NCG190078_Name-Owner Change Supporting Info_20220404

ASSET PURCHASE AGREEMENT
by and between
DEATON YACHT SERVICES, INC. a North Carolina Stock Corporation
as Seller,
and
ZIMMERMAN MARINE INCORPORATED
as Buyer
Dated as of
July 1, 2021
-1-
I\ 15424958.7

TABLE OF CONTENTS
Page
ARTICLE I PURCHASE AND SALE OF ASSETS................................................................ I
1.1
Sale of Assets......................................................................... .............................. 1
1.2
Retained Assets.....................................................................................................
2
ARTICLE II
ASSUMPTION OF LIABILITIES..................................................................... 2
2.1
Assumed Liabilities..............................................................................................
2
2.2
Retained Liabilities..............................................................................................
2
ARTICLE III
PURCHASE PRICE........................................................................................... 3
3.1
Purchase Price......................................................................................................
3
3.2
Purchase Price Adjustment.................................•-•--••.........................................
4
3.3
Purchase Price Allocation...................................................................................
4
ARTICLE IV
CLOSING AND CONDITIONS........................................................................ 4
4.1
Closing...................................................................................................................4
4.2
Conditions to Obligations of Buyer....................................................................
4
4.3
Conditions to Obligations of Seller.....................................................................
6
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLERS ......................... 7
5.1
Organization and Standing................................................................................
7
5.2
Authority, Validity and Effect............................................................................
7
5.3
No Conflict; Required Filings and Consents .....................................................
7
5.4
Title........................................................................................................................8
5.5
Financial Statements............................................................................................
8
5.6
Accounts ReceivableN/A.....................................................................................
9
5.7
Inventory..............................................................................................................
9
5.8
Material Contracts...............................................................................................
9
5.9
Intellectual Property(N/A)................................................................................
10
5.10
Litigation ............. ........................................................... —..................................
10
5.11
Compliance with Laws......................................................................................
10
5.12
Products..............................................................................................................11
5.13
Employees ........ --• ............................... ........................................ ......................
11
5.14
Employee Benefit Plans.....................................................................................
12
5.15
Permits...............................................................................................................
13
5.16
Absence of Certain Changes and Events.........................................................
13
5.18
Taxes...................................................................................................................
14
-i-

5.19
Customers ........................... ............................................................................. .
15
5.20
Brokers................................................................................................................15
5.21
Insurance............................................................................................................
15
5.22
Related Party Arrangements............................................................................
15
5.23
Franchise Operations N/A.................................................................................
15
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER ..........................15
6.1
Organization and Standing...............................................................................
15
6.2
Authority, Validity and Effect..........................................................................
16
6.3
No Conflict; Required Filings and Consents. ..................................................
16
6.4
Litigation.............................................................................................................16
6.5
Compliance with Law........................................................................................
16
6.6
Availability of Funds..........................................................................................
16
ARTICLE VII POST -CLOSING COVENANTS...................................................................16
7.1
Product Warranties...........................................................................................
16
7.2
Further Assurances; Confidentiality................................................................
17
7.3
Publicity..............................................................................................................
17
7.4
COBRA Obligations..........................................................................................
17
7.5
Tax Matters.. ................................................ ......................................................
18
7.6
Post -Closing Access to Books and Records .....................................................
18
7.7
Use of Intellectual Property..............................................................................
19
7.8
Remittance of Payments....................................................................................
19
7.9
Assigned Contracts ............... _..........................................................................
20
7.10
Employment Tax Filings...................................................................................
20
7.11
Employee -Related Tax Cooperation..... ...........................................................
20
ARTICLE VIII
EMPLOYEE MATTERS..............................................................................
21
8.1
Employment........................................................................................................21
8.2
Employee Benefits..............................................................................................
21
8.3
WARN Act..........................................................................................................
22
8.4
Access.................................................................................................................
22
ARTICLE IX INDEMNIFICATION.......................................................................................
22
9.1
Survival Periods. ............................ ....................................................................
22
9.2
Indemnification.................................................................................................
22
9.3
Procedures for Claims.......................................................................................
24

9.4
Payment of Losses.............................................................................................. 25
9.5
Tax Treatment of Indemnification Payments .................................................
26
ARTICLE X
MISCELLANEOUS...........................................................................................
26
10.1
Expenses..............................................................................................................26
10.2
Successors and Assigns......................................................................................
26
10.3
Third -Party Beneficiaries..................................................................................
26
10.4
Notices.................................................................................................................
26
10.5
Complete Agreement......................................................................................--..
27
10.6
Construction.......................................................................................................
27
10.7
Headings; References.........................................................................................
28
10.8
Amendment; Waiver.........................................................................................
28
10.9
Governing Law...................................................................................................
28
10.10
Submission to Jurisdiction; Waiver of Jury Trial ..........................................
28
10.11
Dispute Resolution .............................
10.12
Severability............................... ................... ............. ..........................................
. 29
10.13
Enforcement of Agreement...............................................................................
29
10.14
Counterparts......................................................................................................
30

Appendix
Appendix A Definitions
Exhibits
Exhibit A $194,000.00 Promissory Note and Amortization
Schedule
Exhibit B $90,000.00 Promissory Note and Amortization Schedule
Exhibit C Bill of Sale
Exhibit D Covenant Not to Compete
Exhibit E Lease Agreement
Exhibit F List of Excluded Assets
Exhibit G Assignment and Assumption Agreement
Exhibit H Post Closing Agreement
Exhibit I Security Agreement and UCC-1 with respect to Note 1
Exhibit J Security Agreement and UCC-1 with respect to Note 2

ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement"), dated as of July 1, 2021 is made by
and among DEATON YACHT SERVICES, INC., a North Carolina stock corporation ("Deaton
Yacht"), "Seller", and ZIMMERMAN MARINE INCORPORATED, a Virginia stock corporation
("Buyer"). Capitalized terms are used in this Agreement with the meanings assigned to those
terms in Appendix A hereto.
RECITALS
Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, certain assets,
properties, rights and interests of Seller relating to the Business, on the terms and conditions
contained in this Agreement.
NOW THEREFORE, in consideration of the covenants, representations, warranties and
mutual agreements herein combined, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Buyer and Seller, intending to be legally bound,
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Sale of Assets. Upon the terms and conditions of this Agreement, at the Closing,
Seller shall sell to Buyer, and Buyer shall purchase, acquire, accept transfer or assignment and take
delivery from Seller of, all of Seller's collective right, title and interest in, to and under all of the
assets, properties, and rights, of every kind and description whatsoever, used in the Business,
including, without limitation the following assets owned by Seller as of the Closing Date
(collectively, the "Acquired Assets"):
a. All files, customer lists, other electronic records, contact points, including e-mail
addresses, web -sites, phone numbers, fax numbers, P.O. Boxes, and any intangible
assets of the Seller including any goodwill. Seller shall be responsible and
indemnify Purchaser for any work it completes or bills for prior to closing. The
parties agree that the work in progress list shall be updated at closing. Deaton will
post an announcement on its website after closing announcing that Buyer is now
providing services at its existing location and it will automatically redirect inquiries
and clients to the Buyer's website for a period of six (6) months after the Closing
Date. The parties agree that Two Hundred and Nine Thousand Dollars
($209,000.00) of the purchase price shall be allocated to these assets.
b. Furniture/Fixtures, and Equipment. The Purchaser shall purchase the tools and
equipment listed on the Bill of Sale attached hereto as Exhibit "C" and made a part
hereof. A week before closing, Purchaser or its agents shall visit Seller's facility
to confirm location of the listed tools and equipment. Seller shall note any assets
that are excluded from this transaction. The parties agree that Ninety Thousand
Dollars ($90,000.00) of the Purchase Price shall be allocated to these assets.

