Partner; or (v) enter into any letter of intent or similar Contract contemplating or relating to any Acquisition Transaction
or any Acquisition Inquiry with respect to Merger Partner (excluding any Permitted Confidentiality Agreements).
(b) During
the Pre-Closing Period, Remainco shall not, directly or indirectly, and Remainco shall cause the other members of the Remainco Group
and shall use reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly (i) solicit,
initiate, knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Proposal or any Acquisition
Inquiry with respect to Remainco, the members of the Spinco Group or the Spinco Business; (ii) furnish any information regarding
any member of the Remainco Group to any Person in connection with or in response to any Acquisition Proposal or any Acquisition Inquiry
with respect to Remainco, the members of the Spinco Group or the Spinco Business; (iii) engage in discussions or negotiations with
any Person relating to any Acquisition Proposal or any Acquisition Inquiry with respect to Remainco, the members of the Spinco Group
or the Spinco Business (other than to state that they are not currently permitted to have discussions); (iv) approve, endorse or
recommend any Acquisition Proposal or any Acquisition Inquiry with respect to Remainco, the members of the Spinco Group or the Spinco
Business; or (v) enter into any letter of intent or similar Contract contemplating or relating to any Acquisition Transaction or
any Acquisition Inquiry with respect to Remainco, the members of the Spinco Group or the Spinco Business.
(c) Notwithstanding
anything to the contrary contained in Section 5.5(a), if at any time on or after the date hereof and prior to obtaining the
Required Merger Partner Stockholder Vote (and in no event after obtaining the Required Merger Partner Stockholder Vote), (i) Merger
Partner shall receive a written Acquisition Proposal from a Third Party with respect to Merger Partner that did not result from a material
breach of Section 5.5(a) and (ii) the Merger Partner Board determines in good faith (x) after consultation
with Merger Partner’s financial advisor that such Acquisition Proposal is or would reasonably be expected to lead to a Merger Partner
Superior Proposal and (y) after consultation with Merger Partner’s outside legal counsel that the failure to take the following
actions would reasonably be expected to be inconsistent with the fiduciary duties of the Merger Partner Board under applicable Law, then
Merger Partner may (A) furnish information regarding the members of the Merger Partner Group (it being understood that in no event
shall any member of the Merger Partner Group or their respective Representatives furnish any information regarding the members of the
Remainco Group (including the members of the Spinco Group or the Spinco Business) or Buyer to the Person making such Acquisition Proposal
and its Representatives regarding such Acquisition Proposal) or (B) enter into discussions and negotiations with the Person making
such Acquisition Proposal and its Representatives regarding such Acquisition Proposal; provided that (1) prior to furnishing
any such information to such Person, Merger Partner receives from such Person an executed confidentiality agreement that contains customary
provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable in the aggregate
to Merger Partner as the provisions of the Confidentiality Agreements as in effect immediately prior to the date hereof and allows for
Merger Partner to comply with its obligations in this Agreement; (2) Merger Partner gives Remainco and Buyer prompt notice of any
such determination by the Merger Partner Board (which notice shall be no later than thirty-six (36) hours after such determination by
the Merger Partner Board and prior to Merger Partner or any of its Representatives taking any of the actions described in clause (A) or
clause (B)); and (3) Merger Partner furnishes or Makes Available to Remainco and Buyer any non-public information furnished
or Made Available to such Person (to the extent such information has not been previously furnished or Made Available by Merger Partner
to Remainco and Buyer) within twenty-four (24) hours of the time it is provided or made available to such Person.
(d) Except
as expressly permitted by Section 6.2(c), during the Pre-Closing Period, the Merger Partner Board (or any committee thereof)
shall not (i) effect a Merger Partner Change in Recommendation, (ii) adopt, approve, endorse, declare advisable or recommend
to Merger Partner’s stockholders an Acquisition Proposal with respect to Merger Partner other than the Contemplated Transactions,
(iii) fail to publicly reaffirm the Merger Partner Board Recommendation within ten (10) Business Days following receipt of
a written request by Remainco or Buyer to provide such reaffirmation after an Acquisition Proposal shall have been publicly disclosed
or shall have become publicly known; provided that Remainco and Buyer may each only make such request once with respect to any
Acquisition Proposal with respect to Merger Partner and once with respect to each material amendment to any Acquisition Proposal with
respect to Merger Partner, (iv) fail to include in the Merger Partner Proxy Statement the Merger Partner Board Recommendation or
include in the Merger Partner Proxy Statement any proposal to vote upon or consider any Acquisition Proposal with respect to Merger Partner
other than the Contemplated Transactions or (v) fail to recommend against a competing tender offer or exchange offer for twenty
percent (20%) or more of the outstanding capital stock of Merger Partner within ten (10) Business Days after commencement of such
offer (including by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders).
(e) During
the Pre-Closing Period, Merger Partner shall promptly (and in no event later than thirty-six (36) hours) after receipt of any Acquisition
Proposal or any Acquisition Inquiry advise the other Parties to this Agreement in writing of any such Acquisition Inquiry or any such
Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Inquiry or such Acquisition Proposal
and the terms thereof, including a copy of any written Acquisition Inquiry or any written Acquisition Proposal and any other agreements
proposed to be entered into by any member of the Merger Partner Group and the Person making such Acquisition Inquiry or such Acquisition
Proposal or any of its Subsidiaries or its or their respective Representatives and any documentation in respect of such Acquisition Inquiry
or such Acquisition Proposal received from the proponent thereof or its Representatives) that is made or submitted by any Person during
the Pre-Closing Period. During the Pre-Closing Period, Merger Partner shall, following receipt of an Acquisition Inquiry or an Acquisition
Proposal, keep the other Parties reasonably informed on a reasonably prompt basis with respect to (1) the status of any such Acquisition
Inquiry or any such Acquisition Proposal, including any negotiations with respect thereto and (2) the status and terms of any modification
or proposed modification thereto, copies of any written materials (including e-mail correspondence) received from the proponent thereof
or its Representatives proposing any such changes to any such Acquisition Inquiry or any such Acquisition Proposal and drafts of any
agreements proposed to be entered into by any member of the Merger Partner Group and the Person making such Acquisition Inquiry or such
Acquisition Proposal or any of its Subsidiaries or its or their respective directors, officers or employees.
(f) During
the Pre-Closing Period, Remainco and Merger Partner shall, and shall cause the other members of their respective Groups to, use reasonable
best efforts to cause their respective Representatives to, immediately cease and cause to be terminated any discussions conducted on
or before the date hereof with any Person that relate to any Acquisition Proposal or any Acquisition Inquiry and request the prompt return
or destruction of all confidential information previously furnished.
(g) Merger
Partner agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality,
non-solicitation, no hire, “standstill” or similar Contract to which any such Person or any of its Subsidiaries is a party
or under which any such Person or any of its Subsidiaries has any rights, and will use its commercially reasonable efforts to cause each
such Contract to be enforced at the request of the Remainco and Buyer except to the extent that the Merger Partner Board determines in
good faith, after consultation with Merger Partner’s outside legal counsel, that failure to take such action would reasonably
be expected to be inconsistent with the fiduciary duties of the Merger Partner Board to its stockholders under applicable Law.
(h) Notwithstanding
anything to the contrary contained in this Agreement, including Section 5.2(b)(vi), Section 5.5(b) and Section 6.3,
or any other Transaction Document, it shall not be a breach of any of the Transaction Documents for any member of the Remainco Group,
any of its Affiliates or any of their respective Representatives to, and there shall be no restrictions on the ability of any member
of the Remainco Group, any of its Affiliates or any of their respective Representatives to (i) pursue, consider or evaluate any
Excluded Matter; (ii) make any inquiry, proposal or offer for or relating to any Excluded Transaction to any Person; (iii) solicit,
initiate, encourage or facilitate the making, submission or announcement of any Excluded Transaction Inquiry or any Excluded Transaction
Proposal; (iv) furnish information in connection with any Excluded Matter; (v) engage in discussions or negotiations with any
Person relating to any Excluded Matter; (vi) make any announcements relating to or in connection with any Excluded Matter; (vii)
approve, endorse or make any recommendations relating to any Excluded Matter; (viii) authorize, approve or enter into Contracts
that provide for, relate to or are in furtherance of any Excluded Matter; (ix) consummate, or take any actions to consummate, any
Excluded Transaction; or (x) take any actions in furtherance of any foregoing, in each case, so long as the foregoing would not,
individually or in the aggregate, reasonably be expected to prevent, materially delay, materially interfere with or materially impair
the ability to consummate the Closing (including the Separation in all material respects, the Spinco Contribution, the Equity Sale and
the execution and delivery of the IP License and Technology Agreements, the Rhode Island VLT JV Interest Management Contract, the Rhode
Island VLT System Subcontract and the Transition Services Agreement) (any such action, or any action in furtherance of any of the foregoing,
an “Excluded Action”). No member of the Remainco Group shall be required to provide any notice to Merger Partner or
Buyer relating to any Excluded Action or any Excluded Matter, provided that Remainco shall provide notice to Merger Partner at
least fifteen (15) Business Days prior to the execution of any definitive agreement to effect a transaction that would be an Excluded
Transaction with any Affiliates of Buyer or the consummation of any transaction that would be an Excluded Transaction with any Affiliates
of Buyer and, thereafter, consult with Merger Partner in good faith as to whether such Excluded Transaction or Excluded Transaction Proposal
would, individually or in the aggregate, reasonably be expected to prevent, materially delay, materially interfere with or materially
impair the ability of Remainco or Spinco to consummate the Closing (including the Separation in all material respects, the Spinco Contribution,
the Equity Sale and the execution and delivery of the IP License and Technology Agreements, the Rhode Island VLT JV Interest Management
Contract, the Rhode Island VLT System Subcontract and the Transition Services Agreement). If any member of the Remainco Group or any
of its Representatives receives any inquiry, request, proposal or offer and it is uncertain whether such inquiry, request, proposal or
offer relates to an Excluded Matter or an Acquisition Transaction, then such member of the Remainco Group and its Representatives may
ask the Person making such inquiry, request, proposal or offer to clarify whether it relates to an Excluded Matter or an Acquisition
Transaction.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS OF THE
PARTIES
6.1 Merger
Partner Proxy Statement.
(a) As
promptly as reasonably practicable after the date hereof, Merger Partner shall prepare and cause to be filed with the SEC, in preliminary
form, the Merger Partner Proxy Statement. Remainco and Buyer shall cooperate with Merger Partner in connection with the preparation and
filing by Merger Partner of the Merger Partner Proxy Statement. Merger Partner shall file or cause to be filed such other appropriate
documents with the SEC as may be applicable. Merger Partner shall (i) cause the Merger Partner Proxy Statement to comply as to form
in all material respects with the applicable rules, regulations and requirements of the Exchange Act or Securities Act; (ii) promptly
notify Remainco and Buyer of, cooperate with Remainco and Buyer with respect to, provide Remainco and Buyer (and their respective Representatives)
with a reasonable opportunity to review and comment on, and respond promptly to, any comments of the SEC or its staff with respect to
the Merger Partner Proxy Statement; and (iii) provide Remainco and Buyer (and their respective Representatives) with a reasonable
opportunity to review and comment on the Merger Partner Proxy Statement prior to filing of any such proxy statement with the SEC, including
any amendments or supplements thereto. Remainco and Buyer shall promptly furnish to Merger Partner all information concerning such Party,
their respective Affiliates and Subsidiaries and stockholders or shareholders, respectively, that may be required or reasonably requested
in connection with any action contemplated by this Section 6.1. If, at any time prior to the Merger Effective Time, any event
or circumstance shall be discovered by any of Merger Partner, Remainco or Buyer, or if Merger Partner, Remainco or Buyer becomes aware
of any information furnished by it, in either case, that should be disclosed in an amendment or supplement to the Merger Partner Proxy
Statement so that such document or documents would not include any untrue statement of a material fact or fail to state any material
fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then such Party
shall (A) promptly inform the other Parties thereof; (B) provide the other Parties (and their respective Representatives) with
a reasonable opportunity to review and comment on any amendment or supplement to the Merger Partner Proxy Statement prior to it being
filed with the SEC; (C) provide the other Parties with a copy of such amendment or supplement promptly after it is filed with the
SEC; and (D) cooperate, if appropriate, in mailing such amendment or supplement to the stockholders of Merger Partner.
(b) If
any state takeover statute or similar Law shall become applicable to the Merger, each Party and its boards of directors shall, considering
the potential effects (if any) that such statutes or Law may have on the Merger, grant such approvals and take such actions as are reasonably
necessary so that the Merger may be consummated as promptly as practicable on the terms contemplated by this Agreement or by the other
Transaction Documents and otherwise act to eliminate or minimize the effects of such statute or Law on the Merger.
6.2 Merger
Partner Stockholders’ Meeting.
(a) As
promptly as reasonably practicable following the earlier of (x) the date on which any comments of the SEC or the staff of the SEC
with respect to the preliminary Merger Partner Proxy Statement have been resolved or (y) receipt of confirmation from the SEC that
it will not review, or that it has completed its review of, the Merger Partner Proxy Statement (which confirmation will be deemed to
occur if the SEC has not affirmatively notified Merger Partner prior to the end of the 10th calendar day after filing the preliminary
Merger Partner Proxy Statement that the SEC will or will not be reviewing the Merger Partner Proxy Statement), Merger Partner (i) shall
take all action necessary under all applicable Law and the certificate of incorporation of Merger Partner to call, give notice of and
hold a meeting of the holders of Merger Partner Common Stock (the “Merger Partner Stockholders’ Meeting”) to
solicit and obtain the Required Merger Partner Stockholder Vote and (ii) shall submit such proposal to such holders at the Merger
Partner Stockholders’ Meeting. Except as set forth in Section 6.2(a) of the Merger Partner Disclosure Letter,
Merger Partner shall not submit any other proposals for approval at the Merger Partner Stockholders’ Meeting without the prior
written consent of Remainco and Buyer (such consent not to be unreasonably withheld, conditioned or delayed). Merger Partner, in consultation
with Remainco and Buyer and in accordance with applicable Law and Merger Partner’s Organizational Documents, shall set a record
date for Persons entitled to notice of, and to vote at, the Merger Partner Stockholders’ Meeting and shall not change such record
date without the prior written consent of Remainco and Buyer (such consent not to be unreasonably withheld, conditioned or delayed).
Merger Partner shall use its reasonable best efforts to ensure that all proxies solicited by or on behalf of any member of the Merger
Partner Group and their Representatives in connection with the Merger Partner Stockholders’ Meeting are solicited in material compliance
with all applicable Law; provided that no such efforts shall be required in the event that, prior to such solicitation, there
has been a Merger Partner Change in Recommendation made in accordance with Section 6.2(c). Subject to the other terms of
this Agreement, Merger Partner may, after consultation with Remainco and Buyer, adjourn or postpone the Merger Partner Stockholders’
Meeting (or shall, if requested in writing by Remainco or Buyer) (A) to the extent necessary to ensure that any supplement or amendment
to the Merger Partner Proxy Statement that is required by applicable Law (or in connection with the settlement of any applicable litigation)
is timely provided to Merger Partner’s stockholders; (B) if as of the time for which the Merger Partner Stockholders’
Meeting is then scheduled there are insufficient shares of Merger Partner Common Stock represented (either in person or by proxy) to
constitute a quorum necessary to conduct the business to be conducted at the Merger Partner Stockholders’ Meeting; or (C) if
as of the time for which the Merger Partner Stockholders’ Meeting is then scheduled there are insufficient shares of Merger Partner
Common Stock voting in favor of the adoption of this Agreement to obtain the Required Merger Partner Stockholder Vote, if additional
time is reasonably required to solicit proxies in favor of the adoption of this Agreement; provided that the Merger Partner Stockholders’
Meeting shall not be postponed or adjourned for more than thirty (30) days without the prior written consent of Remainco and Buyer (which
consent shall not be unreasonably withheld). Unless this Agreement shall have been terminated in accordance with Article X,
nothing contained in this Agreement shall be deemed to relieve Merger Partner of its obligations to submit this Agreement for adoption
to its stockholders for a vote at the Merger Partner Stockholders’ Meeting. Unless this Agreement shall have been terminated in
accordance with Article X, Merger Partner’s obligation to hold the Merger Partner Stockholders’ Meeting pursuant
to this Section 6.2(a) shall not be affected by (1) the commencement, public proposal or public disclosure of,
or communication to, Merger Partner of any Acquisition Proposal with respect to Merger Partner, (2) any Acquisition Inquiry with
respect to Merger Partner or (3) any Merger Partner Change in Recommendation.
(b) Unless
there has been a Merger Partner Change in Recommendation made in accordance with Section 6.2(c), (i) the Merger Partner
Board shall recommend that Merger Partner’s stockholders vote in favor of the adoption of this Agreement at the Merger Partner
Stockholders’ Meeting; (ii) the Merger Partner Proxy Statement shall include the Merger Partner Board Determination and a
statement to the effect that the Merger Partner Board recommends that Merger Partner’s stockholders vote in favor of the adoption
of this Agreement at the Merger Partner Stockholders’ Meeting (such determination and recommendation being referred to as the “Merger
Partner Board Recommendation”); (iii) the Merger Partner Board Recommendation shall not be directly or indirectly withdrawn
or modified (or proposed to be withdrawn or modified and the Merger Partner Board shall not have adopted, approved, endorsed, declared
advisable or recommended to Merger Partner’s stockholders an Acquisition Proposal with respect to Merger Partner other than the
Contemplated Transactions) by the Merger Partner Board nor any committee thereof in a manner adverse to Remainco (a “Merger
Partner Change in Recommendation”); and (iv) Merger Partner shall use reasonable best efforts to solicit proxies in favor
of the proposal to adopt this Agreement.
(c) Notwithstanding
anything to the contrary contained in Section 6.2(a), Section 6.2(b) or any other provision of in this Agreement,
at any time prior to obtaining the Required Merger Partner Stockholder Vote, the Merger Partner Board may effect a Merger Partner Change
in Recommendation or cause Merger Partner to terminate this Agreement pursuant to Section 10.1(f) in order to simultaneously
enter into a definitive agreement to effect a Merger Partner Superior Proposal if (and only if): (i) after the date hereof, Merger
Partner has received a written Acquisition Proposal from a Third Party that did not result from a material breach of Section 5.5(a) and
is not withdrawn; (ii) the Merger Partner Board determines in its good faith judgment, (A) after consultation with Merger Partner’s
financial advisor that such Acquisition Proposal constitutes a Merger Partner Superior Proposal and (B) after consultation with
Merger Partner’s outside legal counsel that the failure to make a Merger Partner Change in Recommendation or cause Merger Partner
to terminate this Agreement in order to simultaneously enter into a definitive agreement to effect such Merger Partner Superior Proposal
would reasonably be expected to be inconsistent with the fiduciary duties of the Merger Partner Board under applicable Law (it being
understood and agreed that none of the determination by the Merger Partner Board in this clause (ii), the delivery of the Notice
of Merger Partner Superior Proposal or the public announcement that Merger Partner has delivered such notice shall in and of itself constitute
a Merger Partner Change in Recommendation); (iii) prior to effecting a Merger Partner Change in Recommendation or terminating this
Agreement to enter into a definitive agreement to effect such Merger Partner Superior Proposal, the Merger Partner Board provides
Remainco and Buyer notice (a “Notice of Merger Partner Superior Proposal”) advising Remainco and Buyer that Merger
Partner has received a Merger Partner Superior Proposal, specifying the terms and conditions of such Merger Partner Superior Proposal,
identifying the Person making such Merger Partner Superior Proposal and providing copies of any agreements intended to effect (or to
finance such Merger Partner Superior Proposal, which financing commitments may include customary redactions) such Merger Partner Superior
Proposal, and that the Merger Partner Board has made the determination required under clause (ii) (including the basis
on which such determination has been made); (iv) during the four (4) Business Days (together with any subsequent shorter period
as contemplated by the proviso below in this clause (iv), solely for purposes of this Section 6.2, the “Buyer
Notice Period”) after delivery of the Notice of Merger Partner Superior Proposal, if requested by Buyer, Merger Partner engages
in good faith negotiations, and directs its financial advisor and outside legal counsel to, engage in good faith negotiations, with Buyer
and Remainco to amend the Transaction Documents and the Financing in such a manner that such competing Acquisition Proposal does not
constitute a Merger Partner Superior Proposal (it being understood and agreed that (1) Remainco and Spinco shall agree to any such
amendments proposed by Buyer that solely increase the Per Share Price or the other consideration paid to the stockholders of Merger Partner
in exchange for their shares of Merger Partner Common Stock or otherwise do not adversely affect the Remainco Group and (2) in no
event shall Remainco or Spinco be required to agree to any amendment that adversely affects the Remainco Group); provided that
a new Notice of Merger Partner Superior Proposal shall be required to be delivered to Remainco and Buyer with respect to each material
modification to such offer (it being understood that any change in the purchase price or form of consideration in such offer shall be
deemed a material modification) and a new Buyer Notice Period (of two (2) Business Days) shall begin following the expiration of
the prior Buyer Notice Period; (v) at the end of the applicable Buyer Notice Period, such Acquisition Proposal has not been withdrawn
and constitutes a Merger Partner Superior Proposal (considering any changes to the terms of the Transaction Documents and the Financing
proposed by Buyer as a result of the negotiations required by clause (v) or otherwise); and (vi) the Merger Partner
Board determines in good faith, (A) after consultation with Merger Partner’s financial advisor that such Acquisition Proposal
constitutes a Merger Partner Superior Proposal (considering any changes to the terms of the Transaction Documents or the Financing proposed
by Buyer and Remainco as a result of the negotiations required by clause (iv) or otherwise) and (B) after consultation
with Merger Partner’s outside legal counsel that the failure to make a Merger Partner Change in Recommendation and to cause Merger
Partner to terminate this Agreement in order to simultaneously enter into a definitive agreement to effect a Merger Partner Superior
Proposal would reasonably be expected to be inconsistent with the fiduciary duties of the Merger Partner Board under applicable Law.
If Buyer determines not to engage in good faith negotiations or propose any amendments to the Transaction Documents as contemplated by
clause (iv) above or has failed to provide proposed amendments to Merger Partner by the end of the third (3rd) Business Day
of the Buyer Notice Period (or the end of the first (1st) Business Day in the case of an extension contemplated by the above), then Remainco
shall from and after such event be permitted to make proposals to Merger Partner with respect to any alternative transaction (a “Remainco
Alternative Proposal”). If Remainco makes a Remainco Alternative Proposal, then the Merger Partner Board shall be required
to consider such Remainco Alternative Proposal prior to terminating this Agreement to effect a Merger Partner Superior Proposal. If the
Merger Partner Board determines that such Remainco Alternative Proposal is more favorable to the stockholders of Merger Partner than
both (x) the Contemplated Transactions and (y) the Acquisition Proposal that resulted in the Notice of Merger Partner Superior
Proposal (for the avoidance of doubt, in each case, taking into account any amendments to the Transaction Documents proposed by Buyer
pursuant to this Section 6.2(c)), then (I) Merger Partner shall terminate this Agreement and enter into definitive agreements
to effect the Remainco Alternative Proposal and (II) such termination and the entry into the definitive agreements to effect the
Remainco Alternative Proposal shall not be a breach of (and shall be expressly authorized by) this Agreement and the other Transaction
Documents.
(d) Notwithstanding
anything to the contrary contained in Section 6.2(a), Section 6.2(b) or any other provision of in this Agreement,
at any time prior to obtaining the Required Merger Partner Stockholder Vote, the Merger Partner Board may effect a Merger Partner Change
in Recommendation (but not a termination of this Agreement) if, other than in connection with or as a result of the making of an Acquisition
Inquiry from any Third Party or an Acquisition Proposal from any Third Party, a material development, event, effect, state of facts or
change in circumstances that was not known to the Merger Partner Board or reasonably foreseeable by the Merger Partner Board (or if known
or reasonably foreseeable, the consequences of which were not known and could not have been reasonably foreseeable on or prior to the
date hereof) occurs, arises or becomes known to the Merger Partner Board after the date hereof and prior to obtaining the Required Merger
Partner Stockholder Vote (such material development, event, effect, state of facts or change in circumstances being referred to as a
“Merger Partner Intervening Event”) (it being understood that that in no event shall the following (or the consequences
thereof) constitute a Merger Partner Intervening Event): (A) (1) any action taken or not taken (or required to be taken or
not taken) by any Party or any of its Subsidiaries pursuant to and in compliance with the covenants set forth in any of the Transaction
Documents, (2) any status of discussions with Governmental Authorities to obtain, including any proposed requirements to obtain,
any Governmental Approvals relating to the Contemplated Transactions or (3) the status of efforts to obtain, or any terms of, the
Financing; (B) the receipt, existence of or terms of an Acquisition Inquiry or an Acquisition Proposal; (C) changes in the
market price or trading volume of the shares of Merger Partner Common Stock; (D) any changes in any credit rating of Merger Partner,
or any debt thereof; or (E) Merger Partner meeting, failing to meet or exceeding published or unpublished forecasts of revenues,
earnings or other measures of financial performance; provided that with respect to clauses (C) through (E),
the Merger Partner Board may consider the underlying causes of such changes or matters; (1) the Merger Partner Board determines
in its good faith judgment, (x) after consultation with Merger Partner’s financial advisor that a Merger Partner Intervening
Event has occurred and (y) after consultation with Merger Partner’s outside legal counsel that the failure to make a Merger
Partner Change in Recommendation would reasonably be expected to be inconsistent with the fiduciary duties of the Merger Partner Board
under applicable Law (it being understood and agreed that none of the determination by the Merger Partner Board in this clause (1),
the delivery of the Notice of Merger Partner Intervening Event or the public announcement that Merger Partner has delivered such notice
shall in and of itself constitute a Merger Partner Change in Recommendation); (2) prior to effecting a Merger Partner Change in
Recommendation, the Merger Partner Board provides Remainco and Buyer notice (a “Notice of Merger Partner Intervening Event”)
advising Remainco and Buyer of the Merger Partner Intervening Event, including a reasonable description of the terms and circumstances
of such Merger Partner Intervening Event; (3) during the five (5) Business Days after the delivery to Remainco and Buyer of
the Notice of Merger Partner Intervening Event, if requested by Buyer, Merger Partner engages in good faith negotiations, and directs
its financial advisor and outside legal counsel to, engage in good faith negotiations, with Buyer to amend the Transaction Documents
and the Financing in such a manner that obviates the need for the Merger Partner Board to effect, or cause Merger Partner to effect,
a Merger Partner Change in Recommendation as a result of such Merger Partner Intervening Event (it being understood and agreed that (I) Remainco
and Spinco shall agree to any such amendments proposed by Buyer that solely increase the Per Share Price or the other consideration to
be paid the stockholders of Merger Partner in exchange for their shares of Merger Partner Common Stock or otherwise do not adversely
affect the Remainco Group, (II) in no event shall Remainco or Spinco be required to agree to any amendment that adversely affects
the Remainco Group and (III) if Buyer does not propose any such amendment to the Transaction Documents and the Financing, then Remainco
may make its own proposal to Merger Partner and Buyer to amend the Transaction Documents and the Financing in such a manner that obviates
the need for the Merger Partner Board to effect, or cause Merger Partner to effect, a Merger Partner Change in Recommendation as a result
of such Merger Partner Intervening Event); provided, that in no event shall Buyer be required to agree to, or to take any action
or refrain from taking any action with respect to, such amendment proposed by Remainco pursuant to clause (III) without Buyer’s
prior consent (in its sole discretion); provided that a new Notice of Merger Partner Intervening Event shall be required with
respect to any change in circumstances with respect to such Merger Partner Intervening Event and a new Buyer Notice Period of two (2) Business
Days shall begin following the expiration of the prior Buyer Notice Period; and (4) the Merger Partner Board determines in good
faith, (x) after consultation with Merger Partner’s financial advisor that a Merger Partner Intervening Event has occurred
and (y) after consultation with Merger Partner’s outside legal counsel that the failure to make a Merger Partner Change in
Recommendation would reasonably be expected to be inconsistent with the
fiduciary duties of the Merger Partner Board under applicable Law.
(e) (i) Nothing
contained in this Section 6.2 or this Agreement will prohibit Merger Partner from taking and disclosing to its stockholders
a position required by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act and (ii) no disclosure that
the Merger Partner Board may determine in good faith (after consultation with outside legal counsel) that it or Merger Partner, as applicable,
is required to make under applicable Law will constitute a violation of this Agreement; provided that in any event under clause (i) or
(ii) the Merger Partner Board shall not make a Merger Partner Change in Recommendation except in accordance with this Section 6.2.
It is expressly understood and agreed by the Parties that a “stop, look and listen” or similar communication of the type
contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed a Merger Partner Change in Recommendation; provided
that such communication (A) is a factually accurate public statement by Merger Partner or the Merger Partner Board (or a committee
thereof) that describes Merger Partner’s receipt of an Acquisition Proposal, the identity of the Person making such Acquisition
Proposal and the material terms of such Acquisition Proposal, (B) states that Merger Partner has not taken any action with respect
to such Acquisition Proposal although it is under consideration and (C) expressly confirms that as of the date of such communication,
the Merger Partner Board has not changed or withdrawn the Merger Partner Board Recommendation.
6.3 Efforts;
Regulatory Approvals and Related Matters.
(a) Prior
to the Closing, Merger Partner, Remainco and Buyer shall (and shall cause each of their respective their respective directors, officers
and employees to) and shall cause their respective Regulatory Affiliates and Gaming Licensees, as applicable, to, use their respective
reasonable best efforts, to (i) file all notices, reports, submissions and other documents required to be filed by such Person with
any Governmental Authority with respect to the Contemplated Transactions, and respond as promptly as reasonably practicable to any additional
information requests by any such Governmental Authority, (ii) as promptly as reasonably practicable consummate the Contemplated
Transactions and cause the conditions set forth in Article VII, Article VIII and Article IX, in each
case as applicable, to be satisfied and (iii) obtain as promptly as reasonably practicable, all Governmental Approvals that may
be or become necessary for its execution and delivery of, performance of its obligations pursuant to, and consummation of the transactions
contemplated by, the Transaction Documents, in each case, subject to terms, conditions and limitations of this Section 6.3.
(b) Without
limiting the generality of the obligations set forth in Section 6.3(a), Merger Partner, Remainco and Buyer shall, and Merger
Partner, Remainco and Buyer shall cause each of their respective directors and officers, Regulatory Affiliates and Gaming Licensees,
as applicable, to, (i) within fifteen (15) Business Days after the date hereof, make and not withdraw (without the prior written
consent of the other Parties) a filing of a Notification and Report Form pursuant to the HSR Act in connection with the Equity Sale
and the Merger; provided that there are no changes in the applicable regulations under the HSR Act between the date hereof and
the date of filing pursuant to the HSR Act, in which instance the Parties shall use reasonable best efforts to file such Notification
and Report Form as promptly as commercially practicable thereafter, (ii) as promptly as practicable after the date hereof,
but in any event within twenty-five (25) Business Days after the date hereof, make and not withdraw (without the prior written consent
of the other Parties), or, if required, make initial contact with the applicable Governmental Authority and then file appropriate filings
(whether in draft or final form), as required under applicable Antitrust Laws or applicable FDI Laws listed on Schedule C-1, (iii) within
forty-five (45) days after the date hereof, make and not withdraw (without the prior written consent of the other Parties) appropriate
filings with the Gaming Authorities listed on Schedule C-2 and (iv) as promptly as practicable after the date hereof, make
and not withdraw (without the prior written consent of the other Parties), or if required make initial contact with the applicable Governmental
Authority and then file appropriate filings, applications, registrations and notices as required under applicable Financial Services
Laws that require a Governmental Approval in connection with the Equity Sale and the Merger. Merger Partner, Remainco and Buyer shall,
and shall cause each of its and their respective directors and officers and each of their respective Regulatory Affiliates and Gaming
Licensees (in each case, solely with respect to the Antitrust Filings, FDI Filings, Gaming Law Filings or Financial Services Notice Filings
and Approvals contemplated to be made in accordance with this Agreement in connection with the Contemplated Transactions, and subject
to Section 6.3(h) with respect to Buyer and its Regulatory Affiliates and Gaming Licensees) to, (A) cooperate with
the other Parties in connection with any filing or submission and in connection with any investigation or other inquiry, including any
proceeding initiated by a Person other than a Governmental Authority, (B) promptly supply the other Parties with any information
which may be required to effectuate applications, notices, reports, documents, registrations, declarations or other filings with any
Governmental Authority required to be made pursuant to the HSR Act and mandatory notifications required under any applicable foreign
Antitrust Laws listed on Schedule C-1 (the “Antitrust Filings”), under any applicable FDI Laws listed on Schedule
C-1 (the “FDI Filings”), under any applicable Gaming Laws with the Gaming Authorities listed on Schedule C-2
(the “Gaming Law Filings”) and under any Financial Services Laws with the Governmental Authorities listed on Schedule
C-3 (“Financial Services Notice Filings and Approvals”) and (C) respond as promptly as reasonably practicable
to any additional information requests by any Governmental Authority in connection with Antitrust Filings, FDI Filings, Gaming Law Filings
or Financial Services Notice Filings and Approvals. During the Pre-Closing Period, Merger Partner, Remainco and Buyer shall notify each
other Party promptly upon the receipt of (and, if in writing, share a copy of) any communication received by such Party from, or given
by such Party to, any Governmental Authorities and of any communication received or given in connection with any proceeding by a Person
other than a Governmental Authority in connection with any applications, notices, reports, documents, registrations, declarations or
other filings with any Governmental Authority, in each case in connection with any of the Contemplated Transactions, and permit the other
Party to review and discuss in advance any proposed written communication to any Governmental Authorities in connection with any of the
Contemplated Transactions. During the Pre-Closing Period, whenever any event occurs that is required to be set forth in an amendment
or supplement to any Antitrust Filings, any FDI Filings, any Gaming Law Filings or any Financial Services Notice Filings and Approvals,
Merger Partner, Remainco or Buyer (as the case may be) shall promptly inform the other Parties of such occurrence and cooperate in filing
with the applicable Governmental Authority and, subject to Sections 6.3(j)(ii) and 6.3(j)(iii), share a copy of such
amendment or supplement, and, subject to Sections 6.3(j)(ii) and 6.3(j)(iii), permit the other Parties to review and
discuss prior to submission of such amendment or supplement. During the Pre-Closing Period, Merger Partner, Remainco and Buyer shall
give each other prompt notice of the commencement or known threat of commencement of any Action by or before any Governmental Authority
with respect to any of the Contemplated Transactions and shall keep the other Parties reasonably informed as to the status of any such
Action or threat. During the Pre-Closing Period, none of Remainco, Merger Partner or Buyer shall or shall permit their Regulatory Affiliates
to participate in any meeting, teleconference or videoconference with any Governmental Authority having competent jurisdiction over applicable
Antitrust Laws, FDI Laws, Gaming Laws or Financial Services Laws with respect to any such Actions or any of the Antitrust Filings, the
FDI Filings, the Gaming Law Filings or the Financial Services Notice Filings and Approvals relating to any of the Contemplated Transactions
that is expected to be substantive (each, a “Regulatory Meeting”) unless it consults with the other Parties in advance
and, unless prohibited by such Governmental Authority, gives the other Parties the opportunity to attend and participate thereat (other
than attendance and participation in that portion of a Regulatory Meeting that is reasonably determined by a Party to be regarding the
matters described in Section 6.3(j) (as applicable to such Party or its Gaming Licensees, or in the case of Buyer, the
Buyer Regulatory Affiliates)). Notwithstanding the foregoing, Merger Partner, Remainco and Buyer may, as each deems advisable and necessary,
reasonably designate any competitively sensitive material provided to the other Parties under this Section 6.3(b) as
“Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside legal counsel
of the recipient and will not be disclosed by such outside legal counsel to Representatives of the recipient unless express permission
is obtained in advance from Remainco, Merger Partner or Buyer (as the case may be) or outside legal counsel to Remainco, Merger Partner
or Buyer (as the case may be). Merger Partner, Remainco and Buyer shall cause their respective counsel regarding applicable Antitrust
Laws, FDI Laws, Gaming Laws and Financial Services Laws to comply with this Section 6.3(b).
(c) With
respect to Antitrust Laws and FDI Laws, in furtherance and not in limitation of the covenants of the Parties contained in Sections 6.3(a) and
6.3(b) during the Pre-Closing Period, Buyer shall and shall cause its Subsidiaries and each of its and their respective directors
and officers to take any and all actions with respect to Buyer and its Subsidiaries, the members of the Merger Partner Group, the members
of the Spinco Group and their respective assets, businesses, operations, organizations and Equity Interests necessary to (i) avoid
the entry of, or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary,
preliminary or permanent, that would restrain, prevent or delay the Closing, including defending (with sufficient time for resolution
in advance of the Outside Date) against litigation over any claim asserted in any court with respect to any of the Contemplated Transactions
by any Governmental Authority having competent jurisdiction or any natural person or Entity, (ii) avoid or eliminate each and every
impediment to the consummation of the Contemplated Transactions, and (iii) obtain all Governmental Approvals that may be required
or advisable by any Governmental Authority, in each case with competent jurisdiction, so as to enable the Parties to consummate the Contemplated
Transactions as promptly as reasonably practicable, including, in each case, (A) proposing, negotiating, committing to effecting
and otherwise taking any other action, whether by consent decree, hold separate order or otherwise, that limits the freedom of action
of Buyer or its Subsidiaries, any member of the Merger Partner Group or any member of the Spinco Group with respect to, or their ability
to retain, particular products, Equity Interests, assets or businesses of the members of the Merger Partner Group, the members of the
Spinco Group or the Combined Company Business or any Equity Interests or assets of Buyer or any of its Subsidiaries, or agreeing to take
any such action, which actions Buyer acknowledges may be required to have an effect on Buyer’s Affiliates, the Buyer Regulatory
Affiliates or the Buyer Required Gaming Licensees; (B) executing settlements, undertakings, consent decrees, stipulations or other
agreements with any Governmental Authority; (C) terminating existing relationships, contractual rights or obligations of any member
of the Merger Partner Group or any member of the Spinco Group, in each case of such clauses (A) through (C), to the
extent necessary to obtain any Governmental Approvals with respect to Antitrust Laws and FDI Laws, including the Governmental Approvals
from the Governmental Authorities set forth on Schedule C-1 or consummate the Contemplated Transactions, in each case as promptly
as reasonably practicable and in any event to allow such consummation to occur prior to the Outside Date (any such action is referred
to as a “Remedial Action”).
(d) With
respect to Gaming Laws and Financial Services Laws, (i) if (A) a Gaming Authority objects to or otherwise expresses concerns
regarding the suitability of any Buyer Required Gaming Licensee who would be a director, officer or employee of any member of the Combined
Company or any member of the Buyer Licensing Group following the Closing and (B) the failure to replace such Buyer Required Gaming
Licensee with a suitable alternative replacement Gaming Licensee would reasonably be expected to cause or materially contribute to the
Equity Sale or the Merger not occurring prior to the Outside Date, then Buyer shall promptly replace, or cause to be replaced, such specified
Buyer Required Gaming Licensee with a suitable alternative individual (as determined by Buyer in its sole discretion), which individual
shall thereafter be a Buyer Required Gaming Licensee for all purposes hereunder, and (ii) if (A) a Gaming Authority objects
to or otherwise expresses concerns regarding the suitability of any Merger Partner Required Gaming Licensee or any Spinco Required Gaming
Licensee who would be a director, officer or employee of any member of the Combined Company following the Closing and (B) the failure
to replace such Gaming Licensee with a suitable alternative Gaming Licensee would reasonably be expected to cause or materially contribute
to the Equity Sale or the Merger to not occur prior to the Outside Date, then Buyer shall use commercially reasonable efforts to promptly
designate a suitable replacement for such individual (with such replacement’s employment to begin effective as of or following
the Closing), and such replacement individual will thereafter be a Buyer Required Gaming Licensee; provided that, in case of this
clause (ii), no delay, impairment or impediment to the grant to, or receipt by, any of Buyer, Buyer Sub, the Combined Company,
a Buyer Regulatory Affiliate or a Buyer Required Gaming Licensee of any Gaming Approval as a result of such objection by a Gaming Authority
or finding or expression of concern regarding the suitability of a Merger Partner Required Gaming Licensee or a Spinco Required Gaming
Licensee, as applicable, or failure to replace such Gaming Licensee with a suitable alternative Gaming Licensee, shall be attributable
to the efforts of the Buyer Group, the Buyer Regulatory Affiliates and the Buyer Required Gaming Licensees or deemed to be a breach in
any manner by Buyer or Buyer Sub of their respective obligations set forth in this Section 6.3; and provided, further,
that nothing in this Section 6.3(d) modifies or relieves Remainco or Merger Partner or Remainco (as the case may be)
of its obligations pursuant to Sections 5.2 or 5.3, as applicable. Solely with respect to Gaming Laws and Financial Services
Laws, Buyer shall, and shall cause the Buyer Required Gaming Licensees to take any and all actions necessary with respect to Buyer and
its Subsidiaries, the members of the Buyer Licensing Group, the members of the Merger Partner Group, the members of the Spinco Group
and their respective assets, businesses, operations, organizations and Equity Interests, to (1) avoid the entry of, or to have vacated,
lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would
restrain, prevent or delay the Closing, including defending (with sufficient time for resolution in advance of the Outside Date) against
litigation over any claim asserted in any court with respect to any of the Contemplated Transactions by any Governmental Authority having
competent jurisdiction or any natural person or Entity, (2) avoid or eliminate each and every impediment to the consummation of
the Contemplated Transactions, and (3) obtain all Governmental Approvals that may be required or advisable by any Governmental Authority,
in each case with competent jurisdiction, so as to enable the Parties to consummate the Contemplated Transactions as promptly as reasonably
practicable, including, in each case, (I) proposing, negotiating, committing to effecting and otherwise taking any other action,
whether by consent decree, hold separate order or otherwise, that limits the freedom of action of Buyer, its Subsidiaries, or any Buyer
Required Gaming Licensees, any member of the Merger Partner Group or any member of the Spinco Group with respect to, or their ability
to retain, particular products, assets or businesses or Equity Interests of the members of the Merger Partner Group, the members of the
Spinco Group or the Combined Company Business or any assets or Equity Interests of Buyer or any of its Subsidiaries, or agreeing to take
any such action, which actions Buyer acknowledges may be required to have an effect on Buyer’s Affiliates; (II) executing
settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority; (III) terminating
existing relationships, contractual rights or obligations of any member of the Merger Partner Group or any member of the Spinco Group,
in each case of such clauses (I) through (III), to the extent necessary to obtain any Governmental Approvals with
respect to Gaming Laws and Financial Services Laws or consummate the Contemplated Transactions, in each case as promptly as reasonably
practicable and in any event to allow such consummation to occur prior to the Outside Date; provided that neither “reasonable
best efforts” under this Section 6.3 with respect to obtaining any Governmental Approvals under Gaming Laws and Financial
Services Laws, nor anything in this Section 6.3(d), shall require Buyer or any of its Subsidiaries, their respective directors,
officers and employees, any Buyer Required Gaming Licensee or any Buyer Regulatory Affiliate, to (x) take, or agree to take any
of the foregoing actions set forth in clauses (I) through (III) above or (y) commit to or effect any capital
commitment, monetary payment or any other financial accommodations (including by the Combined Company following the Closing) (each, a
“Buyer Extraordinary Action”), if, in any case, such action (or agreement to take such action) would have the effect
set forth in Section 6.3(d) of the Buyer Disclosure Letter.
(e) Notwithstanding
anything to the contrary contained in this Section 6.3 or otherwise in the Transaction Documents, except as set forth on
Section 6.3(e) of the Buyer Disclosure Letter, no AGM Person (other than Buyer, Buyer Sub, the Buyer Regulatory Affiliates
or any of the Buyer Required Gaming Licensees) shall be required or obligated to take any action pursuant to the terms of this Agreement.
(f) Notwithstanding
anything to the contrary contained in this Agreement, (i) neither Merger Partner nor Remainco shall agree to or take any Remedial
Action or Buyer Extraordinary Action (with respect to the members of the Merger Partner Group or the members of the Spinco Group, as
applicable) without the prior written consent of Buyer, and (ii) Remainco shall not be required take or agree to any Remedial Action
or any other action that would, individually or in the aggregate, adversely affect any Post-Closing Remainco Group Member, the Remainco
Retained Business or the Remainco Retained Assets (any Remedial Action or other action described in this clause (ii), a “Remainco
Burdensome Action”). Notwithstanding the foregoing, nothing in this Agreement shall require any Party to agree to any modifications,
amendments or changes to any of the Transaction Documents. At the request of Buyer, Merger Partner and Remainco shall, and shall cause
their respective Subsidiaries to, enter into one or more agreements prior to the Closing with respect to any Remedial Action (other than
any Remainco Burdensome Action) or Buyer Extraordinary Action with respect to the members of the Merger Partner Group or the Spinco Business
(but not the Remainco Retained Business), as applicable; provided that such agreements are conditioned upon the Closing.
(g) Without
limiting the efforts and obligations of Merger Partner, Remainco or Buyer under this Section 6.3, Buyer shall, after consulting
with Merger Partner and Remainco and considering their suggestions and views in good faith, control and make all strategic decisions
and lead all discussions, negotiations and other proceedings, and coordinate all activities with respect to obtaining Governmental Approvals
or expiration of any applicable waiting periods, including any requests that may be made by, or any actions, omissions, or Governmental
Approvals that may be sought from, (i) any Governmental Authority under any Antitrust Law, (ii) any Governmental Authority
under any FDI Law, (iii) any Gaming Authority under any Gaming Law, and (iv) any Governmental Authority under any Financial
Services Law (each a “Financial Services Authority”), in each case of clauses (i) through (iv),
including determining the strategy for contesting, litigating or otherwise responding to objections to, or Actions thereunder challenging,
any of the Contemplated Transactions.
(h) Buyer
shall, and each Party shall, use reasonable best efforts to attend and cause its Regulatory Affiliates and Gaming Licenses to attend,
any discussions, negotiations, hearings, proceedings or meetings (telephonic or otherwise) with any Gaming Authority or any Financial
Services Authority in connection with the Gaming Approvals and the Financial Services Approvals that are contemplated in connection with
the Equity Sale and the Merger. Nothing in this Agreement shall limit any Party hereto from attending any hearings or public proceedings
or meetings of any Gaming Authority or Financial Services Authority. Each Party shall inform the applicable Gaming Authorities and Financial
Services Authorities of its obligations under Section 6.3(b) and this Section 6.3(h) to permit the
other Parties to participate in any Regulatory Meetings. If any impromptu Regulatory Meeting is initiated by any Gaming Authority or
Financial Services Authority to a Party or any of its Regulatory Affiliates with respect to the Contemplated Transactions that is substantive
in nature, such Party and its Regulatory Affiliates shall not be in violation of the obligations under Section 6.3(b) or
this Section 6.3(h) to permit the other Parties to attend Regulatory Meetings if such Party or its Regulatory Affiliates
has (i) complied with the immediately preceding sentence in advance of such impromptu communication, and (ii) the applicable
Party promptly notifies the other Parties that such communications or interactions have taken place, which notice shall include a reasonably
detailed summary of the matters discussed (including the substance thereof). During the Pre-Closing Period, Buyer may, (A) following
reasonable consultation with Merger Partner and Remainco, approach one or more Gaming Authorities or Financial Services Authorities (in
each case, at an appropriate time in light of the status of pending regulatory processes and to the extent advisable in order to expedite
satisfaction of the closing conditions set out in Section 7.5, 8.5 and 9.5 or the receipt of any Governmental
Approval with respect to any of the Gaming Law Filings or Financial Services Notice Filings and Approvals) regarding the possibility
of completing the Contemplated Transactions before obtaining full customary approval from such Gaming Authority or such Financial Services
Authority or full licensing of all applicable Gaming Licensees as required by such Gaming Authority or such Financial Services Authority,
and (B) discuss and negotiate with such applicable Governmental Authorities an acceptable solution that would permit the Parties
to consummate the Contemplated Transactions prior to the receipt of such full customary approval or full customary licensing, as applicable
(each, an “Alternative Arrangement”); provided that (1) Buyer shall permit Merger Partner and Remainco
to attend and participate in any such meetings, discussions or negotiations (and provide reasonable advance notice of the time and place
such meetings, discussions or negotiations are occurring) and (2) the foregoing shall not require Remainco or Merger Partner to
agree to any such solution that would require any modification, amendment or other change to any of the Transaction Documents. Subject
to the other terms and conditions of this Agreement (including Section 6.3(j)), during the Pre-Closing Period, to the extent
reasonably requested by Buyer, Merger Partner and Remainco (with respect to the Spinco Business), shall reasonably cooperate with Buyer
to effect any Alternative Arrangement, provided that (I) such Alternative Arrangement would not require any amendment to
the Transaction Documents and (II) any changes to the rights, assets or operations of Merger Partner Business or Spinco Business
needed to effect such Alternative Arrangement would not be effective until immediately prior to the Closing. During the Pre-Closing Period,
Merger Partner, Remainco and Buyer shall each promptly advise the other Parties upon it or its Gaming Licensees receiving any communications
(written or oral) or documentary material from any Gaming Authority from which any Gaming Approval is required or from any Financial
Services Authority from which any Financial Services Approval is required for the consummation of the Contemplated Transactions which
indicates (x) a material issue in connection with any Gaming Law Filings or Financial Services Notice Filings and Approvals, (y) a
request from such Gaming Authority or such Financial Services Authority that is outside the ordinary course for customary investigations
conducted by such Gaming Authority or customary review and approval processes by such Financial Services Authority, as applicable, for
similar or comparable transactions, or (z) that there is a reasonable likelihood that any such Gaming Approval or such Financial
Services Approval, as applicable, will not be timely obtained or that the receipt of any such Gaming Approval or such Financial Services
Approval will be materially delayed, conditioned or withheld.
(i) Subject
to the terms and conditions of this Agreement, including subject to Section 5.5(c) and Section 6.2(c), prior
to the Closing, (A) each of Merger Partner and Remainco shall not, and shall cause its Affiliates not to, knowingly take any action,
including, acquire or agree to acquire any business or Entity, or otherwise acquire or agree to acquire any assets, if doing so would
reasonably be expected to prevent or materially delay consummation of the Contemplated Transactions, (B) Buyer and Buyer Sub shall
not knowingly take any action, including, acquire or agree to acquire any business or Entity, or otherwise acquire or agree to acquire
any assets, if doing so would reasonably be expected to prevent or materially delay consummation of the Contemplated Transactions and
(C) Buyer and Buyer Sub shall not, and shall cause each of the Buyer Regulatory Affiliates and the Guarantors not to, make any direct
or indirect acquisition of, or investment in, (i) any regulated gaming business or casino or gaming-related fintech business that
competes with the Spinco Business or the Merger Partner Business, or (ii) businesses or operations that are vertically related
to any regulated gaming business or any casino or gaming-related fintech business of the Merger Partner Group or the Spinco Business,
as applicable, in each case, if such acquisition or investment would reasonably be expected to prevent or materially delay consummation
of the Contemplated Transactions.
(j) Notwithstanding
anything to the contrary in this Section 6.3, (i) Remainco shall not be required to (A) allow Merger Partner or
Buyer to review any information relating to, or any portions of filings or submissions relating to, any Excluded Matter or (B) include
Merger Partner or Buyer in any meetings (or portions thereof) with any Governmental Authority at which any Excluded Matter may be considered
or discussed, (ii) no Party shall be required to disclose confidential personal information of any natural person (or family or
trust of a natural person) to any other Party or its Representatives and (iii) natural person suitability filings and other natural
person personal or ownership information or confidential and proprietary information provided pursuant to Section 6.3(e) of
the Buyer Disclosure Letter shared with Gaming Authorities and Financial Services Authorities by or on behalf of any Party or its Gaming
Licensees need not be disclosed to, exchanged with or preapproved by the other Parties hereto; provided, that the submitting Party
shall provide the other Parties with notice of any such filing or other submission to Gaming Authorities, and include in such notification
the cover note for the submission if applicable.
(k) Notwithstanding
anything to the contrary contained in this Agreement, Merger Partner and Buyer acknowledge on behalf of itself and its Affiliates and
its and their Representatives that the operation of the Spinco Business shall remain in the dominion and control of Remainco until the
Closing and that none of Merger Partner, Buyer or any of their respective Affiliates or Representatives will provide, directly or indirectly,
any directions, orders, advice, aid or assistance to any Representative of a member of the Remainco Group except as permitted by any
applicable Laws in the performance of the Parties’ respective obligations under this Article VI. Notwithstanding anything
to the contrary contained in this Agreement, Remainco and Buyer acknowledge on behalf of itself and its Affiliates and its and their
Representatives that the operation of the Merger Partner Business shall remain in the dominion and control of Merger Partner until the
Closing and that none of Remainco, Buyer or any of their respective Affiliates or Representatives will provide, directly or indirectly,
any directions, orders, advice, aid or assistance to any Representative of a member of the Merger Partner Group except as permitted by
any applicable Laws in the performance of the Parties’ respective obligations under this Article VI.
(l) Except
as set forth on Section 6.3(l) of the Buyer Disclosure Letter each Party shall be responsible and pay for its own filing
and similar fees incurred in connection with seeking and obtaining the Governmental Approvals contemplated by this Section 6.3.
(m) Notwithstanding
anything to the contrary contained in this Section 6.3, the obligations of the Parties with respect to the Financing shall
be governed by Section 6.8 and not this Section 6.3.
6.4 Disclosure.
The initial press release and other public statements announcing this Agreement, the Separation Agreement and the Contemplated Transactions
shall be in substantially the form mutually agreed upon by Merger Partner, Remainco and Buyer. Thereafter, Merger Partner, Remainco and
Buyer shall consult with each other and consider the other Parties’ views and comments before issuing any press or news release
or otherwise making any public statement regarding this Agreement, the Separation Agreement or the Contemplated Transactions; provided
that no Party will make any statement that is inconsistent with the Transaction Documents; provided, further, that
if the focus of any press release or other public statement is a communication with respect to the rights of Spinco Employees or Merger
Partner Employees (in their capacities as such), then such press release or other public statement (x) with respect to Spinco Employees
shall be governed by the immediately following sentence and (y) with respect to Merger Partner Employees shall be governed by the
penultimate sentence of this Section 6.4. Remainco shall consult with Buyer and consider the views and comments of Buyer
before any member of the Remainco Group or any of its Representatives sends any emails or other documents to the Spinco Employees in
any broad based communication or otherwise communicates with the Spinco Employees in any broad based communication, with respect to any
of the Contemplated Transactions, and, without Buyer’s prior consent, shall only send such emails and documents, and make such
communications, that are consistent with the Parties’ prior public disclosures regarding the Contemplated Transactions. Merger
Partner shall consult with Buyer and consider the views and comments of Buyer before any member of the Merger Partner Group or any of
their Representatives sends any emails or other documents to the Merger Partner Employees in any broad based communication or otherwise
communicates with the Merger Partner Employees in any broad based communication, with respect to any of the Contemplated Transactions,
and, without Buyer’s prior consent, shall only send such emails and documents, and make such communications, that are consistent
with the Parties’ prior public disclosures regarding the Contemplated Transactions. Notwithstanding the foregoing (a) each
Party may, without such consultation or consent, make any public statement in response to questions from the press or media, analysts,
investors or those attending industry conferences and make internal announcements to employees, so long as such statements are consistent
with previous press or news releases, public disclosures or public statements made jointly by the Parties (or individually, after consultation
is completed with, or consent obtained from, the other Parties); (b) each Party may, without the prior consent of the other Parties,
issue any such press or news release or make any such public announcement or statement as may be required by Law or the rules and
regulations of the NYSE, in which case such Party shall use its reasonable best efforts to provide the other Parties with reasonable
advance notice of such requirement and consult in good faith with the other Parties prior to issuing any such press or news release or
making any such public announcement or statement; (c) Merger Partner need not consult with Remainco or Buyer in connection with
any press or news release, public statement or filing to be issued or made with respect to any Merger Partner Change in Recommendation;
and (d) Buyer and its Affiliates shall be permitted to make communications to, and provide ordinary course information regarding
this Agreement, the other Transaction Documents and the Contemplated Transactions to the Debt Financing Sources and to any equityholders,
existing or prospective general and limited partners, members, managers and investors of Buyer or its Affiliates, in each case, who are
subject to customary confidentiality and non-use restrictions.
6.5 Section 16
Matters. Prior to the Merger Effective Time, Merger Partner and Buyer shall be permitted to take such steps as may be reasonably
necessary or advisable to cause any dispositions of shares of Merger Partner Common Stock (including derivative securities with respect
thereto) resulting from the Contemplated Transactions by each individual who is subject to the reporting requirements of Section 16(a) of
the Exchange Act with respect to Merger Partner to be exempt under Rule 16b-3 promulgated under the Exchange Act.
6.6 Obligations
with respect to Merger Partner, Spinco and Buyer.
(a) Merger
Partner shall take all action necessary to cause the other members of the Merger Partner Group, prior to the Merger Effective Time, to
perform their respective obligations under this Agreement and to consummate the Contemplated Transactions upon the terms and subject
to the conditions set forth in this Agreement. Remainco shall take all action necessary to cause the members of the Spinco Group, prior
to the Closing, to perform their obligations under the Transaction Documents to be performed prior to the Closing and to consummate the
Contemplated Transactions to be consummated prior to the Closing upon the terms and subject to the conditions set forth in the applicable
Transaction Documents. Upon and subject to the terms and the conditions set forth in the applicable Transaction Documents, Buyer shall
take all action necessary to cause Buyer Sub, prior to the Closing, to perform its obligations under the Transaction Documents to be
performed prior to the Closing and to consummate the Contemplated Transactions to be consummated prior to the Closing.
(b) Immediately
following the execution and delivery of this Agreement, (i) Buyer Sub shall submit this Agreement to Buyer and recommend to Buyer
that Buyer adopt this Agreement pursuant to written consent and (ii) Buyer, as the sole stockholder of Buyer Sub, shall execute
and deliver to Buyer Sub, Merger Partner and Remainco a written consent pursuant to Section 228 and the other provisions of the
DGCL, adopting this Agreement.
(c) During
the Pre-Closing Period, Buyer and Buyer Sub shall promptly notify Merger Partner and Remainco of any event, condition, fact or circumstance
that would reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article VII, Article VIII
or Article IX impossible or that has had or would reasonably be expected to have or result in a Buyer Material Adverse
Effect. No notification given to Merger Partner and Remainco pursuant to this Section 6.6(c) shall limit or otherwise
affect any of the representations, warranties, covenants or obligations of Buyer or Buyer Sub contained in this Agreement or the conditions
to the obligations of the Parties under this Agreement. A failure to comply with this Section 6.6(c) shall not constitute
the failure of any condition set forth in Article VII, Article VIII or Article IX to be satisfied
unless the underlying event, condition, fact or circumstance would independently result in the failure of a condition set forth in Article VII,
Article VIII or Article IX to be satisfied.
6.7 Securityholder
Litigation.
(a) Prior
to the Equity Sale Closing Time, Remainco shall give Merger Partner and Buyer the right to participate in the defense or settlement of
any securityholder litigation against Remainco, the Remainco Board or the Special Committee relating to the Contemplated Transactions,
except for any Action between any member of the Remainco Group, on the one hand, and any Buyer Party, on the other hand. Prior to the
Equity Sale Closing Time, Remainco shall not enter into or agree to any settlement with respect to such securityholder litigation without
Buyer’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), other than settlements
involving only additional disclosures by Remainco regarding the Remainco Group or monetary consideration (including fees) to be paid
exclusively by Remainco; provided that the prior written consent of Merger Partner (which consent shall not be unreasonably withheld,
conditioned or delayed) shall be required (in addition to Buyer’s consent) for any settlement that would adversely affect any member
of the Merger Partner Group.
(b) Prior
to the Merger Effective Time, Merger Partner shall give Remainco and Buyer the right to participate in the defense or settlement of any
securityholder litigation against Merger Partner or the Merger Partner Board relating to the Contemplated Transactions, except for any
Action between any member of the Merger Partner Group, on the one hand, and any Buyer Party, on the other hand. Prior to the Merger Effective
Time, Merger Partner shall not enter into or agree to any settlement with respect to such securityholder litigation without Buyer’s
prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that the prior written
consent of Remainco (which consent shall not be unreasonably withheld, conditioned or delayed) shall be required (in addition to Buyer’s
consent) for any settlement that would adversely affect any member of the Remainco Group, including any member of the Spinco Group.
(c) For
purposes of this Section 6.7, “participate” means that the non-litigating party will be kept apprised
of proposed strategy and other significant decisions with respect to any securityholder litigation by the litigating party (to the extent
the attorney-client privilege between the litigating party and its legal counsel is not undermined or otherwise adversely affected),
and the non-litigating party may offer comments or suggestions with respect to the litigation but will not be afforded any decision making
power or authority over the litigation, except for the right to consent to applicable settlements as set forth in this Section 6.7.
6.8 Financing.
(a) Buyer
and Buyer Sub shall, and shall cause each of their Representatives and Affiliates (which shall, with respect to the Equity Financing,
include the Guarantors for purposes of this Section 6.8(a) and Section 6.8(b)) to, use reasonable best efforts
to do all things necessary or advisable to obtain the Financing as promptly as reasonably practicable after the date hereof and, in any
event, not later than the date the Closing is required to be effected in accordance with Section 1.3, on the same terms and
conditions (including market flex) contained in the Financing Commitments (or on such other terms so long as such other terms would not
(A) delay or prevent the Closing, (B) impose new or additional conditions or otherwise amend, modify or expand the conditions
from those set forth in the Debt Commitment Letter, in each case, in a manner adverse to Buyer or Buyer Sub, (C) reduce the committed
amount below the amount necessary to fund the Required Amount, (D) adversely impact or delay in any respect the likelihood of the
funding of the Financing required to fund the Required Amount (or satisfaction of the conditions to obtaining the Financing required
to fund the Required Amount) or (E) adversely impact the ability of Buyer to enforce its rights against the other parties to the
Financing Commitments or the Financing Agreements (as defined below)) or, in the case of the Debt Financing, the definitive agreements
with respect thereto (such definitive agreements in respect of the Debt Financing, the “Financing Agreements”), including
using reasonable best efforts to (i) comply with and maintain in full force and effect the Financing Commitments in accordance with
the terms thereof and negotiate and execute the Financing Agreements on the terms and conditions (including market flex) contained in
the Financing Commitments (or on such other terms so long as such other terms would not have any result, event or consequence described
in clauses (A) through (E) above) and, upon the reasonable request of Merger Partner or Remainco, deliver to Merger Partner
and Remainco, as applicable, drafts of such Financing Agreements; (ii) satisfy or cause the satisfaction of all conditions in the
Financing Commitments and the Financing Agreements that are within its control or, if necessary or deemed advisable by Buyer, seek the
waiver of conditions applicable to Buyer and its Affiliates, as applicable, contained in the Financing Commitments and the Financing
Agreements; (iii) in the event of a breach or purported breach thereof by the Debt Financing Sources, fully enforce its rights to
funding under the Debt Commitment Letter and the Financing Agreements; and (iv) consummate and draw upon the Financing (including
by instructing the Debt Financing Sources and the other Persons providing the Financing to provide such Financing) prior to or substantially
contemporaneously with the Equity Sale Closing Time. Prior to the Closing, neither Buyer nor Buyer Sub shall release or consent to the
termination of the obligations of the Debt Financing Sources under the Debt Commitment Letter or the Financing Agreements. In the event
any funds in the amounts set forth in the Debt Commitment Letter or the Financing Agreements related thereto, or any portion thereof,
become unavailable on the terms and conditions contemplated in the Debt Commitment Letter or the Financing Agreements related thereto,
or it becomes reasonably likely that such funds may become unavailable on the terms and conditions set forth therein (in each case other
than on account of the commitments under the Debt Commitment Letter being replaced with commitments set forth in the Financing Agreements
related thereto), Buyer and Buyer Sub shall use reasonable best efforts to obtain as promptly as reasonably practicable any such portion
from alternative sources on terms and conditions not less favorable to Buyer than those set forth in the Debt Commitment Letter (including
market flex), which shall not expand upon the conditions precedent to the funding on the Closing Date of the Debt Financing as set forth
in the Debt Commitment Letter in effect on the date hereof or otherwise adversely affect the ability or likelihood of Buyer and Buyer
Sub to timely consummate the Contemplated Transactions and in an amount necessary to fund the Required Amount (after taking into account
any portion of the Debt Financing that is and remains available and any available Equity Financing) (the “Alternative Financing”)
and to provide promptly to Merger Partner and Remainco with a copy of the new financing commitment in respect of such Alternative Financing
(the “Alternative Debt Commitment Letter”) together with any related fee letter (an “Alternative Fee Letter”),
which may be redacted in a manner consistent with the provisions of Section 4.6. The definitive agreements for the Alternative
Financing shall be on the same terms and conditions (including market flex) contained in the Alternative Debt Commitment Letter (or on
such other terms so long as such other terms would not (A) delay or prevent the Closing, (B) impose new or additional conditions
or otherwise amend, modify or expand the conditions from those set forth in the Alternative Debt Commitment Letter, in each case, in
a manner adverse to Buyer or Buyer Sub, (C) reduce the committed amount below the amount necessary to fund the Required Amount,
(D) adversely impact or delay in any respect the likelihood of the funding of the Financing required to fund the Required Amount
(or satisfaction of the conditions to obtaining the Financing required to fund the Required Amount) or (E) adversely impact the
ability of Buyer to enforce its rights against the other parties to the Alternative Debt Commitment Letter or the Alternative Financing
Agreements (as defined below)) (such definitive agreements in respect of the Alternative Financing, the “Alternative Financing
Agreements”). To the extent an Alternative Debt Commitment Letter is obtained, the provisions in this Section 6.8(a) shall
apply to such Alternative Debt Commitment Letter, any reference in this Agreement to the “Debt Commitment Letter” (and any
definition incorporating the term “Debt Commitment Letter”) shall be deemed to include the Debt Commitment Letter to the
extent not superseded by an Alternative Debt Commitment Letter at the time in question and any Alternative Debt Commitment Letter to
the extent then in effect and any reference in this Agreement to the “Fee Letter” (and any definition incorporating the term
“Fee Letter”) shall be deemed to include the Fee Letter to the extent not superseded by an Alternative Fee Letter at the
time in question and any Alternative Fee Letter to the extent then in effect.
(b) Buyer
shall give Merger Partner and Remainco prompt notice (and in any event within two (2) Business Days) (i) of any breach (or
threatened breach) or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be
expected to give rise to any breach or default) by any party to the Financing Commitments, the Financing Agreements, the Alternative
Debt Commitment Letter or the Alternative Financing Agreements, in each case, of which it becomes aware; (ii) of any actual withdrawal,
repudiation or termination of the Financing Agreements or commitments for the Financing of which it becomes aware; (iii) of the
receipt by it of any written notice from any Person with respect to any dispute or disagreement between or among any of the parties to
the Financing Commitments or the Financing Agreements and, if applicable, the Alternative Debt Commitment Letter or the Alternative Financing
Agreements that could reasonably be expected to prevent or materially delay the Closing or adversely impact the ability of Buyer or Buyer
Sub to obtain all or any portion of the Financing necessary to fund the Required Amount on the Closing Date; (iv) of any amendment
or modification of, or waiver under, the Debt Commitment Letter or the Financing Agreements and, if applicable, the Alternative Debt
Commitment Letter or the Alternative Financing Agreements or any related fee letters; or (v) if for any reason it believes in good
faith that it or its Subsidiaries or Affiliates will not be able to timely obtain all or any portion of the Financing, on the terms,
in the manner or from sources contemplated by the Financing Commitments or the Financing Agreements and, if and as applicable, the Alternative
Debt Commitment Letter or the Alternative Financing Agreements (or on such other terms so long as such other terms would not have any
result, event or consequence described in clauses (A) through (E) in Section 6.8(a) above). Buyer shall, and
shall cause its Representatives to, upon request, keep Merger Partner and Remainco reasonably informed (in reasonable detail) with respect
to all material activity concerning the Financing and, if applicable, the Alternative Financing, including by providing copies of all
definitive agreements and, upon reasonable request, any applicable information relating to the Financing. Buyer and Buyer Sub shall not,
without the prior written consent of Merger Partner and Remainco (other than any amendment of the Debt Commitment Letter to add lenders,
lead arrangers, bookrunners, syndication agents or any person with similar roles or titles who had not executed the Debt Commitment Letter
as of the date hereof), amend, modify, supplement, restate, substitute, replace, terminate, assign or agree to any waiver under the Financing
Commitments, any Alternative Debt Commitment Letter, any Financing Agreements or any Alternative Financing Agreements, in each case,
in a manner that would (or would be reasonably expected to) (A) reduce the aggregate amount of any Financing to an amount that would
not be sufficient (I) to pay the Purchase Price in accordance with the terms and conditions set forth in the Separation Agreement,
(II) to pay the Per Share Price in accordance with the terms and conditions set forth in this Agreement, (III) to refinance,
redeem or otherwise repay the Merger Partner Existing Indebtedness and other “Subject Indebtedness” identified by Buyer to
be paid off in accordance with Section 6.8(i) (including any related premiums, fees and expenses), (IV) to pay
all commitment fees or other fees required by the Financing Commitments that have not been paid prior to the Closing and (V) to
satisfy all of the other payment obligations required to be paid at Closing by Buyer or Buyer Sub hereunder or under the Separation Agreement
(such amount, collectively, the “Required Amount”), (B) modify or expand upon any of the conditions precedent
to any Financing from those set forth in the Equity Commitment Letter, the Debt Commitment Letter or the Alternative Debt Commitment
Letter, as applicable, or adds any new conditions precedent to such Financing from those set forth in the Equity Commitment Letter, the
Debt Commitment Letter or the Alternative Debt Commitment Letter, as applicable, in each case in a manner adverse to Buyer or Buyer Sub
or that would reasonably be expected to have the result, effect or consequence described in any of clauses (A), (C), (D) or
(E) of this sentence, (C) prevent, materially impede or materially delay the availability of any Financing or (D) modify
the terms thereof in a manner that makes the funding of the Debt Financing or the Equity Financing (or the satisfaction of the conditions
to obtaining any of the Financing) less likely to occur or (E) adversely impact the ability of Buyer or Buyer Sub to enforce its
rights against the other parties to the Equity Commitment Letter, the Debt Commitment Letter, the Alternative Debt Commitment Letters,
the Financing Agreements or the Alternative Financing Agreements, as applicable. Notwithstanding anything to the contrary contained in
this Agreement, nothing contained in this Section 6.8 will require, and in no event will the reasonable best efforts of Buyer
or Buyer Sub be deemed or construed to require, either Buyer or Buyer Sub to (1) seek the Equity Financing from any source other
than a counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter or (2) pay any fees in
excess of those contemplated by the Equity Commitment Letter or the Debt Commitment Letter; provided that each of Buyer and Buyer
Sub acknowledges and agrees that neither the obtaining of the Financing or any Alternative Financing is a condition to the Closing in
accordance with the terms of this Agreement.
(c) Notwithstanding
anything to the contrary contained in this Agreement, in no event shall Buyer or any of its Affiliates engage any bank, investment bank
or other potential provider of debt or equity financing on an exclusive basis or otherwise on terms that prohibit or are designed to
prevent such financing provider from providing or seeking to provide financing or other services to any Person in connection with a transaction
relating to Spinco or any other member of the Spinco Group or to Merger Partner or any other member of the Merger Partner Group.
(d) Prior
to the Closing, at Buyer’s sole expense and subject to the other provisions of this Section 6.8(d), Merger Partner
shall, and shall cause the other members of the Merger Partner Group to, and Remainco shall, and shall cause the other members of the
Remainco Group to, and in each case, shall cause their respective Representatives to, use reasonable best efforts to provide such customary
cooperation reasonably requested by Buyer and Buyer Sub in connection with the arrangement of the Debt Financing, or, if applicable,
the Alternative Financing, as may be reasonably requested by Buyer (with information regarding the Spinco Business or the members of
the Spinco Group presumed to be the primary responsibility of Remainco and Spinco and information regarding the Merger Partner Business
or the members of the Merger Partner Group presumed to be the primary responsibility of Merger Partner), including using reasonable best
efforts to:
(i) participate
in a reasonable number of meetings, drafting sessions, rating agency and roadshow presentations and due diligence sessions in connection
with the Debt Financing, at reasonable times and locations upon reasonable prior notice;
(ii) furnish
Buyer with (A) pertinent information regarding the Spinco Business and the members of the Spinco Group and the Merger Partner Business
and the members of the Merger Partner Group, as applicable, as is customary to provide in connection with the Debt Financing or, if applicable,
the Alternative Financing, as may be reasonably requested by Buyer, (B) the Required Merger Partner Financial Information and the
Required Spinco Financial Information, as applicable, and (C) the information required by paragraph 2 and paragraph 3 of Exhibit D
to the Debt Commitment Letter;
(iii) assist
Buyer and the Debt Financing Sources in the preparation of (A) a customary offering document (including a private placement memorandum,
prospectus, offering memorandum or any similar document), including the information required to be provided by Merger Partner or Remainco,
as appliable, to satisfy the requirements of paragraph 4 of Exhibit D of the Debt Commitment Letter for all or a portion of the
Debt Financing and, if applicable, the Alternative Financing, but only with respect to the information included therein regarding the
(1) Merger Partner Business and the members of the Merger Partner Group and (2) Spinco Business and the members of the Spinco
Group, as applicable, and (B) bank information memoranda and bank marketing and syndication materials and similar documents required
in connection with the Debt Financing and, if applicable, the Alternative Financing, in each case to the extent information contained
therein relates to the Spinco Business or the members of the Spinco Group or the Merger Partner Business or the members of the Merger
Partner Group, as applicable;
(iv) subject
to the proviso at the end of this Section 6.8(d), (A) facilitate the granting of guarantees by, or pledging of, granting
of security interests in and obtaining perfection of any liens on collateral owned by, the members of the Merger Partner Group and the
members of the Spinco Group in connection with the Financing and, if applicable, the Alternative Financing subject, in each case, to
the occurrence of the Merger Effective Time and (B) execute and deliver any definitive financing documents or other certificates
or documents as may be reasonably requested by Buyer or the Debt Financing Sources in connection with the Financing and, if applicable,
the Alternative Financing, it being understood that such documents will not take effect until the Merger Effective Time (including entering
into the applicable Financing Agreements or the applicable Alternative Financing Agreements,);
(v) provide
customary authorization and management representation letters with respect to the information provided by Merger Partner, Remainco (solely
with respect to representing that such information does not include material non-public information pursuant to clause (C) below)
or Spinco, as applicable, for inclusion in any confidential information memorandum or lender presentation, including a customary representation
that such confidential information memorandum or lender presentation, as applicable, is correct in all material respects and does not
contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained
therein not materially misleading and representing that such information does not include material non-public information about the members
of (A) the Merger Partner Group and the Merger Partner Business, (B) the Spinco Group and the Spinco Business or (C) the
Remainco Group or the Remainco Retained Business, and designating such information provided by Merger Partner or Remainco, as applicable,
for presentation to the Debt Financing Sources as suitable to be made available to lenders who do not wish to receive material non-public
information with respect to the members of the Merger Partner Group, the Spinco Group or the Remainco Group, as applicable;
(vi) provide
reasonable assistance to the Debt Financing Sources (including by providing customary certificates and representation letters) in obtaining
from independent auditors for (A) the Merger Partner Business and the members of the Merger Partner Group or (B) the Spinco
Business and the members of the Spinco Group, as applicable, auditor “comfort letters” (including customary “negative
assurances”) or similar agreed upon procedures letters, and consents or authorization letters to the inclusion of auditor reports
in marketing materials for the Debt Financing if it takes the form of debt securities and, if applicable, the Alternative Financing;
(vii) cooperate
with the Debt Financing Sources’ due diligence with respect to the Spinco Business and the members of the Spinco Group and the
Merger Partner Business and members of the Merger Partner Group, as applicable, to the extent customary and reasonable, including providing
any customary legal opinions and negative assurance letters that the Debt Financing Sources’ may require in connection with the
offering of any debt securities; and
(viii) provide,
no less than three (3) Business Days prior to the Closing Date, all documentation and other information about (A) the Merger
Partner Business and the members of the Merger Partner Group or (B) the Spinco Business and the members of the Spinco Group, as
applicable, required by applicable “know your customer” and anti-money laundering rules and regulations including the
USA PATRIOT Act to the extent reasonably requested at least ten (10) Business Days prior to the Closing Date;
provided,
that notwithstanding anything contained in this Section 6.8 or elsewhere in this Agreement to the contrary, (I) in no
event shall the “reasonable best efforts” of Merger Partner, Remainco or Spinco, the members of their respective Groups or
their respective Representatives be deemed or construed to require such Persons to, and such Persons shall not be required to, provide
such cooperation to the extent it would, (A) unreasonably interfere with or unreasonably disrupt the ongoing operation and management
of Merger Partner or the Merger Partner Business or Remainco, the Remainco Retained Business, Spinco or the Spinco Business, as applicable,
(B) require Merger Partner, Remainco or Spinco or any of the members of their respective Groups to take any action that would reasonably
be expected to (x) cause any representation or warranty or covenant contained in this Agreement to be breached, (y) cause any
condition to the Closing set forth in Article VII, Article VIII or Article IX to fail to be satisfied
or otherwise cause any breach of this Agreement or (z) conflict with or violate its Organizational Documents or applicable Law or
would reasonably be expected to result in the contravention, violation or breach of any material Contract to which any member of the
Merger Partner Group or any member of the Remainco Group, as applicable, is a party; provided that no member of the Merger Partner
Group and no member of the Remainco Group, as applicable, shall be required to take any action that would reasonably be expected to cause
any director, officer or employee of a member of the Merger Partner Group or a member of the Remainco Group, as applicable, to incur
any personal liability, (II) such activities do not require provision or access to or disclosure of information that Merger Partner
reasonably determines would jeopardize any attorney-client privilege of any member of the Merger Partner Group; provided that
Merger Partner shall use reasonable best efforts to provide or disclose such information to the extent possible without jeopardizing
such privilege, (III) such activities do not require provision or access to or disclosure of information that Remainco reasonably
determines would jeopardize any attorney-client privilege of any member of the Remainco Group; provided that Remainco shall use
reasonable best efforts to provide or disclose such information to the extent possible without jeopardizing such privilege, (IV) neither
Merger Partner, Remainco, Spinco nor any of the members of their respective Groups shall be required to take any action pursuant to any
agreement, certificate or instrument (other than, in each case, customary representation letters and authorization letters (including
with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure
and marketing materials related to the Debt Financing) contemplated by the Debt Commitment Letter) that is not contingent upon the occurrence
of the Closing or that would be effective prior to the Closing, (V) neither the Merger Partner Board, the Remainco Board, the Special
Committee nor any of the boards of directors (or equivalent bodies) of the members of the Remainco Group shall be required to approve
or adopt any Financing or agreements related thereto (or any Alternative Financing) or to execute or deliver any agreements, certificates
or instruments in connection with the Financing (or any Alternative Financing) (other than, in each case, customary representation letters
and authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the
information contained in the disclosure and marketing materials related to the Debt Financing)), (VI) neither the members of the
Remainco Group, the members of the Spinco Group nor the members of the Merger Partner Group shall be required to approve or adopt any
Financing or agreements related thereto (or any Alternative Financing) that is not contingent upon the occurrence of the Closing or that
would be effective prior to the Closing and no employees of any member of the Remainco Group, the Spinco Group or the Merger Partner
Group shall be required to take such action, in each case, other than officers, directors or equivalent of the Spinco Group or the Merger
Partner Group that Buyer has confirmed will continue as an officer, director or equivalent following the Closing, and that have been
apprised of and integrally involved in the Financing, (VII) neither Merger Partner, Remainco, Spinco nor any of the members of their
respective Groups shall be responsible for information regarding any post-Closing or pro forma cost savings, synergies, capitalization,
ownership or other post-Closing or pro forma adjustments, desired to be incorporated into any information used in connection with the
Debt Financing, (VIII) neither Merger Partner, Remainco, Spinco nor any of the members of their respective Groups shall be required
to pay any commitment or other similar fee or make any other payment (other than for documented and reasonable out-of-pocket costs or
expenses that are reimbursed by Buyer as provided below in Section 6.8(e)) or incur any other liability or provide or agree
to provide any indemnity in connection with the Financing or any of the foregoing prior to the Closing and (IX) nothing contained
in this Section 6.8(d) or otherwise shall require Merger Partner, Remainco, Spinco or any of the members of their respective
Groups, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing. All non-public or other confidential
information provided by any member of the Merger Partner Group or any member of the Remainco Group, as applicable, or their respective
Representatives pursuant to this Section 6.8(d), shall be kept confidential in accordance with the Buyer Confidentiality
Agreements; provided, that Buyer and Buyer Sub shall be permitted to disclose such confidential information to the Debt Financing
Sources, rating agencies, prospective lenders and their respective representatives either (i) pursuant to the terms of the Buyer
Confidentiality Agreements and such Debt Financing Sources and their applicable representatives shall be deemed to be “Representatives”
thereunder or (ii) in accordance with customary “click through” confidentiality arrangements or other confidentiality
arrangements customary for syndication procedures with respect to the Debt Financing.
(e) Buyer
and Buyer Sub shall, promptly upon request by Merger Partner or Remainco, reimburse Merger Partner or Remainco, as applicable, for all
documented and reasonable out-of-pocket costs and expenses incurred by Merger Partner, Remainco or Spinco, as applicable, or any of the
members of their respective Groups in connection with such cooperation contemplated by this Section 6.8. Buyer shall indemnify,
defend and hold harmless Merger Partner, Remainco or Spinco, as applicable, and each of the members of their respective Groups and their
respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments
and penalties suffered or incurred by them in connection with the Financing (including any action taken in accordance with this Section 6.8)
and any information utilized in connection therewith (other than historical information provided in writing by Merger Partner, Remainco
or Spinco or the members of their respective Groups specifically for use in connection therewith), in each case, except to the extent
any of the foregoing was suffered or incurred as a result of bad faith, gross negligence or willful misconduct by Merger Partner, Remainco
or Spinco, any of the members of their respective Groups or their respective Representatives.
(f) Buyer
and Buyer Sub shall offer to each Commitment Party (as defined in the Existing Commitment Documents) under the Existing Commitment Documents
the opportunity to participate (including for such Commitment Party to act in the same role as under the Existing Commitment Documents
and with allocations and economics that are no less than the allocations and economics for such Commitment Party in the Existing Commitment
Documents (or such other role, allocations and economics as are mutually agreed between Buyer and such Commitment Party)) in the Debt
Financing.
(g) Each
of Buyer and Buyer Sub acknowledges and agrees that neither the obtaining of the Financing or any Alternative Financing is a condition
to the Closing.
(h) At
the reasonable request of Buyer or Buyer Sub, Merger Partner shall (A) issue a notice of redemption (a “Redemption Notice”)
for all or a portion of the outstanding aggregate principal amount of the Merger Partner Senior Notes, pursuant to the redemption provisions
of the indenture governing the Merger Partner Senior Notes (the “Indenture”), which notice of redemption shall be
expressly conditioned on the occurrence of the Closing and (B) take any other actions reasonably requested by Buyer or Buyer Sub
to facilitate the redemption or satisfaction and discharge of the Merger Partner Senior Notes at the Closing pursuant to the applicable
redemption or satisfaction and discharge provisions of the Indenture and the other provisions of the Indenture applicable thereto; provided
that no such redemption or satisfaction and discharge of the Merger Partner Senior Notes shall be effective (and no redemption or
satisfaction and discharge shall be required to be consummated) prior to the Closing. If a notice of conditional redemption or satisfaction
and discharge of the Merger Partner Senior Notes is given in accordance with the foregoing, Buyer shall ensure that, at the Closing,
Merger Partner has all funds necessary to effect any such redemption or satisfaction and discharge.
(i) Merger
Partner shall deliver with respect to the Merger Partner Credit Agreement and, in respect of any indebtedness other than the Merger Partner
Credit Agreement and in respect of any documentation described in clause (b) below, use reasonable best efforts to deliver,
in each case, to Buyer and Buyer Sub prior to the Closing (with drafts being delivered in advance as reasonably requested by Buyer or
Buyer Sub) (a) copies of payoff letters (subject to the delivery of funds as arranged by Buyer) with respect to the Merger Partner
Credit Agreement and any other indebtedness for borrowed money of Merger Partner that is identified by Buyer prior to the Closing Date
and that Buyer or Buyer Sub reasonably requests to be paid off in connection with the Closing (other than the Merger Partner Senior Notes)
(the indebtedness under the Merger Partner Credit Agreement and any such other indebtedness, the “Subject Indebtedness”)
in customary form, which payoff letters shall each (i) indicate the total amount required to be paid to fully satisfy all principal,
interest, fees, prepayment premiums, termination costs, penalties, breakage costs and any other monetary obligations then due and payable
under the Subject Indebtedness as of the anticipated Closing Date (and the daily accrual thereafter) (the “Payoff Amount”),
(ii) state that, upon receipt of the Payoff Amount under such payoff letter, the Subject Indebtedness and all related loan documents
shall be terminated (other than provisions that by their nature survive payoff) (or words to that effect) and (iii) provide that
all security interests and guarantees (if any) in connection with the Subject Indebtedness relating to the assets and properties of Merger
Partner or its Subsidiaries securing the obligations under the Subject Indebtedness shall be released and terminated upon payment of
the Payoff Amount on the Closing Date and (b) all documentation relating to the repayment, prepayment, redemption, discharge or
termination of all obligations under the Subject Indebtedness and the release of all related pledges, security interests and guarantees
with respect to the Subject Indebtedness (including any mortgage releases and termination statements on Form UCC-3 or other releases
reasonably necessary to effect the release of all applicable security interests granted in connection with such Subject Indebtedness).
(j) On
or prior to the Closing Date, Remainco shall provide to Buyer and Buyer Sub customary guarantee and lien release documentation as may
be reasonably requested by Buyer or Buyer Sub to release the members of the Spinco Group as borrowers or guarantors, as applicable, under
any existing indebtedness for borrowed money of Remainco and its Subsidiaries and the release and termination of any and all security
interests granted in connection with such indebtedness on the Spinco Assets (including any mortgage releases and termination statements
on Form UCC-3 or other releases reasonably necessary to evidence the release of all security interests granted in connection with
such existing indebtedness for borrowed money of Remainco and its Subsidiaries) (collectively, the “Lien and Guarantee Release”);
provided that Remainco shall use reasonable best efforts to provide drafts of such Lien and Guarantee Release documentation prior
to the Closing Date. For the avoidance of doubt, the obligations set forth in this Section 6.8(j) shall not apply with
respect to any Credit Support Instruments which are subject to Section 1.10 of the Separation Agreement.
(k) If
the Closing Date is sixty (60) days or more after the end of the fiscal year ending December 31, 2024, then Remainco shall prepare
and deliver to Buyer as promptly as reasonably practicable (but in no event later than ninety (90) days after the end of such fiscal
year), the audited combined financial statements for the Spinco Business and Spinco as of the end of, and for, such fiscal year consisting
of the balance sheets as of the end of such fiscal years and the statements of operations, other comprehensive income, net parent investment
and cash flows for such fiscal years, in each case, accompanied by a report satisfying the requirements of Regulation S-X of the independent
registered public accounting firm (which firm shall be registered with the PCAOB) for the Spinco Business and Spinco (the “Audited
Financial Statements”); provided that Remainco shall reasonably cooperate, as may be reasonably requested by Buyer,
in connection with Spinco’s completion of the audit for the Audited Financial Statements in the event that the Closing Date occurs
prior to the sixtieth (60th) day after the end of the fiscal year ending December 31, 2024. For the quarterly period ending June 30,
2024 and each subsequent quarterly period ending prior to the Closing Date, other than any quarterly period ending December 31 (each,
an “Interim Financial Period”), Remainco shall prepare and deliver to Buyer the combined unaudited financial statements
of the Spinco Business and Spinco as of the end of, and for, such Interim Financial Period (the “Interim Financial Statements”)
consisting of the combined balance sheets as of the end of such Interim Financial Period and combined statements of operations, other
comprehensive income, net parent investment and cash flows for such Interim Financial Period (and the portion of the fiscal year then
ended) and the corresponding period of the prior fiscal year, which Interim Financial Statements will have been reviewed by the independent
registered public accounting firm (which firm shall be registered with the PCAOB) for the Spinco Business and Spinco, as provided in
AS 4105, Interim Financial Information. The Interim Financial Statements will be delivered as promptly as practicable following
the end of the corresponding Interim Financial Period but no later than sixty (60) days after the end of such Interim Financial Period.
(l) Merger
Partner agrees to use reasonable best efforts to (A) file all reports on Form 10-K and Form 10-Q and Form 8-K (to
the extent required to include financial information pursuant to Item 9.01 thereof) and (B) file all other Forms 8-K, in each case,
required to be filed with the SEC pursuant to the 1934 Act prior to the Closing Date in accordance with the periods required by the 1934
Act. If, in connection with a marketing effort contemplated by the Debt Commitment Letter, (x) Buyer reasonably requests Merger
Partner to file a Current Report on Form 8-K pursuant to the 1934 Act that contains material non-public information with respect
to the Merger Partner and the other members of the Merger Partner Group, which Buyer reasonably determines (and which Merger Partner
does not unreasonably object) to include in a customary offering document or marketing materials for the Debt Financing, then Merger
Partner shall file a Current Report on Form 8-K containing such material non-public information or (y) Buyer reasonably requests
Remainco to file a report on Form 6-K pursuant to the 1934 Act that contains material non-public information with respect to Spinco
and the Spinco Business, which Buyer reasonably determines (and which Remainco does not unreasonably object) to include in a customary
offering document or marketing materials for the Debt Financing, then Remainco shall file a report on Form 6-K containing such material
non-public information.
6.9 Agreement
for Exchange of Information.
(a) Generally.
Buyer and its Affiliates, on the one hand, and Remainco and its Affiliates, on the other hand, will provide, or cause to be provided,
to the other Party, at any time after the Closing and until the later of (i) the sixth (6th) anniversary of the Closing Date and
(ii) the expiration of the relevant statute of limitations period, if applicable, as soon as reasonably practicable after written
request therefor, reasonable access during normal business hours (insofar as such access is reasonably required by the requesting Party),
any Shared Information specifically identified in such written request in its possession or under its control to enable the applicable
Party to comply with Law or for any other purpose set forth in the definition of “Shared Information”. Buyer and Remainco
shall make their respective personnel reasonably available during regular business hours to discuss any Shared Information exchanged
pursuant to this Section 6.9. The requesting Party shall, promptly upon request by the Party providing such information,
reimburse the providing Party for all documented and reasonable third-party out-of-pocket costs incurred by providing Party or its Subsidiaries
in connection with this Section 6.9(a). Notwithstanding the foregoing or the following provisions of this Section 6.9,
the Tax Matters Agreement will govern the sharing, exchange and retention of Tax Returns, schedules and work papers and all material
records or other documents relating to Tax matters.
(b) Financial
Information.
(i) Until
the end of the sixth (6th) full fiscal year occurring after the Closing Date, the members of the Remainco Group shall reasonably cooperate
in good faith with Buyer to enable the applicable members of the Buyer Group or its Affiliates to timely prepare and file PCAOB compliant
consolidated financial statements that include the financial results of the Spinco Business. Buyer shall promptly reimburse Remainco
for the reasonable out-of-pocket third-party costs, if any, incurred in connection with the performance of the obligations under this
Section 6.9(b)(i).
(ii) Until
the end of the sixth (6th) full fiscal year occurring after the Closing Date, the members of the Buyer Group shall reasonably cooperate
in good faith with Remainco to enable Remainco to timely prepare and file SEC and PCAOB compliant consolidated financial statements or
complete a financial statement audit for any period during which the financial results of the Spinco Business were consolidated with
those of Remainco. As part of such efforts, to the extent reasonably necessary for the preparation of financial statements or completing
an audit or review of financial statements or an audit of internal control over financial reporting, (A) Buyer shall authorize and
reasonably request that its auditors make available to Remainco’s auditors, within a reasonable time prior to the date of Remainco’s
auditors opinion or review report, both (1) the personnel who performed or will perform the annual audits and quarterly reviews
of Spinco and (2) work papers related to such annual audits and quarterly reviews, to enable Remainco’s auditors to perform
any procedures reasonably necessary to take responsibility for the work of Spinco’s auditors as it relates to Remainco’s
auditors’ opinion or report and (B) until all governmental audits are complete, Buyer shall provide, or cause to be provided,
reasonable access during normal business hours for Remainco’s internal auditors, counsel and other designated representatives to
(1) the premises of the members of the Spinco Group, all Information (and duplicating rights) within the knowledge, possession or
control of the members of the Spinco Group and (2) the officers and employees of the members of the Spinco Group, so that Remainco
may conduct reasonable audits relating to the financial statements provided by the members of the Spinco Group; provided that
such access shall not be unreasonably disruptive to the business and affairs of the members of the Spinco Group. Remainco shall promptly
reimburse Buyer for the reasonable out-of-pocket third-party costs and expenses, if any, incurred in connection with this Section 6.9(b).
(c) Ownership
of Information. Any Information owned at a particular moment in time by a Party that is provided to another Party pursuant to this
Section 6.9(c) remains the property of the Party that owned and provided such Information. Except as expressly provided
in the Transaction Documents, no Party nor any of their Affiliates hereunder grants or confers rights of license in any Information owned
by such Party or any of its Affiliates to any other Party or its Affiliates hereunder.
(d) Record
Retention. Each Party shall use its commercially reasonable efforts to retain all Shared Information that relates to the operations
of the Spinco Business or any member of the Spinco Group in its respective possession or control at the Closing for a period of six (6) years
following the Closing.
(e) Costs
of Providing Information. Except as otherwise provided in this Section 6.9, the Party requesting Shared Information will
be responsible for paying the third-party fees and expenses incurred by the Parties in connection with complying with the provisions
of this Section 6.9.
(f) Production
of Witnesses; Privileged Matters. With respect to (i) the production of witnesses and (ii) the attorney-client and work
product privileged information, following the Closing, the respective rights and obligations of the members of the Remainco Group, on
the one hand, and the members of the Buyer Group, on the other hand, to produce witnesses and to maintain, preserve, assert or waive
any or all privileges will be governed by the Separation Agreement.
(g) Confidentiality
Agreement. During the Pre-Closing Period, the Parties shall negotiate in good faith a mutual confidentiality agreement covering any
Shared Information disclosed in connection with the provisions of this Section 6.9 and enter into such agreement prior to
or at the Closing.