Purchaser agrees that all assets are being SOLD AS IS WHERE IS and Seller
makes no representation or warranty as to the condition of such assets.
c. Inventory. The Purchaser shall purchase all of the inventory as set forth in the Bill of
Sale attached hereto as "Exhibit "C" and made a part hereof. If the value of the inventory increases
or decreases at closing then the Purchase Price shall be increased or decreased based on agreed
price adjustment of $.62 cents per dollar. The parties agree that Two Hundred and Fifty Nine
Thousand Dollars ($259,000.00) of the Purchase Price shall be allocated to these assets.
d. All prepayments, deposits and prepaid expenses relating to the Business (excluding
those relating to the Retained Assets)
e. All books and records relating to the Business, provided, however, that Seller shall have
the right to retain copies of its books and records as it deems necessary for legal and accounting
purposes; and
1.2 Retained Assets. Notwithstanding Section 1. 1, all assets to be retained by Seller and
excluded from the Acquired Assets are listed and more fully described on Exhibit F attached hereto
(collectively, the "Retained Assets").
ARTICLE II
ASSUMPTION OF LIABILITIES
2.1 Assumed Liabilities. Except as otherwise provided in this Agreement, Buyer shall
assume no liabilities of Seller.
2.2 Retained Liabilities. Notwithstanding the foregoing, for the avoidance of doubt,
Buyer shall not assume the following Liabilities of Seller (the "Retained Liabilities"):
2_1;
(a) all Liabilities of the Seller other than those specifically set forth in Section
(b) all Liabilities payable to Affiliates of Seller;
(c) all Liabilities for Indebtedness;
(d) all Liabilities for (i) any Income Taxes, (ii) Sales Taxes, and (iii) any other
Taxes imposed with respect to the Business, Acquired Assets, and Digital Business for any period
(or portion of any period) prior to the Effective Time;
(e) Subject to Sections 8.1 and 8_2, all Liabilities arising from or relating to the
Benefit Plans retained by Seller and related to employees of the Business and incurred prior to the
Effective Time;
(f) all costs and expenses incurred by Seller in connection with the negotiation
and execution of this Agreement, the Ancillary Agreements, the Transaction and the other
transactions contemplated hereby; and
2

(g) all Liabilities relating exclusively to any Retained Asset.
2.3 Work in Progress. The parties agree that Buyer shall assume certain jobs prior to closing
as set forth on a work in progress list provided by Seller two (2) days prior to closing and agreed
on by the parties. The parties agree that the cutoff date for the jobs performed by Seller and
assumed by Buyer on the attached list shall be June 30, 2021. Seller shall bill for such work
performed on June 30, 2021 and it shall be responsible for all work performed by it and all liability
relating thereto. Buyer shall bill for all work after June 30, 2021 and it shall be responsible for all
work performed by it and all liability relating thereto.
ARTICLE III
PURCHASE PRICE
3.1 Purchase Price. The aggregate purchase price for the Acquired Assets shall be
Five Hundred and Fifty Nine Thousand Dollars and 00/100 ($559,000.00), subject to adjustment
as provided in Section 3.2 (as so adjusted, the "Purchase Price"). At Closing, Buyer shall pay to
Sellers the Purchase Price, as follows: (i) in cash, by wire transfer of immediately available funds,
Two Hundred and Seventy Five Thousand Dollars and 00/100 ($275,000.00) (the "Cash Purchase
Price"), plus the following amounts to be Seller financed as follows (ii) One Hundred and Ninety
Four Thousand Dollars ($194,000.00) in the form of the promissory note attached hereto as Exhibit
"A" and made a part hereof ("Note I") shall be allocated to all files, customer lists, other electronic
records, contact points, including e-mail addresses, web -sites, phone numbers, fax numbers, P.O.
Boxes, and any intangible assets of the Purchaser including any goodwill, with One Thousand
Dollars ($1,000.00) of the aforementioned amount of Note 1 to be allocated to the Restrictive
Covenant and Non -Compete Agreement as set forth in Exhibit "D", all to be Seller financed for
the Buyer over Sixty (60) monthly installment payments of Three Thousand Five Hundred and
Seventy Two Dollars and Eighty One Cents ($3,572.81) with an annual interest rate of 4% per
annum. Attached is an initial amortization schedule attached hereto as Exhibit "A" and
incorporated herein which has been approved by the parties. The parties shall update the
amortization schedule once a closing date has been approved. All assets purchased by the Buyer
under this Agreement shall be collateral for Note 1. Note 1 shall be secured by the Security
Agreement and UCC-1 attached hereto as Exhibit I and made a part hereof. A default on Note 1
shall constitute a default under other payment obligations of Buyer in this transaction as well as
the Lease required by Article IV of this Agreement, plus (iii) Ninety Thousand Dollars 00/100
($90,000.00) in the form of a promissory note attached hereto as Exhibit `B" and made a part
hereof ("Note 2") shall be allocated to tools and equipment to be Seller financed for the Buyer
over Sixty (60) monthly installment payments of One Thousand Five Hundred and Thirty Eight
Dollars and Forty Four Cents ($1,538.44) with an annual interest rate of 1% per annum. Attached
is an initial amortization schedule attached hereto as Exhibit `B" and incorporated herein which
has been approved by the parties. The parties shall update the amortization schedule once a closing
date has been approved. All assets purchased by the Buyer under this Agreement shall be collateral
for Note 2 as well. Note 2 shall be secured by the Security Agreement and UCC-1 attached hereto
as Exhibit J and made a part hereof. A default on Note 2 shall constitute a default under other
payment obligations of Buyer in this transaction as well as the Lease required by Article IV of this
Agreement. Notwithstanding anything in this paragraph to the contrary, Note 1 and Note 2 shall
3

contain cure provisions for Buyer of Ten (10) days for monetary defaults and Thirty (30) days for
nonmonetary defaults.
3.2 Purchase Price Adjustment. The Purchase Price shall be adjusted upward or
downward at closing, as applicable, based on an agreed sixty two cents (.62) per dollar price based
on the value of the inventory on the date of the agreed walkthrough by the parties.
3.3 Purchase Price Allocation. The allocation of the Purchase Price attached hereto
as Schedule 3.3 sets forth the allocation of the Purchase Price and the Assumed Liabilities among
the Acquired Assets (the "Purchase Price Allocation"). Buyer and Seller shall file, in accordance
with Section 1060 of the Code, an Asset Allocation Statement on Form 8594 (which reflects such
allocation) with their federal Income Tax Return for the Tax year in which the Closing Date occurs
and shall contemporaneously provide the other parties hereto with a copy of the Form 8594 being
filed. The parties hereto agree that the Purchase Price Allocation shall be modified to reflect
changes to the Purchase Price pursuant to Section 3.2 or the payment of any indemnification claims
by Seller pursuant to Article IX, as mutually agreed upon by Buyer and Seller in good faith (and,
if applicable, consistent with the prior allocation of similar items). The parties shall file an
amendment to Form 8594 to reflect any adjustments made to the Purchase Price Allocation as
provided in this Section 3.3. Buyer and Seller each agree not to assert, in connection with any Tax
Return, audit or similar Action, any allocation of the Purchase Price and the Assumed Liabilities
that differs from the allocation set forth on Schedule 3.3 herein.
ARTICLE IV
CLOSING AND CONDITIONS
4.1 Closing. The closing of the Transaction (the "Closing") shall take place remotely
and concurrently on or before July 1, 2021 (the "Closing Date") and shall be effective at 5:00 p.m.
Eastern Standard Time on the Closing Date (the "Effective Time"). All proceedings to be taken
and all documents to be executed and delivered by all Parties at the Closing will be deemed to
have been taken and executed simultaneously and no proceedings will be deemed to have been
taken nor documents executed or delivered until all have been taken, executed and delivered.
4.2 Conditions to Obligations of Buyer. The obligation of Buyer to consummate the
transactions to be performed by it in connection with the Closing are subject to Seller delivering,
or causing to be delivered, the following:
(a) the Bill of Sale, duly executed by Seller;
(b) a counterpart to the Assignment and Assumption Agreement, duly executed
by Sellers;
(c) Seller shall cooperate and assist Buyer in transferring any existing
dealerships into Buyer's name at Closing as set forth in the Post Closing Agreement attached
hereto as Exhibit "H" and made a part hereof.
(d) non -foreign affidavits containing such information as is required by
Section 1445(b)(2) of the Code, duly executed by Seller, if applicable;
El

(e) UCC-3 or equivalent financing statements or other releases terminating all
Liens, other than Permitted Liens, on any of the Acquired Assets;
(f) the Consents listed on Schedule 4.2(h) (the "Material Consents"), if any;
(g) the Restrictive Covenant and Non -Compete Agreement, duly executed by
the Seller and the owners of Seller as set forth in Exhibit "D";
(h) copies of each the Seller's bylaws and certified copies of Seller's articles of
incorporation, as applicable;
(i) evidence of good standing for Seller, issued not earlier than ten (10) days
prior to the Closing Date from the appropriate commission of each State in which such Seller is
incorporated or organized;
0) certified copies of the resolutions of the Seller's Board of Directors
authorizing the execution, delivery and performance of this Agreement and Ancillary Agreements
to which each Seller is a party, and consummation of the Transaction;
(k) an incumbency certificate setting forth those individuals authorized to
execute this Agreement and the Ancillary Documents on behalf of Seller; and
(1) Lease Agreement with Deaton Yacht Services, Inc. and Deaton Enterprises,
LLC as set forth in the Lease attached hereto as Exhibit "E" and made a part hereof.
(m) Buyer shall provide to Seller and/or John P. Deaton the opportunity to
participate in Yanmar, ABYC and any other dealer schools as they become available. Unless
attendance at such schools is requested or directed by Buyer, all expenses to attend such schools
shall be the obligation of Seller and/or John P. Deaton. Buyer shall allow Seller and John P. Deaton
to the use of its Yanmar dealership license to provide access to dealer digital information, Yanmar
YDS agreement and Yanmar Smart Assist for a period of five (5) years from the date of closing
of this Agreement. This agreement shall be contained in the Post Closing Agreement attached as
Exhibit "H"; and
(n) Buyer agrees to sell parts to Seller, provided such parts are for personal use
or for repair of tow boats, at the Buyer's direct costs for such parts. This obligation shall last for
five (5) years from the date of closing on this Agreement. This condition shall be contained in the
Post Closing Agreement attached hereto as Exhibit H.
(o) Buyer agrees to allow access and use of the garage, described as a stand
alone framed structure of approximately four hundred and eighty square feet (20' x 24') together
with the utility building/storage shed of approximately thirty two square feet (4' x 8') immediately
behind the garage, by Seller and Deaton for the duration of the Lease Agreement at Exhibit E.
This condition shall be contained in the Post Closing Agreement attached hereto as Exhibit H.
E

(p) Buyer agrees that Seller will forward customer a -mails to Buyer for six (6)
months after closing. This condition shall be contained in the Post Closing Agreement attached
hereto as Exhibit H.
(q) It is understood by the parties that as a condition precedent to Buyer's
purchasing of the Assets that Buyer shall require Seller's assistance in maintaining the Assets and
clients for a three month period of time in order to acclimate Seller's customers and vendors to the
transition ("Transition Period"). The parties agree that John P. Deaton (herein "Deaton") shall
serve as Seller's representative for such Transition Period. It is understood that for the first three
(3) months directly subsequent to the Closing Seller shall make Deaton available to Buyer to assist
to timely provide customer contact information and to assist Purchaser in contacting them. Seller
shall assist during the Transition Period based on mutually agreeable times and dates to maximize
the retention of the Seller's customers. Seller agrees to work with the Buyer and its transition team
to issue joint statements to all customers informing them of the Buyer's purchase of the assets
from Seller and facilitate introductions to such clients. Such services provided by Seller through
Seller's representative shall not exceed Thirty Two (32) hours per week. Seller shall be
compensated at Seventy Five ($75.00) per hour for any agreed services provided to Buyer during
the Three (3) month period. This condition shall be contained in the Post Closing Agreement
attached as Exhibit H.
(r) Dealerships. Seller shall cooperate and assist Buyer in transferring any
existing dealerships into Purchaser's name at Closing. Seller agrees to sign any and all documents
necessary to transfer such dealerships. Any dealerships not assigned at Closing shall be contained
in the Post Closing Agreement attached hereto as Exhibit H.
4.3 Conditions to Obligations of Sellers. The obligation of Seller to consummate the
transactions to be performed by it in connection with the Closing are subject to Buyer delivering,
or causing to be delivered, the following:
by Buyer;
(a) the Cash Purchase Price;l
(b) Execution of Note 1 and Note 2
(c) Security Agreement and UCC-1 with respect to Note 1;
(d) Security Agreement and UCC-1 with respect to Note 2;
(e) a counterpart to the Assignment and Assumption Agreement, duly executed
(f) a counterpart to each Restrictive Covenant and Non -Compete Agreement,
duly executed by Buyer;
(g) Post Closing Agreement;
31