6.10 D&O
Indemnification and Insurance.
(a) From
and after the Merger Effective Time, the Surviving Corporation (as successor in interest to Merger Partner as of the Merger Effective
Time) shall, and Buyer shall cause the Surviving Corporation to, indemnify and hold harmless each Person who at the Merger Effective
Time is a present or former director or officer (or manager or similar title in the case of any such Entity that is not a corporation)
of any member of the Merger Partner Group (each a “D&O Indemnitee”) against any costs or expenses (including reasonable
attorneys’ fees), judgments, settlements, fines, losses, claims, damages or liabilities incurred in connection with any claim,
action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to
the fact that a D&O Indemnitee is or was a director or officer of a member of the Merger Partner Group or is or was serving at the
request of a member of the Merger Partner Group as a director, officer, manager, member, trustee, fiduciary, employee or agent of another
Person at or prior to the Merger Effective Time, in each case, whether asserted or claimed prior to, at or after the Merger Effective
Time, to the fullest extent that any member of the Merger Partner Group would have been permitted under the Organizational Documents
of any member of the Merger Partner Group, and under applicable Law in effect on the date hereof to indemnify such Person (for all purposes
of this Section 6.10, all references to "indemnification" or like terms deemed to include rights to advancement
of such indemnifiable expenses in defending any such claim, action, suit, proceeding or investigation prior to the disposition thereof).
Without limiting the foregoing, Buyer shall cause the Surviving Corporation, the other members of the Merger Partner Group and any successors
in interest (i) to maintain for a period of not less than six (6) years from the Merger Effective Time provisions in their
respective Organizational Documents concerning the indemnification and exculpation or exoneration of the members of the Merger Partner
Group’s respective former and current directors and officers (or managers or similar title in the case of any such Entity that
is not a corporation) that are no less favorable to those Persons than the provisions of the Organizational Documents of such members
of the Merger Partner Group, as applicable, in each case, as of the date hereof and (ii) not to amend, repeal or otherwise modify
such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by
any Law. Buyer and Buyer Sub agree that all rights to indemnification, advancement of expenses, and exculpation by Merger Partner now
existing in favor of each D&O Indemnitee as provided in the Organizational Documents of any member of the Merger Partner Group or
pursuant to any Contracts set forth on Section 6.10(a) of the Merger Partner Disclosure Letter, in each case as in effect
on the date of this Agreement, shall be assumed by the Surviving Corporation in the Merger, without further action, at the Merger Effective
Time and shall survive the Merger and shall remain in full force and effect in accordance with their terms.
(b) At
or prior to the Merger Effective Time, Merger Partner shall procure, at Merger Partner’s sole cost and expense, a prepaid, non-cancelable
six (6)-year “tail” insurance policy, endorsement or otherwise, effective as of the Merger Effective Time containing terms
not less favorable in the aggregate than the terms of directors’ and officers’ liability insurance covering any directors
and officers (or manager or similar title in the case of any such Entity that is not a corporation) of the members of the Merger Partner
Group who are currently covered by the directors’ and officers’ liability insurance policies of the Merger Partner Group
with respect to matters existing or occurring at or prior to the Merger Effective Time; provided, that Merger Partner shall not
pay a premium for such “tail” insurance policy in excess of 300% of the last annual premium paid by Merger Partner prior
to the date of this Agreement, it being understood that if the total premiums payable for such insurance policy exceeds such amount,
Merger Partner shall obtain a policy with the greatest coverage available for a cost equal to such amount. Merger Partner shall, and
after the Merger Effective Time Buyer shall cause the Surviving Corporation to, maintain such policy in full force and effect in accordance
with its terms and continue to honor the obligations thereunder. If any claim is asserted or made within such six (6)-year period, then
any insurance required to be maintained under this Section 6.10(b) shall be continued in respect of such claim until
the final disposition thereof.
(c) Notwithstanding
anything to the contrary contained in this Agreement, this Section 6.10 shall survive the consummation of the Contemplated
Transactions and shall be binding, jointly and severally, on all successors and assigns of Buyer and the Surviving Corporation and are
intended to be for the benefit of, and will be enforceable by, each D&O Indemnitee and his or her heirs and representatives. If Buyer
or the Surviving Corporation or any of their respective successors or assigns consolidates with or merges into any other Person and shall
not be the continuing or surviving corporation or Entity of such consolidation or merger, or transfers or conveys all or substantially
all of its assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns or transferees
or like title, as applicable, of Buyer or the Surviving Corporation (as the case may be) shall succeed to and assume the obligations
set forth in this Section 6.10. The provisions of this Section 6.10 are intended to be in addition to the rights
otherwise available to any D&O Indemnitee by law, charter, statute, bylaw or Contract.
6.11 Stock
Exchange Delisting. Buyer and Merger Partner shall cooperate with each other and use reasonable best efforts to cause Merger Partner’s
securities to be de-listed from the NYSE and de-registered under the Exchange Act as promptly as practicable following the Merger Effective
Time.
6.12 Remainco
Equity Awards. Remainco shall Make Available to Buyer an updated version of the list referenced in Section 2.3(b)(ii) to
reflect any applicable changes thereto no later than thirty (30) days prior to the anticipated Closing Date and promptly following the
expiration of each month ending thereafter prior to the Closing Date.
6.13 Employee
Benefit Matters.
(a) Except
to the extent otherwise required by applicable Law or any Merger Partner Labor Agreement, effective as of the Merger Effective Time and
during the one (1)-year period immediately following the Merger Effective Time, Buyer shall provide, or shall cause the applicable member
of the Merger Partner Group or one of its Subsidiaries to provide, to each employee of any member of the Merger Partner Group immediately
prior to the Merger Effective Time (collectively, “Merger Partner Employees ”), while the applicable employee remains
employed Buyer or any Subsidiary of Buyer, including the Surviving Corporation and its Subsidiaries, following the Merger Effective Time,
with:
(i) a
base salary or base hourly wage rate, as applicable, that is no less than the base salary or base hourly wage rate, as applicable, for
such Merger Partner Employee as in effect immediately prior to the Merger Effective Time;
(ii) a
target short-term incentive compensation opportunity that is no less than the target short-term incentive compensation opportunity (including
under sales incentive and other similar arrangements) for such Merger Partner Employee in effect immediately prior to the Merger Effective
Time;
(iii) a
target long-term incentive compensation opportunity that is no less than the target long-term incentive compensation opportunity for
such Merger Partner Employee in effect immediately prior to the Merger Effective Time; provided that there is no requirement to
provide any equity or equity-based compensation and such long term-incentive may be cash based;
(iv) employee
benefits and perquisites (excluding post-termination or retirement welfare benefits, retention, short-term or long-term incentive opportunities
and change-in-control benefits) that have an aggregate value which is no less than either (i) the aggregate value of such employee
benefits and perquisites provided to such Merger Partner Employee immediately prior to the Merger Effective Time, or (ii) the employee
benefits and perquisites provided to similarly situated employees of Buyer from time to time; and
(v) to
each Merger Partner Employee whose employment is involuntarily terminated without cause by the Company during the one (1)-year period
following the Merger Effective Time, severance benefits that are no less favorable than the greater of the severance benefits that would
have been provided to the Merger Partner Employee under the applicable member of the Merger Partner Group’s severance arrangements
in effect immediately prior to the Merger Effective Time and set forth on Section 3.16(a) of the Merger Partner Disclosure
Letter and the severance benefits due under the applicable severance plan of Buyer (it being understood that this sentence does not limit
the obligations of Buyer or the Surviving Corporation or one of its Subsidiaries to honor the terms of any Merger Partner Benefit Arrangement
providing severance benefits), in each case, (x) subject to the execution of a release of claims to the extent both permitted by
the terms of the applicable severance arrangement and applicable Laws and customary in the applicable jurisdiction (which release of
claims shall not include restrictive covenants not applicable to the employee as of the date hereof or terms more onerous to the applicable
Merger Partner Employee than those contemplated by the severance arrangement) and (y) determined taking into account each Merger
Partner Employee’s service with the applicable member of the Merger Partner Group (and any predecessor entities) and, after the
Closing, the Surviving Corporation and its Subsidiaries, except as would result in a duplication of benefits.
(b) With
respect to Benefit Arrangements maintained by Buyer or any Subsidiary of Buyer, including the Surviving Corporation and its Subsidiaries,
(including any vacation, paid time-off and severance plans, but excluding any plan providing for qualified or non-qualified defined benefit
pension benefits, nonqualified deferred compensation, or post-termination or retiree health or welfare benefits), for all purposes, including
determining eligibility to participate, level of benefits, vesting and benefit accruals, each Merger Partner Employee’s service
with any member of the Merger Partner Group (and any predecessor thereto), shall be treated as service with Buyer or any Subsidiary of
Buyer, including the Surviving Corporation and its Subsidiaries; provided, however, that such service need not be recognized to
the extent that such recognition would result in any duplication of benefits.
(c) Buyer
shall, or shall cause any Subsidiary of Buyer, including the Surviving Corporation and its Subsidiaries, to use commercially reasonable
efforts to, waive, or cause to be waived, any pre-existing condition limitations, exclusions, evidence of insurability, actively-at-work
requirements and waiting periods under any welfare benefit plan maintained by Buyer or any Subsidiary of Buyer in which Merger Partner
Employees (and their eligible dependents) will be eligible to participate from and after the Merger Effective Time, except to the extent
that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied
or waived under the comparable Merger Partner Benefit Arrangement immediately prior to the Merger Effective Time. Buyer shall, or shall
cause any Subsidiary of Buyer, including the Surviving Corporation, to use commercially reasonable efforts to recognize, or cause to
be recognized, the dollar amount of all co-payments, deductibles and similar expenses incurred by each Merger Partner Employee (and his
or her eligible dependents) during the calendar year in which the Merger Effective Time occurs for purposes of satisfying such year’s
deductible and co-payment limitations under the relevant welfare benefit plans in which such Merger Partner Employee (and dependents)
will be eligible to participate from and after the Merger Effective Time.
(d) Buyer
hereby acknowledges that a “change in control” or “change of control” of the Merger Partner or other term with
similar import, within the meaning of the Merger Partner Benefit Arrangements that contain such terms, will occur upon the Merger Effective
Time; provided that none of such Merger Partner Benefit Arrangements provide for single-trigger vesting.
(e) The
provisions of this Section 6.13 are solely for the benefit of the parties to this Agreement, and no Merger Partner Employee
or other current or former service provider any member of the Merger Partner Group (including any beneficiary or dependent thereof) shall
be regarded for any purpose as a third-party beneficiary of this Agreement, and no provision of this Section 6.13 shall create
such rights in any such individuals. Nothing contained in this Agreement shall: (i) guarantee employment for any period of time
or preclude the ability of Buyer, the Surviving Corporation or their respective Affiliates to terminate the employment of any Merger
Partner Employee at any time and for any reason or no reason; (ii) require Buyer, the Surviving Corporation or any of their
respective Affiliates to continue any Merger Partner Benefit Arrangement or other employee benefit plans, programs or Contracts or prevent
the amendment, modification or termination thereof following the Merger Effective Time; or (iii) amend any Merger Partner Benefit
Arrangements or other employee benefit plans, programs or Contracts.
6.14 R&W
Insurance Policy. Buyer may, prior to Closing, obtain a buyer’s representations and warranties insurance policy (the “R&W
Insurance Policy”). Buyer acknowledges and agrees that (a) the receipt of a representation and warranty insurance policy
is not a condition to the Closing, and (b) none of Remainco, Merger Partner or any of the members of their respective Groups, or
any directors, managers, officers or employees of any of the foregoing, shall be required to execute or deliver any certifications or
other documents in connection with the issuance of the R&W Insurance Policy. The R&W Insurance Policy shall be in the form provided
to Remainco and Merger Partner on the date hereof (subject to any amendments permitted by this Section 6.14). Buyer shall
not, without the prior written consent of Remainco and Merger Partner, amend, modify or waive any provision of the R&W Insurance
Policy in a manner that would have an adverse impact on Remainco or Merger Partner. All premiums, underwriting fees, brokers’ commissions
and other costs and expenses related to such R&W Insurance Policy shall be borne solely by Buyer (or its applicable Affiliate). Remainco
and Merger Partner shall provide information as may be reasonably requested by Buyer in order for Buyer to obtain coverage under and
bind the R&W Insurance Policy.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF MERGER
PARTNER
The obligations of Merger
Partner to effect the Merger are subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions:
7.1 Accuracy
of Representations.
(a) The
representations and warranties of Remainco and Spinco (i) set forth in Section 2.1(b)(i) (Subsidiaries; Due Organization),
Section 2.4 (Authority; Binding Nature of Agreement), Section 2.21 (Financial Advisors) and Section 2.22
(Takeover Statutes) shall be true and correct (without giving effect to any qualification as to materiality, Spinco Material Adverse
Effect or similar qualification set forth therein) in all material respects both when made and at and as of the Closing, as if made at
and as of such time (except to the extent expressly made as of an earlier time, in which case as of such time) and (ii) set forth
in this Agreement and not described in clause (i) shall be true and correct both when made and at and as of the Closing,
as if made at and as of such time (except to the extent expressly made as of an earlier time, in which case as of such time), except
where the failure of such representations and warranties to be so true and correct (A) (without giving effect to any qualification
as to materiality, Spinco Material Adverse Effect or similar qualification set forth therein) individually or in the aggregate (and collectively
with any failures of the representations and warranties of Merger Partner described in Section 9.1(b)(iv) to be true
and correct both when made and at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of
an earlier time, in which case as of such time, and without giving effect to any qualification as to materiality, Merger Partner Material
Adverse Effect or similar qualification set forth therein), has not had, and would not reasonably be expected to have, a Combined Company
Material Adverse Effect, and (B) individually or in the aggregate would not reasonably be expected to prevent or materially delay,
materially interfere with or materially impair the consummation by the applicable members of the Remainco Group of the Equity Sale or
the material Contemplated Transactions. Notwithstanding anything to the contrary contained in this Agreement, if (I) all of the
conditions to the obligations of Buyer, Buyer Sub, Remainco and Spinco in Article IX and Article VIII have been
satisfied or waived (other than one or more of Section 9.1, Section 9.2, Section 8.1 and Section 8.2)
and (II) Buyer irrevocably waives the conditions in Section 9.1 and Section 9.2 to the extent such conditions
have not been satisfied, then the condition set forth in this Section 7.1(a) shall also be deemed to be waived.
(b) The
representations and warranties of Buyer and Buyer Sub set forth in Article IV shall be true and correct both when made and
at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier time, in which case
as of such time), except where the failure of such representations and warranties to be so true and correct (without giving effect to
any qualification as to materiality or similar qualification set forth therein) individually or in the aggregate, has not had, and would
not reasonably be expected to have, a Buyer Material Adverse Effect.
7.2 Performance
of Covenants.
(a) The
covenants and obligations in the Transaction Documents that Remainco, Spinco or the other members of the Spinco Group are required to
comply with or to perform at or prior to the Closing shall have been complied with and performed in all material respects (for purposes
of measuring the materiality of any non-compliance with respect to Section 5.2 and Section 5.3, the Spinco Business
and the Merger Partner Business shall be treated as though they were a single combined business). Notwithstanding anything to the contrary
contained in this Agreement, if (I) all of the conditions to the obligations of Buyer, Buyer Sub, Remainco and Spinco in Article IX
and Article VIII have been satisfied or waived (other than one or more of Section 9.1, Section 9.2,
Section 8.1 and Section 8.2), (II) Buyer irrevocably waives the conditions in Section 9.1 and
Section 9.2 to the extent such conditions have not been satisfied, then the condition set forth in this Section 7.2(a) shall
also be deemed to be waived.
(b) The
covenants and obligations in the Transaction Documents that Buyer or the other Buyer Parties are required to comply with or to perform
at or prior to the Closing shall have been complied with and performed in all material respects.
7.3 Stockholder
Approval. This Agreement shall have been duly adopted by the Required Merger Partner Stockholder Vote.
7.4 [Intentionally
Omitted].
7.5 Required
Governmental Approvals. (a) Any waiting period, and any extensions thereof pursuant to statute, timing agreement, stipulation
or otherwise, applicable to the consummation of the Equity Sale or the Merger under the HSR Act shall have expired or been terminated;
(b) any applicable Governmental Approvals required under the Antitrust Laws of the other jurisdictions listed at Schedule C-1
(collectively with the Governmental Approvals in clause (a), the “Antitrust Approvals”) shall have
been obtained and remain in full force and effect; (c) any applicable Governmental Approvals required under any FDI Laws of the
jurisdictions listed at Schedule C-1 (collectively, the “FDI Approvals”) shall have been obtained and remain
in full force and effect; (d) any applicable Gaming Approvals from the Gaming Authorities listed at Schedule C-2(b) (the
“Applicable Gaming Approvals”) shall have been obtained and remain in full force and effect; and (e) any applicable
Governmental Approvals required under any Financial Services Laws from the Governmental Authorities listed at Schedule C-3 (collectively,
the “Financial Services Approvals”) shall have been obtained and remain in full force and effect, and any waiting
periods relating to such Financial Services Approvals shall have expired or been terminated.
7.6 Closing
Certificate. Merger Partner shall have received (a) a certificate executed by a duly authorized officer (or equivalent) of Remainco
confirming that the conditions set forth in Sections 7.1(a) and 7.2(a) have been duly satisfied (other than,
with respect to Sections 7.1(a) and 7.2(a), to the extent satisfaction of any such condition has been waived
by Buyer) and (b) a certificate executed by a duly authorized officer (or equivalent) of Buyer confirming that the conditions set
forth in Sections 7.1(b) and 7.2(b) have been duly satisfied.
7.7 No
Legal Restraints. No court of competent jurisdiction shall have issued, enacted or entered any Governmental Order that is in effect
that prevents, makes illegal or prohibits the Equity Sale or the Merger.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATION OF REMAINCO
AND SPINCO
The obligations of Remainco
and Spinco to effect the Equity Sale are subject to the satisfaction or waiver, at or prior to the Closing, of each of the following
conditions:
8.1 Accuracy
of Representations.
(a) The
representations and warranties of Merger Partner (i) set forth in Section 3.1(b)(i) (Subsidiaries; Due Organization),
Section 3.4 (Authority; Binding Nature of Agreement), Section 3.21 (Vote Required), Section 3.22
(Financial Advisors) and Section 3.23 (Takeover Statutes) shall be true and correct (without giving effect to any qualification
as to materiality, Merger Partner Material Adverse Effect or similar qualification set forth therein) in all material respects both when
made and at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier time, in which
case as of such time) and (ii) set forth in this Agreement and not described in clause (i) shall be true and correct
both when made and at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier
time, in which case as of such time), except where the failure of such representations and warranties to be so true and correct (A) (without
giving effect to any qualification as to materiality, Merger Partner Material Adverse Effect or similar qualification set forth therein)
individually or in the aggregate (and collectively with any failures of the representations and warranties of Remainco and Spinco described
in Section 9.1(a)(iv) to be true and correct both when made and at and as of the Closing, as if made at and as of such
time (except to the extent expressly made as of an earlier time, in which case as of such time, and without giving effect to any qualification
as to materiality, Spinco Material Adverse Effect or similar qualification set forth therein), has not had, and would not reasonably
be expected to have, a Combined Company Material Adverse Effect, and (B) individually or in the aggregate would not reasonably be
expected to prevent or materially delay, materially interfere with or materially impair the consummation by the applicable members of
the Merger Partner Group of the Merger or the material Contemplated Transactions. Notwithstanding anything to the contrary contained
in this Agreement, if (I) all of the conditions to the obligations of Buyer, Buyer Sub and Merger Partner in Article IX
and Article VII have been satisfied (other than one or more of Section 9.1, Section 9.2, Section 7.1
and Section 7.2), (II) Buyer irrevocably waives the conditions in Section 9.1 and Section 9.2
to the extent such conditions have not been satisfied, then the condition set forth in this Section 8.1(a) shall
be deemed to be waived.
(b) The
representations and warranties of Buyer and Buyer Sub set forth in Article IV shall be true and correct both when made and
at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier time, in which case
as of such time), except where the failure of such representations and warranties to be so true and correct (without giving effect to
any qualification as to materiality or similar qualification set forth therein) individually or in the aggregate, has not had, and would
not reasonably be expected to have, a Buyer Material Adverse Effect.
8.2 Performance
of Covenants.
(a) The
covenants and obligations in the Transaction Documents that Merger Partner or the other members of the Merger Partner Group are required
to comply with or to perform at or prior to the Closing shall have been complied with and performed in all material respects (for purposes
of measuring the materiality of any non-compliance with respect to Section 5.2 and Section 5.3, the Spinco Business
and the Merger Partner Business shall be treated as though they were a single combined business). Notwithstanding anything to the contrary
contained in this Agreement, if (I) all of the conditions to the obligations of Buyer, Buyer Sub and Merger Partner in Article IX
and Article VII have been satisfied (other than one or more of Section 9.1, Section 9.2, Section 7.1
and Section 7.2), (II) Buyer irrevocably waives the conditions in Section 9.1 and Section 9.2
to the extent such conditions have not been satisfied, then the condition set forth in this Section 8.2(a) shall
be deemed to be waived.
(b) The
covenants and obligations in the Transaction Documents that Buyer or the other Buyer Parties are required to comply with or to perform
at or prior to the Closing shall have been complied with and performed in all material respects.
8.3 Stockholder
Approval. This Agreement shall have been duly adopted by the Required Merger Partner Stockholder Vote.
8.4 Separation.
The Separation, including the Transfer of Assets and Assumption of Liabilities contemplated by, as applicable, the Separation Agreement,
the Employee Matters Agreement, the Real Estate Matters Agreement and the other relevant Transaction Documents to occur prior to the
Closing, shall have been consummated in all material respects in accordance with and subject to the terms of the Separation Agreement,
the Employee Matters Agreement, the Intellectual Property License Agreement, the Real Estate Matters Agreement and the other relevant
Transaction Documents. The Spinco Contribution shall have been consummated in accordance with the terms of the Separation Agreement.
The IP License and Technology Agreements, the Rhode Island VLT JV Interest Management Contract, the Rhode Island VLT System Subcontract
and the Transition Services Agreement shall have been executed and delivered by the parties (other than the members of the Remainco Group)
thereto.
8.5 Required
Governmental Approvals. (a) Any waiting period, and any extensions thereof pursuant to statute, timing agreement, stipulation
or otherwise, applicable to the consummation of the Equity Sale or the Merger under the HSR Act shall have expired or been terminated;
(b) the Antitrust Approvals shall have been obtained and remain in full force and effect; (c) the FDI Approvals shall have
been obtained and remain in full force and effect; (d) the Applicable Gaming Approvals shall have been obtained and remain in full
force and effect; and (e) the Financial Services Approvals shall have been obtained and remain in full force and effect, and any
waiting periods relating to such Financial Services Approvals shall have expired or been terminated. None of the Antitrust Approvals,
the FDI Approvals, the Gaming Approvals, the Financial Services Approvals or any other Governmental Order relating to the Contemplated
Transactions shall, individually or in the aggregate, impose or reasonably be expected to require a Remainco Burdensome Action.
8.6 Closing
Certificate. Remainco shall have received (a) a certificate executed by a duly authorized officer (or equivalent) of Merger
Partner confirming that the conditions set forth in Sections 8.1(a) and 8.2(a) have been duly satisfied
(other than to the extent satisfaction of any such condition has been waived by Buyer) and (b) a certificate executed by a duly
authorized officer (or equivalent) of Buyer confirming that the conditions set forth in Sections 8.1(b) and 8.2(b) have
been duly satisfied.
8.7 No
Legal Restraints. No court of competent jurisdiction shall have issued, enacted or entered any Governmental Order that is in effect
that prevents, makes illegal or prohibits the Equity Sale or the Merger.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATION OF BUYER
AND BUYER SUB
The obligations of Buyer
and Buyer Sub to effect the Merger are subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions:
9.1 Accuracy
of Representations.
(a) The
representations and warranties of Remainco and Spinco (i) set forth in Sections 2.3(a), 2.3(b)(i) and 2.3(b)(iii) (other
than the last sentence thereof), in each case, solely with respect to the capitalization of Remainco and Spinco shall be true and correct
both when made and at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier
time, in which case as of such time), except for inaccuracies that are de minimis in the aggregate, (ii) set forth in Section 2.7(b) (Absence
of Certain Changes) shall be true and correct in all respects both when made and at and as of the Closing, as if made at and as of such
time, except where the failure of such representation and warranty to be true and correct, collectively with any failures of the representations
and warranties of Merger Partner described in Section 9.1(b)(ii) to be true and correct when made and at and as of the
Closing, as if made at and as of such time, has not had and would not reasonably be expected to have a Combined Company Material Adverse
Effect, (iii) set forth in Section 2.1(b) (Subsidiaries; Due Organization), Section 2.4 (Authority;
Binding Nature of Agreement), Section 2.21 (Financial Advisors) and Section 2.22 (Takeover Statutes) shall be
true and correct (without giving effect to any qualification as to materiality, Spinco Material Adverse Effect or similar qualification
set forth therein) in all material respects both when made and at and as of the Closing, as if made at and as of such time (except to
the extent expressly made as of an earlier time, in which case as of such time) and (iv) set forth in this Agreement and not described
in clauses (i) through (iii) shall be true and correct both when made and at and as of the Closing, as if made
at and as of such time (except to the extent expressly made as of an earlier time, in which case as of such time), except where the failure
of such representations and warranties to be so true and correct (A) (without giving effect to any qualification as to materiality,
Spinco Material Adverse Effect or similar qualification set forth therein) individually or in the aggregate (and collectively with any
failures of the representations and warranties of Merger Partner described in Section 9.1(b)(iv) to be true and correct
both when made and at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier
time, in which case as of such time, and without giving effect to any qualification as to materiality, Merger Partner Material Adverse
Effect or similar qualification set forth therein), has not had, and would not reasonably be expected to have, a Combined Company Material
Adverse Effect, and (B) individually or in the aggregate, would not reasonably be expected to prevent or materially delay, materially
interfere with or materially impair the consummation by the applicable members of the Remainco Group of the Equity Sale or the material
Contemplated Transactions.
(b) The
representations and warranties of Merger Partner (i) set forth in Sections 3.3(a), 3.3(c) and 3.3(d) (other
than the last sentence thereof) solely with respect to the capitalization of Merger Partner shall be true and correct both when made
and at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier time, in which
case as of such time), except for inaccuracies that are de minimis in the aggregate, (ii) set forth in Section 3.7(b) (Absence
of Certain Changes) shall be true and correct in all respects both when made and at and as of the Closing, as if made at and as of such
time except where the failure of such representation and warranty to be true and correct, collectively with any failures of the representations
and warranties of Remainco and Spinco described in Section 9.1(a)(ii) to be true and correct when made and at and as
of the Closing, as if made at and as of such time, has not had and would not reasonably be expected to have a Combined Company Material
Adverse Effect, (iii) set forth in Section 3.1(b) (Subsidiaries; Due Organization), Section 3.4 (Authority;
Binding Nature of Agreement), Section 3.21 (Vote Required), Section 3.22 (Financial Advisors), Section 3.23
(Takeover Statutes) and Section 3.25 (Fairness Opinion) shall be true and correct (without giving effect to any qualification
as to materiality, Merger Partner Material Adverse Effect or similar qualification set forth therein) in all material respects both when
made and at and as of the Closing, as if made at and as of such time (except to the extent expressly made as of an earlier time, in which
case as of such time) and (iv) set forth in this Agreement and not described in clauses (i) through (iii) shall
be true and correct both when made and at and as of the Closing, as if made at and as of such time (except to the extent expressly made
as of an earlier time, in which case as of such time), except where the failure of such representations and warranties to be so true
and correct (A) (without giving effect to any qualification as to materiality, Merger Partner Material Adverse Effect or similar
qualification set forth therein) individually or in the aggregate (and collectively with any failures of the representations and warranties
of Remainco and Spinco described in Section 9.1(a)(iv) to be true and correct both when made and at and as of the Closing,
as if made at and as of such time (except to the extent expressly made as of an earlier time, in which case as of such time, and without
giving effect to any qualification as to materiality, Spinco Material Adverse Effect or similar qualification set forth therein), has
not had, and would not reasonably be expected to have, a Combined Company Material Adverse Effect, and (B) individually or in the
aggregate would not reasonably be expected to prevent or materially delay, materially interfere with or materially impair the consummation
by the applicable members of the Merger Partner Group of the Merger or the material Contemplated Transactions.
9.2 Performance
of Covenants. (a) The covenants and obligations in the Transaction Documents that Remainco, Spinco or the other members of the
Spinco Group are required to comply with or to perform at or prior to the Closing shall have been complied with and performed in all
material respects (for purposes of measuring the effect of any non-compliance with respect to Section 5.2 and Section 5.3,
the Spinco Business and the Merger Partner Business shall be treated as though they were a single combined business) and (b) the
covenants and obligations in the Transaction Documents that Merger Partner or the other members of the Merger Partner Group are required
to comply with or to perform at or prior to the Closing shall have been complied with and performed in all material respects.
9.3 Stockholder
Approval. This Agreement shall have been duly adopted by the Required Merger Partner Stockholder Vote.
9.4 Separation.
The Separation, including the Transfer of Assets and Assumption of Liabilities contemplated by, as applicable, the Separation Agreement,
the Employee Matters Agreement, the Real Estate Matters Agreement and the other relevant Transaction Documents to occur prior to the
Closing, shall have been consummated in all material respects in accordance with and subject to the terms of the Separation Agreement,
the Employee Matters Agreement, the Intellectual Property License Agreement, the Real Estate Matters Agreement and the other relevant
Transaction Documents. The Spinco Contribution shall have been consummated in accordance with the terms of the Separation Agreement.
The IP License and Technology Agreements, the Rhode Island VLT JV Interest Management Contract, the Rhode Island VLT System Subcontract
and the Transition Services Agreement shall have been executed and delivered by the parties (other than the Buyer Parties) thereto.
9.5 Required
Governmental Approvals. (a) Any waiting period, and any extensions thereof pursuant to statute, timing agreement, stipulation
or otherwise, applicable to the consummation of the Equity Sale or the Merger under the HSR Act shall have expired or been terminated;
(b) the Antitrust Approvals shall have been obtained and remain in full force and effect; (c) the FDI Approvals shall have
been obtained and remain in full force and effect; (d) the Applicable Gaming Approvals shall have been obtained and remain in full
force and effect; and (e) the Financial Services Approvals shall have been obtained and remain in full force and effect, and any
waiting periods relating to such Financial Services Approvals shall have expired or been terminated. None of the Antitrust Approvals,
the FDI Approvals, the Gaming Approvals, the Financial Services Approvals or any other Governmental Order relating to the Contemplated
Transactions shall, individually or in the aggregate, impose or reasonably be expected to require a Remainco Burdensome Action.
9.6 Closing
Certificate. Buyer shall have received (a) a certificate executed by a duly authorized officer (or equivalent) of Remainco confirming
that the conditions set forth in Sections 9.1(a) and 9.2(a) have been duly satisfied (other than to the
extent satisfaction of any such condition has been waived or deemed to been waived) and (b) a certificate executed by a duly authorized
officer (or equivalent) of Merger Partner confirming that the conditions set forth in Sections 9.1(b) and 9.2(b) have
been duly satisfied (other than to the extent satisfaction of any such condition has been waived or deemed to been waived).
9.7 No
Legal Restraints. No court of competent jurisdiction shall have issued, enacted or entered any Governmental Order that is in effect
that prevents, makes illegal or prohibits the Equity Sale or the Merger.
ARTICLE X
TERMINATION
10.1 Termination.
This Agreement may be terminated prior to the Closing (whether before or after the Required Merger Partner Stockholder Vote, except as
otherwise provided below):
(a) by
mutual written consent of Merger Partner, Remainco and Buyer;
(b) by
any of Merger Partner, Remainco or Buyer if the Closing shall not have been consummated on or prior to July 26, 2025 (such applicable
date, the “Outside Date”); provided that (i) if, on such date, any or all of the conditions to Closing
set forth in Sections 7.5, 7.7, 8.5, 8.7, 9.5 or 9.7 shall not have been satisfied but
all other conditions to Closing in Articles VII, VIII and IX shall have been satisfied (or are capable of being
satisfied if the Closing were to occur no later than the extended Outside Date), then the Outside Date shall automatically be extended
to October 26, 2025, in which case the Outside Date shall be deemed for all purposes to be October 26, 2025, (ii) if the
conditions in Sections 7.5, 8.5 and 9.5 are not satisfied on July 15, 2025 but are satisfied on or prior to
July 26, 2025, then the Outside Date shall automatically be extended to September 30, 2025, in which case the Outside Date
shall be deemed for all purposes to be September 30, 2025, (iii) if any or all of the conditions to Closing set forth in Sections 7.5,
7.7, 8.5, 8.7, 9.5 or 9.7 shall not have been satisfied by such date that would allow for both the
Inside Date and the Marketing Period to be completed prior to July 21, 2025, then the Outside Date shall automatically be extended
to October 26, 2025, and in which case the Outside Date shall be deemed for all purposes to be October 26, 2025, and (iv) if
the Marketing Period has commenced but has not been completed on or prior to the then applicable Outside Date, then the Outside Date
shall be automatically extended to the fourth (4th) Business Day following completion of the Marketing Period. Notwithstanding anything
to the contrary contained in this Article X, (A) the Parties may mutually agree in writing to extend the Outside Date,
(B) a Party shall not be permitted to terminate this Agreement pursuant to this Section 10.1(b) if the failure
to consummate the Closing on or before the Outside Date is primarily attributable to a failure on the part of such Party to perform any
covenant or obligation in this Agreement required to be performed by such Party at or prior to the Closing (it being understood that
Remainco and Spinco, on the one hand, and Buyer and Buyer Sub, on the other hand, shall each be considered a single Party for purposes
of this Section 10.1(b)), and (C) in no event shall any Party hereto have the right to terminate pursuant to this Section 10.1(b) prior
to the occurrence of the Inside Date and the Outside Date shall be extended as applicable if, after giving effect to all other applicable
extensions pursuant to this Section 10.1(b), the Inside Date were to be later than such otherwise applicable Outside Date,
until the date that is the third (3rd) Business Day following occurrence of the Inside Date;
(c) by
any of Merger Partner, Remainco or Buyer if a court of competent jurisdiction shall have issued a final and nonappealable Governmental
Order permanently preventing, making illegal or prohibiting the consummation of the Equity Sale or the Merger; provided that a
Party shall not be permitted to terminate this Agreement pursuant to this Section 10.1(c) if such Governmental Order
is primarily attributable to a failure on the part of such Party to perform any covenant or obligation in this Agreement required to
be performed by such Party at or prior to the Closing (it being understood that Remainco and Spinco, on the one hand, and Buyer and Buyer
Sub, on the other hand, shall be considered a single Party for purposes of this Section 10.1(c));
(d) by
any of Merger Partner, Remainco or Buyer if (i) the Merger Partner Stockholders’ Meeting (including any adjournments and postponements
thereof) shall have been held and completed and Merger Partner’s stockholders shall have taken a final vote on the adoption of
this Agreement and (ii) this Agreement shall not have been adopted at the Merger Partner Stockholders’ Meeting (and shall
not have been adopted at any adjournment or postponement thereof) by the Required Merger Partner Stockholder Vote;
(e) by
Remainco or Buyer (at any time prior to the adoption of this Agreement by the Required Merger Partner Stockholder Vote) if a Merger Partner
Triggering Event shall have occurred;
(f) by
Merger Partner (at any time prior to the adoption of this Agreement by the Required Merger Partner Stockholder Vote) to enter into a
definitive agreement to consummate a Merger Partner Superior Proposal in accordance with Section 6.2(c); provided that (i) such
Merger Partner Superior Proposal did not result from a material breach of Section 5.5(a) and is not withdrawn, (ii) Merger
Partner has complied in all respects with Section 6.2(c) and (iii) prior to or concurrently with such termination,
Merger Partner pays the Merger Partner Termination Fee due under Section 10.3(b);
(g) by
Buyer if (i) any of Merger Partner’s representations and warranties contained in this Agreement shall be or have become inaccurate
such that the condition set forth in Section 9.1(b) would not then be satisfied or (ii) any of Merger Partner’s
covenants or obligations contained in this Agreement or the other Transaction Documents shall have been breached or not performed such
that the condition set forth in Section 9.2(b) would not then be satisfied; provided that, for purposes of clauses (i) and
(ii) above, if an inaccuracy in any of Merger Partner’s representations and warranties (as of the date hereof or as
of a date subsequent to the date hereof) or a breach or nonperformance of a covenant or obligation by Merger Partner is curable by Merger
Partner on or before the Outside Date and Merger Partner is continuing to exercise reasonable best efforts to cure such inaccuracy, breach
or nonperformance, then Buyer may not terminate this Agreement under this Section 10.1(g) on account of such inaccuracy,
breach or nonperformance unless such inaccuracy, breach or nonperformance shall remain uncured as of the earlier of (A) the end
of the thirty (30)-day period commencing on the date that Buyer gives Merger Partner notice of such inaccuracy, breach or nonperformance
and (B) the date that is three (3) Business Days prior to the Outside Date; provided that (1) Buyer may not terminate
this Agreement pursuant to this Section 10.1(g) if Buyer is then in breach of this Agreement in any material respect
and (2) if Buyer fails to terminate this Agreement within thirty (30) days after it has provided Merger Partner notice of such inaccuracy,
breach or nonperformance (provided that such thirty (30)-day period shall be tolled at any time during which Buyer is undertaking
efforts to address such inaccuracy, breach or nonperformance (I) by seeking specific performance, (II) by other means; provided,
that in the case of this clause (II), such thirty (30)-day period shall not be tolled beyond an additional thirty (30) days (i.e.
sixty (60) days in total) without the prior written consent of Remainco), then Buyer shall have irrevocably waived the right to terminate
this Agreement with respect to such breaches;
(h) by
Buyer if (i) any of Remainco’s or Spinco’s representations and warranties contained in this Agreement shall be or have
become inaccurate such that the condition set forth in Section 9.1(a) would not then be satisfied or (ii) any of
Remainco’s or Spinco’s covenants or obligations contained in this Agreement or the other Transaction Documents shall have
been breached or not performed such that the condition set forth in Section 9.2(a) would not then be satisfied; provided
that, for purposes of clauses (i) and (ii) above, if an inaccuracy in any of Remainco’s or Spinco’s
representations and warranties (as of the date hereof or as of a date subsequent to the date hereof) or a breach or nonperformance of
a covenant or obligation by Remainco or Spinco is curable by Remainco or Spinco on or before the Outside Date and Remainco and Spinco
are continuing to exercise reasonable best efforts to cure such inaccuracy, breach or nonperformance, then Buyer may not terminate this
Agreement under this Section 10.1(h) on account of such inaccuracy, breach or nonperformance unless such inaccuracy,
breach or nonperformance shall remain uncured as of the earlier of (A) the end of the thirty (30)-day period commencing on the date
that Buyer gives Remainco notice of such inaccuracy, breach or nonperformance and (B) the date that is three (3) Business Days
prior to the Outside Date; provided that (1) Buyer may not terminate this Agreement pursuant to this Section 10.1(h) if
Buyer is then in breach of this Agreement in any material respect and (2) if Buyer fails to terminate this Agreement within thirty
(30) days after it has provided Remainco notice of such inaccuracy, breach or nonperformance (provided that such thirty (30)-day
period shall be tolled at any time during which Buyer is undertaking efforts to address such inaccuracy, breach or nonperformance (I) by
seeking specific performance, (II) by other means; provided, that in the case of this clause (II), such thirty (30)-day
period shall not be tolled beyond an additional thirty (30) days (i.e. sixty (60) days in total) without the prior written consent of
Merger Partner), then Buyer shall have irrevocably waived the right to terminate this Agreement with respect to such breaches;
(i) by
Remainco or Merger Partner if (x) any of Buyer’s or Buyer Sub’s representations and warranties contained in this Agreement
shall be or have become inaccurate such that the conditions set forth in Section 7.1(b) or Section 8.1(b) would
not then be satisfied, or (y) any of Buyer’s or Buyer Sub’s covenants or obligations contained in this Agreement or
the other Transaction Documents shall have been breached or not performed such that the conditions set forth in Section 7.2(b) or
Section 8.2(b) would not then be satisfied; provided that:
(i) for
purposes of clauses (x) and (y) above, if an inaccuracy in any of Buyer’s or Buyer Sub’s representations
and warranties (as of the date hereof or as of a date subsequent to the date hereof) or a breach or nonperformance of a covenant or obligation
by Buyer or Buyer Sub is curable by Buyer or Buyer Sub on or before the Outside Date and Buyer or Buyer Sub is continuing to exercise
reasonable best efforts to cure such inaccuracy, breach or nonperformance, then Remainco and Merger Partner may not terminate this Agreement
under this Section 10.1(i) on account of such inaccuracy, breach or nonperformance unless such inaccuracy, breach or
nonperformance shall remain uncured as of the earlier of (A) the end of the thirty (30) day period commencing on the date that
Remainco or Merger Partner gives Buyer notice of such inaccuracy, breach or nonperformance and (B) the date that is three (3) Business
Days prior to the Outside Date;
(ii) (A) Remainco
may not terminate this Agreement pursuant to this Section 10.1(i) if Remainco is then in breach of this Agreement in
any material respect and (B) Merger Partner may not terminate this Agreement pursuant to this Section 10.1(i) if
Merger Partner is then in breach of this Agreement in any material respect; and
(iii) (A) Remainco
shall not have a right to terminate this Agreement pursuant to this Section 10.1(i) with respect to a material breach
by Buyer or Buyer Sub of any covenant or obligation solely affecting Merger Partner and (B) Merger Partner shall not have a right
to terminate this Agreement pursuant to this Section 10.1(i) with respect to a material breach by Buyer or Buyer Sub
of any covenant or obligation solely affecting Remainco or Spinco; or
(j) by
Remainco if (i) any of Merger Partner’s representations and warranties contained in this Agreement shall be or have become
inaccurate such that the condition set forth in Section 8.1(a) would not then be satisfied or (ii) any of Merger
Partner’s covenants or obligations contained in this Agreement or the other Transaction Documents shall have been breached or not
performed such that the condition set forth in Section 8.2(a) would not then be satisfied; provided that, for
purposes of clauses (i) and (ii) above, if an inaccuracy in any of Merger Partner’s representations
and warranties (as of the date hereof or as of a date subsequent to the date hereof) or a breach or nonperformance of a covenant or obligation
by Merger Partner is curable by Merger Partner on or before the Outside Date and Merger Partner is continuing to exercise reasonable
best efforts to cure such inaccuracy, breach or nonperformance, then Remainco may not terminate this Agreement under this Section 10.1(j) on
account of such inaccuracy, breach or nonperformance unless such inaccuracy, breach or nonperformance shall remain uncured as of the
earlier of (A) the end of the thirty (30) day period commencing on the date that Remainco gives Merger Partner notice
of such inaccuracy, breach or nonperformance and (B) the date that is three (3) Business Days prior to the Outside Date; provided
that (1) Remainco may not terminate this Agreement pursuant to this Section 10.1(j) if Remainco is then in
breach of this Agreement in any material respect and (2) Remainco shall only have the right to terminate this Agreement pursuant
to this Section 10.1(j) if the breaches giving rise to such right to terminate this Agreement adversely affect Remainco;
(k) by
Merger Partner if (i) any of Remainco’s or Spinco’s representations and warranties contained in this Agreement shall
be or have become inaccurate such that the condition set forth in Section 7.1(a) would not then be satisfied or (ii) any
of Remainco’s or Spinco’s covenants or obligations contained in this Agreement or the other Transaction Documents shall have
been breached or not performed such that the condition set forth in Section 7.2(a) would not then be satisfied; provided
that, for purposes of clauses (i) and (ii) above, if an inaccuracy in any of Remainco’s or Spinco’s
representations and warranties (as of the date hereof or as of a date subsequent to the date hereof) or a breach or nonperformance of
a covenant or obligation by Remainco or Spinco is curable by Remainco or Spinco on or before the Outside Date and Remainco and Spinco
are continuing to exercise reasonable best efforts to cure such inaccuracy, breach or nonperformance, then Merger Partner may not terminate
this Agreement under this Section 10.1(k) on account of such inaccuracy, breach or nonperformance unless such inaccuracy,
breach or nonperformance shall remain uncured as of the earlier of (A) the end of the thirty (30) day period commencing on
the date that Merger Partner gives Remainco notice of such inaccuracy, breach or nonperformance and (B) the date that is three (3) Business
Days prior to the Outside Date; provided that (1) Merger Partner may not terminate this Agreement pursuant to this Section 10.1(k) if
Merger Partner is then in breach of this Agreement in any material respect and (2) Merger Partner shall only have the right to terminate
this Agreement pursuant to this Section 10.1(k) if the breaches giving rise to such right to terminate this Agreement
adversely affect Merger Partner; or
(l) by
Remainco or Merger Partner if (i) the Marketing Period has been completed, (ii) all of the conditions set forth in Article IX
shall have been satisfied or, to the extent permitted, waived (other than those conditions that by their nature are to be satisfied
at the Closing, but subject to such conditions being capable of being satisfied at the Closing), (iii) Remainco and Merger Partner
have each delivered to Buyer confirmation in writing at least three (3) Business Days prior to such termination (or, if the Outside
Date would fall within such three (3) Business Day period, by the Outside Date) that all of the conditions set forth in Article VII
and Article VIII have been satisfied (or are waived effective as of immediately prior to the Closing, but subject to
the Closing occurring) and that Remainco or Merger Partner, as applicable, is ready, willing and able to consummate the Equity Sale or
the Merger (as applicable) and the Closing during such three (3) Business Day period (or, if the Outside Date falls within such
three (3) Business Day period, by the Outside Date) and (iv) Buyer or Buyer Sub (as applicable) fails to consummate the Equity
Sale or the Merger at the time the Equity Sale or the Merger were required to be consummated pursuant to Section 1.3 of this
Agreement and Section 2.1 of the Separation Agreement, including the deposit of the Payment Fund with the Paying Agent pursuant
to Section 1.8 of this Agreement and the payment of the Estimated Purchase Price to Remainco pursuant to Section 2.2
of the Separation Agreement.
Prior to terminating this Agreement pursuant
to Section 10.1(b), Section 10.1(i) or Section 10.1(l), Remainco and Merger Partner shall consult
with each other and consider the views of the other; provided that such consultation and consideration shall not be required to
be for more than one (1) Business Day and in no event shall any consultation or consideration be required if it would materially
prejudice the rights of, or materially adversely affect, Remainco or Merger Partner.
10.2 Effect
of Termination. In the event of the termination of this Agreement as provided in Section 10.1, this Agreement shall be
of no further force or effect; provided that (a) this Section 10.2, Section 10.3 and Article XI
shall survive the termination of this Agreement and shall remain in full force and effect; (b) the Confidentiality Agreements
shall survive the termination of this Agreement and shall remain in full force and effect in accordance with its terms; (c) the
indemnification or reimbursement obligations of Buyer pursuant to Section 6.3(l) and Section 6.8(e) of
this Agreement shall remain in full force and effect and survive the termination of this Agreement; and (d) the termination of this
Agreement shall not relieve any Party from any liability for Fraud or any Intentional Breach of any representation, warranty, covenant,
obligation or other provision contained in this Agreement prior to the termination of this Agreement; provided that, in the event
of a termination of this Agreement, then notwithstanding anything in this Agreement or any other Transaction Document to the contrary,
in no event shall the maximum aggregate liability of the Buyer Related Parties, collectively, arising from this Agreement and the other
Transaction Documents (including the amounts that may be payable by the Guarantors pursuant to and in accordance with the terms of the
Guaranty), including damages for Fraud, Intentional Breach or any other breach, whether willful, intentional, unintentional or otherwise
or monetary damages in lieu of specific performance, exceed the an amount equal to the “Maximum Aggregate Amount” set forth
in the Guaranty (such amount, the “Maximum Liability Amount”), subject in all respects to the limitations set forth
in Section 10.3(g), except with respect to Remainco and Merger Partner’s respective rights in connection with claims
against the parties to the applicable Confidentiality Agreements to which Remainco or Merger Partner, as applicable, are party.
10.3 Fees
and Expenses.
(a) Except
as set forth in Section 6.3(l), Section 6.8, this Section 10.3 or otherwise in any of the Transaction
Documents, all fees and expenses incurred in connection with the Transaction Documents and the Contemplated Transactions, including fees
and disbursements of outside legal counsel, financial advisors and independent accountants, shall be paid by the Party incurring such
expenses, whether or not the Closing occurs; provided that whether or not the Closing occurs, Merger Partner and Remainco shall
share equally (i) all printing and mailing costs associated with the Merger Partner Proxy Statement and (ii) all SEC filing
fees that are incurred prior to Closing relating to the Contemplated Transactions.
(b) If:
(i) this
Agreement is terminated pursuant to Section 10.1(e);
(ii) this
Agreement is terminated pursuant to Section 10.1(f); or
(iii) this
Agreement is terminated (A) pursuant to Section 10.1(d) or (B) pursuant to Section 10.1(g) or
Section 10.1(j), and (1)(I) in the case of a termination pursuant to Section 10.1(d), after the date hereof
but before the Merger Partner Stockholders’ Meeting an Acquisition Proposal with respect to Merger Partner shall have been made
directly to stockholders of Merger Partner or shall have been publicly announced to or shall have become publicly known by the stockholders
of Merger Partner generally or (II) in the case of a termination pursuant to Section 10.1(g) or Section 10.1(j),
after the date hereof an Acquisition Proposal with respect to Merger Partner shall have been made to Merger Partner or shall have become
known to Merger Partner and (2) within twelve (12) months after such termination Merger Partner shall have entered into a definitive
agreement to consummate, or shall have consummated, an Acquisition Transaction that (I) involves the Person or group that made the
Acquisition Proposal referred to in clause (1) or any of the Affiliates of any such Person or any member of such group
or (II) is for consideration that is greater than the consideration contemplated by the Acquisition Proposal described in clause (1);
provided, for purposes of this Section 10.3(b)(iii), all instances of twenty percent (20%) in the definition of Acquisition
Transaction shall be deemed to be fifty percent (50%);
then Merger Partner shall pay to each of Remainco
and Buyer, in cash by wire transfer of same-day funds, (x) in the case of clause (b)(i) above, within three (3) Business
Days after termination of this Agreement, a nonrefundable fee in an amount equal to its Pro Rata Portion of $65,000,000 (the “Merger
Partner Termination Fee”), (y) in the case of clause (b)(ii) above, prior to or concurrently with such termination
of this Agreement, an amount equal to its Pro Rata Portion of the Merger Partner Termination Fee and (z) in the case of clause (b)(iii) above,
upon the earlier of (1) the execution of the definitive agreement to effect such Acquisition Proposal referred to in Section 10.3(b)(iii)(2)(I) and
(2) the consummation of such Acquisition Proposal referred to in Section 10.3(b)(iii)(2)(II), an amount equal to its
Pro Rata Portion of the Merger Partner Termination Fee.
(c) If
this Agreement is terminated (i)(A) pursuant to Section 10.1(d), (B) pursuant to Section 10.1(g) or
(C) pursuant to Section 10.1(i) and (ii) Buyer or any of its Affiliates enters into a definitive agreement
with Merger Partner or any of its Affiliates to consummate an Acquisition Transaction with respect to Merger Partner within twelve (12)
months of the date of such termination and consummates such Acquisition Transaction, Buyer shall pay to Remainco, in cash by wire transfer
of same-day funds upon the consummation of the Acquisition Transaction contemplated by such definitive agreement (a “Merger
Partner Tail Transaction”), (I) in the case of termination pursuant to Section 10.1(d), a nonrefundable fee
in the amount of $40,000,000 (the “Buyer No Vote Termination Fee”) or (II) in the case of termination pursuant
to Section 10.1(g) or Section 10.1(i), a nonrefundable fee in the amount of $80,000,000 (the “Buyer
Subsequent Deal Termination Fee”); provided that for purposes of this Section 10.3(c), all instances of
twenty percent (20%) in the definition of Acquisition Transaction shall be deemed to be fifty percent (50%). The Parties acknowledge
and agree that payment of the Buyer No Vote Termination Fee or the Buyer Subsequent Deal Termination Fee, as applicable, in accordance
with the terms of this Section 10.3(c), shall be a condition precedent to the consummation of the transactions contemplated
by any Merger Partner Tail Transaction.
(d) If
this Agreement is terminated (i)(A) pursuant to Section 10.1(h) or (B) pursuant to Section 10.1(i) and
(ii) Buyer or any of its Affiliates enters into a definitive agreement with Remainco or any of its Affiliates to consummate an Acquisition
Transaction with respect to Spinco or the Spinco Business within twelve (12) months of the date of such termination and consummates such
Acquisition Transaction, Buyer shall pay to Merger Partner, in cash by wire transfer of same-day funds upon the consummation of the Acquisition
Transaction contemplated by such definitive agreement (a “Spinco Tail Transaction”), the Buyer Subsequent Deal Termination
Fee; provided that for purposes of this Section 10.3(d), all instances of twenty percent (20%) in the definition of
Acquisition Transaction shall be deemed to be fifty percent (50%). The Parties acknowledge and agree that payment of the Buyer Subsequent
Deal Termination Fee in accordance with the terms of this Section 10.3(d) shall be a condition precedent to the consummation
of the transactions contemplated by any Spinco Tail Transaction.
(e) If:
(i) this
Agreement is terminated pursuant to (A) Section 10.1(i) at a time when Buyer was not entitled to terminate this
Agreement pursuant to Section 10.1 or (B) Section 10.1(l); or
(ii) this
Agreement is terminated (A) pursuant to Section 10.1(b) or (B) pursuant to Section 10.1(c), and
(1) in the case of a termination pursuant to Section 10.1(b), at the time of such termination all of the conditions
to the Closing set forth in Article VII, Article VIII and Article IX are satisfied or are capable
of being satisfied other than (I) one or more of the conditions set forth in Sections 7.5, 8.5 and 9.5,
(II) one or more of the conditions set forth in Sections 7.7, 8.7 and 9.7 if the Governmental Order relates
to or was issued on the basis of any Antitrust Law, any FDI Law, any Gaming Law under the purview of any Gaming Authority on Schedule
C-2 or any Financial Services Law relating to or sought by any Governmental Authority listed on Schedule C-3, (III) those
conditions that by their nature are to be satisfied at the Closing and are reasonably capable of being satisfied, and (IV) those
conditions that are not satisfied, in whole or in part, because of any breach by Buyer or Buyer Sub of this Agreement or any other Transaction
Document or (2) in the case of a termination pursuant to Section 10.1(c), in the event that such Governmental Order
relates to or was issued on the basis of (I) any Antitrust Law or any FDI Law or (II) any Gaming Law under the purview of any
Gaming Authority on Schedule C-2 or any Financial Services Law relating to or sought by any Governmental Authority listed on Schedule
C-3;
then
Buyer shall pay to each of Merger Partner and Remainco, in cash by wire transfer of same-day funds within three (3) Business Days
after termination of this Agreement, (I) in the case of clause (e)(ii) above, a nonrefundable fee in an
amount equal to its Pro Rata Portion of $250,000,000 (the “Buyer Regulatory Termination Fee”) or (II) in the
case of clause (e)(i) above, a nonrefundable fee in an amount equal to its Pro Rata Portion of $250,000,000 (the “Buyer
Breach Termination Fee”); provided that if the Agreement is terminated pursuant to Section 10.1(i) and
either Remainco or Merger Partner is then in breach of this Agreement such that Buyer could have terminated the Agreement pursuant to
Section 10.1(g) or Section 10.1(h) if clause (1) of the third to last proviso in each such
provision were disregarded, the Party that is in breach of this Agreement is not entitled to, and Buyer is not required to pay to such
Party, its Pro Rata Portion of the Buyer Breach Termination Fee, as applicable. Notwithstanding the foregoing, if (A) a Governmental
Authority has delivered a writing or other official communication to Remainco that conditions (1) its issuance or grant of a Gaming
Approval, an Antitrust Approval, a FDI Approval or a Financial Services Approval or (2) its decision not to seek a Governmental
Order to prevent, make illegal or prohibit the Contemplated Transactions under any Antitrust Law, any FDI Law, any Gaming Law or any
Financial Services Law, as applicable, on Remainco taking any action with respect to the Remainco Retained Business, (B) Remainco
has confirmed in writing to Merger Partner and Buyer that Remainco is not willing to take such action, (C) Buyer and its Affiliates
have offered to such Governmental Authority any and all actions and remedies that Buyer or any such Affiliate is required by this Agreement
to so offer and (D) the failure to receive such Gaming Approval, Antitrust Approval, FDI Approval or Financial Services Approval
results in the termination of this Agreement or such Governmental Authority seeks and obtains a Governmental Order resulting in the termination
of this Agreement, then Buyer shall not be required to pay the Buyer Regulatory Termination Fee.
(f)
(i) Notwithstanding
anything to the contrary contained in this Agreement, but subject in all respects to Section 10.3(g) and, with respect
to the liabilities of Buyer or any Buyer Related Party, to the Maximum Liability Amount, the rights of Buyer, Merger Partner and Remainco
under this Section 10.3 are independent of and in addition to such rights and remedies Buyer, Merger Partner and Remainco
may have under Section 11.14 or at law, in equity, in contract, in tort or otherwise for Fraud or any Intentional Breach;
provided, that, to the fullest extent permitted under applicable Law, none of Buyer, Buyer Sub, any of the Buyer Related Parties
or any of the Debt Financing Sources will have any liability to Remainco, Merger Partner, their respective Related Parties, whether at
Law or equity, in contract in tort or otherwise, arising from or in connection with any breach by Buyer or Buyer Sub of any of their
representations, warranties, covenants or agreements contained in this Agreement or the other Transaction Documents or arising from any
claim or cause of action that any member of the Remainco Group or Merger Partner Group may have relating to this Agreement, the Separation
Agreement, the other Transaction Documents or the Contemplated Transactions (including a failure to effect the Equity Sale, the Merger
or the Closing as and when required pursuant to the terms of this Agreement and the Separation Agreement) and, to the fullest extent
permitted by Law, none of Remainco, Merger Partner, their respective Related Parties will have any rights or claims against Buyer, Buyer
Sub, any Buyer Related Parties or any Debt Financing Sources relating to any such matters other than: (A) the rights of Remainco
and Merger Partner to an injunction, specific performance or other equitable relief in accordance with Section 11.14; (B) the
rights of Remainco and Merger Partner to specific performance to cause Buyer to enforce the Equity Commitment Letter in accordance with,
and subject to, the terms and conditions thereof; (C) the rights of Remainco and Merger Partner against each Guarantor under, if,
as and when permitted pursuant to the terms and conditions of the Guaranty; (D) the right of Remainco and Merger Partner to seek
and recover (I)(a) the Buyer Breach Termination Fee or the Buyer Regulatory Termination Fee and (b) the Buyer Enforcement Costs,
(II)(a) the Buyer Subsequent Deal Termination Fee or the Buyer No Vote Termination Fee and (b) the Buyer Enforcement Costs,
(III) the rights of Remainco and Merger Partner to seek recovery of monetary damages incurred or suffered as a result of Buyer’s
or Buyer Sub’s Fraud or an Intentional Breach prior to the termination of this Agreement from Buyer and Buyer Sub (or the Guarantors
pursuant to and in accordance with the terms of the Guaranty) (a “Buyer Pre-Closing Damages Proceeding”), (IV) reimbursement
of the Specified Costs (subject to the Specified Cost Cap) pursuant to Section 6.3(l) or (V) the reimbursement
and indemnification obligations, if, when and as due pursuant to pursuant to Section 6.8(e), in each case, if, when and as
due pursuant to the applicable section of this Agreement, it being understood and agreed that Remainco and Merger Partner (and their
respective Related Parties) shall be entitled to recover with respect to the foregoing clauses (I) through (V) only under one
of the following combinations (in each case, in the aggregate up to the Maximum Liability Amount, and for avoidance of doubt, if multiple
combinations are payable, then the highest combination shall be paid up to the Maximum Liability Amount): (x) recovery pursuant
to any permutation of the foregoing clauses (I) and/or (V), or (y) recovery pursuant to any permutation of the foregoing clauses
(II), (III), (IV) and/or (V) (and, for the avoidance of doubt, in each case subject to the amount of the Maximum Liability
Amount and the terms and conditions of this Section 10.3(f)(i)); (E) the rights of Remainco and Merger Partner against
Apollo Management X, L.P., solely in accordance with, and subject to the terms and conditions of, each of their respective Confidentiality
Agreements; (F) the rights of Remainco and Merger Partner (1) against Buyer or Buyer Sub under the Transaction Documents (other
than this Agreement) to which they are party prior to the Closing and (2) to specifically enforce the VoteCo Support Agreement against
VoteCo; and (G) from and after Closing, the rights of Remainco under this Agreement or the rights of any member of the Remainco
Group under any Transaction Document to which it is a party (the matters described in clauses (A) through (G), the
“Buyer Permitted Claims”).
(ii) Notwithstanding
anything to the contrary contained in this Agreement, but subject in all respects to Sections 10.3(g) and 11.16, to
the fullest extent permitted under applicable Law, none of Merger Partner, Remainco, Spinco or any of their respective Related Parties
will have any liability to Buyer, Buyer Sub, their respective Related Parties, whether at Law or equity, in contract in tort or otherwise,
arising from or in connection with any breach by Merger Partner, Remainco or Spinco of any of their representations, warranties, covenants
or agreements contained in this Agreement or the other Transaction Documents or arising from any claim or cause of action that Buyer
or any of its Affiliates may have relating to this Agreement, the Separation Agreement, the other Transaction Documents or the Contemplated
Transactions (including a failure to effect the Equity Sale, the Merger or the Closing as and when required pursuant to the terms of
this Agreement and the Separation Agreement) and, to the fullest extent permitted by Law, none of Buyer, Buyer Sub and their respective
Related Parties will have any rights or claims against Merger Partner, Remainco, Spinco or any of their respective Related Parties relating
to any such matters other than: (A) the rights of Buyer and Buyer Sub to an injunction, specific performance or other equitable
relief in accordance with Section 11.14, (B) the right of Buyer and Buyer Sub to seek and recover (I)(a) the Merger
Partner Termination Fee and (b) the Merger Partner Enforcement Costs, (II) the rights of Buyer and Buyer Sub to seek recovery
of monetary damages incurred or suffered as a result of Remainco’s or Spinco’s Fraud or an Intentional Breach prior to the
termination of this Agreement from Remainco, or (III) the rights of Buyer and Buyer Sub to seek recovery of monetary damages incurred
or suffered as a result of Merger Partner’s Fraud or an Intentional Breach prior to the termination of this Agreement from Merger
Partner, in each case, if, when and as due pursuant to the applicable section of this Agreement, it being understood and agreed that
Buyer and Buyer Sub (and their respective Related Parties) shall be entitled to recover with respect to the foregoing clauses (I) through
(III) only under one of the following combinations: (y) recovery pursuant to the foregoing clause (I) and/or (II) or
(z) recovery pursuant to any permutation of the foregoing clauses (II) and/or (III) (and, for the avoidance of doubt,
in each case subject to the terms and conditions of this Section 10.3(f))); (C)(1) the rights of Buyer and Buyer Sub
against Remainco and Merger Partner under the Transaction Documents (other than this Agreement) to which they are a party prior to the
Closing and (2) from and after Closing, the rights of Buyer against a member of the Remainco Group as expressly set forth under
this Agreement or in any Transaction Document to which they are a party; and (D) the rights of Apollo Management X, L.P. against
Remainco and Merger Partner, solely in accordance with, and subject to the terms and conditions of, each of the Non-Disclosure Agreement
dated as of July 24, 2024 between Apollo Management X, L.P. and Merger Partner or the Non-Disclosure Agreement dated as of July 24,
2024 between Apollo Management X, L.P. and Remainco, as applicable (the matters described in clauses (A) through (D),
the “Seller Permitted Claims”).
(iii) For
the avoidance of doubt, Buyer, Merger Partner and Remainco may simultaneously pursue (i) a grant of specific performance pursuant
to Section 11.14, (ii) its rights and remedies at law, in equity, in contract, in tort or otherwise, and (iii) payment
of the Merger Partner Termination Fee, the Buyer No Vote Termination Fee, the Buyer Subsequent Deal Termination Fee, the Buyer Regulatory
Termination Fee or the Buyer Breach Termination Fee, in each case under circumstances where such fee becomes payable pursuant to this
Section 10.3; provided that in no event may (v) Remainco receive both (1) (A) its Pro Rata Portion
of the Merger Partner Termination Fee pursuant to Section 10.3(b), (B) the Buyer No Vote Termination Fee pursuant to
Section 10.3(c) or (C) the Buyer Subsequent Deal Termination Fee pursuant to Section 10.3(c) and
(2) specific performance to cause Merger Partner to consummate the Merger; (w) Buyer receive both (1) its Pro Rata Portion
of the Merger Partner Termination Fee pursuant to Section 10.3(b) and (2) (A) specific performance to cause
Merger Partner to consummate the Merger or (B) recovery of monetary damages incurred or suffered as a result of Merger Partner’s
Fraud or Intentional Breach prior to the termination of this Agreement; (x) Remainco receive both (1) (A) the Buyer No
Vote Termination Fee pursuant to Section 10.3(c) or (B) the Buyer Subsequent Deal Termination Fee pursuant to Section 10.3(c) and
(2) specific performance to cause Buyer to consummate the Equity Sale; (y) Merger Partner receive both (1) the Buyer Subsequent
Deal Termination Fee pursuant to Section 10.3(d) and (2) specific performance to cause Buyer or Remainco to consummate
the Merger; or (z) Remainco and Merger Partner receive both (1) (A) their respective Pro Rata Portions of the Buyer Regulatory
Termination Fee pursuant to Section 10.3(e) or (B) their respective Pro Rata Portions of the Buyer Breach Termination
Fee pursuant to Section 10.3(e) and (2) (A) specific performance to cause Buyer to consummate the Equity Sale
and the Merger or (B) recovery of monetary damages incurred or suffered as a result of Buyer or Buyer Sub’s Fraud or Intentional
Breach prior to the termination of this Agreement.
(iv) If
a court has granted an award of damages in connection with any breach by Buyer, Buyer Sub, Remainco or Spinco of the terms or conditions
set forth in this Agreement, then Merger Partner may, on behalf of its stockholders and holders of Merger Partner Equity Awards, accept
damages for such breach, and Buyer, Buyer Sub, Remainco and Spinco agree that such damages shall not be limited to reimbursement of expenses
or out-of-pocket costs, and shall, in addition to any damage to Merger Partner, include the benefit of the bargain lost by its stockholders
or holders of Merger Partner Equity Awards (taking into consideration all relevant matters, including the loss of the expected premium,
other combination opportunities and the time value of money); provided, that, the foregoing shall be subject in all respects to
Sections 10.2 and 10.3(g) and, with respect to the Liabilities of Buyer or any Buyer Related Party, to the Maximum
Liability Amount.
(g)
(i) Remainco’s
receipt of (A) its Pro Rata Portion of the Merger Partner Termination Fee if, as and when required to be paid pursuant to Section 10.3(b),
(B) the Buyer No Vote Termination Fee if, as and when required to be paid pursuant to Section 10.3(c), (C) the
Buyer Subsequent Deal Termination Fee if, as and when required to be paid pursuant to Section 10.3(c), (D) its Pro Rata
Portion of the Buyer Regulatory Termination Fee if, as and when required to be paid pursuant to Section 10.3(e) or (E) its
Pro Rata Portion of the Buyer Breach Termination Fee if, as and when required to be paid pursuant to Section 10.3(e), shall
not constitute a penalty but shall be liquidated damages in a reasonable amount that will compensate Remainco in the circumstances in
which such Pro Rata Portion of the Merger Partner Termination Fee, such Buyer No Vote Termination Fee, such Buyer Subsequent Deal Termination
Fee, such Pro Rata Portion of the Buyer Regulatory Termination Fee or such Pro Rata Portion of the Buyer Breach Termination Fee, as applicable,
is payable for the efforts and resources expended and opportunities foregone while negotiating the Transaction Documents and in reliance
on this Agreement and on the expectation of the consummation of the Contemplated Transactions, which amount would otherwise be impossible
to calculate with precision. Notwithstanding anything to the contrary contained in this Agreement, the Parties agree that if actually
paid in full, except (x) in the case of Fraud or Intentional Breach with respect to Merger Partner, or with respect to Buyer or
Buyer Sub solely if the fee that was paid was the Buyer No Vote Termination Fee or the Buyer Subsequent Deal Termination Fee (with no
such exception for Fraud or Intentional Breach applying to the Buyer Regulatory Termination Fee or the Buyer Breach Termination Fee)
(in any event, which damages or liabilities for such Fraud or Intentional Breach shall remain subject, with respect to Buyer, to the
Maximum Liability Amount) or (y) reimbursement of the Specified Costs (subject to the Specified Cost Cap) pursuant to Section 6.3(l) and
the reimbursement and indemnification obligations, if, when and as due pursuant to pursuant to Section 6.8(e) (if applicable,
and subject in all respects to the Maximum Liability Amount), the Pro Rata Portion of the Merger Partner Termination Fee, the Buyer No
Vote Termination Fee, the Buyer Subsequent Deal Termination Fee, the Pro Rata Portion of the Buyer Regulatory Termination Fee or the
Pro Rata Portion of the Buyer Breach Termination Fee, as applicable, shall represent the sole and exclusive remedy of the members of
the Remainco Group for any loss suffered as a result of the failure of the Contemplated Transactions to be consummated or for a breach
or failure to perform hereunder or otherwise relating to or arising out of this Agreement, the Separation Agreement, any other Transaction
Document or the Contemplated Transactions and the members of the Remainco Group shall not be entitled to bring or maintain any other
claim, Action or proceeding against Merger Partner, Buyer, their respective Related Parties or any Debt Financing Sources, shall be precluded
from any other remedy against the other, at law or in equity or otherwise, and shall not seek to obtain any recovery or judgment against
Merger Partner (or any partner, member, stockholder, director, officer, employee, Subsidiary, Affiliate, agent or other representative
of the members of the Merger Partner Group), Buyer (or any Buyer Related Party) or any Debt Financing Sources in connection with or arising
out of the termination of any of the Transaction Documents, any breach by Merger Partner, Buyer or any of their respective Related Parties,
as applicable, giving rise to such termination, the failure of the Contemplated Transactions to be consummated, the failure by Merger
Partner, Buyer or their respective Related Parties, as applicable, to perform its obligations under any of the Transaction Documents
(other than the Confidentiality Agreements) or failure by Merger Partner, Buyer or their respective Related Parties, as applicable, to
perform any obligation under Law.
(ii) Merger
Partner’s receipt of (A) the Buyer Subsequent Deal Termination Fee if, as and when required to be paid pursuant to this Section 10.3(d),
(B) its Pro Rata Portion of the Buyer Regulatory Termination Fee if, as and when required to be paid pursuant to Section 10.3(e) or
(C) its Pro Rata Portion of the Buyer Breach Termination Fee if, as and when required to be paid pursuant to Section 10.3(e),
shall not constitute a penalty but shall be liquidated damages in a reasonable amount that will compensate Merger Partner in the circumstances
in which such Buyer Subsequent Deal Termination Fee, such Pro Rata Portion of the Buyer Regulatory Termination Fee or such Pro Rata Portion
of the Buyer Breach Termination Fee, as applicable, is payable for the efforts and resources expended and opportunities foregone while
negotiating the Transaction Documents and in reliance on this Agreement and on the expectation of the consummation of the Contemplated
Transactions, which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary contained
in this Agreement, the Parties agree that if actually paid in full, except (x) in the case of Fraud or Intentional Breach with respect
to Remainco, or with respect to Buyer or Buyer Sub solely if the fee that was paid was the Buyer Subsequent Deal Termination Fee (with
no such exception for Fraud or Intentional Breach applying to the Buyer Regulatory Termination Fee or the Buyer Breach Termination Fee)
(in any event, which damages or liabilities for such Fraud or Intentional Breach shall remain subject, with respect to Buyer, to the
Maximum Liability Amount) or (y) reimbursement of the Specified Costs (subject to the Specified Cost Cap) pursuant to Section 6.3(l),
the reimbursement and indemnification obligations, if, when and as due pursuant to pursuant to Section 6.8(e) (if applicable,
and subject in all respects to the Maximum Liability Amount), the Buyer Subsequent Deal Termination Fee, the Pro Rata Portion of the
Buyer Regulatory Termination Fee or the Pro Rata Portion of the Buyer Breach Termination Fee, as applicable, shall represent the sole
and exclusive remedy of the members of the Merger Partner Group for any loss suffered as a result of the failure of the Contemplated
Transactions to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of this Agreement,
the Separation Agreement, any other Transaction Document or the Contemplated Transactions and the members of the Merger Partner Group
shall not be entitled to bring or maintain any other claim, Action or proceeding against Remainco, Spinco, Buyer, their respective Related
Parties or any Debt Financing Sources, shall be precluded from any other remedy against the other, at law or in equity or otherwise,
and shall not seek to obtain any recovery or judgment against Remainco (or any partner, member, shareholders, director, officer, employee,
Subsidiary, Affiliate, agent or other representative of the members of the Remainco Group), Buyer (or any Buyer Related Party) or any
Debt Financing Sources in connection with or arising out of the termination of any of the Transaction Documents, any breach by Remainco,
Spinco, Buyer or any of their respective Affiliates, as applicable, giving rise to such termination, the failure of the Contemplated
Transactions to be consummated, the failure by Remainco, Spinco, Buyer or any of their respective Related Parties, as applicable, to
perform its obligations under any of the Transaction Documents (other than the Confidentiality Agreements) or failure by Remainco, Spinco,
Buyer or any of their respective Related Parties, as applicable, to perform any obligation under Law.
(iii) Buyer’s
receipt of its Pro Rata Portion of the Merger Partner Termination Fee if, as and when required to be paid pursuant to Section 10.3(b),
shall not constitute a penalty but shall be liquidated damages in a reasonable amount that will compensate Buyer in the circumstances
in which such Merger Partner Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating
the Transaction Documents and in reliance on this Agreement and on the expectation of the consummation of the Contemplated Transactions,
which amount would otherwise be impossible to calculate with precision. Notwithstanding anything to the contrary contained in this Agreement,
the Parties agree that if actually paid in full, except in the case of Fraud or Intentional Breach, the Pro Rata Portion of the Merger
Partner Termination Fee shall represent the sole and exclusive remedy of Buyer and Buyer Sub in the circumstances in which such fee is
payable and Buyer and its Affiliates shall not be entitled to bring or maintain any other claim, action or proceeding against Remainco,
Spinco, Merger Partner or their respective Affiliates, shall be precluded from any other remedy against the other, at law or in equity
or otherwise, and shall not seek to obtain any recovery or judgment against Remainco (or any partner, member, shareholders, director,
officer, employee, Subsidiary, Affiliate, agent or other representative of the members of the Remainco Group) or Merger Partner (or any
partner, member, shareholders, director, officer, employee, Subsidiary, Affiliate, agent or other representative of the members of the
Merger Partner Group), any breach by Remainco, Spinco, Merger Partner or any of their respective Affiliates, as applicable, giving rise
to such termination, the failure of the Contemplated Transactions to be consummated, the failure by Remainco, Spinco, Merger Partner
or any of their respective Affiliates, as applicable, to perform its obligations under any of the Transaction Documents (other than the
Confidentiality Agreements) or failure by Remainco, Spinco, Merger Partner or any of their respective Affiliates, as applicable, to perform
any obligation under Law.
(h) If:
(i) Merger
Partner fails to pay when due any amount payable by Merger Partner under this Section 10.3, then (A) Merger Partner
shall reimburse Remainco and Buyer for all reasonable and documented out-of-pocket costs and expenses (including reasonable fees and
disbursements of outside legal counsel) incurred in connection with the collection of such overdue amount and the enforcement by Remainco
and Buyer of their rights under this Section 10.3 and (B) Merger Partner shall pay to Remainco and Buyer interest on
such overdue amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date
such overdue amount is actually paid to the other Party in full) at a rate per annum equal to the lesser of (1) “prime rate”
(as published by the Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally required
to be paid or (2) the maximum rate permitted by applicable Law (such expenses and interest, collectively, the “Merger Partner
Enforcement Costs ”); provided, however, that in no event shall any member of the Merger Partner Group (or any
Merger Partner Related Party) be required to pay to Remainco and Buyer any Merger Partner Enforcement Costs in excess of their Pro Rata
Portions, of up to an aggregate amount of $5,000,000.
(ii) Buyer
fails to pay when due any amount payable by Buyer under this Section 10.3, then (A) Buyer shall reimburse Remainco and
Merger Partner for all reasonable and documented out-of-pocket costs and expenses (including reasonable fees and disbursements of outside
legal counsel) incurred in connection with the collection of such overdue amount and the enforcement by Remainco and Merger Partner of
their rights under this Section 10.3 and (B) Buyer shall pay to Remainco and Merger Partner interest on such overdue
amount (for the period commencing as of the date such overdue amount was originally required to be paid through the date such overdue
amount is actually paid to the other Party (or Parties) in full) at a rate per annum equal to the lesser of (1) the “prime
rate” (as published by the Wall Street Journal or any successor thereto) in effect on the date such overdue amount was originally
required to be paid or (2) the maximum rate permitted by applicable Law (such expenses and interest, collectively, the “Buyer
Enforcement Costs ”); provided, however, that in no event shall Buyer or Buyer Sub (or any Guarantor or Buyer
Related Party) be required to pay to Remainco and Merger any Buyer Enforcement Costs in excess of their Pro Rata Portions, of up to an
aggregate amount exceeding $5,000,000.
(i) Notwithstanding
anything to the contrary contained in this Agreement, Merger Partner shall in no event be obligated to pay the Merger Partner Termination
Fee more than once, regardless of the number of occurrences or events that would otherwise result in multiple payments thereof.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Amendment.
This Agreement may be amended, supplemented or modified with the approval of the Merger Partner Board, the Special Committee and Buyer
at any time prior to the Closing (whether before or after obtaining the Required Merger Partner Stockholder Vote); provided that,
after obtaining any such approval, no amendment shall be made which by Law or regulation of the NYSE requires further approval of Merger
Partner’s stockholders or Remainco’s shareholders, as applicable, unless the approval of such stockholders or shareholders
shall have been obtained. Any amendment, supplement or modification of any of the Transaction Documents shall require the parties thereto
to deliver a written instrument duly executed by all the parties to such agreement. Notwithstanding anything to the contrary contained
in this Agreement, Section 10.3(f)(i), Section 10.3(g)(i), Section 10.3(g)(ii), the last sentence
of Section 11.2, Section 11.5(c), Section 11.7(b), Section 11.16 and this sentence (and
the definitions related thereto and any other provision of this Agreement to the extent that an amendment, supplement or other modification
of such provision would modify the substance of the foregoing specified provisions) may not be amended, supplemented or modified in any
manner that is adverse in any material respect to any Debt Financing Source without the prior written consent of such Debt Financing
Source.
11.2 Waiver.
The provisions of this Agreement (including this Section 11.2) were specifically bargained for by the Parties and were taken
into account by the Parties in arriving at the terms and conditions of the Transaction Documents and the Contemplated Transactions. Any
term or provision of this Agreement may be waived, or the time for its performance may be extended, in writing at any time by the Party
or Parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently authorized for the purposes of this Agreement
if, as to any Party, it is authorized in writing by an authorized Representative of such Party. The failure of a Party to enforce at
any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity
of this Agreement or any part hereof or the right of any Party thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to constitute a waiver of any preceding or subsequent breach. Notwithstanding anything to the
contrary contained in this Agreement, Section 10.3(f)(i), Section 10.3(g)(i), Section 10.3(g)(ii),
the last sentence of Section 11.1, Section 11.5(c), Section 11.7(b), Section 11.16 and
this sentence (and the definitions related thereto and any other provision of this Agreement to the extent that a waiver of such provision
would modify the substance of the foregoing specified provisions) may not be waived in any manner that is adverse in any material respect
to any Debt Financing Source without the prior written consent of such Debt Financing Source.
11.3 Survival.
The representations and warranties of the Parties contained in or made pursuant to this Agreement shall terminate at the Closing and
no claims shall be made against any Party for any breach thereof at or after the Closing. The covenants and agreements in this Agreement
that by their terms apply or are to be performed in whole or in part after the Closing Date shall survive the Closing and remain in effect
for the period provided in such covenants and agreements, if any, or if later, until fully performed. The covenants and agreements in
this Agreement to be performed prior to the Closing Date shall terminate as of the Closing and no claims shall be made against either
Party for any breach thereof that is discovered after the Closing, subject to the terms of the Separation Agreement. The Confidentiality
Agreements shall survive the execution and delivery of this Agreement and any termination of this Agreement, and the provisions of the
Confidentiality Agreements shall apply to all information and material furnished by any Party or its representatives thereunder or hereunder.
Notwithstanding anything to the contrary herein, nothing in this Agreement shall preclude or limit a claim by any person for Fraud.
11.4 Entire
Agreement; Counterparts; Electronic Exchanges. (a) This Agreement, (b) the other Transaction Documents, (c) any schedules,
exhibits and amendments to any of the foregoing, and (d) the other agreements and documents referred to in any of the foregoing
shall together constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and shall supersede
all prior negotiations, agreements and understandings, both written and oral, among or between any of the Parties with respect to the
subject matter hereof and thereof; provided that the Confidentiality Agreements shall not be superseded and shall remain in full
force and effect in accordance with its terms (it being understood that no provision in the Confidentiality Agreements shall limit any
Party’s rights or remedies in the case of fraud). This Agreement may be executed in several counterparts, each of which shall be
deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts
or otherwise) by electronic transmission shall be treated in all manner and respects as an original agreement and shall be considered
to have the same binding legal effects as if it were the original signed version thereof delivered in person. Counterparts may be delivered
via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com)
or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and
effective for all purposes. At the request of any Party, the other Party shall re-execute original forms thereof and deliver them to
the requesting Party. No Party shall raise the use of electronic means to deliver a signature or the fact that any signature was transmitted
or communicated through the use of a facsimile machine or other electronic means as a defense to the formation of a Contract and each
such Party forever waives any such defense.
11.5 Applicable
Law; Jurisdiction.
(a) This
Agreement, and the formation, termination or validity of any part of this Agreement and all Actions (whether based in tort, contract
or otherwise) arising out of or relating to the Transaction Documents, the Contemplated Transactions, the formation, breach, termination
or validity of the Transaction Documents, the actions of Merger Partner, Remainco or Buyer or any of their respective Affiliates in the
negotiation, administration, performance or enforcement of the Transaction Documents, shall in all respects be governed by, and construed
in accordance with, the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions
(whether of the State of Delaware or any other jurisdiction) that would result in the application of the Laws of any jurisdiction other
than the State of Delaware.
(b) Each
Party irrevocably and unconditionally submits for itself and its property in any Action (whether based in tort, contract or otherwise)
arising out of or relating to the Transaction Documents, the Contemplated Transaction, the formation, breach, termination or validity
of the Transaction Documents, the actions of Merger Partner, Remainco or Buyer or any of their respective Affiliates in the negotiation,
administration, performance or enforcement of the Transaction Documents or the recognition and enforcement of any judgment with respect
to the Transaction Documents, to the exclusive jurisdiction of the Delaware Court of Chancery in and for New Castle County, or in the
event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such Action, the United
States District Court for the District of Delaware, or in the event (but only in the event) that such United States District Court also
does not have subject matter jurisdiction over such Action, any Delaware State court sitting in New Castle County, and appellate courts
having jurisdiction of appeals from any of the foregoing. Any such Action may and shall be brought in such courts and each Party irrevocably
and unconditionally waives any objection that it may now or hereafter have to the venue or jurisdiction of any such Action in any such
court or that such Action was brought in an inconvenient court and shall not plead or claim the same. Service of process in any Action
may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address as provided in Section 11.8. Nothing in any of the Transaction Documents shall affect
the right to effect service of process in any other manner permitted by the Laws of the State of Delaware.
(c) Notwithstanding
anything to the contrary contained in this Agreement, each Party agrees that (i) it will not bring or support any Action against
the Debt Financing Sources arising out of or relating to this Agreement or any of the Contemplated Transactions, including any dispute
relating to any Financing, in any forum other than the United States District Court for the Southern District of New York, or if that
court does not have subject matter jurisdiction, in any New York state court located in, the Borough of Manhattan in the City of New
York, New York; (ii) all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any of
the Debt Financing Sources arising out of or relating to this Agreement or any of the Contemplated Transactions, including any claims
or causes of action relating to any Financing, shall be exclusively governed by, and construed in accordance with, the laws of the State
of New York, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof; provided
that it is understood and agreed that (A) the interpretation of the definition of Combined Company Material Adverse Effect and
whether a Combined Company Material Adverse Effect has occurred, (B) the determination of the accuracy of any representations and
warranties hereunder and whether as a result of any breach thereof Remainco, Spinco, Merger Partner, Buyer or Buyer Sub has the right
(taking into account any applicable cure periods) to terminate its obligations under this Agreement or decline to consummate the Equity
Sale or the Merger (in accordance with the terms hereof) as a result of a breach of such representations in this Agreement without any
liability to such Person and (C) the determination of whether the Separation, the Equity Sale or the Merger has been consummated
in accordance with the terms of the Separation Agreement or this Agreement, respectively, in each case shall be governed by, and construed
and interpreted in accordance with, the Laws of the State of Delaware (without giving effect to any choice or conflict of law provision
or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any other jurisdiction);
(iii) it will not bring or permit any of its controlled Affiliates to bring or support anyone else in bringing any such legal action
in any other court; and (iv) the provisions of Section 11.13 relating to the waiver of jury trial shall apply to any
Action described in clause (i) of this Section 11.5(c).
11.6 Disclosure
Letters. The Remainco Disclosure Letter shall be arranged in separate parts corresponding to the numbered and lettered sections contained
in Article II. The Merger Partner Disclosure Letter shall be arranged in separate parts corresponding to the numbered and
lettered sections contained in Article III. The Buyer Disclosure Letter shall be arranged in separate parts corresponding
to the numbered and lettered sections contained in Article IV. For purposes of this Agreement, (a) any disclosure set
forth or deemed to be set forth in the Remainco Disclosure Letter with respect to any Section of this Agreement, in the Merger Partner
Disclosure Letter with respect to any Section of this Agreement or in the Buyer Disclosure Letter with respect to any Section of
this Agreement shall be deemed to be disclosed for purposes of other Sections of this Agreement to the extent that such disclosure sets
forth facts in sufficient detail so that the relevance of such disclosure would be reasonably apparent to a reader of such disclosure;
(b) matters reflected in any Section of the Remainco Disclosure Letter, the Merger Partner Disclosure Letter or the Buyer Disclosure
Letter, respectively, are not necessarily limited to matters required by this Agreement to be so reflected, and such additional matters
are set forth for informational purposes and do not necessarily include other matters of a similar nature; (c) no reference to or
disclosure of any item or other matter in the Remainco Disclosure Letter, the Merger Partner Disclosure Letter or the Buyer Disclosure
Letter, respectively, shall be construed as an admission or indication that such item or other matter is material or that such item or
other matter is required to be referred to or disclosed in this Agreement; (d) all matters set forth in the Remainco SEC Documents
(other than information set forth therein under the headings “Risk Factors” or “Forward-Looking Statements” and
any other information or statement set forth therein that is primarily cautionary, predictive or forward-looking in nature) shall be
deemed to be set forth in the Remainco Disclosure Letter; and (e) all matters set forth in the Merger Partner SEC Documents (other
than information set forth therein under the headings “Risk Factors” or “Forward-Looking Statements” and any
other information or statement set forth therein that is primarily cautionary, predictive or forward-looking in nature) shall be deemed
to be set forth in the Merger Partner Disclosure Letter. Without limiting the foregoing, no such reference to or disclosure of a possible
breach or violation of any contract, Law or Governmental Order shall be construed as an admission or indication that a breach or violation
exists or has actually occurred. The Remainco Disclosure Letter and the Merger Partner Disclosure Letter shall each be delivered as of
the date hereof, and no amendments or modifications thereto shall be made without the prior written consent of Buyer. Any purported update
or modification to the Remainco Disclosure Letter or the Merger Partner Disclosure Letter after the date hereof without the prior written
consent of Buyer shall be disregarded. The Buyer Disclosure Letter shall be delivered as of the date hereof, and no amendments or modifications
thereto shall be made without the prior written consent of Remainco and Merger Partner. Any purported update or modification to the Buyer
Disclosure Letter after the date hereof without the prior written consent of Remainco and Merger Partner shall be disregarded.
11.7 Assignability;
No Third Party Rights.
(a) This
Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors
and permitted assigns; provided that neither this Agreement nor a Party’s rights or obligations hereunder may be assigned
or delegated by such Party without the prior written consent of the other Parties, except that a Party may assign any of its rights under
this Agreement and any other Transaction Document (i) as collateral security to a creditor, (ii) to one of its Affiliates;
provided that no Party may assign this Agreement pursuant to this clause (ii) until after the Closing, or (iii)(A) to
the acquirer of all or substantially all of its assets of such Party, (B) in the case of the Transaction Documents other than this
Agreement, to the acquirer of any member of such Party’s Group or any lines of business of such Party or (C) in connection
any merger or consolidation involving such Party; provided that in each case of clauses (A), (B) and (C),
(I) no such assignment shall relieve such Party of any of its obligations and (II) no such assignment shall result in (1) any
change to the sequencing of the Equity Sale and the Merger as set forth in Section 1.3 (i.e., that the Equity Sale shall
be consummated prior to, but substantially concurrently with, the Merger Effective Time) or (2) the Surviving Corporation or any
of its Subsidiaries owning any member of the Spinco Group or any member of the Spinco Group owning the Surviving Corporation or any of
its Subsidiaries. Any attempted assignment or delegation of this Agreement or any of such rights or obligations by any Party in violation
of this Agreement without the prior written consent of the other Parties shall be void and of no effect.
(b) Except
(i) as provided in (A) Section 10.3(f)(i), Section 10.3(f)(ii), Section 10.3(g)(i), Section 10.3(g)(ii),
the last sentence of Section 11.1, the last sentence of Section 11.2, Section 11.5(c), Section 11.16
and this sentence with respect to Debt Financing Sources, (B) in Section 10.3(g), Section 11.15 and
Section 11.16 with respect to the Persons described therein and (C) in Section 6.10 with respect to D&O
Indemnitees and (ii) from and after the Merger Effective Time, the right of each holder of shares of Merger Partner Common Stock
or Merger Partner Equity Awards to receive the consideration set forth in Article I, including the Per Share Price and the
payments contemplated by Section 1.6, this Agreement is for the sole benefit of the Parties and their permitted successors
and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person or Entity any legal
or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Without limiting the generality
of the foregoing, the representations and warranties in this Agreement are the product of negotiations between the Parties and are for
the sole benefit of the Parties. Any inaccuracies in or breaches of such representations or warranties are subject to waiver by the Parties
in accordance with this Agreement without notice or Liability to any other Person. In some instances, the representations and warranties
in this Agreement may represent an allocation of risks associated with particular matters between the Parties regardless of the knowledge
of a Party. Consequently, Persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations
of actual facts or circumstances as of the date hereof or as of any other date.
11.8 Notices.
All notices, requests, consents, claims, demands and other communications under any of the Transaction Documents shall be in writing
and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier
service, by email with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified
mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a
Party as shall be specified in a notice given in accordance with this Section 11.8):
if to Merger Partner:
Everi Holdings
Inc.
7250 South Tenaya
Way, Suite 10
Attention: Randy L. Taylor, President
and CEO; Kate Lowenhar-Fisher, EVP and
Chief Legal Officer – General Counsel
Email:
legalnotices@everi.com
with a copy (which shall not constitute notice)
to:
Pillsbury Winthrop Shaw Pittman LLP
11682 El Camino Real
Suite 200
San Diego, CA 92130 USA
Attention: Christian A. Salaman
E-mail: [*]
and
Pillsbury Winthrop Shaw Pittman LLP
725 South Figueroa Street
36th Floor
Los Angeles, CA 90017
Attention: Drew Simon-Rooke
E-mail: [*]
if to Remainco or Spinco:
International Game
Technology PLC
c/o IGT Global
Solutions Corporation
IGT Center
10 Memorial Boulevard
Providence, RI 02903-1125
Attention: General
Counsel
Email:
legalnotices@igt.com
or
Ignite Rotate LLC
c/o IGT Global
Solutions Corporation
Attention: General Counsel
Email:
legalnotices@igt.com
with a copy (which shall not constitute notice)
to:
Sidley
Austin LLP
One South Dearborn Street
Chicago, IL 60603
Attention: Paul L. Choi, Scott R. Williams and Brent M. Steele
Email: [*], [*] and [*]
if to Buyer or Buyer Sub:
Voyager Parent, LLC
c/o Apollo Management X, L.P.
9 West 57th Street, 42nd Floor
New York New York 10019
|
Attention: |
Daniel Cohen, Partner |
|
|
James Elworth, General Counsel, Private Equity |
|
Email: |
[*]
[*] |
with a copy (which shall
not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
|
Attention: |
Ross A. Fieldston |
|
|
Ian M. Hazlett |
|
Email: |
[*]
[*] |
Notwithstanding anything to the contrary contained
herein, the Parties acknowledge and agree that email with receipt confirmed mail to the notice parties set forth above shall be sufficient
for any notices required pursuant to Section 5.5, Section 6.2(c) and Section 6.2(d).
11.9 Cooperation.
From time to time following the Closing, Merger Partner, Remainco and Buyer shall, and shall cause their respective Affiliates to, execute,
acknowledge and deliver all reasonable further conveyances, notices, assumptions, releases and acquittances and such instruments, and
shall take such reasonable actions as may be necessary or appropriate to make effective the Contemplated Transactions as may be reasonably
requested by the other Party, in each case, subject to the terms of the Transaction Documents.
11.10 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public
policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic
or legal substance of the Contemplated Transactions is not affected in any manner materially adverse to any Party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that
the Contemplated Transactions be consummated as originally contemplated to the greatest extent possible.
11.11 No
Presumption Against Drafting Party. Each Party acknowledges that such Party has been represented by outside legal counsel in connection
with the Transaction Documents and the Contemplated Transactions. Accordingly, any rule that would require interpretation of any
claimed ambiguities in any of the Transaction Documents against the drafting party has no application and is expressly waived.
11.12 Rules of
Construction. Interpretation of the Transaction Documents (except as specifically provided in any such Transaction Document, in which
case such specified rules of construction shall govern with respect to such Transaction Document) shall be governed by the following
rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender
shall be held to include the other gender as the context requires; (b) references to Articles, Sections, paragraphs, Exhibits and
Schedules are references to the Articles, Sections, paragraphs, Exhibits and Schedules to the applicable Transaction Document unless
otherwise specified; (c) references to “$” shall mean United States dollars; (d) the word “including”
and words of similar import when used in the Transaction Documents shall mean “including without limiting the generality of
the foregoing,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) the
table of contents, articles, titles and headings contained in the Transaction Documents are for reference purposes only and shall not
affect in any way the meaning or interpretation of the Transaction Documents; (g) the Transaction Documents shall be construed without
regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument
to be drafted; (h) the Schedules and Exhibits referred to herein shall be construed with and as an integral part of this Agreement
to the same extent as if they were set forth verbatim herein; (i) unless the context otherwise requires, the words “hereof,”
“herein” and “hereunder” and words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement; (j) all terms defined in this Agreement shall have
the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein;
(k) any agreement or instrument defined or referred to herein or any agreement or instrument that is referred to herein means such
agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent, and references to all
attachments thereto and instruments incorporated therein; (l) any statute or regulation referred to herein means such statute or
regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, includes any rules and
regulations promulgated under such statute), and references to any section of any statute or regulation include any successor to such
section; (m) all time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding
the date on which the period commences and including the date on which the period ends and by extending the period to the first succeeding
Business Day if the last day of the period is not a Business Day; (n) references to any Person include such Person’s predecessors
or successors, whether by merger, consolidation, amalgamation, reorganization or otherwise; (o) references to “assets”
do not include individuals; (p) references to any Contract (including this Agreement) or Organizational Document are to the Contract
or Organizational Document as amended, modified, supplemented or replaced from time to time, unless otherwise stated; (q) the failure
to obtain any consent under any Contract of a commercial nature with a Governmental Authority, solely to the extent such failure does
not constitute a violation of applicable Law, shall not be deemed to be the failure to obtain a Governmental Approval and shall not constitute
a breach by any Party of its obligations under this Agreement or a failure of the closing conditions set forth in Section 7.2,
Section 7.5, Section 8.2, Section 8.5, Section 9.2 or Section 9.5, respectively;
(r) Remainco shall not be required to cause or attempt to cause Delta to take or refrain from taking any action; and (s) none
of Merger Partner, Remainco or Spinco are making any representations or warranties relating to the Financing or any of the documents
related thereto nor shall any of them have any obligations relating to the Financing other than as set forth in Section 6.8(d).
11.13 Waiver
of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHTS
SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THE CONTEMPLATED TRANSACTIONS, OR ITS PERFORMANCE UNDER OR THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS. EACH PARTY CERTIFIES
AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND
HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THE TRANSACTION DOCUMENTS AND THE CONTEMPLATED TRANSACTIONS BY, AMONG OTHER THINGS, THE MUTUAL WAIVER IN THIS SECTION 11.13.
EACH PARTY AGREES THAT ANY PARTY MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY,
AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION WHATSOEVER
BETWEEN THEM RELATING TO ANY OF THE TRANSACTION DOCUMENTS OR ANY OF THE CONTEMPLATED TRANSACTIONS.
11.14 Specific
Performance.
(a) Each
Party agrees that irreparable damage would occur if any of the covenants or obligations contained in this Agreement are not performed
in accordance with their specific terms or were otherwise breached. Accordingly, each Party shall be entitled to injunctive or other
equitable relief to prevent or cure any breach by the other Party of its agreements, covenants or obligations contained in this Agreement
and to specifically enforce such agreements, covenants and obligations in any court referenced in Section 11.5 having jurisdiction,
such remedy being in addition to any other remedy to which such Party may be entitled at law or in equity. Each Party acknowledges and
agrees that, in the event that any other Party seeks an injunction or injunctions to prevent breaches of this Agreement or to enforce
specifically the terms and provisions of this Agreement, the Party seeking an injunction will not be required to provide any bond or
other security in connection with any such order or injunction. Each Party further acknowledges that the existence of any other remedy
contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive
relief. Each Party further agrees that in the event of any action by any other Party for specific performance or injunctive relief, such
Party will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief with respect
to such breach or violation should not be available on the grounds that money damages are adequate or any other grounds. The pursuit
of specific performance by Remainco or Merger Partner at any time will not be deemed an election of remedies or waiver of the right to
pursue any other right or remedy to which Remainco or Merger Partner may be entitled, including the right to pursue remedies for liabilities
or damages incurred or suffered by Remainco and its shareholders or Merger Partner and its stockholders.
(b) Notwithstanding
anything to the contrary contained in this Section 11.14 or elsewhere in this Agreement, neither Remainco nor Merger Partner
shall be entitled to specific performance or any other equitable relief to cause Buyer to draw down proceeds of the Equity Financing,
or to cause Buyer and Buyer Sub effect the Equity Sale in accordance with the Separation Agreement or the Merger and the Closing in accordance
with Section 1.3, unless (i) all of the conditions in Article IX (other than those conditions that by their
nature are to be satisfied at the Closing, but subject to such conditions being capable of being satisfied at the Closing) have been
and continue to be satisfied or waived, (ii) the Marketing Period has been completed, (iii) each of Merger Partner and Remainco
has (A) confirmed to Buyer in writing that all of the conditions set forth in Article VII and Article VIII
have been and continue to be satisfied (or are waived effective as of immediately prior to the Closing, but subject to the Closing occurring),
(B) if specific performance is granted and the Equity Financing and the Debt Financing are funded, then Merger Partner or Remainco,
as applicable, is ready, willing and able to consummate the Equity Sale and the Merger at the Closing, and (C) Merger Partner and
Remainco, as applicable, will take such actions required by this Agreement and the Separation Agreement to cause the Closing to occur
in accordance with its terms, (iv) the Debt Financing has been funded or will be funded at the Closing assuming the Equity Financing
contemplated by the Equity Commitment Letters were to be funded at the Closing (provided that Buyer shall not be required to draw
down the Equity Commitment Letter if the Debt Financing would not be funded even if Buyer were to draw down on the Equity Commitment
Letter), and (v) Buyer and Buyer Sub have failed to consummate the Equity Sale and the Merger on the date by which the Equity Sale
is required to have been consummated pursuant to the Separation Agreement and the Merger and the Closing is required to have been consummated
pursuant to Section 1.3.
11.15 Disclaimer
of Representations and Warranties.
(a) NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, EXCEPT FOR THE SPECIFIC REPRESENTATIONS
AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE II (AS MODIFIED BY THE REMAINCO DISCLOSURE LETTER) ARTICLE III
(AS MODIFIED BY THE MERGER PARTNER DISCLOSURE LETTER) AND ARTICLE IV (AS MODIFIED BY THE BUYER DISCLOSURE LETTER), NO
PARTY IS MAKING ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE MEMBERS OF ITS GROUP, ITS RESPECTIVE BUSINESS OR THE PROBABLE
SUCCESS OR PROFITABILITY THEREOF, THE CONTEMPLATED TRANSACTIONS OR ANY OTHER RIGHTS OR LIABILITIES TO BE TRANSFERRED IN CONNECTION WITH
CONTEMPLATED TRANSACTIONS OR PURSUANT TO ANY OF THE TRANSACTION DOCUMENTS. NO PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO NONINFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NO IMPLIED REPRESENTATIONS OR WARRANTIES WHATSOEVER. EXCEPT FOR THE SPECIFIC
REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE II (AS MODIFIED BY THE REMAINCO DISCLOSURE LETTER), ARTICLE III
(AS MODIFIED BY THE MERGER PARTNER DISCLOSURE LETTER) AND ARTICLE IV (AS MODIFIED BY THE BUYER DISCLOSURE LETTER), AND
EACH PARTY HEREBY EXPRESSLY DISCLAIMS THAT IT IS RELYING ON OR HAS RELIED UPON ANY OTHER REPRESENTATION, WARRANTY OR OTHER STATEMENT
OF FACT OR OPINION, AND ACKNOWLEDGES AND AGREES THAT IT IS NOT ENTITLED TO RELY UPON, AND THAT IT HAS SPECIFICALLY DISCLAIMED AND DOES
SPECIFICALLY DISCLAIM, ANY OTHER REPRESENTATION, WARRANTY OR OTHER STATEMENT OF FACT OR OPINION MADE BY ANY PERSON. EACH PARTY FURTHER
SPECIFICALLY DISCLAIMS ANY OBLIGATION OR DUTY BY ANY PERSON TO MAKE ANY DISCLOSURES OF FACT NOT REQUIRED TO BE DISCLOSED PURSUANT TO
THE EXPRESS TERM AND CONDITIONS OF THE TRANSACTION DOCUMENTS.
(b) Each
Party acknowledges that in connection with each Party’s investigation of the other Party’s respective business, each Party
has received or may receive certain projections, including projected statements of operating revenues and income from operations of the
other Party’s respective businesses, cost estimates and certain business plan information. Each Party agrees that is taking full
responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, other forecasts, summaries,
plans and presentations so furnished to it, whether orally or in writing or in materials made available in any “data room”
(virtual or otherwise), including the reasonableness of the assumptions underlying such estimates, projections and forecasts. Accordingly,
no other Party nor any of such other Party’s respective Affiliates or Representatives or any other Person is making any representation
or warranty with respect to any estimates, projections, other forecasts, summaries, plans or presentations, including the reasonableness
of the assumptions underlying such estimates, projections, other forecasts, summaries, plans or presentations, and each Party hereby
disclaims any reliance on such estimates, projections, other forecasts, summaries, plans and presentations and agrees that it has not
relied thereon.
(c) Notwithstanding
the foregoing, nothing in this Section 11.15 shall limit either Parties’ rights and remedies for Fraud with respect
to the representations and warranties made in Article II, Article III or Article IV.
11.16 Non-Recourse.
Notwithstanding anything to the contrary in this Agreement, each Party agrees, on behalf of itself and its Related Parties, that this
Agreement and the other Transaction Documents may only be enforced against, and any Action (whether in contract or in tort, in Law or
in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership
or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) for any breach (whether willful,
intentional (including an Intentional Breach), unintentional or otherwise), Loss, Liability, damage or otherwise in connection with,
relating to or arising out of any Transaction Claims may only be brought against the Entities that are expressly named as parties hereto
or thereto and then only with respect to the specific obligations set forth herein or therein with respect to such party, and solely
in accordance with, and subject to the terms and conditions of, this Agreement or such other Transaction Document, as applicable. Notwithstanding
anything to the contrary in this Agreement, no Debt Financing Source, Related Party or Affiliate of Buyer, Buyer Sub, a Guarantor, Remainco
or Merger Partner, or any former, current or future officers, employees, directors, partners, shareholders, equity holders, managers,
members, clients, attorneys, agents, advisors or other Representatives of a Debt Financing Source, Buyer, Buyer Sub, a Guarantor, Remainco
or Merger Partner or of any such Affiliate (each, other than Buyer, Buyer Sub, a Guarantor, Remainco or Merger Partner, a “Non-Recourse
Party”) shall have any Liability for any Liabilities of any Party hereto or thereto under this Agreement or any Transaction
Document or for any Action (whether in contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether
by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine,
including alter ego or otherwise) in connection with, relating to or arising out of any of the Transaction Claims, other than the obligations
of the Guarantors solely in accordance with, and subject to the terms and conditions of, the Guaranty, provided that this sentence
shall not (a) limit Remainco and Merger Partner’s rights to specific performance in accordance with Section 11.14
or the Equity Commitment Letter, (b) limit the rights or Liabilities of any Person (including Non-Recourse Party) with respect
to any Transaction Document to which they are a party or (c) limit the rights that the Buyer or any Buyer Related Party may assert
against any Debt Financing Source pursuant to the terms and conditions of the Debt Financing, the Debt Commitment Letter or any Alternative
Debt Commitment Letter. In furtherance and not in limitation of the foregoing, (i) each of Remainco and Merger Partner covenants,
agrees and acknowledges that no recourse under this Agreement or any other Transaction Document or any other agreement referenced herein
or therein or in connection with any of the Contemplated Transactions shall be sought or had against any Buyer or any of Buyer, Buyer
Sub, the Guarantors or any Buyer Non-Recourse Party except for the Buyer Permitted Claims, subject to the applicable limitations thereof,
and (ii) each of Buyer and Buyer Sub covenants, agrees and acknowledges that no recourse under this Agreement or any other Transaction
Document or any other agreement referenced herein or therein or in connection with any of the Contemplated Transactions shall be sought
or had (including, after Closing, by any member of the Merger Partner Group or any member of the Spinco Group) against any member of
the Remainco Group or the Merger Partner Group or any Non-Recourse Party of Remainco, Spinco or Merger Partner except for the Seller
Permitted Claims, subject to the applicable limitations thereof.
[Remainder of page intentionally left blank]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
|
EVERI HOLDINGS INC. |
|
|
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By: |
/s/
Randy L. Taylor |
|
Name: |
Randy L. Taylor |
|
Title: |
Chief Executive Officer |
[Signature page to Agreement
and Plan of Merger]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
|
INTERNATIONAL
GAME TECHNOLOGY PLC |
|
|
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By: |
/s/
Vincent L. Sadusky |
|
Name: |
Vincent L. Sadusky |
|
Title: |
Chief Executive Officer |
|
|
|
|
|
IGNITE ROTATE LLC |
|
|
|
|
|
By: |
/s/Massimiliano Chiara |
|
Name: |
Massimiliano Chiara |
|
Title: |
Executive Vice President and Chief Financial Officer |
[Signature page to Agreement
and Plan of Merger]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.
|
VOYAGER PARENT, LLC |
|
|
|
By: |
/s/ Daniel Cohen |
|
Name: |
Daniel Cohen |
|
Title: |
Vice President, Secretary and Treasurer |
|
|
|
|
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VOYAGER MERGER SUB, INC. |
|
|
|
By: |
/s/ Daniel Cohen |
|
Name: |
Daniel Cohen |
|
Title: |
Vice President, Secretary and Treasurer |
[Signature page to Agreement
and Plan of Merger]
Exhibit A
CERTAIN
DEFINITIONS
For purposes of this Agreement
(including this Exhibit A):
“Acquisition Inquiry”
means any inquiry, indication of interest or request for information (other than an inquiry, indication of interest or request for information
made or submitted by Buyer to Merger Partner) that would reasonably be expected to lead to an Acquisition Proposal.
“Acquisition Proposal”
means any offer or proposal (other than an offer or proposal made or submitted by Buyer to Merger Partner) contemplating or otherwise
relating to any Acquisition Transaction.
“Acquisition
Transaction” with respect to an Entity means any transaction or series of transactions (other than the Contemplated Transactions)
involving, directly or indirectly. (a) any merger, exchange, consolidation, business combination, issuance of securities, acquisition
of securities, amalgamation, scheme of arrangement, reorganization, recapitalization, takeover offer, tender offer, exchange offer or
other similar transaction, (i) in which such Entity or any of its Subsidiaries is a constituent corporation and which would result
in a third party, or the equityholders of that third party, beneficially owning twenty percent (20%) or more of any class of equity or
voting securities of such Entity or the Entity resulting from such transaction or the parent of such Entity; (ii) in which a Person
or “group” (as defined in the Exchange Act and the rules promulgated thereunder) of Persons directly or indirectly acquires
beneficial or record ownership of securities representing more than twenty percent (20%) of the outstanding securities of any class of
voting securities of such Entity; or (iii) in which such Entity issues securities representing more than twenty percent (20%) of
the outstanding securities of any class of voting securities of such Entity; (b) any sale, lease, exchange, transfer, exclusive
license, acquisition or disposition of any business or businesses or assets of such Entity or its Subsidiaries that constitute or account
for twenty percent (20%) or more of the consolidated net revenues, or consolidated net income for the twelve (12) full months immediately
prior to the receipt of the related Acquisition Proposal or twenty percent (20%) or more of the fair market value of the consolidated
assets of such Entity and its Subsidiaries, taken as a whole; (c) any issuance, sale or other disposition, directly or indirectly,
to any Person (or the equityholders of any Person) or group of securities (or options, rights or warrants to purchase, or securities
convertible into or exchangeable for, such securities) representing twenty percent (20%) or more of the voting power of such Entity;
or (d) any liquidation or dissolution of such Entity. No Excluded Transaction shall be considered an Acquisition Transaction.
“Action”
shall have the meaning set forth in the Separation Agreement.
“Affiliate”
means, with respect to any specified Person, any other Person that, at the time of determination, directly or indirectly through one
or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person; provided that (a) Delta
shall be considered an Affiliate of the members of the Remainco Group only for purposes of (i) Section 5.5(h), Section 10.3(d),
Section 11.1, Section 11.7(b), Section 11.15 and Section 11.16 and to the extent the
context requires, any related definitions and (ii) Article III of the Separation Agreement, but shall not be considered an
Affiliate of any member of the Remainco Group for purposes of any other provisions of any of the Transaction Documents, (b) after
the Closing, solely for purposes of the Transaction Documents, (i) none of members of the Spinco Group shall be deemed to
be an Affiliate of any member of the Remainco Group and (ii) none of the members of the Remainco Group shall be deemed to be an
Affiliate of any member of the Spinco Group, (c) prior to the Merger Effective Time, in no event shall any member of the Spinco
Group or any member of the Merger Partner Group be considered an Affiliate of Buyer, Buyer Sub, any Guarantor or any of their respective
Affiliates, (d) in no event shall any AGM Person be considered an Affiliate of Buyer or Buyer Sub other than for purposes of (i) the
foregoing clause (c), (ii) the definitions of “AGM Person,” “Buyer Related Parties,” “Non-Recourse
Party,” “Third Party,” (solely, in the case of the definition of Third Party, in connection with such term’s
use in Section 5.5(c) and Section 5.5(d) and the definition of “Merger Partner Superior Proposal”),
Section 2.25, Section 3.26, Section 4.8, Section 5.5(h), Section 6.1, Section 6.3(c),
Section 6.3(d), Section 6.3(e), Section 6.4, Section 6.9(c), Section 10.2, Section 10.3(c),
Section 10.3(d), Section 10.3(g), Section 11.1, Section 11.7(b), Section 11.15
and Section 11.16 and to the extent the context requires, any related definitions, and (iii) Section 3.4 and
the definition of “Buyer Indemnified Parties” in the Separation Agreement, and (e) for all purposes of this Agreement,
in no event shall any AGM Person be considered an Affiliate of any Buyer Required Gaming Licensee or Buyer Regulatory Affiliate (other
than as contemplated by clause (d)).
“AGM Person”
means each of (a) Apollo Global Management, Inc. and its Subsidiaries, (b) any portfolio company, investment fund, account
or other vehicle affiliated with, managed by or advised by Apollo Global Management, Inc. or its Subsidiaries or Affiliates and
(c) any direct or indirect equity holder, partner (including any limited partner), officer, director, member or manager of any of
the foregoing.
“Anti-Corruption
Laws” means all applicable Laws relating to the prevention of corruption and bribery, including the U.S. Foreign Corrupt
Practices Act of 1977 and the United Kingdom Bribery Act of 2010.
“Antitrust Laws”
means the Sherman Antitrust Act of 1890, the Clayton Act of 1914, the HSR Act, the Federal Trade Commission Act, and all other domestic
or foreign Laws passed by a domestic or foreign Governmental Authority that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Applicable Gaming
Laws” means the Gaming Laws of the jurisdictions set forth on Schedule C-2.
“Asset”
shall have the meaning set forth in the Separation Agreement.
“Assume”,
“Assumed” and “Assumption” shall have the meanings set forth in the Separation Agreement.
“Benefit
Arrangement” shall have the meaning set forth in the Employee Matters Agreement.
“Business Day”
shall have the meaning set forth in the Separation Agreement.
“Buyer
Confidentiality Agreements” means, collectively, (a) that certain letter agreement dated June 26, 2023, between Remainco
and Apollo Management X, L.P., as amended by that certain letter agreement, dated July 26, 2024, between Remainco and Apollo
Management X, L.P., (b) that certain Clean Team Agreement, dated September 11, 2023, between Remainco and Apollo Management
X, L.P., (c) that certain letter agreement dated April 10, 2024 between Merger Partner and Apollo Management X, L.P., as amended
by that certain letter agreement, dated July 26, 2024, between Merger Partner and Apollo Management X, L.P. and (d) that certain
Clean Team Agreement, dated May 22, 2024, between Merger Partner and Apollo Management X, L.P.
“Buyer Disclosure
Letter” means the Buyer Disclosure Letter that has been prepared by Buyer and that has been delivered by Buyer to Remainco
and Merger Partner concurrently with the execution of this Agreement.
“Buyer Group”
shall have the meaning set forth in the Separation Agreement.
“Buyer
Material Adverse Effect” means any Effect that, individually or in the aggregate, has or would reasonably be expected
to prevent or materially interfere with, materially impair or materially delay the Closing or the ability of Buyer or any Buyer Party
to consummate the Equity Sale, the Merger or the Closing.
“Buyer Party”
means each of Buyer and Buyer Sub.
“Buyer Regulatory
Affiliates” means, collectively, (a) the Buyer Licensing Group and (b) the Ultimate Parent Entity of Buyer for purposes
of the HSR Act or, for purposes of the obligations to make Antitrust Filings or FDI Filings, any other Affiliate of such Ultimate Parent
Entity or the Guarantors that is required to make any such filing (but solely in the case of this clause (b) for purposes of making
any such filing and providing information in connection therewith and not for purposes of any other representation, warranty covenant
or agreement in this Agreement).
“Buyer Related Parties”
means, collectively, Buyer, Buyer Sub, the Buyer Regulatory Affiliates, the Buyer Required Gaming Licensees, any Guarantor, any of their
respective Affiliates, any of their and their Affiliates’ respective direct or indirect current, former or future equityholders,
partners, members, officers, directors, managers, employees and other Representatives, and their respective assignees.
“Buyer Required
Gaming Licensees” means (a) AP X Voyager VoteCo, LLC, a Delaware limited liability company (“VoteCo”),
and any Entity controlled, directly or indirectly, by VoteCo that, directly or indirectly, owns or as of the Closing will own, any Equity
Interests of Buyer (the “Buyer Licensing Group”), (b) the Persons set forth on Schedule 1 of the Buyer
Disclosure Letter, (c) the directors, officers, employees and managers (in their capacities as such) of any member of the Buyer
Group (as constituted prior to the Closing) or the Buyer Licensing Group, or (d) any natural person selected by Buyer, in its sole
discretion, to (i) replace any of the foregoing (in which case the natural person being replaced shall thereafter no longer be deemed
a Buyer Required Gaming Licensee) or (ii) serve as a director, manager, officer or employee of the Buyer Group, the Spinco Group
or the Merger Partner Group following the Closing (but, with respect to this clause (d), solely to the extent any such individuals
have actually been identified to Remainco and Merger Partner by Buyer as such), in each case of clauses (a), (b), (c) or
(d), solely to the extent such Persons are be required to be licensed by or obtain any qualification, approval or suitability
determinations by or from any Gaming Authority in connection with the Contemplated Transactions.
“Change in Law”
means the adoption, promulgation, modification, interpretation, reinterpretation or change in the enforcement of any Law or Governmental
Order that occurs subsequent to the date hereof.
“COBRA”
means Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or any similar state or local Law.
“Code”
means the U.S. Internal Revenue Code of 1986.
“Combined Company”
means, collectively, as of immediately following the consummation of the Contemplated Transactions, Buyer, the Surviving Corporation
and its Subsidiaries and Spinco and its Subsidiaries.
“Combined Company
Business” means, collectively, the Merger Partner Business and the Spinco Business.
“Combined
Company Material Adverse Effect” means any Effect that, individually or in the aggregate with all other Effects, is or would
reasonably be expected to be or to become materially adverse to, or has or would reasonably be expected to have or result in a material
adverse effect on the business, assets, financial condition, results of operations or cash flows of the Combined Company Business, taken
as a whole; provided that in no event shall any Effects to the extent directly or indirectly resulting from or arising out of
any of the following be deemed to constitute, or be taken into account in determining whether there has occurred, a Combined Company
Material Adverse Effect: (a) general economic, financial, credit, regulatory or political conditions or any conditions generally
affecting any of the foregoing or affecting any segment of the industries or any regions in which the Combined Company Business operates;
(b) any changes in the United States or global economy or the economy of any other jurisdiction or region or any changes in any
capital, credit or financial markets in the United States or any other jurisdiction or region (including interest rate and exchange rate
changes, inflationary matters or tariffs or trade wars); (c) any Change in Law applicable to the Combined Company Business, in each
case of clauses (a) through (c), not having a materially disproportionate effect on the Combined Company Business,
relative to other participants in the industry in which the Combined Company Business operates; (d) change in GAAP or the accounting
principles, practices or policies of any member of the Combined Company or the enforcement or interpretation thereof; (e) the execution,
announcement or pendency of any of the Transaction Documents, the consummation of any of the Contemplated Transactions or the performance
of the obligations of the Combined Company under, any of the Transaction Documents (including compliance with the terms of any of the
Transaction Documents), including any adverse changes in the Combined Company Business’s relationship with its employees, customers,
partners, Governmental Authorities, suppliers or vendors; (f) actions taken or omitted with Buyer’s consent or at Buyer’s
request; (g) any acts of God, including any earthquakes, hurricanes, tornadoes, floods, tsunami, or other natural disasters; (h)(i) any
hostilities, acts of war (whether or not declared), sabotage, terrorism or military actions or civil unrest, or any escalation or worsening
of any such hostilities, act of war, sabotage, terrorism or military actions or civil unrest or any disease, outbreak, pandemic, epidemic
or the worsening thereof or (ii) any actual or potential, complete or partial, sequester, stoppage, shutdown, default or similar
event or occurrence by or involving or affecting any Governmental Authority, in each case of subclauses (i) and (ii),
not having a materially disproportionate effect on the Combined Company Business, relative to other participants in the industry in which
the Combined Company Business operates; (i) any failure by the Combined Company or the Combined Company Business to meet any internal
or published projections, forecasts of revenues, earnings, or other measures of financial or operating performance for any period; provided
that the underlying causes of any such failure shall not be deemed excluded from consideration in determining whether a Combined
Company Material Adverse Effect has occurred or would be reasonably likely to occur solely as a result of this clause (i) and
to the extent not otherwise excluded by this definition; (j) COVID-19 to the extent not having a materially disproportionate effect
on the Combined Company Business, relative to other participants in the industry in which the Combined Company Business operates; (k) changes
in the trading price or trading volume of Remainco Ordinary Shares or Merger Partner Common Stock; provided that the underlying
causes of any such changes shall not be deemed excluded from consideration in determining whether a Combined Company Material Adverse
Effect has occurred or would be reasonably likely to occur solely as a result of this clause (k) and to the extent not otherwise
excluded by this definition; or (l) any stockholder or derivative litigation (or equivalent) arising from or relating to this Agreement
or the Contemplated Transactions.
“Companies
Act” means the United Kingdom Companies Act of 2006.
“Compliant”
means, with respect to the Required Spinco Financial Information and the Required Merger Partner Financial Information, as applicable,
that (a) such Required Spinco Financial Information and such Required Merger Partner Financial Information, as applicable, does
not, taken as a whole, contain any untrue statement of a material fact or omit to state any material fact necessary to make such Required
Spinco Financial Information and Required Merger Partner Financial Information, respectively, in the light of the circumstances under
which the Required Spinco Financial Information and the Required Merger Partner Financial Information were provided, not misleading;
(b) such Required Spinco Financial Information and such Required Merger Partner Financial Information, as applicable, 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 offerings of debt securities on a registration statement on Form S-1 for a non-reporting company, subject
to customary exceptions for an offering of debt securities pursuant to Rule 144A (including the exceptions in the definitions of
“Required Merger Partner Financial Information” and “Required Spinco Financial Information”); (c) the independent
auditors for the Spinco Business or the Spinco Group (as applicable) and the independent auditors for Merger Partner, as applicable,
have not withdrawn any audit opinion with respect to any financial statements contained in the Required Spinco Financial Information
and the Required Merger Partner Financial Information, respectively; (d) with respect to any interim financial statements, such
interim financial statements have been reviewed by the independent auditors for the Spinco Business or the Spinco Group (as applicable)
and the independent auditors of Merger Partner, as applicable, as provided in the procedures specified by the PCAOB in AU 722 or any
similar provision; and (e) the financial statements and other financial information included in such Required Spinco Financial Information
and such Required Merger Partner Financial Information are, and remain throughout the Marketing Period, of a date sufficient to permit
(i) a registration statement on Form S-1 using such financial statements and financial information to be declared effective
by the SEC on the last day of the Marketing Period and (ii) the Debt Financing Sources (including underwriters, placement agents
or initial purchasers) to receive customary comfort or similar agreed upon procedures letters from the independent auditors for the Spinco
Business or the Spinco Group (as applicable) and the independent auditors for Merger Partner on the applicable financial statements and
financial information contained in or incorporated by referenced into any offering memoranda or similar disclosure document, including
as to customary negative assurances and change period, to consummate any applicable offering of debt securities, subject to completion
by such auditors of customary procedures relating thereto.
“Confidentiality
Agreements” means, collectively, (a) that certain letter agreement, dated December 20, 2023, between Remainco
and Merger Partner, (b) that certain Clean Team Agreement, dated September 13, 2023, between Remainco and Merger Partner, as
amended by that certain Clean Team Agreement, dated December 28, 2023, between Remainco and Merger Partner, (c) that certain
Clean Team Agreement, dated December 28, 2023, between Remainco and Merger Partner and (d) the Buyer Confidentiality Agreements.
“Consent”
shall have the meaning set forth in the Separation Agreement.
“Contemplated Transactions”
means the Separation, the Equity Sale, the Merger, the Financing and the other transactions contemplated by the Transaction Documents;
provided that (a) for purposes of all of the Transaction Documents other than this Agreement, the Contemplated Transactions
shall not include the Financing, and (b) for purposes of Articles II and ARTICLE III, the Contemplated Transactions
shall not include the Financing.
“Contract”
shall have the meaning set forth in the Separation Agreement.
“Control”
means, with respect 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 terms “Controlled,” “Controlled by,”
“under common Control with” and “Controlling” shall have correlative meanings.
“COVID-19”
means SARS-CoV-2 (severe acute respiratory syndrome coronavirus 2), coronavirus disease, or COVID-19, and any evolutions or mutations
thereof or related or associated epidemics, pandemic or disease outbreaks.
“Credit
Support Instrument” shall have the meaning set forth in the Separation Agreement.
“Data Processor”
means a natural or legal Person, public authority, agency or other body that Processes Personal Data on behalf of, at the direction of,
or while providing services to, a third person.
“Debt
Financing Sources” means the financial institutions identified in the Debt Commitment Letter, together with each other
Person that commits to provide or otherwise provides the Debt Financing, whether by joinder to the Debt Commitment Letters or otherwise.
Notwithstanding anything to the contrary contained in this Agreement, Buyer, the Guarantors and their respective Affiliates shall not
be considered Debt Financing Sources.
“Delta”
means De Agostini S.P.A., a società per azioni organized under the laws of Italy.
“Delta Support Agreement”
means that certain Voting and Support Agreement, dated as of February 28, 2024, by and among Merger Partner, Remainco, Spinco and
Delta.
“DGCL”
means the Delaware General Corporation Law.
“DOL”
means the U.S. Department of Labor.
“Effect”
means any effect, change, event, development, occurrence or circumstance.
“Employee
Matters Agreement” shall have the meaning set forth in the Separation Agreement.
“Encumbrance”
shall have the meaning set forth in the Separation Agreement.
“Entity”
shall have the meaning set forth in the Separation Agreement.
“Environmental
Laws” means all applicable Law relating to pollution or protection of the environment, including any such Law relating
to the generation, use, handling, transportation, treatment, storage, disposal, remediation, or Release of, or exposure to Hazardous
Materials.
“Environmental Permit”
means any Permit required pursuant to Environmental Laws.
“Equity Interests”
shall have the meaning set forth in the Separation Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974.
“ERISA
Affiliate” means with respect to any Person, any other Person or trade or business (whether or not incorporated) under
common control with such first Person within the meaning of Section 4001(b) of ERISA or Section 414(b), (c), (m) or
(o) of the Code.
“Exchange Act”
means the Securities and Exchange Act of 1934.
“Excluded Matter”
means any Excluded Transaction, any Excluded Transaction Inquiry or any Excluded Transaction Proposal.
“Excluded Transaction”
means any transaction or series of transactions (other than the Contemplated Transactions) involving, directly or indirectly, (a) any
merger, exchange, consolidation, business combination, issuance of securities, acquisition of securities, amalgamation, scheme of arrangement,
reorganization, recapitalization, takeover offer, tender offer, exchange offer or other similar transaction, (i) in which any member
of the Remainco Group would acquire or become owners of Equity Interests of any Entity in exchange for cash, Equity Interests of any
member of the Remainco Group (other than any member of the Spinco Group), any Remainco Retained Assets or a combination thereof; (ii) to
which any member of the Remainco Group (other than any member of the Spinco Group) is a party or a constituent Entity and which would
result in a Third Party, or the equityholders of that Third Party, acquiring or owning Equity Interests of any member of the Remainco
Group (other than any member of the Spinco Group), the new parent of the Remainco Group or the Entity resulting from such transaction;
or (iii) in which Remainco issues Equity Interests or other securities; (b) any sale, lease, exchange, transfer, exclusive
license, acquisition or disposition (i) by any member of the Remainco Group of the Remainco Retained Business, any Remainco Retained
Assets or Equity Interests of any member of the Remainco Group (other than a member of the Spinco Group) or (ii) by any Entity to
any member of the Remainco Group (other than any member of the Spinco Group) of any business or assets of such Entity or its Subsidiaries;
(c) any issuance, sale or other disposition, directly or indirectly, to any Person or Persons of Equity Interests of Remainco; or
(d) any members of the Remainco Group that would otherwise constitute an Acquisition Transaction (without regard to the percentages
in the definition of Acquisition Transaction); provided that the definitive agreement for such transaction includes an acknowledgement
and agreement from all parties thereto that it will not be a breach of such definitive agreement for the Contemplated Transactions to
be consummated if the conditions to Closing in Article VII, Article VIII and Article IX are satisfied
or waived in accordance with the terms of this Agreement prior to the Outside Date; provided that (A) if such transaction
described in any of clause (a) through (d) would result in a new parent Entity owning all of the Remainco Ordinary
Shares or Remainco combining directly with another Entity such that there is a new resulting Entity, such new parent Entity or resulting
Entity will, upon consummation of such transaction, expressly assume all of the obligations of Remainco under this Agreement and all
of the other Transaction Documents, and (B) such transaction described in any of clause (a) through (d) (1) is
not conditioned on the termination, waiver, modification or amendment of any of the Transaction Documents or any of their respective
terms, and (2) would not reasonably be expected to prevent, materially delay, materially interfere with or materially impair the
Closing.
“Excluded Transaction
Inquiry” means an inquiry, indication of interest or request for information that would reasonably be expected to lead to an
Excluded Transaction Proposal.
“Excluded Transaction
Proposal” means any offer or proposal contemplating or otherwise relating to any Excluded Transaction.
“Existing Commitment
Documents” means, collectively, (a) that certain Amended and Restated Commitment Letter, dated as of March 29, 2024,
by and among Merger Partner, Spinco and the Commitment Parties (as defined therein), (b) that certain Amended and Restated Fee Letter,
dated as of March 29, 2024, by and among Merger Partner, Spinco and the Commitment Parties, (c) that certain Amended and Restated
Fee Credit Letter, dated as of March 29, 2024, by and among Merger Partner, Spinco and the Commitment Parties, (d) that certain
Amended and Restated Engagement Letter, dated as of March 29, 2024, by and among Merger Partner, Spinco and the commitment parties
party thereto, and (e) any other fee letters and/or side letters by and among Merger Partner, Spinco and the applicable Commitment
Parties entered into in connection with the Amended and Restated Commitment Letter specified in clause (a) above.
“FCRA”
means the federal Fair Credit Reporting Act, 15 U.S.C §§ 1681-1681x, Regulation V of the Consumer Financial Protection Bureau,
12 C.F.R. part 1022, and any Law applicable to a consumer reporting agency.
“FDI Laws”
means all applicable Laws designed or intended to prohibit, restrict or regulate foreign investment.
“Financial Services
Laws” means, with respect to the Merger Partner Business and the members of the Merger Partner Group, all applicable Laws dealing
with, among other things, anti-money laundering and sanctions, Money Services Laws, automated teller machine operations, credit reporting,
debt collection, consumer financial services and related privacy regulations, funds dispensed operations, network and card association
regulations and similar international financial services regulations, including all Laws described in Item 1 of Merger Partner’s
Report on Form 10-K for the year ended December 31, 2023 under the subheading “Financial Services Regulation”
“Fraud”
means, with respect to a Party, common law fraud of a representation or warranty in the Merger Agreement or any of the other Transaction
Documents executed as of the date hereof and any certificate delivered pursuant to Section 7.6, Section 8.6 or
Section 9.6 of the Merger Agreement involving an actual and intentional misrepresentation made by such Party with actual
knowledge of its falsity and made for the purpose of inducing the other Parties to act, and upon which the other Parties justifiably
relies with resulting Losses. Fraud shall not include any claim for equitable fraud, constructive fraud, promissory fraud, unfair dealings
fraud, fraud by reckless or negligent misrepresentation or any tort based on negligence or recklessness.
“GAAP”
means the accounting principles and practices generally accepted in the United States in effect at the date of determination or the date
of the financial statement to which it refers, as the case may be, consistent with historical practices as applied in the preparation
of the financial statements of Merger Partner, in the case of Merger Partner, or, with respect to the Spinco Business Financial Statements,
consistent with historical practices as applied in the preparation of the financial statements of Remainco, in the case of Spinco.
“Gaming
Approvals” means the licenses, findings of suitability, approvals, consents, registrations, declarations, notices or
filings required to be made or obtained under any Gaming Laws.
“Gaming
Authority” means any Governmental Authority with regulatory control and authority or jurisdiction over the manufacture,
sale, lease, distribution or operation of gaming, gambling or betting devices or equipment, the design, ownership, operation or distribution
of internet, online, interactive or mobile gaming, gambling or betting services or products, the ownership or operation of any casino
or any other gaming, gambling or betting activities and operations.
“Gaming
Laws” means all applicable Laws governing or relating to the manufacture, sale, distribution or operation of gaming,
gambling or betting equipment, the design, operation or distribution of internet gaming, gambling or betting services or products, the
ownership or operation of any casino, or online gaming, gambling or betting products and services or other gaming, gambling or betting
activities and operations of such Person and its Subsidiaries, including, the rules and regulations established by any Gaming Authority.
“Gaming
Licensees” means, collectively, the Merger Partner Required Gaming Licensees, the Spinco Business Required Gaming Licensees
and the Buyer Required Gaming Licensees.
“Ghostbusters Sublicensing
Agreement” shall have the meaning set forth in the Separation Agreement.
“Governmental
Approvals” means any consent, approval, clearance, license, permit, order, qualification, authorization of, or registration,
waiver or other action by any Governmental Authority, including (a) the expiration or termination of any waiting periods under the
HSR Act, other Antitrust Laws or FDI Laws, (b) the Gaming Approvals and (c) the Financial Services Approvals.
“Governmental Authority”
shall have the meaning set forth in the Separation Agreement.
“Governmental
Order” shall have the meaning set forth in the Separation Agreement.
“Group”
shall have the meaning set forth in the Separation Agreement.
“Group
Relief” shall have the meaning set forth in the Tax Matters Agreement.
“Guarantors”
means Apollo Investment Fund X, L.P., Apollo Overseas Partners (Delaware 892) X, L.P., Apollo Overseas Partners (Delaware) X, L.P., Apollo
Overseas Partners (Lux) X, SCSp and Apollo Overseas Partners X, L.P.
“Hazardous
Materials” means any chemical, material, substance or waste that is defined or classified as hazardous or toxic, or
as a “pollutant” or “contaminant” under any Environmental Law, including petroleum or petroleum products, asbestos
and asbestos containing materials, polychlorinated biphenyls, and per- and polyfluoroalkyl substances, and any other chemical, material,
substance, or waste that is regulated pursuant to Environmental Law.
“HSR Act”
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
“Indebtedness”
shall have the meaning set forth in the Separation Agreement; provided that, for purposes of this Agreement, “Indebtedness”
shall not include (a) trade payables, (b) obligations with respect to the unpaid portion of any royalty payments arising out
of the Sony License Agreement (as defined in the Separation Agreement), (c) obligations relating to any jackpot Liabilities or Contract
or any obligations relating to Credit Support Instruments, or (d) obligations related to any lease that is or is required to be
accounted for as an operating lease.
“Information”
means information in written, oral, electronic or other tangible or intangible form, stored in any medium, including studies, reports,
records, books, Contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings,
blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other
software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos
and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial,
employee or business information or data, but in any case excluding back-up tapes.
“Inside
Date” means the date following the date on which all of the Applicable Gaming Approvals have been received that is the earlier
of (a) three (3) Business Days following the date on which all of the Gaming Approvals listed on Schedule C-2 have been
received and (b) the later of (i) May 26, 2025 and (ii) the earlier of (A) two (2) months following the
date on which all of the Applicable Gaming Approvals have been received and (B) October 20, 2025. Notwithstanding anything
to the contrary contained in this Agreement, in no event shall the Inside Date be later than October 20, 2025.
“Inside Date Marketing
Period Start Date” means the earlier of (i) the occurrence of the Inside Date and (ii) the date that is 13 Business
Days prior to the latest date upon which the Inside Date may occur in accordance with the definition thereof.
“Insurance Policies”
shall have the meaning set forth in the Separation Agreement.
“Intellectual Property”
shall have the meaning set forth in the Separation Agreement.
“Intellectual
Property License Agreement” shall have the meaning set forth in the Separation Agreement.
“Intentional
Breach” means any material breach by a Party hereto of a representation, warranty, agreement or covenant contained in
any of the Transaction Documents which the breaching party knew or should have known such action or omission would constitute a breach
or violation of such representation, warranty, agreement or covenant.
“International
Trade Laws” means (a) all applicable Laws imposing financial and trade sanctions administered by the U.S. Treasury
Department Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, His Majesty’s Treasury,
the European Union and its Member States, Canada, or Mexico and (b) all applicable Laws and regulations relating to anti-boycott
and the import, export, re-export, or transfer of goods, software, or technology of the United States, the United Kingdom, the European
Union and its Member States, Canada, and Mexico, including the U.S. Department of Commerce’s Bureau of Industry and Security and
the UK Department for International Trade’s Export Control Joint Unit.
“IP License and
Technology Agreements” means the Ghostbusters Sublicensing Agreement, the Intellectual Property License Agreement, the Jumanji
Sublicensing Agreement, the Software License and Support Agreement in favor of the Remainco Group, the Software License and Support Agreement
in favor of the Spinco Group, the Vanna White Sublicensing Agreement, the Wheel of Fortune Sublicensing Agreement and the Whitney Houston
Sublicensing Agreement.
“IRS”
shall have the meaning set forth in the Tax Matters Agreement.
“Jumanji Sublicensing
Agreement” shall have the meaning set forth in the Separation Agreement.
“Knowledge
of Remainco” or a similar phrase means the actual knowledge after reasonable inquiry of the Persons set forth on Schedule
A.
“Knowledge
of Merger Partner” or a similar phrase means the actual knowledge after reasonable inquiry of the Persons set forth
on Schedule B.
“Law”
shall have the meaning set forth in the Separation Agreement.
“Liabilities”
shall have the meaning set forth in the Separation Agreement.
“Lookback
Date” means January 1, 2022.
“Losses”
means any and all losses, costs, charges, settlement payments, awards, judgements, fines, penalties, damages, expenses (including reasonable
attorneys’, actuaries’, accountants’ and other professionals’ fees, disbursements and expenses), liabilities,
claims or deficiencies of any kind.
“Made Available”
or “Make Available” means that (a) with respect to any information, document or other material to which Remainco
has given Merger Partner, Buyer or their respective Representatives access, either (i)(A) such information, document or material
was made available by Remainco for review by Merger Partner, Buyer or their respective Representatives at least twenty-four (24) hours
prior to the execution of this Agreement in the virtual data room maintained by Remainco on the data site hosted by SmartRoom in connection
with the Contemplated Transactions (it being understood that a document that was only made available for review in the virtual data room
in the twenty-four (24) hours prior to the execution of this Agreement shall only be deemed to have been made available if Remainco
shall have promptly notified Merger Partner, Buyer or their respective outside legal counsel that such document was uploaded to the virtual
data room) or (B) Merger Partner, Buyer or their respective Representatives had access to such information, document or material
by such time or (ii) that such information was filed by Remainco with the SEC prior to the date hereof and was, as of the date hereof
and at least twenty-four (24) hours prior to the execution of this Agreement, publicly available on the SEC’s EDGAR database;
(b) with respect to any information, document or other material to which Merger Partner has given Remainco, Buyer or their respective
Representatives access, either (i) (A) such information, document or material was made available by Merger Partner for review
by Remainco, Buyer or their respective Representatives at least twenty-four (24) hours prior to the execution of this Agreement in the
virtual data room maintained by Merger Partner on the data site hosted by Datasite in connection with the Contemplated Transactions (it
being understood that a document that was only made available for review in the virtual data room in the twenty-four (24) hours
prior to the execution of this Agreement shall only be deemed to have been made available if Merger Partner shall have promptly notified
Remainco, Buyer or their respective outside legal counsel that such document was uploaded to the virtual data room) or (B) Remainco,
Buyer or their respective Representatives had access to such information, document or material by such time or (ii) that such information
was filed by Merger Partner, with the SEC prior to the date hereof and was, as of the date hereof at least twenty-four (24) hours
prior to the execution of this Agreement, publicly available on the SEC’s EDGAR database; and (c) with respect to any information,
document or other material to which Buyer has given Remainco, Merger Partner or their respective Representatives access, either (i)(A) such
information, document or material was made available by Buyer for review by Remainco, Merger Partner or their respective Representatives
at least twenty-four (24) hours prior to the execution of this Agreement and (B) Remainco, Merger Partner or their respective
Representatives had access to such information, document or material by such time.
“Malicious Code”
means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,”
“ransomware,” or “worm” (as such terms are commonly understood in the Software industry) or any other code designed
to disrupt, disable, harm or interfere with, in any material 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) damaging or destroying any data or file without
the user’s consent.
“Marketing Period”
means the first period of thirteen (13) consecutive Business Days commencing after (a) the date that is the later of (I) the
date on which all conditions to the Closing shall have been satisfied or waived (other than those conditions which by their nature
are to be satisfied at the Closing, each of which is, as of such date, capable of being satisfied if the Closing were to occur at such
time) and (II) if the Inside Date has not occurred on or prior to such date in clause (I), the Inside Date Marketing Period Start
Date, in each case, and nothing has occurred and no condition exists that would cause any of the conditions to the Closing to fail to
be satisfied (other than those conditions that by their nature can only be satisfied at the Closing, each of which is, as of such date,
capable of being satisfied if the Closing were to occur at such time), assuming that such conditions were applicable at any time during
such thirteen (13) consecutive Business Day period; (b) Required Merger Partner Financial Information that is Compliant has been
delivered to Buyer and the Debt Financing Sources (it being understood that if Merger Partner shall in good faith reasonably believe
that it has provided the Required Merger Partner Financial Information and the Required Merger Partner Financial Information is Compliant,
it may deliver to Buyer and the Debt Financing Sources a written notice to that effect (stating when it believes the Required Merger
Partner Financial Information was delivered), in which case Merger Partner shall be deemed to have delivered the Required Merger Partner
Financial Information to Buyer and the Debt Financing Sources on the date of delivery of such notice unless Buyer or the Debt Financing
Sources in good faith reasonably believe that Merger Partner has not completed delivery of the Required Merger Partner Financial Information
or the Required Merger Partner Financial Information is not Compliant and, within three (3) Business Days after its receipt of such
notice from Merger Partner, Buyer or the Debt Financing Sources deliver a written notice to Merger Partner to that effect (stating with
specificity which Required Merger Partner Financial Information Buyer or the Debt Financing Sources reasonably believe Merger Partner
has not delivered or the reason for which Buyer or the Debt Financing Sources reasonably believe the Required Merger Partner Financial
Information is not Compliant); provided that it is understood that delivery of such written notice from Buyer and the Debt Financing
Sources to Merger Partner will not prejudice Merger Partner’s right to assert that the Required Merger Partner Financial Information
has in fact been delivered and is Compliant); and (c) the Required Spinco Financial Information that is Compliant has been delivered
to Buyer and the Debt Financing Sources (it being understood that if Remainco shall in good faith reasonably believe that it has provided
the Required Spinco Financial Information and the Required Spinco Financial Information is Compliant, it may deliver to Buyer and the
Debt Financing Sources a written notice to that effect (stating when it believes the Required Spinco Financial Information was delivered),
in which case Remainco shall be deemed to have delivered the Required Spinco Financial Information to Buyer and the Debt Financing Sources
on the date of delivery of such notice unless Buyer or the Debt Financing Sources in good faith reasonably believe that Remainco has
not completed delivery of the Required Spinco Financial Information or the Required Spinco Financial Information is not Compliant and,
within three (3) Business Days after its receipt of such notice from Remainco, Buyer or the Debt Financing Sources deliver a written
notice to Remainco to that effect (stating with specificity which Required Spinco Financial Information Buyer or the Debt Financing Sources
reasonably believe Remainco has not delivered or the reason for which Buyer or the Debt Financing Sources reasonably believe the Required
Spinco Financial Information is not Compliant); provided that it is understood that delivery of such written notice from Buyer
and the Debt Financing Sources to Remainco will not prejudice Remainco’s right to assert that the Required Spinco Financial Information
has in fact been delivered and is Compliant); provided that, in all cases, (i) November 27, 2024 and November 29,
2024 shall not be included in the calculation of such thirteen (13) consecutive Business Day period (and the Marketing Period need not
be consecutive to the extent it would have otherwise included any of those days), (ii) if such thirteen (13) consecutive Business
Day period has not ended on or prior to August 16, 2024, such period shall be deemed not to have commenced earlier than September 3,
2024, (iii) if such thirteen (13) consecutive Business Day period has not ended on or prior to December 20, 2024, such period
shall be deemed not to have commenced earlier than January 2, 2025, (iv) if such thirteen (13) consecutive Business Day period
has not ended on or prior to June 27, 2025, such period shall be deemed not to have commenced earlier than July 7, 2025 and
(v) if such thirteen (13) consecutive Business Day period has not ended on or prior to August 15, 2025, such period shall be
deemed not to have commenced earlier than September 2, 2025. Notwithstanding the foregoing, (A) the Marketing Period shall
end on any earlier date prior to the expiration of the thirteen (13) consecutive Business Day period described above (including prior
to the consummation of the thirteen (13) consecutive Business Day period described above) if the Debt Financing is closed or the proceeds
of the Debt Financing (including of any securities offering which replaces in its entirety the Senior Secured Bridge Facility (as defined
in the Debt Commitment Letter)) are obtained (including if funded into escrow on such earlier date) and/or in the case of the Senior
Facilities (as defined in the Debt Commitment Letter), if such facilities are fully allocated (and, in respect of the Term Facility (as
defined in the Debt Commitment Letter), such allocation is in connection with a general syndication) and (B) without derogation
of the foregoing clause (A), the Marketing Period shall not commence and shall be deemed not to have commenced if, on or prior
to the completion of such thirteen (13) consecutive Business Day period, (1) any members of the Remainco Group or any members of
the Merger Partner Group (as the case may be) shall have announced any intention to restate any financial statements or financial information
included in the Required Spinco Financial Information, or the Required Merger Partner Financial Information, or shall have announced
that any such restatement is under consideration or is a possibility by such Party, respectively, in which case the Marketing Period
shall be deemed not to commence unless and until such restatement has been completed and the applicable Required Spinco Financial Information
and Required Merger Partner Financial Information has been amended or any member of the Remainco Group or any member of the Merger Partner
Group (as the case may be) has announced that it has concluded that no restatement shall be required, and the requirements described
in the immediately preceding sentence would be satisfied on the first day, throughout and on the last day of such new thirteen (13) consecutive
Business Day period, (2) Remainco’s or Merger Partner’s independent accountants shall have withdrawn their audit opinion
with respect to any financial statements contained in or that includes the Required Spinco Financial Information or the Required Merger
Partner Financial Information for which they have provided an opinion, in which case the Marketing Period shall not commence or be deemed
to commence unless and until a new unqualified audit opinion is issued with respect to such financial statements for the applicable periods
by the independent accountants or another nationally-recognized independent public accounting firm reasonably acceptable to Buyer, or
(3) the Required Spinco Financial Information or the Required Merger Partner Financial Information is not Compliant on the first
day, throughout or on the last day of such thirteen (13) consecutive Business Day period, in which case a new thirteen (13) consecutive
Business Day period shall commence upon the Debt Financing Sources receiving updated Required Spinco Financial Information and updated
Required Merger Partner Financial Information (as the case may be) that is Compliant (it being understood that if at any time during
the Marketing Period the Required Spinco Financial Information and the Required Merger Partner Financial Information provided at the
initiation of the Marketing Period ceases to be Compliant, then the Marketing Period shall be deemed not to have occurred).
“Merger
Partner Benefit Arrangement” shall have the meaning set forth in the Employee Matters Agreement.
“Merger Partner
Business” means the business of the Merger Partner Group, taken as a whole.
“Merger Partner
Common Stock” means the common stock, $0.001 par value per share, of Merger Partner.
“Merger
Partner Credit Agreement” means that certain Credit Agreement, dated as of August 3, 2021, among Merger Partner, the lenders
party thereto from time to time and Jefferies Finance LLC, as administrative agent and collateral agent, as amended.
“Merger Partner
Data” means all confidential data, information and data compilations contained in the Merger Partner IT Systems or any databases
of any member of the Merger Partner Group, including Personal Data, that are used by, or necessary to any member of the Merger Partner
Group.
“Merger Partner
Data Processor” means a natural or legal Person, public authority, agency or other body that Processes Personal Data on behalf
of, at the direction of, or while providing services to, the members of the Merger Partner Group.
“Merger Partner
Disclosure Letter” means the Merger Partner Disclosure Letter that has been prepared by Merger Partner in accordance with the
requirements of Section 11.6 and that has been delivered by Merger Partner to Remainco concurrently with the execution of
this Agreement.
“Merger Partner
Employee” means any current or former director, officer or employee of any member of the Merger Partner Group.
“Merger
Partner Equity Award” means each outstanding stock option, restricted stock unit, performance stock unit, or other equity
or equity-based award awarded and outstanding under the Merger Partner Equity Plan or otherwise relating to equity interests of Merger
Partner, including Merger Partner Options, Merger Partner RSUs and Merger Partner PSUs.
“Merger
Partner Equity Plan” means the GCA Holdings, Inc. 2005 Stock Incentive Plan, the Everi Holdings Inc. 2012 Equity
Incentive Plan, and the Everi Holdings Inc. Amended and Restated 2014 Equity Incentive Plan.
“Merger Partner
Existing Indebtedness” means the Indebtedness evidenced by (a) the Merger Partner Credit Agreement and (b) the Merger
Partner Senior Notes.
“Merger Partner
Group” shall have the meaning set forth in the Separation Agreement.
“Merger
Partner Information Security Program” means a written information security program that complies with applicable Privacy Laws,
that when appropriately implemented and maintained would constitute reasonable security procedures and practices appropriate to the nature
of Personal Data, and that is at least as stringent as one or more relevant industry standards and that includes (a) policies and
procedures regarding Personal Data and the Processing thereof; (b) administrative, technical and physical safeguards to protect
the security, confidentiality and integrity of any Personal Data owned, controlled, maintained, held or Processed by the members of the
Merger Partner Group or any third party operating on behalf of or at the direction of the members of the Merger Partner Group; (c) disaster
recovery, business continuity, incident response and security plans, procedures and facilities; and (d) protections against Security
Incidents, Malicious Code and against loss, misuse or unauthorized access to and Processing of Merger Partner Data, Merger Partner IT
Systems and the systems of any Merger Partner Data Processor.
“Merger Partner
IP” means all Intellectual Property with respect to which any member of the Merger Partner Group has (or purports to have)
an ownership interest.
“Merger Partner
IT Systems” means the hardware, Software, firmware, middleware, equipment, electronics, platforms, servers, workstations, routers,
hubs, switches, interfaces, data, databases, data communication lines, network and telecommunications equipment, websites and internet-related
information technology infrastructure, wide area network and other data communications or information technology equipment, owned or
leased by, licensed to, or Processed in the conduct of, the Merger Partner Business.
“Merger Partner
Labor Agreement” means any agreement with any Employee Representative Body to which Merger Partner or a member of the Merger
Partner Group is a party or bound that pertains to any Merger Partner Employees.
“Merger
Partner Material Adverse Effect” means any Effect that, individually or in the aggregate with all other Effects, is or would
reasonably be expected to be or to become materially adverse to, or has or would reasonably be expected to have or result in a material
adverse effect on the business, assets, financial condition, results of operations or cash flows of the Merger Partner Business, taken
as a whole; provided that in no event shall any Effects to the extent directly or indirectly resulting from or arising out of
any of the following be deemed to constitute, or be taken into account in determining whether there has occurred, a Merger Partner Material
Adverse Effect: (a) general economic, financial, credit, regulatory or political conditions or any conditions generally affecting
any of the foregoing or affecting any segment of the industries or any regions in which the Merger Partner Business operates; (b) any
changes in the United States or global economy or the economy of any other jurisdiction or region or any changes in any capital, credit
or financial markets in the United States or any other jurisdiction or region (including interest rate and exchange rate changes, inflationary
matters or tariffs or trade wars); (c) any Change in Law applicable to the Merger Partner Business, in each case of clauses (a) through
(c), not having a materially disproportionate effect on the Merger Partner Business, relative to other participants in the industry
in which the Merger Partner Business operates; (d) change in GAAP or the accounting principles, practices or policies of any member
of the Merger Partner Group or the enforcement or interpretation thereof; (e) the execution, announcement or pendency of any of
the Transaction Documents, the consummation of any of the Contemplated Transactions or the performance of the obligations of the members
of the Merger Partner Group obligations under, any of the Transaction Documents (including compliance with the terms of any of the Transaction
Documents), including any adverse changes in the Merger Partner Business’s relationship with its employees, customers, partners,
Governmental Authorities, suppliers or vendors; provided that this clause (e) shall not apply with respect to (i) the
representations and warranties (in whole or in relevant part) made by Merger Partner in this Agreement, the purpose of which is to address
the consequences resulting from, relating to or arising out of the entry into or the announcement or pendency of any of the Transaction
Documents or the consummation of any of the Contemplated Transactions or (ii) the obligations of the members of the Merger Partner
Group to act in the ordinary course of business pursuant to Section 5.3(a); (f) actions taken or omitted with Buyer’s
consent or at Buyer’s request; (g) any acts of God, including any earthquakes, hurricanes, tornadoes, floods, tsunami, or
other natural disasters; (h)(i) any hostilities, acts of war (whether or not declared), sabotage, terrorism or military actions
or civil unrest, or any escalation or worsening of any such hostilities, act of war, sabotage, terrorism or military actions or civil
unrest or any disease, outbreak, pandemic, epidemic or the worsening thereof or (ii) any actual or potential, complete or partial,
sequester, stoppage, shutdown, default or similar event or occurrence by or involving or affecting any Governmental Authority, in each
case of subclauses (i) and (ii), not having a materially disproportionate effect on the Merger Partner Business, relative
to other participants in the industry in which the Merger Partner Business operates; (i) any failure by any member of the Merger
Partner Group or the Merger Partner Business to meet any internal or published projections, forecasts of revenues, earnings, or other
measures of financial or operating performance for any period; provided that the underlying causes of any such failure shall not
be deemed excluded from consideration in determining whether a Merger Partner Material Adverse Effect has occurred or would be reasonably
likely to occur solely as a result of this clause (i) and to the extent not otherwise excluded by this definition; (j) COVID-19
to the extent not having a materially disproportionate effect on the Merger Partner Business, relative to other participants in the industry
in which the Merger Partner Business operates; (k) changes in the trading price or trading volume of Merger Partner Common Stock;
provided that the underlying causes of any such changes shall not be deemed excluded from consideration in determining whether
a Merger Partner Material Adverse Effect has occurred or would be reasonably likely to occur solely as a result of this clause (k) and
to the extent not otherwise excluded by this definition; or (l) any stockholder or derivative litigation (or equivalent) arising
from or relating to this Agreement or the Contemplated Transactions.
“Merger Partner
Options” means each option to purchase shares of Merger Partner Common Stock from Merger Partner, whether granted by Merger
Partner pursuant to a Merger Partner Equity Plan, assumed by Merger Partner in connection with any merger, acquisition or similar transaction
or otherwise issued or granted and whether vested or unvested.
“Merger Partner
Owned Real Property” means the Owned Real Property of the members of the Merger Partner Group.
“Merger Partner
Privacy Policies” means any (a) internal or external past or present data protection, data usage, data privacy and security
policies of the members of the Merger Partner Group, (b) obligations, or commitments relating to privacy, security or the Processing
of Personal Data and (c) policies and obligations applicable to the members of the Merger Partner Group as a result of any certification
relating to privacy, security or the Processing of Personal Data.
“Merger Partner
Product” means any product or service (a) both (i) designed or developed and (ii) sold or licensed; (b) under
development and substantially completed; or (c) manufactured, sold, licensed, distributed, offered, provided, or made available,
directly or indirectly, in each of the foregoing (a), (b) and (c), by or on behalf of the members of the Merger
Partner Group as of the date hereof.
“Merger Partner
Proxy Statement” means the proxy statement to be sent to Merger Partner’s stockholders in connection with the Merger
Partner Stockholders’ Meeting.
“Merger Partner
PSU” means each performance share unit representing the right to vest in and be issued shares of Merger Partner Common Stock,
whether granted by Merger Partner pursuant to a Merger Partner Equity Plan, assumed by Merger Partner in connection with any merger,
acquisition or similar transaction or otherwise issued or granted and which vests based in whole or in part on the achievement of specified
performance objectives.
“Merger Partner
Real Property” means, collectively, the Merger Partner Leased Real Property and the Merger Partner Owned Real Property.
“Merger Partner
Reference Balance Sheet” means the unaudited consolidated balance sheet of Merger Partner and its consolidated Subsidiaries
as of the Merger Partner Reference Balance Sheet Date.
“Merger
Partner Reference Balance Sheet Date” means March 31, 2024.
“Merger Partner
Registered IP” means each item of Registered IP included in the Merger Partner IP.
“Merger Partner
Related Parties” means, collectively, Merger Partner, the other members of the Merger Partner Group, any of their respective
Affiliates, any of their and their Affiliates’ respective direct or indirect current, former or future equityholders, partners,
members, officers, directors, managers, employees and other Representatives, and their respective assignees.
“Merger
Partner Required Gaming Licensees” means the directors, officers, employees and managers (in their capacities as such)
of Merger Partner and its Affiliates who will be required to be licensed by or obtain any qualification, approval or suitability determinations
by or from any Gaming Authority in connection with the management and operation of the Merger Partner Business as operated substantially
in the same manner as the Merger Partner Business is being conducted as of the date hereof, excluding for the avoidance of doubt, any
individuals designated by Buyer as a replacement for any Merger Partner Required Gaming Licensees pursuant to Section 6.3(d).
“Merger Partner
RSU” means each restricted stock unit representing the right to vest in and be issued shares of Merger Partner Common Stock,
whether granted by Merger Partner pursuant to a Merger Partner Equity Plan, assumed by Merger Partner in connection with any merger,
acquisition or similar transaction or otherwise issued or granted and whether vested or unvested (which excludes any Merger Partner PSUs).
“Merger Partner
Senior Notes” means each series of 5.000% Senior Unsecured Notes due 2029 governed by the Indenture dated as of July 15,
2021 by and among Merger Partner and Deutsche Bank Trust Company Americas, as trustee, as amended or supplemented from time to time.
“Merger Partner
Software” means all Software that is owned or purported to owned by any member of the Merger Partner Group.
“Merger Partner
Superior Proposal” means a bona fide written offer by a Third Party that is not solicited in material breach of
Section 5.5(a) to acquire, directly or indirectly, at least a majority of the outstanding shares of Merger Partner Common
Stock or at least a majority of the assets of the members of the Merger Partner Group (whether through a tender offer, merger or otherwise),
that is determined by the Merger Partner Board in its good faith judgment, after consultation with its financial advisor and outside
legal counsel, and after considering such factors that the Merger Partner Board determines to be relevant, including the terms and conditions
of the offer, likelihood of consummation and other relevant information, (a) to be more favorable, from a financial point of view,
to Merger Partner’s stockholders than the Contemplated Transactions (considering any amendments to the Transaction Documents or
the Financing proposed by Remainco) and (b) to be reasonably likely to be completed, considering such factors that the Merger Partner
Board determines to be relevant. No Acquisition Proposal or other proposal made by Buyer or any of its Affiliates or any of the Guarantors
or any of their Affiliates (including any “group” (as defined in the Exchange Act and the rules promulgated thereunder)
of which any of them is a part) shall be considered to be a Merger Partner Superior Proposal.
A
“Merger Partner Triggering Event” shall be deemed to have occurred if (a) the Merger Partner Board (or committee
thereof) shall have effected a Merger Partner Change in Recommendation; (b) the Merger Partner Board (or committee thereof) shall
have adopted, approved, endorsed, declared advisable or recommended to Merger Partner’s stockholders an Acquisition Proposal other
than the Contemplated Transactions; (c) the Merger Partner Board shall have failed to publicly reaffirm the Merger Partner Board
Recommendation within ten (10) Business Days following receipt of a written request by Remainco to provide such reaffirmation after
an Acquisition Proposal (other than by the commencement of a tender offer or exchange offer) shall have been publicly disclosed
or shall have become publicly known; provided that Remainco and Buyer may each only make such request once with respect to any
Acquisition Proposal and once with respect to each material amendment to any Acquisition Proposal; (d) Merger Partner shall have
failed to include in the Merger Partner Proxy Statement the Merger Partner Board Recommendation or included in the Merger Partner Proxy
Statement any proposal to vote upon or consider any Acquisition Proposal other than the Contemplated Transactions; (e) any member
of the Merger Partner Group shall have entered into any letter of intent or similar document or any Contract relating to any Acquisition
Transaction (excluding any Permitted Confidentiality Agreements); (f) the Merger Partner Board shall have failed to recommend against
a competing tender offer or exchange offer for twenty percent (20%) or more of the outstanding capital stock of Merger Partner within
ten (10) Business Days after commencement of such offer (including by taking no position with respect to the acceptance of such
tender offer or exchange offer by its stockholders) or (g) any member of the Merger Partner Group (or any of their directors or
officers, in their capacity as such) shall have materially breached Section 5.5 or Section 6.2(c).
“Money
Services Laws” means all applicable Laws relating to the business of receiving money or funds for transmission, sale
of payment instruments (including money orders), issuance, sale or loading of prepaid or stored value, cashing of checks, sale, exchange,
trading or custody of virtual currency or other digital assets or otherwise engaging in money services businesses and the rights of consumers
who use such services of such businesses.
“Money
Services Permits” means any Permit that is required under any Money Services Laws to entitle any member of the Merger
Partner Group to own or lease, operate and use its assets, and to carry on and conduct applicable aspects of the Merger Partner Business
as currently conducted.
“Non-Gaming
Credit Support Obligations” shall mean obligations relating to Credit Support Instruments other than those required
by any Gaming Authority or under any applicable Gaming Laws.
“NYSE”
means the New York Stock Exchange.
“Open
Source Software” means software or other material that is distributed as “open source software” or under
similar licensing or distribution terms (including the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla
Public License (MPL), Apache Software License, any of the Creative Commons suites of licenses, and any license approved by the Open Source
Initiative and listed at opensource.org/licenses).
“Organizational
Documents” means (a) with respect to any corporation, its articles or certificate of incorporation and bylaws; (b) with
respect to any limited liability company, its articles or certificate of organization or formation and its operating agreement or limited
liability company agreement or documents of similar substance; (c) with respect to any limited partnership, its certificate of limited
partnership and partnership agreement or governing or organizational documents of similar substance; and (d) with respect to any
other Entity, governing or organizational documents of similar substance to any of the foregoing, in the case of each of clauses (a) through
(d), as may be in effect from time to time.
“Owned Real Property”
means all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights
and interests appurtenant thereto that is owned.
“Permit”
means any governmental qualification, registration, filing, privilege, franchise, license, permit or approval from any Governmental
Authority.
“Permitted Confidentiality
Agreement” means any non-disclosure or confidentiality agreement entered into with respect to Merger Partner, by Merger Partner
as required by Section 5.5.
“Permitted
Encumbrances” means (a) equipment leases that are classified as capital leases (i) in the case of the members
of the Spinco Group, in the Spinco Reference Balance Sheet or notes thereto, and (ii) in the case of the members of the Merger Partner
Group, Encumbrances disclosed in the balance sheet of Merger Partner included in Merger Partner’s Quarterly Report on 10-Q for
the quarter ended Merger Partner Balance Sheet Date; (b) purchase money security interests for inventory and supplies purchased
for the Spinco Business or the Merger Partner Business; (c) interests of customers in any goods identified to a contract of sale;
(d) Encumbrances for Taxes, assessments or other governmental charges or levies that are not yet due or payable or that are being
contested in good faith by appropriate proceedings to the extent adequate reserves in respect thereof have been established and taken
into account as a Liability (i) in the case of the members of the Spinco Group, in the Spinco Reference Balance Sheet or notes thereto,
and (ii) in the case of the members of the Merger Partner Group, in Merger Partner’s Quarterly Report on 10-Q for the quarter
ended Merger Partner Balance Sheet Date; (e) statutory Encumbrances of landlords and preliminary Encumbrances of carriers, warehousemen,
mechanics, materialmen, repairmen and other similar preliminary Encumbrances imposed by Law for amounts not yet due; (f) Encumbrances
incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance or
other types of social security; (g) defects of title or survey, easements, rights of way, covenants, restrictions and other similar
Encumbrances against title to any Owned Real Property or to any Spinco Leased Real Property or any Merger Partner Leased Real Property
not materially affecting the use or enjoyment of the applicable real property by any member of the Spinco Group or any member of the
Merger Partner Group, as applicable, or otherwise materially interfering with the ordinary conduct of business; (h) zoning, building
and other generally applicable Laws; (i) Encumbrances incurred in the ordinary course of business that do not individually or in
the aggregate materially detract from the value or materially interfere with the present use of the relevant asset or materially and
adversely affect the occupancy and use of the affected assets as they are presently occupied and used; (j) non-exclusive licenses
to Intellectual Property executed in the ordinary course of business; (k) Encumbrances that affect the underlying fee interest of
any leased real property; (l) security interests in any bank account in favor of the depositary bank, and security interests in
any securities account in favor of the broker or other Entity that maintains such account arising in the ordinary course of business;
and (m) solely with respect to the members of the Spinco Group, Encumbrances described in Section 2.6(b) of the
Remainco Disclosure Letter, and solely with respect to the members of the Merger Partner Group, Encumbrances described in Section 3.6(b) of
the Merger Partner Disclosure Letter.
“Person”
means any natural person, Entity or Governmental Authority.
“Personal Data”
means information relating to or reasonably capable of being associated with an identified or identifiable person, device, or household,
including (a) a natural person’s name, street address or specific geolocation information, date of birth, telephone number,
email address, online contact information, photograph, biometric data, Social Security number, driver’s license number, passport
number, tax identification number, any government-issued identification number; or (b) “personal data,” “personal
information,” “protected health information,” “nonpublic personal information” or other similar terms as
defined by applicable Privacy Laws.
“Post-Closing
Remainco Group Members” means the Entities that immediately following the Equity Sale Closing Time are contemplated
to be members of the Remainco Group.
“Privacy Laws”
means all applicable Laws, or written and adopted privacy policies, industry requirements and Contracts relating to (a) the privacy,
confidentiality, integrity, availability, collection, use, access, Processing, protection, cyber security, Security Incident notification,
deletion or disclosure of Spinco Company Data, Spinco IT Systems, Merger Partner Data or Merger Partner IT Systems, as applicable, (b) cybersecurity
(including secure software development) or (c) artificial intelligence, automated decision making or machine learning technologies.
“Pro Rata Portion”
means (a) with respect to the apportionment of the Merger Partner Termination Fee as between Remainco and Buyer pursuant to Section 10.3(b) or
the Merger Partner Enforcement Costs pursuant to Section 10.3(h)(i), (i) with respect to Remainco, fifty percent (50%),
and (ii) with respect to Buyer, fifty percent (50%); provided that, if any member of the Remainco Group participates in,
or otherwise has any agreement, arrangement or understanding to participate in, the Acquisition Transaction relating to the payment of
such Merger Partner Termination Fee, then the Merger Partner Termination Fee shall be apportioned (x) with respect to Remainco,
zero percent (0%), and (y) with respect to Buyer, one hundred percent (100%); and (b) with respect to the apportionment of
the Buyer Regulatory Termination Fee and the Buyer Breach Termination Fee as between Remainco and Merger Partner pursuant to Section 10.3(e) or
the Buyer Enforcement Costs pursuant to Section 10.3(h)(ii), (i) with respect to Remainco, sixty-five percent (65%),
and (ii) with respect to Merger Partner, thirty-five percent (35%).
“Processing”,
“Process” or “Processed” means any collection, access, acquisition, storage, protection, use, recording,
maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure, destruction, transfer, modification or any other
processing (as defined by applicable Privacy Laws) of such Spinco Company Data, Spinco IT Systems, Merger Partner Data or Merger
Partner IT Systems, as applicable.
“Purchase Price”
shall have the meaning set forth in the Separation Agreement.
“Real
Estate Matters Agreement” shall have the meaning set forth in the Separation Agreement.
“Registered IP”
means all Intellectual Property that are registered, filed or issued with, by or under the authority of any Governmental Authority, including
all patents, registered copyrights, registered mask works, internet domain names and registered trademarks and all applications for any
of the foregoing.
“Regulatory Affiliate”
means, (a) with respect to Merger Partner, any Affiliate of any member of the Merger Partner Group, (b) with respect to Remainco,
any Affiliate of any member of the Remainco Group and (c) with respect to Buyer, any Buyer Regulatory Affiliate.
“Regulatory Lookback
Date” means January 1, 2021.
“Related Party”
means a Buyer Related Party, a Merger Partner Related Party or a Remainco Related Party, as applicable.
“Release”
means any release, spill, emission, leaking, injection, deposit, discharge, disposal, dispersal, pumping, leaching or migration
into the indoor or outdoor environment, including the movement of Hazardous Materials through or in the air, soil, surface water, or
groundwater, or into or out of any property.
“Remainco
Benefit Arrangement” shall have the meaning set forth in the Employee Matters Agreement.
“Remainco
Books and Records” shall have the meaning set forth in the Separation Agreement.
“Remainco Disclosure
Letter” means the Remainco Disclosure Letter that has been prepared by Remainco in accordance with the requirements of Section 11.6
and that has been delivered by Remainco to Merger Partner concurrently with the execution of this Agreement.
“Remainco
Equity Award” means each outstanding stock option, restricted stock unit, performance stock unit, or other equity or
equity-based award awarded and outstanding under the Remainco Equity Plan or otherwise relating to equity interests of Remainco.
“Remainco
Equity Plan” shall have the meaning set forth in the Employee Matters Agreement.
“Remainco Group”
shall have the meaning set forth in the Separation Agreement.
“Remainco Ordinary
Shares” means the ordinary shares of Remainco, $0.10 par value per share.
“Remainco PSU”
means each performance share unit representing the right to vest in and be issued Remainco Ordinary Shares, whether granted by Remainco
pursuant to a Remainco Equity Plan, assumed by Remainco in connection with any merger, acquisition or similar transaction or otherwise
issued or granted, and which vests based in whole or in part on the achievement of specified performance objectives.
“Remainco Related
Parties” means, collectively, Remainco, the other members of the Remainco Group, any of their respective Affiliates, any of
their and their Affiliates’ respective direct or indirect current, former or future equityholders, partners, members, officers,
directors, managers, employees and other Representatives, and their respective assignees.
“Remainco
Retained Assets” shall have the meaning set forth in the Separation Agreement.
“Remainco
Retained Business” shall have the meaning set forth in the Separation Agreement.
“Remainco
Retained Liabilities” shall have the meaning set forth in the Separation Agreement.
“Remainco RSU”
means each restricted share unit representing the right to vest in and be issued Remainco Ordinary Shares by Remainco, whether granted
by Remainco pursuant to a Remainco Equity Plan, assumed by Remainco in connection with any merger, acquisition or similar transaction
or otherwise issued or granted and whether vested or unvested (which excludes any Remainco PSUs).
“Remainco SEC Documents”
means all registration statements, Remainco Certifications and other statements, reports, schedules, forms and other documents filed
by Remainco with the SEC, including all amendments thereto, since the Lookback Date.
“Representatives”
of a Person means such Person’s Affiliates and the directors, officers, employees, advisors, agents, equityholders, consultants,
independent accountants, investment bankers, counsel or other representatives of such Person and of such Person’s Affiliates, in
each case, acting at the direction of such Person.
“Required Merger
Partner Financial Information” means the financial statements and other information, and other data (including management
discussion and analysis) with respect to Merger Partner of the type required in a registration statement on Form S-1 by Regulation S-X
and Regulation S-K under the Securities Act for registered offerings of debt securities at such time, and of the type (and with exceptions,
including information required by Section 3-10 or Section 3-16 of Regulation S-X and compensation information) customarily
included in offering memoranda or similar documents (other than the portions thereof that are customarily provided by financing sources,
including a description of the securities, and information that is customarily excluded therefrom), to consummate a Rule 144A offering
of senior secured notes, including (a) audited consolidated balance sheets and related statements of operations and comprehensive
income (loss), stockholders’ equity and cash flows of Merger Partner and its consolidated subsidiaries for the fiscal years ended
December 31, 2023, 2022 and 2021 (or, beginning ninety (90) days after December 31, 2024, the fiscal years ended December 31,
2024, 2023 and 2022); (b) quarterly financial statements for each fiscal quarter ending after the date hereof and at least sixty
(60) days prior to the Closing Date (other than any fourth fiscal quarter); and (c) annual and interim pro forma financial
statements giving effect to the Merger and other recent or probable material acquisitions (to the extent required in a registration statement
on Form S-1) for the most recent annual and interim periods for which financial statements have been delivered pursuant to clauses (a) and
(b), respectively, and for the twelve (12)-month period ending on the last day of the most recently completed four (4)-fiscal
quarter period for which financial statements have been delivered pursuant to clauses (a) and (b) hereof.
“Required Spinco
Financial Information” means the financial statements and other information, and other data (including management discussion
and analysis) with respect to Spinco of the type required in a registration statement on Form S-1 by Regulation S-X and Regulation
S-K under the Securities Act for registered offerings of debt securities at such time, and of the type (and with exceptions, including
information required by Section 3-10 or Section 3-16 of Regulation S-X and compensation information) customarily included in
offering memoranda or similar documents (other than the portions thereof that are customarily provided by financing sources, including
a description of the securities, and information that is customarily excluded therefrom), to consummate a Rule 144A offering of
senior secured notes, including (a) audited consolidated balance sheets and related statements of operations, other comprehensive
income, net parent investment and cash flows of Spinco and its consolidated subsidiaries for the fiscal years ended December 31,
2023, 2022 and 2021 (or, beginning ninety (90) days after December 31, 2024, the fiscal years ended December 31, 2024, 2023
and 2022); (b) quarterly financial statements for each fiscal quarter ending after the date hereof and at least sixty (60)
days prior to the Closing Date (other than any fourth fiscal quarter); and (c) annual and interim pro forma financial statements
giving effect to the Equity Sale and other recent or probable material acquisitions (to the extent required in a registration statement
on Form S-1) for the most recent annual and interim periods for which financial statements have been delivered pursuant to clauses (a) and
(b), respectively, and for the twelve (12)-month period ending on the last day of the most recently completed four (4)-fiscal
quarter period for which financial statements have been delivered pursuant to clauses (a) and (b) hereof.
“Rhode Island VLT
JV Interest Management Contract” shall have the meaning set forth in the Separation Agreement.
“Rhode Island VLT
System Subcontract” shall have the meaning set forth in the Separation Agreement.
“Sanctioned
Party” means (a) a person listed on a prohibited or restricted party list published by the United States government,
including the U.S. Treasury Department Office of Foreign Assets Control “Specially Designated Nationals and Blocked Persons List”
and “Consolidated Sanctions List,” or similar U.S. lists, or any such list maintained by the United Nations, the United Kingdom,
the European Union or its Member States, Canada, or Mexico; (b) the government, including any political subdivision, agency, or
instrumentality thereof, of any country or territory subject to comprehensive economic sanctions (which at the time of this Agreement
are Cuba, Iran, North Korea, Syria and Crimea and the so-called Donetsk People’s Republic and Luhansk People’s Republic
regions of Ukraine) (each a “Sanctioned Country”) or Venezuela; (c) an ordinary resident of, person located in,
or Entity registered in or established under the jurisdiction of, a Sanctioned Country; or (d) a Person acting or purporting to
act, directly or indirectly, on behalf of, or a party owned or controlled by, any of the Persons listed in the foregoing subclauses
(a) through (c).
“Sarbanes-Oxley
Act” means the Sarbanes-Oxley Act of 2002, as it may be amended from time to time.
“SEC”
means the United States Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, as amended.
“Security
Incident” means any unauthorized Processing or disruption, or unlawful destruction, loss, or alteration of Spinco Company Data
or Spinco IT Systems, or Merger Partner Data or Merger Partner IT Systems, as applicable, or any other data security incident requiring
notification to any Person or Governmental Authority under applicable Privacy Laws.
“Self-Insurance”
shall have the meaning set forth in the Separation Agreement.
“Separation”
shall have the meaning set forth in the Separation Agreement.
“Separation Agreement”
means the Separation and Sale Agreement by and among Remainco, Spinco, Merger Partner and Buyer, dated as of the date hereof.
“Separation Plan”
shall have the meaning set forth in the Separation Agreement.
“Shared Contract”
shall have the meaning set forth in the Separation Agreement.
“Shared
Information” means (a) all Information provided by any of Remainco or its Affiliates (including the members of
the Spinco Group) to Buyer or its Affiliates hereunder prior to the Closing, and (b) any Information in the possession or under
the control of Remainco, Buyer or their respective Affiliates that relates to the operation of the Spinco Business or any member of the
Spinco Group prior to the Closing and that the requesting party reasonably needs (i) to comply with reporting, disclosure, filing
or other requirements imposed on the requesting party (including under applicable securities and Law) by a Governmental Authority having
jurisdiction over the requesting party; (ii) for use in any other judicial, regulatory, administrative or other proceeding or to
satisfy audit, accounting, claims, regulatory, litigation or other similar requirements, in each case other than claims or allegations
that one party to this Agreement has against the other; (iii) subject to the foregoing clause (ii) above, to comply
with its obligations under this Agreement; or (iv) to the extent such Information and cooperation is necessary to comply with such
reporting, filing and disclosure obligations, for the preparation of financial statements or completing an audit, and as reasonably necessary
to conduct the ongoing businesses of Buyer, the members of the Spinco Group or Remainco and their respective Affiliates (as the case
may be).
“Software”
means computer software, including assemblers, applets, compilers, source code, object code, binary libraries, development tools, design
tools and user interfaces, in any form or format, however fixed, and all associated documentation.
“Software License
and Support Agreement in favor of Remainco Group” shall have the meaning set forth in the Separation Agreement.
“Software License
and Support Agreement in favor of Spinco Group” shall have the meaning set forth in the Separation Agreement.
“Solvent”
when used with respect to any Person, means that, as of any date of determination, (a) the fair value of the assets of such Person
and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent
or otherwise, of such Person and its Subsidiaries on a consolidated basis, (b) the present fair saleable value of the property of
such Person and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability
of such Person and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured, (c) such Person and its Subsidiaries on a consolidated
basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured and (d) such Person and its Subsidiaries on a consolidated basis will not have unreasonably small capital with
which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following
the Closing Date.
“Specified Costs”
shall have the meaning set forth in Section 6.3(l) of the Buyer Disclosure Letter.
“Specified Costs
Cap” shall have the meaning set forth in Section 6.3(l) of the Buyer Disclosure Letter.
“Spinco Assets”
shall have the meaning set forth in the Separation Agreement.
“Spinco Benefit
Arrangement” shall have the meaning set forth in the Employee Matters Agreement.
“Spinco
Budget” means the operating budget of the Spinco Business with respect to the fiscal years 2019 through 2027 Made Available
to Merger Partner and Buyer.
“Spinco Business”
shall have the meaning set forth in the Separation Agreement.
“Spinco Business
Required Gaming Licensees” means the directors, officers, employees and managers (in their capacities as such) of Remainco
and its Affiliates who will be required to be licensed by or obtain any qualification, approval or suitability determinations by or from
any Gaming Authority in connection with the management and operation of the Spinco Business as operated substantially in the same manner
as the Spinco Business is being conducted as of the date hereof, excluding for the avoidance of doubt, any individuals designated by
Buyer as a replacement for any Spinco Business Required Gaming Licensees pursuant to Section 6.3(d).
“Spinco
Company Data” means all confidential data, information, and data compilations contained in the Spinco IT Systems or any databases
of the members of the Spinco Group, including Personal Data, that are used primarily by the members of the Spinco Group.
“Spinco
Company Privacy Policies” means any (a) internal or external past or present data protection, data usage, data privacy
and security policies of the members of the Spinco Group, (b) obligations or commitments relating to privacy, security or
the Processing of Personal Data and (c) policies and obligations applicable to the members of the Spinco Group as a result of any
certification relating to privacy, security or the Processing of Personal Data.
“Spinco Contribution”
shall have the meaning set forth in the Separation Agreement.
“Spinco Employee”
means an individual who will become or is reasonably expected by Remainco, as of the date hereof, to become a “Spinco Employee,”
as such term is defined in the Employee Matters Agreement.
“Spinco Former Employee”
shall have the meaning set forth in the Employee Matters Agreement.
“Spinco Group”
shall have the meaning set forth in the Separation Agreement.
“Spinco
Information Security Program” means a written information security program that complies with applicable Privacy Laws,
that when appropriately implemented and maintained would constitute reasonable security procedures and practices appropriate to the nature
of Personal Data, and that is at least as stringent as one or more relevant industry standards and that includes (a) policies and
procedures regarding Personal Data and the Processing thereof; (b) administrative, technical and physical safeguards to protect
the security, confidentiality and integrity of any Personal Data owned, controlled, maintained, held or Processed by the members of the
Spinco Group or any third party operating on behalf of or at the direction of the members of the Spinco Group; (c) disaster recovery,
business continuity, incident response and security plans, procedures and facilities; and (d) protections against Security Incidents,
Malicious Code and against loss, misuse or unauthorized access to and Processing of Spinco Company Data, Spinco IT Systems and the systems
of any Data Processor.
“Spinco
Intellectual Property” means all Intellectual Property with respect to which any member of the Spinco Group has (or
purports to have) an ownership or license interest.
“Spinco IT Systems”
means all information technology and computer systems relating to the transmission, storage, maintenance, organization, presentation,
generation, processing or analysis of data and information whether or not in electronic format, used primarily in the conduct of the
Spinco Business.
“Spinco
Material Adverse Effect” means any Effect that, individually or in the aggregate with all other Effects, is or would reasonably
be expected to be or to become materially adverse to, or has or would reasonably be expected to have or result in a material adverse
effect on the business, assets, financial condition, results of operations or cash flows of the Spinco Business, taken as a whole; provided
that in no event shall any Effects to the extent directly or indirectly resulting from or arising out of any of the following be
deemed to constitute, or be taken into account in determining whether there has occurred, a Spinco Material Adverse Effect: (a) general
economic, financial, credit, regulatory or political conditions or any conditions generally affecting any of the foregoing or affecting
any segment of the industries or any regions in which the Spinco Business operates; (b) any changes in the United States or global
economy or the economy of any other jurisdiction or region or any changes in any capital, credit or financial markets in the United States
or any other jurisdiction or region (including interest rate and exchange rate changes, inflationary matters or tariffs or trade wars);
(c) any Change in Law applicable to the Spinco Business, in each case of clauses (a) through (c), not having
a materially disproportionate effect on the Spinco Business, relative to other participants in the industry in which the Spinco Business
operates; (d) change in GAAP or the accounting principles, practices or policies of any member of the Spinco Group or the enforcement
or interpretation thereof; (e) the execution, announcement or pendency of any of the Transaction Documents, the consummation of
any of the Contemplated Transactions or the performance of the obligations of the members of the Remainco Group or the Spinco Group under,
any of the Transaction Documents (including compliance with the terms of any of the Transaction Documents), including any adverse changes
in the Spinco Business’s relationship with its employees, customers, partners, Governmental Authorities, suppliers or vendors;
provided that this clause (e) shall not apply with respect to (i) the representations and warranties (in whole
or in relevant part) made by Remainco and Spinco in this Agreement, the purpose of which is to address the consequences resulting from,
relating to or arising out of the entry into or the announcement or pendency of any of the Transaction Documents or the consummation
of any of the Contemplated Transactions or (ii) the obligations of the members of the Remainco Group to act in the ordinary course
of business pursuant to Section 5.2(a); (f) actions taken or omitted with Buyer’s consent or at Buyer’s
request; (g) any acts of God, including any earthquakes, hurricanes, tornadoes, floods, tsunami, or other natural disasters; (h)(i) any
hostilities, acts of war (whether or not declared), sabotage, terrorism or military actions or civil unrest, or any escalation or worsening
of any such hostilities, act of war, sabotage, terrorism or military actions or civil unrest or any disease, outbreak, pandemic, epidemic
or the worsening thereof or (ii) any actual or potential, complete or partial, sequester, stoppage, shutdown, default or similar
event or occurrence by or involving or affecting any Governmental Authority, in each case of subclauses (i) and (ii),
not having a materially disproportionate effect on the Spinco Business, relative to other participants in the industry in which the Spinco
Business operates; (i) any failure by any member of the Spinco Group or the Spinco Business to meet any internal or published projections,
forecasts of revenues, earnings, or other measures of financial or operating performance for any period; provided that the underlying
causes of any such failure shall not be deemed excluded from consideration in determining whether a Spinco Material Adverse Effect has
occurred or would be reasonably likely to occur solely as a result of this clause (i) and to the extent not otherwise excluded
by this definition; (j) COVID-19 to the extent not having a materially disproportionate effect on the Spinco Business, relative
to other participants in the industry in which the Spinco Business operates; (k) changes in the trading price or trading volume
of Remainco Ordinary Shares; provided that the underlying causes of any such changes shall not be deemed excluded from consideration
in determining whether a Spinco Material Adverse Effect has occurred or would be reasonably likely to occur solely as a result of this
clause (k) and to the extent not otherwise excluded by this definition; (l) any stockholder or derivative litigation
(or equivalent) arising from or relating to this Agreement or the Contemplated Transactions; or (m) any Remainco Retained Asset,
any Remainco Retained Liability or other asset or property of any member of the Remainco Group (other than a member of the Spinco Group)
that is not being transferred pursuant to this Agreement or any matters relating to the Remainco Retained Business.
“Spinco Owned Intellectual
Property” shall have the meaning set forth in the Separation Agreement.
“Spinco Owned Real
Property” means the Owned Real Property identified on Section 2.9(a) of the Remainco Disclosure Letter (excluding
the Remainco Retained Properties (as defined in the Real Estate Matters Agreement)).
“Spinco Owned Software”
shall have the meaning set forth in the Separation Agreement.
“Spinco Real Property”
means, collectively, the Spinco Leased Real Property and the Spinco Owned Real Property.
“Spinco
Reference Balance Sheet Date” means March 31, 2024.
“Spinco Units”
means units of Spinco.
“Statutory Lookback
Date” means January 1, 2019.
“Subsidiary”
of any Person means any Entity at the time of determination (a) the issued and outstanding Equity Interests having ordinary voting
power to elect a majority of the board of directors (or a majority of another body performing similar functions) of such corporation
or other Person (irrespective of whether at the time Equity Interests of any other class or classes of such corporation or other Person
shall or might have voting power upon the occurrence of any contingency), (b) more than fifty percent (50%) of the interest in the
capital or profits of such partnership, joint venture or limited liability company or (c) more than fifty percent (50%) of the beneficial
interest in such trust or estate, is directly or indirectly owned by such Person; provided that (i) each member of the Spinco
Group shall be a Subsidiary of Remainco (and not of Buyer) until the Closing and a Subsidiary of Buyer (and not of Remainco) from and
after the Closing and (ii) neither Remainco nor any of its Subsidiaries shall be considered a Subsidiary of Delta.
“Tax”
shall have the meaning set forth in the Tax Matters Agreement.
“Tax
Matters Agreement” shall have the meaning set forth in the Separation Agreement.
“Tax Return”
shall have the meaning set forth in the Tax Matters Agreement.
“Technology”
means all products, tools, devices, mask works, computer programs, Software, concepts, know-how, algorithms, methods, processes, procedures,
formulae, designs, drawings, customer lists, supplier lists, databases, data collections, information, specifications, marketing materials,
user interfaces, websites, specifications, programmer notes, specifications, packaging, graphics, artwork, audiovisual works, images,
photographs, literary works, performances, music, sounds, content, user interfaces, “look and feel,” inventions (whether
or not patentable), invention disclosures, discoveries, works of authorship (whether or not copyrightable), and designs.
“Third
Party” means any Governmental Authority or Person other than Remainco, Spinco, Merger Partner or any other member of
their respective Groups, any Buyer Party or any Affiliate of any of the foregoing.
“Transaction
Claim” means, collectively, any claims in connection with, relating to or arising out of
(a) this Agreement, the Separation Agreement, the other Transaction Documents or any
of the other agreements, instruments, and documents contemplated hereby or thereby or executed in connection herewith or therewith and
the Contemplated Transactions and the transactions contemplated thereby, (b) the negotiation, execution or performance or non-performance of
any of the foregoing, (c) the failure of the Closing to occur (including the consummation of the Equity Sale or the Merger or the
funding of the Financing and, in any case, whether willfully, intentionally, unintentionally or otherwise), or the termination of any
Transaction Document or any matter forming the basis for such termination, or (d) any breach (or threatened or alleged breach) of,
or failure (or threatened or alleged failure) to perform under, this Agreement, the Separation Agreement, the other Transaction Documents
or any certificate or other document delivered herewith or therewith or executed in connection herewith or therewith.