(h) a copy of Buyer's bylaws and a copy of Buyer's articles of incorporation;
(i) a printout from the Clerk's Office of the Virginia State Corporation
Commission, issued not less than ten (10) days prior to the Closing Date confirming that the
company is acting and in good standing;
0) an incumbency certificate setting forth those individuals authorized to
execute this Agreement and the Ancillary Documents on behalf of Buyer;
(k) a certified copy of the resolutions of Buyer's Board of Directors authorizing
the execution, delivery and performance of this Agreement and Ancillary Agreements;
(1) such other documents and instruments as are required to evidence the
assumption of the Assumed Liabilities by Buyer;
(m) Lease Agreement with Deaton Yacht Services, Inc. and Deaton Enterprises,
LLC as set forth in the Lease attached hereto as Exhibit "B" and made a part hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Subject to the qualifications, limitations and disclosures set forth in the Disclosure
Schedules (it being agreed that the disclosure of any matter in any section in the Disclosure
Schedules shall be deemed to have been disclosed in any other section in the Disclosure Schedules
to which the applicability of such disclosure is reasonably apparent on its face), Sellers hereby
represent and warrant to Buyer as follows:
5.1 Organization and Standing. The Seller is a corporation duly incorporated, validly
existing and in good standing under the Laws of the State of North Carolina. Schedule 5.1 lists
states in which each Seller is qualified to do business and in good standing.
5.2 Authority, Validity and Effect. The Seller has all requisite corporate or limited
liability company power and authority to execute, deliver and perform its obligations under this
Agreement and each Ancillary Agreement to which such Seller is a parry, and to consummate the
Transaction. This Agreement and each Ancillary Agreement have been duly executed and
delivered by the Seller thereto. The execution and delivery by Seller of this Agreement and the
Ancillary Agreements to which such Seller is a party and the consummation by Seller of the
Transaction have been duly authorized by all necessary corporate action of Seller, and no other
corporate action on the part of Seller is necessary to authorize this Agreement and the Ancillary
Agreements to which Seller is a party and to consummate the Transaction. This Agreement and
each Ancillary Agreement are the legal, valid and binding obligation of the Seller thereto and
enforceable against each Seller in accordance with the terms hereof and thereof, except as limited
by (a) applicable bankruptcy, reorganization, insolvency, moratorium or other similar Laws
affecting the enforcement of creditors' rights generally from time to time in effect, or (b) the
availability of equitable remedies (regardless of whether enforceability is considered in an Action
at law or in equity) (the "General Enforceability Exceptions").
5.3 No Conflict; Required Filings and Consents.
7

(a) None of the execution and delivery of this Agreement by Seller and the
Ancillary Agreements to which Seller is a party, the consummation by Seller of the Transaction,
and the compliance by Seller with the provisions hereof and of the Ancillary Agreements to which
such Seller is a party, will (i) conflict with or result in a breach of any provision of the Seller's
articles of incorporation, bylaws, or other governing documents, as applicable; (ii) except as set
forth on Schedule 5.3 (a), conflict with, constitute or result in the breach of any material term,
condition or provision of, or constitute a default under, result in or give rise to any right of
termination, cancellation or acceleration with respect to, or result in the creation or imposition of
any Lien upon any of the Acquired Assets pursuant to, or require any notice under, any Material
Contract to which any Seller is a party or to which the Business is subject; or (iii) subject to receipt
of the Consents referred to in Section 5.3(b), violate any Order or Law to which the Seller, the
Business or the Acquired Assets are subject.
(b) Other than (i) as set forth on Schedule 53(b); and (ii) in cases in which the
failure to give such notice, make such filing or receive such authorization, exemption or Consent
would not (A) prevent or delay the consummation by Seller of the Transaction, or the performance
by Seller of any of its material obligations under, this Agreement and the Ancillary Agreements
or (B) materially impact the ability of Buyer to operate the Business as presently conducted, no
notice to, filing with, authorization of, exemption by or Consent of any Person is necessary for or
in connection with the execution, delivery and performance by Seller of this Agreement and the
Ancillary Agreements and the consummation by Seller of the Transaction.
5.4 Title; Condition and Sufficiency of Acquired Assets
(a) Seller has good and valid title to, or a valid leasehold interest in, all of the
Acquired Assets, free and clear of all Liens, except for Permitted Liens. Seller has complete and
unrestricted power and the unqualified right to sell, convey, assign, transfer and deliver the
Acquired Assets, and the deed, assignments and the other instruments of assignment and transfer
executed and delivered by Seller to Buyer at the Closing, all of which are valid and binding
obligations of Seller, enforceable in accordance with their respective terms, and which effectively
vest in Buyer good, marketable and insurable title to the Acquired Assets. The Acquired Assets
are sufficient for the continued conduct of the Business after the Closing in substantially the same
manner as conducted prior to the Closing and constitute all of the rights, property and assets
necessary to conduct the Business as currently conducted. None of the Retained Assets are
material to the Business.
(b) Except as set forth on Schedule 5.4(b), the Acquired Assets are sufficient
for the continued conduct of the Business after the Closing in substantially the same manner as
currently conducted.
5.5 Financial Statements.' The Financial Statements of the Business, as set forth on
Schedule 5.5, fairly present, in all material respects, the financial condition and the results of
operations of the Business as at the respective dates of and for the periods referred to in such
Financial Statements, all in accordance with Seller's Historical Accounting Principles. The
Financial Statements have been prepared in accordance with and reflect the consistent application
8

of Seller's Historical Accounting Principles throughout the periods involved, except as disclosed
in the notes to such Financial Statements or on Schedule 5.5. The Financial Statements have been
prepared from and are consistent in all material respects with the accounting records of Seller.
5.6 Accounts Receivable. N/A
5.7 Inventory. Except as set forth in Schedule 5.7, all Inventory items, if any (a) were
acquired or manufactured in the Ordinary Course of Business; (b) are valued at cost; and (c) consist
of a quality and quantity usable and saleable in the Ordinary Course of Business except for obsolete
items and work -in -process goods, all of which have been written off or written down to net
realizable value on the Balance Sheet or on the accounting records of Seller as of the Closing Date,
as the case may be. All Inventory of Seller is owned free and clear of all Liens (other than
Permitted Liens), and no Inventory is held on a consignment basis. The quantities of each item of
Inventory (whether raw materials, work -in -process or finished goods) are not excessive, but are
reasonable in the present circumstances of the Business.3
5.8 Material Contracts.
(a) Schedule 5.8(a) identifies and discloses (arranged in accordance with this
Section 5.8(a)) the following Contracts relating to the Business to which the Seller is a party as of
the date hereof.4
filled;
(i) customer Contracts for all pending Orders which have not yet been
(ii) supplier Contracts;
(iii) any partnership or joint venture agreements or similar arrangements
involving co -investment in the Business by a third party or co -investment by any
Seller or the Business in a third party;
(iv) guarantees of Indebtedness or agreements imposing a Lien (other
than a Permitted Lien) on any of the Acquired Assets, which Seller will cause to be
released prior to Closing;
(v) IP Contracts;
(vi) consulting, employment, independent contractor or severance
Contracts included in the Assigned Contracts;
(vii) agreements appointing a Person as a dealer, franchisee,
manufacturer's representative, distributor or sales agent;
C