“Transaction Documents”
shall have the meaning set forth in the Separation Agreement.
“Transfer”
shall have the meaning set forth in the Separation Agreement.
“Transition
Services Agreement” shall have the meaning set forth in the Separation Agreement.
“Vanna White Sublicensing
Agreement” shall have the meaning set forth in the Separation Agreement.
“WARN
Act” means the Worker Adjustment and Retraining Notification Act, and any comparable state, local, and foreign applicable
Laws.
“Wheel of Fortune
Sublicensing Agreement” shall have the meaning set forth in the Separation Agreement.
“Whitney Houston
Sublicensing Agreement” shall have the meaning set forth in the Separation Agreement.
Other
Defined Terms. In addition, each of the following terms shall have the meaning given to such term in the applicable Section of
this Agreement listed opposite such term:
Agreement | |
Preamble |
Alternative
Arrangement | |
6.3(h) |
Alternative
Debt Commitment Letter | |
6.8(a) |
Alternative
Fee Letter | |
6.8(a) |
Alternative
Financing | |
6.8(a) |
Alternative
Financing Agreements | |
6.8(a) |
Anti-Money
Laundering Laws | |
2.12(c) |
Antitrust
Approvals | |
7.5 |
Antitrust
Filings | |
6.3(b) |
Applicable
Gaming Approvals | |
7.5 |
Audited
Financial Statements | |
6.8(k) |
Bankruptcy
and Equity Exceptions | |
2.4 |
Buyer | |
Preamble |
Buyer Breach Termination Fee | |
10.3(e) |
Buyer Enforcement Costs | |
10.3(h)(ii), 10.3(h)(ii) |
Buyer Extraordinary Action | |
6.3(d) |
Buyer No Vote Termination Fee | |
10.3(c) |
Buyer Notice Period | |
6.2(c) |
Buyer Permitted Claims | |
10.3(f) |
Buyer Pre-Closing Damages Proceeding | |
10.3(f) |
Buyer Regulatory Termination Fee | |
10.3(e) |
Buyer Sub | |
Preamble |
Buyer Subsequent Deal Termination Fee | |
10.3(c) |
Certificates | |
1.8(b) |
Closing | |
1.3 |
Closing Date | |
1.3 |
D&O Indemnitee | |
6.10(a) |
Debt Commitment Letter | |
4.6(a) |
Debt Financing | |
4.6(a) |
Dissenting Shares | |
1.7 |
DTC | |
1.8(d) |
DTC Payment | |
1.8(d) |
Ember Sub | |
Recitals |
Equity Commitment Letter | |
Recitals |
Equity Financing | |
4.6(a) |
Equity Sale | |
Recitals |
Equity Sale Closing Time | |
Recitals |
Excluded Action | |
5.5(h) |
Existing Agreements | |
Recitals |
Fair Labor Standards Act | |
2.16(i) |
FDI Approvals | |
7.5 |
FDI Filings | |
6.3(b) |
Fee Letter | |
4.6(a) |
Financial Services Approvals | |
7.5 |
Financial Services Authority | |
6.3(g) |
Financial Services Notice Filings and Approvals | |
6.3(b) |
Financing | |
4.6(a) |
Financing Agreements | |
6.8(a) |
Financing Commitments | |
4.6(a) |
Gaming Holdco | |
Recitals |
Gaming Law Filings | |
6.3(b) |
GLP | |
3.22 |
Guaranty | |
Recitals |
Houlihan Lokey | |
3.22 |
Indenture | |
6.8(h) |
Interim Financial Period | |
6.8(k) |
Interim Financial Statements | |
6.8(k) |
Lien and Guarantee Release | |
6.8(j) |
Material Merger Partner Business Asset | |
5.3(b)(iv) |
Material Spinco Business Asset | |
5.2(b)(iv) |
Maximum Liability Amount | |
10.2 |
Merger | |
Recitals |
Merger Effective Time | |
1.2 |
Merger Partner | |
Preamble |
Merger Partner Board | |
Recitals |
Merger Partner Board Determination | |
3.4 |
Merger Partner Board Recommendation | |
6.2(b) |
Merger Partner Certifications | |
3.6(a) |
Merger Partner Change in Recommendation | |
6.2(b) |
Merger Partner Employees | |
6.13(a) |
Merger Partner International Benefit Plan | |
3.16(g) |
Merger Partner Intervening Event | |
6.2(d) |
Merger Partner Leased Real Property | |
3.9(b) |
Merger Partner Material Contract | |
3.11(a) |
Merger Partner Preferred Stock | |
3.3(a) |
Merger Partner Real Property Lease | |
3.9(b) |
Merger Partner Returns | |
3.15(a) |
Merger Partner SEC Documents | |
3.6(a) |
Merger Partner Specified Time | |
3.3(a) |
Merger Partner Stockholders’ Meeting | |
6.2(a) |
Merger Partner Tail Transaction | |
10.3(c) |
Merger Partner Termination Fee | |
10.3(b) |
Merger Partner Top Customers | |
3.20(a) |
Merger Partner Top Suppliers | |
3.20(a) |
Non-Recourse Party | |
11.16 |
Notice of Merger Partner Intervening Event | |
6.2(d) |
Notice of Merger Partner Superior Proposal | |
6.2(c) |
Outside Date | |
10.1(b) |
Owned Merger Partner Share | |
1.5(a)(ii) |
participate | |
6.7(c) |
Parties | |
Preamble |
Party | |
Preamble |
Paying Agent | |
1.8(a) |
Payment Fund | |
1.8(a) |
Payoff Amount | |
6.8(i) |
PCAOB | |
2.6(g) |
Per Share Price | |
1.5(a)(i) |
Pre-Closing Period | |
5.1 |
Qualifying Merger Partner SEC Documents | |
Article III |
Qualifying Remainco SEC Documents | |
Article II |
R&W Insurance Policy | |
6.14 |
Redemption Notice | |
6.8(h) |
Regulatory Meeting | |
6.3(b) |
Remainco | |
Preamble |
Remainco Alternative Proposal | |
6.2(c) |
Remainco Board | |
Recitals |
Remainco Burdensome Action | |
6.3(f) |
Remainco Certifications | |
2.6(d) |
Remainco Specified Time | |
2.3(b)(i) |
Remedial Action | |
6.3(c) |
Required Amount | |
6.8(b) |
Required Merger Partner Stockholder Vote | |
3.21 |
Seller Permitted Claims | |
10.3(f) |
Special Committee | |
Recitals |
Spinco | |
Preamble |
Spinco Business Audited Financial Statements | |
2.6(a) |
Spinco Business Financial Statements | |
2.6(a) |
Spinco Business Interim Financial Statements | |
2.6(a) |
Spinco Company Returns | |
2.15(a) |
Spinco International Benefit Plan | |
2.16(g) |
Spinco Leased Real Property | |
2.9(b) |
Spinco Material Contract | |
2.11(a) |
Spinco Real Property Lease | |
2.9(b) |
Spinco Reference Balance Sheet | |
2.6(a) |
Spinco Registered IP | |
2.10(a) |
Spinco Senior Executive Employee | |
5.2(b)(ix) |
Spinco Top Customers | |
2.20(a) |
Spinco Top Suppliers | |
2.20(a) |
Subject Indebtedness | |
6.8(i) |
Surviving Corporation | |
1.2 |
Surviving Corporation Option Cash Award | |
1.6(a)(iii) |
Surviving Corporation PSU Cash Award | |
1.6(a)(ii) |
Surviving Corporation RSU Cash Award | |
1.6(a)(i) |
U.S. Merger Partner Employees | |
3.16(j) |
U.S. Spinco Employees | |
2.16(k) |
Uncertificated Shares | |
1.8(c) |
Exhibit 10.1
SEPARATION AND SALE AGREEMENT
by and among
INTERNATIONAL
GAME TECHNOLOGY PlC,
IGNITE ROTATE LLC,
EVERI
HOLDINGS INC.
and
VOYAGER
PARENT, LLC
Dated as of July 26, 2024
TABLE OF CONTENTS
Article I THE SEPARATION |
2 |
| 1.1 | Restructuring; Transfer of Assets; Assumption of Liabilities |
2 |
| 1.2 | Contract Consents; Treatment of Shared Contracts |
4 |
| 1.3 | Intercompany Liabilities |
5 |
| 1.4 | Transfers of Assets or Assumptions of Liabilities Not Effected at or Prior to the Equity Sale Closing Time;
Transfers or Assumptions Deemed Effective as of the Equity Sale Closing Time |
6 |
| 1.5 | Bank Accounts |
9 |
| 1.6 | Permits |
10 |
| 1.7 | Separation Documents |
11 |
| 1.8 | Transaction Documents |
11 |
| 1.9 | Further Assurances |
11 |
| 1.10 | Credit Support Instruments |
12 |
| 1.11 | Disclaimer of Representations and Warranties |
16 |
| 1.12 | Restrictive Covenants |
17 |
| 1.13 | Certain Resignations |
19 |
| 1.14 | Removal of Tangible Retained Assets |
19 |
| 1.15 | Stand-Up Plan and Day-One Readiness |
20 |
| 1.16 | Cash Management. |
24 |
| 1.17 | Guarantee |
25 |
| 1.18 | Additional Separation Covenants |
25 |
| 1.19 | Obligations for Certain Equity Awards |
27 |
| 1.20 | Certain Matters |
27 |
Article II PURCHASE AND SALE |
27 |
| 2.1 | Purchase and Sale |
27 |
| 2.2 | Cash Payment |
27 |
| 2.3 | Adjustment for Spinco |
28 |
| 2.4 | Payments and Computations |
32 |
| 2.5 | FIRPTA |
32 |
Article III RELEASE AND INDEMNIFICATION |
33 |
| 3.1 | Release of Pre-Closing Claims |
33 |
| 3.2 | Indemnification by Remainco |
37 |
| 3.3 | Indemnification by Spinco Group, Merger Partner Group and Buyer Group |
37 |
| 3.4 | Procedures for Indemnification |
38 |
| 3.5 | Cooperation |
40 |
| 3.6 | Indemnification Payments |
41 |
| 3.7 | Additional Indemnification Provisions |
41 |
| 3.8 | Additional Matters; Survival of Indemnities |
42 |
| 3.9 | Mitigation |
43 |
| 3.10 | Exclusive Remedies |
43 |
| 3.11 | Third Party Actions |
43 |
Article IV PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE |
44 |
| 4.1 | Preservation of Corporate Records |
44 |
| 4.2 | Financial Statements and Accounting |
45 |
| 4.3 | Provision of Corporate Records |
46 |
| 4.4 | Witness Cooperation |
49 |
| 4.5 | Reimbursement |
50 |
| 4.6 | Confidentiality |
50 |
| 4.7 | Counsel; Privileges; Legal Material |
51 |
| 4.8 | Ownership of Information |
54 |
| 4.9 | Other Agreements |
54 |
| 4.10 | Insurance Matters |
54 |
| 4.11 | International Game Technology PLC Marks |
56 |
Article V MISCELLANEOUS |
57 |
| 5.1 | Entire Agreement; Counterparts; Exchanges by Facsimile |
57 |
| 5.2 | Transaction Documents; Precedence of Agreements |
57 |
| 5.3 | Survival |
58 |
| 5.4 | Fees and Expenses |
58 |
| 5.5 | Notices |
58 |
| 5.6 | Waiver |
60 |
| 5.7 | Assignment |
60 |
| 5.8 | Termination |
61 |
| 5.9 | Amendment |
61 |
| 5.10 | Group Members |
61 |
| 5.11 | Third-Party-Beneficiaries |
61 |
| 5.12 | Exhibits and Schedules |
61 |
| 5.13 | Governing Laws |
61 |
| 5.14 | Submission to Jurisdiction |
62 |
| 5.15 | Waiver of Jury Trial |
62 |
| 5.16 | Specific Performance |
63 |
| 5.17 | Severability |
63 |
| 5.18 | No Double Recovery |
63 |
| 5.19 | Tax Treatment of Payments |
63 |
| 5.20 | Payment Terms |
63 |
| 5.21 | Construction |
64 |
| 5.22 | Disclosure |
64 |
| 5.23 | Post-Closing Transfers by Buyer |
65 |
Exhibits
Exhibit A |
— |
Certain Definitions |
Exhibit B |
— |
Employee Matters Agreement |
Exhibit C |
— |
Form of Ghostbusters Sublicensing
Agreement |
Exhibit D |
— |
[Reserved] |
Exhibit E |
— |
Form of Intellectual Property
License Agreement |
Exhibit F |
— |
Form of Intercompany
Account Termination Agreement |
Exhibit G |
— |
Form of Jumanji Sublicensing
Agreement |
Exhibit H |
— |
Real Estate Matters Agreement |
Exhibit I |
— |
Form of Rhode Island VLT
JV Interest Management Contract |
Exhibit J |
— |
Form of Rhode Island VLT
System Subcontract |
Exhibit K |
— |
Separation Plan |
Exhibit L |
— |
Form of Software License
and Support Agreement in favor of Remainco Group |
Exhibit M |
— |
Form of Software License
and Support Agreement in favor of Spinco Group |
Exhibit N |
— |
Tax Matters Agreement |
Exhibit O |
— |
Form of Transition Services
Agreement |
Exhibit P |
— |
Form of Vanna White Sublicensing
Agreement |
Exhibit Q |
— |
Form of Wheel of Fortune
Sublicensing Agreement |
Exhibit R |
— |
Form of Whitney Houston
Sublicensing Agreement |
SEPARATION AND SALE AGREEMENT
This SEPARATION AND SALE
AGREEMENT (this “Agreement”) is entered into as of July 26, 2024, by and among: (a) INTERNATIONAL
GAME TECHNOLOGY PlC, a public limited company incorporated under the laws of England and Wales (“Remainco”);
(b) IGNITE ROTATE LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of Remainco (“Spinco”);
(c) EVERI HOLDINGS INC., a Delaware corporation (“Merger Partner”);
and (d) VOYAGER PARENT, LLC, a Delaware limited liability company (“Buyer”); (each a “Party”
and together, the “Parties”). Certain capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
WHEREAS,
Remainco is engaged, directly and indirectly, in the Spinco Business;
Whereas,
on the terms and subject to the conditions set forth in this Agreement, Remainco will effectuate the Separation, including the Spinco
Contribution;
Whereas,
following the Separation, Remainco desires to sell to Buyer, and Buyer desires to purchase from Remainco, all of Remainco’s right,
title and interest in and to the Spinco Units upon the terms and subject to the conditions set forth herein;
WHEREAS,
concurrently with the execution of this Agreement, Remainco, Spinco, Buyer, Voyager Merger Sub, Inc., a Delaware corporation and
a direct wholly owned Subsidiary of Buyer (“Buyer Sub”), and Merger Partner have entered into the Agreement and Plan
of Merger, dated as of the date hereof (as it may be amended, modified or supplemented from time to time, the “Merger Agreement”);
Whereas,
the Parties contemplate that, pursuant to the Merger Agreement and immediately following the consummation of the sale of the Spinco Units
to Buyer, at the Merger Effective Time, Buyer Sub shall be merged (the “Merger”) with and into Merger Partner, with
Merger Partner surviving the Merger as a wholly owned direct Subsidiary of Buyer; and
Whereas,
the Parties desire to set forth the principal arrangements among them regarding the foregoing transactions and to make certain covenants
and agreements specified in this Agreement in connection therewith and to prescribe certain conditions relating thereto.
Now,
Therefore, in consideration of the foregoing and the covenants and agreements contained in this Agreement, and intending to
be legally bound hereby, the Parties agree as follows:
Article I
THE SEPARATION
1.1 Restructuring;
Transfer of Assets; Assumption of Liabilities.
(a) Prior
to the Equity Sale Closing Time, Remainco and Spinco shall complete the Separation, including by taking the actions referred to in Sections 1.1(b) and
1.1(c), in accordance with the Separation Plan and the terms of this Agreement. Without limiting the generality of Remainco’s
other obligations in this Agreement, pursuant to the Separation Plan, Remainco shall cause Spinco, immediately following the Separation
and prior to the Equity Sale Closing Time, to own (directly or through another wholly owned Subsidiary of Spinco), free and clear of
any Encumbrances (other than Encumbrances (i) that are not material, (ii) under the Financing, (iii) under applicable
securities Laws or (iv) under any indebtedness for borrowed money or other Indebtedness of any member of the Remainco Group that
may be outstanding as of the Equity Sale Closing Time but which indebtedness (and related Encumbrances) is terminated and released (at
no cost to Spinco) as of the Equity Sale Closing Time), all of the Equity Interests in the members of the Spinco Group listed on Schedule 1.1(a) and
not, unless Buyer shall otherwise agree in writing (whose agreement shall not be unreasonably withheld, conditioned or delayed), to have
any other Subsidiaries. Section 1.4 shall not be deemed to excuse Remainco’s performance of its obligations pursuant
to the preceding sentence. Remainco and Spinco shall use reasonable best efforts to cause the Separation to be capable of being completed
by the date on which all of the conditions set forth in the Merger Agreement are expected to be satisfied, other than (1) the conditions
set forth in Sections 8.4 and 9.4 thereof and (2) those conditions that by their nature are to be satisfied at the Closing.
(b) Prior
to the Equity Sale Closing Time (it being understood that some Transfers may occur following the Equity Sale Closing Time in accordance
with Section 1.2 or Section 1.4), in connection with the Separation, Remainco shall, and shall cause the applicable
Asset Transferors to, as applicable, transfer, contribute, distribute, assign or convey or cause to be transferred, contributed, distributed,
assigned or conveyed (“Transfer”) to (i) the respective Remainco Asset Transferees, all of the applicable Asset
Transferor’s right, title and interest in and to the Remainco Retained Assets (to the extent not then already owned by a Remainco
Asset Transferee, in which case such Remainco Retained Assets will continue to be owned by such Remainco Asset Transferee) and (ii) the
respective Spinco Asset Transferees, all of its and the applicable Asset Transferors’ right, title and interest in and to the Spinco
Assets (to the extent not then already owned by a Spinco Asset Transferee, in which case such Spinco Assets will continue to be owned
by such Spinco Asset Transferee); and Remainco and Spinco, as applicable, shall cause the Remainco Asset Transferees and the Spinco
Asset Transferees, as applicable, to accept from Remainco and the applicable members of the Remainco Group, and Spinco and the applicable
members of the Spinco Group, as applicable, all of Remainco’s and the other members of the Remainco Group’s and Spinco’s
and the other members of the Spinco Group’s, as applicable, respective direct or indirect rights, title and interest in and to the
applicable Assets allocated to each of them.
(c) Except
as otherwise specifically set forth in any of the Transaction Documents, from and after the Equity Sale Closing Time, (i) Remainco
shall, or shall cause a member of the Remainco Group to, accept, assume (or to the extent already a Liability of the Remainco Group, retain)
and perform, discharge and fulfill, in accordance with their respective terms (“Assume”), all of the Remainco Retained
Liabilities and (ii) Spinco shall, or shall cause a member of the Spinco Group to, Assume all of the Spinco Liabilities (or to the
extent already a Liability of the Spinco Group, retain), in each case, regardless of (A) when or where such Liabilities arose or
arise, (B) whether the facts upon which they are based occurred prior to, at or subsequent to the Equity Sale Closing Time, (C) where
or against whom such Liabilities are asserted or determined (provided that nothing contained in this Agreement shall preclude,
restrict or otherwise inhibit any member of the Remainco Group or any member of the Spinco Group, as applicable, from asserting any defenses
available with respect to the Entity that incurred or holds such Liability against any Person other than against a Remainco Indemnified
Party, in the case of a Spinco Liability, or against a Buyer Group Indemnified Party, in the case of a Remainco Retained Liability), (D) whether
arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud or misrepresentation by any
member of the Remainco Group or any member of the Spinco Group, as the case may be, or any of their past or present respective directors,
officers, employees, agents, Subsidiaries or Affiliates (it being understood that this provision shall not limit any Party’s rights
or remedies in the case of Fraud) and (E) which Entity is named in any Action associated with any Liability.
(d) It
is understood and agreed that certain of the Remainco Retained Assets, Remainco Retained Liabilities, Spinco Assets and Spinco Liabilities,
as applicable, may already be retained by members of the Remainco Group or members of the Spinco Group, as applicable, as of the Equity
Sale Closing Time and, as a result, in such cases, (i) no additional Transfers or Assumptions, as applicable, by any member of the
Remainco Group or any member of the Spinco Group, as applicable, shall be deemed to have occurred with respect thereto pursuant to this
Agreement and (ii) such Assets and Liabilities shall be included in the category of Remainco Retained Assets, Remainco Retained Liabilities,
Spinco Assets or Spinco Liabilities, as applicable. Each Party agrees that, as of the Equity Sale Closing Time, Spinco and Remainco, as
applicable, shall be deemed to have acquired complete and sole beneficial ownership over all of their respective Assets, together with
all rights, powers and privileges incident thereto (subject to Section 1.2 and Section 1.5(a)), and shall be deemed
to have Assumed (or retained Liability for), as applicable in accordance with the terms of this Agreement, all of the Liabilities and
all duties, obligations and responsibilities incident thereto, which such Party is entitled to acquire or required to assume pursuant
to the terms of this Agreement.
(e) As
part of the Separation, Remainco will effect the Spinco Contribution prior to the Equity Sale Closing Time.
1.2 Contract
Consents; Treatment of Shared Contracts.
(a) Without
limiting the generality of the obligations set forth in Sections 1.1(a) and 1.1(b), prior to the Equity Sale Closing
Time, Remainco, Spinco, Merger Partner and Buyer shall use reasonable best efforts to obtain any Consents that may be required from Third
Parties under Contracts (including Shared Contracts), including from Governmental Authorities, in connection with effecting the Separation,
the Equity Sale, the Spinco Contribution and the Merger (“Required Third Party Consents”). Notwithstanding anything
to the contrary contained in this Agreement, the provisions of the Merger Agreement shall control with respect to the Parties’ rights
and obligations relating to obtaining Governmental Approvals required to consummate the Contemplated Transactions. Notwithstanding anything
to the contrary contained in this Agreement, but subject to the immediately foregoing sentence and except as contemplated by Section 1.10,
(A) no member of the Remainco Group, no member of the Spinco Group, no member of the Merger Partner Group and no member of the Buyer
Group shall be required to compensate any Third Party, commence or participate in any Action or offer or grant any accommodation (financial
or otherwise or to remain secondarily liable or contingently liable for any Spinco Liability, in the case of any member of the Remainco
Group, or any Remainco Retained Liability, in the case of any member of the Spinco Group) to any Third Party to obtain any such Required
Third Party Consents or otherwise in connection with any actions or obligations under this Section 1.2 or the Transaction
Documents (including in respect of Shared Contracts) and (B) no member of the Merger Partner Group and no member of the Spinco Group
shall take any of the foregoing actions without the consent of Buyer. If Remainco and Buyer mutually agree to pay a monetary consent fee
to a Third Party to obtain a Required Third Party Consent from such Third Party, then Buyer and Remainco shall each pay, or cause to be
paid, fifty percent (50%) of such consent fee. If Merger Partner and Buyer mutually agree to pay a monetary consent fee to a Third Party
to obtain a Required Third Party Consent from such Third Party, then Buyer shall pay, or cause to be paid (including causing Merger Partner
to pay at, and conditioned upon, the Merger), such consent fee. Notwithstanding anything to the contrary contained in any of the Transaction
Documents, no representation, warranty, covenant or agreement of any member of the Remainco Group, any member of the Spinco Group, any
member of the Merger Partner Group or any member of the Buyer Group contained in any of the Transaction Documents shall be deemed breached
and no condition contained in the Merger Agreement shall be deemed not satisfied, based solely on the failure to obtain a Required Third
Party Consent; provided that the foregoing shall not be deemed a waiver of any efforts required by the Parties under any of the
Transaction Documents to obtain any Required Third Party Consent.
(b) Each
Shared Contract shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately
amended prior to, at or after the Equity Sale Closing Time, so that a member of the Remainco Group or a member of the Spinco Group, as
of the Equity Sale Closing Time, shall be entitled to the rights and benefits, and shall Assume the related portion of any Liabilities,
inuring to the Remainco Retained Business and Spinco Business, as applicable; provided that:
(i) in
no event shall any member of the Remainco Group or any member of the Spinco Group be required to assign (or amend) any Shared Contract
in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended without Consent of the counterparty
to effect an assignment or other transfer) by its terms (including any terms imposing Consent requirements or conditions on an assignment
or amendment where such Consents or conditions have not been obtained or fulfilled, subject to Section 1.4); and
(ii) if
any Shared Contract cannot be so partially assigned by its terms or otherwise, cannot be amended or has not for any other reason been
assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract,
to the extent not prohibited by applicable Law, (A) at the reasonable request of the member of the Remainco Group or the member of
the Spinco Group (or, after the Equity Sale Closing Time, Buyer on behalf of such member of the Spinco Group) to which the benefit of
such Shared Contract inures in part, Remainco or Spinco, as applicable, for which such Shared Contract is, as applicable, a Remainco Retained
Asset or Spinco Asset shall, and shall cause each of the members of its Group to, for a period ending on the date which is five (5) years
following the Closing Date, take such other reasonable and permissible actions to cause such member of the Spinco Group or the Remainco
Group, as the case may be, to receive the benefit of that portion of each Shared Contract that relates to the Spinco Business or the Remainco
Retained Business, as the case may be (in each case, to the extent so related) as if such Shared Contract had been assigned (or amended
to allow such assignment) to a member of the applicable Group pursuant to this Section 1.2 and to bear the burden of the corresponding
Liabilities (including any Liabilities that may arise by reason of such arrangement) as if such Liabilities had been Assumed by a member
of the applicable Group pursuant to this Section 1.2; and (B) the Party to which the benefit of such Shared Contract
inures in part shall use reasonable best efforts to enter into a separate Contract pursuant to which it procures such rights and obligations
as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 1.2(b) (the
foregoing actions described in subsections (A) and (B) of this Section 1.2(b)(ii), “Shared Contracts Alternative
Arrangements”).
(c) Remainco
and Spinco shall, and shall cause the other members of its Group to, (i) treat for applicable Tax purposes the portion of each Shared
Contract inuring to the Remainco Retained Business and the Spinco Business, respectively, as Assets owned by, or Liabilities of, as applicable,
such Party as of the Equity Sale Closing Time and (ii) neither report nor take any position on a Tax Return inconsistent with such
treatment (unless, in each case, required by applicable Law at a “more likely than not” level of confidence). Any Party taking
such an inconsistent position shall use commercially reasonable efforts to provide prompt notice to the other Party after taking such
an inconsistent position on a Tax Return.
1.3 Intercompany
Liabilities. Except for the intercompany accounts and Contracts identified in Schedule 1.3 and except for any Transaction
Documents, Remainco shall, and shall cause the other members of the Remainco Group to, take such actions, including making such payments
as may be necessary, so that prior to the Equity Sale Closing Time, the members of the Spinco Group, on the one hand, and the members
of the Remainco Group, on the other hand, shall settle, discharge, offset, pay or repay, and otherwise terminate in full, all intercompany
Liabilities, accounts and Contracts, in each case with no further Liability. Except for any services provided pursuant to the Transition
Services Agreement and any other applicable Transaction Documents, as of and following the Equity Sale Closing Time, (a) the members
of the Remainco Group shall have no further obligation to provide any ancillary or corporate shared services to the members of the Spinco
Group and (b) the members of the Spinco Group shall have no further obligation to provide any ancillary or corporate shared services
to the members of the Remainco Group.
1.4 Transfers
of Assets or Assumptions of Liabilities Not Effected at or Prior to the Equity Sale Closing Time; Transfers or Assumptions Deemed
Effective as of the Equity Sale Closing Time.
(a) To
the extent that any Transfer or Assumption contemplated by this Article I shall not have been consummated at or prior to the
Equity Sale Closing Time (other than because such Asset is a Non-Transferable Asset or such Liability is a Non-Transferable liability),
the Parties shall, subject to the terms and conditions of this Agreement (including the limitations regarding to obligation to make any
concessions to obtain any Required Third Party Consents or any Permits and the obligations in Section 1.10) and the other
Transaction Documents, use reasonable best efforts to effect such Transfers and Assumptions as promptly as reasonably practicable following
the Equity Sale Closing Time. Notwithstanding anything to the contrary contained in this Agreement, this Agreement shall not require,
and no Separation Document shall constitute, an agreement to Transfer or Assume any Spinco Asset, any Remainco Retained Asset, any Spinco
Liability or any Remainco Retained Liability, as applicable, or any claim or right or benefit arising thereunder or resulting therefrom
if an attempted Transfer or Assumption thereof (without the Consent of a Third Party) would violate, constitute a default under or breach
of any Contract or violate any applicable Law (each such Spinco Asset, Remainco Retained Asset or claim or right or benefit arising thereunder
or resulting therefrom, a “Non-Transferable Asset” and each such Spinco Liability, Remainco Retained Liability or claim
or right or benefit arising thereunder or resulting therefrom, a “Non-Transferable Liability”), without first obtaining
all such necessary Consents of such Third Parties, and this Agreement and the applicable Separation Document shall not be deemed to constitute
a Transfer or Assumption thereof and the applicable provisions of this Section 1.4 shall apply in regard to all such Non-Transferable
Assets and all such Non-Transferable Liabilities.
(b) Notwithstanding
anything to the contrary contained in this Agreement or any Separation Document, to the extent permitted by applicable Laws and Contracts,
if any applicable approval, consent or waiver to the Transfer or the Assumption of any Non-Transferable Asset or any Non-Transferable
Liability that would otherwise be considered a Spinco Asset or a Spinco Liability, as applicable, cannot be obtained prior to the Equity
Sale Closing Time, Remainco shall, at Spinco’s cost and expense, cause the applicable member of the Remainco Group to hold such
Non-Transferable Asset or such Non-Transferable Liability, as of and from the Equity Sale Closing Time, in trust for Spinco or the designated
member of the Spinco Group and the covenants and Liabilities thereunder shall be performed by Spinco or the designated member of the Spinco
Group (and Spinco shall cause the other members of the Spinco Group to do so) in the applicable member of the Remainco Group’s name
and all benefits and Liabilities existing thereunder shall be for Spinco or the designated member of the Spinco Group. The applicable
member of the Remainco Group holding such Non-Transferable Asset or such Non-Transferable Liability in trust for Spinco or the designated
member of the Spinco Group shall treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Assets and
Liabilities in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested
by Spinco or the designated member of the Spinco Group to which such Assets are to be Transferred or by which such Liabilities are to
be Assumed to place Spinco or such designated member of the Spinco Group, insofar as reasonably possible and to the extent permitted by
applicable Law, in the same position as if such Asset had been Transferred or Liabilities Assumed as contemplated by this Agreement. To
the extent permitted by applicable Laws and Contracts, from and after the Equity Sale Closing Time, Remainco shall take (or cause the
applicable member of the Remainco Group to take), at Spinco’s cost and expense, such commercially reasonable actions in its name
or otherwise as Spinco may reasonably request so as to provide the applicable member of the Spinco Group with the benefits of such Non-Transferable
Assets and the burdens of such Non-Transferable Liabilities, to effect the collection of money or other consideration that becomes due
and payable under such Non-Transferable Assets and such Non-Transferable Liabilities and to enforce for the benefit of the Spinco Group,
and at the expense of the Spinco Group, any and all rights against a Third Party arising under such Non-Transferable Asset and such Non-Transferable
Liability (“Third-Party Rights”), and Remainco shall (or shall cause the applicable member of the Remainco Group to)
promptly pay, or cause to be paid, to Spinco or the designated member of the Spinco Group all money or other consideration received by
the applicable member of the Remainco Group with respect to all such Non-Transferable Assets and such Non-Transferable Liabilities net
of any withholding or deduction required under applicable Laws with respect to such payment; provided that Remainco shall use commercially
reasonable efforts to provide written notice to the applicable payee prior to making any such withholding or deduction and reasonably
cooperate with the applicable payee to reduce or eliminate any such withholding or deduction. For applicable Tax purposes, Remainco shall
treat any Non-Transferable Asset described in this Section 1.4(b) as owned by the applicable member of the Spinco Group
unless otherwise required by applicable Law (at a “more likely than not” level of confidence). Remainco shall use commercially
reasonable efforts to provide prompt notice to Spinco after taking a position on a Tax Return inconsistent with such treatment.
(c) Notwithstanding
anything to the contrary contained in this Agreement or any Separation Document, to the extent permitted by applicable Laws and Contracts,
in the event that any applicable approval, consent or waiver to the Transfer or the Assumption of any Non-Transferable Asset or any Non-Transferable
Liability that would otherwise be considered a Remainco Retained Asset or a Remainco Retained Liability, as applicable, cannot be obtained
prior to the Equity Sale Closing Time, Spinco shall, at Remainco’s cost and expense, cause the applicable member of the Spinco Group
to hold such Non-Transferable Asset or such Non-Transferable Liability, as of and from the Equity Sale Closing Time, in trust for Remainco
or the designated member of the Remainco Group and the covenants and Liabilities thereunder shall be performed by Remainco or the designated
member of the Remainco Group (and Remainco shall cause the other members of the Remainco Group to do so) in the applicable member of the
Spinco Group’s name and all benefits and Liabilities existing thereunder shall be for Remainco or the designated member of the Remainco
Group. The applicable member of the Spinco Group holding such Non-Transferable Asset or such Non-Transferable Liability in trust for Remainco
or the designated member of the Remainco Group shall treat, insofar as reasonably possible and to the extent permitted by applicable Law,
such Assets and Liabilities in the ordinary course of business in accordance with past practice and take such other actions as may be
reasonably requested by the Remainco or the designated member of the Remainco Group to which such Assets are to be Transferred or by which
such Liabilities are to be Assumed to place Remainco or such designated member of the Remainco Group, insofar as reasonably possible and
to the extent permitted by applicable Law, in the same position as if such Asset and Liability had been Transferred or Assumed as contemplated
by this Agreement. To the extent permitted by applicable Laws and Contracts, from and after the Equity Sale Closing Time, Spinco shall
take (or cause the applicable member of the Spinco Group to take), at Remainco’s cost and expense, such commercially reasonable
actions in its name or otherwise as Remainco may reasonably request so as to provide Remainco or the designated member of the Remainco
Group with the benefits of such Non-Transferable Assets and the burdens of such Non-Transferable Liabilities, to effect the collection
of money or other consideration that becomes due and payable under such Non-Transferable Assets and such Non-Transferable Liabilities
and to enforce for the benefit of Remainco or the designated member of the Remainco Group, and at the expense of Remainco, any and all
Third Party Rights, and Spinco shall (or shall cause the applicable member of the Spinco Group to) promptly pay, or cause to be paid,
to Remainco or the designated member of the Remainco Group all money or other consideration received by the applicable member of the Spinco
Group with respect to all such Non-Transferable Assets and such Non-Transferable Liabilities net of any withholding or deduction required
under applicable Laws with respect to such payment; provided that Spinco shall use commercially reasonable efforts to provide advance
written notice to the applicable payee prior to making any such withholding or deduction and reasonably cooperate with the applicable
payee to reduce or eliminate any such withholding or deduction. For applicable Tax purposes, Spinco shall treat any Non-Transferable Asset
described in this Section 1.4(c) as owned by Remainco unless otherwise required by applicable Law (at a “more likely
than not” level of confidence). Spinco shall use commercially reasonable efforts to provide prompt written notice to Remainco after
taking a position on a Tax Return inconsistent with such treatment.
(d) If,
after the Equity Sale Closing Time and subject to Section 1.4, Spinco or Remainco becomes aware that any of the Spinco Assets
have not been Transferred to a member of the Spinco Group or that any of the Remainco Retained Assets have not been retained by or Transferred
to a member of the Remainco Group (other than to a member of the Spinco Group), it will promptly notify the other Party and the Parties
will cooperate in good faith to as promptly as reasonably practicable Transfer by assignment or by license or as the Parties shall otherwise
mutually agree, the relevant Asset to the appropriate member of the applicable Group at the expense of the Party who would have been responsible
for the related expenses if such Asset had been Transferred at the Equity Sale Closing Time.
(e) For
the period of five (5) years following the Closing Date, Remainco and Spinco shall reasonably assist the other in obtaining the necessary
approvals, consents and waivers to effect the Transfer or Assumption of any Non-Transferable Asset and any Non-Transferable Liability
to a member of the Spinco Group, on the one hand, or Remainco or the designated member of its Group, on the other hand; provided
that, except as contemplated by Section 1.10, no member of the Remainco Group and no member of the Spinco Group shall be required
to compensate any Third Party, commence or participate in any litigation, or offer or grant any accommodation (financial or otherwise)
to any Third Party to obtain any such consent, approval or waiver. If and when such necessary approvals, consents and waivers are obtained
after the Equity Sale Closing Time to effect the Transfer or Assumption of any Spinco Asset, any Remainco Retained Asset, any Spinco Liability
or any Remainco Retained Liability that had constituted a Non-Transferable Asset or a Non-Transferable Liability, as applicable, such
Transfer or Assumption shall be reasonably promptly effected in accordance with the terms of this Agreement, for no additional consideration,
after which such Spinco Asset, such Remainco Retained Asset, such Spinco Liability or such Remainco Retained Liability, as the case may
be, shall no longer be subject to this Section 1.4 as a Non-Transferable Asset or a Non-Transferable Liability, as applicable.
Spinco shall bear all out of pocket costs and expenses incurred by the Parties in connection with their efforts to transfer to a member
of the Spinco Group any Spinco Assets that are Non-Transferrable Assets and any Spinco Liabilities that are Non-Transferrable Liabilities
in accordance with this Section 1.4; provided that Spinco shall not be responsible for any consent, settlement or similar
fees or amounts that any member of the Remainco Group pays to any Third Party to obtain a consent for such Transfer or Assumption. Remainco
shall bear all out of pocket costs and expenses incurred by the Parties in connection with their efforts to transfer to a member of the
Remainco Group any Remainco Retained Assets that are Non-Transferrable Assets and any Remainco Retained Liabilities that are Non-Transferrable
Liabilities in accordance with this Section 1.4; provided that Remainco shall not be responsible for any consent, settlement
or similar fees or amounts that any member of the Spinco Group pays to any Third Party to obtain a consent for such Transfer or Assumption.
If Remainco and Buyer mutually agree to pay a monetary consent fee to a Third Party to obtain a Required Third Party Consent from such
Third Party, then Buyer and Remainco shall each pay, or cause to be paid, fifty percent (50%) of such consent fee. If, on or before the
last day of the five (5) year period following the Closing Date, Buyer or Remainco provides notice to Remainco or Buyer, as applicable,
of any such Asset or Liability that is unable to be Transferred to or Assumed by any member of the Spinco Group or any member of the Remainco
Group, as applicable, as of the end of such period (and no member of the Buyer Group or no member of the Remainco Group, as applicable,
has materially breached any of its obligations set forth in Section 1.4 with respect to such Asset or Liability), the Parties’
obligations under this Section 1.4(e), solely with respect to such identified Asset or Liability, shall continue (i) with
respect to each such Asset or Liability other than a Contract, until that Asset is no longer usable or such Liability is no longer outstanding,
and (ii) with respect to each such Asset or Liability that is a Contract, until that Contract expires or terminates in accordance
with its terms (as in effect at the Equity Sale Closing Time).
1.5 Bank
Accounts.
(a) Remainco
and Spinco shall use reasonable best efforts to take, or cause the other members of their respective Groups to take, prior to the Equity
Sale Closing Time (or as soon as possible thereafter), all actions necessary to amend all Contracts governing each bank and brokerage
account (including lock boxes) owned by any member of the Spinco Group (collectively, the “Spinco Accounts”), so that
such Spinco Accounts, if currently linked (whether by automatic withdrawal, automatic deposit or any other authorization to transfer funds
from or to) to any bank or brokerage account (or lock box) owned by Remainco or any other member of the Remainco Group (collectively,
the “Remainco Accounts”) are de-linked from such Remainco Accounts.
(b) Remainco
and Spinco shall use reasonable best efforts to, or cause the other members of their respective Groups to, prior to the Equity Sale Closing
Time (or as soon as possible thereafter), amend all Contracts governing each Remainco Account related to the Spinco Business set forth
on Schedule 1.5(b) such that such Contracts (and the related Asset) shall be Transferred to any member of the Spinco
Group.
(c) Remainco
and Spinco shall use reasonable best efforts to, or cause the other members of their respective Groups to, prior to the Equity Sale Closing
Time (or as soon as possible thereafter), amend all Contracts governing each Spinco Account related to the Remainco Retained Business
set forth on Schedule 1.5(c) such that such Contracts (and the related Asset) shall be Transferred to Remainco or any
other member of the Remainco Group.
(d) Remainco
and Spinco shall use reasonable best efforts to, or cause the other members of their respective Groups to, prior to the Equity Sale Closing
Time (or as soon as possible thereafter), amend all Contracts governing the Remainco Accounts so that such Remainco Accounts, if currently
linked to any Spinco Account, are de-linked from such Spinco Accounts.
(e) With
respect to any outstanding checks issued by Remainco, Spinco or any of the respective members of its Group prior to the Equity Sale Closing
Time, such outstanding checks shall be honored from and after the Closing by the Person or Group owning the account on which the check
is drawn, without limiting the ultimate allocation of Liability for such amounts under any of the Transaction Documents.
1.6 Permits.
Remainco shall cooperate with Spinco and Remainco shall use reasonable best efforts to finalize or effectuate the Transfer of any Permits
to a member of the Spinco Group that is designated as a Spinco Asset and that is not already Transferred to a member of the Spinco Group
as of the Closing. Spinco shall cooperate with Remainco and shall use reasonable best efforts to finalize or effectuate the Transfer of
any Permits to a member of the Remainco Group that is designated as an Remainco Retained Asset and that is not already Transferred to
a member of the Remainco Group as of the Closing Date. If any Permit cannot be Transferred, then until such Permit terminates in accordance
with its terms, the Parties shall use their reasonable best efforts to develop and implement arrangements to give to a member of the Spinco
Group or a member of the Remainco Group, as applicable, the ability to continue to operate the Spinco Business or the Remainco Retained
Business, as applicable, as presently conducted under the terms of any such Permit (the arrangements contemplated by this sentence, “Permits
Alternative Arrangements”). Except as otherwise set forth in the Merger Agreement (the provisions of which shall control with
respect to the Parties’ agreements regarding and the obtainment of Governmental Approvals and Consents required to consummate the
Contemplated Transactions), Remainco and Spinco shall cooperate and use their respective reasonable best efforts to seek and obtain, in
accordance with applicable Law, any necessary Governmental Approvals and Consents for the Transfer of all Permits contemplated to be Transferred
pursuant to this Article I to the extent permitted by applicable Law. No member of the Remainco Group and no member of the
Spinco Group shall be required to compensate any Third Party, commence or participate in any litigation, or offer or grant any accommodation
(financial or otherwise) to any Third Party to obtain any Consent necessary to Transfer any Permit and no member of the Spinco Group shall
take any of the foregoing actions without the consent of Buyer. If Remainco and Buyer mutually agree to pay a consent fee to obtain a
Permit, then Remainco and Buyer shall each pay, or cause to be paid, fifty percent (50%) of such consent fee. The Parties acknowledge
that this Section 1.6 does not apply to Permits that are Spinco Assets and are already held by a member of the Spinco Group
as of the date hereof. Notwithstanding anything to the contrary contained in this Section 1.6, the provisions of the Merger
Agreement shall control with respect to the Parties’ rights and obligations relating to obtaining Governmental Approvals required
to consummate the Contemplated Transactions.
1.7 Separation
Documents. In connection with, and in furtherance of, the Transfers and the Assumptions contemplated by this Agreement, Remainco and
Spinco shall execute or cause to be executed, on or after the date hereof by the appropriate members of the Remainco Group and the appropriate
members of the Spinco Group, any Separation Documents reasonably necessary to evidence the valid Transfer to the applicable member of
such Party’s Group of all right, title and interest in and to its Transferred Assets and the valid and effective Assumption by the
applicable Party of Liabilities it has Assumed, for Transfers and Assumptions to be effected pursuant to applicable Laws, in such forms
as are reasonably acceptable to Remainco and Buyer (such acceptance not to be unreasonably withheld, conditioned or delayed), including
the Transfer of owned real property by deeds as may be appropriate and in form and substance as required by the jurisdiction in which
the owned real property is located. The Separation Documents shall not contain (a) any indemnities that conflict with this Agreement
or (b) any representations or warranties, except to the extent required to comply with applicable Laws, and, to the extent that any
provision of a Separation Document does conflict with any provision of this Agreement, this Agreement shall govern and control; provided
that no such Separation Document shall by its express terms (i) provide that a member of the Spinco Group is Assuming from a member
of the Remainco Group Liabilities that are not Spinco Liabilities or (ii) provide that a member of the Remainco Group is Assuming
from a member of the Spinco Group Liabilities that are not Remainco Retained Liabilities. Remainco shall (A) deliver to Buyer drafts
of any Separation Documents and (B) provide Buyer a reasonable opportunity (and no less than five (5) Business Days) to review
such drafts. All Separation Documents shall be prepared, executed and delivered in a manner reasonably approved by Remainco and Buyer
(such approval not to be unreasonably withheld, conditioned or delayed). Transfers of capital stock shall be effected by means of executed
stock powers and notation on the record books of the Entities involved, or by such other means as may be required in any non-U.S. jurisdiction
to Transfer title to equity and, only to the extent required by applicable Law, by notation on public registries.
1.8 Transaction
Documents. Concurrently with the execution and delivery of this Agreement, the Parties have executed and delivered the Merger Agreement,
Employee Matters Agreement, the Real Estate Matters Agreement and the Tax Matters Agreement. At or prior to the Closing, Remainco, Spinco,
Buyer and Merger Partner shall execute and deliver the other Transaction Documents (in each case to the extent to which it is a party),
to be effective at the Closing (unless otherwise provided in such Transaction Documents).
1.9 Further
Assurances.
(a) In
addition to and without limiting the actions specifically provided for elsewhere in this Agreement, including Section 1.4,
and subject to the limitations expressly set forth in this Agreement and the Merger Agreement, the Parties shall cooperate with each other
in good faith and (i) use, and shall cause the members of its Group to use, reasonable best efforts at and after the Equity Sale
Closing Time, to take the actions contemplated by Article I and (ii) take actions required by the other Transaction Documents
(subject to the applicable efforts standard) to consummate the Contemplated Transactions.
(b) Without
limiting the foregoing, at and after the Equity Sale Closing Time and subject to the limitations expressly set forth in this Agreement
and the Merger Agreement, including Section 1.4, each Party shall cooperate with the other Parties, and without any further
consideration, but at the expense of the requesting Party (except as provided in Section 1.4), from and after the Equity Sale
Closing Time, to execute and deliver, or use reasonable best efforts to cause to be executed and delivered, all instruments and to take
all such other actions as such Party may reasonably be requested to take by any other Party from time to time, consistent with the terms
of the Transaction Documents, to effectuate the provisions and purposes of the Transaction Documents and the Transfers of the applicable
Assets and the assignment and Assumption of the applicable Liabilities and the Contemplated Transactions.
(c) Without
limiting the foregoing, in the event that after the Equity Sale Closing Time any Party (or member of such Party’s Group) receives
or discovers that it possesses any Assets (including the receipt of payments made pursuant to Contracts and proceeds from accounts receivable
with respect to such Asset) to which another Party is entitled pursuant to this Agreement, such Party shall notify in writing the other
Party and, upon written request, promptly Transfer, or cause to be Transferred, such Asset to such other Party so entitled thereto (or
member of such other Party’s Group as designated by such other Party) at such other Party’s expense. Prior to any such Transfer,
such Asset shall be held in accordance with the provisions of Section 1.4.
(d) After
the Equity Sale Closing Time, each Party (or any member of its Group) may receive mail, packages, electronic mail and any other written
communications properly belonging to another Party (or any member of its Group). Accordingly, at all times after the Equity Sale Closing
Time, each Party is authorized to receive and, if reasonably necessary to identify the proper recipient in accordance with this Section 1.9(d),
open all mail, packages, electronic mail and any other written communications received by such Party that belongs to such other Party,
and to the extent that they do not relate to the business of the receiving Party, the receiving Party shall promptly deliver such mail,
packages, electronic mail or any other written communications (or, in case the same also relates to the business of the receiving Party
or another Party, copies thereof) to such other Party as provided for in Section 5.5. The provisions of this Section 1.9(d) are
not intended to, and shall not be deemed to, constitute an authorization by any Party to permit any other Party to accept service of process
on its behalf and no Party is or shall be deemed to be the agent of any other Party for service of process purposes.
1.10 Credit
Support Instruments.
(a) Spinco
and Buyer shall each use reasonable best efforts to procure satisfaction of an Existing Spinco Credit Support Instrument Release Condition
with respect to each Existing Spinco Credit Support Instrument at the Equity Sale Closing Time and Remainco and Merger Partner shall use
reasonable best efforts to cooperate with Spinco and Buyer to facilitate the same. During the Pre-Closing Period, Remainco shall, as reasonably
requested by Buyer, provide Buyer with an updated list of Existing Spinco Credit Support Instruments in the same format as the table set
forth in Part (A) of Schedule 1.1(c).
(b) If
an Existing Spinco Credit Support Instrument Release Condition with respect to an Existing Spinco Credit Support Instrument has not been
satisfied at the Equity Sale Closing Time, then, from and after the Equity Sale Closing Time, Spinco, Merger Partner, Buyer and any other
applicable member(s) of the Buyer Group shall:
(i) continue
to use reasonable best efforts to satisfy an Existing Spinco Credit Support Instrument Release Condition with respect to such Existing
Spinco Credit Support Instrument as soon as possible (but in no event later than the Existing Credit Support Instrument Release Deadline)
and Remainco shall continue to use reasonable best efforts to cooperate with Spinco and Buyer to facilitate the same;
(ii) use
reasonable best efforts to cause the applicable member of the Spinco Group or the applicable member of the Buyer Group to continue to
(A) perform the Contracts or Liabilities which are guaranteed or supported by such Existing Spinco Credit Support Instrument and
(B) not to renew or extend the term of, increase any Liabilities under or transfer to a Third Party any of the Contracts or other
Liabilities which are guaranteed or supported by such Existing Spinco Credit Support Instrument, in each case, until the satisfaction
of an Existing Spinco Credit Support Instrument Release Condition with respect to such Existing Spinco Credit Support Instrument;
(iii) in
accordance with and subject to the provisions of Article III, indemnify and hold harmless each Remainco Indemnified Party
against any and all Losses in relation to or arising from any claim against such Remainco Indemnified Party to the extent related to or
arising under such Existing Spinco Credit Support Instrument; and
(iv) if
a member of the Remainco Group is obligated to deposit cash or provide collateral in connection with such Existing Spinco Credit Support
Instrument, then, not later than the later of (A) three (3) Business Days after Remainco has notified Buyer of such obligation
and (B) one (1) day before the date such member of the Remainco Group must deposit, or cause to be deposited, the required cash
in a dedicated blocked account, or provide, or cause to be provided, the required collateral, Buyer shall (i) deposit cash in a Spinco
Credit Support Account or (ii) provide a Spinco Backstop Credit Support Instrument, in each case, in an aggregate amount equal to
the cash or other collateral amount provided by Remainco.
(c) With
respect to the Existing Spinco Credit Support Instruments identified in the table set forth in Part (A) of Schedule 1.1(c) (as
Schedule 1.1(c) may be updated from time to time) (other than those Existing Spinco Credit Support Instruments identified
in Schedule 1.10(c) which are the subject of the last sentence of this clause (c)) for which Spinco, Merger Partner, Buyer
or any other applicable member(s) of the Buyer Group has not satisfied an Existing Spinco Credit Support Instrument Release Condition
as of the Existing Credit Support Instrument Release Deadline (the “Outstanding Existing Spinco Credit Support Instruments”)
(and only to the extent a member of the Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group has not already
deposited cash or provided collateral pursuant to clause (b)(iv) and without duplication of any such amounts), a member of
the Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group shall (at its option) either (i) deposit cash
in a blocked account in the name of a member of the Remainco Group designated by Remainco (the “Spinco Credit Support Account”)
or (ii) provide a Credit Support Instrument in favor of a member of the Remainco Group designated by Remainco reasonably acceptable
to Remainco (the “Spinco Backstop Credit Support Instrument”), in each case, in the aggregate amount of such Outstanding
Existing Spinco Credit Support Instruments. If a member of the Remainco Group is obligated to deposit cash or provide collateral in connection
with an Outstanding Existing Spinco Credit Support Instrument, then the relevant member of the Remainco Group shall have the right to
draw on the funds in the Spinco Credit Support Account or draw or make demand on the Spinco Backstop Credit Support Instrument to satisfy
such obligation. Promptly following the satisfaction of an Existing Spinco Credit Support Instrument Release Condition for each Outstanding
Existing Spinco Credit Support Instrument, Remainco shall cause an amount of the funds in the Spinco Credit Support Account equal to the
amount of such Outstanding Existing Spinco Credit Support Instrument (including any accrued interest or other amounts in respect thereof
not otherwise owed to the deposit bank or issuer of the relevant credit support instrument) to be released to the relevant member of the
Spinco Group, the relevant member of the Merger Partner Group or the relevant member of the Buyer Group or agree that the amount of the
Spinco Backstop Credit Support Instrument shall be reduced by such amount, as applicable. With respect to the Existing Spinco Credit Support
Instruments identified in Schedule 1.10(c) for which Buyer has not satisfied an Existing Spinco Credit Support Instrument
Release Condition as of the Existing Credit Support Instrument Release Deadline, Buyer shall, or shall cause a member of the Spinco Group,
a member of the Merger Partner Group or a member of the Buyer Group to, (i) offer to provide the beneficiary of such Existing Spinco
Credit Support Instrument a letter of credit in the amount described opposite such Existing Credit Support Instrument on Schedule 1.10(c) that
results in an Existing Spinco Credit Support Instrument Release Condition being satisfied and (ii) if an Existing Spinco Credit Support
Instrument Condition has not been satisfied within ten (10) Business Days after the offer made pursuant to clause (i), then unless
and until an Existing Spinco Credit Support Instrument Release Condition is satisfied, provide Remainco with a letter of credit in the
amount described opposite such Existing Credit Support Instrument on Schedule 1.10(c).
(d) Remainco
shall use reasonable best efforts to procure satisfaction of an Existing Remainco Credit Support Instrument Release Condition with respect
to each Existing Remainco Credit Support Instrument at the Equity Sale Closing Time and Spinco shall use reasonable best efforts to cooperate
with Remainco to facilitate the same. During the Pre-Closing Period, Remainco shall, as reasonably requested by Buyer, provide Buyer with
an updated table identifying Existing Remainco Credit Support Instruments in the same format as the table set forth in Part (B) of
Schedule 1.1(c).
(e) If
an Existing Remainco Credit Support Instrument Release Condition with respect to an Existing Remainco Credit Support Instrument has not
been satisfied at the Equity Sale Closing Time, then, from and after the Equity Sale Closing Time, Remainco shall:
(i) continue
to use reasonable best efforts to satisfy an Existing Remainco Credit Support Instrument Release Condition with respect to such Existing
Remainco Credit Support Instrument as soon as possible (but in no event later than the Existing Credit Support Instrument Release Deadline)
and the members of the Spinco Group, the members of the Merger Partner Group and the members of the Buyer Group shall continue to use
reasonable best efforts to cooperate with Remainco to facilitate the same;
(ii) use
reasonable best efforts to cause the applicable member of the Remainco Group to continue to (A) perform the Contracts or Liabilities
which are guaranteed or supported by such Existing Remainco Credit Support Instrument and (B) not to renew or extend the term of,
increase any other Liabilities under or transfer to a Third Party any of the Contracts or Liabilities which are guaranteed or supported
by such Existing Remainco Credit Support Instrument, in each case, until the satisfaction of an Existing Remainco Credit Support Instrument
Release Condition with respect to such Existing Remainco Credit Support Instrument;
(iii) in
accordance with and subject to the provisions of Article III, indemnify and hold harmless each Buyer Group Indemnified Party
against any and all Losses in relation to or arising from any claim against such Buyer Group Indemnified Party to the extent related to
or arising under such Existing Remainco Credit Support Instrument; and
(iv) if
a member of the Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group is obligated to deposit cash or provide
collateral in connection with such Existing Remainco Credit Support Instrument, then, not later than the later of (A) three (3) Business
Days after Remainco notified Buyer of such obligation and (B) one (1) day before the date such member of the Spinco Group, such
member of the Merger Partner Group or such member of the Buyer Group must deposit, or cause to be deposited, the required cash in a dedicated
blocked account, or provide, or cause to be provided, the required collateral, Remainco shall (i) deposit cash in a Remainco Credit
Support Account or (ii) provide a Remainco Backstop Credit Support Instrument, in each case, in an aggregate amount equal to the
cash or other collateral amount provided by such member of the Spinco Group, such member of the Merger Partner Group or such member of
the Buyer Group, as applicable.
(f) With
respect to the Existing Remainco Credit Support Instruments for which Remainco has not satisfied an Existing Remainco Credit Support Instrument
Release Condition as of the Existing Credit Support Instrument Release Deadline (the “Outstanding Existing Remainco Credit Support
Instruments”) (and only to the extent a member of the Remainco Group has not already deposited cash or provided collateral pursuant
to clause (e)(iv) and without duplication of any such amounts), a member of the Remainco Group shall (at its option) either
(i) deposit cash in a blocked account in the name of the appropriate member of the Spinco Group designated by Buyer (the “Remainco
Credit Support Account”), or (ii) provide a Credit Support Instrument in favor of a member of the Spinco Group designated
by Buyer reasonably acceptable to Buyer (the “Remainco Backstop Credit Support Instrument”), in each case, in the aggregate
amount of such Outstanding Existing Remainco Credit Support Instruments. If a member of the Spinco Group, a member of the Merger Partner
Group or a member of the Buyer Group is obligated to deposit cash or provide collateral in connection with an Outstanding Existing Remainco
Credit Support Instrument, then the relevant member of the Spinco Group, the relevant member of the Merger Partner Group or the relevant
member of the Buyer Group shall have the right to draw on the funds in the Remainco Credit Support Account or draw or make demand on the
Remainco Backstop Credit Support Instrument to satisfy such obligation. Promptly following the satisfaction of an Existing Remainco Credit
Support Instrument Release Condition for each Outstanding Existing Remainco Credit Support Instrument, the applicable member(s) of
the Spinco Group, the applicable member(s) of the Merger Partner Group or the applicable member(s) of the Buyer Group shall
cause an amount of the funds in the Remainco Credit Support Account equal to the amount of such Outstanding Existing Remainco Credit Support
Instrument (including any accrued interest or other amounts in respect thereof not otherwise owed to the deposit bank or issuer of the
relevant credit support instrument) to be released to the relevant member of the Remainco Group or agree that the amount of the Remainco
Backstop Credit Support Instrument shall be reduced by such amount, as applicable.
1.11 Disclaimer
of Representations and Warranties.
(a) THE
PARTIES (EACH ON BEHALF OF ITSELF AND EACH MEMBER OF ITS GROUP) UNDERSTAND AND AGREE THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT
OR ANY OTHER TRANSACTION DOCUMENT, NO PARTY TO THIS AGREEMENT OR TO ANY OTHER TRANSACTION DOCUMENT AND NO MEMBER OF THE REMAINCO GROUP,
NO MEMBER OF THE SPINCO GROUP, NO MEMBER OF THE MERGER PARTNER GROUP AND NO MEMBER OF THE BUYER GROUP OTHERWISE, IS REPRESENTING
OR WARRANTING IN ANY WAY, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, AS TO THE ASSETS, BUSINESSES OR LIABILITIES CONTRIBUTED, TRANSFERRED
OR ASSUMED AS CONTEMPLATED by any transaction document, AS TO ANY CONSENTS OR GOVERNMENTAL
APPROVALS REQUIRED IN CONNECTION THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OR ENCUMBRANCES OF, AS TO NON-INFRINGEMENT,
VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY ASSETS OR BUSINESS OF SUCH PARTY OR ITS GROUP, OR AS TO THE ABSENCE OF
ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE,
OF ANY PARTY OR ITS GROUP, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED
HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY
BE SET FORTH IN THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS, WHERE IS”
BASIS AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT
TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST OR OTHER ENCUMBRANCE AND (II) ANY NECESSARY CONSENTS
OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT ANY LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.
(b) Each
Party (on behalf of itself and each member of its Group) further understands and agrees that if the disclaimer of express or implied representations
and warranties contained in Section 1.11(a) is held unenforceable or is unavailable for any reason under the Laws of
any jurisdiction or if, under the Laws of a jurisdiction, both Remainco or any member of the Remainco Group, on the one hand, and Spinco
or any member of the Spinco Group, on the other hand, are jointly or severally liable for any Remainco Retained Liability or any Spinco
Liability, respectively, then the Parties intend that, notwithstanding any provision to the contrary under the Laws of such jurisdictions,
the provisions of the Transaction Documents (including any disclaimer of representations and warranties, allocation of Liabilities among
the Parties and their respective Groups, releases and indemnification of Liabilities) shall prevail for any and all purposes among the
Parties and their respective Groups. Notwithstanding anything to the contrary contained in this Agreement, nothing in this Section 1.11
releases any Liability for Fraud.
(c) Remainco
waives compliance by itself and each and every other member of the Remainco Group with the requirements and provisions of any “bulk-sale”
or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or
all of the Remainco Retained Assets to Remainco or any member of the Remainco Group.
(d) Spinco
waives compliance by itself and each and every other member of the Spinco Group with the requirements and provisions of any “bulk-sale”
or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any
or all of the Spinco Assets to Spinco or any member of the Spinco Group.
(e) Buyer
waives compliance by itself and each and every other member of the Buyer Group with the requirements and provisions of any “bulk-sale”
or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any
or all of the Spinco Assets to Spinco or any member of the Spinco Group.
1.12 Restrictive
Covenants.
(a) Remainco
Group Non-Compete.
(i) For
the period commencing on the Closing Date and ending on the date which is four (4) years following the Closing Date (the “Restricted
Period”), without the prior written consent of Buyer, Remainco agrees not to, directly or indirectly, and not to permit any
member of the Remainco Group to, engage in, manage or operate, anywhere in the world, or own an Equity Interest in any Person who engages
in, manages or operates anywhere in the world, any Spinco Restricted Business; provided that nothing in this Agreement shall
preclude any member of the Remainco Group from:
A. engaging
in, operating or managing (or owning any Equity Interests in any Entity that engages in, operates or manages) any Permitted Business;
B. acquiring
and, after such acquisition, owning any Equity Interest for passive investment purposes only (provided that none of the members of the
Remainco Group exercise control of or otherwise manages, operates or engages in the Spinco Restricted Business of such Person) in any
Person (or its successor) that is engaged in a Spinco Restricted Business if such Spinco Restricted Business generated less than Sixty
Million Dollars ($60,000,000) of such Person’s consolidated annual revenues in the last completed fiscal year of such Person;
C. owning
two percent (2%) or less of the outstanding Equity Interest of any Person whose shares are listed on a stock exchange; provided that
such Equity Interests are held for passive investment purposes only and none of the members of the Remainco Group exercise Control
of (or otherwise manages, operates or engages in the Spinco Restricted Business of) such Person;
D. acquiring
and, after such acquisition, owning a controlling Equity Interest in any Person or Persons, collectively, (or its or their successor,
successors, business or businesses) that are (directly or indirectly through controlled Affiliates) engaged in a Spinco Restricted Business,
provided that (1) other than the Entities identified in Schedule 1.12(a)(i)D, the revenue generated from the Spinco
Restricted Business of such Person or Persons, collectively, was less than One Hundred Forty Million Dollars ($140,000,000) of such Person’s
or Persons’ consolidated annual revenues in the aggregate in the last completed fiscal year of such Person or Persons, collectively,
and (2) if the revenue generated from the Spinco Restricted Business of such Person or Persons, collectively, was greater than Sixty
Million Dollars ($60,000,000) of such Person’s or Persons’ consolidated annual revenues in the aggregate in the last completed
fiscal year of such Person or Persons, collectively (the “$60 Million Revenue Threshold”), then Remainco, within one
(1) year after exceeding the $60 Million Revenue Threshold shall enter into a definitive agreement to cause the divestiture of (and
within six (6) months after the entry into such definitive agreement divests pursuant thereto (subject to extensions for regulatory
approvals)), a sufficient portion of the Spinco Restricted Business of such Person or Persons such that the $60 Million Revenue Threshold
is not exceeded;
E. exercising
its rights or performing or complying with its obligations under or as contemplated by any of the Transaction Documents; or
F. entering
into or participating in a joint venture or partnership with any Person engaged in a Spinco Restricted Business if such joint venture
or partnership does not engage in a Spinco Restricted Business.
(ii) The
Parties acknowledge that the restrictions contained in this Section 1.12(a) are reasonable in scope and duration. The
Parties further acknowledge that the restrictions contained in this Section 1.12(a) are necessary to protect Buyer’s
significant interest in the Spinco Restricted Business, including its goodwill. It is the desire and intent of the Parties that the provisions
of this Section 1.12(a) be enforced to the fullest extent permissible under applicable Law. If any covenant in this
Section 1.12(a) is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination
of a Governmental Authority of competent jurisdiction, the Parties agree that: (1) such determination will not affect the validity
or enforceability of (A) the offending term or provision in any other situation or in any other jurisdiction or (B) the remaining
terms and provisions of this Section 1.12(a) in any situation in any jurisdiction; (2) the offending term
or provision will be reformed rather than voided and the Governmental Authority making such determination will have the power to reduce
the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to
replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest
to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this
Section 1.12(a) enforceable to the fullest extent permitted by applicable Law; and (3) the restrictive covenants
set forth in this Section 1.12(a) will be enforceable as so modified.
(b) Non-Solicit.
(i) For
a period of two (2) years from the Closing Date, Remainco shall not, and shall cause the other members of the Remainco Group not
to, without the prior written consent of Buyer, directly or indirectly, solicit for employment any Spinco Employee or any Merger Partner
Protected Person; provided that nothing in this Section 1.12(b) shall prohibit any of the members of the Remainco
Group from placing public advertisements or engaging in any other form of general solicitations not directed at such Persons (including
the use of an independent employment agency or search firm whose efforts are not specifically directed at Spinco Employees) or from soliciting
the services of any such Person whose employment with or engagement by Buyer or any of its Affiliates (including the Spinco Group) has
been terminated by Buyer or its applicable Affiliate or who has otherwise ceased to be employed or engaged by Buyer or any of its Affiliates
for a period of at least three (3) months prior to the first contact by of the members of the Remainco Group with such Person.
(ii) For
a period of two (2) years from the Closing Date, Buyer shall not, and shall cause its Subsidiaries (including the members of the
Spinco Group) not to, without the prior written consent of Remainco, directly or indirectly, solicit for employment any Remainco Protected
Person who is employed by any of the members of the Remainco Group as of the Closing; provided that nothing in this Section 1.12(b) shall
prohibit Buyer or any of its controlled Affiliates from placing public advertisements or engaging in any other form of general solicitations
not directed at such Persons (including the use of an independent employment agency or search firm whose efforts are not specifically
directed at such Persons) or from soliciting the services of any such Person whose employment with or engagement by any of the members
of the Remainco Group has been terminated by any of the members of the Remainco Group or who has otherwise ceased to be employed or engaged
by any of the members of the Remainco Group for a period of at least three (3) months prior to the first contact by Buyer or any
of its controlled Affiliates.
1.13 Certain
Resignations. At or prior to the Closing Date, Spinco shall cause each employee of any member of the Remainco Group who will not
be employed by any member of the Spinco Group after the Closing Date to be removed, effective not later than the Closing Date, from all
boards of directors or similar governing bodies of any member of the Spinco Group on which they serve, and from all positions as officers
of any member of the Spinco Group in which they serve.
1.14 Removal
of Tangible Retained Assets. Except as may otherwise be provided in the Transaction Documents or otherwise agreed to by the Parties,
Remainco shall use reasonable best efforts to move or cause to be moved tangible Remainco Retained Assets as soon as reasonably practicable
after the Equity Sale Closing Time from the facilities of the members of the Spinco Group, at Remainco’s expense and in a manner
so as not to unreasonably interfere with the operations of any member of the Spinco Group and not to cause damage to such facilities,
and the members of the Spinco Group shall provide reasonable access to such facilities to effectuate the same.
1.15 Stand-Up
Plan and Day-One Readiness.
(a) As
soon as practical following the date hereof, Remainco shall in good faith design a plan (the “Stand-Up Plan”) setting
out the projects that, if fully implemented and when combined with (i) the services contemplated to be provided under the Transition
Services Agreement as of the date hereof, (ii) the services and assets provided under the other Transaction Documents, (iii) the
Spinco Assets contemplated to be owned by the members of the Spinco Group following the Closing and (iv) the assets, properties
and capabilities of the Merger Partner Group (to the extent that utilization of such assets, properties and capabilities would not materially
impair the Merger Partner Group’s ability to operate consistent with past practice), would reasonably be expected to provide to
the Spinco Group the functions identified in clauses (i) through (ix) below (the “Specified Functions”)
with a level of operational performance and functionality that is substantially consistent with the operational performance and functionality
of the Specified Functions utilized by the Spinco Business as of the date hereof, it being the intent of the Parties that the foregoing
taken together will permit the Spinco Group to conduct the Spinco Business in substantially the same manner as the Spinco Business is
being conducted as of the date hereof, independent of the Remainco Group (collectively the “Stand-Up Scope”). For
purposes hereof, the Specified Functions shall be:
(i) the
IT functions of the members of the Spinco Group (the “IT Separation and Stand-Up”);
(ii) the
accounting, tax, finance (including financial planning and analysis), treasury and internal audit functions of the members of the Spinco
Group (the “Accounting Separation”);
(iii) the
legal and compliance functions of the members of the Spinco Group (the “Legal Separation”);
(iv)
the marketing and communications functions of the members of the Spinco Group (the “M&C Separation”); and
(v) the
supply chain, procurement and services functions of the members of the Spinco Group (the “SC&S
Separation”);
(vi)
the facilities, environmental health and safety, real estate management and building security functions of the members of the Spinco
Group (the “Facilities Separation”);
(vii) the
human resources functions of the members of the Spinco Group (the “HR Separation”); and
(viii) the
corporate public affairs including corporate affairs and government relations functions of the members of the Spinco Group (the “CPA
Separation”).
(b) The
Stand-Up Plan will also provide for:
(i) the
separation of the Spinco IT Assets, the Spinco Owned Intellectual Property, the Spinco Owned Technology and the Spinco Owned Software
of the members of the Spinco Group from the systems of the members of the Remainco Group so that such assets can be used in the operation
of the Spinco Business following the Closing Date (“Systems Separation”);
(ii) (A) the
extraction, configuration and movement of Information relating to the Spinco Business and other information, data and databases constituting
Spinco Assets from the IT Assets, Intellectual Property, Technology or Software of the members of the Remainco Group or other Assets,
Technology and Software agreed upon in writing by Remainco and Buyer in good faith, and (B) the extraction, configuration and movement
of Information relating to the Remainco Retained Business and other information constituting Remainco Retained Assets from the IT Assets, Intellectual
Property, Technology or Software of the members of the Spinco Group so that such assets can be used in the operation of the Spinco Business
following the Closing Date (collectively, the “Data Migration”);
(iii)
the preparation (including training of employees) of the members of the Remainco Group and the members of the Spinco Group for the
Systems Separation, the Data Migration and the IT Separation and Stand-Up, Accounting Separation, the Legal Separation, the M&C
Separation, the SC&S Separation, the Facilities Separation, the HR Separation and the CPA Separation; and
(iv)
the preparation of the members of the Remainco Group and the members of the Spinco Group to provide and receive the Services under
the Transitions Services Agreement (including any employees responsible for providing or receiving the Services).
For the avoidance of doubt, (A) the Stand-Up
Plan shall be developed assuming that (1) the Contemplated Transactions (including the Transfer of the Spinco Assets and the Separation)
will have occurred, (2) all applicable consents, approvals and authorizations of any member of the Remainco Group or any member
of the Spinco Group under any Contracts, Intellectual Property, Laws and Permits will have been received, including relating to
the matters set forth in Section 2.5(a) or Section 2.5(b) of the Remainco Disclosure Letter or as contemplated by
Section 2.5 of the Merger Agreement, and (3) the Spinco Employees will be employed by a member of the Buyer Group following
the Closing, (B) this Section 1.15 shall not be deemed to create any obligations of Remainco with respect to any of the foregoing
in clauses (B)(1) through (B)(3) other than to the extent such obligations are expressly set forth in the Transaction Documents
(other than this Section 1.15), (C) the Stand-Up Plan shall be developed assuming that (1) all employees of the Merger
Partner Group on or about the date hereof will be employed by a member of the Buyer Group following the Closing, (2) all applicable
consents, approvals and authorizations of any member of the Merger Partner Group under any Contracts, Intellectual Property, Laws
and Permits will have been received, including relating to the matters set forth in Section 3.5(a) or Section 3.5(b) of
the Merger Partner Disclosure Letter or as contemplated by Section 3.5 of the Merger Agreement and (3) the Merger Partner will
have complied with Section 5.3 of the Merger Agreement, and (D) Remainco shall have no obligations with respect to any of the
foregoing in clauses (C)(1) through (C)(3). Buyer acknowledges and agrees that Remainco will develop the Stand-Up
Plan on the timelines set forth herein based upon information available during the Development Period and will, from time to time prior
to the Closing, modify the Stand-Up Plan as necessary to take into account changes that occur which would materially impact the implementation
of the Stand-Up Plan. The Stand-Up Plan will include milestones and Remainco’s good faith estimated timeframes for the completion
of the Stand-Up, contain a reasonable level of detail and provide for testing with respect to the System Separation, the Data Migration
and the Accounting Separation to validate the functionality thereof.
(c) Remainco
shall use reasonable best efforts to complete the design and development the Stand-Up Plan on or prior to the date that is ninety (90)
days after the date hereof (the “Development Period”) and provide to Buyer and Merger Partner prior to the end of
the Development Period the Stand-Up Plan. In connection with the foregoing and Remainco’s obligations to design the Stand-Up Plan
pursuant to Section 1.15(a), Remainco shall consult in good faith with Buyer and Merger Partner with respect to the development
of such Stand-Up Plan during the Development Period (and consider in good faith any suggestions thereto as reasonably requested by Buyer
and Merger Partner (which consultation process may be undertaken through the Transition Coordination Group), in each case, subject to
applicable Law, including applicable Gaming Law. With respect to any components of or projects contemplated by the Stand-Up Plan (without
limiting the obligation to develop a Stand-Up Plan that is consistent with the Stand-Up Scope), Remainco shall, subject to applicable
Law (including Gaming Law), consult in good faith with Buyer with respect to any modifications or supplements to the Stand-Up Plan (which
consultation process may be undertaken through the Transition Coordination Group), and incorporate any modifications or supplements to
such components or projects that are reasonably requested by Buyer into the Stand-Up Plan to the extent such modifications or supplements
are customarily undertaken in the separation or stand-up component of transactions similar to the Contemplated Transactions but different
from the manner in which the Stand-Up Plan contemplated such components or projects would be implemented (“Requested Modifications”).
In no event shall the Requested Modifications include any cybersecurity testing, remediation or similar activities. Notwithstanding anything
herein to the contrary, (i) Remainco shall not be required to undertake any Requested Modification that, together with all other
Requested Modifications, would result in the Remainco Group incurring aggregate costs, expenses or liabilities in excess of Fifteen Million
Dollars ($15,000,000) and (ii) prior to Closing, the Stand-Up Plan shall not allocate any out-of-pocket costs, expenses or liabilities
to any member of the Merger Partner Group without the prior written consent of Merger Partner (which may be withheld in its sole discretion).
(d) The
Parties acknowledge and agree that Remainco shall (i) take the lead in designing, supervising and implementing the matters set forth
in the Stand-Up Plan in consultation with Merger Partner and Buyer and (ii) pay for the procurement and installation of the assets
contemplated by the Stand-Up Plan to be obtained prior to the Closing by the Spinco Business, the implementation of the components of
and projects contemplated by the Stand-Up Plan to be implemented prior to the Closing and testing to validate the functionality and operational
performance of the aspects of the components of the Stand-Up Plan (the foregoing (i) and (ii), the “Stand-Up”).
Remainco shall, subject to applicable Law, including applicable Gaming Law, (i) provide regular updates to Buyer and Merger Partner,
as reasonably requested by Buyer and Merger Partner, with respect to the progress in effecting the Stand-Up, including any potential
risks or issues to achieving the relevant objectives, and (ii) together with Merger Partner and Buyer, form a group comprised of
Representatives of management-level employees of Remainco and Merger Partner and Representatives of Buyer (the “Transition Coordination
Group”) that is directed to meet at least weekly to discuss the Stand-Up (including the status thereof), as well as transition
and integration planning matters. Remainco and Merger Partner shall, subject to applicable Law, including applicable Gaming Law, upon
reasonable advance notice (x) afford Representatives of Buyer designated by Buyer (the “Buyer Observers”) reasonable
access during normal business hours to Representatives of Remainco and Merger Partner (including management-level and technical employees)
who are assisting with the Stand-Up and transition and integration workstreams (the “Transition Team Members”) as
reasonably requested by Buyer and (y) use commercially reasonable efforts to cause the Transition Team Members to, to the extent
reasonably requested by the Buyer Observers, consult with the Buyer Observers during normal business hours regarding the ongoing Stand-Up
processes and transition and integration workstreams on which such Transition Team Members are working, in each case, subject to the
limitations and qualifications set forth in Section 5.1 (Access and Investigation) of the Merger Agreement.
(e) Merger
Partner shall reasonably cooperate and reasonably assist Remainco in connection with the Stand-Up as reasonably requested by Remainco
or Buyer, including taking actions to prepare for the Services (as defined in the Transition Services Agreement).
(f) Merger
Partner and Remainco shall use reasonable best efforts to implement the tasks contemplated to be implemented by such Party by the Stand-Up
Plan in accordance with the time periods set forth in the Stand-Up Plan in all material respects, and Remainco shall, and shall cause
members the Remainco Group and the Spinco Group to, subject to the terms of the Transaction Documents, use reasonable best efforts to
complete the Stand-Up prior to the Closing (it being understood and agreed that the members of the Remainco Group and the members of
the Spinco Group shall not be required to complete any portion of the Stand-Up Plan that is contingent on any action of a member of the
Merger Partner Group that has not been completed as contemplated by the Stand-Up Plan). Remainco shall grant access to Buyer from time
to time prior to the Closing in accordance with Section 5.1 (Access and Investigation) of the Merger Agreement and this Section 1.15
to permit Buyer and its Representatives to monitor the completion of the Stand-Up, including the functioning of systems contained
in the Systems Separation, and the Data Migration, the preparedness of employees to provide or receive the Services and the preparedness
of any third party vendors to provide the Services. Subject to the terms of this Agreement (including the last sentence of Section 1.15(c) and
the first sentence of this Section 1.15(f)), if one or more of the components of or projects contemplated by the Stand-Up
Plan have not been completed (such projects that have not been completed, the “Required Post-Closing Projects”), Remainco
shall continue to be obligated to complete such Required Post-Closing Projects following the Closing, and shall continue to bear the
costs as described in Section 1.15(d) and Section 1.15(h) in connection therewith and if any additional
transition services not contemplated by the Transition Services Agreement as of the date hereof are required to be provided to the Spinco
Group as a result of such failure to complete a Required Post-Closing Project prior to the Closing, Remainco shall bear all out-of-pocket
costs of set-up and exit by the Remainco Group and the Spinco Group of such additional Services to the extent such costs are incremental
to any costs that would have been incurred absent such failure (but, for the avoidance of doubt, not the services fees payable under
the Transition Services Agreement for such Services). For the avoidance of doubt, without limiting Remainco’s obligations to complete
the Required Post-Closing Projects following the Closing, no member of the Buyer Group and no member of the Merger Partner Group shall
be entitled to make any indemnification claims or seek damages from any member of the Remainco Group as a result of the fact that the
Stand-Up is not completed prior to the Closing (and, notwithstanding that such obligations are commenced or completed after the Closing,
they should be considered pre-closing covenants of the members of the Remainco Group).
(g) Without
the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed), prior to the Equity Sale Closing
Time, Remainco, Spinco and Merger Partner shall not, and shall cause the other members of the respective Groups not to, enter into any
Shared Contracts Alternative Arrangements or any Permits Alternative Arrangements.
(h) Remainco
shall pay (i) all fees and out of pocket expenses incurred by any member of the Remainco Group (including any member of the Spinco
Group) of Representatives of the members of the Remainco Group (including any member of the Spinco Group) engaged to assist with or facilitate
the Stand-Up prior to the Closing (as well as fees and expenses following the Closing for such Representatives engaged by members of
the Remainco Group to complete any Required Post-Closing Projects), (ii) any one-time license fees and one time set-up fees for
software to be obtained pursuant to the Systems Separation plan portion of the Stand-Up Plan to be obtained by any member of the Spinco
Group, including the license fees set forth on Schedule 1.15(h), (iii) any recruitment, onboarding or similar one time fees
incurred in connection with hiring any personnel necessary during the pre-Closing period to establish the Specified Functions for the
Spinco Group on the terms set forth herein (as well as any reasonable recruitment, onboarding or similar one time fees incurred following
the Closing in connection with completing any Required Post-Closing Projects), and (iv) any other fees and out of pocket expenses
specifically identified as being borne by the Remainco Group in the Stand-Up Plan.
(i) Notwithstanding
anything set forth here, the Stand-Up is not intended to modify the allocation of risk between the members of the Remainco Group, on
the one hand, and Buyer on the other hand, contemplated by the Transaction Documents, including, for example, the allocation of Spinco
Assets or Remainco Retained Assets (including requiring Remainco to acquire assets that are currently used by the Spinco Business but
constitute Remainco Retained Assets, other than the assets that are part of a Specified Function that are contemplated by the Stand-Up
Plan to be acquired for the Spinco Business prior to the Closing), the condition of the assets or any damage thereto, whether any Contract
consent is obtained or whether any Service is to be performed under the Transition Services Agreement, which matters shall be governed
by the other applicable provisions of the Transaction Documents.
1.16 Cash
Management. From the date hereof until immediately prior to the Equity Sale Closing Time, subject to Section 2.3, the
members of the Remainco Group shall be entitled to use, retain or otherwise dispose of all cash and cash equivalents related to the Spinco
Business in accordance with Remainco’s cash management system or otherwise dividend or distribute cash and cash equivalents from
the Spinco Group, it being understood that all cash and cash equivalents comprising the Spinco Closing Cash Amount shall be retained
by members of the Spinco Group as a Spinco Asset; provided that no member of the Remainco Group shall distribute or otherwise
remove for its benefit cash or cash equivalents from any member of the Spinco Group to the extent such distribution or removal would
reduce the Spinco Closing Cash Amount below the Spinco Minimum Cash Amount as of the Equity Sale Closing Time.
1.17 Guarantee.
(a) Following
the Equity Sale Closing Time, Buyer unconditionally, absolutely and irrevocably guarantees to Remainco the prompt payment, in full, when
due, of any payment obligations of each member of the Spinco Group under the Transaction Documents which pursuant to their terms arise
at or after the Closing Time with respect to obligations to be performed after the Closing and the prompt performance, when due, of all
other obligations of each member of the Spinco Group under the Transaction Documents which pursuant to their terms arise at or after
the Closing with respect to obligations to be performed after the Equity Sale Closing Time. The obligations of the Buyer to Remainco
under this Section 1.17 are referred to as the “Buyer Guaranteed Obligations”. The Buyer Guaranteed Obligations
are absolute and unconditional, irrespective of, and Buyer expressly waives any defense to its obligations under this Section 1.17,
any circumstance whatsoever which might otherwise constitute a legal or equitable defense available to, or discharge of, a surety or
a guarantor, including any right to require or claim that Remainco seek recovery directly from any member of the Spinco Group with respect
to the Buyer Guaranteed Obligations, except for a defense that is available to, or may be asserted by, a member of the Spinco Group.
(b) Following
the Equity Sale Closing Time, Remainco unconditionally, absolutely and irrevocably guarantees to Buyer the prompt payment, in full, when
due, of any payment obligations of each member of the Remainco Group under the Transaction Documents which pursuant to their terms arise
at or after the Closing Time with respect to obligations to be performed after the Closing and the prompt performance, when due, of all
other obligations of each member of the Remainco Group under the Transaction Documents which pursuant to their terms arise at or after
the Closing with respect to obligations to be performed after the Equity Sale Closing Time. The obligations of the Buyer to Remainco
under this Section 1.17 are referred to as the “Remainco Guaranteed Obligations”. The Remainco Guaranteed Obligations
are absolute and unconditional, irrespective of, and Buyer expressly waives any defense to its obligations under this Section 1.17,
any circumstance whatsoever which might otherwise constitute a legal or equitable defense available to, or discharge of, a surety or
a guarantor, including any right to require or claim that Remainco seek recovery directly from any member of the Spinco Group with respect
to the Remainco Guaranteed Obligations, except for a defense that is available to, or may be asserted by, a member of the Spinco Group.
(c) Merger
Partner, Buyer and Remainco shall cause the members of such Party’s Group to perform all actions, agreements and obligations contemplated
to be performed by any member of such Party’s Group in accordance with the Transaction Documents, including prompt payment, in
full, when due, of any payment obligations under the Transaction Documents.
1.18 Additional
Separation Covenants.
(a) Spinco
and Merger Partner shall use reasonable best efforts to provide all reasonable cooperation requested by Remainco with respect to effecting
the Separation, including the Separation Plan. Spinco and Merger Partner shall, and shall cause the other members of their respective
Groups to, reasonably cooperate with Remainco’s efforts with respect to the Separation (including any actions to be taken to prepare
for the Services (as defined in the Transition Services Agreement). Remainco, Spinco and Merger Partner shall, and shall cause the other
members of their respective Groups, to reasonably consult with Buyer with respect to the Separation, including the Separation Plan.
(b) Spinco,
Merger Partner and Buyer acknowledge that they shall not receive any Excluded Services (as defined in the Transition Services Agreement)
and shall be responsible for being prepared as of the Equity Sale Closing Time to provide the Excluded Services to the Spinco Business.
(c) From
the date hereof until the Equity Sale Closing Time, the Parties shall cooperate in good faith to do the following:
(i) Determine
whether Spinco or Remainco requires any additional transition services not contemplated by the Transition Services Agreement that would
qualify as Omitted Services under Section 1.2 of the Transition Services Agreement; provided that, for purposes of this Section 1.18(c) the
“Lookback Period” referred to in the Transition Services Agreement shall be defined as the twelve (12) month period immediately
preceding the date hereof through the Equity Sale Closing Time. If, prior to the Equity Sale Closing Time, the Parties determine there
are any such services, then the Parties shall take the actions that would be required to be taken under Section 1.2 of the Transition
Services Agreement if it were then in effect to add such service as a “Service” from Remainco to Spinco or from Spinco to
Remainco, as applicable, under the Transition Service Agreement.
(ii) To
the extent required by applicable Law, including Privacy Laws (as defined in the Transition Services Agreement), negotiate in good faith
to enter into a business associate agreement or a data protection agreement between or among Remainco, Merger Partner and Buyer (as appropriate),
in form and substance reasonably satisfactory to such Parties, in respect of the Services provided under the Transition Services Agreement.
(d) Promptly
following the date hereof, Remainco, Merger Partner and Buyer shall cooperate in good faith (i) to develop a plan to seek to obtain
any Required Third Party Consents, (ii) oversee the implementation and execution of such plan and (iii) develop a plan to mitigate
the effects of not obtaining any Required Third Party Consent. Such plans shall be subject in all respects to the applicable provisions
of the Transaction Documents, including Sections 1.2 and 1.4 of this Agreement (unless otherwise agreed upon in writing
by Remainco, Merger Partner and Buyer). Notwithstanding anything to the contrary contained in this Agreement, the provisions of the Merger
Agreement shall control with respect to the Parties’ rights and obligations relating to obtaining Governmental Approvals required
to consummate the Contemplated Transactions.
(e) The
Parties agree that, at the request of the Buyer within 60 days after the date hereof, the Parties will discuss in good faith and use
commercially reasonable efforts to amend the Separation Plan and the Transaction Documents to permit Buyer to directly acquire from International
Game Technology the Equity Interests of IGT Canada Solutions ULC at the Closing; provided, that no Party shall be required to
amend the Separation Plan or the Transaction Documents or take any other any actions pursuant to this Section 1.18(e) that
(i) are not conditioned on the closing of the Equity Sale or (ii) that such Party determines in good faith would adversely
affect such Party or any member of its Group.
(f)
The Parties agree that, following the date hereof, Remainco and Buyer will discuss in good
faith an agreement with respect to certain payment services to be entered into by and between US Gaming Opco and US Lottery Opco
(the “Pay Services Agreement”) and use commercially reasonable efforts to cause the Pay Services Agreement to
entered into effective as of the Closing on terms to be mutually agreed between Remainco and Buyer.
1.19 Obligations
for Certain Equity Awards. On the Closing Date immediately following the Closing, Remainco shall wire, or cause to be wired, in immediately
available funds to the account designated in writing by Buyer, an amount equal to one hundred percent (100%) of the aggregate amount
necessary to pay the Pre-2024 Buyer Cash Awards (for the avoidance of doubt, including the aggregate amount to be paid in respect of
such Pre-2024 Buyer Cash Awards following the Closing but not with respect to any equity awards which become vested and will settle in
connection with the Closing) payable to Spinco Employees who become Spinco Transferred Employees at the Closing Time (such amount paid,
the “Upfront Cash Award Payment”). Nothing set forth in this Section 1.19 is intended to limit the rights
and obligations of the Parties with respect to the treatment of the Pre-2024 Buyer Cash Awards, including with respect to the dispute
mechanism set forth in Section 3.2(b) of the Employee Matters Agreement.
1.20 Certain
Matters. Remainco and Buyer agree as set forth on Schedule 1.20.
Article II
PURCHASE AND SALE
2.1 Purchase
and Sale. On the terms and subject to the conditions set forth in this Agreement and the Merger Agreement, at the Closing and immediately
prior to the consummation of the Merger, Buyer shall purchase and acquire from Remainco, and Remainco shall sell, transfer, convey and
deliver to Buyer, all of the Spinco Units, free and clear of all Encumbrances (other than Encumbrances (i) arising under the Securities
Act and applicable state securities laws or (ii) created or incurred by, or at the written direction of, Buyer) (the “Equity
Sale”).
2.2 Cash
Payment. At the Closing, Buyer shall deliver or cause to be delivered to Remainco an aggregate amount in cash equal to the Estimated
Purchase Price, by wire transfer of immediately available funds to the account or accounts designated in writing by Remainco at least
three (3) Business Days prior to the Closing Date.
2.3 Adjustment
for Spinco.
(a) Spinco
Estimated Closing Statement. No later than ten (10) Business Days prior to the anticipated Closing Date, Remainco shall deliver
to Buyer a statement (the “Spinco Estimated Closing Statement”), in the same format as the Spinco Reference Closing
Statement, setting forth Remainco’s good faith estimate of the Purchase Price (the “Estimated Purchase Price”)
and the Spinco Adjustment Amount (the “Spinco Estimated Adjustment Amount”) based on good faith estimates of (i) the
Spinco Closing Net Working Capital (such estimate, the “Spinco Estimated Closing Net Working Capital”); (ii) the
Spinco Closing Cash Amount (such estimate, the “Spinco Estimated Closing Cash Amount”); and (iii) the Spinco
Closing Indebtedness Amount (such estimate, the “Spinco Estimated Closing Indebtedness Amount”). Remainco shall prepare
the Spinco Estimated Closing Statement and the components thereof in accordance with the Spinco Transaction Accounting Principles. The
Spinco Estimated Closing Statement, the Spinco Adjustment Amount, the Spinco Initial Post-Closing Statement, the Spinco Estimated Closing
Net Working Capital, the Spinco Estimated Closing Cash Amount, the Spinco Estimated Closing Indebtedness Amount, the Spinco Estimated
Adjustment Amount, the Spinco Final Adjustment Amount, the Spinco Final Closing Net Working Capital, the Spinco Final Closing Cash Amount,
the Spinco Final Closing Indebtedness Amount and the components, determinations and calculations thereof shall be prepared in good faith
in accordance with the Spinco Transaction Accounting Principles and in the same format of the Spinco Reference Closing Statement. Remainco
shall give Buyer and its Representatives reasonable access to the books and records, accounting and finance personnel and auditors of
Remainco to facilitate Buyer’s review of the Spinco Estimated Closing Statement and the components thereof and shall consider any
comments to the Spinco Estimated Closing Statement and the components thereof made by Buyer. To the extent that Remainco and Buyer agree
to any changes to the Spinco Estimated Closing Statement and the components thereof, Remainco shall revise the Spinco Estimated Closing
Statement and the components thereof to reflect such changes. None of (A) the delivery or review of the Spinco Estimated Closing
Statement and the components thereof or (B) any changes thereto prior to the Closing shall be deemed to limit any rights of Buyer
to object to the Spinco Initial Post-Closing Statement or otherwise limit any of the rights of Buyer under any of the Transaction Documents.
(b) Delivery
of Spinco Initial Post-Closing Statement. No later than sixty (60) days after the Closing Date, Remainco shall deliver to Buyer a
statement (the “Spinco Initial Post-Closing Statement”) in the same format as the Spinco Reference Closing Statement,
setting forth Remainco’s calculation of the Spinco Closing Net Working Capital, the Spinco Closing Cash Amount and the Spinco Closing
Indebtedness Amount and, based thereon, the Spinco Adjustment Amount and the Purchase Price. Remainco shall prepare the Spinco Initial
Post-Closing Statement in good faith and in accordance with the Spinco Transaction Accounting Principles. If Remainco does not deliver
to Buyer the Spinco Initial Post-Closing Statement within sixty (60) days after the Closing Date, then Buyer may elect in writing (i) to
prepare and present the Spinco Initial Post-Closing Statement to Remainco within an additional sixty (60) days or (ii) for the Spinco
Estimated Closing Statement to become final and binding on Remainco and Buyer as the Spinco Final Post-Closing Statement. If Buyer elects
to prepare the Spinco Initial Post-Closing Statement, then all subsequent references in this Section 2.3 to Remainco and
Buyer, respectively, shall be read as references to Buyer and Remainco, respectively. To facilitate such preparation, Remainco shall,
and shall cause the other members of the Remainco Group, to provide Buyer and its Representatives with full access to the employees of
the members of the Remainco Group (including the Chief Financial Officer and the Chief Accounting Officer (or equivalent) of Remainco)
and to all documentation, books, records and other information of the members of the Remainco Group as Buyer or any of its Representatives
may reasonably request (including work papers relating to the Spinco Initial Post-Closing Statement); provided that such access
does not unreasonably interfere with the conduct of the business of the Remainco Group. Each Party acknowledges that the sole purpose
of the process set forth in this Section 2.3 is to determine the Final Purchase Price, the Spinco Final Adjustment Amount,
the Spinco Final Closing Net Working Capital, the Spinco Final Closing Cash Amount and the Spinco Final Closing Indebtedness Amount and
such process is not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices,
procedures, classifications or estimation methodologies in a manner inconsistent with the Spinco Transaction Accounting Principles.
(c) Review
of Spinco Initial Post-Closing Statement. Buyer shall have sixty (60) days after the date on which it receives the Spinco Initial
Post-Closing Statement to review the Spinco Initial Post-Closing Statement and the calculations set forth therein (the “Spinco
Adjustment Review Period”). To facilitate such review, Remainco shall, and shall cause the other members of the Remainco Group,
to provide Buyer and its Representatives with full access to the employees of the members of the Remainco Group (including the Chief
Financial Officer and the Chief Accounting Officer (or equivalent) of Remainco) and to all documentation, books, records and other information
of the members of the Remainco Group as Buyer or any of its Representatives may reasonably request (including work papers relating to
the Spinco Initial Post-Closing Statement); provided that such access does not unreasonably interfere with the conduct of the
business of the Remainco Group. If Buyer does not deliver a Spinco Adjustment Dispute Notice to Remainco with respect to any item in
the Spinco Initial Post-Closing Statement on or prior to the last day of the Spinco Adjustment Review Period, then the amounts and calculations
with respect to such items as set forth in the Spinco Initial Post-Closing Statement shall be deemed accepted by Buyer, whereupon the
amounts and calculations of such items shall be final and binding on Remainco and Buyer.
(d) Dispute
Notice. If Buyer disagrees with the Spinco Initial Post-Closing Statement (including any amount or calculation set forth therein)
in any respect and on any basis, Buyer may, on or prior to the last day of the Spinco Adjustment Review Period, deliver a notice to Remainco
setting forth, in reasonable detail, each disputed item or amount and the basis for Buyer’s disagreement therewith (the “Spinco
Adjustment Dispute Notice”). The Spinco Adjustment Dispute Notice shall set forth, with respect to each disputed item, Buyer’s
position as to the correct amount or calculation that should have been included in the Spinco Initial Post-Closing Statement. The time
period within which Buyer must deliver any Spinco Adjustment Dispute Notice shall be extended in the case of any undue delay by Remainco
in providing Buyer access to its books and records, the personnel of, and work papers prepared by, Remainco and its Affiliates to the
extent they relate to the preparation of the Spinco Initial Post-Closing Statement and such historical financial information, for each
day that Remainco delays in providing Spinco such access.
(e) Consultation.
For the period of thirty (30) days beginning on the date on which Remainco receives a Spinco Adjustment Dispute Notice (the “Spinco
Adjustment Consultation Period”), if applicable, Remainco and Buyer shall endeavor in good faith to resolve by mutual agreement
all matters identified in the Spinco Adjustment Dispute Notice.
(f) Independent
Accounting Firm. In the event Remainco and Buyer are unable to resolve by mutual agreement any matter identified in the Spinco Adjustment
Dispute Notice on or before the date on which the Spinco Adjustment Consultation Period ends, Remainco or Buyer may engage an independent,
nationally-recognized certified public accounting firm in the United States mutually acceptable to Remainco and Buyer (the “Independent
Accounting Firm”) to make a determination with respect to all of such matters in dispute in its capacity as an expert and not
as an arbitrator. If Remainco and Buyer are unable to agree upon an Independent Accounting Firm within ten (10) Business Days after
the end of Spinco Adjustment Consultation Period, then within an additional ten (10) Business Days, Remainco and Buyer shall each
select one such firm and those two firms shall select a third such firm, in which event the “Independent Accounting Firm”
shall be such third firm. The fees and expenses of the Independent Accounting Firm shall be borne by Remainco, on the one hand, and Buyer,
on the other hand, proportionately based on the determination by the Independent Accounting Firm of the matters submitted to it pursuant
to Section 2.3(g). The calculation of such proportionate payments shall be based on the relative position of the determination
of the Independent Accounting Firm in comparison to the positions submitted to it pursuant to this Section 2.3(f). All other
fees and expenses incurred by Remainco or Buyer in connection with the preparation or review of the Spinco Initial Post-Closing Statement
or the Spinco Adjustment Dispute Notice shall be borne by the Party incurring such fees and expenses.
(g) Dispute
Resolution Procedure. Remainco and Buyer shall direct the Independent Accounting Firm to render a determination within sixty (60)
days after its retention, and shall, and shall cause their respective Representatives to, cooperate with the Independent Accounting Firm
during its engagement in connection with this Agreement. Each Party shall promptly (and in any event within ten (10) Business Days)
after the Independent Accounting Firm’s engagement, submit to the Independent Accounting Firm its calculations of the disputed
items or amounts identified in the Spinco Adjustment Dispute Notice and information, arguments and support for their respective positions,
and shall concurrently deliver a copy of such materials to the other Party. Each Party shall then be given an opportunity to supplement
the information, arguments and support included in its initial submission with one additional submission to respond to any arguments
or positions taken by the other Party in such other Party’s initial submission, which supplemental information shall be submitted
to the Independent Accounting Firm (with a copy thereof to the other Party) within five (5) Business Days after the first date on
which Remainco and Buyer have submitted their respective initial submissions to the Independent Accounting Firm. The Independent Accounting
Firm shall thereafter be permitted to request additional or clarifying information from the Parties, and the Parties shall cooperate
and shall cause their Representatives to cooperate with such requests of the Independent Accounting Firm. The Independent Accounting
Firm shall determine, based solely on the materials so presented by the Parties and upon information received in response to such requests
for additional or clarifying information and not by independent review, only those issues in dispute specifically set forth in the Spinco
Adjustment Dispute Notice and shall render a written report to Remainco and Buyer (the “Spinco Adjustment Report”)
in which the Independent Accounting Firm shall, after considering all matters set forth in the Spinco Adjustment Dispute Notice, make
a final determination, binding on the Parties, of the appropriate amount of each of the line items in the Spinco Initial Post-Closing
Statement as to which Remainco and Buyer disagree as identified in the Spinco Adjustment Dispute Notice. During the review by the Independent
Accounting Firm, Remainco, Buyer and their respective accountants shall each make available to the Independent Accounting Firm interviews
with such individuals, and such information, books and records and work papers, as may be reasonably required by the Independent Accounting
Firm to fulfill its obligations under this Section 2.3 and preparing and rendering the Spinco Adjustment Report; provided
that the accountants of Remainco and Buyer shall not be obligated to make any work papers available to the Independent Accounting
Firm except in accordance with such accountants’ normal disclosure procedures and then only after the Independent Accounting Firm
has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants.
(h) Spinco
Adjustment Report. The Spinco Adjustment Report shall set forth, in reasonable detail, the Independent Accounting Firm’s determination
with respect to each of the disputed items or amounts specified in the Spinco Adjustment Dispute Notice, and the revisions, if any, to
be made to the Spinco Initial Post-Closing Statement, together with supporting calculations. In resolving any disputed item, the Independent
Accounting Firm (i) shall be bound by the principles underlying this Section 2.3 and the terms of this Agreement, (ii) shall
limit its review to matters specifically set forth in the Spinco Adjustment Dispute Notice and shall resolve such matters in its capacity
as an expert and not as an arbitrator, (iii) shall not make any determination as to whether the Spinco Transaction Accounting Principles
were followed (unless a dispute as to such matter was expressly included in the Spinco Adjustment Dispute Notice) and (iv) shall
not assign a value to any item higher than the highest value for such item claimed by Remainco or Buyer or less than the lowest value
for such item claimed by Remainco or Buyer as set forth in the Spinco Adjustment Dispute Notice or the Spinco Initial Post-Closing Statement.
The Spinco Adjustment Report, absent fraud, shall be final and binding upon Remainco and Buyer. The Independent Accounting Firm shall
not have the authority to resolve issues relating to (A) breaches of representations, warranties, covenants or agreements, or (B) other
claims that are not within the scope of the disputed matters specifically set forth in the Spinco Adjustment Dispute Notice.
(i) Final
Amounts. The Spinco Closing Net Working Capital, the Spinco Closing Cash Amount, the Spinco Closing Indebtedness Amount and the Spinco
Adjustment Amount and, based thereon, the Purchase Price, that are final and binding on the Parties, as determined through agreement
of the Parties or through the action of the Independent Accounting Firm pursuant to this Section 2.3 are referred to in this
Agreement, respectively, as the “Spinco Final Closing Net Working Capital,” the “Spinco Final Closing Cash
Amount,” the “Spinco Final Closing Indebtedness Amount” , the “Spinco Final Adjustment Amount”
and the “Final Purchase Price”.
(j) Final
Purchase Price.
(i)
If the Final Purchase Price is (x) greater than the Estimated
Purchase Price, the amount of such excess is referred to as the “Spinco Excess Amount,” or (y) less than the
Estimated Purchase Price, the amount of such shortfall is referred to as the “Spinco Shortfall
Amount.”
(ii) No
later than five (5) Business Days after the determination of the Final Purchase Price, a payment by wire transfer in respect thereof
shall be made as follows:
A. if
the calculation in Section 2.3(j)(i) results in a Spinco Excess Amount, then the Spinco Excess Amount shall be paid
by Buyer to a bank account designated in writing by Remainco; and
B. if
the calculation in Section 2.3(j)(i) results in a Spinco Shortfall Amount, then the Spinco Shortfall Amount shall be
paid by Remainco to a bank account designated in writing by Buyer.
Any payment pursuant to this Section 2.3
(i) shall be made in accordance with this Agreement and (ii) shall be made in immediately available funds in United States
dollars by wire transfer to a bank account designated in writing by the Party entitled to receive the payment.
2.4 Payments
and Computations. Each Party shall make each payment due under this Agreement to the other Party as early as practicable on the day
when due. All payments shall be paid by wire transfer in immediately available funds to the account or accounts designated in advance
by the Party receiving such payment and shall be free and clear of any deduction or withholding for Taxes except as required by Law;
provided that the Party making such payment shall provide notice to the other Party prior to making any such deduction or withholding
and use reasonable best efforts to reduce or eliminate the amount of Taxes required to be deducted or withheld. Whenever any payment
under this Agreement shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day,
and such extension of time shall be included in the computation of, and payment of, interest.
2.5 FIRPTA.
On or prior to the Closing Date, Remainco shall cause Gaming Holdco to provide to Buyer (a) a certificate of Gaming Holdco in accordance
with Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that Gaming Holdco is not, and has not been during
the applicable period ending on the Closing Date, a “United States real property holding corporation” for purposes of Sections
897 and 1445 of the Code and (b) notification to the IRS described in Treasury Regulations Section 1.897-2(h)(2) regarding
delivery of the certificate referred to in the preceding clause (a).
Article III
RELEASE AND INDEMNIFICATION
3.1 Release
of Pre-Closing Claims.
(a) Except
as provided in Section 3.1(b), Section 3.1(c) or Section 3.1(d):
(i) Remainco,
for itself and each other member of the Remainco Group (other than any member of the Spinco Group), as of the Equity Sale Closing Time
and, to the extent permitted by Law, all Persons who at any time prior to the Equity Sale Closing Time were directors, officers, agents
or employees of any member of the Remainco Group (in their respective capacities as such), in each case, together with their respective
heirs, executors, administrators, successors and assigns (collectively, the “Remainco Releasing Parties”), does release
and forever discharge each member of the Spinco Group and all Persons who at any time prior to the Equity Sale Closing Time were equityholders,
partners, directors, officers, agents or employees of any member of the Spinco Group (in their respective capacities as such), in each
case, together with their respective heirs, executors, administrators, successors and assigns (collectively, the “Spinco Released
Parties”), from any and all Liabilities, whether at Law or in equity (including any right of contribution), whether arising
under any Contract, by operation of Law or otherwise, in each case, to the extent existing or arising from any acts or events occurring
or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed at or
before the Equity Sale Closing Time, including in connection with the Separation, the Equity Sale and any of the Contemplated Transactions
(such Liabilities, the “Remainco Released Liabilities”), and in any event shall not, and shall cause the other members
of its Group not to, bring any Action against any Spinco Released Party with respect to any Remainco Released Liabilities; provided
that nothing in this Section 3.1(a)(i) shall relieve any Person released in this Section 3.1(a)(i) who,
after the Equity Sale Closing Time, is a director, officer or employee of any member of the Spinco Group and is no longer a director,
officer or employee of any member of the Remainco Group from Liabilities to the Spinco Group or the Buyer Group arising out of, relating
to or resulting from his or her service as a director, officer or employee of any member of the Spinco Group after the Equity Sale Closing
Time. Notwithstanding the foregoing, (A) nothing in this Agreement shall be deemed to limit Remainco or any member of the Remainco
Group from commencing any Actions against (1) any member of the Spinco Group or any Spinco Group officer, director, agent or employee,
or his or her respective heirs, executors, administrators, successors and assigns with regard to matters arising from, or relating to, theft
of Remainco’s Intellectual Property or know-how or (2) any Spinco Group officer, director, agent or employee, or his or her
respective heirs, executors, administrators, successors and assigns with regard to matters arising from, or relating to fraudulent
or intentional criminal acts by any such officers, directors, agents or employees and (B) nothing in this Agreement shall be deemed
to release any current or former employee of the Spinco Group from any Liability to the extent that such Liability relates to, arises
out of or results from intentional misconduct by such individual.
(ii) Buyer
(solely in its capacity as an equityholder of the members of the Spinco Group) and Spinco, for itself and each other member of its Group
as of the Equity Sale Closing Time and, to the extent permitted by Law, all Persons who at any time prior to the Equity Sale Closing
Time were directors, officers, agents or employees of any member of the Spinco Group or Buyer (solely in its capacity as an equityholder
of members of the Spinco Group) (in each case, in their respective capacities as such), in each case, together with their respective
heirs, executors, administrators, successors and assigns (collectively, the “Buyer Releasing Parties”), does release
and forever discharge each member of the Remainco Group and all Persons who at any time prior to the Equity Sale Closing Time were equityholders,
partners, directors, officers, agents or employees of any member of the Remainco Group (in their respective capacities as such), in each
case, together with their respective heirs, executors, administrators, successors and assigns (collectively, the “Remainco Released
Parties”), from any and all Liabilities, whether at Law or in equity (including any right of contribution), whether arising
under any Contract, by operation of Law or otherwise, in each case, to the extent existing or arising from any acts or events occurring
or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed at or
before the Equity Sale Closing Time, including in connection with the Separation, the Equity Sale and the Contemplated Transactions (such
Liabilities, the “Spinco Released Liabilities”), and in any event shall not, and shall cause the other members of
its Group not to, bring any Action against any Remainco Released Party with respect to any Spinco Released Liabilities. Notwithstanding
the foregoing, (A) nothing in this Agreement shall be deemed to limit any member of the Spinco Group from commencing any Actions
against any Remainco Group officer, director, agent or employee, or any of their respective heirs, executors, administrators, successors
and assigns with regard to matters arising from, or relating to, (1) theft of Spinco’s Intellectual Property or know-how or
(2) fraudulent or intentional criminal acts by any such officers, directors, agents or employees and (B) nothing in this Agreement
shall be deemed to release any current or former employee of the Remainco Group from any Liability to the extent that such Liability
relates to, arises out of or results from intentional misconduct by such individual.
(b) Nothing
contained in this Agreement, including Section 1.3, Section 1.4 or Section 3.1(a), shall impair or
otherwise affect any right of any Party and, as applicable, a member of such Party’s Group, as well as their respective successors
and assigns, pursuant to or contemplated by, or ability to enforce, any of the Transaction Documents or to recover for any breach or
violation of any of the terms of any of the Transaction Documents that are to be performed after, or survive, the Equity Sale Closing
Time.
(c) Nothing
contained in Section 3.1(a)(i) shall be deemed to be a release by a Remainco Releasing Party of any Person (including
any Spinco Released Party) from any of the following and none of the following shall constitute Remainco Released Liabilities:
(i) any
Liability Assumed or Transferred by or allocated to a member of the Spinco Group or a member of the Buyer Group pursuant to or as contemplated
by, or any other Liability of any member of the Spinco Group or any member of the Buyer Group under, any of the Transaction Documents,
including any Spinco Liability;
(ii) any
Liability provided for in, or resulting from, any Contract (A) that is entered into after the Equity Sale Closing Time between any
Remainco Releasing Party, on the one hand, and any Spinco Released Party, on the other hand; or (B) between any Remainco Releasing
Party, on the one hand, and any Spinco Released Party, on the other hand, that, as contemplated by Section 1.3, is not terminated
as of the Equity Sale Closing Time in accordance with any of the Transaction Documents or is expressly contemplated by any of the Transaction
Documents to survive the Equity Sale Closing Time;
(iii) (A) any
Liability that a member of the Buyer Group (or any Spinco Released Party) may have with respect to indemnification pursuant to this Agreement
or (B) any obligations with respect to indemnification or allocation of Liability under any of the Transaction Documents, which
Liability shall be governed by the provisions of this Agreement and, in particular, this Article III and, if applicable,
the appropriate provisions of the other Transaction Documents;
(iv) any
Liability the release of which would result in a release of any Person other than the Spinco Released Parties released in Section 3.1(a)(i);
provided that Remainco agrees not to bring any Action or permit any other member of the Remainco Group to bring any Action against
a Spinco Released Party released in Section 3.1(a)(i) with respect to such Liability; and
(v) the
obligation of the members of the Buyer Group to consummate the Contemplated Transactions and to perform their respective obligations
under any of the Transaction Documents.
(d) Nothing
contained in Section 3.1(a)(ii) shall be deemed to be a release by a Buyer Releasing Party of any Person (including
any Remainco Released Party) from any of the following and none of the following shall constitute Spinco Released Liabilities:
(i) any
Liability Assumed or Transferred by or allocated to a member of the Remainco Group pursuant to or as contemplated by, or any other Liability
of any member of the Remainco Group under, any of the Transaction Documents, including any Remainco Retained Liability;
(ii) any
Liability provided for in, or resulting from, any Contract (A) that is entered into after the Equity Sale Closing Time between any
Buyer Releasing Party, on the one hand, and any Remainco Released Party, on the other hand or (B) between any Buyer Releasing Party,
on the one hand, and any Remainco Released Party, on the other hand that, as contemplated by Section 1.3, is not terminated
as of the Equity Sale Closing Time in accordance with any of the Transaction Documents or is expressly contemplated by any of the Transaction
Documents to survive the Equity Sale Closing Time;
(iii) (A) any
Liability that the Remainco Group (or any Remainco Released Party) may have with respect to indemnification pursuant to this Agreement
or (B) any obligations with respect to indemnification or allocation of Liability under any of the Transaction Documents, which
Liability shall be governed by the provisions of this Agreement and, in particular, this Article III and, if applicable,
the appropriate provisions of the other Transaction Documents;
(iv) any
Liability the release of which would result in a release of any Person other than the Remainco Released Parties released in Section 3.1(a)(ii);
provided that Spinco and Buyer agree not to bring any Action or permit any other member of the Buyer Group to bring any Action
against a Spinco Released Party released in Section 3.1(a)(ii) with respect to such Liability; and
(v) the
obligation of the members of the Remainco Group to consummate the Contemplated Transactions and to perform their respective
obligations under any of the Transaction Documents.
(e) From
and after the Equity Sale Closing Time, (i) Remainco shall not, and shall not permit any member of the Remainco Group to, make any
claim for offset, or commence any Action, including any claim of indemnification, against any Spinco Released Party released pursuant
to Section 3.1(a)(i), with respect to any Liabilities released pursuant to Section 3.1(a)(i) and (ii) Buyer
shall not, and shall not permit any member of the Buyer Group to, make any claim for offset, or commence any Action, including any claim
of indemnification, against any Remainco Released Party released pursuant to Section 3.1(a)(ii), with respect to any Liabilities
released pursuant to Section 3.1(a)(ii). This Section 3.1(e) shall not restrict the ability of any Remainco
Releasing Party or any Buyer Releasing Party, as the case may be, from bringing any claims in respect of Liabilities that were not released
under Section 3.1(a)(i) or Section 3.1(a)(ii), as the case may be (including any claims in respect of any
Liabilities that Section 3.1(c) or Section 3.1(d), as the case may be, specified as not being Remainco Released
Liabilities or Spinco Released Liabilities, as the case may be).
(f)
From and after the Equity Sale Closing Time, (i) if any
Remainco Releasing Party initiates any Action with respect to claims released by Section 3.1(a)(i) against any
Spinco Released Party, Remainco shall be responsible for the fees and expenses of counsel to the members of the Buyer Group and the
members of the Spinco Group in defending against such Action, and the Buyer Group and the Spinco Group shall be indemnified by the
Remainco Group for all Liabilities incurred in connection with such Action in accordance with the provisions set forth in this Article III
and (ii) if any Buyer Releasing Party initiates any Action with respect to claims released by Section 3.1(a)(ii) against
any Remainco Released Party, the members of the Buyer Group shall be responsible for the fees and expenses of counsel to the members
of the Remainco Group in defending against such Action, and the Remainco Group shall be indemnified by the members of the Spinco
Group and the members of the Buyer Group for all Liabilities incurred in connection with such Action in accordance with the
provisions set forth in this Article III. This Section 3.1(f) shall not restrict the ability of any
Remainco Releasing Party or any Buyer Releasing Party, as the case may be, from bringing any claims in respect of Liabilities that
were not released under Section 3.1(a)(i) or Section 3.1(a)(ii), as the case may be (including any
claims in respect of any Liabilities that Section 3.1(c) or Section 3.1(d), as the case may be,
specified as not being Remainco Released Liabilities or Spinco Released Liabilities, as the case may be).
(g) The
release in this Section 3.1 includes a release of any rights and benefits with respect to such Liabilities that each Party
and each member of such Party’s Group, and its successors and assigns, now has or in the future may have conferred upon them by
virtue of any statute or common law principle which provides that a general release does not extend to claims which a Party does not
know or suspect to exist in its favor at the time of executing the release, if knowledge of such claims would have materially affected
such Party’s settlement with the obligor. In this connection, each Party acknowledges that it is aware that factual matters now
unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and
further agrees that this release has been negotiated and agreed upon in light of that awareness and each such Party nevertheless intends
to release the Persons described in Section 3.1(a) from the Liabilities described in Section 3.1(a).
3.2 Indemnification
by Remainco. In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically
set forth in any provision of any of the Transaction Documents, from and after the Equity Sale Closing Time, each member of the Remainco
Group (excluding, for the avoidance of doubt, any member of the Spinco Group) shall, on a joint and several basis, indemnify, defend
and hold harmless each member of the Buyer Group and its Affiliates, including the Merger Partner Group (the “Buyer Group Indemnified
Parties”) to the fullest extent permitted by Law from and against any and all Losses of the Buyer Group Indemnified Parties
to the extent relating to, arising out of, by reason of or otherwise in connection with (a) the Remainco Retained Liabilities, including
the failure of any member of the Remainco Group or any other Person to pay, perform or otherwise discharge any Remainco Retained Liability
in accordance with its respective terms, whether arising prior to, at or after the Equity Sale Closing Time; (b) any Non-Transferable
Liabilities that would otherwise be considered Remainco Retained Liabilities (whether such Liabilities arose prior to, at or after the
Equity Sale Closing Time); (c) any Remainco Retained Asset or any Remainco Retained Liability, whether arising prior to, at or after
the Equity Sale Closing Time; (d) any breach after the Equity Sale Closing Time by any member of the Remainco Group of any covenant
or agreement in any of the Transaction Documents that is to be performed following the Equity Sale Closing Time unless such Transaction
Document expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made under and
subject to such Transaction Document (it being understood and agreed that if a Transaction Document contains any limitations on types
or amount of Losses or Liabilities that are recoverable in respect of the subject matter of such Transaction Document whether by indemnification,
Action or otherwise (or provides that the remedies provided under such Transaction Document are the exclusive remedy for the subject
matter under such Transaction Document), such limitations and the exclusive remedy provisions shall be applicable and shall control any
and all claims for indemnification or claims for breach or otherwise made under this Agreement or any other Transaction Document); (e) any
amendments, modifications or supplementations to the Separation Plan made by Remainco prior to the Equity Sale Closing Time that were
not consented to by Buyer and (i) adversely affected the members of the Buyer Group, taken as a whole, and (ii) resulted in
Losses of the members of the Buyer Group, taken as a whole, that were greater than One Million Dollars ($1,000,000) and would not have
occurred if such amendments, modifications or supplements had not been given; (f) any Existing Remainco Credit Support Instrument;
and (g) Remainco’s ownership, use or operation of any Spinco Former Business during the time such Spinco Former Business was
owned by a member of the Remainco Group.
3.3 Indemnification
by Spinco Group, Merger Partner Group and Buyer Group. In addition to any other provisions of this Agreement requiring indemnification
and except as otherwise specifically set forth in any provision of any of the Transaction Documents, from and after the Equity Sale Closing
Time, each member of the Spinco Group, each member of the Merger Partner Group and each member of the Buyer Group shall, on a joint and
several basis, indemnify, defend and hold harmless each member of the Remainco Group and its Affiliates (the “Remainco Indemnified
Parties”) to the fullest extent permitted by Law from and against any and all Losses of the Remainco Indemnified Parties to
the extent relating to, arising out of, by reason of or otherwise in connection with (a) the Spinco Liabilities, including the failure
of any member of the Spinco Group or any other Person to pay, perform or otherwise discharge any Spinco Liability in accordance with
its respective terms, whether arising prior to, at or after the Equity Sale Closing Time; (b) any Non-Transferable Liabilities
that would otherwise be considered Spinco Liabilities (whether such Liabilities arose prior to, at or after the Equity Sale Closing Time);
(c) any Existing Spinco Credit Support Instrument; (d) any Spinco Asset or any Spinco Liability, whether arising prior to,
at or after the Equity Sale Closing Time; (e) any breach after the Equity Sale Closing Time by any member of the Spinco Group,
any member of the Merger Partner Group or any member of the Buyer Group of any covenant or agreement in any of the Transaction Documents
that is to be performed following the Equity Sale Closing Time unless such Transaction Document expressly provides for separate indemnification
therein, in which case any such indemnification claims shall be made under and subject to such Transaction Document (it being understood
and agreed that if a Transaction Document contains any limitations on types or amount of Losses or Liabilities that are recoverable in
respect of the subject matter of such Transaction Document whether by indemnification, Action or otherwise (or provides that the remedies
provided under such Transaction Document are the exclusive remedy for the subject matter under such Transaction Document), such limitations
and the exclusive remedy provisions shall be applicable and control any and all claims for indemnification or claims breach or otherwise
made under this Agreement or any other Transaction Document).
3.4 Procedures
for Indemnification.
(a) A
Person who may be entitled to be indemnified and held harmless under Section 3.2 or Section 3.3 (the “Indemnified
Party”), shall promptly notify (but in any event within thirty (30) days) the Party that is potentially liable therefor (the
“Indemnifying Party”) in writing of any pending or threatened claim, investigation, proceeding or demand by a Third
Party that the Indemnified Party has determined has given or could reasonably give rise to such a right under this Agreement (including
a pending or threatened claim or demand asserted by a Third Party against the Indemnified Party, such claim being a “Third-Party
Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand
and, if applicable, the specific provision of this Agreement that the Indemnified Party alleges to be breached (or the category of indemnification
into which the Loss fits); provided that the failure to provide such notice shall not release the Indemnifying Party from any
of its obligations under this Article III except to the extent the Indemnifying Party is prejudiced by such failure. Following
delivery of a notice of a Third-Party Claim, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event
within ten (10) Business Days) after the Indemnified Party’s receipt thereof, copies of all notices and documents (including
court papers) received by the Indemnified Party relating to such Third-Party Claim; provided that the failure to deliver such
notices and documents shall not release the Indemnifying Party from any of its obligations except to the extent the Indemnifying Party
shall have been prejudiced as a result of such failure.
(b) Following
receipt of a notice of a Third-Party Claim from an Indemnified Party pursuant to Section 3.4(a), the Indemnifying Party may
assume the defense and control of such Third-Party Claim by delivery of written notice to the Indemnified Party, and if it does not assume
the defense of such Third-Party Claim, to participate in the defense of any Third-Party Claim in accordance with the terms of Section 3.5
at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable
to the Indemnified Party, within thirty (30) days of receipt of an indemnification notice of from such Indemnified Party; provided
that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall
pay the reasonable fees and expenses of counsel retained by the Indemnified Party to the extent (i) in the reasonable judgment of
the Indemnified Party, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and
the applicable Indemnified Party in the defense of such Third-Party Claim by the Indemnifying Party, (ii) the Third-Party Claim
is a criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (iii) the Third-Party
Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to have a material and adverse effect
on the Indemnified Party’s business.
(c) The
Indemnified Party may take any actions reasonably necessary to defend such Third-Party Claim prior to the time that it receives a notice
from the Indemnifying Party as contemplated by Section 3.4(b). If the Indemnifying Party assumes the defense of any Third-Party
Claim, the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third-Party
Claim with its own counsel and at its own expense, and the Indemnifying Party shall not be liable to the Indemnified Party for legal
expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (it being understood and agreed that even
if the Indemnified Party participates in the defense of such a Third-Party Claim, the Indemnifying Party shall control the defense and
all decisions with respect thereto). Remainco or Spinco, as the case may be, shall, and shall use their reasonable best efforts to, and
to cause their Affiliates and Representatives to, cooperate fully with the Indemnifying Party in the defense of any Third-Party Claim.
Without limiting the generality of the foregoing, from and after the delivery of a notice of a claim for indemnification, at the reasonable
request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its Representatives reasonable access,
during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related
to such claim, at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties). To
the extent permitted by Law, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising
from, any Third-Party Claim, without the consent of any Indemnified Party; provided that (i) such settlement provides only
for the payment of monetary damages (and does not impose any injunctive relief or otherwise impose any conditions or restrictions on
the applicable Indemnified Party), (ii) the Indemnifying Party pays or causes to be paid all amounts arising out of such settlement
or judgment concurrently with the effectiveness of such settlement (subject to the limitations in this Agreement), (iii) the Indemnifying
Party obtains, as a condition of any settlement or other resolution, a complete and unconditional release of each Indemnified Party from
any and all liability with respect to such Third-Party Claim and (iv) does not involve any admission by the Indemnified Party of
any wrongdoing or violation of Law.
(d) No
Indemnifying Party shall have any liability under this Article III for any Losses arising out of or in connection with any
Third-Party Claim that is settled or compromised by an Indemnified Party without the prior consent of such Indemnifying Party (such consent
not to be unreasonably withheld, conditioned or delayed).
(e) If
an Indemnified Party wishes to make a claim under this Article III that does not involve a Third-Party Claim, the Indemnified
Party shall give written notice to the Indemnifying Party setting forth (i) a reasonably detailed description of the claim, (ii) a
good faith estimate of the amount of the claim (to the extent ascertainable) and (iii) the specific provision of this Agreement
that the Indemnified Party alleges to be breached (or other category of indemnification into which the Loss fits), and such notice shall
be accompanied by copies of all documentation available to the Indemnified Party that may be necessary or appropriate for the purposes
of enabling the Indemnifying Party to be informed and to take any and all appropriate decisions and actions with respect to the matter
and Loss that is the subject of the claim; provided that the failure to provide such notice on a timely basis shall not release
the Indemnifying Party from any of its obligations under this Article III except to the extent the Indemnifying Party is
actually prejudiced by such failure. Reasonable and documented out-of-pocket expenses incurred by current or former Representatives of
a Party or another member of such Party’s Group (but in no event any compensation expenses of current employees of a Party or another
member of a Party’s Group) in connection with another Party’s access to them shall be reimbursed by such other Party promptly
following such other Party’s receipt of an invoice specifying in reasonable detail the expenses incurred.
3.5 Cooperation.
(a) Following
the Equity Sale Closing Time, each Party shall, and shall cause the other members of its Group to, use commercially reasonable efforts
to (i) provide any other Party, the members of its Group and its and their Representatives with access reasonably necessary to Pursue
the Remainco Retained Liabilities or the Spinco Liabilities (as applicable), at normal business hours and upon reasonable notice, to
the books and records (including electronic and archived documents) and facilities of the members of such Party’s Group and to
current and former Representatives of the members of such Party’s Group, including in connection with testimony in litigation and
factual investigation, and (ii) upon written request from the other Party (including on behalf of any member of its Group), (A) generally
provide support, and make the Representatives of the members of its Group (current and future and, to the extent practicable, former
and taking into account the work schedules and other commitments of the aforementioned Persons) available to provide assistance and expertise
at such times and in such places as reasonably necessary, to Pursue the Remainco Retained Liabilities or the Spinco Liabilities, as applicable,
to the extent that the requesting Party believes any such Persons may reasonably be useful or required in connection with the Pursuit
of the Remainco Retained Liabilities or the Spinco Liabilities, as applicable, and (B) reasonably promptly select a person or persons
to provide the requested assistance after conferring in good faith to determine which person or persons should provide such assistance,
and shall use reasonable best efforts to make such person or persons available; provided that, in the case of each of clauses
(i) and (ii), (1) each Party only shall be required to provide such access and make the current and former Representatives
of it and the members of its Group available to the extent and in such manner as does not unreasonably interfere with the ongoing operations
of the members of such Group, and (2) each Party may withhold access from other Party to the extent that such Party is aware that
(x) it or any of the members of its Group is subject to the terms of a confidentiality agreement with a Third Party or another Contract
that restricts such access; provided that such Party shall, and shall cause the other members of its Group to, use commercially
reasonable efforts to obtain the required consent of such Third Party to provide such access, (y) providing such access would result
in a loss of attorney-client or other legal privilege; provided that each Party shall, and shall cause the other members of its
Group to, use commercially reasonable efforts to allow such access (or access to a portion thereof) in a manner that does not result
in a loss of such privilege, or (z) providing such access would violate any Law; provided that each Party shall, and shall
cause the other members of its Group to, use commercially reasonable efforts to provide such access in a manner that does not violate
such Law. Notwithstanding the foregoing, each Party shall, and shall cause the other members of its Group, to use commercially reasonable
efforts to make any employee or other Person under its control available to testify at a trial or evidentiary hearing at the request
of the other Party.
(b) Subject
to the limitations on confidentiality and privilege set forth in the Transaction Documents and subject to applicable Law, from the Closing
Date until the date which is six (6) years following the Closing Date, with respect to any material Action by a Governmental Authority
against any member of the Remainco Group (i) where it is known the facts giving rise to such Action occurred prior to the Equity
Sale Closing Time and (ii) such Action would reasonably be expected to adversely impact the Spinco Business or the Spinco Group
(taken as a whole) in a manner that is different from other participants in the industries in which the Spinco Business operates, Remainco,
shall promptly provide notice to Spinco of such Action and to the extent doing so does not unreasonably interfere with the business or
operations of Remainco, consider in good faith if any suggestions Spinco has with respect to such Action.
(c) Subject
to the limitations on confidentiality and privilege set forth in the Transaction Documents and subject to applicable Law, from the Closing
Date until the date which is six (6) years following the Closing Date, with respect to any material Action by a Governmental Authority
against any member of the Spinco Group (i) where it is known the facts giving rise to such Action occurred prior to the Equity Sale
Closing Time and (ii) such Action would reasonably be expected to adversely impact the Remainco Retained Business or the Remainco
Group (taken as a whole) in a manner that is different from other participants in the industries in which the Remainco Retained Business
operates, Spinco shall promptly provide notice to Remainco of such Action and to the extent doing so does not unreasonably interfere
with the business or operations of Spinco, consider in good faith if any suggestions Remainco has with respect to such Action.
3.6 Indemnification
Payments. In the event a claim for indemnification under this Article III shall have been finally determined, the amount
of such final determination shall be paid to the Indemnified Party on demand in immediately available funds. An indemnification claim,
and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article III
when the Parties to such indemnification claim have so determined by mutual agreement or, if disputed, when a final non-appealable
Governmental Approval shall have been entered.
3.7 Additional
Indemnification Provisions.
(a) All
Losses shall be (i) net of any Tax Benefit and (ii) net of any Eligible Insurance Proceeds.
(b) In
any case where an Indemnified Party recovers from a third Person any amount with respect to any Loss paid by the Indemnifying Party pursuant
to this Article III, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after
deducting therefrom the amount of reasonable costs incurred by it in procuring such recovery, which costs shall not exceed the amount
so recovered), but not in excess of the sum of (i) any amount previously paid by the Indemnifying Party to or on behalf of the Indemnified
Party with respect to such claim and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising
out of such Loss.
(c) If
any portion of Losses to be paid by the Indemnifying Party pursuant to this Article III could be recovered from a Third Party
not affiliated with the relevant Indemnified Party based on the underlying claim or demand asserted against such Indemnifying Party,
then the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party and, upon the request of the Indemnifying
Party, shall use commercially reasonable efforts to collect the maximum amount recoverable from such Third Party, in which event the
Indemnifying Party shall reimburse the Indemnified Party for all reasonable costs and expenses incurred in connection with such collection
(which costs and expenses of collection shall not exceed the amount recoverable from such Third Party); provided that the Indemnifying
Party shall have no obligation to litigate against such Third Party to recover any portion of its Losses. If any portion of Losses actually
paid by the Indemnifying Party pursuant to this Article III could have been recovered from a Third Party not affiliated with
the relevant Indemnified Party based on the underlying claim or demand asserted against such Indemnifying Party, then the Indemnified
Party shall transfer, to the extent transferable, such of its rights to proceed against such Third Party as are necessary to permit the
Indemnifying Party to recover from such Third Party any amount actually paid by the Indemnifying Party pursuant to this Article III.
(d) If
any portion of Losses to be paid by the Indemnifying Party pursuant to this Article III may be covered, in whole or in part,
by third-party insurance coverage, the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party. The Indemnified
Party shall use commercially reasonable efforts to collect the maximum amount of insurance proceeds thereunder, and all such proceeds
actually collected with respect to any Loss (net of (i) the amount of reasonable costs incurred by the Indemnified Party or any
of its Affiliates in collecting such proceeds and (ii) the present value of any increased costs incurred by such Indemnified Party
or any of its Affiliates as a result of such Loss, including any retroactive or prospective premium adjustments resulting from such Loss)
shall be considered “Eligible Insurance Proceeds”. Notwithstanding anything to the contrary contained in this Agreement,
except as provided in Section 4.10, no Remainco Indemnified Party shall be required to seek to recover any Losses relating
to or arising under any Spinco Liabilities from any Insurance Policies.
(e) The
aggregate liability of the members of the Remainco Group in the aggregate under Section 3.2(g) shall not exceed One
Hundred Fifty Million Dollars ($150,000,000) (the “Cap”) and in no event shall any member of the Remainco Group (individually
or collectively) be required to indemnify, defend or hold harmless any of the Buyer Group Indemnified Parties under Section 3.2(g) for
any amounts in the aggregate in excess of the Cap.
(f) The
obligation of the members of the Remainco Group to indemnify, defend or hold harmless any Buyer Group Indemnified Party pursuant to Section 3.2(g) shall
automatically terminate on the date that is two (2) years following the Closing Date.
3.8 Additional
Matters; Survival of Indemnities. The rights and obligations of each Party and their Indemnified Parties under this Article III
shall survive (a) Transfer by any Party or a member of its Group of any Assets or businesses or the assignment by it of any
Liabilities and (b) any merger, consolidation, business combination, restructuring, recapitalization, reorganization or similar
transaction involving any Party or any a member of its Group. No Indemnified Party shall be entitled to payment and indemnification more
than once with respect to the same matters (including to the extent taken into account as a dollar amount in the determination of the
Spinco Final Adjustment Amount).
3.9 Mitigation.
Each Party shall, and shall cause its Affiliates and Representatives to, take commercially reasonable steps to mitigate their respective
Losses upon and after becoming aware of any fact, event, circumstance or condition that has given rise to, or would reasonably be expected
to give rise to, any Losses that are indemnifiable in this Agreement.
3.10 Exclusive
Remedies From and after the Equity Sale Closing Time, recovery pursuant to this Article III shall constitute the Parties’
sole and exclusive remedy for any and all Losses or liabilities relating to or arising from any of the Transaction Documents and the
Contemplated Transactions, and each Party waives and releases, to the fullest extent permitted by applicable Law, any and all other rights,
remedies, claims and causes of action (including rights of contributions, if any), whether in contract, tort or otherwise, known or unknown,
foreseen or unforeseen, which exist or may arise in the future, arising under or based upon any federal, state, local or foreign Law
that any Party may have against the other Party with respect to any breach of any of the Transaction Documents; provided
that the foregoing shall not deny (a) any Party specific performance when any such remedy is otherwise available under this Agreement
as provided in Section 5.4 or as provided under any of the other Transaction Documents, (b) to the extent required by
applicable Law, a Party’s right to exercise all of their rights and seek all damages available to them under Law in the event of
claims or causes of action arising from Fraud; or (c) any Party or its Affiliates any remedies expressly provided for under any
of the other Transaction Documents, and the foregoing shall not interfere with or impede the resolution of disputes pursuant to Section 2.3
or in any way limit Buyer’s rights under the R&W Insurance Policy.
3.11 Third
Party Actions.
(a) Buyer
acknowledges and agrees that the list of Actions described on Schedule 3.11(a) arise out of the Spinco Business and that
the members of the Buyer Group shall be responsible for such Actions from and after the Closing (and any Losses and Liabilities arising
therefrom, including with respect to any facts relating thereto that arose prior to the Closing) and that no member of the Buyer Group
is entitled to any indemnification or contribution from Remainco or any of its Affiliates relating to such Actions.
(b) Remainco
acknowledges and agrees that the list of Actions described on Schedule 3.11(b) arise out of the Remainco Retained Business
and that the members of the Remainco Group shall be responsible for such Actions from and after the Closing (and any Losses and Liabilities
arising therefrom, including with respect to any facts relating thereto that arose prior to the Closing) and that no member of the Remainco
Group is entitled to any indemnification or contribution from any member of the Buyer Group relating to such Actions.
(c) The
Actions set forth on Schedule 3.11(a) are not all of the Actions that constitute Spinco Liabilities and the Actions set forth
on Schedule 3.11(b) are not all of the Actions that constitute Remainco Retained Liabilities.
Article IV
PRESERVATION OF RECORDS; ACCESS TO
INFORMATION; CONFIDENTIALITY; PRIVILEGE
4.1 Preservation
of Corporate Records.
(a) Except
to the extent otherwise contemplated by any of the Transaction Documents, a Party providing records or access to Information to another
Party under this Article IV shall be entitled to receive from the Party receiving such records or access to information,
upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other out-of-pocket expenses
(which shall include the costs of any discovery vendor but shall not include the costs of salaries and benefits of employees of such
Party or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’
employer regardless of the employees’ service with respect to the foregoing), as are reasonably and actually incurred in providing
such records or access to Information.
(b) From
and after the Equity Sale Closing Time, except as otherwise required or agreed upon in writing, or as otherwise provided in any of the
Transaction Documents, with regard to any Information referenced in Section 4.3, each Party shall use reasonable best efforts,
at such Party’s sole cost and expense, to retain, until the latest of, as applicable, (i) the date on which such Information
is no longer required to be retained pursuant to the applicable record retention policy of Remainco or such other member of the Remainco
Group, respectively, as in effect immediately prior to the Closing, including pursuant to any “litigation hold” issued by
Remainco or other such member of the Remainco Group prior to the Closing, (ii) the concluding date of any period as may be required
by any applicable Law, (iii) the concluding date of any retention obligation for such Information that relates to a pending or threatened
Action which is known to the members of such Party’s Group, as applicable, in possession of such Information, and (iv) the
concluding date of any period during which the destruction of such Information would reasonably be expected to interfere with a pending
or threatened investigation by a Governmental Authority which is known to the members of such Party’s Group, as applicable, in
possession of such Information; provided that with respect to any pending or threatened Action arising after the Closing,
clause (iii) of this sentence applies only to the extent that whichever member of the applicable Party or its Group,
as applicable, is in possession of such Information has been notified in writing pursuant to a “litigation hold” by the other
Party of the relevant pending or threatened Action. Each Party agrees that from and after the Closing, upon written request from the
other Party that certain Information relating to the Spinco Business, the Remainco Retained Business or the transactions contemplated
by this Agreement be retained, the Parties shall use reasonable best efforts to preserve and not to destroy or dispose of such Information
without the consent of the requesting Party (reasonable best efforts shall include issuing a “litigation hold”).
(c) The
Parties intend that any transfer between Remainco and Spinco (including between their attorneys, Representatives and agents) of Information
that is subject to the protections of the attorney-client or attorney work product privileges shall not operate as a waiver of any potentially
applicable privilege and shall be completed in accordance with Section 4.7.
4.2 Financial
Statements and Accounting.
(a) The
members of the Remainco Group and the members of the Buyer Group shall provide the following reasonable assistance and, subject
to Section 4.6, reasonable access to its properties, records, other Information and personnel set forth in this Section 4.2,
from the Closing until the fourth (4th) anniversary of the Closing Date (the “Applicable Period”) (i) in
connection with the preparation and review or audit of such Party’s quarterly and annual financial statements, and the timely filing
of such financial statements and the audit of such Party’s internal controls over financial reporting and management’s assessment
thereof and management’s assessment of such Party’s disclosure controls and procedures, if required, and (ii) to the
extent reasonably necessary to respond (and for the limited purpose of responding) to any written request or official comment from a
Governmental Authority, such as in connection with responding to a comment letter from the SEC. Without limiting the foregoing, during
the Applicable Period, each Party agrees as follows:
(b) Except
to the extent otherwise contemplated by the Transaction Documents and subject to Section 4.6 and Section 4.7,
(i) Remainco and Buyer shall authorize and request their respective auditors to make reasonably available to the other Party’s
auditors (the “Other Party’s Auditors”) both the personnel who performed or are performing the annual audits
of such audited Party (each Party with respect to its own audit, the “Audited Party”) and work papers related to the
annual audits of such Audited Party (subject to the execution of any reasonable and customary access letters that such Audited Party’s
auditors may require in connection with the review of such work papers by such Other Party’s Auditors), in all cases within a reasonable
time prior to such Audited Party’s auditors’ opinion date, so that the Other Party’s Auditors are able to perform the
procedures they reasonably consider necessary to take responsibility for the work of the Audited Party’s auditors as it relates
to their auditors’ report on such other Party’s financial statements, and, if applicable, within sufficient time to enable
such other Party to meet its timetable for the filing of its annual financial statements with the SEC and (ii) until all governmental
audits are complete, the members of the Buyer Group and the members of the Remainco Group shall provide reasonable access during normal
business hours for the other Group’s internal auditors, counsel and other designated Representatives for matters relating to such
audits, including to (A) the premises of the members of the Buyer Group or the members of the Remainco Group, as applicable, and
all Information (and duplicating rights) within the knowledge, possession or control of a member of the Buyer Group or a member of the
Remainco Group, as applicable, with respect to the Spinco Business and (B) the officers and employees of the members of the Buyer
Group or the members of the Remainco Group, as applicable, with respect to the Spinco Business, so that Buyer and Remainco may conduct
reasonable audits relating to the financial statements in relation to the Spinco Business.
(c) Without
limitation of Section 4.6, nothing in this Article IV shall require any Party to violate any agreement with any
Third Party regarding the confidentiality of confidential and proprietary Information relating to that Third Party or its business;
provided that in the event that a Party is required under this Section 4.2 to disclose any such Information, such
Party shall use reasonable best efforts to seek to obtain such Third Party’s written consent to the disclosure of such Information.
(d) Each
Party acknowledges that Information provided under this Section 4.2 may constitute material, non-public Information, and
trading in the securities of a Party (or the securities of its Affiliates, the members of its Group or partners) while in possession
of such material, non-public material Information may constitute a violation of the U.S. federal securities Laws.
4.3 Provision
of Corporate Records. Other than in circumstances in which indemnification is sought pursuant to Article III (in which
event the provisions of such Article III shall govern) and subject to appropriate restrictions for privileged information
or Confidential Information in Section 4.6 and Section 4.7:
(a) After
the Closing, and subject to compliance with the terms of the Transaction Documents, upon the prior written reasonable request by, and
at the expense of, Buyer for specific and identified Information:
(i) that
(A) relates to Spinco or the Spinco Business, as the case may be, prior to the Equity Sale Closing Time or (B) is necessary
for any member of the Buyer Group to comply with the terms of, or otherwise perform under, any of the Transaction Documents to which
any member of the Remainco Group and such member of the Buyer Group are parties, Remainco shall provide, as soon as reasonably practicable
following the receipt of such request, appropriate copies of such Information (or the originals thereof if Buyer has a reasonable need
for such originals) in the possession or control of the Remainco Group, but only to the extent such items so relate and are not already
in the possession or control of a member of the Buyer Group; provided that, to the extent any originals are delivered to
the member of the Buyer Group pursuant to any of the Transaction Documents, such member of the Buyer Group shall, at its own expense,
return them to Remainco within a reasonable time after the need to retain such originals has ceased; provided, further,
that such obligation to provide any requested Information shall terminate and be of no further force and effect on the date that is the
later of (1) the sixth (6th) anniversary of the Closing Date and (2) three (3) months after the earlier termination
or expiration of the Transaction Document to which the Information relates; provided, further, that, if any such access
or the provision of any such Information would violate any Law or would reasonably be expected to result in the waiver of any attorney-client
privilege, rights under the work product doctrine or other applicable privilege, Remainco shall not be obligated to provide such Information
requested by Buyer; provided that Remainco shall, and shall cause the other members of the Remainco Group to, use commercially
reasonable efforts to allow such access (or access to a portion thereof) in a manner that does not result in a loss of such privilege;
provided, further, that, if Remainco reasonably determines that any such provision of Information could be commercially
detrimental in any material respect, require any consent from a Third Party (which cannot be reasonably obtained), or violate any Contract,
the Parties shall, and shall cause each other member of their respective Groups to, take all reasonable best measures to permit compliance
with such obligations in a manner that avoids any such harm or consequence; or
(ii) that
(A) is required by Buyer with regard to reasonable compliance with reporting, disclosure, filing or other Laws imposed on any member
of the Buyer Group (including under applicable securities Laws) by a Governmental Authority having jurisdiction over such member of the
Buyer Group, or (B) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit,
accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Remainco shall provide, as soon as reasonably
practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Buyer has a reasonable
need for such originals) in the possession or control of the Remainco Group, but only to the extent such items so relate and are not
already in the possession or control of a member of the Buyer Group; provided that, to the extent any originals are delivered
to a member of the Buyer Group pursuant to any of the Transaction Documents, such member of the Buyer Group shall, at its own expense,
return them to Remainco within a reasonable time after the need to retain such originals has ceased; provided, further,
that, in the event that any such access or the provision of any such Information would violate any Law or would reasonably be expected
to result in the waiver of any attorney-client privilege, rights under the work product doctrine or other applicable privilege, Remainco
shall not be obligated to provide such Information requested by Buyer; provided that Remainco shall, and shall cause the other
members of the Remainco Group to, use commercially reasonable efforts to allow such access (or access to a portion thereof) in a manner
that does not result in a loss of such privilege; provided, further, that if Remainco reasonably determines that any such
provision of Information could be commercially detrimental in any material respect, require any consent from a Third Party (which cannot
be reasonably obtained), or violate any Contract, the Parties shall, and shall cause each other member of their respective Groups to,
take all reasonable best measures to permit compliance with such obligations in a manner that avoids any such harm or consequence.
(b) After
the Closing, and subject to compliance with the terms of the Transaction Documents, upon the prior written reasonable request by, and
at the expense of, Remainco for specific and identified Information:
(i) that
(A) relates to Remainco or the Remainco Retained Business, as the case may be, prior to the Equity Sale Closing Time or (B) is
necessary for any member of the Remainco Group to comply with the terms of, or otherwise perform under, any of the Transaction Documents
to which such member of the Remainco Group and any member of the Buyer Group are parties, the applicable member of the Buyer Group shall
provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals
thereof if Remainco has a reasonable need for such originals) in the possession or control of a member of the Buyer Group, but only to
the extent such items so relate and are not already in the possession or control of a member of the Remainco Group; provided
that, to the extent any originals are delivered to the member of the Remainco Group pursuant to any of the Transaction Documents,
such member of the Remainco Group shall, at its own expense, return them to Buyer within a reasonable time after the need to retain such
originals has ceased; provided, further, that such obligation to provide any requested Information shall terminate
and be of no further force and effect on the date that is the later of (1) the sixth (6th) anniversary of the Closing
Date and (2) three (3) months after the earlier termination or expiration of the Transaction Document to which the Information
relates; provided, further, that to the extent that any such access or the provision of any such Information would
violate any Law or would reasonably be expected to result in the waiver of any attorney-client privilege, rights under the work product
doctrine or other applicable privilege, Buyer shall not be obligated to provide such Information requested by Remainco; provided
that Buyer shall, and shall cause the other members of the Buyer Group to, use commercially reasonable efforts to allow such access (or
access to a portion thereof) in a manner that does not result in a loss of such privilege; provided, further, that
if Buyer reasonably determines that any such provision of Information could be commercially detrimental in any material respect, require
any consent from a Third Party (which cannot be reasonably obtained), or violate any Contract, the Parties shall, and shall cause each
other member of their respective Groups to, take all reasonable best measures to permit compliance with such obligations in a manner
that avoids any such harm or consequence; or
(ii) that
(A) is required by Remainco with regard to reasonable compliance with reporting, disclosure, filing or other Laws imposed on any
member of the Remainco Group (including under applicable securities Laws) by a Governmental Authority having jurisdiction over such member
of the Remainco Group, or (B) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy
audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Buyer shall provide, as soon
as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if
Remainco has a reasonable need for such originals) in the possession or control of a member of the Buyer Group, but only to the extent
such items so relate and are not already in the possession or control of Remainco; provided that, to the extent any originals
are delivered to Remainco pursuant to any of the Transaction Documents, Remainco shall, at its own expense, return them to Buyer within
a reasonable time after the need to retain such originals has ceased; provided, further, that if any such access or
the provision of any such Information would violate any Law or would reasonably be expected to result in the waiver of any attorney-client
privilege, rights under the work product doctrine or other applicable privilege, Buyer shall not be obligated to provide such Information
requested by Remainco; provided that Buyer shall, and shall cause the other members of the Buyer Group to, use commercially reasonable
efforts to allow such access (or access to a portion thereof) in a manner that does not result in a loss of such privilege; provided,
further, that if Buyer reasonably determines that any such provision of Information could be commercially detrimental in any material
respect, require any consent from a Third Party (which cannot be reasonably obtained), or violate any Contract, the Parties shall, and
shall cause each other member of their respective Groups to, take all reasonable best measures to permit compliance with such obligations
in a manner that avoids any such harm or consequence.
(c) From
and after the Closing, each Party shall have the right to request in writing (including on behalf of any member of its Group) that the
other Parties make available for inspection any non-privileged books, records or other documents within its control or that it otherwise
has the ability to make available, to the extent such books, records or other documents may reasonably be required in connection with
any Action or threatened or contemplated Action (including preparation for such Action) in which the members of the Remainco Group or
the members of the Buyer Group (with respect to the Spinco Business), as applicable, may from time to time be involved, regardless of
whether such Action is a matter with respect to which indemnification may be sought under this Agreement. The requesting Party shall
bear all reasonable out-of-pocket costs and expenses actually incurred in connection therewith. Any such disclosure of books, records
and documents shall be made subject to Section 4.6.
(d) Subject
to the conditions and limitations in this Article IV, upon reasonable prior notice, the Parties agree to make their respective
personnel reasonably available during regular business hours to discuss any Information exchanged pursuant to this Section 4.3.
Remainco, Merger Partner and Buyer shall inform their and their Groups’ respective officers, employees, agents, consultants, advisors,
authorized accountants, counsel and other designated Representatives who have or have access to the other Party’s Confidential
Information or other Information provided this Article IV of their obligation to hold such Information confidential in accordance
with the provisions of this Agreement.
(e) Any
Information provided by or made available by or on behalf of any Party (or any other member of any Group pursuant to this Article IV)
shall be on an “as is” basis and no Party (or any member of any Group) is making any representation or warranty with respect
to such Information or the completeness thereof.
4.4 Witness
Cooperation. At all times from and after the Closing, each Party shall have the right to request in writing (including on behalf
of any member of its Group) that the other Party make available for consultation or witness purposes, its (or its applicable member of
its Group’s) directors, officers, employees, consultants, agents or other Representatives (current and future and to the extent
reasonably possible former and taking into account the work schedules and other commitments of the aforementioned Persons) who have expertise
or knowledge with respect to the other Party’s (or its Group’s) Actions or business or products or matters in litigation
or alternative dispute resolution to the extent that the requesting Party believes any such persons may reasonably be useful or required
in connection with any Action or any legal, administrative, internal investigation or other proceedings in which the requesting Party
(or its Group) may from time to time be involved. Upon such request, the affected Party shall reasonably promptly select a person or
persons to provide the requested assistance after conferring in good faith to determine which person or persons should provide such assistance,
and shall use reasonable best efforts to make such person or persons available. A Party providing a consultant or witness to the other
Party (or its Group) under this Section 4.4 shall be entitled to receive from the Party receiving such consulting or witness
services, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other reasonable
and documented out-of-pocket expenses actually incurred (which shall not include the costs of salaries and benefits of employees who
are witnesses or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’
employer regardless of the employees’ service as witnesses), as may be reasonably incurred and properly paid under applicable Laws.
Further, any applicable privilege or immunity shall be protected and shared only in accordance with Section 4.7.
4.5 Reimbursement.
Except to the extent otherwise contemplated by any of the Transaction Documents, a Party (or a member of its Group) providing Information
or access to Information to the other Party (or a member of its Group) under this Article IV shall be entitled to receive
from the recipient, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other
reasonable and documented out-of-pocket expenses (which shall not include the costs of salaries and benefits of employees of such Party
(or its Group) or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such
employees’ employer regardless of the employees’ service with respect to the foregoing), as may be reasonably and actually
incurred in providing such Information or access to such Information.
4.6 Confidentiality.
(a) The
terms of the Confidentiality Agreements are incorporated into this Agreement by reference and shall continue in full force and effect
until the Closing, at which time the confidentiality obligations under the Confidentiality Agreements shall terminate; provided
that remedies with respect to breaches of such Confidentiality Agreements that occurred prior to the Closing shall survive the Closing.
If for any reason the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreements shall continue
in full force and effect in accordance with their respective terms.
(b) From
and after the Closing, except as otherwise provided in the Transaction Documents, Remainco and Buyer shall hold, and shall cause their
respective members of their Group and their and their Group’s respective Representatives to hold, in strict confidence (and not
to disclose or release or, except as otherwise permitted by any of the Transaction Documents, use, including for any ongoing or future
commercial purpose, without the prior written consent of the Party to whom the Confidential Information relates (which may be withheld
in such Party’s sole and absolute discretion, except where disclosure is required by applicable Law)), any and all Confidential
Information to the extent concerning or belonging to the other Party or its Group; provided that each Party may disclose,
or may permit disclosure of, Confidential Information (i) to its respective Representatives who have a need to know such Confidential
Information for (A) auditing and other non-commercial purposes and are informed of the obligation to hold such Information confidential
and with respect to whose failure to comply with such obligations, the applicable Party shall be responsible and (B) providing services
to any members of its Group; provided that the Confidential Information so disclosed shall be used only as required to perform
such services, (ii) if any Party or any member of its Group is required or compelled to disclose any such Confidential Information
by judicial or administrative process or by other Laws or stock exchange rules or is advised by outside counsel in connection with
an Action brought by a Governmental Authority that it is advisable to do so, (iii) as required in connection with any legal or other
proceeding by one Party (or its Group) against any other Party (or its Group) or with respect to claims by one Party (or its Group) against
the other Party (or its Group) brought in an Action, (iv) as necessary in order to permit a Party (or its Group) to prepare and
disclose its financial statements in connection with any regulatory filings or (v) as necessary for a Party to enforce its rights
or perform its obligations under this Agreement (including pursuant to Section 1.2) or any of the other Transaction Documents.
Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made by a Third
Party pursuant to clauses (ii), (iii) or (v) above, each Party, as applicable, shall promptly notify
in writing (to the extent permissible by Law) the Party to whom the Confidential Information relates of the existence of such request,
demand or disclosure requirement and shall provide such affected Party a reasonable opportunity to seek an appropriate protective order
or other remedy at such affected Party’s cost and expense, which such Party shall cooperate in obtaining to the extent reasonably
practicable. In the event that such appropriate protective order or other remedy is not obtained, the Party which faces the disclosure
requirement shall furnish only that portion of the Confidential Information that is required to be disclosed and shall take reasonable
best efforts to ensure that confidential treatment is accorded such Confidential Information. Further, as to privileged information nothing
in this Section 4.6 replaces or diminishes the Parties’ obligations and limitations set forth in Section 4.7.
Each Party shall use the same degree of care to prevent the unauthorized use or disclosure of the other Parties’ Confidential Information
by any of its Representatives as it currently uses for its own Confidential Information, but in no event less than a reasonable standard
of care.
(c) Each
Party acknowledges that it and the other members of its Group may have in its or their possession confidential or proprietary Information
of Third Parties that was received under confidentiality or non-disclosure agreements with such Third Party while such Party and members
of its Group were part of the same Group. From and after the Closing, each Party shall comply, and shall cause the other members of its
Group to comply, and shall cause its and their respective Representatives to comply, with all terms and conditions of any such third-party
agreements entered into prior to the Equity Sale Closing Time, with respect to any confidential and proprietary Information of Third
Parties to which it or any other member of its Group has had access.
(d) Notwithstanding
anything to the contrary contained in this Agreement, and without limiting the other terms and conditions of this Agreement, the provisions
of this Section 4.6 do not terminate or modify the confidentiality obligations provided for in any Contract between
each Party or member of its Group and their respective employees, which shall remain in full force and effect from and after the Equity
Sale Closing Time and otherwise subject to the terms and conditions of this Agreement, including the conveyance of rights set forth in
this Agreement.
(e) Notwithstanding
any other provision of this Section 4.6, (i) the disclosure and sharing of privileged information shall be governed
solely by Section 4.7, and (ii) Information that is subject to any confidentiality provision or other disclosure restriction
in any of the Transaction Documents shall be governed by the terms of such Transaction Document.
4.7 Counsel;
Privileges; Legal Material.
(a) In-house
lawyers employed by members of the Remainco Group prior to the Equity Sale Closing Time (“Existing Remainco Counsel”)
have provided legal services to and jointly represented the members of the Remainco Group (including the members of the Spinco Group).
From and after the Equity Sale Closing Time, certain Existing Remainco Counsel shall remain employees of one or more members of the Remainco
Group and provide legal services to and represent only the members of the Remainco Group (“Remainco Counsel”), and
certain Existing Remainco Counsel shall become employees of one or more members of the Spinco Group and provide legal services to and
represent only the Spinco Group (“Spinco Counsel”). From and after the Equity Sale Closing Time, (i) Remainco
Counsel shall represent only the Remainco Group; (ii) Spinco Counsel shall represent only the Spinco Group; and (iii) Spinco
Counsel and Remainco Counsel shall, subject to rules of professional responsibility respecting obligations to former clients, owe
a duty of loyalty and other professional obligations only to their respective clients. The members of the Remainco Group and the members
of the Spinco Group have previously been jointly represented by Existing Remainco Counsel in various legal matters of common interest.
This joint representation included in its scope all matters prior to the Equity Sale Closing Time in which a Party or another member
of its Group was represented by any of Existing Remainco Counsel.
(b) Each
Party acknowledges and agrees that all privileges, immunities or other protections from disclosure which may be asserted under applicable
Law, including attorney-client privilege, business strategy privilege, joint defense privilege, common interest privilege, attorney work-product
protection and expectation of client confidentiality with respect to any Information concerning general business matters related to the
Spinco Business and members of the Spinco Group prior to the Closing (excluding any Information concerning any proposed sale, spin-off
or other disposition of the Spinco Business or the Contemplated Transactions or in lieu of any of the foregoing) shall be subject to
a joint privilege and protection between the members of the Remainco Group, on the one hand, and the members of the Spinco Group, on
the other hand. The members of the Remainco Group and the members of the Spinco Group shall have equal right and obligation to assert
such joint privilege and protection, and no such joint privilege or protection may be waived by (i) Remainco without the prior written
consent of Spinco or (ii) any member of the Spinco Group without the prior written consent of Remainco.
(c) Each
Party acknowledges and agrees that all attorney-client privilege, attorney work-product protection and expectation of client confidentiality
with respect to any Information to the extent it relates to the Remainco Retained Business or which concerns any proposed sale, spin-off
or other disposition of the Spinco Business or the Contemplated Transactions, shall be retained and controlled only by Remainco and may
be waived only by Remainco. Buyer acknowledges and agrees, on behalf of itself and each member of the Buyer Group, that (i) the
foregoing attorney-client privilege, attorney work-product protection and expectation of client confidentiality shall not be controlled,
owned, used, waived or claimed by any member of the Buyer Group at any time after the Equity Sale Closing Time; and (ii) in the
event of a dispute between any member of the Buyer Group and a Third Party or any other circumstance in which a Third Party requests
or demands that any member of the Buyer Group produce privileged materials or attorney work-product of any member of the Remainco Group
(including the privileged communications and attorney work-product covered by this Section 4.7), Buyer shall (A) cause
such member of the Buyer Group to assert such privilege or protection on behalf of the applicable member of the Remainco Group to prevent
disclosure of privileged communications or attorney work-product to such Third Party, at Remainco’s cost, and (B) promptly
notify Remainco of the existence of any such request or demand and shall provide Remainco a reasonable opportunity to review the privileged
materials or attorney work-product and to assert any rights it may have, under this Section 4.7 or otherwise, to prevent
the production or disclosure of such privileged materials or attorney work-product; provided that if Buyer is prohibited by applicable
Law from disclosing the existence of such request or demand, Buyer shall provide notice of such related information for which disclosure
is not prohibited by applicable Law and use reasonable best efforts to inform Remainco of any related information Buyer reasonably determines
is necessary or appropriate for Remainco to be informed of to enable Remainco to review the privileged materials or attorney work-product
and to assert its rights, under this Section 4.7 or otherwise, to prevent the production or disclosure of such privileged
materials or attorney work-product.
(d) Each
Party agrees that the Contemplated Transactions shall not waive or affect any applicable privileges, including the attorney-client privilege,
the attorney work product doctrine, the common interest privilege and the joint-client/joint representation privilege. No Party may waive
any privilege that could be asserted under any applicable Law and in which the other Party has joint privilege in accordance with the
terms of this Section 4.7, without the prior written consent of the other Party. If any dispute arises between Remainco and
Buyer, or any members of their respective Groups, regarding whether joint privilege should be waived, each Party (i) shall negotiate
with the other Party in good faith and (ii) in furtherance and not in limitation of Section 4.7(b), shall endeavor to
minimize any prejudice to the rights of the other Party and (iii) not unreasonably withhold consent to any request for waiver by
the other Party. Each Party shall be permitted to withhold its consent to the waiver of a privilege for the purpose of protecting its
own legitimate interests.
(e) Notwithstanding
Section 4.7(b), the Parties acknowledge and agree that, as between the Remainco Group and the Spinco Group (as constituted
as of immediately before the Closing) Sidley Austin LLP, White & Case LLP, Wachtell, Lipton, Rosen & Katz LLP and Existing
Remainco Counsel (together, “Counsel”) represented, for times prior to the Closing, only Remainco and not any member
of the Spinco Group. Notwithstanding Section 4.7(b), the Parties acknowledge and agree that (i) any advice given by
or communications with Counsel prior to the Closing shall not be subject to any joint privilege and shall be owned solely by Remainco,
(ii) any advice given by or communications with Counsel (to the extent such advice or communications relate to any proposed sale,
spin-off or other disposition of the Spinco Business or the Contemplated Transactions prior to the Closing) shall not be subject to any
joint privilege and shall be owned solely by Remainco, and (iii) no member of the Spinco Group (as of immediately before the Closing)
has the status of a client of Counsel as a result of advice given by or communications with Counsel prior to the Closing, for conflict
of interest or any other purposes. Remainco and Buyer (for itself and on behalf of each member of Buyer Group) agree that, in the event
that any Action, or any other matter in which the interests of Remainco, its Affiliates or its direct or indirect equityholders, on the
one hand, and a member of the Buyer Group, on the other hand, are adverse, arises after the Closing between the Buyer Group, on the one
hand, and Remainco, its Affiliates or its direct or indirect equityholders, on the other hand, in connection with the Contemplated Transactions,
Counsels may represent Remainco, its Affiliates or its direct or indirect equityholders in such dispute, even though the interests of
Remainco, its Affiliates or its direct or indirect equityholders may be directly adverse to one or more members of the Buyer Group.
(f) In
furtherance of the Parties’ agreement under this Section 4.7, Remainco and Buyer shall, and shall cause applicable
members of their respective Groups to, maintain their respective separate and joint privileges, including by executing joint defense
and common interest agreements where necessary or useful for this purpose.
(g) The
transfer of all Information pursuant to this Agreement is made in reliance on the agreement of Remainco and Buyer set forth in this Section 4.7
and in Section 4.6 to maintain the confidentiality of privileged information and to assert and maintain all applicable
privileges. Each Party agrees that their respective rights to any access to Information, witnesses and other Persons, the furnishing
of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement and the transfer of privileged
Information between the Parties and members of their respective Groups pursuant to this Agreement, shall not be deemed a waiver of any
privilege that has been or may be asserted under this Agreement or otherwise.
4.8 Ownership
of Information. Any Information owned by a member of a Party’s Group as provided to a requesting Party pursuant to this Article IV
shall be deemed to remain the property of such providing member. Unless expressly set forth in this Agreement, nothing contained
in this Agreement shall be construed as granting a license or other rights to any Party with respect to any such Information, whether
by implication, estoppel or otherwise.
4.9 Other
Agreements. The rights and obligations granted under this Article IV are subject to any specific limitations, qualifications
or additional provisions on the sharing, exchange or confidential treatment of Information set forth in any of the Transaction Documents.
4.10 Insurance
Matters.
(a) Remainco
shall use reasonable best efforts to cause the Spinco Business to continue to be an insured under the Remainco Insurance Policies until
the Closing. From and after the Equity Sale Closing Time no member of the Remainco Group shall have any obligation to maintain any Insurance
Policies for the benefit of any of the members of the Spinco Group, other than as set forth in Section 4.10(d).
(b) After
the Closing, Buyer shall be responsible for securing customary Insurance Policies for the members of the Buyer Group for any claim asserted
against, or any occurrence, claim, loss, injury or damage incurred by, any member of the Buyer Group, whether arising out of occurrences
or matters taking place before or after the Equity Sale Closing Time, related to or arising out of the Spinco Business and the operation
thereof by the members of the Spinco Group (“Spinco Insurance Policies”).
(c) From
and after the Closing, for any claim asserted against, or any loss, injury or damage incurred by, any member of the Spinco Group related
to or arising out of the Spinco Business arising out of any occurrence or matter that took place during any period ending at or prior
to the Closing, each member of the Buyer Group may pursue a claim for coverage under any Remainco Insurance Policies under which any
member of the Spinco Group is insured to the extent permitted under the applicable Remainco Insurance Policy (“Spinco Post-Closing
Claims”); provided that (i) no member of the Remainco Group is making any representation or warranty regarding
the coverage under the Remainco Insurance Policies, (ii) any premiums, deductibles, retentions or similar self-insured obligations
under the Remainco Insurance Policies to the extent arising from any Spinco Post-Closing Claims shall be borne by a member of the Buyer
Group, (iii) if the Spinco Post-Closing Claim is covered under a Spinco Insurance Policy or an Insurance Policy of a member of the
Buyer Group, then a member of the Buyer Group shall also make a claim under the applicable Spinco Insurance Policy or the applicable
Insurance Policy of a member of the Buyer Group, (iv) Spinco shall provide Remainco a copy of the initial notice of such Spinco
Post-Closing Claim under a Remainco Insurance Policy promptly following submission to the applicable insurer and thereafter promptly
provide reasonable details of all substantive communications from and to such insurer with respect to such Spinco Post-Closing Claim.
In addition, to the extent any member of the Buyer Group requests, Remainco shall (or shall cause the applicable other member of the
Remainco Group to) submit in its name a Spinco Post-Closing Claim on behalf of the applicable member of the Spinco Group if, in consultation
with Buyer making such request, Remainco reasonably determines that such claim may be covered under a Remainco Insurance Policy. In either
such event, the applicable member of the Remainco Group, on the one hand, and the applicable members of the Buyer Group, on the other
hand, shall reasonably cooperate with one another and Remainco shall not, and shall not permit the applicable member of the Remainco
Group, to settle or compromise any such Spinco Post-Closing Claim without the prior written consent of Buyer. Buyer shall reimburse the
applicable member of the Remainco Group for any reasonable cost or expenses incurred by it in such submission of a claim. In no event
shall Remainco be obligated to initiate coverage litigation with respect to a Spinco Post-Closing Claim, other than any such litigation
of which Buyer agrees to bear the cost and expense. The Parties shall reasonably cooperate with respect to insurance coverage litigation
for a Spinco Post-Closing Claim. If a Spinco Post-Closing Claim relates to the same occurrence for which a member of Remainco Group is
seeking coverage and the limit under the applicable Remainco Insurance Policy is not sufficient to fund all covered claims of the members
of the Spinco Group and the members of Remainco Group, amounts due under such Remainco Insurance Policy shall be paid to the applicable
members of the Remainco Group and the applicable members of the Spinco Group in proportion to the amounts which otherwise would be due
were the limits of liability infinite.
(d) Nothing
in this Section 4.10 shall prevent any member of the Remainco Group from accessing, eroding, exhausting or otherwise taking
any action in connection with a Remainco Insurance Policy; provided that Remainco shall not amend, commute or cancel any Remainco
Insurance Policy in a manner that would adversely impact the rights of any member of the Spinco Group under this Section 4.10.
Notwithstanding anything to the contrary contained in this Agreement, if there is a Spinco Post-Closing Claim under an applicable Remainco
Insurance Policy that has an aggregate limit, the members of the Spinco Group shall not be entitled to any recovery from such Remainco
Insurance Policy in an amount in excess of thirty percent (30%) of the applicable aggregate policy limit.
(e) From
and after the Closing, each Party shall be financially responsible for Self-Insurance obligations applicable to claims for which the
Party bears responsibility for the underlying claim, including the Spinco Post-Closing Claims.
(f) Nothing
in this Section 4.10 shall require any Party to violate any applicable Law or require any member of the Remainco Group to
breach any terms of any of the Remainco Insurance Policies and nothing in this Section 4.10 shall be construed to alter or
limit in any way the indemnity obligations of the Parties, including those in any of the Transaction Documents.
4.11 International
Game Technology PLC Marks
(a) Transitional
Trademark License. Effective as of the Equity Sale Closing Time, the members of the Spinco Group grant to the members of the Remainco
Group for twelve (12) months after the Closing Date (the “Transition Period”) a worldwide, royalty-free, non-transferable,
non-exclusive, irrevocable license to use the International Game Technology PLC Marks in connection with the continued operation of the
Remainco Retained Business in a manner consistent with the use of the International Game Technology PLC Marks in the Remainco Retained
Business prior to the Closing Date by the members of the Remainco Group. Each member of the Remainco Group may sublicense the rights
granted in this Section 4.11 to its authorized distributors, vendors, subcontractors and resellers in connection with the
continued operation of the Remainco Retained Business during the Transition Period. Any and all goodwill arising from the members of
the Remainco Group’s or its sublicensees’ use of the International Game Technology PLC Marks shall inure solely to the benefit
of the Spinco Group. To the extent cessation of use of particular uses of the International Game Technology PLC Marks by the end of the
Transition Period would require the members of the Remainco Group to incur material cost or effort, Remainco and Spinco shall negotiate
and set forth in writing an appropriate extension of the Transition Period solely for such uses, which extension shall last until such
members of the Remainco Group are able to cease such uses of the International Game Technology PLC Marks in the ordinary course of business;
provided that the members of the Remainco Group shall promptly remove and cease use of the International Game Technology PLC Marks
upon the expiration of the Transition Period. The members of the Remainco Group shall have no obligation to remove the International
Game Technology PLC Marks from items no longer in its possession or control.
(b) Quality
Control. Remainco shall use reasonable best efforts to monitor the use of the International Game Technology PLC Marks by the members
of the Remainco Group to ensure that the members of the Remainco Group use the International Game Technology PLC Marks only in a form
and manner consistent with, and in connection with goods and services of a level of quality equal to or greater than the quality of goods
and services offered in connection with, the use of the International Game Technology PLC Marks by the members of the Remainco Group
prior to the Closing Date. Remainco shall, and shall cause the other members of the Remainco Group to, cooperate in good faith with Spinco’s
quality control efforts under this Section 4.11(b).
(c) Other
Uses. Nothing in this Section 4.11 shall limit the members of the Remainco Group’s use of the International Game
Technology PLC Marks after the Transition Period, provided that such uses do not constitute traditional trademark uses as brands
to indicate the origin of the branded goods and services as being Remainco and to distinguish Remainco Group’s goods and services
from the goods and services of other entities in the marketplace; accordingly, the permitted uses under this Section 4.11(c) consist
of the following: (i) non-trademark uses by the members of the Remainco Group for their internal business purposes, records and
other historical or archived documents containing or referencing the International Game Technology PLC Marks, (ii) non-trademark
uses permitted as trademark fair use or not constituting infringement, misappropriation or dilution of the International Game Technology
PLC Marks including uses that would not cause confusion as to the origin or sponsorship of a good or service, or (iii) non-trademark
uses to the extent required under applicable Law.
(d) Change
of Names of Remainco Group Members. As promptly as possible after the Closing Date (but in no event later than the date which is
sixty (60) days following the Closing Date), Remainco shall cause all actions necessary to change the name of each other member of the
Remainco Group with the Secretary of State (or equivalent) in each jurisdiction where its name is registered to remove any reference
to, and use of, “International Game Technology ” or “IGT”.
Article V
MISCELLANEOUS
5.1 Entire
Agreement; Counterparts; Exchanges by Facsimile. The Transaction Documents and the Confidentiality Agreements and the Mutual
Termination Agreement, dated as of the date hereof, by and among Remainco, Merger Partner and DE AGOSTINI S.P.A., a società per
azioni organized under the laws of Italy (the “Mutual Termination Agreement”), including the exhibits and schedules
thereto shall constitute the entire agreement and shall supersede all prior agreements and understandings, both written and oral, between
or among any of the Parties with respect to the subject matter hereof and thereof, including the Existing Agreements. This Agreement
may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same
instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or electronic transmission shall be
sufficient to bind the Parties to the terms and conditions of this Agreement. Notwithstanding anything herein or in any of the other
Transaction Documents (including the Mutual Termination Agreement) to the contrary, each of Remainco and Merger Partner acknowledge and
agree that, Remainco shall be responsible for 73% and Merger Partner shall be responsible for 27% of any Prior Commitment Letter Fees,
if any, as and when they become due and payable.
5.2 Transaction
Documents; Precedence of Agreements. Except as expressly set forth in this Agreement, this Agreement is not intended to address,
and should not be interpreted to address, the matters specifically and expressly covered by any of the other Transaction Documents. In
furtherance thereof, except as otherwise specifically set forth in this Agreement, the Merger Agreement or in the Tax Matters Agreement,
the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement, and, therefore, Assets
or Liabilities related to Taxes and Tax Returns (including any Tax Items, Tax Attributes or rights to receive any Refunds) shall not
be treated as Assets or Liabilities under this Agreement. In furtherance thereof, except (i) as otherwise specifically set forth
in this Agreement, the Merger Agreement or in the Employee Matters Agreement, the rights and obligations of the Parties with respect
to Spinco Employees, Spinco Former Employees and Remainco Employees shall be governed by the Employee Matters Agreement and (ii) as
otherwise specifically set forth in this Agreement, the Merger Agreement or the Employee Matters Agreement, the rights and obligations
of the Parties with respect to all (A) Benefit Arrangements, (B) compensatory arrangements for service providers, and (C) matters
relating to the employment, engagement or termination of any individual, in each case, shall be governed by the Employee Matters Agreements,
and, therefore all (1) rights, assets or liabilities related to Benefit Arrangements, (2) rights, assets or liabilities related
to compensatory arrangements, and (3) all rights, assets or liabilities related to employment-related matters, in each case, shall
not be treated as Assets or Liabilities under this Agreement. In the event and to the extent that there shall be a conflict between (a) this
Agreement and the provisions of any of the other Transaction Documents, such Transaction Document shall control (except with respect
to any Separation Document, in which case this Agreement shall control) and (b) this Agreement and any agreement which is not a
Transaction Document, this Agreement shall control unless specifically stated otherwise in such agreement. The Separation Documents are
intended to be ministerial in nature and only to effect the transactions contemplated by this Agreement with respect to the applicable
local jurisdiction and shall not expand or modify the rights and obligations of the Parties under any of the Transaction Documents that
are not Separation Documents; provided that any right to indemnification or recovery under this Agreement is complementary to
any right of indemnification or recovery under any other Transaction Document (it being understood and agreed that if a Transaction Document
contains any limitations on types or amount of Losses or Liabilities that are recoverable in respect of the subject matter of such Transaction
Document whether by indemnification, Action or otherwise (or provides that the remedies provided under such Transaction Document are
the exclusive remedy for the subject matter under such Transaction Document), such limitations and the exclusive remedy provisions shall
be applicable and control any and all such claims for indemnification, claims for breach or otherwise made under this Agreement or any
of the other Transaction Documents).
5.3 Survival.
The covenants and agreements that by their terms apply or are to be performed in whole or in part after the Closing Date pursuant to
any of the Transaction Documents shall survive the Closing and remain in effect for the period provided in such covenants and agreements,
if any, or if later, until fully performed. The covenants and agreements to be performed at or prior to the Closing shall terminate as
of the Closing and after the Closing no claims shall be made or continued against a Party for any breach thereof discovered after the
Closing.
5.4 Fees
and Expenses. Except as otherwise provided in any of the Transaction Documents other than the Merger Agreement, all fees and expenses
shall be borne by the Parties as contemplated by Section 10.3 (Fees and Expenses) of the Merger Agreement.
5.5 Notices.
All notices, requests, consents, claims, demands and other communications under any of the Transaction Documents shall be in writing
and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier
service, by email with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified
mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a
Party as shall be specified in a notice given in accordance with this Section 5.5):
if to Merger Partner (prior to the Closing):
Everi Holdings Inc.
7250 South Tenaya Way, Suite 10
Attention: Randy L. Taylor, President and CEO; Kate Lowenhar-Fisher,
EVP and Chief Legal Officer – General Counsel
Email: legalnotices@everi.com
with a copy (which shall not constitute notice) to:
Pillsbury Winthrop Shaw Pittman LLP
11682 El Camino Real
Suite 200
San Diego, CA 92130 USA
Attention: Christian A. Salaman
E-mail: [*]
and
Pillsbury Winthrop Shaw Pittman LLP
725 South Figueroa Street
36th Floor
Los Angeles, CA 90017
Attention: Drew Simon-Rooke
E-mail: [*]
if to Remainco or (prior to the Closing) Spinco:
International Game Technology PLC
c/o IGT Global Solutions Corporation
IGT Center
10 Memorial Boulevard
Providence, RI 02903-1125
Attention: General Counsel
Email:
legalnotices@igt.com
Ignite Rotate LLC
c/o IGT Global Solutions Corporation
Attention: General Counsel
Email:
legalnotices@igt.com
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: Paul Choi, Scott Williams and Brent M. Steele
Email: [*], [*] and [*]
if to Buyer (prior to and after the Closing) or (after the
Closing) Merger Partner or Spinco:
Voyager Parent, LLC
c/o Apollo Management X, L.P.
9 West 57th Street, 42nd Floor
New York New York 10019
Attention: | |
Daniel Cohen, Partner |
| |
James Elworth, General Counsel, Private Equity |
Email: | |
[*]
[*] |
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064
Attention: | |
Ross A. Fieldston |
| |
Ian M. Hazlett |
Email: | |
[*]
[*] |
A copy of any notice from
one Party to another Party prior to the Closing shall be provided to all of the other Parties in accordance with the notice procedures
set forth in this Section 5.5.
5.6 Waiver.
The provisions of this Agreement (including this Section 5.6) were specifically bargained for by the Parties and were taken
into account by the Parties in arriving at the terms and conditions of this Agreement and the transactions contemplated in this Agreement.
Any term or provision of this Agreement may be waived, or the time for its performance may be extended, in writing at any time signed
by the Party or Parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently authorized for the purposes
of this Agreement if, as to a Party, it is authorized in writing by an authorized Representative of such Party. The failure of a Party
to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect
the validity of this Agreement or any part of this Agreement or the right of a Party thereafter to enforce each and every such provision.
No waiver of any breach of this Agreement shall be held to constitute a waiver of any preceding or subsequent breach.
5.7 Assignment.
This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective
successors and permitted assigns; provided that neither this Agreement nor any Party’s rights or obligations under
this Agreement may be assigned or delegated by such Party without the prior written consent of the other Parties, except that a Party
may assign any of its rights under any of the Transaction Documents: (a) as collateral security to a creditor, (b) to one of
its Affiliates (provided that no Party may assign the Merger Agreement pursuant to this clause (b) until after the
Closing) or (c)(i) to the acquirer of all or substantially all of the assets of such Party, (ii) in the case of the Transaction
Documents other than the Merger Agreement, to the acquirer of any members of such Party’s Group or any lines of business of such
Party, or (iii) in connection with any merger or consolidation involving such Party; provided that in each case, no such
assignment shall relieve such Party of any of its liabilities or obligations under this Agreement. Any attempted assignment or delegation
of this Agreement or any of such rights or obligations by any Party in violation of this Agreement without the prior written consent
of the other Parties shall be void and of no effect.
5.8 Termination.
This Agreement shall terminate without further action at any time before the Equity Sale Closing Time upon termination of the Merger
Agreement. If so terminated, no Party shall have any Liability of any kind to any other Party or any other Person on account of this
Agreement, except as provided in the Merger Agreement.
5.9 Amendment.
No provision of any of the Transaction Documents may be amended, supplemented or modified except by a written instrument signed by all
the parties to such agreement. No consent from any Indemnified Party under Article III (other than the Parties) shall be
required in order to amend this Agreement.
5.10 Group
Members. Each Party shall cause to be performed, all actions, agreements and obligations set forth in any of the Transaction Documents
to be performed by any member of its Group.
5.11 Third-Party-Beneficiaries.
Except (a) as provided in Article III relating to Indemnified Parties and for the release under Section 3.1
of any Person provided therein, and (b) as specifically provided in any of the Transaction Documents, this Agreement is solely
for the benefit of the Parties and nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other
than the Parties) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.12 Exhibits
and Schedules. The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as
if the same had been set forth verbatim in this Agreement. Nothing in the Exhibits or Schedules constitutes an admission of any liability
or obligation of any member of the Remainco Group or any member of the Spinco Group or any of their respective Affiliates to any Third
Party, nor, with respect to any Third Party, an admission against the interests of any member of the Remainco Group or any member of
the Spinco Group or any of their respective Affiliates. The inclusion of any item or liability or category of item or liability on any
Exhibit or Schedule is made solely for purposes of allocating potential liabilities among the Parties and shall not be deemed as
or construed to be an admission that any such liability exists.
5.13 Governing
Laws. This Agreement, and the formation, termination or validity of any part of this Agreement and all Actions (whether based in
tort, contract or otherwise) arising out of or relating to the Transaction Documents, the Contemplated Transactions, the formation, breach,
termination or validity of the Transaction Documents, the actions of any Party or any of their respective Affiliates in the negotiation,
administration, performance or enforcement of the Transaction Documents, shall in all respects be governed by, and construed in accordance
with, the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether
of the State of Delaware or any other jurisdiction) that would result in the application of the Laws of any jurisdiction other than the
State of Delaware.
5.14 Submission
to Jurisdiction.
(a) Each
Party irrevocably and unconditionally submits for itself and its property in any Action (whether based in tort, contract or otherwise)
arising out of or relating to the Transaction Documents, the Contemplated Transactions, the formation, breach, termination or validity
of the Transaction Documents, the actions of the Parties or any of their respective Affiliates in the negotiation, administration, performance
or enforcement of the Transaction Documents or the recognition and enforcement of any judgment with respect to the Transaction Documents,
to the exclusive jurisdiction of the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event)
that such Delaware Court of Chancery does not have subject matter jurisdiction over such Action, the United States District Court for
the District of Delaware, or in the event (but only in the event) that such United States District Court also does not have subject matter
jurisdiction over such Action, any Delaware State court sitting in New Castle County, and appellate courts having jurisdiction of appeals
from any of the foregoing.
(b) Any
such Action may and shall be brought in such courts and the Parties irrevocably and unconditionally waive any objection that it may now
or hereafter have to the venue or jurisdiction of any such Action in any such court or that such Action was brought in an inconvenient
court and shall not plead or claim the same.
(c) Service
of process in any Action may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to such Party at its address as provided in Section 5.5.
(d) Nothing
in any of the Transaction Documents shall affect the right to effect service of process in any other manner permitted by the Laws of
the State of Delaware.
5.15
Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY ACTION (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO the Contemplated Transactions,
OR ITS PERFORMANCE UNDER OR THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THE TRANSACTION
DOCUMENTS AND THE CONTEMPLATED TRANSACTIONS, AMONG OTHER THINGS, THE MUTUAL WAIVER IN THIS SECTION 5.15.
EACH PARTY AGREES THAT ANY OF THE PARTIES MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY,
AND BARGAINED-FOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION WHATSOEVER
BETWEEN THEM RELATING TO ANY OF THE TRANSACTION DOCUMENTS OR ANY OF THE CONTEMPLATED TRANSACTION.
5.16 Specific
Performance. Section 11.14 of the Merger Agreement (Specific Performance) is incorporated by reference to this Agreement and
shall apply as if fully set forth in this Agreement, mutatis mutandis.
5.17 Severability.
Any term or provision of this Agreement (or part thereof) that is invalid or unenforceable in any situation in any jurisdiction shall
not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of
the offending term or provision (or part thereof) in any other situation or in any other jurisdiction. If a final judgment of a court
of competent jurisdiction declares that any term or provision of this Agreement (or part thereof) is invalid or unenforceable, each Party
agrees that the court making such determination shall have the power to limit such term or provision (or part thereof), to delete specific
words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision (or part thereof), and this Agreement shall be valid and enforceable
as so modified. In the event such court does not exercise the power granted to it in the prior sentence, each Party agrees to replace
such invalid or unenforceable term or provision (or part thereof) with a valid and enforceable term or provision that shall achieve,
to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.
5.18 No
Double Recovery. Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative recovery with respect
to any matter arising out of the same facts and circumstances (including with respect to any recoveries that may arise out of Article III).
5.19 Tax
Treatment of Payments. Each Party agrees that any payment made by a Party to another Party pursuant to Schedule 1.20, Section 2.3(j),
Section 3.2, or Section 3.3 of this Agreement shall be treated for applicable Tax purposes, to the extent permitted by applicable
Law at a “more likely than not” level of confidence, as an adjustment to the Purchase Price.
5.20 Payment
Terms.
(a) Except
as set forth in Article II or Article III or as otherwise expressly provided to the contrary in any of the Transaction
Documents, any amount to be paid or reimbursed by a Party (or a member of such Party’s Group), on the one hand, to the other Party
(or a member of such Party’s Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within thirty
(30) days after presentation of an invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation
or other reasonable explanation supporting such amount.
(b) Without
the written consent of the Party receiving any payment under this Agreement specifying otherwise, all payments to be made by Remainco,
Merger Partner (after the Closing), Spinco or Buyer under this Agreement shall be made in U.S. dollars. Except as expressly provided
in this Agreement, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the exchange rate
published on Bloomberg at 5:00 p.m. Central Time two (2) days prior to the relevant date or in The Wall Street Journal on such
date if not so published on Bloomberg. Except as expressly provided in this Agreement, in the event that any indemnification payment
required to be made hereunder or under any Transaction Document may be denominated in a currency other than U.S. dollars, the amount
of such payment shall be converted into U.S. Dollars on the date in which notice of the claim is given to the Indemnifying Party.
5.21 Construction.
Interpretation of the Transaction Documents (except as specifically provided in any such agreement, in which case such specified rules of
construction shall govern with respect to such agreement) shall be governed by the following rules of construction: (a) words
in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender
as the context requires; (b) references to Articles, Sections, paragraphs, Exhibits and Schedules are references to the Articles,
Sections, paragraphs, Exhibits and Schedules to this Agreement or the applicable Transaction Document unless otherwise specified; (c) references
to “$” shall mean United States dollars; (d) the word “including” and words of similar import when used
in the Transaction Documents shall mean “including without limiting the generality of the foregoing,” unless otherwise specified;
(e) the word “or” shall not be exclusive; (f) the table of contents, articles, titles and headings contained in
the Transaction Documents are for reference purposes only and shall not affect in any way the meaning or interpretation of the Transaction
Documents; (g) the Transaction Documents shall be construed without regard to any presumption or rule requiring construction
or interpretation against the Party drafting or causing any instrument to be drafted; (h) unless the context otherwise requires,
the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (i) all terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined
therein; (j) any agreement or instrument defined or referred to in this Agreement or any agreement or instrument that is referred
to in this Agreement means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or
consent, and references to all attachments thereto and instruments incorporated therein; (k) any statute or regulation referred
to in this Agreement means such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case
of any statute, includes any rules and regulations promulgated under such statute), and references to any section of any statute
or regulation include any successor to such section; (l) all time periods within or following which any payment is to be made or
act is to be done shall be calculated by excluding the date on which the period commences and including the date on which the period
ends and by extending the period to the first succeeding Business Day if the last day of the period is not a Business Day; (m) references
to any Person include such Person’s predecessors or successors, whether by merger, consolidation, amalgamation, reorganization
or otherwise; (n) references to any Contract (including this Agreement) or organizational document are to the Contract or organizational
document as amended, modified, supplemented or replaced from time to time, unless otherwise stated, and (o) in calculations described
as “the difference between (x) and (y)”, if (x) is greater than (y), then such difference shall be a positive number,
and if (y) is greater than (x), then such difference shall be a negative number.