(viii) agreements restricting any Seller from conducting the Business after
the Closing, to compete in any business or with any Person or in any geographic
area, or that require the Business to deal exclusively with the counterparty or under
which the Business grants exclusive rights to another Person;
(ix) agreements granting any right of first refusal or right of first offer or
similar preferential rights or limit or purport to limit the ability of the Business to
own, operate, sell, transfer, pledge or otherwise dispose of any material amount of
assets or business;
(x) agreements that provide for fixed pricing or any discounts, special
pricing arrangements, rebates or special pricing for freight for the products or
services of the Business;
(xi) contracts granting power of attorney by a Seller with respect to the
Business; or
(xii) contracts between any Seller and an Affiliate of any Seller.
(b) Prior to the date hereof, Sellers have made available to Buyer a copy of each
Material Contract.
(c) Except as set forth on Schedule 5.8(c), each Material Contract is valid,
binding and enforceable in accordance with its terms, except as limited by the General
Enforceability Exceptions, and is in full force and effect, and no parry thereto has repudiated any
material provision thereof in writing delivered to the counterparty thereto. There are no existing
material defaults by Seller under any of the Material Contracts and, to Seller's Knowledge, there
are no existing material defaults thereunder by any of the counterparties thereto.
5.9 Intellectual Property. N/A. Seller is providing no representations and
warranties regarding this section.
5.10 Litigation. Except as set forth on Schedule 5.10, there are no, and during the five
(5) year period prior to the date hereof there have not been any, Actions instituted, commenced or
pending, or to Seller's Knowledge, threatened in writing, against the Seller relating to the Business
and involving an amount in excess of $12,000, or that would restrict the consummation of the
Transaction. The Seller is not subject to any Order involving primarily the Acquired Assets, the
Business or the Assumed Liabilities, and to Seller's Knowledge, no such Order has been threatened
to be imposed.
5.11 Compliance with Laws.
(a) The Seller is in material compliance with and, for the three (3) year period
prior to the date hereof, has been in material compliance with, all Laws and Orders applicable to
the Business and the Acquired Assets and in the three (3) year period prior to the date hereof, no
Seller has received any written notification from any Governmental Authority asserting that such
Seller is not in material compliance with any Law or Order applicable to the Business or any
Acquired Asset. During the three (3) year period prior to the date hereof, the Seller has received
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any written notification from any Governmental Authority alleging that any of the products are
defective.
5.12 Products.
(a) The products sold or provided by or on behalf of Seller are sufficient for the
continued conduct of the Business and are marketed in all respects in accordance with applicable
Laws, specifications, warranties and contractual commitments.
(b) Purchaser has been furnished with complete and accurate copies of any
standard terms and conditions of sale and forms of sales orders of Seller (and containing any
guaranty, warranty and indemnity provisions). Schedule 5.12[b) sets forth all product warranty
claims, or series of related product warranty claims, currently pending or, to the Seller's
Knowledge, threatened against Seller in an amount equal to or greater than $10,000. Seller has
not extended to any of their respective customers any written, non -uniform product warranties,
indemnifications or guarantees.5
5.13 Employees. Schedule 5.13 lists each employee of the Business who may become
an employee of Buyer following Closing (each such individual who accepts an offer of
employment, a "Transferred Employee"), the Seller by which each such employee is employed,
and such employee's position, date of hire, compensation in effect on the date hereof (including
hourly rates, salary, bonuses, commissions and all other compensation or remuneration of any
kind), accrued but unused paid vacation and holidays as of the date of this Agreement,
classification status under the Fair Labor Standards Act and leave status (if any), and any
agreements between such Person and Seller relating to such Person's employment, including
arbitration and noncompete agreements. The Seller is not a party to any collective bargaining
agreement affecting any employee of the Business listed on Schedule 5.13, nor has the Seller
experienced any strikes, lockouts, work stoppages, slowdowns, grievances, unfair labor practice
complaints, claims, arbitration proceedings or other material employee or labor disputes. The
Seller has not engaged in any unfair labor practice. To Seller's Knowledge, no organizational
effort is presently being made or threatened by or on behalf of any labor union with respect to
employees of the Business. Seller has complied in all material respects with all provisions of Law
relating to employment and employment practices, terms and conditions of employment, wages
and hours, immigration, independent contractors and consultants and similar matters. Seller has
no liability for any arrears of wages (other than wages and benefits accrued in the Ordinary Course)
or penalties for failure to comply with any such provisions of law. There is no material
employment -related Action pending or, to Seller's Knowledge, threatened, regarding an alleged
violation or breach by the Seller (or any of its directors, officers, employees, or independent
contractors) of any applicable Law or contract. The Seller has not received, in the three (3) year
period prior to the date hereof, any demand letters, civil rights charges, suits, drafts of suits or
complaints in connection with the Business related to claims made by any of its current or former
employees or directors, consultants, or other service providers, in each case employed exclusively
in or providing services exclusively to the Business, whether before the Equal Employment
Opportunity Commission, the National Labor Relations Board, the U.S. Department of Labor, the
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U.S. Occupational Safety and Health Administration, or any comparable body on the state or local
level or outside the United States, or any other Governmental Authority. Seller has in its files, as
applicable, Form I-9s that are validly and properly completed in accordance with applicable Law
for each employee employed in the Business with respect to whom such form is required under
applicable Law. The Seller has not, during the three (3) year period prior to the date hereof,
received any notice or other communication from any Governmental Authority relating to the
Business, regarding any non-compliance or alleged non-compliance of any applicable Law relating
to hiring, recruiting or employing (or continuing to employ) anyone not authorized to work in the
United States.6
5.14 Employee Benefit Plans.
(a) Schedule 5.14(a) sets forth a list of all material employee benefit plans,
programs, policies and arrangements (including all "employee benefit plans," as defined in Section
3(3) of ERISA) sponsored, maintained or contributed to by the Seller or any ERISA Affiliate for
the benefit of any current employee of the Business (each, a "Benefit Plan"), and identifies the
Seller maintaining each such Benefit Plan. A summary of each Benefit Plan listed in Schedule
5.14 a , as currently in effect, has been made available to Buyer for review prior to the date hereof.
Except as set forth on Schedule 5.14(a), no employee or other service provider of the Business will
be entitled to any severance, retention bonus, transaction bonus or similar payment from the Seller
or any ERISA Affiliate as a result of the consummation of the Transaction.
(b) Each Benefit Plan has been maintained and administered in all material
respects in accordance with its terms and in compliance with ERISA, the Code and all other
applicable Laws. All contributions (including all employer contributions and employee salary
reduction contributions) required to have been made by a Seller or an ERISA Affiliate under any
Benefit Plan or by Law (without regard to any waivers granted under Code Section 412) to any
funds or trusts established thereunder or in connection therewith have been timely made, and all
Seller contributions for any period ending on or before the Closing Date that are not yet due will
have been timely paid or accrued as a liability in the Financial Statements. All Benefit Plans are
fully funded on termination and ongoing bases and those providing health or medical coverage are
fully insured.
(c) Each Benefit Plan that is intended to be qualified under Section 401(a) of
the Code is the subject of a favorable determination letter from the Internal Revenue Service or
utilizes a prototype or volume submitter plan document that is the subject of a favorable opinion
or advisory letter issued by the Internal Revenue Service to the sponsor of such prototype or
volume submitter plan, and, to Seller's Knowledge, nothing has occurred since the date of the most
recent such determination, opinion or advisory letter (as applicable) and no condition exists that
would reasonably be expected to result in a disqualification of such Benefit Plan.
(d) No Benefit Plan is, and nor Seller or ERISA Affiliate sponsors, maintains
or contributes to, or is required to contribute to, or has ever sponsored, maintained or contributed
to, or has any liability (contingent or otherwise) or potential liability under (i) a "pension plan"
under ERISA Section 3(2) that is subject to ERISA Title IV or Code Section 412; (ii) a
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multiemployer plan within the meaning of ERISA Section 3(37); (iii) a "multiple employer plan"
within the meaning of ERISA or an employee benefit plan subject to Code Section 413(c); or (iv)
a "multiple employer welfare arrangement" within the meaning of ERISA Section 3(40). No
Benefit Plan has ever provided health care or any other non -pension benefits to any employees
after their employment is terminated (other than as required by Part 6 of Subtitle B of Title I of
ERISA, Code Section 4980B or any similar state law) or has ever promised to provide such post -
termination benefits. Seller does not have any current or projected liability in respect of post -
employment or post -retirement health, medical or life insurance benefits for retired, former or
current employees of the Business or any ERISA Affiliate (or dependents of such employees),
except as required to prevent excise Tax under Code Section 4980B or except for the continuation
of coverage through the end of the calendar month in which termination from employment occurs.
5.15 Permits. Schedule 5.15 sets forth a list, together with a description of type,
duration and status, of each of the Permits held by Seller or required in order to operate the
Business. The Seller has obtained and maintained in full force and effect all Permits required to
operate the Business in the Ordinary Course of Business. The Seller has provided Buyer with true
and complete copies of all Permits. The consummation of the transactions contemplated hereby
shall not interrupt or give any Governmental Authority the right to modify, terminate or interrupt
the continuation of any of the Permits or the conduct of the Business. The Seller is in compliance
with all terms, conditions and requirements of all Permits and no Action is pending or, to Seller's
Knowledge, threatened relating to the revocation or limitation of any of the Permits.
5.16 Absence of Certain Changes and Events.
Except as set forth in .Schedule 5.16, since December 31, 2020, the Business has been
conducted in the Ordinary Course and there has not been any of the following with respect to the
Business:
(a) event, change, or effect that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on the Business or the Acquired Assets;
(b) increase (except in the Ordinary Course) by Seller of any bonuses, salaries
or other compensation paid to any Transferred Employee or entry into any employment, severance
or similar Contract with any Transferred Employee that is an Assigned Contract;
(c) adoption of, amendment to, termination of, or increase in the payments to
or benefits under, any collective bargaining agreement, Benefit Plan or any other policy,
arrangement or employment terms for the benefit of any current or former directors, officers or
employees or any of their beneficiaries, except as required under the terms of the Benefit Plans, as
in effect on December 31, 2020, or as required by applicable Law or in the Ordinary Course;
(d) damage to or destruction or loss of any asset relating to the Business with a