5.22 Disclosure.
Section 6.4 of the Merger Agreement (Disclosure) is incorporated by reference to this Agreement and shall apply as if fully set
forth in this Agreement, mutatis mutandis.
5.23 Post-Closing
Transfers by Buyer. If, following the Equity Sale Closing Time, Remainco or Buyer transfers, or causes to be transferred, all or
substantially all of its assets of to any other Person that is not party to this Agreement, such Person shall be subject to all the obligations
and liabilities under this Agreement, including Section 1.17, as if such Person were Remainco or Buyer, as applicable.
[Signature page follows]
IN WITNESS WHEREOF, the Parties
have caused this Agreement to be duly executed as of the day and year first above written.
|
INTERNATIONAL
GAME TECHNOLOGY PLC |
|
|
|
|
By: |
/s/
Vincent L. Sadusky |
|
Name: |
Vincent L. Sadusky |
|
Title: |
Chief Executive Officer |
|
|
|
|
IGNITE
ROTATE LLC |
|
|
|
|
By: |
/s/Massimiliano
Chiara |
|
Name: |
Massimiliano Chiara |
|
Title: |
Executive Vice President and Chief Financial
Officer |
[Signature Page to Separation and Sale
Agreement]
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed as of the day and year first above written.
|
EVERI
HOLDINGS INC. |
|
|
|
By: |
/s/
Randy L. Taylor |
|
Name: |
Randy L. Taylor |
|
Title: |
Chief Executive
Officer |
[Signature Page to Separation and Sale
Agreement]
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed as of the day and year first above written.
|
|
|
VOYAGER PARENT, LLC |
|
|
|
By: |
/s/
Daniel Cohen |
|
Name: |
Daniel Cohen |
|
Title: |
Vice President,
Secretary and Treasurer |
[Signature Page to Separation and Sale
Agreement]
Exhibit A
CERTAIN DEFINITIONS
For purposes of this Agreement
(including this Exhibit A):
“$60 Million Revenue
Threshold” shall have the meaning set forth in Section 1.12(a)(i)D.
“Accounting
Separation” shall have the meaning set forth in Section 1.15(a)(ii)
“Accrued Income
Taxes” means, without duplication, an amount equal to the aggregate amount of any accrued and unpaid income Taxes (including
as a result of Section 965 of the Code and any applicable election to defer the payment of Taxes due under Section 965 of the
Code) of the members of the Spinco Group for any taxable period that ends on or before the Closing Date; provided that for purposes
of computing Accrued Income Taxes, Liability shall (a) be determined on a basis consistent with Past Practice in the jurisdictions
where the members of the Spinco Group file Tax Returns, (b) exclude deferred Tax assets and deferred Tax liabilities, (c) take
into account any overpayments of Taxes (and any applicable prepayments or estimated payments of income Taxes) for any taxable period,
(d) be determined as of the end of the Closing Date, (e) exclude any contingent Taxes or any accruals or reserves established
or required to be established under GAAP with respect to contingent or uncertain Tax positions and (f) in the case of income Taxes
imposed on a member of the Spinco Group that are payable with respect to a taxable period beginning on or before and ending after the
Closing Date, be determined in accordance with Section 1.02(b) of the Tax Matters Agreement.
“Action”
means any claim, action, suit, litigation, arbitration or proceeding by or before any Governmental Authority.
“Affiliate”
shall have the meaning set forth in the Merger Agreement.
“Agreement”
shall have the meaning set forth in the Preamble.
“Applicable
Period” shall have the meaning set forth in Section 4.2.
“Asset
Transferors” means the Entities transferring Assets or Liabilities to Spinco or Remainco, as the case may be, or a member of
their respective Group to consummate the Contemplated Transactions.
“Asset”
and “Assets” means all rights, title and ownership interests (including Intellectual Property) in and to all properties,
claims, Contracts, businesses or assets (including goodwill), wherever located (including in the possession of vendors or other Third
Parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible or intangible, whether accrued,
contingent or otherwise, in each case, whether or not recorded or reflected on the books and records or financial statements of any Entity.
“Assume”
shall have the meaning set forth in Section 1.1(c)(i); and the terms “Assumed” and “Assumption”
shall have their correlative meanings.
“Audited
Party” shall have the meaning set forth in Section 4.2(b)(i).
“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in the City of New York, New York
or London, England, are required by Law to be closed.
“Buyer”
shall have the meaning set forth in the Preamble.
“Buyer
Group” means Buyer and each Entity that is or becomes a Subsidiary of Buyer (which shall (a) include, from and after the
Closing, each member of the Merger Partner Group and each member of the Spinco Group, and (b) exclude, prior to the Closing, each
member of the Merger Partner Group and each member of the Spinco Group).
“Buyer
Group Indemnified Parties” shall have the meaning set forth in Section 3.2.
“Buyer Observers”
shall have the meaning set forth in Section 1.15(d).
“Buyer Releasing
Parties” shall have the meaning set forth in Section 3.1(a)(ii).
“Buyer
Sub” shall have the meaning set forth in the Recitals.
“Cap”
shall have the meaning set forth in Section 3.7(e).
“Closing”
shall have the meaning set forth in the Merger Agreement.
“Closing
Date” shall have the meaning set forth in the Merger Agreement.
“Code”
shall have the meaning set forth in the Tax Matters Agreement.
“Confidential
Information” means all information and materials (including trade secrets, software programs, Intellectual Property, data
files, source code, computer chips, system designs and product designs, whether or not marked as confidential, whether furnished before
or after the date hereof, whether oral, written or electronic, and regardless of the manner in which it is furnished, together with any
notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or other materials) (a) with respect
to Buyer, Merger Partner and Spinco (and members of their respective Groups), that relate to Buyer, Merger Partner, the members of the
Buyer Group, the members of the Spinco Group, the Spinco Business, any Spinco Assets or any Spinco Liabilities or that was acquired by
Remainco or any member of its Group after the Equity Sale Closing Time pursuant to Article IV or otherwise in accordance
with any of the Transaction Documents and (b) with respect to Remainco (and any member of its Group), that relate to the Remainco
Group, the Remainco Retained Business, any Remainco Retained Assets or any Remainco Retained Liabilities or that was acquired by Buyer
(or any member of the Buyer Group) after the Equity Sale Closing Time pursuant to Article IV or otherwise in accordance with
any of the Transaction Documents; except for any information or materials that (i) is or becomes generally available to the
public other than as a result of disclosure by another Party, any members of its Group or any of its or their Representatives and (ii) is
required or requested by applicable Law, Governmental Order or a Governmental Authority to be disclosed after prior notice has been given
to the other Party (to the extent such prior notice is permitted to be given under applicable Law); provided that the disclosing
Party, to the extent reasonably requested by the other Party, shall cooperate with such other Party in seeking an appropriate order or
other remedy protecting such information from disclosure at the cost and expense of such other Party, (iii) is reasonably necessary
to be disclosed in connection with any Action or (iv) was or becomes available to such Party on a non-confidential basis and from
a source (other than a Party to this Agreement or any Affiliate or Representative of such Party) that is not bound by a confidentiality
agreement with respect to such information. It is understood that, with respect to the confidentiality obligations of the members of
the Remainco Group, on the one hand, and the confidentiality obligations of Spinco and the Spinco Group, on the other hand, information
or materials known to one Group as a result of the association of such Groups prior to the Equity Sale Closing Time shall be deemed to
have been furnished on a confidential basis and that the Group as to which such information pertains shall be deemed to have been the
disclosing Party for purposes of this definition, and the Group to which such Information becomes known shall be deemed to be the receiving
Party for purposes of this definition.
“Confidentiality
Agreements” shall have the meaning set forth in the Merger Agreement.
“Consent”
means any approval, consent, ratification, permission, waiver or authorization (including any Governmental Approval).
“Contemplated Transactions”
shall have the meaning set forth in the Merger Agreement.
“Contract”
means any legally binding written or oral agreement, subcontract, lease, sublease, license, sublicense, indenture, commitment, sales
and purchase order, and other legally binding instrument or written arrangement or understanding of any kind.
“Counsel”
shall have the meaning set forth in Section 4.7(e).
“Credit
Support Instrument” means a letter of credit, guarantee, bank guarantee or surety bond, or indemnity provided in connection
with the issuance of any letter of credit, bank guarantee or surety bond.
“Data
Migration” shall have the meaning set forth in Section 1.15(b)(ii).
“Delta”
shall have the meaning set forth in the Merger Agreement.
“Development
Period” shall have the meaning set forth in Section 1.15(b).
“Eligible
Insurance Proceeds” shall have the meaning set forth in Section 3.7(d).
“Employee
Matters Agreement” means the Employee Matters Agreement, dated as of the date hereof, by and among Remainco, Spinco, Merger
Partner and Buyer and attached hereto as Exhibit B.
“Encumbrance”
means any lien, pledge, hypothecation, charge, mortgage, deed of trust, easement, encroachment, imperfection of title, title exception,
title defect, right of possession, lease, tenancy license, security interest, encumbrance, claim, infringement, interference, option,
right of first refusal, preemptive right, community property interest or restriction of any nature (including any restriction on the
voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income
derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other
attribute of ownership of any asset).
“Entity”
means any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership,
joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm,
society or other enterprise, association, organization or entity.
“Environmental
Law” shall have the meaning set forth in the Merger Agreement.
“Environmental
Permit” shall have the meaning set forth in the Merger Agreement.
“Equity Interests”
means, with respect to any Person, (a) any capital stock, voting securities, limited liability company interests, partnership units
or other equity of such Person, (b) any security convertible into or exercisable or exchangeable for any security described in clause
(a) or (c) any right to acquire any security described in the foregoing clause (a) or clause (b).
“Equity Sale”
shall have the meaning set forth in the Section 2.1.
“Equity Sale Closing
Time” shall have the meaning set forth in the Merger Agreement.
“Estimated
Purchase Price” shall have the meaning set forth in Section 2.3(a).
“Existing Agreements”
shall have the meaning set forth in the Merger Agreement.
“Existing
Credit Support Instrument Release Deadline” means the date which is three (3) months following the Closing Date.
“Existing Remainco
Counsel” shall have the meaning set forth in Section 4.7(a).
“Existing
Remainco Credit Support Instrument Release Condition” means, with respect to any Existing Remainco Credit Support Instrument,
(a) each applicable member of the Spinco Group has been fully, unconditionally and irrevocably released in writing from all Liabilities
related to or arising under such Existing Remainco Credit Support Instrument or (b) such Existing Remainco Credit Support Instrument
has been terminated to the extent of such Liabilities or is of no further force or effect.
“Existing
Remainco Credit Support Instruments” means the Credit Support Instruments with respect to which any member of the Spinco Group
has any Liabilities to the extent relating to any of the Remainco Retained Liabilities, including those identified in the table set forth
in Part (B) of Schedule 1.1(c).
“Existing
Spinco Credit Support Instrument Release Condition” means, with respect to any Existing Spinco Credit Support Instrument, (a) each
applicable member of the Remainco Group has been fully, unconditionally and irrevocably released in writing from all Liabilities relating
to or arising under such Existing Spinco Credit Support Instrument or (b) such Existing Spinco Credit Support Instrument has been
terminated to the extent of such Liabilities or is of no further force or effect.
“Existing
Spinco Credit Support Instruments” means the Credit Support Instruments with respect to which any member of the Remainco Group
has any Liabilities to the extent relating to any of the Spinco Liabilities, including those identified in Part (A) Schedule 1.1(c).
“Facilities Separation”
shall have the meaning set forth in Section 1.15(a)(vi).
“Final
Purchase Price” shall have the meaning set forth in Section 2.3(i).
“Financing”
shall have the meaning set forth in the Merger Agreement.
“Former Business”
means any Entity, division, business unit or business (in each case, including any assets and liabilities comprising the same) that has
been sold, conveyed, assigned, transferred or otherwise disposed of or divested (in whole or in part) to a Person that is not a member
of the Spinco Group or the Remainco Group or the operations, activities or production of which has been discontinued, abandoned, completed
or otherwise terminated (in whole or in part), in each case, prior to the Equity Sale Closing Time.
“Fraud”
means, with respect to a Party, common law fraud of a representation or warranty in the Merger Agreement or any of the other Transaction
Documents executed as of the date hereof and any certificate delivered pursuant to Section 7.6, Section 8.6 or Section 9.6
of the Merger Agreement involving an actual and intentional misrepresentation made by such Party with actual knowledge of its falsity
and made for the purpose of inducing the other Parties to act, and upon which the other Parties justifiably relies with resulting Losses.
Fraud shall not include any claim for equitable fraud, constructive fraud, promissory fraud, unfair dealings fraud, fraud by reckless
or negligent misrepresentation or any tort based on negligence or recklessness.
“GAAP”
shall have the meaning set forth in the Merger Agreement.
“Gaming
Authority” shall have the meaning set forth in the Merger Agreement.
“Gaming Holdco”
means International Game Technology, a Nevada corporation.
“Ghostbusters
Sublicensing Agreement” means the Ghostbusters Sublicensing Agreement to be entered into by and between US Lottery Opco and
US Gaming Opco, substantially in the form attached hereto as Exhibit C.
“Governmental
Approval” shall have the meaning set forth in the Merger Agreement.
“Governmental
Authority” means any United States or non-United States federal, state or local or any supra-national, political subdivision,
governmental, legislative, regulatory or administrative authority, instrumentality, agency, body or commission, self-regulatory authority
or any court, tribunal, or judicial or arbitral body, including any Gaming Authority.
“Governmental
Order” means any legally binding and enforceable order, writ, judgment, injunction or decree, entered by or with any Governmental
Authority.
“Group”
means (a) with respect to Remainco, the Remainco Group, (b) with respect to Spinco, the Spinco Group, (c) with respect
to Merger Partner, the Merger Partner Group and (d) with respect to Buyer, the Buyer Group.
“GINA”
shall have the meaning set forth in the definition of “Remainco Books and Records”.
“Hazardous
Materials” has the meaning set forth in the Merger Agreement.
“HR Separation”
shall have the meaning set forth in Section 1.15(a)(vii).
“Indebtedness”
of any Person means, without duplication, (a) indebtedness for borrowed money or indebtedness issued or incurred in substitution
or exchange for indebtedness for borrowed money; (b) indebtedness evidenced by any bond, debenture or note; (c) reimbursement
or indemnification obligations with respect to letters of credit, performance bond, surety bonds or other similar instruments, but solely
to the extent drawn; (d) net obligations under any interest rate, commodity or currency swap, cap, collar or futures Contract or
other interest rate, commodity or currency hedging arrangement, in each case, net of any amounts payable to terminate such arrangement
and to convert a net asset position into cash; (e) accrued and unpaid interest; (f) any guaranty by such Person of any indebtedness
of any Third Party described in clauses (a) through (e) (without duplication of any such guaranteed indebtedness
amounts; (g) Liability for Accrued Income Taxes; (h) finance leases; (i) any earnouts or deferred payments in connection
with any acquisitions calculated as the maximum amount payable under or pursuant to such obligation; (j) any declared but unpaid
dividends or amounts owed to any members of the Remainco Group or its Affiliates (other than any members of the Spinco Group) to the
extent not settled, discharged, offset, paid or repaid or terminated in full as set forth in Section 1.3 of the Agreement.
(k) prepayment premiums, penalties, make-whole payments or obligations or other similar costs, fees or expenses incurred in connection
with the prepayment, repayment, redemption, payoff, amendment, modification or supplement of the items described in the foregoing clauses
(a) through (f).
“Independent Accounting
Firm” shall have the meaning set forth in Section 2.3(f).
“Indemnified
Party” shall have the meaning set forth in Section 3.4(a).
“Indemnifying
Party” shall have the meaning set forth in Section 3.4(a).
“Information”
means information, content, and data in written, oral, electronic, computerized, digital or other tangible or intangible media, including
(a) books and records, whether accounting, corporate, legal or otherwise; ledgers, studies, reports, surveys, designs, specifications,
drawings, blueprints, diagrams, models, prototypes, samples, flow charts, and marketing plans; information about customers (including
prospects), vendors, partners, and other Third Parties, including names and contact information; employee files and information; technical
information relating to the design, operation, testing, test results, development, and manufacture of any Party’s or its Group’s
product or facilities (including product or facility specifications and documentation); engineering, design, and manufacturing drawings,
diagrams, layouts, maps and illustrations; formulations and material specifications; laboratory studies and benchmark tests;
quality assurance policies, procedures and specifications; evaluation and/validation studies; process control and shop-floor
control strategies, logic or algorithms; databases; product costs, margins and pricing; product marketing studies and
strategies; all other methodologies, procedures, techniques and know-how related to research, engineering, development and manufacturing;
information security records (e.g., incident reports, audit logs, etc.); and (b) financial and business information, including
earnings reports and forecasts, macro-economic reports and forecasts, cost information (including supplier records and lists), sales
and pricing data, business plans, market evaluations, surveys, credit-related information, and other such information as may be needed
for reasonable compliance with reporting, disclosure, filing or other requirements, including under applicable securities Laws or regulations
of securities exchanges.
“Insurance Policies”
means all insurance Contracts of any kind (including claim administration Contracts, but excluding insurance Contracts funding benefits
under any benefit plan arrangement), including primary, excess and umbrella policies, commercial general liability policies, fiduciary
liability, directors’ and officers’ liability, automobile, property and casualty, workers’ compensation and employee
dishonesty insurance policies and bonds (excluding Self-Insurance).
“Insurance Proceeds”
means those monies (a) received by an insured from an insurance carrier, (b) paid by an insurance carrier on behalf of the
insured or (c) received (including by way of setoff) from any third Person in the nature of insurance, contribution or indemnification
with respect to any Liability; in any such case net of any applicable premium adjustments (including reserves and retrospectively-rated
premium adjustments) and net of any costs or expenses, including Taxes, incurred in connection with the receipt thereof but excluding
proceeds or payments from Self-Insurance.
“Intellectual
Property” means collectively, any of the following that may exist or be created or recognized under the Laws of any Governmental
Authority: (a) patents and patent applications (including any and all provisionals, divisionals, continuations, continuations-in-part
and reissues thereof), (b) trademarks, trade names, trade dress, logos, service marks and domain names (including registrations
and applications therefor) and any goodwill associated therewith, and all extensions and renewals of any of the foregoing (“Trademarks”),
(c) copyrights, (including registrations and applications therefor), (d) trade secrets, confidential financial information,
customer lists and know-how, and (e) other intellectual property and related proprietary rights, interests, and protections (including
all rights to sue and recover and retain damages, costs, and attorneys’ fees for past, present, and future infringement and any
other rights relating to any of the foregoing). Except for the underlying copyright in Software, Intellectual Property shall not
include any Software.
“Intellectual
Property License Agreement” means the Intellectual Property License Agreement to be entered into by and between Remainco and
Spinco, substantially in the form attached hereto as Exhibit E.
“Intercompany
Account Termination Agreement” means the Agreement Regarding Intercompany Accounts and Contracts to be entered into among the
Spinco Group, on the one hand, and the Remainco Group, on the other hand, in connection with the Separation, substantially in the form
attached hereto as Exhibit F.
“International Game
Technology PLC Marks” shall mean all Trademarks consisting of or incorporating the Trademarks disclosed on Schedule 1.1(v).
“IT Assets”
means all elements of information technology and systems, including computer systems and servers, telecommunications equipment, internet
protocol (IP) addresses, data rights, networks and platforms, peripherals, related technology items and accompanying documentation, reference
materials, resource and training materials.
“Jumanji
Sublicensing Agreement” means the Jumanji Sublicensing Agreement to be entered into by and between US Lottery Opco and US Gaming
Opco, substantially in the form attached hereto as Exhibit G.
“Law”
means any United States or non-United States federal, state, local or territorial law, treaty, convention, code, statute, ordinance,
directive, rule, regulation, agency requirement, Governmental Order or other requirement or rule of law.
“Legal Separation”
shall have the meaning set forth in Section 1.15(a)(iii).
“Liabilities”
means any and all debts, liabilities, expenses, commitments or obligations, whether direct or indirect, accrued or fixed, known or unknown,
absolute or contingent, matured or unmatured or determined or determinable, disputed or undisputed, joint or several, secured or unsecured,
liquidated or unliquidated, whenever (including in the past, present or future) and however arising (including out of any contract or
tort based on negligence or strict liability) and whether or not the same would be required by GAAP to be reflected in any financial
statements or disclosed in the notes thereto.
“Losses”
means any and all losses, costs, charges, settlement payments, awards, judgments, fines, penalties, damages, expenses (including reasonable
attorneys’, actuaries’, accountants’ and other professionals’ fees, disbursements and expenses), liabilities,
claims or deficiencies of any kind; provided that Losses shall not include indirect, incidental, punitive, exemplary, treble,
diminution in value, losses based on any multiple, special or consequential damages (including lost profits), except to the extent actually
awarded in connection with a Third-Party Claim.
“M&C Separation”
shall have the meaning set forth in Section 1.15(a)(iv).
“Merger”
shall have the meaning set forth in the Recitals.
“Merger
Agreement” shall have the meaning set forth in the Recitals.
“Merger
Effective Time” shall have the meaning set forth in the Merger Agreement.
“Merger
Partner” shall have the meaning set forth in the Preamble.
“Merger
Partner Board” shall have the meaning set forth in the Merger Agreement.
“Merger Partner Group” means
Merger Partner and each Entity that is or becomes a Subsidiary of Merger Partner.
“Merger
Partner Protected Person” means any employee of any member of the Merger Partner Group as of the Equity Sale
Closing Time who (a) is involved in software development for the Merger Partner Group (not including Spinco Employees), including
software architects, developers and engineers, (b) develops games (e.g., game developers, mathematicians, graphic designers and
sound designers) for the Merger Partner Group (not including Spinco Employees), (c) who supervises the development of games for
the business of the Merger Partner (not including Spinco Employees), (d) provides services under the Transition Services Agreement
or (e) is an executive officer of any member of the Merger Partner Group, and in the case of each of clauses (a) through
(e) is a person with whom the members of the Remainco Group came into contact with in connection with the evaluation, negotiation,
execution or consummation of the Contemplated Transactions prior to the Closing.
“New Debt”
means the Indebtedness incurred by the members of the Spinco Group pursuant to the Financing.
“Non-Transferable
Asset” shall have the meaning set forth in Section 1.4(a).
“Non-Transferable
Liability” shall have the meaning set forth in Section 1.4(a).
“Other
Party’s Auditors” shall have the meaning set forth in Section 4.2(b).
“Outstanding Existing
Remainco Credit Support Instruments” shall have the meaning set forth in Section 1.10(f).
“Outstanding Existing
Spinco Credit Support Instruments” shall have the meaning set forth in Section 1.10(c).
“Party”
shall have the respective meanings set forth in the Preamble.
“Past Practice”
shall have the meaning set forth in the Tax Matters Agreement.
“Permit”
shall have the meaning set forth in the Merger Agreement.
“Person”
means any natural person, Entity or Governmental Authority.
“Permits
Alternative Arrangements” shall have the meaning set forth in Section 1.6.
“Permitted Business”
means (a) the Remainco Retained Business, (b) any business-to-consumer business that provides product, services, applications
or solutions directly to natural persons, including with respect to sports betting, gaming machines or digital betting, or (c) any
business-to-business/government business that provides products, services, applications or solutions competing with the products, services,
applications or solutions of the Spinco Restricted Business to lotteries or Governmental Authorities for or with respect to lotteries,
excluding, in each of clauses (a) and (c), the provision of video lottery terminal (VLT) cabinets, games, systems
and software or other Spinco Restricted Business products or services to casinos (unless the casino is owned and operated by a lottery
or a Governmental Authority for a lottery and such products or services are ancillary to the products or services Remainco provides to
such lottery or Governmental Authority).
“Post-Closing
Remainco Group Member” shall have the meaning set forth in the Merger Agreement.
“Pre-2024 Buyer
Cash Awards” shall have the meaning set forth in the Employee Matters Agreement.
“Pre-Closing Period”
shall have the meaning set forth in the Merger Agreement.
“Prepaid Royalty
Amount” means, as of the Equity Sale Closing Time, the amount of prepaid royalty payments pursuant to the Sony License Agreement
that have been made after the date hereof and prior to the Closing Date reduced for any amortization between January 1, 2025 and
the Closing (pro rata based on the number of days between the January 1, 2025 and the Closing and calculated based on amortization
of $33,500,000 per annum).
“Prepaid Royalty
Adjustment” means, the product of (a) the Prepaid Royalty Amount and (b) ninety-five percent (95%).
“Prior
Commitment Letter” means the executed commitment letter, including (a) all exhibits, schedules, annexes, joinders
and amendments to such agreements; (b) any associated fee letters, (c) any associated engagement letters and (d) any associated
side letters, in each case, by and among Merger Partner (or any other member of the Merger Partner Group, if applicable) or Spinco (or
any other member of the Spinco Group, if applicable) and the financing sources party thereto, pursuant to which, among other things,
such financing sources had committed to provide Merger Partner (or any other member of the Merger Partner Group, if applicable) or Spinco
(or any other member of the Spinco Group, if applicable) with financing in the amount set forth therein (the “Prior Financing”)
for purposes of financing the previously contemplated transactions among the Merger Partner Group, the Spinco Group and the Remainco
Group which have been terminated concurrently with the execution and delivery of this Agreement.
“Purchase
Price” means the amount equal to the sum of (a) Four Billion Fifty Million Dollars ($4,050,000,000) and (b) the Spinco
Adjustment Amount.
“Pursue”
means the discharge, prosecution, appeal, negotiation, resolution, settlement, compromise or other pursuit or defense of any claims with
respect to the Remainco Retained Liabilities or the Spinco Liabilities, as applicable, in whole or in part, including by litigation,
arbitration, alternative dispute resolution, negotiation, settlement or compromise.
“R&W Insurance
Policy” shall have the meaning set forth in the Merger Agreement.
“Real
Estate Matters Agreement” means the Real Estate Matters Agreement, dated as of the date hereof, by and among Remainco, Spinco,
Merger Partner and Buyer, and attached hereto as Exhibit H.
“Refund”
shall have the meaning set forth in the Tax Matters Agreement.
“Release”
shall have the meaning set forth in the Merger Agreement.
“Remainco”
shall have the meaning set forth in the Preamble.
“Remainco
Accounts” shall have the meaning set forth in Section 1.5(a).
“Remainco
Asset Transferee” means any Entity that is or shall be a member of the Remainco Group to which Remainco Retained Assets shall
be or have been transferred, directly or indirectly, at or prior to the Equity Sale Closing Time by an Asset Transferor (or which assets
are already held by such Entity) in order to consummate the Contemplated Transactions.
“Remainco Backstop
Credit Support Instrument” shall have the meaning set forth in Section 1.10(f).
“Remainco
Books and Records” means (a) minute books, equity interest records, consents and other similar records of the Remainco
Group; (b) books and records relating to the Remainco Retained Assets or the Remainco Retained Liabilities (including any books
and records and privileged information relating to any cause of action (including counterclaims) and defenses against Third Parties relating
to any Remainco Asset or any Remainco Retained Liability); (c) books and records (including personnel and employment records) that
any of the members of Remainco Group is required by Law to retain or prohibited by Law from delivering to Spinco (copies of which shall
be made available to Spinco at Spinco’s sole expense upon Spinco’s reasonable request to the extent permitted by Law and
solely with respect to the Spinco Business); (d) any financial records (including general ledgers) or Remainco Records; (e) any
books and records, reports, internal drafts, opinions, valuations, correspondence or other materials prepared or received by any member
of the Remainco Group or its or their respective Representatives irrespective of whether they remain in the possession of a member of
the Spinco Group after the Closing Date and whether privileged or non-privileged, in connection with a potential sale of the Spinco Business
or the Spinco Group; (f) all confidentiality or non-disclosure agreements with prospective purchasers of the Spinco Business or
the Spinco Group or any portion thereof and all bids, letters of intent and expressions of interest received from Third Parties with
respect thereto; (g) any consolidated regulatory filings made by Remainco or any of its Affiliates and any related correspondence
with Governmental Authorities unless the information contained therein relates primarily to the Spinco Group or the Spinco Business;
(h) personnel and employment records for all employees and former employees of any member of the Remainco Group who are not Spinco
Employees, and any other email, files, data and information with respect to the employees of Remainco or any of its Affiliates; (i)
any medical information regarding any current or former employee, consultant or contractor of Remainco or any of its Affiliates, including
any “genetic information” within the meaning of the Genetic Information Nondiscrimination Act of 2008 (“GINA”),
any individual’s family medical history (except as otherwise permitted by GINA and the Family and Medical Leave Act), the results
of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought
or received genetic services, or genetic information of a fetus carried by an individual or an individual’s family member or an
embryo lawfully held by an individual or family member receiving assistive reproductive services; (j) copies of any books and records
which Remainco reasonably determines are necessary to enable Remainco or any of its Affiliates to prepare or file Tax Returns (with the
originals to be transferred to Spinco if such books and records are otherwise Spinco Assets and with each Party’s access to the
other Party’s Tax book and records otherwise governed by the Tax Matters Agreement); (k) all privileged materials, documents
and records that are not primarily related to the Spinco Business and (l) any information, books or records older than January 1,
2020.
“Remainco
Counsel” shall have the meaning set forth in Section 4.7(a).
“Remainco Credit
Support Account” shall have the meaning set forth in Section 1.10(f).
“Remainco’s
Form 20-F” means Remainco’s Report on Form 20-F for the year ended December 31, 2023.
“Remainco
Group” means (a) with respect to any period prior to the Equity Sale Closing Time, Remainco and each of its Subsidiaries
(including the members of the Spinco Group) and (b) with respect to any period following the Equity Sale Closing Time, Remainco,
each of its Subsidiaries (excluding the members of the Spinco Group) and each other Entity that becomes a Subsidiary of Remainco.
“Remainco
Indemnified Parties” have the meaning set forth in Section 3.3 and shall not include the Buyer Group Indemnified
Parties.
“Remainco Insurance
Policies” means Insurance Policies of any member of the Remainco Group in effect prior to the Equity Sale Closing Time.
“Remainco
Protected Person” means any employee of any member of the Remainco Group as of the Equity Sale Closing Time who
(a) (i) is involved in software development for the Remainco Group or the Remainco Retained Business, including software architects,
developers and engineers, (ii) develops games (e.g., game developers, mathematicians, graphic designers and sound designers) for
the Remainco Retained Business or any member of the Remainco Group, or (iii) who supervises the development of games for the Remainco
Retained Business or any member of the Remainco Group; (b) provides services under the Transition Services Agreement; or (c) is
an executive officer of any member of the Remainco Group.
“Remainco
Released Liabilities” shall have the meaning set forth in Section 3.1(a)(i).
“Remainco Released
Parties” shall have the meaning set forth in Section 3.1(a)(ii).
“Remainco Releasing
Parties” shall have the meaning set forth in Section 3.1(a)(i).
“Remainco
Retained Assets” means the following Assets of the members of the Remainco Group as of immediately prior to the Equity Sale
Closing Time, excluding, in each case, the Spinco Assets:
(i) other
than Spinco Restricted Cash, all cash, cash equivalents, marketable securities, checks, drafts and deposits, except the Spinco Closing
Cash Amount;
(ii) except
for the Spinco Properties, the Spinco Leases, the Spinco Assigned Properties, and the interest of the applicable member of the Spinco
Group in any properties that are partially subleased or sublicensed by a member of the Spinco Group from a member of the Remainco Group
pursuant to Article V of the Real Estate Matters Agreement, all of the right, title and interest of the members of the Remainco
Group in owned and leased real property, including all such right, title and interest under each real property lease pursuant to which
any of them leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, including all improvements,
fixtures and appurtenances thereto and rights in respect thereof;
(iii) all
rights to any Trademark that is not Spinco Owned Intellectual Property, together with any Contracts granting rights to use the same and
any Intellectual Property to the extent incorporating any of the same and any and all goodwill, registrations and applications relating
thereto that is not a Spinco Owned Intellectual Property;
(iv) any
Intellectual Property (including Remainco Retained Intellectual Property and Software) that is not Spinco Owned Software and Spinco Owned
Intellectual Property, together with any Contracts granting rights to use the same;
(v) all
Software that is not Spinco Owned Software and the Spinco Owned Intellectual Property related thereto;
(vi) all
Contracts (and all rights thereunder) that are not Spinco Contracts, including the Contracts listed on Schedule 1.1(d);
(vii) the
Remainco Insurance Policies and any benefits, proceeds or premium refunds payable or paid thereunder or with respect thereto (it being
understood that the members of the Spinco Group have certain contractual rights and limitations as set forth in Section 4.10);
(viii) any
Remainco Books and Records; provided that Spinco shall be entitled to a copy of certain Remainco Books and Records as provided
in Section 4.3;
(ix) all
Permits other than the Spinco Permits;
(x) except
for causes of action and defenses primarily relating to the Spinco Business, all causes of action (including counterclaims) and defenses
against Third Parties relating to any Remainco Retained Asset or any Remainco Retained Liability;
(xi) the
assets, rights and properties set forth on Schedule 1.1(e);
(xii) except
as set forth in the Transition Services Agreement or primarily related to the Spinco Business, all rights to receive, and all rights
with respect to the delivery of, enterprise-wide services of the type provided prior to the date hereof to the Spinco Business by any
member of the Remainco Group (other than the members of Spinco Group), including assets used or held for use by members of the Remainco
Group in connection with such corporate-level services;
(xiii) other
than Equity Interests of the members of the Spinco Group, any other Equity Interests of any Entity;
(xiv) other
than the Spinco Owned Intellectual Property and the Spinco Owned Software, any assets, properties, rights, Contracts and claims of the
members of the Remainco Group that are not Spinco Assets;
(xv) the
bank accounts of the Post-Closing Remainco Group Members;
(xvi) any
and all assets that are expressly contemplated by any of the Transaction Documents as Assets to be retained by, or Transferred to, Remainco
or any other member of the Remainco Group; and
(xvii) except
for those Assets expressly identified as Spinco Assets in clauses (i) through (xx) of the definition of “Spinco Assets,”
any other assets, properties, rights, Contracts and claims of the members of the Remainco Group or the Remainco Retained Business, including
as described on Schedule 1.1(f).
For the avoidance of doubt, the members of the
Remainco Group immediately prior to the Equity Sale Closing Time include the members of the Spinco Group.
“Remainco
Retained Business” means as conducted and existed at any time prior to or as of the Equity Sale Closing Time, any and all businesses
and operations of the Remainco Group other than the Spinco Business, including the Global Lottery business segment of Remainco, which
as of December 31, 2023 was described in Remainco’s Form 20-F to include (a) the design, development, manufacturing,
sale, leasing, operating, delivery, installation and marketing of lottery (including iLottery) games and products (both physical games
and products (including draw-based games (including Keno) and instant ticket games) and digital games and products (including eInstants,
eDraw and iKeno games)), solutions and services by the Remainco Group, (b) consulting services provided by the Remainco Group to
Persons with respect to lottery products and games, and lottery solutions and services and (c) the design, development and provision
of payment products and services and related functionality to customers of the businesses described in clauses (a) and (b).
“Remainco
Retained Intellectual Property and Software” means the Intellectual Property and Software that is not Spinco Intellectual Property
and is not Spinco Software, including the Intellectual Property set forth on Schedule 1.1(w).
“Remainco
Retained Liabilities” means the following Liabilities of the members of the Remainco Group, irrespective of whether the same
shall arise prior to, on or following the Equity Sale Closing Time:
(i) all
Liabilities of the Remainco Group to the extent such Liabilities are not Spinco Liabilities, or arise out of the ownership, operation,
use or conduct of the Remainco Retained Assets or Remainco Retained Business following the Equity Sale Closing Time;
(ii) any
Indebtedness of the members of the Remainco Group that is outstanding immediately prior to the Equity Sale Closing Time, including Indebtedness
between any member of the Remainco Group, on the one hand, and any member of the Spinco Group, on the other hand (other than (A) the
New Debt, (B) Spinco Indebtedness to the extent included in the calculation of the Spinco Adjustment Amount, (C) Indebtedness
or Liabilities of any member of the Spinco Group that is not considered Spinco Indebtedness because of clauses (i) through
(viii) of the definition of Spinco Indebtedness and (D) Indebtedness solely between or among any members of the Spinco
Group);
(iii) (A) all
out-of-pocket costs, fees and expenses of the members of the Remainco Group incurred prior to the Equity Sale Closing Time in connection
with the negotiation, preparation and execution of the Transaction Documents and the consummation of the Contemplated Transactions or
relating to exploring, discussing or negotiating the sale or separation of the Spinco Business or any other portion of the Remainco Retained
Business, including all financial advisors’ fees, accountants’ fees, brokers’ fees, attorneys’ fees, investment
banker fees and all other fees and expenses of professional service firms, service providers, agents and representatives that have not
been paid as of the Equity Sale Closing Time and are payable by any member of the Spinco Group (except, in each case, to the extent expressly
provided for in the Transaction Documents) and it being understood that (I) Remainco shall not be responsible for any consent, settlement
or similar fees or amounts that Spinco or any of its Affiliates pays to obtain any Consents or Governmental Approvals in connection with
the Transfer of any Assets to members of the Spinco Group or the Assumption of any Liabilities by any members of the Spinco Group) and
(II) nothing set forth in this subsection (iii)(A) is intended to modify the allocation of risk between the members of the
Remainco Group, on the one hand, and Buyer on the other hand, contemplated by the Transaction Documents (B) except for Liabilities
under any Contracts entered into in connection with the Financing, any Liabilities under any engagement letters or Contracts entered
into by any member of the Remainco Group with any financial advisors prior to the Equity Sale Closing Time in connection with the negotiation,
preparation and execution of the Transaction Documents or relating to exploring, discussing or negotiating the sale or separation of
the Spinco Business, (C) any change of control, exit, success, sale, retention, transaction or similar bonuses, payments, benefits
or compensatory amounts pursuant to any Contract entered into prior to the Closing with any member of the Remainco Group, in each case
payable to Spinco Employees solely as a result of the consummation of the Closing and the Merger (whether payable in connection with,
at or following the Closing and the Merger), including as set forth on Schedule 1.1(iii)(C), and (D) other than as set forth
on Schedule 1.1(iii)(D), any Liabilities relating to or arising out of the Prior Financing or the Prior Commitment Letter or the
termination thereof (the “Prior Commitment Letter Fees”); provided that, any Liabilities (including fees, costs
and expenses) relating to the Financing shall not be Remainco Retained Liabilities.
(iv) all
Liabilities of the members of the Remainco Group to the extent arising under or related to the ownership, operation or use by any member
of the Remainco Group of any Remainco Retained Asset or the Remainco Retained Business, whether at, before or after the Equity Sale Closing
Time;
(v) all
Liabilities to the extent relating to, arising out of or resulting from the ownership, conduct or operation of any business (other than
the Spinco Business or any Spinco Former Business) of the members of the Remainco Group (including any Former Business of the Remainco
Group that is not a Spinco Former Business), whether prior to, at or after the Equity Sale Closing Time (including any Liability relating
to, arising out of or resulting from any act or failure to act by any director, officer, employee (other than any Liabilities relating
to claims brought by or on behalf of any Remainco Employee or Former Remainco Employee, in each case to the extent allocated to a Party
under Section 1.2 of the Employee Matters Agreement), agent, distributor or representative (whether or not such act or failure to
act is or was within such Person’s authority) of the Spinco Group);
(vi) any
Liabilities for any Actions brought under applicable federal or state securities Laws relating to, arising out of or resulting from information
regarding Remainco, the Spinco Group and the Spinco Business in the Proxy Statement with respect to any information relating to Remainco,
the Spinco Group and the Spinco Business that was provided prior to the Closing by any distributor or Representative of the Remainco
Group or the Spinco Group;
(vii) all
Liabilities to the extent relating to, arising out of or resulting from the allocated portion of any Shared Contract in accordance with
Section 1.2 or any other Contract that is assigned to a member of the Remainco Group;
(viii) all
Liabilities under any Contracts between Delta, on one hand, and any member of the Remainco Group, on the other hand, other than the Support
Agreement; and
(ix) all
other Liabilities of the members of the Remainco Group that are expressly indicated by any of the Transaction Documents as Liabilities
to be retained or Assumed by Remainco or any other member of the Remainco Group.
“Representatives”
means of a Person means such Person’s Affiliates and the directors, officers, employees, advisors, agents, equityholders consultants,
independent accountants, investment bankers, counsel or other representatives of such Person and of such Person’s Affiliates.
“Required Third
Party Consents” shall have the meaning set forth in Section 1.2(a).
“Restricted
Period” shall have the meaning set forth in Section 1.12(a)(i).
“Rhode
Island VLT JV Interest Management Contract” means the Rhode Island VLT JV Interest Management Contract to be entered into by
and between US Lottery Opco and US Gaming Opco, substantially in the form attached hereto as Exhibit I.
“Rhode
Island VLT System Subcontract” means the Subcontract to be entered into between US Lottery Opco and US Gaming Opco, substantially
in the form attached hereto as Exhibit J.
“SC&S Separation”
shall have the meaning set forth in Section 1.15(a)(v).
“SEC”
means the United States Securities and Exchange Commission.
“Securities Act”
shall have the meaning set forth in the Merger Agreement.
“Self-Insurance”
means any portion of risk that is not financially transferred to a Third Party unaffiliated insurance company, and shall include deductibles,
self-insured retentions, and captive insurance.
“Separation”
means the allocation and Transfer of Assets and Assumption of Liabilities, including by means of (a) the Separation Documents and
pursuant to the Separation Plan, resulting in (i) the members of the Spinco Group owning and operating the Spinco Business (through
their ownership, acceptance and Assumption of the Spinco Assets and the Spinco Liabilities), and (ii) the members of the Remainco
Group continuing to own and operate the Remainco Retained Business (through their ownership, acceptance and Assumption of the Remainco
Retained Assets and the Remainco Retained Liabilities), in each case, in accordance with the terms of this Agreement, and (b) the
Spinco Contribution. For the avoidance of doubt, “Separation” shall refer solely to the completion of the actions set forth
on Sections 1.1(b) and 1.1(c) of this Agreement, together with consummation of the Transfer of Assets and Assumption of Liabilities
contemplated by the Employee Matters Agreement, the Real Estate Matters Agreement and the Intellectual Property License Agreement in
accordance with the terms thereof, and for the avoidance of doubt, does not include the completion of the actions set forth on the Stand-Up
Plan.
“Separation
Documents” means the Contracts, instruments and other documents entered into to effect the Separation.
“Separation
Plan” means the Separation Plan set forth on Exhibit K, as amended, supplemented or modified from time to time.
Notwithstanding anything to the contrary contained in any of the Transaction Documents, following the date hereof but prior to the Closing,
Remainco shall be permitted to amend the Separation Plan (and the applicable terms of this Agreement and the Separation Documents) with
the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed; provided that such consent
shall not be required for any amendment to the Separation Plan that would not adversely affect the members of the Buyer Group, taken
as a whole, in any material manner. Remainco shall be permitted to update any Schedules or Exhibits to this Agreement or the Merger Agreement
to give effect to any such amendments.
“Shared
Contract” means those Contracts (or categories of Contracts, as applicable) identified on Schedule 1.1(h).
“Shared
Contracts Alternative Arrangements” shall have the meaning set forth in Section 1.2(b)(ii).
“Software”
shall have the meaning set forth in the Merger Agreement.
“Software
License and Support Agreement in favor of Remainco Group” means Technology License and Support Agreement (Spinco to Remainco)
to be entered into by and between US Lottery Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit L.
“Software
License and Support Agreement in favor of the Spinco Group” means the Technology License and Support Agreement (Remainco to
Spinco) to be entered into by and between US Lottery Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit M.
“Sony
License Agreement” means that certain Exclusive License Agreement #305517, dated June 1, 2023, between Califon Productions, Inc.
and US Gaming Opco.
“Spinco”
shall have the meaning set forth in the Preamble.
“Spinco
Accounts” shall have the meaning set forth in Section 1.5(a).
“Spinco
Adjustment Amount” means the amount (which may be a positive or negative number) equal to the sum of:
(i) the
Spinco Closing Net Working Capital;
(ii) minus
the Spinco Target Net Working Capital;
(iii) plus
the Spinco Closing Cash Amount;
(iv) minus
Spinco Minimum Cash Amount;
(v) minus
the amount of the Spinco Closing Indebtedness Amount.
“Spinco Adjustment
Consultation Period” shall have the meaning set forth in Section 2.3(e).
“Spinco
Adjustment Dispute Notice” shall have the meaning set forth in Section 2.3(d).
“Spinco
Adjustment Report” shall have the meaning set forth in Section 2.3(g).
“Spinco
Adjustment Review Period” shall have the meaning set forth in Section 2.3(c).
“Spinco
Asset Transferee” means any Entity that is or shall be a member of the Spinco Group to which Spinco Assets shall be or have
been transferred, directly or indirectly, at or prior to the Equity Sale Closing Time by an Asset Transferor to consummate Contemplated
Transactions.
“Spinco
Assets” means all right, title and interest of the members of the Remainco Group to and under the following Assets of the Asset
Transferors as of immediately prior to the Equity Sale Closing Time, excluding, in each case, the Remainco Retained Assets:
(i) (A) any
Contract to which any member of the Remainco Group is a party that is primarily related to or primarily used in the Spinco Business or
set forth on Schedule 1.1(i) (collectively, the “Spinco Contracts”), including the real estate leases
and subleases set forth on Schedule 1.1(i) (the “Spinco Leases”), the Spinco Assigned Properties,
the interest of the applicable member of the Spinco Group in any properties that are partially subleased or sublicensed by a member of
the Spinco Group from a member of the Remainco Group pursuant to Article V of the Real Estate Matters Agreement, including the Spinco
Properties, and (B) the portion of any Shared Contracts assigned to Spinco pursuant to Section 1.2, subject to the rights
of Remainco and the obligations of the Parties set forth in Section 1.2 and, in each case, any rights or claims arising thereunder;
(ii) (A) the
offices, manufacturing facilities, warehouse facilities and repair facilities and (B) the leases, subleases, licenses or other Contracts
governing the leased real property allocated to a member of the Spinco Group pursuant to the Real Estate Matters Agreement, in each case,
subject to the terms and conditions of the Real Estate Matters Agreement;
(iii) all
Permits held by any member of the Remainco Group and primarily related to or primarily used in the Spinco Business, including all Environmental
Permits (the “Spinco Permits”);
(iv) all
current assets reflected as current assets in the Spinco Closing Net Working Capital;
(v) any
prepaid expenses, credits, deposits and advance payments, in each case, to the extent primarily related to or primarily used in the Spinco
Business;
(vi) all
Spinco Owned Intellectual Property;
(vii) all
Software primarily related to or primarily used in the Spinco Business, including that which is set forth on Schedule 1.1(j) (the
“Spinco Owned Software”);
(viii) all
Technology used primarily in the Spinco Business, including that which is set forth on Schedule 1.1(k) (the “Spinco
Owned Technology”);
(ix) all
tangible and personal property, including inventory, equipment, furniture, tools, laptop computers and mobile phones that is owned by
any member of the Remainco Group and primarily related to or primarily used in the Spinco Business;
(x) (A) all
personnel and employment records of the Spinco Employees and Former Spinco Employee, subject to applicable Laws; and (B) all other
books and records, whether in hard copy or computer format, including marketing and advertising materials (including marketing strategies,
ongoing and past advertising and marketing campaigns, ongoing and past market research) and customer correspondence, that are owned by
any member of the Remainco Group and primarily related to or primarily used in the Spinco Business, subject to the terms of Section 4.4;
(xi) all
IT Assets primarily used in the Spinco Business, all IT Assets allocated to the Spinco Business pursuant to any plan developed by Remainco
and Spinco for the Systems Separation in accordance with Section 1.15, including the IT Assets listed (or the general categories
of which are listed) on Schedule 1.1(x) (collectively, “Spinco IT Assets”);
(xii) all
rights, interests, causes of action, choses in action, rights to proceeds, judgments, recoveries and all similar rights of or owned by
any member of the Remainco Group against Third Parties primarily related to any Spinco Asset or the Spinco Business, including all rights
and benefits as an insured, interests, causes of action, choses in action, and rights to Insurance Proceeds under the Remainco Insurance
Policies primarily related to any Spinco Asset or the Spinco Business to the extent permitted under the applicable Remainco Insurance
Policy, and with respect to Insurance Proceeds to the extent neither Spinco nor Merger Partner has recovered the amounts related to the
Insurance Proceeds through the Spinco Adjustment Amount (it being understood that the Remainco Group has certain contractual rights and
limitations as set forth in Section 4.10), provided that nothing in this clause xii shall be deemed to constitute
an assignment of any or all of such Remainco Insurance Policies;
(xiii) (A) all
assets owned by or held for use by an Asset Transferor and primarily used in the Spinco Business; and (B) all goodwill and other
intangibles to the extent related to the Spinco Business and Spinco Owned Intellectual Property;
(xiv) all
Spinco Restricted Cash primarily related to the Spinco Business;
(xv) all
Equity Interests of any Entity listed in Schedule 1.1(n) (provided that such Schedule may be updated in accordance
with the procedures to amend the Separation Plan as set forth in this Agreement) or otherwise contemplated to be part of Spinco Group
pursuant to the Separation Plan;
(xvi) the
Spinco Closing Cash Amount (to the extent taken into account in the determination of the Spinco Closing Cash Amount in the Spinco Final
Adjustment Amount pursuant to Section 2.3(j));
(xvii) all
other Assets that are expressly provided by any of the Transaction Documents as Assets which have been or are to be transferred to or
retained by any member of the Spinco Group, including all goodwill and other intangibles in connection with such Assets and the Spinco
Business;
(xviii) all
Information primarily related to or primarily used in the Spinco Business;
(xix)
Prepaid Royalty Amounts;
(xx) all
assets set forth on Schedule 1.1(y); and
(xxi) all
other Assets (other than any Assets that are listed in clauses (i) through (xx) of this definition of “Spinco Assets”,
each of which are subject to the qualifications in this definition of “Spinco Assets”) that are held by any member
of the Remainco Group (including any member of the Spinco Group) immediately prior to the Equity Sale Closing Time that primarily relate
to or are primarily used in Spinco Business as conducted immediately prior to the Equity Sale Closing Time.
“Spinco Assigned
Properties” shall have the meaning set forth in the Real Estate Matters Agreement.
“Spinco Backstop
Credit Support Instrument” shall have the meaning set forth in in Section 1.10(c).
“Spinco
Business” means, as conducted and existed at any time prior to or as of the Equity Sale Closing Time, (a) the Global Gaming
business of the Remainco Group, which entails (i) the design, development, assembly and provision of cabinets, games, systems and
software in regulated land-based gaming markets (including amusement with prize (AWP), interactive video terminal (IVT) and video lottery
terminal (VLT) cabinets, games, systems and software) by the Remainco Group, (ii) the provision of game content set forth in the
foregoing clause (i) for the creation and distribution by the Remainco Group of social casino content to social casino operators
and (iii) the design, development and provision of payment products and services and related functionality to customers of the businesses
described in clauses (i) and (ii), which Global Gaming business is currently operated through Remainco’s Global Gaming segment
and as of December 31, 2023 was as described in Remainco’s Form 20-F and (b) the PlayDigital business of Remainco,
which entails (i) the design and distribution of products by the Remainco Group in certain digital gaming markets under the Remainco
Group’s PlayCasino brand, (ii) the design, assembly and distribution of sports betting products and the provision of sports
betting technology and management services by the Remainco Group in certain sports betting markets under Remainco Group’s PlaySports
brands, and (iii) the provision of market-tested proprietary digital content, advanced game aggregation capabilities, scalable promotional
tools, analytics and creative talent by the Remainco Group under the Remainco Group’s iSoftBet brands, which PlayDigital business
is currently operated through the Remainco Group’s PlayDigital segment and as of December 31, 2023 was as described in Remainco’s
Form 20-F. Any of the foregoing notwithstanding, the Spinco Business does not include the Remainco Retained Business.
“Spinco
Closing Cash Amount” means, as of immediately prior to the Equity Sale Closing Time, an amount, calculated on a combined basis
in accordance with the Spinco Transaction Accounting Principles and after giving effect to the Separation, equal to the sum of (a) all
cash, cash equivalents, marketable securities, checks, drafts and deposits (net of any uncleared checks and drafts written or issued)
received by Spinco, (b) all cash, cash equivalents, marketable securities, checks, drafts and deposits included within the Spinco
Assets and (c) the Prepaid Royalty Adjustment; provided that the effects of the Contemplated Transactions (other than the
contribution to, distribution to or other transfer of cash to the members of the Spinco Group pursuant to the Separation) shall be disregarded
for purposes of calculating the Spinco Closing Cash Amount; provided, further, that the Spinco Closing Cash Amount shall
not include any proceeds of the New Debt or Spinco Restricted Cash.
“Spinco Closing
Indebtedness Amount” means, as of immediately prior to the Equity Sale Closing Time, the amount of the Spinco Indebtedness.
“Spinco
Closing Net Working Capital” means, as of immediately prior to the Equity Sale Closing Time, without duplication,
an amount equal to the difference between (a) the sum of (i) the combined current assets of the Spinco Group and (ii) the
combined current assets included in the Spinco Business and (b) the sum of (i) the combined current liabilities of the Spinco
Group and (ii) the combined current liabilities included in the Spinco Business, in each case, calculated in accordance with the
Spinco Transaction Accounting Principles and after giving effect to the Separation, excluding any Remainco Retained Assets and any Remainco
Retained Liabilities and subject to such adjustments as are set forth in Schedule 1.1(l). For illustrative purposes only, Schedule 1.1(l) includes
an example calculation of the Spinco Closing Net Working Capital as though the Equity Sale Closing Time occurred on the Spinco Reference
Balance Sheet Date. The Spinco Closing Cash Amount, the Spinco Closing Indebtedness Amount and any restricted cash referred to in clauses
(c) and (d) of the definition of Spinco Restricted Cash shall not be included in the Spinco Closing Net Working Capital. To
the extent the adjustments included in the example calculation of the Spinco Closing Net Working Capital in Schedule 1.1(l) conflicts
with the Spinco Transaction Accounting Principles, the Spinco Transaction Accounting Principles shall prevail.
“Spinco
Contract” shall have the meaning set forth in the definition of “Spinco Assets”.
“Spinco Contribution”
means the contribution of all of the Equity Interests of Gaming Holdco by Remainco to Spinco.
“Spinco
Counsel” shall have the meaning set forth in Section 4.7(a).
“Spinco Credit Support
Account” shall have the meaning set forth in in Section 1.10(c).
“Spinco
Employees” shall have the meaning set forth in the Employee Matters Agreement.
“Spinco
Estimated Adjustment Amount” shall have the meaning set forth in Section 2.3(a).
“Spinco
Estimated Closing Cash Amount” shall have the meaning set forth in Section 2.3(a).
“Spinco
Estimated Closing Indebtedness Amount” shall have the meaning set forth in Section 2.3(a).
“Spinco
Estimated Closing Net Working Capital” shall have the meaning set forth in Section 2.3(a).
“Spinco
Estimated Closing Statement” shall have the meaning set forth in Section 2.3(a).
“Spinco
Excess Amount” shall have the meaning set forth in Section 2.3(j)(i).
“Spinco
Final Adjustment Amount” shall have the meaning set forth in Section 2.3(i).
“Spinco
Final Closing Cash Amount” shall have the meaning set forth in Section 2.3(i).
“Spinco
Final Closing Indebtedness Amount” shall have the meaning set forth in Section 2.3(i).
“Spinco
Final Closing Net Working Capital” shall have the meaning set forth in Section 2.3(i).
“Spinco Former Businesses”
means (a) any Former Business that, at the time of sale, conveyance, assignment, transfer, disposition, divestiture (in whole or
in part) or discontinuation, abandonment, completion or termination of the operations, activities or production thereof, was operated
or managed by, or associated with, the Spinco Business as then conducted; and (b) any predecessor business of the Spinco Group (or
Remainco on behalf of the Spinco Group).
“Spinco Former Employee”
shall have the meaning set forth in the Employee Matters Agreement.
“Spinco
Group” means (a) with respect to any period prior to the Equity Sale Closing Time, Spinco and each of its Subsidiaries
(but after giving effect to the Separation) and (b) with respect to any period following the Equity Sale Closing Time, Spinco, each
of its Subsidiaries and each other Entity that becomes a Subsidiary of Spinco.
“Spinco
Indebtedness” means, as of immediately prior to the Closing, the sum of (a) the Indebtedness of the members of the Spinco
Group and (b) the Indebtedness included in the Spinco Liabilities as calculated in accordance with the Spinco Transaction Accounting
Principles excluding any Remainco Retained Liabilities and after giving effect to the Separation and the release of any guarantees occurring
at or substantially simultaneously with the Closing; provided that the Spinco Indebtedness shall not include any of the Indebtedness
relating to the Financing. Notwithstanding anything to the contrary contained in this Agreement, the term “Spinco Indebtedness”
shall not include (i) trade payables or other amounts reflected in the Spinco Estimated Closing Net Working Capital or the Spinco
Final Closing Net Working Capital, (ii) endorsements of negotiable instruments for collection in the ordinary course of business,
(iii) obligations with respect to the unpaid portion of any royalty payments arising out of the Sony License Agreement, (iv) obligations
relating to any jackpot Liabilities or obligations relating to Credit Support Instruments (including those Liabilities relating to or
arising from Existing Spinco Credit Support Instruments), to the extent the related Credit Support Instruments are undrawn, (v) obligations
related to any lease that is accounted for as an operating lease in the Spinco Business Financial Statements, (vi) obligations that
are guaranteed, endorsed or assumed by, or subject to a contingent obligation of, any of the members of the Remainco Group (to the extent
related to a Remainco Retained Liability), (vii) any other obligations which the Spinco Transaction Accounting Principles provide
shall not constitute Indebtedness, in each case, calculated in accordance with the Spinco Transaction Accounting Principles and in the
same format set forth on Schedule 1.1(l) or (viii) any Liabilities relating to the Financing, including the New Debt.
“Spinco Insurance
Policies” shall have the meaning set forth in Section 4.10(b).
“Spinco
Initial Post-Closing Statement” shall have the meaning set forth in Section 2.3(b).
“Spinco
IT Assets” shall have the meaning set forth in the definition of “Spinco Assets”.
“Spinco
Leases” shall have the meaning set forth in the definition of “Spinco Assets”.
“Spinco
Liabilities” means all of the following Liabilities of the members of the Spinco Group, in each case, excluding the Remainco
Retained Liabilities irrespective of whether the same shall arise prior to, on or following the Equity Sale Closing Time:
(i) all
Liabilities of the members of the Spinco Group to the extent such Liabilities arise out of the ownership, operation, use or conduct of
the Spinco Assets or the Spinco Business following the Equity Sale Closing Time;
(ii) any
and all Liabilities to the extent relating to, arising out of or resulting from the ownership, operation, use or conduct of the Spinco
Business or the Spinco Assets or any Spinco Former Business, whether prior to, at or after the Equity Sale Closing Time (including any
Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee (other than any
Liabilities relating to claims brought by or on behalf of any Spinco Employee or Former Spinco Employee, in each case to the extent allocated
to a Party under Section 1.2 of the Employee Matters Agreement), agent, distributor or representative (whether or not such act or
failure to act is or was within such Person’s authority) of the Spinco Group) or listed on Schedule 1.1(u);
(iii) all
Liabilities to the extent relating to, arising out of or resulting from the Spinco Contracts, whether arising prior to, on or after the
Equity Sale Closing Time or the actions or omissions of Spinco or any of its Affiliates;
(iv) all
Liabilities to the extent reflected on the Spinco Reference Balance Sheet;
(v) all
Liabilities to the extent arising out of or resulting from any claim by a Third Party to the extent relating to the ownership, operation
or of the Spinco Business, the Spinco Assets or the other Spinco Liabilities;
(vi) all
Liabilities to the extent relating to, arising out of or resulting from the lease, use or occupancy of the Real Property, in each case,
whether arising prior to, on or after the Equity Sale Closing Time;
(vii) all
Liabilities to the extent relating to, arising out of or resulting from in any way to the environment or human health and safety, or
arising under Environmental Laws in connection with the ownership or operation of the Spinco Business (including the Spinco Assets),
whether arising prior to, on or after the Equity Sale Closing Time, including those related to (A) the Release or threatened Release
of a Hazardous Material at, on, under or from any real property (including any off-site migration of Hazardous Materials), (B) any
non-compliance with or violation of any Environmental Law, or (C) any disposal, transportation or arrangement for transportation
or disposal prior to the Equity Sale Closing Time of any Hazardous Material sent to any Third Party property for treatment, storage,
recycling, incineration or disposal;
(viii) all
Liabilities to the extent relating to the Spinco Business arising out of or resulting from litigation, arbitration, administrative, workers’
compensation or other Actions, pending or threatened against the Spinco Business, any Former Spinco Business or the Spinco Assets and
all performance obligations under any non-financial settlement obligation to the extent relating to the Spinco Business or the Spinco
Assets;
(ix) (A) Indebtedness
solely between or among members of the Spinco Group, (B) the Spinco Indebtedness included in the calculation of the Spinco Adjustment
Amount and (C) Liabilities relating to the Financing, including the New Debt; provided that, any Liabilities (including fees,
costs and expenses) relating to or arising out of the Prior Financing or the Prior Commitment Letter or the termination thereof shall
not be Spinco Liabilities, other than as set forth on Schedule 1.1(iii)(D).
(x) all
Liabilities to the extent relating to, arising out of or resulting from the allocated portion of any Shared Contract in accordance with
Section 1.2 or any other Contract that is assigned to a member of the Spinco Group; and
(xi) all
other Liabilities of the members of the Spinco Group that are expressly contemplated by any of the Transaction Documents as Liabilities
to be retained or Assumed by any member of the Spinco Group.
“Spinco Minimum
Cash Amount” means Seventy-five Million Dollars ($75,000,000).
“Spinco Owned Intellectual
Property” means the Intellectual Property owned by an Asset Transferor and conveyed and transferred to a member of the Spinco
Group as a Spinco Asset pursuant to the Separation by virtue of such Intellectual Property being (a) primarily used in the Spinco
Business or (b) identified on Schedule 1.1(m).
“Spinco
Owned Software” shall have the meaning set forth in the definition of “Spinco Assets”.
“Spinco
Owned Technology” shall have the meaning set forth in the definition of “Spinco Assets”.
“Spinco
Permits” shall have the meaning set forth in the definition of “Spinco Assets”.
“Spinco
Post-Closing Claims” shall have the meaning set forth in Section 4.10(c).
“Spinco
Properties” shall have the meaning set forth in the Real Estate Matters Agreement.
“Spinco
Reference Balance Sheet” shall have the meaning set forth in the Merger Agreement.
“Spinco
Reference Balance Sheet Date” shall have the meaning set forth in the Merger Agreement.
“Spinco
Reference Closing Statement” means the sample calculation of the Spinco Adjustment Amount, and each component
thereof, including the Spinco Closing Net Working Capital, the Spinco Closing Cash Amount and the Spinco Closing Indebtedness Amount,
in each case, as of the close of business on the Spinco Reference Balance Sheet Date, which is attached as Schedule 1.1(l) for
illustrative purposes only.
“Spinco Released
Liabilities” shall have the meaning set forth in Section 3.1(a)(ii).
“Spinco Released
Parties” shall have the meaning set forth in Section 3.1(a)(i).
“Spinco Restricted
Business” means the design, development, assembly, distribution and provision to the types of customers of the Spinco Business
(e.g., casinos, online casinos (real money and social) and, with respect to video lottery, Governmental Authorities) of the types of
goods and services provided by the Spinco Business.
“Spinco
Restricted Cash” means cash and cash equivalents of the members of the Spinco Group that constitute “restricted cash”
under GAAP or that otherwise cannot be freely used without violation of Law or breach of Contract, including: (a) any cash held
by any member of the Spinco Group to secure or otherwise provide payment for any outstanding letters of credit obligations of any member
of the Spinco Group; (b) security deposits of the members of the Spinco Group in respect of obligations of members of the Spinco
Group; (c) jackpot restricted cash and (d) cash set aside to fund deferred purchase price and a contingent earnout related
to that certain Share Purchase Agreement dated as of April 8, 2022, by and among Remainco, GStar Tech Limited, Darom Holdings
Tech Limited, Jeffrey Marc Elalouf, Nir Sarli Elbaz and Jacques David Elalouf.
“Spinco
Shortfall Amount” shall have the meaning set forth in Section 2.3(j)(i).
“Spinco
Target Net Working Capital” means Four Hundred Sixty Million Dollars ($460,000,000).
“Spinco
Transaction Accounting Principles” means the accounting principles, policies, procedures and methodologies, categorizations,
asset recognition bases, definitions, practices and techniques set forth on Schedule 1.1(l).
“Spinco
Units” shall have the meaning set forth in the Merger Agreement.
“Stand-Up”
shall have the meaning set forth in Section 1.15(a).
“Stand-Up Plan”
shall have the meaning set forth in Section 1.15(c).
“Subsidiary”
of any Person means any corporation, general or limited partnership, joint venture, limited liability company, limited liability partnership
or other Person that is a legal entity, trust or estate of which (or in which) at the time of determination (a) the issued and outstanding
capital stock or other equity interests having ordinary voting power to elect a majority of the board of directors (or a majority of
another body performing similar functions) of such corporation or other Person (irrespective of whether at the time capital stock or
other equity interests of any other class or classes of such corporation or other Person shall or might have voting power upon the occurrence
of any contingency), (b) more than fifty percent (50%) of the interest in the capital or profits of such partnership, joint venture
or limited liability company or (c) more than fifty percent (50%) of the beneficial interest in such trust or estate, is directly
or indirectly owned by such Person; provided that (i) each member of the Spinco Group shall be a Subsidiary of Remainco (and
not of Buyer) until the Equity Sale Closing Time and a Subsidiary of Buyer (and not of Remainco) from and after the Equity Sale Closing
Time and (ii) neither Remainco nor any of the other members of the Remainco Group shall be considered a Subsidiary of Delta.
“Systems
Separation” shall have the meaning set forth in Section 1.15(b)(i).
“Tax”
or “Taxes” shall have the meaning set forth in the Tax Matters Agreement.
“Tax
Attributes” shall have the meaning set forth in the Tax Matters Agreement.
“Tax Benefit”
shall have the meaning set forth in the Tax Matters Agreement.
“Tax Item”
shall have the meaning set forth in the Tax Matters Agreement.
“Tax
Matters Agreement” means the Tax Matters Agreement by and among Remainco, Spinco and Merger Partner, dated as of the date hereof,
and attached hereto as Exhibit N.
“Tax
Return” shall have the meaning set forth in the Tax Matters Agreement.
“Technology”
shall have the meaning set forth in the Merger Agreement.
“Third
Party” shall have the meaning set forth in the Merger Agreement.
“Third-Party
Claim” shall have the meaning set forth in Section 3.4(a).
“Third-Party
Rights” shall have the meaning set forth in Section 1.4(b).
“Trademarks”
shall have the meaning set forth in the definition of “Intellectual Property”.
“Transaction
Documents” means this Agreement, the Merger Agreement, the Employee Matters Agreement, the Tax Matters Agreement, the Real
Estate Matters Agreement, the Intellectual Property License Agreement, any and all Separation Documents, the Ghostbusters Sublicensing
Agreement, the Intercompany Account Termination Agreement, the Jumanji Sublicensing Agreement, the Rhode Island VLT JV Interest Management
Contract, the Rhode Island VLT System Subcontract, the Software License and Support Agreement in favor of the Remainco Group, the Software
License and Support Agreement in favor of the Spinco Group, the Transition Services Agreement, the Vanna White Sublicensing Agreement,
the Wheel of Fortune Sublicensing Agreement, the Whitney Houston Sublicensing Agreement, the Support Agreement, or any other agreements
to be entered into by and between any member of the Remainco Group, any member of the Spinco Group, any member of the Merger Partner
Group or any member of the Buyer Group at or prior to the Closing in connection with effecting the Separation, the Equity Sale or the
Merger.
“Transfer”
shall have the meaning set forth in Section 1.1(b); and the term “Transferred” shall have its correlative.
“Transition Coordination
Group” shall have the meaning set forth in Section 1.15(d).
“Transition
Period” shall have the meaning set forth in Section 4.11(a).
“Transition Team
Members” shall have the meaning set forth in Section 1.15(d).
“Transition
Services Agreement” means the Transition Services Agreement by and between Spinco and US Lottery Opco, in the form attached
hereto as Exhibit O.
“Treasury
Regulations” means the regulations promulgated under the Code.
“Upfront
Cash Award Payment” shall have the meaning set forth in Section 1.19.
“US
Gaming Opco” means IGT, a Nevada corporation.
“US
Lottery Opco” means IGT Global Solutions Corporation, a Delaware corporation.
“Vanna
White Sublicensing Agreement” means the Vanna White Sublicensing Agreement to be entered into by and between US Lottery Opco
and US Gaming Opco, in substantially the form attached hereto as Exhibit P.
“Wheel
of Fortune Sublicensing Agreement” means the Wheel of Fortune Sublicensing Agreement to be entered into by and between US Lottery
Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit Q.
“Whitney
Houston Sublicensing Agreement” means the Whitney Houston Sublicensing Agreement to be entered into by and between US Lottery
Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit R.
Exhibit 10.2
EMPLOYEE MATTERS AGREEMENT
by and among
INTERNATIONAL GAME TECHNOLOGY PLC,
IGNITE ROTATE LLC,
EVERI HOLDINGS INC.
and
VOYAGER PARENT, LLC
Dated as of July 26, 2024
TABLE OF CONTENTS
|
|
PAGE |
|
|
|
ARTICLE I ASSIGNMENT OF SPINCO EMPLOYEES AND EMPLOYEE LIABILITIES |
2 |
1.1. |
Transfer of Spinco Employees |
2 |
1.2. |
Employee and Benefit Plan Assets and Liabilities; Severance |
4 |
|
|
|
ARTICLE II PAY AND BENEFITS |
6 |
2.1. |
In General |
6 |
2.2. |
Severance |
7 |
2.3. |
Participation in Remainco and Spinco Benefit Arrangements |
7 |
2.4. |
Separation Planning and Day-One Readiness |
7 |
2.5. |
Length of Service Crediting |
8 |
2.6. |
Replacement of Remainco Benefit Arrangement or Spinco Benefit Arrangement with Buyer Future Benefit Arrangement |
8 |
2.7. |
Paid Time Off |
9 |
|
|
|
ARTICLE III CASH AND EQUITY INCENTIVE COMPENSATION PLANS |
9 |
3.1. |
Cash Incentives |
9 |
3.2. |
Remainco Equity Awards |
9 |
|
|
|
ARTICLE IV U.S. DEFINED CONTRIBUTION PLANS |
12 |
4.1. |
U.S. Defined Contribution Plans |
12 |
|
|
|
ARTICLE V FLEXIBLE SPENDING ACCOUNTS |
12 |
5.1. |
Cafeteria Plan |
12 |
5.2. |
Coordination Regarding FSA Account Balances |
13 |
|
|
|
ARTICLE VI COOPERATION; INDEMNIFICATION |
13 |
6.1. |
Cooperation |
13 |
6.2. |
Allocation of Liabilities under Separation Agreement |
13 |
6.3. |
Indemnities |
14 |
|
|
|
ARTICLE VII MISCELLANEOUS |
14 |
7.1. |
Entire Agreement; Counterparts; Exchanges by Facsimile |
14 |
7.2. |
Transaction Documents; Precedence of Agreements |
14 |
7.3. |
Survival |
14 |
7.4. |
Expenses |
14 |
7.5. |
Notices |
15 |
7.6. |
Waiver |
15 |
7.7. |
Assignment |
15 |
7.8. |
Termination |
15 |
7.9. |
Amendment |
15 |
7.10. |
Group Members |
15 |
7.11. |
No Third Party Rights |
15 |
7.12. |
Exhibits and Schedules |
15 |
7.13. |
Governing Law |
15 |
7.14. |
Submission to Jurisdiction |
15 |
7.15. |
Waiver of Jury Trial |
15 |
7.16. |
Specific Performance |
15 |
7.17. |
Severability |
15 |
7.18. |
Construction |
16 |
Exhibit A |
- |
Certain Definitions |
A-1 |
EMPLOYEE MATTERS AGREEMENT
This EMPLOYEE MATTERS AGREEMENT
(this “Agreement”) is made and entered into as of July 26, 2024, by and among (a) INTERNATIONAL GAME TECHNOLOGY
PLC, a public limited company incorporated under the laws of England and Wales (“Remainco”); (b) IGNITE
ROTATE LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of Remainco (“Spinco,” and
together with Remainco, the “Companies,” and each a “Company”); (c) EVERI HOLDINGS INC.,
a Delaware corporation (“Merger Partner”) and (d) VOYAGER PARENT, LLC, a Delaware limited liability company
(“Buyer,” and together with Remainco, Spinco and Merger Partner, the “Parties,” and each a “Party”).
Certain capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
WHEREAS,
Remainco is engaged, directly and indirectly, in the Spinco Business;
Whereas,
on the terms and subject to the conditions set forth in the Separation Agreement, Remainco will effectuate the Separation, including the
Spinco Contribution;
Whereas,
following the Separation, Remainco desires to sell to Buyer, and Buyer desires to purchase from Remainco, all of Remainco’s right,
title and interest in and to the Spinco Units upon the terms and subject to the conditions set forth herein;
WHEREAS,
concurrently with the execution of this Agreement, Remainco, Spinco, Buyer, Voyager Merger Sub, Inc., a Delaware corporation and
a direct wholly owned Subsidiary of Buyer (“Buyer Sub”), and Merger Partner have entered into the Agreement and Plan
of Merger, dated as of the date hereof (as it may be amended, modified or supplemented from time to time, the “Merger Agreement”);
Whereas,
the Parties contemplate that, pursuant to the Merger Agreement, and immediately following the consummation of the sale of the Spinco Units
to Buyer, at the Merger Effective Time, Buyer Sub shall be merged (the “Merger”) with and into Merger Partner, with
Merger Partner surviving the Merger as a wholly owned direct Subsidiary of Buyer; and
Whereas,
the Parties desire to set forth the principal arrangements among them regarding the assets, Liabilities and responsibilities with respect
to certain employment matters and employee compensation and benefit arrangements relating to the Spinco Employees, to make certain covenants
and agreements specified in this Agreement in connection therewith, and to prescribe certain conditions relating thereto.
NOW, THEREFORE, in
consideration of the foregoing, the covenants and agreements set forth below and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
ASSIGNMENT OF SPINCO EMPLOYEES AND EMPLOYEE
LIABILITIES
1.1. Transfer
of Spinco Employees.
(a) Scope
of Employees.
(i) For
purposes of this Agreement, “Spinco Employees” means those employees of any member of the Remainco Group who (A) work
primarily for the Spinco Business as of immediately prior to the Equity Sale Closing Time and whose name or unique identifier and position
is set forth on Schedule 1.1(a)(i)(A) (as updated in accordance with Section 1.1(a)(iii)), or (B) was identified
by Remainco in its good faith discretion in the separation analysis as appropriately allocated to the Spinco Business, and whose name
or unique identifier and position or title is set forth on Schedule 1.1(a)(i)(B)(1) (as updated in accordance with Section 1.1(a)(iii)),
if such individual is still employed by Remainco or any other member of the Remainco Group as of immediately prior to the Equity Sale
Closing Time, including, in each case, any Spinco Employee whose employment has been terminated or suspended but may be subject to reinstatement
pursuant to applicable Law within twelve (12) months of the Closing Date; provided that any individual whose name or unique identifier
and position or title is set forth on Schedule 1.1(a)(i)(B)(2) shall not be considered a Spinco Employee. Schedule 1.1(a)(i)(A) and
Schedule 1.1(a)(i)(B)(1) as attached hereto on the date hereof contain data as of May 31, 2024 collectively are referred
to as the “Spinco Employee Schedule.”
(ii) Remainco
has provided to Buyer the information required to be provided under Section 2.16(i) of the Merger Agreement for each Spinco
Employee. In addition, within sixty (60) days following Buyer’s request to Remainco, Remainco shall provide to Buyer the notice
period and accrued and unused paid-time off for each Non-US Spinco Employee.
(iii) Remainco
will make available to Buyer updated versions of the Spinco Employee Schedule (including to reflect new hires, departures, and other relevant
changes made, in accordance with Section 5.2 of the Merger Agreement) as reasonably requested by Buyer, but in any case, no more
than every ninety (90) days; provided that a final schedule will be provided no earlier than seven (7) Business Days prior
to the Closing Date. In circumstances where Buyer reasonably considers that an employee listed in the Spinco Employee Schedule is not
a Spinco Employee, Buyer may notify Remainco in writing of the reasons for such concern, and Remainco shall as promptly as reasonably
practicable (and no later than ten (10) days) following receipt of such notification determine in good faith whether such employee
is correctly included in the Spinco Employee Schedule, and provide Buyer with a response in writing stating whether or not the employee
will remain on the Spinco Employee Schedule and reasons for such determination.
(b) Transfer
of Employment.
(i) Except
to the extent otherwise provided in this Section 1.1(b), effective no later than immediately before the Equity Sale Closing
Time, Remainco and Spinco shall, or shall cause the other members of their Groups to: (A) cause each Spinco Employee to cease to
be employed by a member of the Remainco Group (other than a member of the Spinco Group) (if applicable) and (x) to be employed by
a member of the Spinco Group, or (y) subject to prior consultation with Buyer, to be employed by a Third Party engaged by a member
of the Spinco Group as an employer of record (each, a “Spinco EOR”), or (z) to be engaged as a consultant by a
member of the Spinco Group, with (z) only applying (a) in the case of a country where there are fewer than ten (10) Spinco
Employees, (unless otherwise requested by Buyer) and where such employment or engagement is permitted by applicable Law (as determined
by reputable local counsel); provided that, with respect to Spinco Employees employed outside of the United States, subject to
applicable Law, such transfer, if any, shall occur prior to or simultaneously with the Equity Sale Closing Time or as soon as commercially
reasonable thereafter; and (B) cause any employee who is not a Spinco Employee but is employed by a member of the Spinco Group to
be employed by a member of the Remainco Group. In furtherance of this Section 1.1(b)(i), Remainco, Spinco, and Buyer (the
“Separation Parties”) shall cooperate reasonably and in good faith to give effect to these covenants, including with
respect to those Spinco Employees who are currently employed outside of the United States by a member of the Remainco Group, and each
Separation Party shall provide promptly to the other Separation Party information reasonably requested by the other Separation Party in
connection with its obligations under this Section 1.1(b)(i). Each Spinco Employee who is employed by a member of the Spinco
Group or who becomes employed by a member of the Spinco Group or a Spinco EOR under this Section 1.1(b)(i) but excluding
any Spinco Employee who is engaged as a consultant under Section 1.1(b)(i)(z) above shall be a “Spinco Transferred
Employee.”
(ii) The
Separation Parties shall use commercially reasonable efforts to ensure that each individual who is an Inactive Employee as of immediately
prior to the Equity Sale Closing Time shall remain or become employed by a member of the Remainco Group (other than a member of the Spinco
Group) no later than immediately prior to the Equity Sale Closing Time; provided that, if such Inactive Employee returns to employment
within twelve (12) months following the Closing Date, then Buyer shall, or shall cause another member of the Buyer Group to, offer employment
to such individual on terms and conditions consistent with this Agreement. For purposes of this Agreement, an Inactive Employee shall
not be treated as a Spinco Employee or a Spinco Transferred Employee until such individual commences employment with Buyer or another
member of the Buyer Group.
(c) Notwithstanding
anything to the contrary contained in this Agreement, as of the Equity Sale Closing Time, Spinco shall, or shall cause an applicable member
of the Spinco Group (or as applicable, a Spinco EOR) to, (i) establish an Employee Representative Body or negotiate a collective
bargaining agreement, as required under applicable Law, or (ii) Assume, in accordance with the relevant terms, the Spinco Labor Agreements
covering Spinco Employees as of immediately prior to the Equity Sale Closing Time; provided that prior to the Equity Sale Closing
Time, the Separation Parties shall use commercially reasonable efforts to effect a separation of the Local 1101 CBA, such that the Local
1101 CBA shall only cover Spinco Employees and Spinco Former Employees. Following such separation, to the extent effected, (A) all
rights and Liabilities under the Local 1101 CBA with respect to any employees other than Spinco Employees and Spinco Former Employees
shall be transferred to the appropriate member of the Remainco Group, pursuant to a separate collective bargaining agreement, and (B) all
rights and Liabilities with respect to any Spinco Employees and Spinco Former Employees shall be transferred to a member of the Buyer
Group pursuant to an amended collective bargaining agreement between the appropriate member of the Spinco Group and the Communications
Workers of American Local Union 1101 (but excluding, for clarity, IGT Global Solutions Corporation). As of the Closing Date, Spinco
shall Assume all of the Liabilities relating to the Local 1101 CBA to the extent contemplated by this Agreement.
1.2. Employee
and Benefit Plan Assets and Liabilities; Severance.
(a) Assets.
The Remainco Group shall retain all Remainco Benefit Arrangements, all rights in connection therewith and all Assets related thereto.
The Spinco Group shall retain all Spinco Benefit Arrangements, all rights in connection therewith and all Assets related thereto. Any
assets held in trust to fund a Benefit Arrangement, and all insurance policies funding a Benefit Arrangement, shall be an “Asset”
related to such Benefit Arrangement.
(b) Spinco
Assumed Liabilities. Effective as of the Equity Sale Closing Time or, with respect to each Inactive Employee, the earlier of twelve
(12) months following the Closing Date or the time such individual terminates employment with a member of the Remainco Group (including
in connection with becoming a Spinco Transferred Employee), Spinco shall Assume:
(i) except
as set forth in Section 1.2(c), all Liabilities under all Remainco Benefit Arrangements relating to Spinco Transferred Employees
or Spinco Former Employees, whenever incurred, only to the extent set forth in this Agreement; provided that Spinco shall reimburse
the Remainco Group for any claim for benefits by any Spinco Transferred Employee or Spinco Former Employee (or their respective dependents)
after the Equity Sale Closing Time that was incurred prior to the Equity Sale Closing Time under any Remainco Benefit Arrangement and
that is not funded by an insurance policy, trust or similar funding arrangement, other than (x) severance payable to any Spinco Former
Employee, which shall be addressed under Section 1.2(d); and (y) claims under a flexible spending account, which shall
be addressed under Article V (the Liabilities described in this Section 1.2(b)(i), the “Assumed Remainco
Benefit Liabilities”);
(ii) except
as set forth in Section 1.2(c), all Liabilities arising out of, relating to or resulting from the employment, service, termination
of employment or termination of service of all Spinco Employees and Spinco Former Employees and their dependents and beneficiaries (and
any alternate payees in respect thereof); and
(iii) any
other Liabilities expressly assigned to or Assumed or retained by any member of the Spinco Group under this Agreement or the Separation
Agreement.
(c) Remainco
Retained Liabilities. The applicable member of the Remainco Group shall Assume or retain all Liabilities arising under or otherwise
related to:
(i)
the Remainco Benefit Arrangements, including all Liabilities under
Section 412 of the Code and Section 302 or Title IV of ERISA;
(ii) any
change of control, exit, success, sale, retention, transaction or similar bonuses, payments, benefits or compensatory amounts pursuant
to any Contract entered into prior to the Equity Sale with any member of the Remainco Group and, in each case, payable to Spinco Employees
or Former Spinco Employees solely as a result of the consummation of the Equity Sale and the Merger (whether payable in connection with,
at or following the Equity Sale and the Merger);
(iii) the
Remainco Employees, and any former employee of the Remainco Group who is not a Spinco Transferred Employee or a Spinco Former Employee;
and
(iv) any
other Liabilities expressly assigned to or Assumed or retained by any member of the Remainco Group under this Agreement or the Separation
Agreement.
(d) Severance.
Effective as of the Equity Sale Closing Time, Spinco shall Assume all Liabilities for (i) severance payable to any Spinco Transferred
Employee and (ii) severance payable to any Spinco Former Employee; provided that any such severance paid following the date
hereof shall be subject to Section 5.2 of the Merger Agreement.
(e) COBRA.
The Remainco Group shall be solely responsible for providing continued health coverage required by COBRA to Spinco Employees and Spinco
Former Employees (and their qualifying beneficiaries) who experience a COBRA qualifying event (as defined in Section 4980B of the
Code) under the applicable Remainco Benefit Arrangement prior to the Equity Sale Closing Time (such individuals, collectively, the “COBRA
Participants”), and Spinco shall reimburse a member of the Remainco Group designated by Remainco within fifteen (15) days following
the end of each calendar quarter following the Equity Sale Closing Time for any claims or obligations incurred under the applicable Remainco
Benefit Arrangement as a result of such COBRA coverage (other than those paid under a stop-loss or other insurance policy) by each COBRA
Participant whose COBRA coverage ceased during such calendar quarter, which, in the aggregate with all claims incurred by all other COBRA
Participants whose coverage ceased in prior calendar quarters, exceed the sum of the amount of premiums collected through the end of such
calendar quarter. A member of the Buyer Group shall be solely responsible for providing continued health coverage to the extent required
by COBRA under the applicable Spinco Benefit Arrangement or the applicable Buyer Future Benefit Arrangement to all Spinco Transferred
Employees (and their qualifying beneficiaries) who experience a COBRA qualifying event upon or after the Equity Sale Closing Time, and
shall be solely responsible for all claims, obligations and Liabilities incurred as a result of such COBRA coverage. The Separation Parties
and the Merger Partner Group agree that the consummation of the transactions contemplated by the Separation Agreement or this Agreement
shall not constitute a COBRA qualifying event for any purpose of COBRA.
(f) Workers’
Compensation Claims. Without limiting Section 1.2(b) and (c), each member of the Spinco Group and each member
of the Buyer Group shall acquire such workers’ compensation insurance coverage as is required by the applicable Law, and each member
of the Spinco Group and each member of the Buyer Group shall Assume all Liabilities related to all claims for workers’ compensation
benefits and coverage which are incurred on or following the Closing Date by Spinco Employees. Claims for occurrences prior to the Equity
Sale Closing Time under workers’ compensation insurance of the Remainco Group shall be subject to the provisions of Section 4.10
of the Separation Agreement.
ARTICLE II
PAY AND BENEFITS
2.1. In
General. Except to the extent otherwise required by applicable Law, for the period commencing on the Closing Date and ending on the
date which is twelve (12) months following the Closing Date, Buyer shall, or shall cause another member of the Buyer Group or a Spinco
EOR to, provide each Spinco Transferred Employee whose employment is not governed by a Spinco Labor Agreement, with:
(a) base
salary or base hourly wage rate, as applicable, that is no less than the base salary or base hourly wage rate, as applicable, for such
Spinco Transferred Employee as in effect immediately prior to the Equity Sale Closing Time;
(b) a
target short-term incentive compensation opportunity that is no less than the target short-term incentive compensation opportunity (including
under sales incentive and other similar arrangements) for such Spinco Transferred Employee in effect immediately prior to the Equity
Sale Closing Time;
(c) a
target long-term incentive compensation opportunity that is no less than the (i) target long-term incentive compensation opportunity
for such Spinco Transferred Employee in effect immediately prior to the Equity Sale Closing Time (it being acknowledged and agreed that
there is no obligation to provide equity or equity based compensation); and
(d) employee
benefits and perquisites (excluding post-termination or retirement welfare benefits, retention, short-term or long-term incentive opportunities
and change-in-control benefits) that have an aggregate value which is no less than the aggregate value of such employee benefits and
perquisites provided to such Spinco Transferred Employee immediately prior to the Equity Sale Closing Time.
Buyer shall, or shall cause another member of
the Buyer Group or a Spinco EOR to, provide each Spinco Transferred Employee covered by a Spinco Labor Agreement with compensation and
employee benefits at the level required by and in compliance with the applicable Spinco Labor Agreement.
2.2. Severance.
Without limiting Section 2.1, except to the extent otherwise required by applicable Law, for the twelve (12) month period
immediately following the Equity Sale Closing Time, Buyer shall, or shall cause another member of the Buyer Group or a Spinco EOR to,
provide (a) each US Spinco Transferred Employee who experiences a qualifying termination of employment during such period with severance
benefits, if any, at least equal to the greater of the severance benefits set forth on Schedule 2.2(a)(i); or (b) with respect
to Non-US Spinco Transferred Employees, as otherwise may be required under applicable Law (in each case, taking into account any increase
in years of service and compensation that occur following the Equity Sale Closing Time).
2.3. Participation
in Remainco and Spinco Benefit Arrangements. Except as otherwise required by applicable Law, effective as of the Equity Sale Closing
Time, (a) each member of the Spinco Group, to the extent applicable, shall cease to be a participating employer in any Remainco
Benefit Arrangement; and (b) each Spinco Transferred Employee (other than each Inactive Employee) shall cease to participate in,
be covered by, accrue benefits under or be eligible to contribute to any Remainco Benefit Arrangement. Except as otherwise required by
applicable Law, effective as of the Equity Sale Closing Time, (a) each member of the Remainco Group, to the extent applicable, shall
cease to be a participating employer in any Spinco Benefit Arrangement; and (b) each Remainco Employee and each Inactive Employee
shall cease to participate in, be covered by, accrue benefits under, or be eligible to contribute to any Spinco Benefit Arrangement.
2.4. Separation
Planning and Day-One Readiness. As soon as practical following the date hereof, Remainco and Spinco shall cooperate in good faith
to design a plan with respect to (a) cloning or otherwise replicating, or, where appropriate, substituting, any Remainco Benefit
Arrangement that provides pension, retirement, or welfare benefits (including medical, dental, vision, prescription drug, life insurance,
disability insurance and other group insurance arrangements) to any Non-US Spinco Transferred Employee into a stand-alone Spinco Benefit
Arrangement covering such Non-US Spinco Transferred Employee (the “Benefit Plan Replication and Assumption”), in each
case to the extent commercially practicable; provided that Remainco shall have the final determination with respect to such Spinco
Benefit Arrangements; and (b) the extraction, configuration and movement of human resources, payroll and benefits-related information,
subject to the Parties entering into an appropriate data sharing agreement (“HR Data Migration”), in each case for
the purpose of preparing the members of the Spinco Group to provide coverage under Spinco Benefit Arrangements with effect from the Closing
Date (“Day-One HR Readiness”), and for the purpose of preparing the members of the Spinco Group, the members of the
Merger Partner Group, and Buyer for the Benefit Plan Replication and Assumption and HR Data Migration. As soon as reasonably practicable
after the date hereof, the Parties shall in good faith cooperate to prepare plans for Day-One HR Readiness (collectively, such plans,
the “Day-One HR Plan”). Each Party shall use reasonable best efforts to implement the tasks contemplated to be implemented
by such Party by the Day-One HR Plan in accordance with any time periods set forth in the Day-One HR Plan, in all material respects.
2.5. Length
of Service Crediting. Except to the extent otherwise required by applicable Law, Buyer shall, or shall cause another member of the
Buyer Group or a Spinco EOR to, recognize all service before the Equity Sale Closing Time of any Spinco Transferred Employee with any
member of the Remainco Group and any member of the Spinco Group (including with respect to any service with their respective predecessors
to the extent such predecessor employer service was taken into account under an applicable Remainco Benefit Arrangement or an applicable
Spinco Benefit Arrangement) for all purposes (other than for purposes of benefit accruals under any defined benefit pension plan) under
each Spinco Benefit Arrangement and each Buyer Future Benefit Arrangement. Notwithstanding the foregoing, except to the extent otherwise
required by applicable Law, Buyer shall not be required to recognize such service to the extent doing so would result in the duplication
of benefits.
2.6. Replacement
of Remainco Benefit Arrangement or Spinco Benefit Arrangement with Buyer Future Benefit Arrangement . To the extent coverage under
a Buyer Future Benefit Arrangement replaces coverage under a similar or comparable Remainco Benefit Arrangement or Spinco Benefit Arrangement
in which such US Spinco Transferred Employee was eligible to participate immediately prior to the Equity Sale Closing Time, Buyer shall,
or shall cause another member of the Buyer Group or a Spinco EOR to:
(a) Effective
as of the Merger Effective Time or such later time as a Remainco Benefit Arrangement or a Spinco Benefit Arrangement is terminated or
discontinued by a member of the Buyer Group, cause each Spinco Transferred Employee to be eligible to commence participation in a similar
Buyer Future Benefit Arrangement for which such Spinco Transferred Employee is eligible, provided that the applicable employee’s
commencement of participation in Buyer Future Benefit Arrangements, shall in all cases be subject to such employee’s satisfaction
of any enrollment, election and other applicable requirements for participation;
(b) Cause
each US Spinco Transferred Employee to be immediately eligible to participate, without any waiting time, in any and all Buyer Future Benefit
Arrangements; provided that, with respect to any Buyer Future Benefit Arrangement which is provided under fully insured arrangements,
Buyer shall solely be required to use commercially reasonable efforts to cause the foregoing;
(c) For
purposes of each Buyer Future Benefit Arrangement that provides welfare benefits (including medical, dental, vision, prescription drug,
life insurance, long- term disability insurance and other group insurance arrangements), cause all preexisting condition exclusions, waiting
periods, evidence of insurability and actively-at-work requirements of such Buyer Future Benefit Arrangement to be waived for such employee
and such employee’s covered dependents; and
(d) cause
any eligible expenses incurred by such employee or such employee’s covered dependents during the portion of the plan year of the
Spinco Benefit Arrangement ending on the date such employee’s participation in the corresponding Buyer Future Benefit Arrangement
begins to be taken into account under such Buyer Future Benefit Arrangement for purposes of satisfying all deductible, coinsurance, copayments
and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if
such amounts had been paid in accordance with the Buyer Future Benefit Arrangement.
2.7. Paid
Time Off.
(a) Assumed
Paid Time off Liabilities. With respect to each Spinco Employee, Buyer shall, or shall cause another member of the Buyer Group or
a Spinco EOR to, Assume and recognize all accrued but unused vacation and PTO as of the Equity Sale Closing Time. Buyer shall, or shall
cause another member of the Buyer Group or a Spinco EOR to, administer earned but unused vacation or PTO benefits for Spinco Employees
in accordance with any applicable Law and any applicable Spinco Labor Agreement; provided that Buyer shall, or shall cause another
member of the Buyer Group or a Spinco EOR to, pay out upon termination of employment of the applicable Spinco Employee the legacy accrued
but unused PTO balances set forth on Schedule 2.7(a).