value in excess of $12,000, not covered by insurance;
(e) action to terminate or impair any current or former occurrence -based
insurance policies covering the Business or the Acquired Assets;
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(f) entry into, termination of or receipt of written notice of termination of (i)
any license, distributorship, dealer, sales representative, joint venture, credit or similar Contract
relating to the Business to which Seller is a parry, or (ii) any Contract or transaction relating to the
Business involving a total remaining commitment by Seller of at least $12,000;
(g) sale (other than sales of Inventory in the Ordinary Course), lease or other
disposition of any asset or property of Seller relating to the Business (including Intellectual
Property assets) with a value in excess of $12,000 except (i) for fair consideration to Persons
including Affiliates of Seller or (ii) pursuant to existing agreements in effect prior to the execution
of this Agreement;
(h) creation of any Lien on any Acquired Asset (other than Permitted Liens), or
the making of any loans, advances or capital contributions to, or investments in, any other Person
exclusively in connection with the Business (other than trade credit extensions in the Ordinary
Course);
(i) settlement, cancellation, release or waiver of any Action, claims or rights
exclusively relating to the Business and involving money damages in excess of $12,000 other than
in the Ordinary Course;
0) material change in the accounting methods used with respect to the
Business, or in any system of internal accounting controls or any methods of reporting income,
deductions or other material items for income Tax purposes applicable to the Business, other than
such changes as are required by GAAP or applicable Law; or
(k) Contract to which Seller is a party obligating Seller to do any of the
foregoing.
5.17 Taxes.
(a) Seller has timely filed all material Tax Returns required to be filed by it
with respect to the Acquired Assets, the Assumed Liabilities and the Business, and all such Tax
Returns were, at the time they were filed, true, complete and correct in all material respects.
(b) Seller has timely paid all material Taxes owed by it with respect to the
Acquired Assets and the Business (whether or not shown on any Tax Return), and has made
adequate provision for any Taxes with respect to the Acquired Assets and the Business that are not
yet due and payable, for all taxable periods, or portions thereof, ending on or before the Closing
Date, except to the extent such Taxes are being contested in good faith.
(c) All material Taxes that Seller is required to have collected or withheld with
respect to the Acquired Assets or the Business (including in connection with amounts owing to
any employee or independent contractor) have been duly collected or withheld and, to the extent
required, have been timely paid over to the relevant taxing authority.
Assets.
(d) There are no Liens for Taxes (other than Permitted Liens) on the Acquired
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.- i
(e) Except as set forth on Schedule 5.17 e , no deficiency or assessment with
respect to Taxes related to the Business or the Acquired Assets has been proposed, asserted or
assessed in writing against Seller, the resolution of which is still pending.
(f) No written claim that could give rise to Taxes has been made with respect
to the Business or the Acquired Assets by a Governmental Authority in a jurisdiction where Seller
does not file Tax Returns that it is or may be subject to Tax in such jurisdiction.
(g) Except as set forth on Schedule 5.17(g), Seller has not waived any statute
of limitations with respect to Taxes arising out of the Acquired Assets, the Assumed Liabilities or
the Business.
5.18 Customers . Schedule 5.18 attached hereto contains a complete and accurate list
of. (a) the customers of the Business during the twenty four (24) month period prior ended January
1, 2021 based on revenue generated by the Business in such period, showing the total sales to each
such customer in such period (the "Customers").
5.20 Brokers. No broker, finder or similar agent has been employed by or on behalf of
Seller in connection with the Transaction, and Seller does not have any Liability to pay any
brokerage commission, finder's fee or any similar compensation in connection with this Agreement
or the Transaction.
5.21 Insurance. Schedule 5.21 sets forth a list of all the insurance policies that cover
the Business or the Acquired Assets for calendar year 2020, and the Seller to which each insurance
policy is issued. The Seller listed has maintained, at consistent levels, market -standard insurance
coverage with respect to its assets, properties and business during the past two (2) years of its
operations. All of such insurance policies are in full force and effect and no listed Seller is in
default with respect to its obligations under any of such insurance policies. Since the respective
dates of such policies, no notice of cancellation or non -renewal with respect to any such policy has
been received by the Seller to which such policy is issued. During the past three (3) years Seller
has not been denied insurance coverage.
5.22 Related Party Arrangements. To Seller's Knowledge, no officer, director,
manager or employee of Seller has an interest in any Contract or other commitment of the Business
(excluding Contracts relating to such employee's employment with the Business) or any Acquired
Asset. Schedule 5.22 sets forth all Contracts or arrangements Relating to the Business between
Seller, on the one hand, and any Affiliate of a Seller, on the other hand, Relating to the Business
and other businesses of Seller that will not be terminated effective as of the Closing Date.
5.23 Franchise Operations. N/A
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
6.1 Organization and Standing. Buyer is a stock corporation duly incorporated,
validly existing and qualified to do business under the laws of the Commonwealth of Virginia, and
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each other state in which the conduct of business requires it to be so qualified, except where the
failure to be so qualified or in good standing would not reasonably be expected to impair or
materially delay the ability of Buyer to perform its obligations.
6.2 Authority, Validity and Effect. Buyer has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement, each Ancillary
Agreement to which it is a party and to consummate the Transaction. The execution, delivery and
performance by Buyer of this Agreement and the Ancillary Agreements to which it is a party and
the consummation by Buyer of the Transaction have been duly authorized by all necessary
corporate action of Buyer, and no other action on the part of Buyer is necessary to authorize this
Agreement and the Ancillary Agreements to which it is a parry and to consummate the Transaction.
This Agreement and each Ancillary Agreement constitute legal, valid and binding obligations of
Buyer, enforceable against Buyer in accordance with the terms hereof and thereof, except as
limited by the General Enforceability Exceptions.
6.3 No Conflict; Required Filings and Consents.
(a) Neither the execution and delivery of this Agreement or the Ancillary
Agreements by Buyer, nor the consummation by Buyer of the Transaction, nor compliance by
Buyer with any of the provisions hereof and of the Ancillary Agreements to which it is a party,
will (i) conflict with or result in a breach of any provision of Buyer's articles of incorporation or
bylaws; (ii) conflict with, constitute or result in the breach of any term, condition or provision of,
or constitute a default under, result in or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation or imposition of any Lien upon any material
assets of Buyer pursuant to, or require any notice under, any note, bond, mortgage, indenture,
Contract or other instrument or obligation to which Buyer is a party or by which it or any of its
material assets are subject; or (iii) materially violate any Order or Law to which Buyer or any of
its businesses are subject.
6.4 Litigation. There are no Actions, and during the five (5) year period prior to the
date hereof there have not been any Actions, instituted, commenced or pending, or to Buyer's
Knowledge, threatened in writing, against Buyer that would reasonably be expected to prevent
Buyer's ability to consummate the Transaction. Buyer is not subject to any Order that would
reasonably be expected to prevent Buyer from consummating the Transaction or performing its
obligations hereunder.
6.5 Compliance with Law. Buyer is in material compliance with all Laws and Orders
applicable to it. Buyer has not received any written notification from any Governmental Authority
asserting that Buyer is not in material compliance with any Law or Order applicable to its business.
6.6 Availability of Funds. Buyer has sufficient funds available to it to pay the
Purchase Price and perform its obligations pursuant to this Agreement and each of the Ancillary
Agreements to which it is a party.
ARTICLE VII
POST -CLOSING COVENANTS
7.1 Product Warranties. N/A
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7.2 Further Assurances; Confidentiality.
(a) Each Parry acknowledges and agrees to execute and deliver such further
instruments of conveyance, transfer and assignment and shall use commercially reasonable efforts
to take such other actions as a Party may reasonably request of the other in order to effectuate the
purposes of this Agreement and the Ancillary Agreements and to carry out the terms hereof and
thereof.
(b) [The Confidentiality Agreement] with respect to information relating to
the Business is hereby terminated. Seller will, and will cause their respective Affiliates, agents
and other Representatives to, treat and hold as strictly confidential all of the Confidential
Information, refrain from using any of the Confidential Information except in connection with the
Transactions, and deliver promptly to Buyer or destroy, at Buyer's request and option, all tangible
embodiments (and all copies) of the Confidential Information that are in Seller or any of its
respective Affiliates' or other Representatives' possession, except any Confidential Information
that is necessary for Seller for legal or accounting purposes. If Seller is requested or legally
required to disclose any Confidential Information, the Seller will notify Buyer promptly of the
request or requirement so that Buyer or its Affiliates may seek an appropriate protective order or
waive compliance with the provisions hereof. If, in the absence of a protective order or the receipt
of a waiver hereunder, such Person is, on the advice of counsel, compelled to disclose any
Confidential Information to any tribunal or else stand liable for contempt, such Person may
disclose the Confidential Information to the tribunal, but such Person shall use its reasonable
efforts to obtain, at Buyer's or its Affiliate's request and expense, an order or other assurance that
confidential treatment will be accorded to such portion of the Confidential Information required to
be disclosed as Buyer or its Affiliate designates. As used in this Section 7.3(b), "Confidential
Information" means any information relating to the Business that is not, as of the date of this
Agreement, already generally available to the public.
7.3 Publicity. No press release or other public announcement concerning the
Transaction will be made by either Parry without the prior written consent of the other Party;
provided that either Party may make any such release or announcement that is required under Law
or any listing or trading agreement concerning its publicly traded securities (in which case the
disclosing Parry will use commercially reasonable efforts to advise the other Parry prior to making
the disclosure).
7.4 COBRA Obligations. Seller shall provide continuing health benefit coverage as
described in Sections 601 through 608 of ERISA and Code Section 4980B (hereinafter referred to
as "COBRA Coverage") to all persons who are "M&A qualified beneficiaries" (as described in
Treasury Regulation Section 54.498013-9, Question and Answer 4) with respect to the Transaction
(hereinafter referred to as "COBRA Beneficiaries"). Specifically, all obligations to provide
COBRA Coverage to COBRA Beneficiaries are being allocated to Seller, as permitted by Question
and Answer 7 of Treasury Regulation Section 54.4980B-9. If Seller ceases to maintain a group
health plan and Seller's obligation to provide COBRA Coverage to COBRA Beneficiaries shifts
to Buyer as a result of Treasury Regulation Section 54.498013-9, Question and Answer 8(c), then,
notwithstanding any other provision of this Agreement to the contrary, Seller shall reimburse
Buyer for any and all expenses incurred by Buyer (including, but not limited to, claims incurred
under a plan, administrative fees, reinsurance premiums, etc.) in excess of the premiums collected
17