(b) Payment
of Paid Time off Benefits Where Required by Law. Notwithstanding anything to the contrary contained in this Agreement, where required
by applicable Law, as soon as administratively practicable following the Equity Sale Closing Time (and no later than the dates required
by applicable Law), Remainco shall, or shall cause an applicable member of the Remainco Group to, pay out all earned but unused vacation
and PTO benefits to each Spinco Employee entitled to be paid such benefits by reason of the occurrence of any of the Separation or the
Equity Sale.
ARTICLE III
CASH AND EQUITY INCENTIVE COMPENSATION PLANS
3.1. Cash
Incentives.
(a) To
the extent payments are not due under any Designated Cash Incentive Program prior to the Equity Sale Closing Time, Buyer shall, or shall
cause another member of the Buyer Group or a Spinco EOR to, pay amounts due under such Designated Cash Incentive Programs to Spinco Employees,
in accordance with the terms of the Designated Cash Incentive Program (as in effect immediately prior to the Equity Sale Closing Time)
based on actual performance attainment for cash incentives associated with any performance period that has been completed or is in progress
as of the Equity Sale Closing Time; provided that such Designated Cash Incentive Program has been disclosed on Section 2.16(a) to
the Remainco Disclosure Letter, or has been adopted prior to the Equity Sale Closing Time in compliance with Section 5.2 of the Merger
Agreement.
3.2. Remainco
Equity Awards.
(a) At
or prior to the Equity Sale Closing Time, the Remainco Board (or the compensation committee thereof) shall adopt resolutions and take
all steps that are necessary and appropriate to effectuate the treatment of Remainco Equity Awards in accordance with the applicable Remainco
Equity Plan and award agreements, as follows (unless otherwise agreed to in writing by Remainco and Buyer with respect to any Remainco
Equity Award):
(i) Remainco
PSUs. Each outstanding Remainco PSU that is held by a Spinco Transferred Employee immediately prior to the Equity Sale Closing Time
(each, a “Remainco PSU” and collectively, the “Remainco PSUs”) shall, effective as of the Equity
Sale Closing Time, be cancelled and automatically converted into a right to receive a cash payment from a member of the Buyer Group equal
to the product of (A) the number of Remainco Ordinary Shares subject to each such Remainco PSU (based on the achievement of one hundred
percent (100%) of performance under each such Remainco PSU), and (B) the Remainco Pre-Distribution Share Value (a “Buyer
Cash Award”); provided that, if the Remainco PSU is held by an Inactive Employee, then such conversion shall only be
made at the time such Inactive Employee becomes a Spinco Transferred Employee (based on the achievement of one hundred percent (100%)
of performance of the Remainco PSU and the closing price of Remainco Ordinary Shares on the Trading Day immediately preceding the date
such Inactive Employee is hired by a member of the Buyer Group or a Spinco EOR). The Buyer Cash Awards shall be subject to the same vesting
terms and payment timing and otherwise substantially the same terms and conditions (excluding the form of settlement and any terms related
to performance which will be fixed as of the Equity Sale Closing Time) as in effect for the corresponding Remainco PSUs immediately prior
to the Equity Sale Closing Time, and Buyer shall not, and shall cause the other members of the Buyer Group and each Spinco EOR not to,
waive or accelerate such vesting terms or other conditions to payment. Notwithstanding the foregoing, if a Remainco PSU vests on or prior
to the Equity Sale Closing Time, such award shall be settled in Remainco Ordinary Shares in accordance with the terms of such Remainco
PSU no later than the Equity Sale Closing Time; provided that, with respect to any such Remainco PSU that (A) constitutes
nonqualified deferred compensation subject to Section 409A of the Code, and (B) is not permitted to be paid at the Equity Sale
Closing Time without triggering a Tax or other penalty under Section 409A of the Code, such award shall be settled at the earliest
time permitted under the applicable Remainco Equity Plan and award agreement that will not trigger a Tax or other penalty under Section 409A
of the Code.
(b) Treatment
of Pre-2024 Buyer Cash Awards. Within thirty (30) days following each Cash Award Vesting Date, Buyer shall deliver to Remainco a statement
(the “Annual Cash Award Statement”) with the following information: (i) a list of all Buyer Cash Awards which
resulted from converting a Remainco PSU that was granted on or before December 31, 2023 (each, a “Pre-2024 Buyer Cash Award”)
outstanding as of such Cash Award Vesting Date, (ii) a list of all Spinco Transferred Employees who experienced a termination of
employment with a member of the Buyer Group or a Spinco EOR during the twelve (12) month period ending on such Cash Award Vesting Date
(or if shorter, during the period beginning on the Closing Date and ending on such Cash Award Vesting Date), (iii) a schedule setting
forth in reasonable detail the aggregate amount of cash paid to Spinco Transferred Employees in respect of Pre-2024 Buyer Cash Awards
that vested on such Cash Award Vesting Date (an “Annual Actual Aggregate Cash Award Payment”), and (iv) such other
information as may be reasonably requested by Remainco to validate amounts paid or owed pursuant to this Section 3.2(b). If, on any
Cash Award Vesting Date, (A) the Actual Realized Cash Balance is greater than (B) the Cash Funding Threshold, then Buyer shall
make a cash payment to Remainco equal to the difference between the Actual Realized Cash Balance and the Cash Funding Threshold on or
before the date that is sixty (60) days after the delivery of the applicable Annual Cash Award Statement to Remainco (any such payment,
a “Buyer True-Up Payment”). Notwithstanding the foregoing, following the final Cash Award Vesting Date: (a) if
the Upfront Cash Award Payment is greater than the aggregate Annual Actual Aggregate Cash Award Payments that have been made (including
in respect of Pre-2024 Buyer Cash Awards vesting on such Cash Award Vesting Date) (the “Running Annual Actual Aggregate Cash
Award Payments”), then Buyer shall make a cash payment to Remainco equal to the difference between (1) the Upfront Cash
Award Payments, and (2) the sum of (x) the Running Annual Actual Aggregate Cash Award Payments, and (y) the aggregate of
all previously paid Buyer True-Up Payments on or before the date that is sixty (60) days after the delivery of the applicable Annual Cash
Award Statement to Remainco; and (b) if the Upfront Cash Award Payment is less than the Running Annual Actual Aggregate Cash Award
Payments, then Remainco shall make a cash payment to Buyer equal to the difference between (1) the Actual Aggregate Cash Award Payments,
and (2) the Upfront Cash Award Payments on or before the date that is sixty (60) days after the delivery of the applicable Annual
Cash Award Statement.
(c) Section 16(b) of
the Exchange Act. By approving the adoption of this Agreement, the Remainco Board intends to exempt from the short-swing profit recovery
provisions of Section 16(b) of the Exchange Act, by reason of the application of Rule 16b-3 thereunder, all acquisitions
and dispositions of equity incentive awards by directors and officers of Remainco, as well as direct or indirect beneficial owners of
more than ten percent (10%) of the Remainco Ordinary Shares, and the Remainco Board also intends expressly to approve, in respect of any
equity-based award, the satisfaction of any applicable Tax withholding (specifically including the actual or constructive tendering of
shares in payment of an exercise price and the withholding of shares from delivery in satisfaction of applicable Tax withholding requirements)
to the extent that such method is permitted under the applicable Remainco Equity Plan.
(d) Tax
Withholding. Upon the vesting or settlement, as applicable, of the Buyer Cash Awards, a member of the Buyer Group and the holder of
such award shall be responsible for ensuring the satisfaction of all applicable Tax payment and withholding requirements in respect thereof
and for ensuring the collection and remittance of applicable Taxes to the applicable Governmental Authority.
(e) Cooperation.
The Parties shall use commercially reasonable efforts to cooperate with each other and with Third Parties to effect withholding and remittance
of Taxes, as well as required Tax reporting, in a timely, efficient and appropriate manner, to further the purposes of this Article III,
and to administer all equity awards that are outstanding immediately following the Equity Sale Closing Time (including all such equity
awards that are adjusted in accordance with this Article III) to the extent consistent with this Agreement and applicable
Law.
ARTICLE IV
U.S. DEFINED CONTRIBUTION PLANS
4.1. U.S.
Defined Contribution Plans.
(a) Effective
as of the Equity Sale Closing Time, (i) the active participation of each US Spinco Transferred Employee who is a participant in the
Remainco Retirement Plan shall automatically cease, and no US Spinco Transferred Employee shall thereafter accrue any benefits under any
such Remainco Retirement Plan; and (ii) Remainco shall cause each US Spinco Transferred Employee’s account balance under such
Remainco Retirement Plan to fully vest.
(b) Buyer
shall, or shall cause another member of the Buyer Group to, cause, effective as of the Merger Effective Time, each US Spinco Transferred
Employee who participated in the Remainco Retirement Plan immediately prior to the Equity Sale Closing Time to be eligible to commence
participation in one or more defined contribution plans that include a qualified cash or deferred arrangement within the meaning of Section 401(k) of
the Code (any such plan, a “Buyer Group Retirement Plan”), and receive under the Buyer Group Retirement Plan that is
qualified under Section 401(a) of the Code employer contributions (including matching and non-elective contributions) at levels
that are no less favorable than employer contributions to which similarly situated employees of Merger Partner were eligible for immediately
prior to the Equity Sale Closing Time.
(c) As
soon as reasonably practicable following the Closing Date, Buyer shall, or shall cause another member of the Buyer Group to, cause the
Buyer Group Retirement Plan to accept rollovers elected by each Spinco Employee in the United States from the Remainco Retirement Plan
in direct rollovers to the Buyer Group Retirement Plan (including rollovers of plan participant loans); provided that such Remainco
Retirement Plan permits such a direct rollover and if such direct rollover is elected by such US Spinco Transferred Employee and permitted
in accordance with applicable Law.
ARTICLE V
FLEXIBLE SPENDING ACCOUNTS
5.1. Cafeteria
Plan. Buyer shall, or shall cause another member of the Buyer Group to, maintain or establish a cafeteria plan that includes a healthcare
flexible spending account program and a dependent care flexible spending account program (the “Buyer Group FSA”) for
the remainder of the calendar year in which the Closing Date occurs for each Spinco Employee who, in the portion of the calendar year
on or prior to the Closing Date, contributed to the Remainco FSA (the “FSA Participants”).
5.2. Coordination
Regarding FSA Account Balances. As of the Merger Effective Time, Buyer shall, or shall cause another member of the Buyer Group to,
cause the balance of each FSA Participant’s accounts under the Buyer Group FSA or the Buyer Future Benefit Arrangement that includes
a flexible spending account component, as applicable, to be equal to the FSA Participant’s balance in the applicable healthcare
spending account program and dependent care flexible spending account program under the Remainco FSA. If the aggregate amount withheld
from the FSA Participants’ compensation under the Remainco FSA for the plan year in which the Closing Date occurs exceeds the aggregate
amount of reimbursements paid to the FSA Participants prior to the Closing Date under the Remainco FSA for such plan year, Remainco shall
transfer or cause to be transferred to Buyer (or, if directed by Buyer, to a member of the Buyer Group) on or before the date which is
thirty (30) days following the Closing Date, a cash payment equal to any such excess. If the aggregate amount of reimbursements paid
to the FSA Participants under the Remainco FSA prior to the Closing Date for the plan year in which the Closing Date occurs exceeds the
aggregate amount withheld prior to the Closing Date from the FSA Participants’ compensation under the Remainco FSA for such plan
year, Buyer shall, or shall cause another member of the Buyer Group to, transfer to Remainco on or before the date which is thirty (30)
days following the Closing Date, a cash payment equal to any such excess. Buyer shall, or shall cause another member of the Buyer Group
to, cause the Buyer Group FSA to honor, and continue for the period commencing on the Merger Effective Time and ending on the last day
of the plan year of the Remainco FSA that commenced immediately prior to the Equity Sale Closing Time, the elections, contribution levels,
and coverage levels made by the FSA Participants under the Remainco FSA with respect to the flexible spending reimbursement accounts
that are in effect immediately prior to the Closing Date. Buyer shall, or shall cause another member of the Buyer Group to, Assume and
be solely responsible for all claims for reimbursement by the FSA Participants, whether incurred prior to, on or after the Closing Date,
under the terms of the Buyer Group FSA, that have not been paid in full as of the Closing Date, which claims shall be paid pursuant to
and under the terms of the Buyer Group FSA. The members of the Buyer Group shall indemnify and hold harmless the members of the Remainco
Group from any and all claims by or with respect to the FSA Participants for reimbursement under the Remainco FSA that have not been
paid in full as of immediately prior to the Closing Date.
ARTICLE VI
COOPERATION; INDEMNIFICATION
6.1. Cooperation.
Each Party recognizes it to be in the best interests of the Parties and their respective employees (if applicable) that the matters addressed
in this Agreement be effected in an orderly manner and agree to devote reasonable efforts and to reasonably cooperate in complying with
the provisions of this Agreement. Subject to applicable Law, each Party agrees to provide the other Party with the information reasonably
necessary to enable each Party to perform its obligations under this Agreement and to make its respective Representatives available upon
reasonable notice and at a reasonable time for such purpose. In addition, Section 3.5 of the Separation Agreement is incorporated
herein by reference.
6.2. Allocation
of Liabilities under Separation Agreement. All Liabilities retained or assumed by or allocated to a member of the Spinco Group pursuant
to this Agreement shall be deemed to be “Spinco Liabilities” (as defined in the Separation Agreement) for purposes of the
Separation Agreement, and all Assets retained or assumed by or allocated to a member of the Spinco Group pursuant to this Agreement shall
be deemed to be “Spinco Assets” (as defined in the Separation Agreement). All Liabilities retained or assumed by or allocated
to a member of the Remainco Group pursuant to this Agreement shall be deemed to be “Remainco Assumed Liabilities” (as defined
in the Separation Agreement) for purposes of the Separation Agreement, and all Assets retained or assumed by or allocated to a member
of the Remainco Group pursuant to this Agreement shall be deemed to be “Remainco Retained Assets” (as defined in the Separation
Agreement).
6.3. Indemnities.
(i) From and after the Equity Sale Closing Time, each member of the Remainco Group shall, on a joint and several basis, indemnify,
defend and hold harmless each of the Buyer Group Indemnified Parties to the fullest extent permitted by Law, from and against any and
all Losses of the Buyer Group Indemnified Parties to the extent relating to, arising out of, by reason of or otherwise in connection
with any breach after the Equity Sale Closing Time by any member of the Remainco Group of any covenant or agreement in this Agreement
that is to be performed following the Equity Sale Closing Time; and (ii) from and after the Equity Sale Closing Time, each member
of the Spinco Group, each member of the Merger Partner Group, and each member of the Buyer Group shall, on a joint and several basis,
indemnify, defend and hold harmless each of the Remainco Indemnified Parties to the fullest extent permitted by Law, from and against
any and all Losses of the Remainco Indemnified Parties to the extent relating to, arising out of, by reason of or otherwise in connection
with any breach after the Equity Sale Closing Time by any member of the Spinco Group, any member of Merger Partner Group, or any member
of the Buyer Group of any covenant or agreement in this Agreement that is to be performed following the Equity Sale Closing Time. Any
matters related to the foregoing indemnification, or indemnification with respect to any Liabilities retained, assumed or indemnified
by a Party pursuant to this Agreement, shall be addressed in accordance with the terms of Article III of the Separation Agreement.
ARTICLE VII
MISCELLANEOUS
7.1. Entire
Agreement; Counterparts; Exchanges by Facsimile. Section 5.1 of the Separation Agreement is incorporated by reference to this
Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
7.2. Transaction
Documents; Precedence of Agreements. Section 5.2 of the Separation Agreement is incorporated by reference to this Agreement
and shall apply as if fully set forth in this Agreement mutatis mutandis.
7.3. Survival.
Section 5.3 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
7.4. Expenses.
Section 5.4 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
7.5. Notices.
Section 5.5 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
7.6. Waiver.
Section 5.6 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
7.7. Assignment.
Section 5.7 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
7.8. Termination.
Section 5.8 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
7.9. Amendment.
No provision of this Agreement may be amended, supplemented or modified except by a written instrument signed by all of the Parties.
7.10. Group
Members. Section 5.10 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully
set forth in this Agreement mutatis mutandis.
7.11. No
Third Party Rights. Section 5.11 of the Separation Agreement is incorporated by reference. Notwithstanding the generality of
such section, the provisions contained in this Agreement are included for the sole benefit of the Parties and shall not create any right,
including as a third-party beneficiary, in any other person, including any current or former employee of any of the Parties. Nothing
herein shall be deemed an amendment, adoption or termination of any Benefit Arrangement. In addition, nothing in this Agreement shall
be deemed to prohibit or restrict any member of the Buyer Group or any Spinco EOR from terminating the employment of any Spinco Transferred
Employee following the Equity Sale Closing Time.
7.12. Exhibits
and Schedules. Section 5.12 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if
fully set forth in this Agreement mutatis mutandis.
7.13. Governing
Law. Section 5.13 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set
forth in this Agreement mutatis mutandis.
7.14. Submission
to Jurisdiction. Section 5.14 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as
if fully set forth in this Agreement mutatis mutandis.
7.15. Waiver
of Jury Trial. Section 5.15 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if
fully set forth in this Agreement mutatis mutandis.
7.16. Specific
Performance. Section 5.16 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully
set forth in this Agreement mutatis mutandis.
7.17. Severability.
Section 5.17 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
7.18. Construction.
Section 5.21 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
[Signature page follows]
IN WITNESS WHEREOF, the Parties
have caused this Agreement to be duly executed as of the day and year first above written.
|
INTERNATIONAL GAME TECHNOLOGY
PLC |
|
|
|
By: |
/s/
Vincent L. Sadusky |
|
Name: |
Vincent L. Sadusky |
|
Title: |
Chief Executive Officer |
|
IGNITE
ROTATE LLC |
|
|
|
By: International Game Technology
PLC |
|
Its: Managing Member |
|
|
|
By: |
/s/
Massimiliano Chiara |
|
Name: |
Massimiliano Chiara |
|
Title: |
Executive Vice President and Chief Financial Officer |
|
|
[Signature Page to Employee Matters Agreement]
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed as of the day and year first above written.
|
EVERI
HOLDINGS INC. |
|
|
|
By: |
/s/
Randy L. Taylor |
|
Name: |
Randy L. Taylor |
|
Title: |
Chief Executive Officer |
[Signature Page to Employee Matters Agreement]
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed as of the day and year first above written.
|
Voyager
Parent, LLC |
|
|
|
By: |
/s/
Daniel Cohen |
|
Name: |
Daniel Cohen |
|
Title: |
Vice President, Secretary and Treasurer |
[Signature Page to Employee Matters Agreement]
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of this Agreement
(including this Exhibit A):
“Actual Realized
Cash Balance” means with respect to any Cash Award Vesting Date, the difference between (a) the Upfront Cash Award Payment,
and (b) the sum of each Annual Actual Aggregate Cash Award Payment that has been made (or will be made in respect of awards vesting
on such Cash Award Vesting Date).
“Agreement”
shall have the meaning set forth in the Preamble.
“Annual Actual Aggregate
Cash Award Payment” shall have the meaning set forth in Section 3.2(b).
“Annual Cash Award
Statement” shall have the meaning set forth in Section 3.2(b).
“Assets”
shall have the meaning set forth in the Separation Agreement.
“Assume”
shall have the meaning set forth in the Separation Agreement.
“Assumed Remainco
Benefit Liabilities” shall have the meaning set forth in Section 1.2(b)(i).
“Benefit Arrangement”
means, whether written or unwritten, (a) each “employee benefit plan” within the meaning of Section 3(3) of
ERISA (whether or not subject to ERISA), and (b) each other employment, bonus, profit sharing, deferred compensation, incentive
compensation, holiday, vacation, medical insurance, dental care, vision care, prescription drug, sick leave, short-term or long-term
disability, salary continuation, welfare, long service awards, retention plan, severance or termination pay, change of control, fringe
benefit, tuition reimbursement, flexible spending account, tax gross-up or indemnification, equity or equity-based, pension, retirement,
supplemental retirement, death, life insurance, accidental death, post-retirement medical or other welfare benefit plan or similar compensatory
plan, program, policy, practice, agreement or arrangement; provided that a Benefit Arrangement shall not include any plan, program,
agreement or arrangement that is maintained by a Governmental Authority.
“Benefit Plan Replication
and Assumption” shall have the meaning set forth in Section 2.4.
“Business Day”
shall have the meaning set forth in the Separation Agreement.
“Buyer” shall
have the meaning set forth in the Preamble.
“Buyer Future Benefit
Arrangement” means any Benefit Arrangement that any member of the Buyer Group sponsors, assumes, adopts, establishes or begins
sponsoring, maintaining or contributing to on or after the Equity Sale Closing Time.
“Buyer Group”
shall have the meaning set forth in the Separation Agreement.
“Buyer Group FSA”
shall have the meaning set forth in Section 5.1.
“Buyer Group Retirement
Plan” shall have the meaning set forth in Section 4.1(b).
“Buyer Sub”
shall have the meaning set forth in the Recitals.
“Buyer True-Up Payment”
shall have the meaning set forth in Section 3.2(b).
“Cash Award Vesting
Date” shall mean the first anniversary of the Closing Date and each May 1 following the Closing Date until such time as
there are no Pre-2024 Buyer Cash Awards outstanding.
“Cash Funding Threshold”
shall mean, with respect to any Cash Award Vesting Date, the aggregate amount necessary to pay the Pre-2024 Buyer Cash Awards that remain
outstanding and payable (other than Pre-2024 Buyer Cash Awards vesting on such Cash Award Vesting Date).
“Closing”
shall have the meaning set forth in the Merger Agreement.
“Closing Date”
shall have the meaning set forth in the Merger Agreement.
“COBRA”
means Part 6 of Subtitle B of Title I of ERISA or Section 4980B of the Code or any similar state or local Law.
“COBRA Participants”
shall have the meaning set forth in Section 1.2(e).
“Code”
shall have the meaning set forth in the Merger Agreement.
“Day-One HR Plan”
shall have the meaning set forth in Section 2.4.
“Day-One HR Readiness”
shall have the meaning set forth in Section 2.4.
“Designated Cash
Incentive Programs” shall mean all Remainco Benefit Arrangements that are cash incentive programs in which Spinco Employees
participate and which have performance periods of one (1) year or less (including annual bonuses for 2024) that are set forth on
Schedule 3.1.
“Employee Representative
Body” means any union, works council or other agency or representative body certified or otherwise recognized for the purposes
of bargaining collectively or established for the purposes of notification of or consultation on behalf of any employees.
“ERISA”
means the Employee Retirement Income Security Act of 1974 and the regulations promulgated thereunder.
“Equity Sale”
shall have the meaning set forth in the Separation Agreement.
“Equity Sale Closing
Time” shall have the meaning set forth in the Merger Agreement.
“FSA Participants”
shall have the meaning set forth in Section 5.1.
“Governmental Authority”
shall have the meaning set forth in the Separation Agreement.
“Group”
shall have the meaning set forth in the Separation Agreement.
“HR Data Migration”
shall have the meaning set forth in Section 2.4.
“Inactive Employee”
means any US Spinco Employee who is on short-term disability or long-term disability, or an approved or legally-protected leave of absence
from work at a member of the Remainco Group (including military leave with reemployment rights under federal law, and leave under the
Family Medical Leave Act or similar state or local law (other than intermittent leave) or workers compensation).
“Law”
shall have the meaning set forth in the Separation Agreement.
“Liabilities”
shall have the meaning set forth in the Separation Agreement.
“Local 1101 CBA”
means that certain Collective Bargaining Agreement between IGT and IGT Global Solutions Corp. and Communications Workers of America Local
Union 1101, effective as of March 3, 2023.
“Losses”
shall have the meaning set forth in the Separation Agreement.
“Merger”
shall have the meaning set forth in the Recitals.
“Merger Agreement”
shall have the meaning set forth in the Recitals.
“Merger Effective
Date” shall have the meaning set forth in the Merger Agreement.
“Merger Effective
Time” shall have the meaning set forth in the Merger Agreement.
“Merger Partner”
shall have the meaning set forth in the Preamble.
“Non-US Spinco Employee”
shall mean any Spinco Employee other than a US Spinco Employee.
“Non-US Spinco Transferred
Employee” shall mean any Spinco Transferred Employee other than a US Spinco Transferred Employee.
“NYSE”
shall have the meaning set forth in the Merger Agreement.
“Party”
and “Parties” shall have the respective meanings set forth in the Preamble.
“Pre-2024 Buyer
Cash Award” shall have the meaning set forth in Section 3.2(a)(ii).
“Regular Trading
Hours” means the period beginning at 9:30 A.M., New York City time, and ending at 4:00 P.M., New York City time.
“Remainco”
shall have the meaning set forth in the Preamble.
“Remainco Benefit
Arrangement” means any Benefit Arrangement sponsored, maintained or contributed to, or required to be maintained or contributed
to, by any member of the Remainco Group.
“Remainco Board”
shall have the meaning set forth in the Separation Agreement.
“Remainco Employee”
means an employee of a member of the Remainco Group, other than a Spinco Employee.
“Remainco Equity
Awards” means the Remainco RSUs and the Remainco PSUs.
“Remainco Equity
Plan” means, collectively, the International Game Technology PLC 2015 Equity Incentive Plan, as amended, and the International
Game Technology PLC 2021 Equity Incentive Plan.
“Remainco Group”
shall have the meaning set forth in the Separation Agreement.
“Remainco Ordinary
Shares” shall have the meaning set forth in the Merger Agreement.
“Remainco Pre-Distribution
Share Value” means the average closing per share price of Remainco Ordinary Shares over the twenty (20) Trading Days immediately
prior to the Closing Date based on “regular way” trading inclusive of the value attributable to the Spinco Group on the NYSE
during Regular Trading Hours.
“Remainco PSU”
means each performance share unit representing the right to vest in and be issued Remainco Ordinary Shares, whether granted by Remainco
pursuant to a Remainco Equity Plan, assumed by Remainco in connection with any merger, acquisition or similar transaction or otherwise
issued or granted, and which vests based in whole or in part on the achievement of specified performance objectives.
“Remainco Retirement
Plan” means the IGT 401(k) Retirement Savings Plan.
“Remainco RSU”
means each restricted share unit representing the right to vest in and be issued Remainco Ordinary Shares by Remainco, whether granted
by Remainco pursuant to a Remainco Equity Plan, assumed by Remainco in connection with any merger, acquisition or similar transaction
or otherwise issued or granted and whether vested or unvested (which excludes any Remainco PSUs).
“Representatives”
shall have the meaning set forth in the Merger Agreement.
“Running Annual
Actual Aggregate Cash Award Payments” shall have the meaning set forth in Section 3.2(b).
“Separation Agreement”
shall have the meaning set forth in the Recitals.
“Spinco”
shall have the meaning set forth in the Preamble.
“Spinco Benefit
Arrangement” means any Benefit Arrangement sponsored, maintained or required to be maintained, by any member of the Spinco
Group.
“Spinco Business”
shall have the meaning set forth in the Separation Agreement.
“Spinco Contribution”
shall have the meaning set forth in the Separation Agreement.
“Spinco Employee”
shall have the meaning set forth in Section 1.1(a)(i).
“Spinco Employee
Schedule” shall have the meaning set forth in Section 1.1(a)(i).
“Spinco EOR”
shall have the meaning set forth in Section 1.1(b)(i).
“Spinco Former Employee”
means (i) an individual whose employment with any member of the Remainco Group or Spinco Group terminated prior to the Equity Sale,
and immediately prior to such termination provided services primarily to the Spinco Business; and (i) each Inactive Employee who
does not become a Spinco Transferred Employee on or before the date which is twelve (12) months following the Closing Date.
“Spinco Group”
shall have the meaning set forth in the Separation Agreement.
“Spinco Labor Agreement”
means any agreement with any Employee Representative Body to which Remainco or a member of the Remainco Group, or Spinco or a member
of the Spinco Group, is a party or bound that pertains to any Spinco Employees.
“Spinco Liabilities”
shall have the meaning set forth in the Separation Agreement.
“Spinco Transferred
Employee” shall have the meaning set forth in Section 1.1(b)(i).
“Spinco Units”
shall have the meaning set forth in the Merger Agreement.
“Subsidiary”
shall have the meaning set forth in the Separation Agreement.
“Tax”
shall have the meaning set forth in the Tax Matters Agreement.
“Tax Matters Agreement”
shall have the meaning set forth in the Separation Agreement.
“Third Party”
shall have the meaning set forth in the Separation Agreement.
“Trading Day”
shall mean the period of time during any given day, commencing with the determination of the opening price on the NYSE and ending with
the determination of the closing price on the NYSE, in which trading and settlement in Remainco Ordinary Shares are permitted on the
NYSE.
“Transaction Documents”
shall have the meaning set forth in the Separation Agreement.
“Upfront Cash Award
Payment” shall have the meaning set forth in the Separation Agreement.
“US Spinco Employee”
shall mean any Spinco Employee who primarily provides services in the United States.
“US Spinco Transferred
Employee” shall mean any Spinco Transferred Employee who primarily provides services in the United States.
Exhibit 10.3
REAL ESTATE MATTERS AGREEMENT
by and among
INTERNATIONAL
GAME TECHNOLOGY plc,
IGNITE ROTATE LLC,
EVERI HOLDINGS INC.
and
VOYAGER
PARENT, LLC
Dated as of July 26, 2024
TABLE
OF CONTENTS
ARTICLE I SPINCO PROPERTIES AND LEASED PROPERTIES |
2 |
|
|
|
|
|
1.1 |
Spinco Properties |
2 |
|
|
|
|
|
1.2 |
Spinco Assigned Properties |
2 |
|
|
|
|
|
1.3 |
Remainco Retained Properties |
2 |
|
|
|
|
ARTICLE II |
2 |
|
|
|
|
|
2.1 |
Obtaining the Lease Consents |
2 |
|
|
|
|
|
2.2 |
Occupancy |
3 |
|
|
|
|
|
2.3 |
Obligation to Complete |
4 |
|
|
|
|
|
2.4 |
Form of Transfer |
5 |
|
|
|
|
|
2.5 |
Personal Property |
5 |
|
|
|
|
|
2.6 |
Costs |
5 |
|
|
|
|
ARTICLE III |
5 |
|
|
|
|
|
3.1 |
Obtaining the Lease Consents |
5 |
|
|
|
|
|
3.2 |
Occupancy |
6 |
|
|
|
|
|
3.3 |
Obligation to Complete |
6 |
|
|
|
|
|
3.4 |
Form of Transfer |
7 |
|
|
|
|
|
3.5 |
Personal Property |
7 |
|
|
|
|
|
3.6 |
Costs |
7 |
|
|
|
|
ARTICLE IV LEASED PROPERTY OUTSIDE THE UNITED STATES |
7 |
|
|
|
|
|
4.1 |
Leased Property Outside the United States |
7 |
|
|
|
|
ARTICLE V SUBLEASED PROPERTY |
8 |
|
|
|
|
|
5.1 |
Feasibility Review and Discussion |
8 |
|
|
|
|
|
5.2 |
Subleased Properties In the United States |
8 |
|
|
|
|
|
5.3 |
Subleased Properties Outside the United States |
8 |
|
|
|
|
ARTICLE VI MISCELLANEOUS |
9 |
|
|
|
|
|
6.1 |
Entire Agreement; Counterparts; Exchanges by Facsimile |
9 |
|
|
|
|
|
6.2 |
Transaction Documents; Precedence of Agreements |
9 |
|
|
|
|
|
6.3 |
Survival |
9 |
|
|
|
|
|
6.4 |
Expenses |
9 |
|
|
|
|
|
6.5 |
Notices |
9 |
|
|
|
|
|
6.6 |
Waiver |
9 |
|
|
|
|
|
6.7 |
Assignment |
9 |
|
6.8 |
Termination |
9 |
|
|
|
|
|
6.9 |
Amendment |
9 |
|
|
|
|
|
6.10 |
Group Members |
9 |
|
|
|
|
|
6.11 |
Third-Party-Beneficiaries |
9 |
|
|
|
|
|
6.12 |
Exhibits and Schedules |
10 |
|
|
|
|
|
6.13 |
Governing Law |
10 |
|
|
|
|
|
6.14 |
Submission to Jurisdiction |
10 |
|
|
|
|
|
6.15 |
Waiver of Jury Trial |
10 |
|
|
|
|
|
6.16 |
Specific Performance |
10 |
|
|
|
|
|
6.17 |
Severability |
10 |
|
|
|
|
|
6.18 |
Construction |
10 |
Exhibit A |
- |
Certain Definitions |
Schedule 1 |
- |
Spinco Assigned Properties |
Schedule 2 |
- |
Relevant Leases |
Schedule 3 |
- |
Remainco Retained Properties |
Schedule 4 |
- |
Spinco Properties |
Schedule 5 |
- |
Subleased Properties |
Schedule 6 |
- |
Subleased Properties Subject to Feasibility Review |
Schedule 7 |
- |
Primary Sublease Terms |
REAL ESTATE MATTERS AGREEMENT
This REAL ESTATE MATTERS
AGREEMENT (this “Agreement”) is made and entered into as of July 26, 2024, by and among (a) INTERNATIONAL
GAME TECHNOLOGY PLC, a public limited company incorporated under the laws of England and Wales (“Remainco”); (b) IGNITE
ROTATE LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of Remainco (“Spinco”); (c) EVERI
HOLDINGS INC., a Delaware corporation (“Merger Partner”); and (d) VOYAGER
PARENT, llc, a Delaware limited liability company (“Buyer”, and together with Remainco, Spinco and Merger
Partner, the “Parties,” and each a “Party”). Certain capitalized terms used in this Agreement are
defined in Exhibit A.
RECITALS:
WHEREAS,
Remainco is engaged, directly and indirectly, in the Spinco Business;
Whereas,
on the terms and subject to the conditions set forth in the Separation Agreement, Remainco will effectuate the Separation, including the
Spinco Contribution;
Whereas,
following the Separation, Remainco desires to sell to Buyer, and Buyer desires to purchase from Remainco, all of Remainco’s right,
title and interest in and to the Spinco Units upon the terms and subject to the conditions set forth herein;
WHEREAS,
concurrently with the execution of this Agreement, Remainco, Spinco, Merger Partner, Buyer, and Voyager Merger Sub, Inc., a Delaware
corporation and a direct wholly owned Subsidiary of Buyer (“Buyer Sub”), have entered into the Agreement and Plan of
Merger, dated as of the date hereof (as it may be amended, modified or supplemented from time to time, the “Merger Agreement”);
Whereas,
the Parties contemplate that, pursuant to the Merger Agreement and immediately following the consummation of the sale of the Spinco Units
to Buyer, at the Merger Effective Time, Buyer Sub shall be merged (the “Merger”) with and into Merger Partner, with
Merger Partner surviving the Merger as a wholly owned direct Subsidiary of Buyer;
Whereas,
the Parties desire to set forth the principal arrangements among them regarding the foregoing transactions and to make certain covenants
and agreements specified in this Agreement in connection therewith and to prescribe certain conditions relating thereto;
Whereas,
in connection with the foregoing, Remainco shall cause the Asset Transferors to Transfer to the applicable Spinco Asset Transferee certain
properties leased by the Asset Transferors that are not currently leased by a member of the Spinco Group;
Whereas,
in connection with the foregoing, Spinco shall cause the Asset Transferors to Transfer to the applicable Remainco Asset Transferee certain
properties leased by the Asset Transferors that are not currently leased by a member of the Remainco Group;
Whereas,
in connection with the foregoing, following a feasibility review of certain properties leased by members of the Remainco Group where Spinco
Employees are located, Remainco may cause the applicable members of the Remainco Group to sublease or license to the applicable members
of the Spinco Group portions of such properties;
Whereas,
in connection with the foregoing, following a feasibility review of certain properties leased by members of the Spinco Group where employees
of members of the Remainco Group are located, Spinco may cause the applicable members of the Spinco Group to sublease or license to the
applicable members of the Remainco Group portions of such properties; and
Whereas,
the Parties desire to set forth certain agreements regarding such Transfers.
NOW,
THEREFORE, in consideration of the foregoing, the covenants and agreements set forth below and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
SPINCO PROPERTIES AND LEASED PROPERTIES
1.1 Spinco
Properties. The Spinco Properties are currently owned or leased by a member of the Spinco Group
and do not need to be Transferred pursuant to this Agreement.
1.2 Spinco
Assigned Properties. Remainco shall cause the applicable Asset Transferors to assign, and Spinco
shall cause the applicable Spinco Asset Transferees to accept the assignment of and assume, the respective Asset Transferor’s interest
in the Leases of the Spinco Assigned Properties, subject to the other provisions of this Agreement and the terms of the Separation Agreement.
Such assignment, acceptance and assumption shall be completed on or before the Closing Date; provided that, if a Lease Consent
is required but not obtained prior to the Closing Date for any assignment, the assignment, acceptance and assumption shall be completed
as soon as practicable following the Closing Date.
1.3 Remainco
Retained Properties. Spinco shall cause the applicable Asset Transferors to assign, and Remainco
shall cause the applicable Remainco Asset Transferees to accept the assignment of and assume, the respective Asset Transferor’s
interest in Leases of the Remainco Retained Properties, subject to the other provisions of this Agreement and the terms of the Separation
Agreement. Such assignment, acceptance and assumption shall be completed on or before the Closing Date; provided that, if a Lease
Consent is required but not obtained prior to the Closing Date for any assignment, the assignment, acceptance and assumption shall be
completed as soon as practicable following the Closing Date.
ARTICLE II
SPINCO ASSIGNED PROPERTIES
2.1 Obtaining
the Lease Consents.
(a) Remainco
shall, with respect to each Spinco Assigned Property, to the extent required by the Relevant Lease, diligently make an application or
request to the relevant Landlord in accordance with the terms and conditions of the Relevant Lease for the Lease Consent required with
respect to the transactions contemplated by this Agreement. Each application or request for a Lease Consent shall be sent by Remainco
to the relevant Landlord at the appropriate time prior to the Closing Date as set forth in the Relevant Lease. Remainco shall be, and
has at all times been, primarily responsible for requesting, negotiating and obtaining all Lease Consents required under this Article II.
(b) Remainco
shall use commercially reasonable efforts to diligently obtain the Lease Consents required under this Article II, but Remainco
shall not be required to commence judicial proceedings for a declaration that any such Lease Consent has been unreasonably withheld, conditioned
or delayed, nor shall Remainco be required to pay any consideration in excess of that required by the Relevant Lease (if any) to obtain
the relevant Lease Consent.
(c) Spinco,
Merger Partner and Buyer shall take commercially reasonable steps to assist Remainco in obtaining the Lease Consents required under this
Article II, including, but not limited to, complying with reasonable requests from Landlords for information regarding Spinco,
Merger Partner and Buyer in connection with the Lease Consent process.
(d) If
reasonably required by the Landlord as a condition to providing a Lease Consent, Buyer or another member of the Buyer Group shall cause
the applicable Spinco Asset Transferee to enter into an agreement with the Landlord to observe and perform the tenant’s obligations
under the Relevant Lease from and after the Closing Date throughout the remainder of the term of the Relevant Lease, subject to any statutory
limitations of such liability.
(e) If
reasonably required by the Landlord as a condition to providing a Lease Consent, Buyer shall, or shall cause another member of the Buyer
Group or Buyer’s direct holding company to, provide a guarantee, surety, letter of credit or other commercially reasonable security
(including a security deposit) for the obligations of the applicable Spinco Asset Transferee (subject, with respect to provision of a
surety, letter of credit or other commercially reasonable security (including a security deposit), to the capacity of Buyer to provide
the same after giving effect to its other obligations under the Merger Agreement; provided that Buyer shall instead provide a cash collateralized
letter of credit and/or surety bond if it lacks such capacity and the same is required), as tenant under the Relevant Lease, and otherwise
take all steps which are reasonably necessary and which it is capable of doing to meet the lawful requirements under the Relevant Lease
so as to ensure that such Lease Consents are obtained. For the avoidance of doubt, the Existing Spinco Credit Support Instruments (as
such term is defined in the Separation Agreement) shall be governed by the terms of the Separation Agreement.
2.2 Occupancy.
(a) If
the Actual Completion Date for any Spinco Assigned Property does not occur on or before the Closing Date, whether or not a member of the
Spinco Group occupies such Spinco Assigned Property, then Buyer or another member of the Buyer Group shall cause the applicable Spinco
Asset Transferee to, effective as of the Closing Date, (i) pay Remainco or the applicable Asset Transferor all rents, service charges,
insurance premiums, real estate taxes and other sums payable by Remainco or the applicable Asset Transferor under the Relevant Lease accruing
on or after the Closing Date but prior to the Actual Completion Date, (ii) observe, in all material respects, the tenant’s
covenants, obligations and conditions under the Relevant Lease and (iii) indemnify, defend, protect and hold harmless Remainco and
the applicable Asset Transferor from and against all losses, costs, claims, damages and Liabilities arising on account of any breach of
the Relevant Lease by the applicable member of the Buyer Group arising on or after the Closing Date but prior to the Actual Completion
Date.
(b) Remainco
shall promptly supply to Buyer, or another member of the Buyer Group as Buyer may from time to time specify, copies of all invoices, demands,
notices and other communications received by Remainco or the applicable Asset Transferor or agents in connection with any of the matters
for which a member of the Buyer Group may be liable to make any payment or perform any obligation pursuant to Section 2.2(a),
and shall, at Buyer’s sole cost and expense, (i) pass on any objections which such member of the Buyer Group may have in connection
with any such matters and (ii) at the direction of Spinco, enforce the applicable Asset Transferor’s rights against the Landlord
under the Relevant Lease; provided that the failure to so supply shall not relieve Spinco of its indemnification or reimbursement
obligations hereunder. Buyer or another member of the Buyer Group shall promptly supply to Remainco copies of all invoices, demands, notices
and other communications received by any member of the Spinco Group or any member of the Buyer Group (including any member of the Merger
Partner Group after the Closing) or their agents from any Landlord while a member of the Spinco Group occupies any Spinco Assigned Property
without the relevant Lease Consent.
2.3 Obligation
to Complete. If, with respect to any Relevant Lease for a Spinco Assigned Property, at any time
the relevant Lease Consent is lawfully, formally and unconditionally refused in writing, Remainco and Buyer shall, or shall cause another
member of the Buyer Group to, commence good faith negotiations and use commercially reasonable efforts to determine how to address such
Relevant Lease based on the relative importance of the applicable Leased Property to the operations of the Spinco Business, including
the size of the applicable Leased Property, the number of employees employed at the applicable Leased Property, the value of assets associated
with the applicable Leased Property, the cost to relocate and the potential risk and Liability to each of Remainco and Spinco if any enforcement
action is brought by the applicable Landlord. Such commercially reasonable efforts may include assigning such Relevant Lease to another
Spinco Asset Transferee, providing a guaranty or replacement guaranty, as applicable, consideration of alternate structures to accommodate
the needs of each of Remainco and Spinco and the allocation of the costs thereof, including entering into amendments modifying the terms
of the Relevant Lease and converting the assignment to a sublease, license or other similar agreement. If Remainco and Buyer decide to
propose a sublease, license or other similar agreement, Remainco shall apply to the relevant Landlord for consent to a sublease, license
or similar agreement with respect to all of the relevant Leased Property to the applicable Spinco Asset Transferee for the remainder of
the Relevant Lease term less one (1) day at a rent equal to the rent from time to time under the Relevant Lease, but otherwise on
substantially the same terms and conditions as the Relevant Lease. Until such time as the relevant Lease Consent is obtained and a sublease,
license or other similar agreement is completed, the provisions of Section 2.1 shall apply and, on the grant of the Lease
Consent required for the applicable Leased Property, the applicable Asset Transferor shall sublease or license the applicable Leased Property
to the applicable Spinco Asset Transferee or enter into a similar agreement with the applicable Spinco Asset Transferee with respect to
the applicable Spinco Assigned Property.
2.4 Form of
Transfer. To the extent required, the conveyance to the applicable Spinco Asset Transferee of
each Spinco Assigned Property shall (a) be in the form of a Lease Assignment Form executed by the applicable Asset Transferor
and the applicable Spinco Asset Transferee, (b) if applicable, require transfer tax forms (state, local or municipal, as applicable)
executed by the applicable Asset Transferor and the applicable Spinco Asset Transferee and (c) if applicable, require such other
deliverables as may be required by the laws of the jurisdiction in which the Spinco Assigned Property is located, executed by the applicable
Asset Transferor and the applicable Spinco Asset Transferee.
2.5 Personal
Property. The provisions of the Separation Agreement shall apply to any personal property located
at each Spinco Assigned Property (excluding any other personal property owned by Third Parties), except for the applicable scheduled Excluded
Personal Property.
2.6 Costs.
If Remainco and Buyer mutually agree to pay any monetary consent fee to a Landlord to obtain a Lease Consent, then Remainco and Buyer
shall each pay fifty percent (50%) of such consent fee.
ARTICLE III
REMAINCO RETAINED PROPERTIES
3.1 Obtaining
the Lease Consents.
(a) Spinco
and Buyer shall, with respect to each Remainco Retained Property, to the extent required by the Relevant Lease, diligently make an application
or request to the relevant Landlord in accordance with the terms and conditions of the Relevant Lease for the Lease Consent required with
respect to the transactions contemplated by this Agreement. Each application or request for a Lease Consent shall be sent by Spinco or
Buyer to the relevant Landlord at the appropriate time prior to the Closing Date as set forth in the Relevant Lease. Spinco and Buyer
shall be primarily responsible for requesting, negotiating and obtaining all Lease Consents required under this Article III.
(b) Spinco
and Buyer shall use commercially reasonable efforts to diligently obtain the Lease Consents required under this Article III,
but Spinco and Buyer shall not be required to commence judicial proceedings for a declaration that any such Lease Consent has been unreasonably
withheld, conditioned or delayed, nor shall Spinco or Buyer be required to pay any consideration in excess of that required by the Relevant
Lease (if any) to obtain the relevant Lease Consent.
(c) Remainco
and Merger Partner shall take commercially reasonable steps to assist Spinco and Buyer in obtaining the Lease Consents required under
this Article III.
(d) If
reasonably required by the Landlord as a condition to providing a Lease Consent, Remainco shall enter into an agreement with the Landlord
to observe and perform the tenant’s obligations under the Relevant Lease from and after the Closing Date throughout the remainder
of the term of the Relevant Lease, subject to any statutory limitations of such liability.
(e) If
reasonably required by the Landlord as a condition to providing a Lease Consent, Remainco shall provide a guarantee, surety or other commercially
reasonable security (including a security deposit) for the obligations of the applicable Remainco Asset Transferee, as tenant under the
Relevant Lease, and otherwise take all steps which are reasonably necessary and which it is capable of doing to meet the lawful requirements
under the Relevant Lease so as to ensure that such Lease Consents are obtained.
3.2 Occupancy.
(a) If
the Actual Completion Date for any Remainco Retained Property does not occur on or before the Closing Date, whether or not a member of
the Remainco Group occupies such Remainco Retained Property, then Remainco shall cause the applicable Remainco Asset Transferee to, effective
as of the Closing Date, (i) pay Spinco, Buyer or the applicable Asset Transferor all rents, service charges, insurance premiums,
real estate taxes and other sums payable by Spinco or the applicable Asset Transferor under the Relevant Lease accruing on or after the
Closing Date but prior to the Actual Completion Date, (ii) observe, in all material respects, the tenant’s covenants, obligations
and conditions under the Relevant Lease and (iii) indemnify, defend, protect and hold harmless Spinco, Buyer and the applicable Asset
Transferor from and against all losses, costs, claims, damages and Liabilities arising on account of any breach of the Relevant Lease
by the applicable member of the Remainco Group, in each case, arising on or after the Closing Date but prior to the Actual Completion
Date.
(b) Spinco
shall promptly supply to Remainco copies of all invoices, demands, notices and other communications received by Spinco or the applicable
Asset Transferor or agents in connection with any of the matters for which Remainco may be liable to make any payment or perform any obligation
pursuant to Section 3.2(a), and shall, at Remainco’s sole cost and expense, (i) pass on any objections which Remainco
may have in connection with any such matters and (ii) at the direction of Remainco, enforce the applicable Asset Transferor’s
rights against the Landlord under the Relevant Lease; provided that the failure to so supply shall not relieve Remainco of its
indemnification or reimbursement obligations hereunder. Remainco shall promptly supply to Spinco copies of all invoices, demands, notices
and other communications received by any member of the Remainco Group or its agents from any Landlord while a member of the Remainco Group
occupies any Remainco Retained Property without the relevant Lease Consent.
3.3 Obligation
to Complete. If, with respect to any Relevant Lease for a Remainco Retained Property, at any
time the relevant Lease Consent is lawfully, formally and unconditionally refused in writing, Remainco and Buyer shall commence good faith
negotiations and use commercially reasonable efforts to determine how to address such Relevant Lease based on the relative importance
of the applicable Leased Property to the operations of the Remainco Retained Business, including the size of the applicable Leased Property,
the number of employees employed at the applicable Leased Property, the value of assets associated with the applicable Leased Property,
the cost to relocate and the potential risk and Liability to each of Remainco and Spinco if any enforcement action is brought by the applicable
Landlord. Such commercially reasonable efforts may include assigning such Relevant Lease to another Remainco Asset Transferee, providing
a guaranty or replacement guaranty, as applicable, consideration of alternate structures to accommodate the needs of each of Remainco
and Spinco and the allocation of the costs thereof, including entering into amendments modifying the terms of the Relevant Lease and converting
the assignment to a sublease, license or other similar agreement. If Remainco and Buyer decide to propose a sublease, license or other
similar agreement, Spinco shall apply to the relevant Landlord for consent to a sublease, license or similar agreement with respect to
all of the relevant Leased Property to the applicable Remainco Asset Transferee for the remainder of the Relevant Lease term less one
(1) day at a rent equal to the rent from time to time under the Relevant Lease, but otherwise on substantially the same terms and
conditions as the Relevant Lease. Until such time as the relevant Lease Consent is obtained and a sublease, license or other similar agreement
is completed, the provisions of Section 3.1 shall apply and, on the grant of the Lease Consent required for the applicable
Leased Property, the applicable Asset Transferor shall sublease or license the applicable Leased Property to the applicable Remainco Asset
Transferee or enter into a similar agreement with the applicable Remainco Asset Transferee with respect to the applicable Remainco Retained
Property.
3.4 Form of
Transfer. To the extent required, the conveyance to the applicable Remainco Asset Transferee
of each Remainco Retained Property shall (a) be in the form of a Lease Assignment Form executed by the applicable Asset Transferor
and the applicable Remainco Asset Transferee, (b) if applicable, require transfer tax forms (state, local or municipal, as applicable)
executed by the applicable Asset Transferor and the applicable Remainco Asset Transferee and (c) if applicable, require such other
deliverables as may be required by the laws of the jurisdiction in which the Remainco Retained Property is located, executed by the applicable
Asset Transferor and the applicable Remainco Asset Transferee.
3.5 Personal
Property. The provisions of the Separation Agreement shall apply to any personal property located
at each Remainco Retained Property (excluding any other personal property owned by Third Parties), except for the applicable scheduled
Excluded Personal Property.
3.6 Costs.
If Remainco and Buyer mutually agree to pay any monetary consent fee to a Landlord to obtain a Lease Consent, then Remainco and Buyer
shall each pay fifty percent (50%) of such consent fee.
ARTICLE IV
LEASED PROPERTY OUTSIDE THE
UNITED STATES
4.1 Leased
Property Outside the United States. With respect to each Leased Property located outside the
United States, Remainco and Spinco shall use a Lease Assignment Form, translated into the local language, if customary under local practice,
and modified to comply with local legal requirements to cause the appropriate transfers, assignments, subleases or licenses to occur.
Such transfers, assignments, subleases and licenses shall, so far as the law in the jurisdiction in which such Leased Property is located
permits, be on the same terms and conditions as provided in Article II and Article III, as applicable, and shall
include such other deliveries (and Remainco, Spinco and Buyer shall comply with such other customary procedures and formalities) as may
be required by the laws of the jurisdiction in which such Leased Property is located. In the event of a conflict between the terms of
this Agreement and the terms of any local agreements, the terms of such local agreements shall prevail.
ARTICLE V
SUBLEASED PROPERTY
5.1 Feasibility
Review and Discussion. To facilitate the sublease or license of a portion of each Subleased Property
by an Asset Transferor to a Spinco Asset Transferee or a Remainco Asset Transferee, as applicable, following the date hereof, Remainco
shall diligently and in good faith conduct an internal feasibility review of each Subleased Property identified on Schedule 6
to preliminarily determine the suitability of each Subleased Property for such sublease or license, as applicable, with such feasibility
review to include consideration of the nature of each Subleased Property’s space (including the feasibility and cost of demising
the space and sharing or dividing utilities, infrastructure, essential services, fire services, IT equipment, storage, facilities
and amenities within the space), the relative numbers of Spinco Employees and employees of members of the Remainco Group at each Subleased
Property, all applicable Laws, regulations and building codes implicated by a sublease or license and any associated construction work,
and potential risks or requirements associated with obtaining Lease Consents for any Relevant Leases. Promptly following completion of
a feasibility review, Remainco and Spinco shall discuss in good faith whether (i) a member of the Remainco Group and a member of
the Spinco Group should enter into a sublease or license of a portion of the applicable Subleased Property or (ii) Remainco or Spinco,
as applicable, should cause another member of the Remainco Group or a another member of the Spinco Group, respectively (the “Relocating
Party”), to secure an alternative location or remote work arrangement for its employees and operations which would otherwise
have continued at the applicable Subleased Property. If Remainco and Buyer do not reach a mutual agreement pursuant to the preceding sentence
on or before October 31, 2024, then the Relocating Party shall fully vacate, at its sole cost and expense, the applicable Subleased
Property on or prior to the Closing Date. If Remainco and Spinco agree that the Relocating Party must secure an alternative location,
the selection and implementation of such location shall be at the Relocating Party’s sole cost and expense.
5.2 Subleased
Properties In the United States. If Remainco and Spinco agree pursuant to Section 5.1
to enter into a sublease or license of a Subleased Property located in the United States, with respect to each sublease or license of
a portion of any such Subleased Property by an Asset Transferor to a Spinco Asset Transferee or a Remainco Asset Transferee, as applicable,
the sublease or license shall be in a commercially reasonable form, which shall be negotiated by Remainco and Buyer in good faith and
include, among other items, the terms set forth in Schedule 7. Remainco and Buyer shall facilitate execution of the sublease or
license of each Subleased Property, including obtaining the Lease Consent for any Relevant Lease, on the same terms and conditions as
provided in Article II and Article III for the assignment of the Leased Properties, as applicable.
5.3 Subleased
Properties Outside the United States. If
Remainco and Spinco agree pursuant to Section 5.1 to enter into a sublease or license of a Subleased Property located outside
the United States, with respect to any such Subleased Property, Remainco and Spinco shall use a commercially reasonable form, negotiated
by Remainco and Buyer in good faith pursuant to Section 5.2 and including the terms set forth in Schedule 7, translated
into the local language, if customary under local practice, and modified to comply with local legal requirements to cause the appropriate
transfers, assignments, subleases or licenses to occur. Such subleases or licenses shall, so far as the law in the jurisdiction in which
such Subleased Property is located permits, be on the same terms and conditions as provided in Section 5.2, and shall include
such other deliveries (and Remainco, Spinco and Buyer shall comply with such other customary procedures and formalities) as may be required
by the laws of the jurisdiction in which such Subleased Property is located. In the event of a conflict between the terms of this Agreement
and the terms of any local agreements, the terms of such local agreements shall prevail.
ARTICLE VI
MISCELLANEOUS
6.1 Entire
Agreement; Counterparts; Exchanges by Facsimile. Section 5.1 of the Separation Agreement
is incorporated by reference to this Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
6.2 Transaction
Documents; Precedence of Agreements. Section 5.2 of the Separation Agreement is incorporated
by reference to this Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
6.3 Survival.
Section 5.3 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in this
Agreement mutatis mutandis.
6.4 Expenses.
Section 5.4 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in this
Agreement mutatis mutandis.
6.5 Notices.
Section 5.5 of the Separation Agreement is incorporated by reference to this Agreement and
shall apply as if fully set forth in this Agreement mutatis mutandis.
6.6 Waiver.
Section 5.6 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in this
Agreement mutatis mutandis.
6.7 Assignment.
Section 5.7 of the Separation Agreement is incorporated by reference to this Agreement and
shall apply as if fully set forth in this Agreement mutatis mutandis.
6.8 Termination.
Section 5.8 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in this
Agreement mutatis mutandis.
6.9 Amendment.
No provision of this Agreement may be amended, supplemented or modified except by a written instrument signed by all of the Parties.
6.10 Group
Members. Section 5.10 of the Separation Agreement is incorporated by reference to this Agreement
and shall apply as if fully set forth in this Agreement mutatis mutandis.
6.11 Third-Party-Beneficiaries.
Except with respect to indemnification, this Agreement is solely for the benefit of the Parties and nothing in this Agreement, express
or implied, is intended to or shall confer upon any Person (other than the Parties) any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
6.12 Exhibits
and Schedules. Section 5.12 of the Separation Agreement is incorporated by reference to
this Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
6.13 Governing
Law. Section 5.13 of the Separation Agreement is incorporated by reference to this Agreement
and shall apply as if fully set forth in this Agreement mutatis mutandis; provided, that the Parties acknowledge that the
conveyances, assignments, subleases and licenses shall be governed by the law of the jurisdictions in which the Leased Properties are
located.
6.14 Submission
to Jurisdiction. Section 5.14 of the Separation Agreement is incorporated by reference to
this Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
6.15 Waiver
of Jury Trial. Section 5.15 of the Separation Agreement is incorporated by reference to
this Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
6.16 Specific
Performance. Section 5.16 of the Separation Agreement is incorporated by reference to this
Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
6.17 Severability.
Section 5.17 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
6.18 Construction.
Section 5.21 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
[Signature page follows]
IN WITNESS WHEREOF, the Parties
have caused this Agreement to be duly executed as of the day and year first above written.
|
INTERNATIONAL GAME TECHNOLOGY PLC |
|
|
|
By: |
/s/ Vincent L. Sadusky |
|
Name: |
Vincent L. Sadusky |
|
Title: |
Chief Executive Officer |
|
IGNITE ROTATE LLC |
|
|
|
|
By: |
International Game Technology PLC |
|
Its: |
Managing Member |
|
By: |
/s/ Massimiliano Chiara |
|
Name: |
Massimiliano Chiara |
|
Title: |
Executive Vice President and Chief Financial Officer |
[Signature Page to Real Estate Matters Agreement]
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed as of the day and year first above written.
|
EVERI HOLDINGS INC. |
|
|
|
|
By: |
/s/ Randy L. Taylor |
|
Name: |
Randy L. Taylor |
|
Title: |
Chief Executive Officer |
[Signature Page to Real Estate Matters
Agreement]
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed as of the day and year first above written.
|
VOYAGER PARENT, LLC |
|
|
|
|
By: |
/s/ Daniel Cohen |
|
Name: |
Daniel Cohen |
|
Title: |
Vice President, Secretary and Treasurer |
[Signature Page to Real Estate Matters
Agreement]
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of this Agreement
(including this Exhibit A):
“Actual Completion
Date” means, with respect to each Leased Property or Subleased Property, the date upon which completion of the transfer, assignment
or sublease of such Leased Property or Subleased Property actually takes place in accordance with the terms and conditions of this Agreement.
“Agreement”
shall have the meaning set forth in the Preamble.
“Asset Transferor”
shall have the meaning set forth in the Separation Agreement.
“Buyer”
shall have the meaning set forth in the Preamble.
“Buyer Group”
shall have the meaning set forth in the Separation Agreement.
“Buyer Sub”
shall have the meaning set forth in the Recitals.
“Closing Date”
shall have the meaning set forth in the Separation Agreement.
“Consent”
shall have the meaning set forth in the Separation Agreement.
“Excluded Personal
Property” means the personal property located at a Leased Property or a Subleased Property which is either a tangible Remainco
Retained Asset or a tangible Spinco Asset.
“Landlord”
means the third-party landlord, sublandlord or licensor under a Lease, and its successors and assigns, and includes the holder of any
other interest which is superior to the interest of the landlord, sublandlord or licensor under such Lease.
“Law” shall
have the meaning set forth in the Separation Agreement.
“Lease”
means, in relation to each Leased Property or Subleased Property, the lease, sublease or license under which the applicable Asset Transferor
has the right to occupy or use such Leased Property and any other supplemental document completed prior to the Actual Completion Date.
“Lease Assignment
Forms” means the forms of Lease assignment reasonably agreed to by Remainco and Buyer, acting in good faith.
“Lease Consents”
means, as applicable, all Consents required from the Landlords under the Relevant Leases to (a) assign the Relevant Leases to applicable
Spinco Asset Transferees or to applicable Remainco Asset Transferees, (b) sublease or license a Subleased Property to an applicable
Spinco Asset Transferee or an applicable Remainco Asset Transferee or (c) enter into any of the other transactions contemplated by
this Agreement.
“Leased Properties”
means the Spinco Assigned Properties and the Remainco Retained Properties.
“Liability”
shall have the meaning set forth in the Separation Agreement.
“Manchester Premises”
shall have the meaning set forth in Schedule 7.
“Merger”
shall have the meaning set forth in the Recitals.
“Merger Agreement”
shall have the meaning set forth in the Recitals.
“Merger Effective
Time” shall have the meaning set forth in the Merger Agreement.
“Merger Partner”
shall have the meaning set forth in the Preamble.
“Merger Partner Group”
shall have the meaning set forth in the Separation Agreement.
“Party”
shall have the meaning set forth in the Preamble.
“Person”
shall have the meaning set forth in the Separation Agreement.
“Relevant Leases”
means the Leases identified on Schedule 2 attached hereto with respect to which the Consent of the Landlord is required for
(a) the assignment to a Spinco Asset Transferee, (b) the assignment to a Remainco Asset Transferee, (c) the sublease or
license to a Spinco Asset Transferee or similar agreement with a Spinco Asset Transferee or (d) the sublease or license to a Remainco
Asset Transferee or similar agreement with a Remainco Asset Transferee.
“Relocating Party”
shall have the meaning set forth in Section 5.1.
“Remainco”
shall have the meaning set forth in the Preamble.
“Remainco Asset Transferee”
shall have the meaning set forth in the Separation Agreement.
“Remainco Group”
shall have the meaning set forth in the Separation Agreement.
“Remainco Retained
Asset” shall have the meaning set forth in the Separation Agreement.
“Remainco Retained
Business” shall have the meaning set forth in the Separation Agreement.
“Remainco Retained
Properties” means each of the properties identified on Schedule 3 attached hereto.
“Separation”
shall have the meaning set forth in the Separation Agreement.
“Separation Agreement”
shall have the meaning set forth in the Recitals.
“Spinco”
shall have the meaning set forth in the Preamble.
“Spinco Asset”
shall have the meaning set forth in the Separation Agreement.
“Spinco Asset Transferee”
shall have the meaning set forth in the Separation Agreement.
“Spinco Assigned
Properties” means each of the properties identified on Schedule 1 attached hereto.
“Spinco Business”
shall have the meaning set forth in the Separation Agreement.
“Spinco Contribution”
shall have the meaning set forth in the Separation Agreement.
“Spinco Employee”
shall have the meaning set forth in the Separation Agreement.
“Spinco Group”
shall have the meaning set forth in the Separation Agreement.
“Spinco Properties”
means each of the properties identified on Schedule 4 attached hereto.
“Spinco Units”
shall have the meaning set forth in the Merger Agreement.
“Subleased Property”
means each of the properties identified on Schedule 5 attached hereto.
“Subsidiary”
shall have the meaning set forth in the Separation Agreement.
“Transaction Documents”
shall have the meaning set forth in the Separation Agreement.
“Transfer”
shall have the meaning set forth in the Separation Agreement.
Exhibit 10.4
TAX MATTERS AGREEMENT
by and among
INTERNATIONAL GAME TECHNOLOGY PLC,
IGNITE ROTATE LLC,
EVERI
HOLDINGS INC.
and
VOYAGER PARENT, LLC
Dated as of July 26, 2024
TABLE OF CONTENTS
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Page |
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Article I Allocation of Tax Liabilities |
1 |
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1.01 |
General Rule |
1 |
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1.02 |
Attribution of Taxes |
2 |
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1.03 |
Transaction Taxes |
3 |
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Article II Preparation and Filing of Tax Returns |
3 |
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2.01 |
General |
3 |
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2.02 |
Responsibility for Preparation and Filing and Payment of Taxes Shown
Due |
3 |
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2.03 |
Tax Reporting Practices |
4 |
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2.04 |
Consolidated or Combined Tax Returns |
4 |
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2.05 |
Right to Review Tax Returns |
4 |
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2.06 |
Refunds, Carrybacks and Amended Tax Returns |
5 |
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Article III Tax Payments |
7 |
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3.01 |
Payment of Taxes |
7 |
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3.02 |
Indemnification Payments |
8 |
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Article IV Tax Benefits |
9 |
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4.01 |
Tax Benefits |
9 |
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Article V Group
Relief |
10 |
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5.01 |
Termination of Group |
10 |
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Article VI Cooperation and Reliance |
11 |
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6.01 |
Assistance and Cooperation |
11 |
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6.02 |
Tax Return Information |
12 |
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6.03 |
Non-Performance |
12 |
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6.04 |
Costs |
12 |
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Article VII Tax Records |
13 |
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7.01 |
Retention of Tax Records |
13 |
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7.02 |
Access to Tax Records |
13 |
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Article VIII Tax Contests |
14 |
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8.01 |
Notice |
14 |
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8.02 |
Control of Tax Contests |
14 |
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Article IX Effective Date; Termination of Prior Intercompany
Tax Allocation Agreements |
16 |
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Article X Survival of Obligations |
16 |
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10.01 |
Survival of Obligations |
16 |
Article XI Treatment of Payments |
16 |
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11.01 |
Treatment of Tax Indemnity Payments |
16 |
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Article XII DISPUTEs |
17 |
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12.01 |
Disputes |
17 |
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12.02 |
Injunctive Relief |
17 |
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Article XIII Expenses |
17 |
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Article XIV General Provisions |
18 |
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14.01 |
Entire Agreement; Counterparts; Exchanges by Facsimile |
18 |
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14.02 |
Transaction Documents; Precedence of Agreements |
18 |
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14.03 |
Survival |
18 |
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14.04 |
Expenses |
18 |
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14.05 |
Notices |
18 |
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14.06 |
Waiver |
18 |
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14.07 |
Assignment |
18 |
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14.08 |
Termination |
18 |
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14.09 |
Amendment |
18 |
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14.10 |
Group Members |
18 |
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14.11 |
Third-Party-Beneficiaries |
18 |
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14.12 |
Exhibits and Schedules |
18 |
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14.13 |
Governing Law |
18 |
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14.14 |
Submission to Jurisdiction |
19 |
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14.15 |
Waiver of Jury Trial |
19 |
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14.16 |
Specific Performance |
19 |
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14.17 |
Severability |
19 |
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14.18 |
Construction |
19 |
Exhibit A |
- |
Certain Definitions |
Exhibit B |
- |
List of Remainco Consolidated Returns |
TAX MATTERS AGREEMENT
This TAX MATTERS AGREEMENT
(this “Agreement”) is made and entered into as of July 26, 2024, by and among (a) INTERNATIONAL GAME TECHNOLOGY
PLC, a public limited company incorporated under the laws of England and Wales (“Remainco”); (b) IGNITE
ROTATE LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of Remainco (“Spinco,” and
together with Remainco, the “Companies,” and each a “Company”); (c) EVERI HOLDINGS INC.,
a Delaware corporation (“Merger Partner”) and (d) VOYAGER PARENT, LLC, a Delaware limited liability company
(“Buyer,” and together with Remainco, Spinco and Merger Partner, the “Parties,” and each a “Party”).
Certain capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
WHEREAS,
Remainco is engaged, directly and indirectly, in the Spinco Business;
Whereas,
on the terms and subject to the conditions set forth in the Separation Agreement, Remainco will effectuate the Separation, including the
Spinco Contribution;
Whereas,
following the Separation, Remainco desires to sell to Buyer, and Buyer desires to purchase from Remainco, all of Remainco’s right,
title and interest in and to the Spinco Units upon the terms and subject to the conditions set forth herein;
WHEREAS,
concurrently with the execution of this Agreement, Remainco, Spinco, Voyager Merger Sub, Inc., a Delaware corporation and a direct
wholly owned Subsidiary of Buyer (“Buyer Sub”), and Merger Partner have entered into the Agreement and Plan of Merger,
dated as of the date hereof (as it may be amended, modified or supplemented from time to time, the “Merger Agreement”);
Whereas,
the Parties contemplate that, pursuant to the Merger Agreement and immediately following the consummation of the sale of the Spinco Units
to Buyer, at the Merger Effective Time, Buyer Sub shall be merged (the “Merger”) with and into Merger Partner, with
Merger Partner surviving the Merger as a wholly owned direct Subsidiary of Buyer; and
Whereas,
the Parties desire to set forth the principal arrangements among them with respect to Tax matters regarding the foregoing transactions
and to make certain covenants and agreements specified in this Agreement in connection therewith and to prescribe certain conditions relating
thereto.
NOW, THEREFORE,
in consideration of the foregoing, the covenants and agreements set forth below and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Article I
Allocation
of Tax Liabilities
1.01 General
Rule.
(a) Remainco
Liability. From and after the Closing, Remainco shall be liable for, and shall indemnify and hold harmless the members of the
Buyer Group and the members of the Spinco Group from and against any liability for, Remainco Taxes to the extent not otherwise taken into
account in determining the Final Purchase Price.
(b) Spinco
Liability. From and after the Closing, Spinco, Merger Partner and Buyer shall be jointly and severally liable for, and shall
indemnify and hold harmless the members of the Remainco Group from and against any liability for, Spinco Taxes.
1.02 Attribution
of Taxes.
(a) General.
For all purposes of this Agreement, a Tax and any Tax Items shall be considered attributable to the Spinco Business on the one hand
and the Remainco Retained Business on the other (but not both) to the extent that such Tax and Tax Item would result if such Tax Return
were prepared on a separate basis taking into account only the operations, Assets and Liabilities of the Spinco Business on the one hand,
and only the operations, Assets and Liabilities of the Remainco Retained Business, on the other hand (but not both), as applicable. With
respect to Income Taxes, such Tax and Tax Items shall be jointly determined by Remainco and Buyer in good faith consistent with Past Practices.
With respect to any other Taxes or Tax Items, Remainco and Buyer shall jointly determine in good faith consistent with Past Practices
which such Taxes and Tax Items are properly attributable to assets or activities of the Spinco Business and the Remainco Retained Business,
respectively (and in the case of such a Tax or Tax Item that is properly attributable to both the Spinco Business and the Remainco Retained
Business, the allocation of such Tax or Tax Item between the Spinco Business and the Remainco Retained Business).
(b) Close
of Tax Year and Straddle Period Tax Allocation. The Parties shall take all actions necessary or appropriate to close the taxable
year of each member of the Spinco Group for all Tax purposes as of the close of the Closing Date to the extent permissible or required
under applicable Law. If applicable Law does not require or permit a member of the Spinco Group to close its taxable year on the Closing
Date, then the allocation of income or deductions required to determine any Taxes or other amounts attributable to the portion of the
Straddle Period ending on, or beginning after, the Closing Date shall be made by means of a closing of the books and records of such member
of the Spinco Group as of the close of the Closing Date; provided, that exemptions, allowances or deductions that are calculated
on an annual or periodic basis shall be allocated between such portions in proportion to the number of days in each such portion;
provided, further, that real property and other property or similar periodic Taxes shall be apportioned on a per diem basis and income
that is includable by a member of the Spinco Group under Sections 951 and 951A of the Code for any Pre-Closing Period shall be included
in the income of such member of the Spinco Group as though the taxable year of such member of the Spinco Group’s foreign Subsidiaries
which are treated as “controlled foreign corporations” within the meaning of Section 957(a) of the Code ended on
the Closing Date, with the income of each such foreign Subsidiary measured on a closing of the books basis. Items of deduction or credit
that are calculable only on a consolidated basis shall be determined on such basis (and not on a separate return basis) and then equitably
apportioned by the Party responsible for preparing the applicable Tax Return.
1.03 Transaction
Taxes. Transaction Taxes shall be allocated one hundred percent (100%) to Remainco.
Article II
Preparation
and Filing of Tax Returns
2.01 General.
Tax Returns shall be prepared and filed when due (including extensions) in accordance with this Article II. Each Company shall
provide, and shall cause the members of its Group to provide, assistance and cooperation to the other Company in accordance with Article VI
with respect to the preparation and filing of Tax Returns, including providing information required to be provided in Article VI.
2.02 Responsibility
for Preparation and Filing and Payment of Taxes Shown Due.
(a) Remainco
Consolidated Return. Remainco shall prepare and file all Remainco Consolidated Returns for a Pre-Closing Period or a Straddle
Period.
(b) Buyer
Consolidated Return. Buyer shall prepare and file all Buyer Consolidated Returns for a Pre-Closing Period or a Straddle Period.
(c) Mixed
Business Tax Returns.
(i) Remainco
shall prepare and file (or cause to be prepared and filed) any Mixed Business Tax Return for a Pre-Closing Period or a Straddle Period
required by Law to be filed by a member of the Remainco Group.
(ii) Buyer
shall prepare and file (or cause to be prepared and filed) any Mixed Business Tax Return for a Pre-Closing Period or a Straddle Period
required by Law to be filed by a member of the Spinco Group after the Closing Date.
(d) Single
Business Tax Returns.
(i) Remainco
shall prepare and file (or cause to be prepared and filed) any Single Business Tax Return for a Pre-Closing Period or a Straddle Period
required by Law to be filed by a member of the Remainco Group.
(ii) Buyer
shall prepare and file (or cause to be prepared and filed) any Single Business Tax Return for a Pre-Closing Period or a Straddle Period
required by Law to be filed by a member of the Spinco Group after the Closing Date.
(e) Next
Day Rule. Notwithstanding anything to the contrary contained in this Agreement, for applicable Tax purposes, the Parties shall report
any Extraordinary Transactions on the Closing Date after the Equity Sale Closing Time as occurring on the day after the Closing Date to
the extent permitted by Treasury Regulations Section 1.1502-76(b)(1)(ii)(B) or any similar or analogous provision of state,
local or non-U.S. Law.
2.03 Tax
Reporting Practices
. With respect to any Tax Return that a Company has the obligation
and right to prepare and file, or cause to be prepared and filed, under Section 2.02, for any Tax period ending on or before
the Closing Date, the Responsible Company shall prepare such Tax Return in accordance with past practices, accounting methods, elections
or conventions to the extent allowed by Law (“Past Practices”), and to the extent any items are not covered by Past
Practices (or in the event that there is not a more likely than not basis for the use of such Past Practices), in accordance with reasonable
Tax practices selected by the Responsible Company after good faith consultation with the other Company.
2.04 Consolidated
or Combined Tax Returns.
(a) Buyer
shall cause the applicable members of the Spinco Group to elect and join in filing any consolidated, combined or unitary Tax Returns that
are required to be filed by Remainco under applicable Law or that the Parties mutually agree in writing that Remainco will file pursuant
to Section 2.02 with respect to any Pre-Closing Period.
(b) With
respect to all Remainco Consolidated Returns or Buyer Consolidated Returns for the taxable year which includes the Closing Date, Buyer
or Remainco, as applicable, shall use the closing of the books method under Treasury Regulations Section 1.1502-76 based on information
available, including reasonable estimates consistent with Past Practice.
2.05 Right
to Review Tax Returns.
(a) Except
with respect to Remainco Consolidated Returns or Buyer Consolidated Returns (which shall be governed by Section 2.05(d)) or
as otherwise agreed by the Companies, in the case of any Tax Returns provided for by Section 2.02 and which reflects a Tax
liability reasonably expected to be borne by a Party, to the extent not previously filed, no later than twenty (20) Business Days prior
to the Due Date of each such Tax Return (reduced to ten (10) Business Days for state or local Tax Returns), the Responsible Company
shall make available or cause to be made available drafts of such Tax Return (together with all related work papers) to the other Company.
The other Company shall have access to any and all data and information necessary for the preparation of all such Tax Returns and the
Companies shall cooperate fully in the preparation and review of such Tax Returns. Subject to the preceding sentence, no later than ten
(10) Business Days after receipt of such Tax Returns (reduced to five (5) Business Days for state or local Tax Returns), the
other Company shall have a right to object to such Tax Return (or items with respect thereto) by notice to the Responsible Company. Any
such notice to the Responsible Company shall contain the disputed item (or items) and the basis for the other Company’s objection.
(b) If
a Company objects by proper notice described in Section 2.05(a), the Companies shall act in good faith to resolve any such
dispute as promptly as practicable; provided that, notwithstanding anything to the contrary contained in this Agreement, if the
Companies have not resolved the disputed item or items by the date which is two (2) Business Days prior to the Due Date of such Tax
Return, such Tax Return shall be filed as prepared pursuant to this Section 2.05 (revised to reflect all initially disputed
items that the Companies have agreed upon prior to such date).
(c) If
a Tax Return is filed that includes any disputed item for which proper notice was given pursuant to Section 2.05(a) that
was not finally resolved and agreed upon, such disputed item (or items) shall be resolved in accordance with Article XII. If the
resolution of such disputed item (or items) in accordance with Article XII with respect to a Tax Return is inconsistent with such
Tax Return as filed, the Responsible Company (with cooperation from the other Company) shall, as promptly as practicable, amend such Tax
Return to properly reflect the final resolution of the disputed item (or items). If the amount of Taxes shown to be due and owing on a
Tax Return is adjusted as a result of a resolution pursuant to Article XII, proper adjustment shall be made to the amounts previously
paid or required to be paid in accordance with Article III in a manner that reflects such resolution.
(d) Remainco
shall provide a draft, prepared in a manner that is consistent with Past Practice, of only those portions of any Remainco Consolidated
Return that reflect a Tax liability reasonably expected to be borne by any member of the Spinco Group, any member of the Merger Partner
Group or any member of the Buyer Group to Buyer for Buyer’s review and comment no later than the date which is thirty (30) Business
Days prior to the Due Date for each such Remainco Consolidated Return (reduced to twenty (20) Business Days for state or local Tax Returns);
provided that nothing in this Agreement shall prevent Remainco from timely filing any such Remainco Consolidated Return; provided,
further, that Remainco shall not be required to provide such draft if it determines in its sole discretion to waive any liability
that any member of the Spinco Group, any member of the Merger Partner Group or any member of the Buyer Group may have in respect of such
Tax liability and agrees such Tax shall not be treated as a Spinco Tax. If any dispute involving a Remainco Consolidated Return is not
resolved prior to the Due Date for the filing of such Remainco Consolidated Return, then such Remainco Consolidated Return shall be timely
filed by Remainco and Remainco agrees to amend such Remainco Consolidated Return as necessary to reflect the resolution of such dispute
in a manner consistent with such resolution. Buyer shall provide, or cause to be provided, a draft, prepared in a manner that is consistent
with Past Practice, of only those portions of any Buyer Consolidated Return that reflect a Tax liability reasonably expected to be borne
by any member of the Remainco Group for Remainco’s review and comment no later than the date which is thirty (30) Business Days
prior to the Due Date for each such Buyer Consolidated Return (reduced to twenty (20) Business Days for state or local Tax Returns); provided
that nothing in this Agreement shall prevent Buyer from timely filing any such Buyer Consolidated Return; provided, further,
that Buyer shall not be required to provide such draft if it determines in its sole discretion to waive any liability that any member
of the Remainco Group may have in respect of such Tax liability and agrees such Tax shall not be treated as a Remainco Tax. If any dispute
involving a Buyer Consolidated Return is not resolved prior to the Due Date for the filing of such Buyer Consolidated Return, then such
Buyer Consolidated Return shall be timely filed by Buyer and Buyer agrees to amend such Buyer Consolidated Return as necessary to reflect
the resolution of such dispute in a manner consistent with such resolution. Notwithstanding anything to the contrary contained in this
Agreement and except as provided in this Section 2.05, Remainco or Buyer, as the case may be, shall not have any rights to
review or comment upon any Buyer Consolidated Return or any Remainco Consolidated Return, respectively.
2.06 Refunds,
Carrybacks and Amended Tax Returns.
(a) Refunds.
(i) Each
member of the Remainco Group or each member of the Spinco Group (each such member, as applicable, the “Claiming Company”)
shall be entitled to Refunds that relate to Taxes for which any member of the Remainco Group, on the one hand, and any member of the Spinco
Group, any member of the Merger Partner Group or any member of the Buyer Group, on the other hand, is liable under this Agreement. To
the extent that a particular Refund of Taxes may be allocable to a Straddle Period with respect to which the Parties may share responsibility
pursuant to Articles II and III, the portion of such Refund to which each Party will be entitled shall be determined by comparing the
amount of payments made by a Party to a Tax Authority or to the other Party (and reduced by the amount of payments received from the other
Party) pursuant to Articles II and III with the Tax liability of such Party as determined under Section 1.02, taking into
account the facts as utilized for purposes of claiming such Refund.
(ii) Notwithstanding
Section 2.06(a)(i), to the extent a claim for a Refund results in a Correlative Detriment to a member of the Remainco Group
or a member of the Spinco Group, as applicable, any such Refund that is received by the Claiming Company shall, and only to the extent
thereof, be paid to the member of the Remainco Group or the Spinco Group that incurs such Correlative Detriment.
(iii) In
the event of an adjustment relating to Taxes pursuant to a Final Determination for which a Party is responsible under this Agreement which
would have given rise to a Refund but for an offset against the Taxes for which the other Party is or may be responsible pursuant to this
Agreement (the “Benefited Party”), then the Benefited Party shall pay to such Party, within ten (10) Business
Days of the Final Determination of such adjustment, an amount equal to the amount of such reduction in the Taxes of the Benefited Party.
(iv) Any
Refund or portion thereof to which a Claiming Company is entitled pursuant to this Section 2.06(a) that is received or
deemed to have been received as described in this Agreement by a member of the Remainco Group or the Spinco Group, as applicable, shall
be paid by such member to the Claiming Company in immediately available funds in accordance with Article III. To the extent
a member of the Remainco Group or Spinco Group, as applicable, applies or causes to be applied an overpayment of Taxes as a credit toward
or a reduction in Taxes otherwise payable (or a Tax Authority requires such application in lieu of a Refund) and such Refund, if received,
would have been payable by such member to the Claiming Company pursuant to this Section 2.06(a), such member shall be deemed
to have actually received a Refund to the extent thereof on the date on which the overpayment is applied to reduce Taxes otherwise payable.
(v) Notwithstanding
anything to the contrary contained in this Agreement, any Company that has claimed (or causes another member of its Group to claim) a
Refund shall be liable for any Taxes that become due and payable as a result of the subsequent adjustment, if any, to the Refund claim.
(b) Carrybacks.
(i) To
the extent permitted by applicable Law, Spinco or the applicable member of the Spinco Group, shall relinquish, waive or otherwise forgo
the carryback of any loss, credit or other Tax Attribute from any Post-Closing Period to any Pre-Closing Period or any Straddle Period
with respect to Taxes reflected on a Remainco Consolidated Return.
(ii) Notwithstanding
anything to the contrary contained in this Agreement, any Company that has claimed (or causes another member of its Group to claim) a
Tax Attribute carryback shall be liable for any Taxes that result from such carryback claim that could have been relinquished, waived
or otherwise foregone under applicable Tax Law and for any Taxes that become due and payable as a result of the subsequent adjustment,
if any, to the carryback claim.
(iii) Each
Company shall be entitled to any Refund that is attributable to, and would not have arisen but for, a carryback of a Tax Attribute by
such Company (or by another member of its Group) pursuant to the provisions set forth in this Section 2.06(b).
(c) Amended
Tax Returns.
(i) Notwithstanding
anything to the contrary contained in Section 2.01, unless required by applicable Law, neither Company (nor any member of
its Group) shall file an amended Tax Return for a Pre-Closing Period or a Straddle Period without the consent, not to be unreasonably
withheld, conditioned or delayed, of the other Company; provided, that Remainco may file, or cause to be filed, any such amended
Tax Return to the extent it relates solely to Remainco Taxes for which no member of the Spinco Group, no member of the Merger Partner
Group or no member of the Buyer Group has any liability under this Agreement and Spinco may file, or cause to be filed, any such amended
Tax Return to the extent it relates solely to Spinco Taxes or Taxes of Merger Partner or Buyer for which no member of the Remainco Group
has any liability under this Agreement.
(ii) Each
Company that is permitted (or another member of whose Group that is permitted) to file an amended Tax Return shall not be relieved of
any liability for payments pursuant to this Agreement notwithstanding that the other Company consented to the filing of such amended Tax
Return giving rise to such liability.
Article III
Tax
Payments
3.01 Payment
of Taxes.
(a) Computation
and Payment of Tax Due. At least ten (10) Business Days prior to the due date for any Tax Return (taking into account
extensions properly obtained), the Responsible Company shall compute the amount of Tax required to be paid to the applicable Tax Authority
(taking into account the requirements of Section 2.03 relating to consistent reporting practices, as applicable) with respect
to such Tax Return on such date. The Responsible Company shall pay such amount to such Tax Authority on or before such date. The Responsible
Company shall provide notice to the other Company setting forth the other Company’s responsibility for the amount of Taxes paid
to the Tax Authority and provide proof of payment of such Taxes.
(b) Computation
and Payment of Liability with Respect to Tax Due. Within ten (10) Business Days following the earlier of (i) the
due date (including extensions) for filing any such Tax Return described in Section 3.01(a) (excluding any Tax Return with respect
to payment of estimated Taxes or Taxes due with a request for extension of time to file) or (ii) the date on which such Tax Return
is filed, if a member of the Remainco Group is the Responsible Company, then Buyer shall pay, or cause to be paid, to Remainco the amount
allocable to the Spinco Group under the provisions of this Agreement, and if a member of the Buyer Group is the Responsible Company, then
Remainco shall pay, or cause to be paid, to Buyer the amount allocable to the Remainco Group under the provisions of this Agreement. Such
period shall not commence unless and until the Responsible Company notifies the other Company pursuant to Section 3.01(a) and
interest shall not accrue during any time period where such notification has not been received.
(c) Adjustments
Resulting in Underpayments. In the case of any adjustment pursuant to a Final Determination with respect to any such Tax Return,
the Responsible Company shall pay to the applicable Tax Authority when due any additional Tax due with respect to such Tax Return required
to be paid as a result of such adjustment pursuant to such Final Determination. The Responsible Company shall compute the amount attributable
to the Spinco Group or the Remainco Group (as the case may be) in accordance with this Agreement and Buyer shall pay, or cause to be paid,
to Remainco any amount due to Remainco or Remainco shall pay, or cause to be paid, to Buyer any amount due to Buyer under this Agreement
within ten (10) Business Days from the later of (i) the date the additional Tax was paid by the Responsible Company or, in an
instance where no cash payment is due to a Tax Authority, the date of such Final Determination, or (ii) the date of receipt of a
written demand from the Responsible Company for payment of the amount due, accompanied by evidence of payment and a statement detailing
the Taxes paid and describing in reasonable detail the particulars relating to such Taxes.
3.02 Indemnification
Payments.
(a) If
a Party (the “Payor”) is required under applicable Tax Law to pay to a Tax Authority a Tax for which the other Party
(the “Required Company”) is liable under this Agreement, then the Payor shall provide notice to the Required Company
for the amount due, accompanied by evidence of payment and a statement detailing the Taxes paid and describing in reasonable detail the
particulars relating to such Taxes. The Required Company shall have a period of ten (10) Business Days after the receipt of notice
to respond. Unless the Required Company disputes the amount it is liable for under this Agreement, the Required Company shall reimburse
the Payor within ten (10) Business Days of delivery by the Payor of the notice described above. To the extent the Required Company
does not agree with the amount the Payor claims the Required Company is liable for under this Agreement, the dispute shall be resolved
in accordance with Article XII.
(b) Any
Tax indemnity payment required to be made by the Required Company pursuant to this Agreement shall be reduced by any corresponding Tax
Benefit payment required to be made to the Required Company by the other Company pursuant to Section 4.01. A Tax Benefit payment
shall be treated as corresponding to a Tax indemnity payment to the extent the Tax Benefit realized is directly attributable to the same
Tax Item (or adjustment of such Tax Item pursuant to a Final Determination) that gave rise to the Tax indemnity payment.
(c) All
indemnification payments under this Agreement shall be made by a Party to the other Party; provided that upon the reasonable request
of a Party entitled to indemnification, any member of such Party’s Group may make such indemnification payment to any member of
the other Party’s Group. All indemnification payments shall be treated in the manner described in Article XI.
Article IV
Tax
Benefits
4.01 Tax
Benefits
(a) If
a member of the Spinco Group recognizes any Tax Benefit as a result of an adjustment pursuant to a Final Determination with respect to
any Taxes for which Remainco is liable under this Agreement and such Tax Benefit would not have arisen but for such adjustment (determined
on a “with and without” basis with items related to the Loss being the last items counted), or if a member of the Remainco
Group recognizes any Tax Benefit as a result of an adjustment pursuant to a Final Determination to any Taxes for which a member of the
Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group is liable under this Agreement and such Tax Benefit
would not have arisen but for such adjustment (determined on a “with and without” basis with items related to the Loss being
the last such items counted), Spinco or Remainco, as the case may be, shall make (or cause to be made) a payment to the other Company
within ten (10) Business Days following such actual recognition of the Tax Benefit, in an amount equal to such Tax Benefit. If any
audit or other proceeding results in any decrease in the amount of any Tax Benefit, appropriate payments will be made between the Companies
to properly reflect such adjustment amount.
(b) No
later than ten (10) Business Days after a Tax Benefit described in Section 4.01(a) is actually received by a member
of the Remainco Group or a member of the Spinco Group, Remainco (if a member of the Remainco Group recognizes such Tax Benefit) or Spinco
(if a member of the Spinco Group recognizes such Tax Benefit) shall provide the other Company with notice of the amount payable to the
other Company pursuant to this Section 4.01. If a Company disagrees with any such calculation described in this Section 4.01(b),
such Company shall so notify the other Company in writing within five (5) Business Days of receiving the written calculation set
forth above in this Section 4.01(b). Each Company shall endeavor in good faith to resolve such disagreement, and, failing
that, the amount payable under this Section 4.01 shall be determined in accordance with Article XII as promptly as practicable.
Notwithstanding anything to the contrary contained in this Agreement, no Company shall be required to provide the other Company with any
Tax Return or other Tax information in connection with this provision.
Article V
Group
Relief
5.01 Termination
of Group
(a) For
all periods of the members of the Spinco Group ending on or before the Equity Sale Closing Time and, in the case of any Straddle Period,
the part of the period prior to the Equity Sale Closing Time, Spinco, Merger Partner and Buyer (as appropriate) shall cause the applicable
members of the Spinco Group to surrender to, or claim from, Remainco, or any other member of the Remainco Group, all such Group Relief
set forth in Section 5.01 hereto or as otherwise agreed in writing by the Parties, subject to and as permitted by applicable
law; provided that (i) none of Spinco, Merger Partner or Buyer shall be obliged to procure any surrender or claim for Group Relief
pursuant to this Section 5.01 to the extent that (X) the availability or existence of such Group Relief has been taken into
account in determining the Final Purchase Price and/or (Y) such surrender or claim may give rise to any liability for Tax of any
member of the Spinco Group, any member of the Merger Partner Group or any member of the Buyer Group which is attributable to any period
ending on or before the Equity Sale Closing Time (including any Extraordinary Transaction entered into prior to the Equity Sale Closing
Time at the voluntary direction of Remainco or any member of the Spinco Group), and (ii) any commercially reasonable costs properly
incurred by Spinco, Merger Partner and Buyer in causing the applicable members of the Spinco Group to effect such Group Relief surrender
or claim (including any such commercially reasonable costs properly incurred by a member of the Spinco Group in effecting such Group Relief
surrender or claim) shall be borne by Remainco subject to receipt of satisfactory evidence of payment thereof.
(b) Spinco,
Merger Partner and Buyer shall, and shall cause the applicable members of the Spinco Group to, use commercially reasonable efforts to
procure that full effect is given to the surrenders and claims to be made under Section 5.01(a) and that such surrenders
and claims are allowed in full by the relevant Tax Authority and (without prejudice to the generality of the foregoing) Spinco, Merger
Partner and Buyer shall cause the applicable members of the Spinco Group to sign and submit to the relevant Tax Authority all such notices
of consent to surrender (including provisional or protective notices of consent in cases where any relevant Tax computation has not yet
been agreed), all such claims and all such other documents and returns as may be necessary to secure that full effect is given to the
surrenders and claims to be made under Section 5.01(a).
(c) Except
as required by Law or if the Reliefs which formed part of a Group Relief surrender were not available to be surrendered (whether as a
result of the relevant Tax Authority refusing to allow Group Relief or otherwise), Spinco, Merger Partner and Buyer shall not, and shall
cause each applicable member of the Spinco Group not to, amend or withdraw any notices of consent to surrender or other documents referred
to in Section 5.01(b), or make any representation, claim or filing that is inconsistent therewith, save with the express written
consent of Remainco, not to be unreasonably withheld, conditioned or delayed.
(d) Remainco
shall not, and shall cause each other member of the Remainco Group not to, amend or withdraw any return submitted prior to the Equity
Sale Closing Time that would result in the withdrawal or reduction of the amount of any Group Relief surrendered to a member of the Spinco
Group unless required by Law or if the Reliefs which formed part of a Group Relief surrender were not available to be surrendered (whether
as a result of the relevant Tax Authority refusing to allow Group Relief or otherwise).
(e) Spinco
shall not, and shall cause each other member of the Spinco Group not to, amend or withdraw any return submitted prior to the Equity Sale
Closing Time that would result in the withdrawal or reduction of the amount of any Group Relief surrendered to a member of the Remainco
Group unless required by law or if the Reliefs which formed part of a Group Relief surrender were not available to be surrendered (whether
as a result of the relevant Tax Authority refusing to allow Group Relief or otherwise ).
(f) If,
after the Equity Sale Closing Time, the Reliefs which formed part of a Group Relief surrender to a member of the Remainco Group by a member
of the Spinco Group were not available to be surrendered (whether as a result of the relevant Tax Authority refusing to allow Group Relief
or subsequently withdrawing Group Relief in respect of the relevant surrender or for any other reason whatsoever), Spinco, Merger Partner
and Buyer shall, if requested in writing by Remainco, cause the applicable members of the Spinco Group to take reasonable actions to procure
that the Reliefs which formed part of the relevant Group Relief are available to be surrendered, provided that (i) none of Spinco,
Merger Partner or Buyer shall be obliged to procure any surrender or claim for Group Relief pursuant to this Section to the extent
that (X) the availability or existence of such Group Relief has been taken into account in determining the Final Purchase Price and/or
(Y) such surrender or claim may give rise to any liability for Tax of any member of the Spinco Group, any member of the Merger Partner
Group or any member of the Buyer Group which is attributable to any period ending on or before the Equity Sale Closing Time (including
any Extraordinary Transaction entered into prior to the Equity Sale Closing Time at the voluntary direction of Remainco or any member
of the Spinco Group), and (ii) any commercially reasonable costs properly incurred by Spinco, Merger Partner and Buyer in causing
the applicable members of the Spinco Group to effect such Group Relief surrender or claim (including any such commercially reasonable
costs properly incurred by a member of the Spinco Group in effecting such Group Relief surrender or claim) shall be borne by Remainco
subject to receipt of satisfactory evidence of payment thereof.
(g) For
the avoidance of doubt, (i) any surrender or claim for any Group Relief made pursuant to this Section 5.01 shall be for nil
consideration and (ii) none of Spinco, Merger Partner or Buyer represent, warrant or underwrite the availability or existence of
any Reliefs which form (or may form) part of any Group Relief surrender or claim contemplated by this Section 5.01.
Article VI
Cooperation
and Reliance
6.01 Assistance
and Cooperation.
(a) Each
Company shall cooperate, and shall cause the other members of its Group to cooperate, with the other Company and its agents and representatives,
including accounting firms and legal counsel, in connection with Tax matters relating to the Companies and their Groups, including (i) preparation
and filing of Tax Returns, (ii) determining the liability for and amount of any Taxes due (including estimated Taxes) or the right
to and amount of any refund of Taxes, (iii) examinations of Tax Returns and (iv) any administrative or judicial proceeding in
respect of Taxes assessed or proposed to be assessed. Such cooperation shall include making all information and documents in their possession
relating to the other Company and the other members of its Group available to the other Company as provided in Article VII.
Each Company shall also make available to the other Company, as reasonably requested and available, personnel (including officers, employees
and agents of such Company and the other members of its Group) responsible for preparing, maintaining, and interpreting information and
documents relevant to Taxes, and personnel reasonably required as witnesses or for purposes of providing information or documents in connection
with any administrative or judicial proceedings relating to Taxes.
(b) Any
information or documents provided under this Article VI shall be kept confidential by the Company receiving the information
or documents, except as may otherwise be necessary in connection with the filing of Tax Returns or in connection with any administrative
or judicial proceedings relating to Taxes. Notwithstanding any other provision to the contrary contained in any Transaction Document,
(i) neither Company nor any of the other members of its Group shall be required to provide the other Company or any of the other
members of its Group or any other Person access to or copies of any information or procedures (including the proceedings of any Tax Contest)
other than information or procedures that relate solely to the first Company, the business or assets of the first Company or any of the
other members of its Group and (ii) in no event shall a Company or the other members of its Group be required to provide the other
Company, any of the other Group’s members or any other Person access to or copies of any information if such action in each of clause
(i) or clause (ii) could reasonably be expected to result in the waiver of any privilege. In addition, if a Company determines
that the provision of any information to the other Company or any of the other members of its Group could be commercially detrimental,
violate any Law or agreement or waive any privilege, then such Company shall use reasonable best efforts to comply with its obligations
under this Article VI in a manner that avoids any such harm or consequence.
6.02 Tax
Return Information. Each Company acknowledges that time is of the essence in relation to any request for information, assistance
or cooperation made by a Company pursuant to Section 6.01 or this Section 6.02. Each Company shall provide to
the other Company information and documents relating to its Group required by the other Company to prepare Tax Returns. Any information
or documents the Responsible Company requires to prepare such Tax Returns shall be provided in such form as the Responsible Company reasonably
requests and in sufficient time for the Responsible Company to file such Tax Returns on a timely basis.
6.03 Non-Performance.
If a Company (or any of the other members of its Group) fails to comply with any of its obligations set forth in this Article VI
upon reasonable request and notice by the other Company and such failure results in the imposition of additional Taxes, the non-performing
Company shall be liable in full for such additional Taxes.
6.04 Costs.
Each Company shall devote the personnel and resources necessary to perform its obligations under this Article VI and shall
make its employees available on a mutually convenient basis to provide explanations of any documents or information provided under this
Agreement. Each Company shall perform its obligations under this Article VI at its own cost and expense.
Article VII
Tax
Records
7.01 Retention
of Tax Records. Each Company shall preserve and keep all Tax Records exclusively relating to the assets and activities of its Group
for Pre-Closing Periods, and Remainco shall preserve and keep all other Tax Records relating to Taxes of the Groups for Pre-Closing Periods,
for so long as the contents of such Tax Records may become material in the administration of any matter under the Code or other applicable
Tax Law, but in any event until the later of (a) the expiration of any applicable statutes of limitations or (b) seven (7) years
after the Closing Date (such later date, the “Retention Date”). After the Retention Date, each Company may dispose
of such Tax Records upon thirty (30) Business Days’ prior notice to the other Company. If, prior to the Retention Date, a Company
reasonably determines that any Tax Records which it would otherwise be required to preserve and keep under this Article VII
are no longer material in the administration of any matter under the Code or other applicable Tax Law and the other Company agrees, then
such Company may dispose of such Tax Records upon thirty (30) Business Days’ prior notice to the other Company. Any notice of an
intent to dispose given pursuant to this Section 7.01 shall include a list of the Tax Records to be disposed of describing
in reasonable detail each file, book, or other record accumulation being disposed. The notified Company shall have the opportunity, at
its cost and expense, to copy or remove, within such thirty (30)-Business Day period, all or any part of such Tax Records. If, at any
time prior to the Retention Date, a Company determines to decommission or otherwise discontinue any computer program or information technology
system used to access or store any Tax Records, then such Company may decommission or discontinue such program or system upon thirty
(30) Business Days’ prior notice to the other Company and the other Company shall have the opportunity, at its cost and expense,
to copy, within such thirty (30) Business Day period, all or any part of the underlying data relating to the Tax Records accessed by
or stored on such program or system.
7.02 Access
to Tax Records. Each Company shall make available, and cause the other members of its Group to make available, to the other
Company for inspection and copying during normal business hours upon reasonable notice all Tax Records (and, for the avoidance of doubt,
any pertinent underlying data accessed or stored on any computer program or information technology system) in their possession and shall
permit the other Company and the other members of its Group, authorized agents and representatives and any representative of a Tax Authority
or other Tax auditor direct access during normal business hours upon reasonable notice to any computer program or information technology
system used to access or store any Tax Records, in each case to the extent reasonably required by the other Company in connection with
the preparation of Tax Returns or financial accounting statements, audits, litigation, or the resolution of items under this Agreement.
To the extent any Tax Records are required to be or are otherwise transferred by a Company or any of the other members of its Group to
any Person other than another member of its Group, then such Company or the other member of its Group shall transfer such records to
the other Company at such time.
Article VIII
Tax
Contests
8.01 Notice.
Each Party shall provide prompt notice to the other Party of any written communication from a Tax Authority regarding any pending
or threatened Tax audit, assessment or proceeding or other Tax Contest related to Taxes for which the other Party may be liable (including
pursuant to an indemnification obligation under this Agreement). Such notice shall attach copies of the pertinent portion of any written
communication from a Tax Authority and contain factual information (to the extent known) describing any asserted Tax liability in reasonable
detail and shall be accompanied by copies of any notice and other documents received from any Tax Authority in respect of any such matters.
The failure of a Party to provide such notice shall not affect the indemnification provided under this Agreement except to the extent
that a Party has actually been prejudiced by such failure.
8.02 Control
of Tax Contests.
(a) Controlling
Company. In the case of any Tax Contest referred to in Section 8.01, the Party that would be primarily liable under
this Agreement for the Taxes resulting from such Tax Contest (the “Controlling Company”) shall administer and control
such Tax Contest; provided that (i) with respect to any Tax Contest relating to a Pre-Closing Period and the Spinco Group
with respect to which Remainco is the Controlling Company, upon the consent of the applicable member of the Spinco Group, Remainco may
appoint the applicable member of the Spinco Group to conduct all or part of such Tax Contest at Remainco’s expense (in which case,
the applicable member of the Spinco Group shall be the Controlling Company with respect to such Tax Contest) and (ii) in no event
shall (A) Remainco be entitled to control a Tax Contest that relates to a Buyer Consolidated Return or (B) Spinco, Merger Partner
or Buyer be entitled to control a Tax Contest that relates to a Remainco Consolidated Return.
(b) Settlement
Rights. The Controlling Company must obtain the prior consent, such consent not to be unreasonably withheld, conditioned or
delayed, of the other non-controlling Party (the “Non-Controlling Company”) prior to contesting, litigating, compromising
or settling any Tax Contest referred to in Section 8.01. In the case of any such Tax Contest referred to in Section 8.01:
(i) the Controlling Company shall keep the Non-Controlling Company informed in a timely manner of all actions taken or proposed to
be taken by the Controlling Company with respect to such potential adjustment in such Tax Contest; (ii) the Controlling Company shall
provide the Non-Controlling Company copies of any written materials relating to such potential adjustment in such Tax Contest received
from any Tax Authority; (iii) the Controlling Company shall timely provide the Non-Controlling Company with copies of any correspondence
or filings submitted to any Tax Authority or judicial authority in connection with such potential adjustment in such Tax Contest; (iv) the
Controlling Company shall consult with the Non-Controlling Company (including regarding the use of outside advisors to assist with the
Tax Contest) and offer the Non-Controlling Company a reasonable opportunity to comment before submitting any written materials prepared
or furnished in connection with such potential adjustment in such Tax Contest; and (v) the Controlling Company shall defend such
Tax Contest diligently and in good faith. The failure of the Controlling Company to take any action specified in the preceding sentence
with respect to the Non-Controlling Company shall not relieve the Non-Controlling Company of any liability and obligation which it may
have to the Controlling Company under this Agreement except to the extent that the Non-Controlling Company was actually harmed by such
failure, and in no event shall such failure relieve the Non-Controlling Company from any other liability or obligation which it may have
to the Controlling Company.
(c) Tax
Contest Participation. The Controlling Company shall provide the Non-Controlling Company with notice reasonably in advance
of, and the Non-Controlling Company shall have the right to attend, any formally scheduled meetings with Tax Authorities or hearings or
proceedings before any judicial authorities in connection with any potential adjustment in a Tax Contest referred to in Section 8.01.
The failure of the Controlling Company to provide any notice specified in this Section 8.02(c) to the Non-Controlling Company
shall not relieve the Non-Controlling Company of any liability and obligation which it may have to the Controlling Company under this
Agreement except to the extent that the Non-Controlling Company was actually harmed by such failure, and in no event shall such failure
relieve the Non-Controlling Company from any other liability or obligation which it may have to the Controlling Company.
(d) Power
of Attorney. Each member of the Spinco Group shall execute and deliver to Remainco (or such member of the Remainco Group as
Remainco shall designate) any power of attorney or other similar document reasonably requested by Remainco (or such designee) in connection
with any Tax Contest (as to which Remainco is the Controlling Company) described in this Article VIII. Each member of the
Remainco Group shall execute and deliver to Buyer (or such member of the Spinco Group as Buyer shall designate) any power of attorney
or other similar document requested by Buyer (or such designee) in connection with any Tax Contest (as to which Spinco, Merger Partner
or Buyer is the Controlling Company) described in this Article VIII.
(e) Costs.
All external out-of-pocket costs and expenses that are incurred by the Controlling Company with respect to a Tax Contest related to an
adjustment which is reasonably expected to become the subject of any indemnification payment under this Agreement shall be shared by the
Parties according to each Party’s relative share of the potential Tax liability with respect to the Tax Contest as determined under
this Agreement; provided that a Non-Controlling Company shall not be liable for fees payable to outside advisors to the extent that the
Controlling Company failed to obtain the consent (not to be unreasonably withheld, conditioned or delayed) of the Non-Controlling Company
to engage such outside advisors or consult with the Non-Controlling Company pursuant to Section 8.02(b). If the Controlling
Company incurs out-of-pocket costs and expenses to be shared under this Section 8.02(e), such Controlling Company shall provide
notice to the Non-Controlling Company within ten (10) Business Days after the end of the fiscal quarter in which such costs and expenses
were incurred for the amount due from such Non-Controlling Company pursuant to this Section 8.02(e), describing in reasonable
detail the particulars of such out-of-pocket costs and expenses. Such Non-Controlling Company shall have a period of five (5) Business
Days after the receipt of such notice to respond. Unless the Non-Controlling Company disputes the amount it is liable for under this Section 8.02(e),
the Non-Controlling Company shall reimburse the Controlling Company within ten (10) Business Days of delivery by the Controlling
Company of such notice. If the Non-Controlling Company does not agree with the amount the Controlling Company claims the Non-Controlling
Company is liable for under this Section 8.02(e), the dispute shall be resolved in accordance with Article XII. During
the first month of each fiscal quarter in which it expects to incur costs and expenses for which reimbursement may be sought under this
Section 8.02(e), the Controlling Company shall provide the Non-Controlling Company with a good faith estimate of such costs
and expenses.
Article IX
Effective
Date; Termination of Prior Intercompany Tax Allocation Agreements
9.01 Effective
Date; Termination of Prior Intercompany Tax Allocation Agreements. Other than this Article IX, which shall be effective as of
the date hereof, none of the provisions in this Agreement shall take effect until the Equity Sale Closing Time, Remainco, Spinco and Buyer
(and the respective members of their Groups) shall not have any obligations under this Agreement until the Equity Sale Closing Time, and
Merger Partner (and the members the Merger Partner Group) shall not have any obligations under this Agreement until the Merger Effective
Time. If the Merger Agreement is terminated prior to the Equity Sale Closing Time, then this Agreement shall terminate with no force or
effect. As of the Closing Date, (a) all prior intercompany Tax allocation agreements or arrangements, if any, between one or more
members of the Remainco Group, on the one hand, and one or more members of the Spinco Group, on the other hand, shall be terminated; and
(b) amounts due under such agreements shall be settled. Upon such termination and settlement, no further payments by or to a Company
with respect to such agreements shall be made, and all other rights and obligations resulting from such agreements between the Companies
and their Affiliates shall cease at such time.
Article X
Survival
of Obligations
10.01 Survival
of Obligations. From and after the Closing, the covenants and agreements set forth in this Agreement shall be unconditional and absolute
and shall remain in effect without limitation as to time.
Article XI
Treatment
of Payments
11.01 Tax
Treatment of Payments. To the extent allowed under applicable Tax Law, any Tax indemnity payments made by a Party under Section 1.01
or Section 3.02, any Refund payments made by a Party under Section 2.06(a) or Section 2.06(b)(iii), or any Tax Benefit
payments made by a Party under Section 4.01 shall be treated for Tax purposes by the Parties as an adjustment to the Final
Purchase Price.
Article XII
DISPUTEs
12.01 Disputes.
Except as set forth in Section 12.02, if the Parties are unable to resolve a dispute or disagreement (a “Dispute”)
between any member of the Remainco Group, on the one hand, and any member of the Spinco Group, any member of the Merger Partner Group
or any member of the Buyer Group, on the other hand, involving the matters covered by this Agreement within ten (10) Business Days
from the date that one Party first notifies the other Party of the Dispute, then such Dispute shall be referred to a Tax Advisor acceptable
to the Parties to act as an arbitrator to resolve the Dispute. Except to the extent inconsistent with the following (such as the use
of the Tax Advisor in lieu of the Independent Accounting Firm), the dispute resolution procedures set forth in Section 2.4(g) of
the Separation Agreement shall apply mutatis mutandis. If the Parties are unable to agree upon a Tax Advisor within ten (10) Business
Days, the Parties shall each separately retain an independent, nationally recognized law or accounting firm (each, a “Preliminary
Tax Advisor”), which Preliminary Tax Advisors shall jointly select a Tax Advisor on behalf of the Parties to act as an arbitrator
in order to resolve the Dispute. The Tax Advisor may, in its discretion, obtain the services of any third-party appraiser, accounting
firm or consultant that the Tax Advisor deems necessary to assist it in resolving such disagreement. The Tax Advisor shall furnish written
notice to the Parties of its resolution of any such Dispute as soon as practical, but in any event no later than twenty (20) Business
Days after its acceptance of the matter for resolution. Any such resolution by the Tax Advisor shall be conclusive and binding on the
Parties. Following receipt of the Tax Advisor’s written notice to the Parties of its resolution of the Dispute, the Parties shall
each take or cause to be taken any action necessary to implement such resolution of the Tax Advisor. Each Party shall pay its own fees
and expenses (including the fees and expenses of its representatives) incurred in connection with the referral of the matter to the Tax
Advisor (and the Preliminary Tax Advisors, if any). All fees and expenses of the Tax Advisor (and the Preliminary Tax Advisors, if any)
in connection with such referral shall be shared equally by the Parties.
12.02 Injunctive
Relief. Nothing in this Article XII shall prevent a Party from seeking injunctive relief if any delay resulting
from the efforts to resolve the Dispute through the process set forth above could result in serious and irreparable injury to such Party.
Notwithstanding anything to the contrary contained in this Agreement, the Parties are the only members of their respective Group entitled
to commence a dispute resolution procedure under this Agreement, and the Parties shall cause the other members of the applicable Group
not to commence any dispute resolution procedure other than as provided in this Article XII.
Article XIII
Expenses
13.01 Expenses.
Except as otherwise expressly provided to the contrary in any Transaction Document, any amount to be paid or reimbursed by a Party (or
another member of its Group), on the one hand, to the other Party (or another member of its Group), on the other hand, under this Agreement
shall be paid or reimbursed under this Agreement within thirty (30) Business Days after presentation of an invoice or a written demand
therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.
Article XIV
General
Provisions
14.01 Entire
Agreement; Counterparts; Exchanges by Facsimile. Section 5.1 of the Separation Agreement is incorporated by reference
to this Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
14.02 Transaction
Documents; Precedence of Agreements. Section 5.2 of the Separation Agreement is incorporated by reference to this
Agreement and shall apply as if fully set forth in this Agreement mutatis mutandis.
14.03 Survival.
Section 5.3 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth
in this Agreement mutatis mutandis.
14.04 Expenses.
Section 5.4 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth
in this Agreement mutatis mutandis.
14.05 Notices.
Section 5.5 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth
in this Agreement mutatis mutandis.
14.06 Waiver.
Section 5.6 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth
in this Agreement mutatis mutandis.
14.07 Assignment.
Section 5.7 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth
in this Agreement mutatis mutandis.
14.08 Termination.
Section 5.8 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
14.09 Amendment.
No provision of this Agreement may be amended, supplemented or modified except by a written instrument signed by all of the Parties.
14.10 Group
Members. Section 5.10 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if
fully set forth in this Agreement mutatis mutandis.
14.11 Third-Party-Beneficiaries.
Except with respect to indemnification, this Agreement is solely for the benefit of the Parties and nothing in this Agreement, express
or implied, is intended to or shall confer upon any Person (other than the Parties) any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
14.12 Exhibits
and Schedules. Section 5.12 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if
fully set forth in this Agreement mutatis mutandis.
14.13 Governing
Law. Section 5.13 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set
forth in this Agreement mutatis mutandis.
14.14 Submission
to Jurisdiction. Section 5.14 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as
if fully set forth in this Agreement mutatis mutandis.
14.15 Waiver
of Jury Trial. Section 5.15 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if
fully set forth in this Agreement mutatis mutandis.
14.16 Specific
Performance. Section 5.16 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully
set forth in this Agreement mutatis mutandis.
14.17 Severability.
Section 5.17 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
14.18 Construction.
Section 5.21 of the Separation Agreement is incorporated by reference to this Agreement and shall apply as if fully set forth in
this Agreement mutatis mutandis.
[Signature page follows]
IN WITNESS WHEREOF, the Parties
have caused this Agreement to be duly executed as of the day and year first above written.
|
INTERNATIONAL GAME TECHNOLOGY PLC |
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|
|
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By: |
/s/ Vincent L. Sadusky |
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Name: |
Vincent L. Sadusky |
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Title: |
Chief Executive Officer |
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|
|
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IGNITE ROTATE LLC |
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|
|
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By: |
International Game Technology PLC |
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Its: |
Managing Member |
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By: |
/s/ Massimiliano Chiara |
|
Name: |
Massimiliano Chiara |
|
Title: |
Executive Vice President and Chief |
|
|
Financial Officer |
[Signature Page to Tax Matters Agreement]
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed as of the day and year first above written.
|
EVERI HOLDINGS INC. |
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|
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By: |
/s/ Randy L. Taylor |
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Name: |
Randy L. Taylor |
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Title: |
Chief Executive Officer |
[Signature Page to Tax Matters Agreement]
IN WITNESS WHEREOF, the Parties have caused this
Agreement to be duly executed as of the day and year first above written.
|
Voyager Parent, LLC |
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|
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By: |
/s/ Daniel Cohen |
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Name: |
Daniel Cohen |
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Title: |
Vice President, Secretary and Treasurer |
[Signature Page to Tax Matters Agreement]
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of this Agreement
(including this Exhibit A):
“Adjustment”
means a Remainco Adjustment, a Spinco Adjustment or a Joint Adjustment.
“Affiliate”
shall have the meaning set forth in the Merger Agreement.
“Agreement”
shall have the meaning set forth in the Preamble.
“Assets”
shall have the meaning set forth in the Separation Agreement.
“Benefited Party”
shall have the meaning set forth in Section 2.06(a)(iii).
“Business Day”
shall have the meaning set forth in the Separation Agreement.
“Buyer” shall
have the meaning set forth in the Preamble.
“Buyer Consolidated
Return” means any U.S. federal consolidated Income Tax Return and any consolidated, combined, unitary or similar Income Tax
Return required to be filed under state, local or non-U.S. Law that includes any member of the Spinco Group and that is not a Remainco
Consolidated Return. A Buyer Consolidated Return shall include any U.S. federal consolidated Income Tax Return required to be filed by
any member of the Spinco Group as the “common parent” of an “affiliated group” (in each case, within the meaning
of Section 1504 of the Code), and any consolidated, combined, unitary or similar Income Tax Return required to be filed by any member
of the Spinco Group under a similar or analogous provision of state, local or non-U.S. Law.
“Buyer Group”
shall have the meaning set forth in the Separation Agreement.
“Buyer Sub”
shall have the meaning set forth in the Recitals.
“Claiming Company”
shall have the meaning set forth in Section 2.06(a)(i).
“Closing”
shall have the meaning set forth in the Merger Agreement.
“Closing Date”
shall have the meaning set forth in the Merger Agreement.
“Code”
means the U.S. Internal Revenue Code of 1986, as amended.
“Company”
shall have the meanings set forth in the Preamble.
“Controlling Company”
shall have the meaning set forth in Section 8.02(a).
“Correlative Detriment”
means an actual increase in a Tax of a Company (or another member of its Group) that occurs as a result of the Tax position that is the
basis for a claim for Refund by the Claiming Company or for a Final Determination.
“Dispute”
shall have the meaning set forth in Section 12.01.
“Due Date”
means the date (taking into account all valid extensions) upon which a Tax Return is required to be filed with or Taxes are required to
be paid to a Tax Authority, whichever is applicable.
“Equity Sale”
has the meaning set forth in the Separation Agreement.
“Equity Sale Closing
Time” has the meaning set forth in the Merger Agreement.
“Extraordinary Transaction”
means any action that is not in the ordinary course of business, but shall not include any action expressly required or otherwise contemplated
by any Transaction Documents or any action that is undertaken in connection with the Separation (or any restructuring in connection therewith),
the Spinco Contribution or the Equity Sale.
“Final Determination”
means the final resolution of liability for any Tax, which resolution may be for a specific issue or adjustment or for a taxable period,
(a) by IRS Form 870 or 870-AD (or any successor forms thereto), on the date of acceptance by or on behalf of the taxpayer, or
by a comparable form under the laws of a state, local, or non-U.S. taxing jurisdiction, except that a Form 870 or 870-AD or comparable
form shall not constitute a Final Determination to the extent that it reserves (whether by its terms or by operation of law) the right
of the taxpayer to file a claim for refund or the right of the Tax Authority to assert a further deficiency in respect of such issue or
adjustment or for such taxable period (as the case may be); (b) by a decision, judgment, decree, or other order by a court of competent
jurisdiction, which has become final and unappealable; (c) by a closing agreement or accepted offer in compromise under Sections
7121 or 7122 of the Code, or a comparable agreement under the laws of a state, local, or non-U.S. taxing jurisdiction; (d) by any
allowance of a refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such refund
may be recovered (including by way of offset) by the jurisdiction imposing such Tax; (e) by a final settlement resulting from a treaty-based
competent authority determination; or (f) by any other final disposition, including by reason of the expiration of the applicable
statute of limitations or by mutual agreement of the Companies.
“Final Purchase Price”
shall have the meaning set forth in the Separation Agreement.
“Governmental Authority”
has the meaning set forth in the Separation Agreement.
“Group”
has the meaning set forth in the Separation Agreement.
“Group Relief”
means any Relief, allowance or other amount eligible for surrender by way of group relief in accordance with the provisions contained
in Part 5 and Part 5A of Corporation Tax Act 2010 of the United Kingdom, or any corresponding unitary or consolidation relief
outside the United Kingdom having similar effect.
“Income Tax Returns”
means all Tax Returns that relate to Income Taxes.
“Income Taxes”
means: (a) all Taxes based upon, measured by, or calculated with respect to (i) net income or profits (including, any capital
gains, corporation, minimum tax or any Tax on items of tax preference, but not including sales, use, real, or personal property, gross
or net receipts, value added, excise, leasing, transfer or similar Taxes), or (ii) multiple bases (including, corporate franchise,
doing business and occupation Taxes) if one or more bases upon which such Tax is determined is described in the foregoing clause (a)(i);
and (b) any related interest and any penalties, additions to such Tax or additional amounts imposed with respect thereto by any Tax
Authority.
“IRS” means
the United States Internal Revenue Service.
“Joint Adjustment”
means any proposed adjustment by a Tax Authority or claim for refund asserted in a Tax Contest which is neither a Spinco Adjustment nor
a Remainco Adjustment.
“Law” shall
have the meaning set forth in the Separation Agreement.
“Liabilities”
shall have the meaning set forth in the Separation Agreement.
“Merger”
shall have the meaning set forth in the Recitals.
“Merger Agreement”
shall have the meaning set forth in the Recitals.
“Merger Effective
Time” shall have the meaning set forth in the Merger Agreement.
“Merger Partner”
shall have the meaning set forth in the Preamble.
“Merger Partner Group”
shall have the meaning set forth in the Separation Agreement.
“Mixed Business Tax
Return” means any Tax Return, including any consolidated, combined or unitary Tax Return, that reflects or reports Taxes that
relate to at least one Asset or activity that is part of the Remainco Retained Business, on the one hand, and at least one Asset or activity
that is part of the Spinco Business, on the other hand.
“Non-Controlling
Company” shall have the meaning set forth in Section 8.02(b).
“Party”
shall have the meanings set forth in the Preamble.
“Past Practices”
shall have the meaning set forth in Section 2.03(a).
“Payor”
shall have the meaning set forth in Section 3.02(a).
“Person”
shall have the meaning set forth in the Separation Agreement.
“Post-Closing Period”
means any Tax Period beginning after the Closing Date, and, in the case of any Straddle Period, the portion of such Straddle Period beginning
the day after the Closing Date.
“Pre-Closing Period”
means any Tax Period ending on or before the Closing Date, and, in the case of any Straddle Period, the portion of such Straddle Period
ending on the Closing Date.
“Preliminary Tax
Advisor” shall have the meaning set forth in Section 12.01.
“Refund”
means any refund (or credit in lieu thereof) of Taxes (including any overpayment of Taxes that can be refunded or, alternatively, applied
to other Taxes payable), including any interest paid on or with respect to such refund of Taxes; provided that the amount of the
refund of Taxes shall be net of any Taxes imposed by any Tax Authority on the receipt of the refund.
“Relief”
means any loss, relief, allowance or credit in respect of any Tax, any repayment of Tax, and any deduction in computing income, profits
or gains for the purposes of any Tax, including carried-forward losses.
“Remainco”
shall have the meaning set forth in the Preamble.
“Remainco Adjustment”
means any proposed adjustment by a Tax Authority or claim for refund asserted in a Tax Contest to the extent a member of the Remainco
Group would be solely responsible for any resulting Tax or solely entitled to receive any resulting refund under this Agreement.
“Remainco Consolidated
Return” means any U.S. federal consolidated Income Tax Return required to be filed by any member of the Remainco Group as the
“common parent” of an “affiliated group” (in each case, within the meaning of Section 1504 of the Code),
and any consolidated, combined, unitary or similar Income Tax Return required to be filed by any member of the Remainco Group under a
similar or analogous provision of state, local or non-U.S. Law. A Remainco Consolidated Return shall not include any Buyer Consolidated
Return, including any U.S. federal consolidated Income Tax Return required to be filed by any member of the Spinco Group as the “common
parent” of an “affiliated group” (in each case, within the meaning of Section 1504 of the Code), and any consolidated,
combined, unitary or similar Income Tax Return required to be filed by any member of the Spinco Group under a similar or analogous provision
of state, local or non-U.S. Law. Exhibit B sets forth a list of Remainco Consolidated Returns based on Tax filings to date
(including for each such Tax Return, the name of the common parent, a list of the group members, the jurisdiction with respect to which
each such Tax Return is filed and the type of Tax paid with each such Tax Return).
“Remainco Consolidated
Taxes” means any Taxes attributable to any Remainco Consolidated Return.
“Remainco Group”
shall have the meaning set forth in the Separation Agreement.
“Remainco Indemnified
Parties” shall have the meaning set forth in the Separation Agreement.
“Remainco Retained
Asset” shall have the meaning set forth in the Separation Agreement.
“Remainco Retained
Business” shall have the meaning set forth in the Separation Agreement.
“Remainco Taxes”
means, without duplication, (a) any Remainco Consolidated Taxes, (b) any Taxes that are attributable to the Remainco Retained
Assets or the Remainco Retained Business, (c) any Taxes attributable to a member of the Spinco Group with respect to any Pre-Closing
Period (including any Extraordinary Transaction entered into prior to the Equity Sale Closing Time at the voluntary direction of Remainco
or any member of the Spinco Group) and (d) any Taxes imposed on or attributable to a member of the Spinco Group with respect to the
Separation (and any restructuring in connection therewith), the Spinco Contribution or the Equity Sale.
“Required Company”
shall have the meaning set forth in Section 3.02(a).
“Responsible Company”
means, with respect to any Tax Return, the Company (or member of the Remainco Group or Spinco Group, as applicable) having responsibility
for preparing and filing such Tax Return under this Agreement.
“Retention Date”
shall have the meaning set forth in Section 7.01.
“Separation”
shall have the meaning set forth in the Separation Agreement.
“Separation Agreement”
shall have the meaning set forth in the Recitals.
“Single Business
Tax Return” means any Tax Return including any consolidated, combined or unitary Tax Return that reflects or reports Tax Items
relating only to the Remainco Retained Business, on the one hand, or the Spinco Business, on the other (but not both).
“Spinco”
shall have the meaning set forth in the Preamble.
“Spinco Adjustment”
means any proposed adjustment by a Tax Authority or claim for refund asserted in a Tax Contest to the extent a member of the Spinco Group
would be solely responsible for any resulting Tax or solely entitled to receive any resulting refund under this Agreement.
“Spinco Business”
shall have the meaning set forth in the Separation Agreement.
“Spinco Contribution”
shall have the meaning set forth in the Separation Agreement.
“Spinco Group”
shall have the meaning set forth in the Separation Agreement.
“Spinco Taxes”
means, without duplication, (a) any Taxes required to be paid by a member of the Spinco Group attributable to a Post-Closing Period,
(b) any Taxes that are attributable to the Spinco Assets or the Spinco Business in respect of a Post-Closing Period and (c) any
Taxes attributable to an Extraordinary Transaction effected on the Closing Date after the Equity Sale Closing Time by a member of the
Spinco Group at the voluntary direction of the Buyer, in each case, other than Remainco Taxes.
“Spinco Units”
shall have the meaning set forth in the Merger Agreement.
“Straddle Period”
means any Tax Period that begins on or before and ends after the Closing Date.
“Subsidiary”
shall have the meaning set forth in the Separation Agreement.
“Tax” or
“Taxes” means (a) any income, gross income, gross receipts, profits, capital stock, franchise, withholding, payroll,
social security, workers compensation, unemployment, disability, property, ad valorem, stamp, excise, severance, occupation, service,
sales, use, license, lease, transfer, import, export, value added, escheat or unclaimed property liability, customs, duties, alternative
minimum, estimated or other tax (including any fee, assessment, or other charge in the nature of or in lieu of any tax) imposed by any
governmental entity or political subdivision thereof, and any interest, penalties, additions to tax, or additional amounts in respect
of the foregoing and (b) all liabilities in respect of any items described in clause (a) payable by reason of assumption, transferee
or successor liability, operation of Law or Treasury Regulations Section 1.1502-6(a) (or any predecessor or successor thereof
or any analogous or similar provision under Law), in each case, including any Taxes resulting from an Adjustment.
“Tax Advisor”
means a tax counsel or accountant of recognized standing in the relevant jurisdiction.
“Tax Attribute”
means a net operating loss, net capital loss, investment credit, foreign tax credit, excess charitable contribution, general business
credit or any other Tax Item that could affect a Tax.
“Tax Authority”
means, with respect to any Tax, the Governmental Authority that imposes such Tax and the agency (if any) charged with the collection of
such Tax for such entity or subdivision.
“Tax Benefit” means any refund,
credit, or other reduction in otherwise required Tax payments that is actually received in cash (or an actual reduction in cash payments
for Taxes) by a Company as a result of a Loss in the same year as such Loss was incurred (determined on a “with and without”
basis with items related to the Loss being the last items counted), net of reasonable expenses related to the Tax Benefit.
“Tax Contest”
means an audit, review, examination, or any other administrative or judicial proceeding with the purpose or effect of redetermining Taxes
(including any administrative or judicial review of any claim for refund).
“Tax Item”
means any item of income, gain, loss, deduction, expense, or credit, or other attribute that may have the effect of increasing or decreasing
any Tax.
“Tax Law”
means the law of any governmental entity or political subdivision thereof relating to any Tax.
“Tax Period”
means, with respect to any Tax, the period for which the Tax is reported as provided under the Code or other applicable Tax Law.
“Tax Records”
means any Tax Returns, Tax Return work papers, documentation relating to any Tax Contests, and any other books of account or records (whether
or not in written, electronic or other tangible or intangible forms and whether or not stored on electronic or any other medium) required
to be maintained under the Code or other applicable Tax Laws or under any record retention agreement with any Tax Authority.
“Tax Return”
means any report of Taxes due, any claim for refund of Taxes paid, any information return with respect to Taxes, or any other similar
report, statement, declaration, or document required to be filed under the Code or other Tax Law, including any attachments, exhibits,
or other materials submitted with any of the foregoing, and including any amendments or supplements to any of the foregoing.
“Transaction Documents”
shall have the meaning set forth in the Separation Agreement.
“Transaction Taxes”
mean any Transfer Taxes imposed in connection with the Separation, the Spinco Contribution or the Equity Sale.
“Transfer Tax”
means any sales, use, value added, privilege, transfer (including real property transfer), intangible, recordation, registration, documentary,
stamp, duty, non-resident capital gains or similar Tax.
“Treasury Regulations”
means the regulations promulgated from time to time under the Code as in effect for the relevant Tax Period.
Exhibit 10.5
SUPPORT AGREEMENT
This Support Agreement (this
“Agreement”) is made and entered into as of July 26, 2024 (the “Agreement Date”), by and among
Voyager Parent, LLC, a Delaware limited liability company (“Buyer”) Everi Holdings Inc., a Delaware corporation (“Merger
Partner”), International Game Technology PLC, a public limited company incorporated under the laws of England and Wales
(“Remainco”), Ignite Rotate LLC, a Delaware limited liability company and a direct wholly owned subsidiary of
Remainco (“Spinco”), and the shareholder of Remainco listed on Schedule A and the signature pages hereto
(“Shareholder”). Each of Buyer, Merger Partner, Remainco, Spinco and Shareholder is sometimes referred to as a “Party”
and are sometimes collectively referred to as the “Parties”
RECITALS
WHEREAS,
concurrently with the execution and delivery of this Agreement, Buyer, Merger Partner, Remainco, Spinco and Voyager Merger
Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Buyer (“Buyer Sub”), are entering into
(i) a business combination transaction pursuant to which, among other things, immediately following the Spinco Contribution,
Remainco will sell to Buyer, and Buyer will purchase from Remainco, all of the Spinco Units owned by Remainco (the “Equity
Sale”) and (ii) an Agreement and Plan of Merger, dated as of July 26, 2024 (the “Merger
Agreement”), pursuant to which, among other things, Buyer Sub will be merged with and into Merger Partner (the
“Merger”), with Merger Partner surviving the Merger as a wholly owned subsidiary of Buyer;
WHEREAS, in connection
with Buyer’s, Remainco’s and Spinco’s entry into the Merger Agreement, Shareholder has agreed to enter into this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally
bound, do hereby agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
When used in this Agreement, the following terms shall have the meanings assigned to them in this Section 1.
1.1. “Contemplated
Transactions” means the Separation, the Equity Sale, the Merger, the other transactions contemplated by the Transaction Documents
and the contemplated investment by Shareholder.
1.2. “Covered
Shares” shall mean (a) the ordinary shares of Remainco, par value of $0.10 per share (“Remainco Ordinary Shares”)
and (b) the special voting shares of Remainco with a nominal value of $0.000001 and representing 0.9995 votes for each Remainco
Ordinary Share (“Remainco Special Voting Shares” and together with the “Remainco Ordinary Shares”,
the “Remainco Voting Shares”) set forth next to Shareholder’s name on Schedule A hereto, together with
any additional Remainco Voting Shares that Shareholder may acquire record and/or beneficial ownership (or have the right to direct the
vote thereof, in the case of Remainco Special Voting Shares) of after the Agreement Date.
1.3. “Expiration
Time” shall mean the earliest to occur of (a) the Closing, (b) the valid termination of the Merger Agreement in accordance
with its terms, and (c) the valid termination of the Separation Agreement in accordance with its terms.
1.4. “Gaming
Licensees” means the equityholders, directors, officers, employees and managers (in their capacities as such) of Shareholder
and its Affiliates that are required, as applicable, to be licensed by or obtain any qualification, approval or suitability determinations
by or from any Gaming Authority in connection with the transactions contemplated by any of the Transaction Documents.
1.5. “Transfer”
shall mean (a) any direct or indirect offer, sale, assignment, encumbrance, pledge, hypothecation, disposition, or other transfer
(by operation of Law or otherwise), either voluntary or involuntary, or entry into any option or other Contract, arrangement or understanding
with respect to any offer, sale, assignment, encumbrance, pledge, hypothecation, disposition or other transfer (by operation of Law or
otherwise), of any Covered Shares or any interest in any Covered Shares (in each case other than this Agreement); (b) the deposit
of such Covered Shares into a voting trust, the entry into a voting agreement or arrangement (other than this Agreement) with respect
to such Covered Shares or the grant of any proxy or power of attorney (other than this Agreement) with respect to such Covered Shares;
or (c) any Contract or commitment (whether or not in writing) to take any of the actions referred to in the foregoing clause
(a) or (b) above.
2. Fiduciary
Duties; Legal Obligations. Shareholder is entering into this Agreement solely in its capacity as the beneficial owner of the specified
Remainco Ordinary Shares and with the power to direct the vote of the specified Remainco Special Voting Shares. Nothing in this Agreement
shall in any way limit or affect any actions taken by Shareholder or any of its Affiliates, or any of its or their respective officers,
directors, employees or Representatives serving as a director or officer of Remainco, Spinco or any of their respective Affiliates in
their capacity as a director or officer of Remainco, Spinco or any of their respective Affiliates or from complying with his or her fiduciary
duties or other legal obligations while acting in such capacity as a director or officer of Remainco, Spinco or any of their respective
Affiliates. Nothing in this Agreement shall prohibit Shareholder or any of its officers, directors, employees or Representatives from
taking any action that Shareholder is permitted to take under the Merger Agreement relating to any Excluded Matter.
3. Representations
and Warranties of Shareholder. Shareholder hereby represents and warrants to Buyer, Merger Partner, Remainco and Spinco that:
3.1. Due
Authority. Shareholder has the full power and capacity to make, enter into and carry out the terms of this Agreement. Shareholder
is duly organized, validly existing and in good standing in accordance with the Laws of its jurisdiction of formation. The execution
and delivery of this Agreement, the performance of Shareholder’s obligations hereunder, and the consummation of the transactions
contemplated hereby have been validly authorized, and no other consents or authorizations are required to give effect to this Agreement
or the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by Shareholder and
constitutes a valid and binding obligation of Shareholder enforceable against it in accordance with its terms, subject to the Bankruptcy
and Equity Exceptions.
3.2. No
Conflict; Consents.
a. The
execution and delivery of this Agreement by Shareholder does not, and the performance by Shareholder of its obligations under this Agreement
and the compliance by Shareholder with any provisions hereof does not and will not: (a) conflict with or violate any Laws applicable
to Shareholder, or (b) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would
become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of any Contract or obligation
to which Shareholder is a party or by which Shareholder is subject.
b. No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations promulgated
under the Exchange Act, filing with, any Governmental Authority or any other Person, is required by or with respect to Shareholder in
connection with the execution and delivery of this Agreement or the consummation by them of the transactions contemplated hereby.
3.3. Absence
of Litigation. As of the Agreement Date, there is no legal action pending against, or, to the knowledge of Shareholder, threatened
against or affecting Shareholder that would reasonably be expected to materially impair the ability of Shareholder to perform its obligations
hereunder or to consummate the transactions contemplated hereby on a timely basis.
4. Representations
and Warranties of Remainco. Remainco hereby represents and warrants to Buyer, Merger Partner, Spinco and Shareholder that:
4.1. Due
Authority. Remainco has the full power and capacity to make, enter into and carry out the terms of this Agreement. Remainco is duly
organized, validly existing and in good standing in accordance with the Laws of its jurisdiction of formation. The execution and delivery
of this Agreement, the performance of Remainco’s obligations hereunder, and the consummation of the transactions contemplated hereby
has been validly authorized, and no other consents or authorizations are required to give effect to this Agreement or the transactions
contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by Remainco and constitutes a valid and
binding obligation of Remainco enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exceptions.
4.2. No
Conflict; Consents.
a. The
execution and delivery of this Agreement by Remainco does not, and the performance by Remainco of its obligations under this Agreement
and the compliance by Remainco with the provisions hereof do not and will not: (a) conflict with or violate any Laws applicable
to Remainco, or (b) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would
become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, pursuant to
any Contract or obligation to which Remainco is a party or by which Remainco is subject.
b. No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations promulgated
under the Exchange Act, filing with, any Governmental Authority or any other Person, is required by or with respect to Remainco in connection
with the execution and delivery of this Agreement or the consummation by Remainco of the transactions contemplated hereby.
4.3. Absence
of Litigation. As of the Agreement Date, there is no legal action pending against, or, to the knowledge of Remainco, threatened against
or affecting Remainco that would reasonably be expected to materially impair the ability of Remainco to perform its obligations hereunder
or to consummate the transactions contemplated by the Merger Agreement on a timely basis.
5. Representations
and Warranties of Spinco. Spinco hereby represents and warrants to Buyer, Merger Partner, Remainco and Shareholder that:
5.1. Due
Authority. Spinco has the full power and capacity to make, enter into and carry out the terms of this Agreement. Spinco is duly organized,
validly existing and in good standing in accordance with the Laws of its jurisdiction of formation. The execution and delivery of this
Agreement, the performance of Spinco’s obligations hereunder, and the consummation of the transactions contemplated hereby has
been validly authorized, and no other consents or authorizations are required to give effect to this Agreement or the transactions contemplated
by this Agreement. This Agreement has been duly and validly executed and delivered by Spinco and constitutes a valid and binding obligation
of Spinco enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exceptions.
5.2. No
Conflict; Consents.
a. The
execution and delivery of this Agreement by Spinco does not, and the performance by Spinco of its obligations under this Agreement and
the compliance by Spinco with the provisions hereof do not and will not: (a) conflict with or violate any Laws applicable to Spinco,
or (b) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material
default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, pursuant to any Contract or
obligation to which Spinco is a party or by which Spinco is subject.
b. No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations promulgated
under the Exchange Act, filing with, any Governmental Authority or any other Person, is required by or with respect to Spinco in connection
with the execution and delivery of this Agreement or the consummation by Spinco of the transactions contemplated hereby.
5.3. Absence
of Litigation. As of the Agreement Date, there is no legal action pending against, or, to the knowledge of Spinco, threatened against
or affecting Spinco that would reasonably be expected to materially impair the ability of Spinco to perform its obligations hereunder
or to consummate the transactions contemplated by the Merger Agreement on a timely basis.
6. Representations
and Warranties of Merger Partner. Merger Partner hereby represents and warrants to Buyer, Remainco, Spinco and Shareholder that:
6.1. Due
Authority. Merger Partner has the full power and capacity to make, enter into and carry out the terms of this Agreement. Merger Partner
is duly organized, validly existing and in good standing in accordance with the Laws of its jurisdiction of formation. The execution
and delivery of this Agreement, the performance of Merger Partner’s obligations hereunder, and the consummation of the transactions
contemplated hereby has been validly authorized, and no other consents or authorizations are required to give effect to this Agreement
or the transactions contemplated by this Agreement. This Agreement has been duly and validly executed and delivered by Merger Partner
and constitutes a valid and binding obligation of Merger Partner enforceable against it in accordance with its terms, subject to the
Bankruptcy and Equity Exceptions.
6.2. No
Conflict; Consents.
a. The
execution and delivery of this Agreement by Merger Partner does not, and the performance by Merger Partner of its obligations under this
Agreement and the compliance by Merger Partner with the provisions hereof do not and will not: (a) conflict with or violate any
Laws applicable to Merger Partner, or (b) result in any breach of or constitute a default (or an event that with notice or lapse
of time or both would become a material default) under, or give to others any rights of termination, amendment, acceleration or cancellation
of, pursuant to any Contract or obligation to which Merger Partner is a party or by which Merger Partner is subject.
b. No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations promulgated
under the Exchange Act, filing with, any Governmental Authority or any other Person, is required by or with respect to Merger Partner
in connection with the execution and delivery of this Agreement or the consummation by Merger Partner of the transactions contemplated
hereby.
6.3. Absence
of Litigation. As of the Agreement Date, there is no legal action pending against, or, to the knowledge of Merger Partner, threatened
against or affecting Merger Partner that would reasonably be expected to materially impair the ability of Merger Partner to perform its
obligations hereunder or to consummate the transactions contemplated by the Merger Agreement on a timely basis.
7. Representations
and Warranties of Buyer. Buyer hereby represents and warrants to Merger Partner, Remainco, Spinco and Shareholder that:
7.1. Due
Authority. Buyer has the full power and capacity to make, enter into and carry out the terms of this Agreement. Buyer is duly organized,
validly existing and in good standing in accordance with the Laws of its jurisdiction of formation. The execution and delivery of this
Agreement, the performance of Buyer’s obligations hereunder, and the consummation of the transactions contemplated hereby has been
validly authorized, and no other consents or authorizations are required to give effect to this Agreement or the transactions contemplated
by this Agreement. This Agreement has been duly and validly executed and delivered by Buyer and constitutes a valid and binding obligation
of Buyer enforceable against it in accordance with its terms, subject to the Bankruptcy and Equity Exceptions.
7.2. No
Conflict; Consents.
a. The
execution and delivery of this Agreement by Buyer does not, and the performance by Buyer of its obligations under this Agreement and
the compliance by Buyer with the provisions hereof do not and will not: (a) conflict with or violate any Laws applicable to Buyer,
or (b) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a material
default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, pursuant to any Contract or
obligation to which Buyer is a party or by which Buyer is subject.
b. No
consent, approval, order or authorization of, or registration, declaration or, except as required by the rules and regulations promulgated
under the Exchange Act, filing with, any Governmental Authority or any other Person, is required by or with respect to Buyer in connection
with the execution and delivery of this Agreement or the consummation by Buyer of the transactions contemplated hereby.
7.3. Absence
of Litigation. As of the Agreement Date, there is no legal action pending against, or, to the knowledge of Buyer, threatened against
or affecting Buyer that would reasonably be expected to materially impair the ability of Buyer to perform its obligations hereunder or
to consummate the transactions contemplated by the Merger Agreement on a timely basis.
8. Covenants
of Shareholder.
8.1. Non-Compete.
a. Notwithstanding
anything contrary contained in this Agreement, so long as a designee of Shareholder or its Affiliates is serving as a member of the Board
of Directors or similar body of the Buyer or an Affiliate thereof or Shareholder and its Affiliates collectively beneficially own, directly
or indirectly, at least 10% or more in the aggregate of the outstanding equity interests of the Buyer, without the prior written consent
of the Buyer, Shareholder agrees not to directly or indirectly, and not to permit any of its Affiliates to, engage in, manage or operate,
anywhere in the world, or own an equity interest in any Person who engages in, manages or operates anywhere in the world, in any business
that competes with the Restricted Business; provided, however, that nothing herein shall preclude Shareholder or its Affiliates
from:
(1) engaging
in, operating or managing (or owning any Equity Interests in any Entity that engages in, operates or manages) any Permitted Business;
(2) acquiring
and, after such acquisition, owning any interest for passive investment purposes only (provided that none of Shareholder or its Affiliates
exercise control of or otherwise manage, operate or engage in the Restricted Business of such Person) in any Person (or its successor)
that is engaged in a Restricted Business if such Restricted Business generated less than Sixty Million Dollars ($60,000,000) of such
Person’s or Persons’ consolidated annual revenues in the last completed fiscal year of such Person or Persons (collectively,
the “Revenue Threshold”);
(3) owning
two percent (2%) or less of the outstanding securities of any Person whose shares are listed on a stock exchange; provided, that
such shares are held for passive investment purposes only and none of Shareholder or its Affiliates exercise control of (or otherwise
manage, operate or engage in the Restricted Business of) such Person;
(4) acquiring
and, after such acquisition, owning an interest in any Person or Persons, collectively, (or its or their successor, successors, business
or businesses) that are (directly or indirectly through controlled Affiliates) engaged in a Restricted Business, provided that (1) the
revenue generated from the Restricted Businesses of such Person or Persons, collectively, was less than $140,000,000 of such Person’s
or Persons’ consolidated annual revenues in the aggregate in the last completed fiscal year of such Person or Persons, collectively,
and (2) if the revenue generated from the Restricted Businesses of such Person or Persons, collectively, was greater than the Revenue
Threshold then Shareholder and its applicable Affiliates, within one (1) year after exceeding the Revenue Threshold shall discontinue
or enter into a definitive agreement to cause the divestiture of (and within six (6) months after the entry into such definitive
agreement divests pursuant thereto (subject to extensions for regulatory approvals)), a sufficient portion of the Restricted Businesses
of such Person or Persons such that the Revenue Threshold is not exceeded;
(5) exercising
its rights or performing or complying with its obligations under or as contemplated by any of the Transaction Documents;
(6) continuing
the Permitted Business activities that are conducted by the Remainco Group (through such Remainco Group) as of the date of this Agreement;
(7) engaging
in any financial technology transactions, services, or activities in connection with the lottery business of the Remainco Group;
(8) owning
five percent (5%) or less of the outstanding securities of the Entity listed on Schedule B attached hereto (the “Excluded
Entity”); provided, that such shares are held for passive investment purposes only and none of Shareholder or its Affiliates
exercise control of (or otherwise manage, operate or engage in the Restricted Business of) the Excluded Entity; or
(9) entering
into or participating in a joint venture or partnership, with any Person engaged in a Restricted Business, if such joint venture or partnership
does not engage in a Restricted Business.
b. The
Parties acknowledge that the restrictions contained in this Section 8.1 are reasonable in scope and duration. The Parties
further acknowledge that the restrictions contained in this Section 8.1 are necessary to protect the Surviving Corporation’s
significant interest in the Restricted Business, including its goodwill. It is the desire and intent of the Parties that the provisions
of this Section 8.1 be enforced to the fullest extent permissible under applicable Law. If any covenant in this Section 8.1
is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a Governmental Authority
of competent jurisdiction, the Parties agree that: (1) such determination will not affect the validity or enforceability of (A) the
offending term or provision in any other situation or in any other jurisdiction or (B) the remaining terms and provisions of this
Section 8.1 in any situation in any jurisdiction; (2) the offending term or provision will be reformed rather than
voided and the Governmental Authority making such determination will have the power to reduce the scope, duration or geographical area
of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term
or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid
or unenforceable provision, in order to render the restrictive covenants set forth in this Section 8.1 enforceable to the
fullest extent permitted by applicable Law; and (3) the restrictive covenants set forth in this Section 8.1 will
be enforceable as so modified.
For purposes hereof, “Restricted
Business” shall mean the design, development, assembly, distribution and provision to the types of customers of the Spinco
Business (e.g., casinos, online casinos (real money and social) and, with respect to video lottery, Governmental Authorities) of the
types of goods and services provided by the Spinco Business.
8.2. Publicity.
Shareholder hereby agrees to permit Buyer, Merger Partner and Remainco to publish and disclose in filings with the SEC, including the
Merger Partner Proxy Statement, and in such other schedules, certificates, applications, agreements, press release or documents as such
entities reasonably determine to be necessary or appropriate in connection with the consummation of the Merger, Shareholder’s identity
and ownership of the Covered Shares and the nature of Shareholder’s commitments, arrangements and understandings pursuant to this
Agreement.
8.3. Documentation
and Information. Shareholder shall not make any public announcement regarding this Agreement or the transactions contemplated hereby
without the prior written consent of Buyer, Merger Partner and Remainco, except as may be required by applicable Law (provided that reasonable
notice of any such disclosure will be provided to Buyer, Merger Partner and Remainco, and Shareholder will consider in good faith the
reasonable comments of Buyer, Merger Partner and Remainco with respect to such disclosure and otherwise cooperate with Buyer, Merger
Partner and Remainco in obtaining confidential treatment with respect to such disclosure). Notwithstanding the foregoing Shareholder
may, without such consultation or consent, issue a press release and make any public statement (including in response to questions from
the press, analysts, investors or those attending industry conferences), so long as such press release or statements include only such
information contained in, and consistent with, previous press releases, public disclosures or public statements made jointly by Buyer,
Merger Partner and Remainco (or individually, if approved by the applicable other party). Shareholder consents to and authorizes the
publication and disclosure by Buyer, Merger Partner and Remainco of Shareholder’s identity and holding of (or voting power over)
the Covered Shares, and the terms of this Agreement (including, for the avoidance of doubt, the disclosure of this Agreement), in any
press release, the Merger Partner Proxy Statement and any other disclosure document required in connection with the Merger Agreement,
the other Transaction Documents and the consummation of the Contemplated Transactions, and Shareholder acknowledges that Buyer, Merger
Partner and Remainco may, in their sole discretion, file this Agreement or a form hereof with the SEC or any other Governmental Authority
or securities exchange. Shareholder agrees to promptly give Buyer, Merger Partner and Remainco any information it may reasonably require
for the preparation of any such disclosure documents, and Shareholder agrees to promptly notify Buyer, Merger Partner and Remainco of
any required corrections with respect to any information supplied by Shareholder specifically for use in any such disclosure document,
if and to the extent that any such information shall have become false or misleading in any material respect.
8.4. Transaction
Documents. Shareholder hereby acknowledges that Shareholder has received and reviewed a copy of the Merger Agreement and the other
Transaction Documents and that Buyer and Merger Partner are entering into the Merger Agreement and the other Transaction Documents in
reliance upon Shareholder’s execution, delivery and performance of this Agreement.
8.5. Further
Assurances. Shareholder hereby agrees, from time to time, at the reasonable request of Buyer or Merger Partner and without further
consideration, to execute and deliver such additional documents and take all such further action as may be reasonably required to consummate
and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.
8.6. Waiver
of Certain Actions. Shareholder hereby agrees not to commence or participate in, and to take all actions necessary to opt out of
any class in any class action with respect to, any claim, derivative or otherwise, against Buyer, Merger Partner, Remainco, Spinco, any
of their respective Affiliates or successors or any of their respective directors, managers or officers (a) challenging the validity
of, or seeking to enjoin or delay the operation of, any provision of this Agreement, the Merger Agreement or any other Transaction Documents
(including any claim seeking to enjoin or delay the closing of the Merger or the Equity Sale) or (b) alleging a breach of any duty
of the Board of Directors of Remainco in connection with the Merger Agreement, any other Transaction Documents, this Agreement or the
transactions contemplated thereby or hereby.
8.7. Standstill
and Confidentiality.
a. Notwithstanding
anything to the contrary in that certain letter agreement, dated December 20, 2023, between Merger Partner and Shareholder (the
“Confidentiality Agreement”) and other than with respect to the Contemplated Transactions, the Confidentiality Agreement
is incorporated herein, mutatis mutandis, as if a part hereof, except that such restrictions contained therein (including Paragraphs
2, 4 and 7 of the Confidentiality Agreement) shall continue until the Closing and thereafter shall be of no further force or effect.
b. The
penultimate sentence of Paragraph 7 of the Confidentiality Agreement shall be deleted and replaced with the following sentence:
“A “Fundamental Change
Event” means (i) the closing of the transactions contemplated by that certain Agreement and Plan of Merger, dated as of
July 26, 2024, by and among the Company, International Game Technology PLC, a public limited company incorporated under
the laws of England and Wales (“Remainco”), Ignite Rotate LLC, a Delaware limited liability company and a direct
wholly owned subsidiary of Remainco, Voyager Parent, LLC, a Delaware limited liability company (“Buyer”) and Voyager
Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Buyer (the “Merger Agreement”) or
(ii) the entry into a definitive written agreement (other than the Merger Agreement or any Existing Agreement (as defined in
the Merger Agreement)) providing for (i) any acquisition of a majority of the voting securities of the Company by any person or
group (other than by any subsidiary of the Company), (ii) any acquisition of a majority of the consolidated assets of the
Company and its subsidiaries by any person or group (other than by any subsidiary of the Company), or (iii) any tender or
exchange offer, merger or other business combination or any recapitalization, restructuring, liquidation, dissolution or other
extraordinary transaction with respect to the Company; provided that, in the case of any transaction covered by the foregoing clause
(iii), immediately following such transaction, any person (or the direct or indirect shareholders of such person) will beneficially
own a majority of the outstanding voting power of the Company or the surviving parent entity in such transaction.”
c. From
the date hereof and until the Closing, except as otherwise agreed to in writing (e-mail being sufficient) by Merger Partner, the Shareholder
shall not, and shall direct its Representatives to not, disclose or reveal any Proprietary Information (as defined in the Confidentiality
Agreement) or Remainco Proprietary Information (as defined below) to any Buyer Related Party.
d. As
used in this Section 8.7, “Remainco Proprietary Information” means all information that is furnished directly
or indirectly by Remainco, Spinco or any of their respective Representatives and any memoranda or other materials prepared by Shareholder
or any of its Representatives that contain, reference, reflect or are based upon, in whole or in part, on such information.
8.8. Regulatory
Filings.
a. Prior
to the Closing, Shareholder shall (and shall cause its Gaming Licensees and directors, officers and employees to) and shall cause its
Affiliates to, use its reasonable best efforts to (i) file all notices, reports, submissions and other documents required to be
filed by such Person with any Governmental Authority with respect to the Contemplated Transactions, and respond as promptly as reasonably
practicable to any additional information requests by any such Governmental Authority, and (ii) obtain as promptly as reasonably
practicable, all Governmental Approvals that may be or become necessary for its execution and delivery of, performance of its obligations
pursuant to, and consummation of the transactions contemplated by, the Transaction Documents. Shareholder shall not (and shall cause
its Affiliates and Gaming Licensees not to) take any action that would reasonably be expected to have the effect of materially delaying,
materially impairing or materially impeding the receipt of any required Antitrust Approvals, any required FDI Approvals, any required
Gaming Approvals or any required Financial Services Approvals or the consummation of the Equity Sale or the Merger.
b. Without
limiting the generality of the obligations set forth in Section 8.8.a, Shareholder shall, and shall cause its Affiliates
and Gaming Licensees, directors and officers to, (i) within fifteen (15) Business Days after the date hereof, make and not withdraw
(without the prior written consent of the other Parties) a filing of a Notification and Report Form pursuant to the HSR Act in connection
with the Equity Sale or, if required by applicable law, the Merger; provided that there are no changes in the applicable regulations
under the HSR Act between the date hereof and the date of filing pursuant to the HSR Act, in which instance Shareholder shall use reasonable
best efforts to file such Notification and Report Form as promptly as commercially practicable thereafter; (ii) as promptly
as practicable after the date hereof, but in any event within twenty-five (25) Business Days after the date hereof, make and not withdraw
(without the prior written consent of the other Parties), or, if required, make initial contact with the applicable Governmental Authority
and then file appropriate filings (whether in draft or final form), as required under applicable Antitrust Laws or applicable FDI Laws
listed on Schedule C-1 of the Merger Agreement, (iii) within forty-five (45) days after the date hereof, make and not withdraw (without
the prior written consent of the other Parties) appropriate filings with the Gaming Authorities and for the Contemplated Transactions
set forth in the table set forth on Schedule C-2 of the Merger Agreement and (iv) as promptly as practicable after the date hereof,
make and not withdraw (without the prior written consent of the other Parties), or if required make initial contact with the applicable
Governmental Authority and then file appropriate filings, applications, registrations and notices as required under applicable Financial
Services Laws that require a Governmental Approval in connection with the Equity Sale and the Merger. Shareholder shall use reasonable
best efforts to cooperate with the other Parties to satisfy the conditions set forth in Section 7.5, Section 8.5 and Section 9.5
of the Merger Agreement respectively with respect to the Antitrust Approvals, the FDI Approvals, the Gaming Approvals and the Financial
Services Approvals as applicable to Shareholder and its Affiliates. Shareholder shall, and shall cause its Affiliates and Gaming Licensees
(with respect to any Gaming Law Filings) and each of its Subsidiaries and each of its and their respective directors and officers to,
(A) cooperate with the other Parties in connection with any filing or submission and in connection with any investigation or other
inquiry, including any proceeding initiated by a Person other than a Governmental Authority, (B) promptly supply the other Parties
with any information which may be required to effectuate the Antitrust Filings, the FDI Filings, the Gaming Law Filings and the Financial
Services Regulatory Filings and (C) respond as promptly as reasonably practicable to any additional information requests by any
Governmental Authority in connection with Antitrust Filings, FDI Filings, Gaming Law Filings or Financial Services Regulatory Filings
which the Parties may reasonably deem appropriate. During the Pre-Closing Period, Shareholder shall notify the other Parties promptly
upon the receipt of (and, if in writing, share a copy of) any communication received by Shareholder from, or given by Shareholder to,
any Governmental Authorities and of any communication received or given in connection with any proceeding by a Person other than a Governmental
Authority, in each case in connection with any of the Contemplated Transactions, and permit the other Parties to review and discuss in
advance any proposed written communication to any Governmental Authorities related to any Antitrust Filings or any FDI Filings. During
the Pre-Closing Period, whenever any event occurs that is required to be set forth in an amendment or supplement to any Antitrust Filings,
any FDI Filings, any Gaming Law Filings or any Financial Services Regulatory Filings, Shareholder shall promptly inform the other Parties
of such occurrence and cooperate in filing with the applicable Governmental Authority (and share a copy of) such amendment or supplement,
and, with respect to any amendment or supplement to any Antitrust Filings or any FDI Filings, permit the other Parties to review and
discuss prior to submission of such amendment or supplement. During the Pre-Closing Period, Shareholder shall give the other Parties
prompt notice of the commencement or known threat of commencement of any Action by or before any Governmental Authority with respect
to any of the Contemplated Transactions and shall keep the other Parties reasonably informed as to the status of any such Action or threat.
During the Pre-Closing Period, Shareholder shall not participate in any meeting, teleconference or videoconference with any Governmental
Authority having competent jurisdiction over applicable Antitrust Laws, FDI Laws, Gaming Laws or Financial Services Laws with respect
to any such Actions or any of the Antitrust Filings, the FDI Filings, the Gaming Law Filings or the Financial Services Regulatory Filings
relating to any of the Contemplated Transactions that is expected to be substantive unless it consults with the other Parties in advance
and, unless prohibited by such Governmental Authority, gives the other Parties the opportunity to attend and participate thereat. Notwithstanding
the foregoing, Shareholder may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided
to the other Parties under this Section 8.8.b as “Counsel Only Material.” Such materials and the information
contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside legal counsel
to Representatives of the recipient unless express permission is obtained in advance from Shareholder or its outside legal counsel. Shareholder
shall cause its counsel regarding applicable Antitrust Laws, FDI Laws, Gaming Laws and Financial Services Laws to comply with this Section 8.8.b.
c. In
furtherance and not in limitation of the covenants of Shareholder contained in Sections 8.8.a and 8.8.b during the Pre-Closing
Period, Shareholder shall, and shall cause its Gaming Licensees and Affiliates and each of its and their respective directors and officers
to, use reasonable best efforts to cooperate with the other Parties in their efforts to (i) avoid the entry of, or to have vacated,
lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would
restrain, prevent or delay the Closing, including cooperating with the other Parties in their efforts to defend (with sufficient time
for resolution in advance of the Outside Date) against litigation over any claim asserted in any court with respect to any of the Contemplated
Transactions by any Governmental Authority having competent jurisdiction or any natural person or Entity, , (ii) avoid or eliminate
each and every impediment to the consummation of the other Contemplated Transaction and (iii) obtain all Governmental Approvals
that may be required or advisable by any Governmental Authority, in each case with competent jurisdiction, so as to enable the Parties
to consummate the Contemplated Transactions as promptly as reasonably practicable.
d. Notwithstanding
anything to the contrary contained in this Agreement, Shareholder shall (i) not be required to take any Remedial Action that any
Governmental Authority may seek to impose on Shareholder or any of its Affiliates (other than members of the Remainco Group, the members
of the Spinco Group or the members of the Merger Partner Group that does not amount to a Remainco Burdensome Action) and (ii) agree
to, and not object to, any Remedial Actions that may be imposed on Buyer, Merger Partner and Remainco that are mutually agreed by Buyer,
Merger Partner and Remainco.
e. Notwithstanding
anything to the contrary contained in this Agreement, Shareholder shall not agree to or take any Remedial Action without the prior written
consent of each of Buyer. Notwithstanding the foregoing, nothing in this Agreement shall require any Party to agree to any modifications,
amendments or changes to any Transaction Document.
f. Subject
to the terms and conditions of this Agreement and other than in connection with any Excluded Matter, Shareholder shall not, and shall
cause its Affiliates not to, take any action, including, Transfer Covered Shares, acquire or agree to acquire any business or Entity,
or otherwise acquire or agree to acquire any assets, if doing so would reasonably be expected to prevent, materially impede or materially
delay consummation of the Contemplated Transactions.
8.9. Information.
Shareholder agrees to promptly furnish to Buyer, Merger Partner or Remainco all information concerning Shareholder, its Subsidiaries
and shareholders, respectively, that may be required or reasonably requested in connection with the preparation and filing of the Merger
Partner Proxy Statement or any other documents required by the SEC to consummate the Contemplated Transactions, or in connection with
the Financing. Buyer, Merger Partner or Remainco, as applicable, shall provide Shareholder with a reasonable opportunity to review and
comment on any disclosures based on such information provided by Shareholder in the Merger Partner Proxy Statement or any other documents
required by the SEC to consummate the Contemplated Transactions, prior to filing of any such document with the SEC. If, at any time prior
to the Expiration Time, any event or circumstance shall be discovered by Shareholder, or if Shareholder becomes aware of any information
furnished by it, in either case, that should be disclosed in an amendment or supplement to the Merger Partner Proxy Statement so that
such document or documents would not include any untrue statement of a material fact or fail to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were made, not misleading, then Shareholder shall promptly
inform Buyer, Merger Partner or Remainco, as applicable, thereof.
9. Miscellaneous.
9.1. Amendments
and Modifications. This Agreement may not be modified, amended, altered or supplemented except upon the execution and delivery of
a written agreement executed by the Parties.
9.2. Expenses.
All costs and expenses incurred by any Party in connection with this Agreement shall be paid by the Party incurring such cost or expense.
9.3. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally (notice deemed given
upon receipt), by e-mail transmission (notice deemed given upon transmission if the email is sent by 5:00 p.m. Eastern Time or,
if after, the day following the date of transmission), mailed by registered or certified mail (return receipt requested) or delivered
by an express courier (with confirmation) (notice deemed given upon receipt of proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
a. if
to Shareholder, to the address for notice set forth on Schedule A hereto.
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
USA
Attention: Benjamin M. Roth
Email: [*]
b. if
to Merger Partner, to:
Everi Holdings Inc.
7250 South Tenaya Way, Suite 10
Las Vegas, NV 89113
Attention: Randy L. Taylor - President & CEO
and
Everi Holdings Inc.
7250 South Tenaya Way, Suite 10
Las Vegas, NV 89113
Attention: Kate Lowenhar-Fisher - EVP, Chief Legal Officer
- General Counsel
with a copy (which shall not constitute notice) to:
Pillsbury Winthrop Shaw Pittman LLP
11682 El Camino Real
Suite 200
San Diego, CA 92130
USA
Attention: Christian Salaman,
Drew Simon-Rooke
c. if
to Remainco, to:
International Game Technology PLC
c/o IGT Global Solutions Corporation
IGT Center
10 Memorial Boulevard
Providence, RI 02903-1125
Attention: General Counsel
Email: legalnotices@igt.com
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
Attention: Paul L. Choi and Scott R. Williams
Email: [*] and [*]
d. if
to Spinco, to:
Ignite Rotate LLC
International Game Technology PLC
c/o IGT Global Solutions Corporation
IGT Center
10 Memorial Boulevard
Providence, RI 02903-1125
Attention: General Counsel
Email: legalnotices@igt.com
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
USA
Attention: Paul L. Choi and Scott R. Williams
Email: [*] and [*]
e. if
to Buyer, to:
Voyager Parent, LLC
c/o Apollo Management
X, L.P.
9 West 57th Street,
42nd Floor
New York New York
10019
|
Attention: |
Daniel Cohen, Partner |
|
|
James
Elworth, General Counsel, Private Equity |
with a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton &
Garrison LLP
1285 Avenue of
the Americas
New York, NY 10019-6064
|
Attention: |
Ross A.
Fieldston |
|
|
Ian Hazlett |
9.4. Governing
Law; Jurisdiction.
a. This
Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to any applicable conflicts
of law principles.
b. Each
Party agrees that it will bring any action or proceeding in respect of any claim arising out of or related to this Agreement or the transactions
contemplated hereby exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware
or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal or state court of competent
jurisdiction located in the State of Delaware (the “Chosen Courts”), and, solely in connection with claims arising
under this Agreement or the transactions that are the subject of this Agreement, (i) irrevocably submits to the exclusive jurisdiction
of the Chosen Courts, (ii) waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii) waives
any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees that service
of process upon such Party in any such action or proceeding will be effective upon personal service or 10 days after notice is given
by both email and express courier (with confirmation) as provided by Section 9.3 including a courtesy copy (by email) to
all counsel.
9.5. Waiver
of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE EXTENT PERMITTED
BY LAW AT THE TIME OF INSTITUTION OF THE APPLICABLE LITIGATION, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (IV) EACH
PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.5.
9.6. Specific
Performance. The Parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and, accordingly, that, prior to the valid termination of this Agreement, the Parties shall be entitled
to seek an injunction or injunctions to prevent breaches or threatened breaches of this Agreement or to enforce specifically the performance
of the terms and provisions hereof, in addition to any other remedy to which they are entitled at Law or in equity. Each Party hereby
further waives (a) any defense in any action for specific performance that a remedy at Law would be adequate and (b) any requirement
under any Law to post security or a bond as a prerequisite to obtaining equitable relief.
9.7. Entire
Agreement. This Agreement, including the Schedules hereto, together with the Confidentiality Agreement, the Separation Agreement
and the Merger Agreement, constitutes the entire agreement, and supersede all prior agreements and understandings, both written and oral,
among the parties with respect to such subject matter. For the avoidance of doubt, nothing in this Agreement shall be deemed to amend,
alter or modify, in any respect, any of the provisions of the Separation Agreement or the Merger Agreement.
9.8. Interpretation.
The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent
or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof
shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. When a reference is made
in this Agreement to Articles, Sections, Exhibits or Schedules, such reference shall be to an Article or Section of or Exhibit or
Schedule to this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without
limitation.” The word “or” shall not be exclusive. References to “the date hereof” shall mean the date
of this Agreement.
9.9. Assignment;
Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by
any of the Parties hereto (whether by operation of law or otherwise) without the prior written consent of the other Parties (which may
be withheld by such other Parties in its sole discretion). Any purported assignment in contravention hereof shall be null and void. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective
successors and assigns. This Agreement (including the documents and instruments referred to herein) is not intended to confer upon any
person other than the Parties hereto any rights or remedies hereunder, including the right to rely upon the representations and warranties
set forth herein. The representations and warranties in this Agreement are the product of negotiations among the Parties hereto and are
for the sole benefit of the Parties. Any inaccuracies in such representations and warranties are subject to waiver by the Parties hereto
in accordance herewith without notice or liability to any other person. In some instances, the representations and warranties in this
Agreement may represent an allocation among the Parties hereto of risks associated with particular matters regardless of the knowledge
of any of the Parties hereto. Consequently, persons other than the Parties may not rely upon the representations and warranties in this
Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.
9.10. Severability.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed
and enforced in such jurisdiction such that the invalid, illegal or unenforceable provision or portion thereof shall be interpreted to
be only so broad as is enforceable.
9.11. Non-survival
of Representations and Warranties. None of the representations and warranties in this Agreement or in any schedule, instrument or
other document delivered pursuant to this Agreement shall survive the Closing or the termination of this Agreement.
9.12. Termination.
This Agreement shall automatically terminate without further action by any of the Parties hereto and shall have no further force or effect
as of the Expiration Time; provided that the provisions of Sections 9.2 through 9.14 shall survive any such termination
and, if the Expiration Time occurs as a result of the Closing, Section 3, Section 7, Section 8.1,
Section 9.1 and Section 9.3 shall survive solely with respect to Buyer and the Shareholder. Notwithstanding the
foregoing, termination of this Agreement shall not prevent any Party from seeking any remedies (at Law or in equity) against any other
party for that party’s breach of any of the terms of this Agreement prior to the date of termination in accordance with Sections
9.4 through 9.6.
9.13. Counterparts.
This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
9.14. Delivery
by Facsimile or Electronic Transmission. This Agreement and any signed agreement or instrument entered into in connection with this
Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means of a facsimile machine, e-mail
delivery of a “.pdf” format data file or other means of electronic transmission, shall be treated in all manner and respects
as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed
version thereof delivered in person. No Party hereto or to any such agreement or instrument shall raise the use of a facsimile machine.
e-mail delivery of a “.pdf” format data file or other means of electronic transmission to deliver a signature to this Agreement
or any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through the use of
a facsimile machine, e-mail delivery of a “.pdf” format data file or other means of electronic transmission as a defense
to the formation of a contract and each Party hereto forever waives any such defense.
[Signature page follows]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
BUYER: |
|
|
|
Voyager Parent, LLC |
|
|
|
By: |
/s/ Daniel Cohen |
|
Name: |
Daniel Cohen |
|
Title: |
Vice President, Secretary and Treasurer |
[Signature Page to Support Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
MERGER PARTNER: |
|
|
|
EVERI HOLDINGS INC. |
|
|
|
By: |
/s/ Randy L. Taylor |
|
Name: |
Randy L. Taylor |
|
Title: |
Chief Executive Officer |
[Signature Page to Support Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
REMAINCO: |
|
|
|
INTERNATIONAL GAME TECHNOLOGY PLC |
|
|
|
By: |
/s/ Vincent L. Sadusky |
|
Name: |
Vincent L. Sadusky |
|
Title: |
Chief Executive Officer |
|
SPINCO: |
|
|
|
IGNITE ROTATE LLC |
|
|
|
By: |
International Game Technology PLC |
|
Its: |
Managing Member |
|
By: |
/s/ Massimiliano Chiara |
|
Name: |
Massimiliano Chiara |
|
Title: |
Executive Vice President and Chief Financial Officer |
[Signature Page to Support Agreement]
IN WITNESS WHEREOF, the parties
have caused this Agreement to be duly executed and delivered on the date and year first above written.
|
SHAREHOLDER: |
|
|
|
DE AGOSTINI S.P.A |
|
|
|
By: |
/s/ Lorenzo Pellicioli |
|
Name: |
Lorenzo Pellicioli |
|
Title: |
Chairman |
[Signature Page to Support Agreement]
Schedule A
Name |
Address |
Remainco
Ordinary Shares |
Remainco
Special Voting
Shares |
Sterling
Non-
Voting Shares |
De
Agostini S.p.A |
[*]
[*]
[*]
[*]
[*]
[*] |
85,422,324 |
85,422,324 |
0 |
*If any additional shares of Remainco Ordinary
Shares are owned by Shareholder or Shareholder has the power to direct the vote of any additional shares of Remainco Special Voting Shares
as of the Agreement Date, such shares shall be automatically deemed to be “Covered Shares” notwithstanding the contents of
this Schedule A.
Exhibit 99.1
IGT's Gaming and Digital Business and Everi
to Be Acquired Simultaneously by Apollo Funds in All-Cash Transaction
Companies to Move Forward Under Private Ownership
Everi Stockholders to Receive $14.25 Per Share
in Cash, Representing a Significant Premium for Stockholders; IGT to Receive $4.05 Billion of Gross Cash Proceeds
LONDON and LAS VEGAS, July 26,
2024 -- International Game Technology PLC (NYSE: IGT) ("IGT") and Everi Holdings Inc. (NYSE: EVRI) ("Everi")
today announced that they have entered into definitive agreements whereby IGT’s Gaming & Digital business (“IGT Gaming”)
and Everi will be simultaneously acquired by a newly formed holding company owned by funds managed by affiliates of Apollo Global Management, Inc.
(NYSE: APO) (“Apollo”) (the “Apollo Funds”) in an all-cash transaction that values the acquired businesses at
approximately $6.3 billion on a combined basis.
On February 29, 2024, IGT and Everi announced that they had
entered into definitive agreements pursuant to which IGT would separate the IGT Gaming business by way of a taxable spin-off to IGT shareholders
and then immediately combine such business with Everi. Under the terms of the new agreements, the Apollo Funds will acquire IGT Gaming
and Everi. Following closing, IGT Gaming and Everi will be privately owned companies that are part of one combined enterprise.
Under the terms of the new agreements, Everi stockholders will
receive $14.25 per share in cash, representing a 56% premium over Everi’s closing share price on July 25, 2024.
IGT will receive $4.05 billion of gross cash proceeds for IGT Gaming. IGT expects significant portions of the cash proceeds to be
used to repay debt and to be returned to shareholders.
De Agostini S.p.A., a società per azioni organized under the
laws of Italy, the majority shareholder of IGT, has committed to make a minority equity investment in the combined enterprise at the closing
of the transaction.
Upon completion of the sale of IGT Gaming to the Apollo Funds, IGT
will change its name and stock ticker symbol, becoming a premier pure play lottery business.
The transaction with the Apollo Funds has been unanimously approved
by a special committee of the IGT Board of Directors and unanimously approved by all members of the Everi Board of Directors, and the
previous transaction agreements between IGT and Everi entered into on February 28, 2024 have been terminated.
Vince Sadusky, IGT PLC CEO, said, “Our new agreement represents
a positive evolution of our previously announced transaction with Everi and a successful culmination of the strategic review process
that IGT launched last year. With the Apollo Funds, we have found a partner that recognizes the strength of IGT Gaming, the value of
our talent and our position in the industry. This transaction will allow IGT Gaming to continue to invest in and enhance its growing core
segments while providing customers with a more comprehensive portfolio of offerings. After the closing of this transaction, IGT’s
shareholders will continue to own one hundred percent of IGT’s Global Lottery business, which will be positioned for long- term
success as a pure-play global lottery player with a more focused, compelling business model and optimized capital structure to drive
long-term shareholder value.”
Randy Taylor, Everi President and CEO, added, “We believe this
transaction maintains the integrity and strong strategic rationale of our original agreement with IGT, but now also provides significant
and certain value to our stockholders as we move forward with the Apollo Funds as our partner. By joining forces with IGT Gaming, we
expect to continue to lead, innovate, and provide unparalleled value to our customers as a stronger player in the global gaming, FinTech,
and digital industry. Apollo is a respected investment firm with a strong track record in the gaming sector, and they recognize the value
of our business and see significant potential in bringing IGT Gaming and Everi together. Under private ownership, we believe we will
be better positioned to accelerate the integration of our two organizations for the benefit of our customers and employees.”
Daniel Cohen, Partner at Apollo, stated, “We are excited to reach
this agreement with IGT and Everi, which establishes a leading, diversified solutions provider that is well positioned across the entire
gaming ecosystem. As an active investor in the gaming and leisure sector for many years, we have long admired both companies and their
highly talented teams. We strongly believe in the value proposition of the combination and are confident these complementary gaming platforms
will be even better positioned under private ownership to capture the opportunities ahead to grow and create value. We look forward to
working in partnership with all the people at IGT Gaming and Everi to propel the combined enterprise forward.”
Apollo has a strong track record of successful current and former investments
across leisure, including in the gaming and entertainment sectors.
Leadership, Governance & Structure
IGT PLC CEO Vince Sadusky will oversee the separation of IGT Gaming
and support the transition through transaction completion. Post-closing, Mr. Sadusky will continue in his role, leading the lottery-
focused company under its new name and stock ticker symbol. Following the acquisitions of IGT Gaming and Everi by the Apollo Funds, current
IGT EVP Strategy and Corporate Development, Fabio Celadon, will serve as CFO, and current Everi CFO, Mark Labay, will assume the role
of Chief Integration Officer, of the combined enterprise. The newly formed combined enterprise will be headquartered in Las Vegas.
In addition, upon closing of the transaction, the shares of common
stock, par value $0.001 per share, of Everi will be delisted from the New York Stock Exchange.
Approvals and Timing
The acquisitions of IGT Gaming and Everi by the Apollo Funds are cross-conditioned.
The transaction is subject to customary closing conditions, including the receipt of regulatory approvals and approval by Everi stockholders,
and is expected to be completed by the end of the third quarter of 2025. IGT shareholder approval is not required for the transaction.
Upcoming Second Quarter 2024 Earnings Results
IGT will release its second quarter 2024 financial results and hold
its earnings conference call as planned on July 30, 2024 at 8:00 a.m. ET.
Everi will release its second quarter 2024 financial results no later
than August 9, 2024. In light of this transaction with Apollo, Everi will not host an earnings conference call.
Advisors
Macquarie Capital, Deutsche Bank, and Mediobanca are serving as financial
advisors to IGT, and Sidley Austin LLP, White & Case LLP and Wachtell, Lipton, Rosen & Katz are serving as legal counsel
to IGT.
Global Leisure Partners LLC is serving as the exclusive financial advisor
to Everi, and Houlihan Lokey provided additional financial advice to Everi’s Board of Directors. Pillsbury Winthrop Shaw Pittman
LLP is serving as legal counsel to Everi.
Paul, Weiss, Rifkind, Wharton & Garrison LLP is serving as
legal counsel to the Apollo Funds.
Deutsche Bank and Macquarie Capital are providing financing commitments for the transaction.
About
IGT
IGT (NYSE:IGT) is a global leader in
gaming. We deliver entertaining and responsible gaming experiences for players across all channels and regulated businesses, from Lotteries
and Gaming Machines to Sports Betting and Digital. Leveraging a wealth of compelling content, substantial investment in innovation, player
insights, operational expertise, and leading-edge technology, our solutions deliver unrivaled gaming experiences that engage players and
drive growth. We have a well-established local presence and relationships with governments and regulators in more than 100 jurisdictions
around the world, and create value by adhering to the highest standards of service, integrity, and responsibility. IGT has approximately
11,000 employees. For more information, please visit www.igt.com.
About Everi
Everi's mission is to lead the gaming
industry through the power of people, imagination, and technology. As one of the largest suppliers of technology solutions for the casino
floor that also has an expanding focus in adjacent industries, our commitment is to continually develop products and services that provide
gaming entertainment, improve our customers' patron engagement, and help our customers operate their businesses more efficiently. We
develop entertaining game content, gaming machines, and gaming systems to serve our land-based, iGaming and bingo operators. Everi is
a leading innovator and provider of trusted financial technology solutions that power casino floors, improve casinos'
operational efficiencies, and fulfill regulatory compliance requirements. The Company also develops and supplies player loyalty tools
and mobile-first applications that drive increased patron engagement for our customers and venues in the casino, sports, entertainment,
and hospitality industries. For more information, please visit www.everi.com.
About Apollo
Apollo is a high-growth, global alternative asset manager. In our
asset management business, we seek to provide our clients excess return at every point along the risk-reward spectrum from investment
grade to private equity with a focus on three investing strategies: yield, hybrid, and equity. For more than
three decades, our investing expertise across our fully integrated platform has served the financial return needs of our clients and
provided businesses with innovative capital solutions for growth. Through Athene, our retirement
services business, we specialize in helping clients achieve financial security by providing a suite of retirement savings products and
acting as a solutions provider to institutions. Our patient, creative, and knowledgeable approach to investing aligns our clients, businesses
we invest in, our employees, and the communities we impact, to expand opportunity and achieve positive outcomes. As of March 31,
2024, Apollo had approximately $671 billion of assets under management. To learn more, please visit www.apollo.com.
Additional Information and Where to
Find It
In connection with the proposed transaction
(the “Proposed Transaction”), Everi will file relevant materials with the Securities and Exchange Commission (“SEC”),
including Everi’s proxy statement on Schedule 14A (the “Proxy Statement”). This press release is not a substitute for
the Proxy Statement or any other document that Everi may file with the SEC or send to its stockholders in connection with the Proposed
Transaction. BEFORE MAKING ANY VOTING OR INVESTMENT DECISIONS, INVESTORS AND SECURITY HOLDERS OF EVERI ARE URGED TO READ CAREFULLY
AND IN THEIR ENTIRETY ALL RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC, INCLUDING THE PROXY STATEMENT, AS WELL AS
ANY AMENDMENTS OR SUPPLEMENTS THERETO, IN CONNECTION WITH THE PROPOSED TRANSACTION WHEN THEY BECOME AVAILABLE BECAUSE THEY CONTAIN
OR WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND RELATED MATTERS. Investors and
security holders will be able to obtain free copies of such documents (when available) through the website maintained by the SEC at http://www.sec.gov,
or by visiting Everi’s website at www.everi.com or by contacting Everi’s Investor Relations Department at Everi Holdings
Inc., Investor Relations, 7250 S. Tenaya Way, Suite 100, Las Vegas, NV 89113.
Participants in the Solicitation of
Proxies
Everi and certain of its directors and
executive officers may be deemed to be participants in the solicitation of proxies in respect of the Proposed Transaction. Information
about the directors and executive officers of Everi is set forth in (i) Everi’s proxy statement for its 2024 annual meeting
of stockholders under the headings “Proposal 1: Election of Three Class I Directors” (including “Board and
Corporate Governance Matters,” “Certain Relationships and Related Transactions,” and “Executive Officers”),
and “Proposal 3: Approval of the Everi Holdings Inc. Amended and Restated 2014 Equity Incentive
Plan” (including “Executive Compensation,” “Security Ownership of Certain Beneficial Owners and Management,”
“Pay Ratio,” and “Pay Versus Performance,” which was filed with the SEC on April 19, 2024 and is available
at https://www.sec.gov/ix?doc=/Archives/edgar/data/0001318568/000131856824000035/evri- 20240419.htm, (ii) Everi’s
Annual Report on Form 10-K for the fiscal year ended December 31, 2023, including under the headings “Item 10. Directors,
Executive Officers, and Corporate Governance,” “Item 11. Executive Compensation,” “Item 12. Security Ownership
of Certain Beneficial Owners and Management, and Related Stockholder Matters,” and “Item
13. Certain Relationships and Related Transactions, and Director Independence,” which was filed with the SEC on February 29,
2024 and is available at https://www.sec.gov/ix?doc=/Archives/edgar/data/0001318568/000131856824000009/evri- 20231231.htm,
and (iii) to the extent holdings of Everi securities by its directors or executive officers have changed since the amounts
set forth in Everi’s proxy statement for its 2024 annual meeting of stockholders, such changes have been or will be reflected on
Initial Statement of Beneficial Ownership of Securities on Form 3, Statement of Changes in Beneficial Ownership on Form 4,
or Annual Statement of Changes in Beneficial Ownership of Securities on Form 5, filed with the SEC (which are available at EDGAR
Search Results https://www.sec.gov/edgar/search/#/category=form-cat2&ciks=0001318568&entityName=Everi%2520Holdings%2520Inc.%2520(EVRI)%2520(CIK%25200001
318568).
Other information regarding
the participants in the proxy solicitations and a description of their direct and indirect interests, by security holdings or otherwise,
will be contained in the Proxy Statement and other relevant materials to be filed with the SEC regarding the Proposed Transaction when
such materials become available. Investors should read the Proxy Statement carefully when it becomes available before making any voting
or investment decisions. Copies of the documents filed with the SEC by Everi will be available free of charge through the website maintained
by the SEC at www.sec.gov. Additionally, copies of documents filed with the SEC by Everi will
be available free of charge on Everi’s website at www.everi.com.
Forward-Looking Statements
This press release contains “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended, related to IGT and Everi, and the Proposed Transaction. All statements other than statements of historical
fact are forward-looking statements for purposes of federal and state securities laws. These forward-looking statements involve risks
and uncertainties that could significantly affect the financial or operating results of IGT and Everi. These forward-looking statements
may be identified by terms such as “anticipate,” “believe,” “could,” “estimate,” “expect,”
“forecast,” “foresee,” “intend,” “may,” “plan,” “project,” “should,”
“will,” and “would” and the negative of these terms or other similar expressions. Forward-looking statements
in this press release include, among other things, statements about the potential benefits of the Proposed Transaction, including future
plans, objectives, expectations, and intentions; the anticipated timing of completing the Proposed Transaction; and the expected use
of cash proceeds from the Proposed Transaction. In addition, all statements that address operating performance, events or developments
that IGT or Everi expects or anticipates will occur in the future — including statements relating to creating value for shareholders
and stockholders, benefits of the Proposed Transaction and the expected timetable for completing the Proposed Transaction — are
forward-looking statements. These forward-looking statements involve substantial risks and uncertainties that could cause actual results
to differ materially from those expressed or implied by such statements. These risks and uncertainties include, among other things, risks
related to the possibility that the conditions to the consummation of the Proposed Transaction will not be satisfied in the anticipated
timeframe or at all; risks related to the ability to realize the anticipated benefits of the Proposed Transaction; the ability to retain
and hire key personnel; negative effects of the announcement or failure to consummate the Proposed Transaction on the market price of
IGT’s ordinary shares and Everi’s common stock and on IGT’s and Everi’s operating results; the occurrence
of any event, change or other circumstances that could give rise to the termination of the separation and sale agreement or the merger
agreement relating to the Proposed Transaction; significant transaction costs, fees, expenses and charges; operating costs, customer
loss, and business disruption (including, without limitation, difficulties in maintaining employee, customer, or other business, contractual,
or operational relationships following the Proposed Transaction announcement or closing of the Proposed Transaction and the diversion
of the attention of the management teams of IGT and Everi from their respective ongoing businesses); failure to consummate or delay in
consummating the Proposed Transaction for any reason; risks relating to any resurgence of the COVID-19 pandemic or similar public health
crises; risks related to competition in the gaming and lottery industries; dependence on significant licensing arrangements, customers,
or other third parties; risks related to the financing of the Proposed Transaction; economic changes in global markets, such as currency
exchange, inflation and interest rates, and recession; government policies (including policy changes affecting the gaming industry, taxation,
trade, tariffs, immigration, customs, and border actions) and other external factors that IGT and Everi cannot control; regulation and
litigation matters relating to the Proposed Transaction; unanticipated adverse effects or liabilities from business divestitures; risks
related to intellectual property, privacy matters, and cyber security (including losses and other consequences from failures, breaches,
attacks, or disclosures involving information technology infrastructure and data); other business effects (including the effects of industry,
market, economic, political, or regulatory conditions); and other risks and uncertainties, including, but not limited to, those described
in IGT’s Annual Report on Form 20-F on file with the SEC and from time to time in other filed reports including IGT’s
Reports on Form 6-K, and those described in Everi’s Annual Report on Form 10-K on file with
the SEC and from time to time in other filed reports including Everi’s Quarterly Reports on Form 10-Q.
A further description
of risks and uncertainties relating to IGT can be found in its most recent Annual Report on Form 20-F and Reports on Form 6-K,
and relating to Everi can be found in its most recent Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current
Reports on Form 8-K, all of which are filed with the SEC and available at www.sec.gov.
There can be no assurance that the Proposed
Transaction will in fact be consummated. If the Proposed Transaction is consummated, Everi’s stockholders will cease to have any
equity interest in Everi and will have no right to participate in its earnings and future growth. Everi cautions investors not to unduly
rely on any forward-looking statements, which speak only as of the date thereof. Neither IGT nor Everi intends to update or revise any
forward-looking statements as a result of new information or future events or developments, except as required by law.
Contacts
For IGT
Phil O'Shaughnessy, Global Communications,
toll free in U.S./Canada +1 (844) IGT-7452; outside
U.S./Canada +1 (401) 392-7452
Francesco Luti, Italian media inquiries,
+39 06 5189 9184
James Hurley, Investor Relations,
+1 (401) 392-7190
For Everi
Jennifer Hills, Investor
Relations, Jennifer.hills@everi.com
(908) 723-5841
For Apollo
Noah Gunn
Global Head of Investor Relations
(212) 822-0540
IR@apollo.com
Joanna Rose
Global Head of Corporate Communications
(212) 822-0491
Communications@apollo.com
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