by Buyer from COBRA Beneficiaries and any actual reinsurance recoveries to provide COBRA
Coverage to such COBRA Beneficiaries. Buyer shall invoice the Seller weekly with respect to
such expenses and Seller, shall be obligated to make full payment of each such invoice within five
(5) Business Days of the date of such invoice and, if Seller fails to timely pay, Seller shall also be
obligated to pay interest with respect to the unpaid amounts at the rate of six percent (6%) per
annum.
7.5 Tax Matters.
(a) Seller shall be responsible for the preparation and filing of all required Tax
Returns, and shall be liable for the payment of any and all Taxes, in each case, relating to all
periods through and including the Closing Date (including all Taxes resulting from the sale,
transfer, assignment or delivery by Seller of the Acquired Assets hereunder). Seller shall timely
pay (i) all Taxes and any Tax deficiency, interest or penalty asserted with respect thereto, and all
recording and filing fees, that may be imposed by reason of the sale, transfer, assignment or
delivery by Seller of the Acquired Assets hereunder; (ii) all Taxes arising out of (A) the ownership
or use of the Retained Assets, (B) the ownership or use of the Acquired Assets for the pre -closing
tax period, including all personal property Taxes due and payable (or assessed for periods) on or
prior to the Closing Date; and (iii) all Taxes, including gross and net income Taxes, and transfer,
recording, sales and use Taxes arising out of the sale or transfer of the Acquired Assets pursuant
to this Agreement or any of the Ancillary Agreements, if any.
(b) All personal property Taxes and similar ad valorem obligations levied with
respect to the Acquired Assets for a taxable period that includes (but does not end on) the Closing
Date (each such period, a "Straddle Period") shall be apportioned between Seller and Buyer as of
the Closing Date based on the number of days in such Straddle Period that are in the pre -Closing
tax period, and the number of days in such Straddle Period that are in the post -closing tax period.
Seller shall be liable for the portion of such Taxes attributable to the pre -closing tax period, and
Buyer shall be liable for the portion of such Taxes attributable to the post -closing tax period. The
filing party shall file any Tax Returns with respect to such Taxes in the time and manner required
by Law. Such Tax Returns shall be true, complete and correct and prepared in accordance with
applicable Law and past practices (except as required by applicable Law). The filing parry shall
provide the non -filing party with a copy of each such Tax Return at least 30 days prior to the due
date, and shall revise such Tax Return in accordance with the non -filing party's reasonable
comments. Any disputes with respect to such Tax Returns shall be resolved in accordance with
the procedures set forth in Section 7.5(b). If bills for such Taxes have not been issued as of the
Closing Date, and, if the amount of such Taxes for the period including the Closing Date is not
then known, the apportionment of such Taxes shall be made at Closing on the basis of the prior
period's Taxes. After Closing, upon receipt of bills for the period including the Closing Date,
adjustments to the apportionment shall be made by the Parties, so that if either Party paid more
than its proper share at the Closing, the other Party shall promptly reimburse such Party for the
excess amount paid by them. If either Party receives a refund of Taxes that the other Party has
paid pursuant to this Section 7.5(b), it shall reimburse the other Parry its proportionate share of
such refund, less any Taxes or other costs imposed with respect to the receipt of such refund
7.6 Post -Closing Access to Books and Records.
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(a) From the date hereof until ninety (90) days following the expiration of the
applicable statute of limitations for all Tax claims after the Closing, Seller will gram to Buyer
access to any relevant financial data and personnel relating to the Business that are reasonably
required by Buyer and have not been transferred to Buyer hereunder, and Buyer will grant to Seller
access to any relevant records and personnel related to the Business that are reasonably required
by Seller and have been transferred to Buyer hereunder. Any such access will be provided, and
all such inspections will be conducted, at reasonable times and in such a manner as not to interfere
unreasonably with the operations of the Business.
(b) Notwithstanding Section 7.5(0, if Buyer or Seller desire to discard or
destroy any of its records to which Section 7.6(a) applies, written notice shall first be given to the
other Party, and the other Party shall have thirty (30) days to elect to take possession of the subject
records. Buyer or Seller, as applicable, shall, upon such election, deliver such records to the other
Party. Any records received by a Party pursuant to this Section 7.6(b) shall be kept confidential
by the recipient and used solely for the purposes for which access is permitted under Section 7.6(a).
(c) Seller may, but shall not be obligated to, retain copies of the Retained
Records; provided that the Retained Records shall be used solely to comply with Law, in
connection with an Action to which Seller or any of their respective Affiliates is a party, or to
satisfy an information or records retention requirement of a Contract to which Seller is a party.
Seller shall protect the confidentiality of any Retained Records with the same care as it uses with
its own business records of a similar kind, but in no event using less than reasonable care.
7.7 Use of Intellectual Property. The Seller nor any of a Seller's respective Affiliates,
officers, employees, agents or contractors shall (and no Seller shall, after the Closing, direct any
agent or contractor to) use in any manner whatsoever the trade names, corporate names, trademarks
and/or service marks that have been used by Seller or any of their respective Affiliates at any time
on or prior to the Closing Date or otherwise operate the Business utilizing, based on or taking
advantage of the name, reputation or corporate goodwill of Seller or any of their respective
Affiliates. After the Closing, the Seller nor or any of its Affiliates may (and no Seller shall, after
the Closing direct any agent or contractor to) use any stationery, invoices, order forms or any other
items that bear any marks included in the Acquired Intellectual Property. Seller and Buyer
acknowledge that Buyer is not acquiring the name "Deaton Yacht Services, Inc." under this
Agreement. Seller and Buyer further acknowledge that Seller owns real estate and other assets not
acquired by Buyer under this Agreement. Seller and Buyer agree that Seller shall be free to utilize
its name "Deaton Yacht Services, Inc." for such purposes and that this Section 7.7 shall not apply
to such use.
7.8 Remittance of Payments.
(a) Seller shall promptly pay or deliver to Buyer (or its designated Affiliates)
any monies or checks relating to the Business that have been sent to any Seller or its Affiliates
after the Closing Date by customers, suppliers or other contracting parties of the Business to the
extent they are or are in respect of an Acquired Asset or Assumed Liability hereunder.
(b) Buyer shall, or shall cause its applicable Affiliates to, promptly pay or
deliver to Seller (or its designated Affiliate) any monies or checks that have been sent to Buyer or
19

its Affiliates (including the Business) after the Closing Date to the extent they do not relate to the
Business or are in respect of a Retained Assets or Retained Liabilities.
7.9 Assigned Contracts. Without limiting any indemnification obligations of Buyer
under Article IX, Buyer shall use reasonable best efforts (including by promptly executing all
documents reasonably requested by Seller or its Affiliates) to cause Seller and each Affiliate of
such Seller that is a party to or subject to or bound by any Assigned Contract to be released from
all Liabilities, obligations and guarantees under such Assigned Contract as promptly as reasonably
practicable following the Closing. For so long as Seller or any of its Affiliates remains a party to,
subject to or bound by any such Assigned Contract, neither Buyer nor any of its Affiliates will
amend, modify, renew or extend any such Assigned Contract, or waive any rights under any such
Assigned Contract, in any manner that increases or adversely affects such Seller's or any Affiliate's
actual or potential Liabilities under any Assigned Contract or extends the period of time that such
Liabilities of such Seller or its Affiliates with respect thereto will remain in effect, in each case
without the prior written consent of Seller or the applicable Affiliate of such Seller that is a parry
to, bound by or subject to such Assigned Contract.
7.10 Employment Tax Filings. Pursuant to the "Alternate Procedure" provided in
Section 5 of Revenue Procedure 2004-53, 2004-2 C.B. 320, (a) Buyer and Seller shall report on a
predecessor/successor basis as set forth therein and (b) Buyer will undertake to file (or cause to be
filed) a Form W-2 for each such Transferred Employee with respect to the period beginning on the
Closing Date and ending the earlier of (x) and (y) the date such
employee is no longer employed by Buyer.
7.11 Employee -Related Tax Cooperation. Seller shall use commercially reasonable
efforts to cooperate and coordinate with Buyer in connection with all employee -related Tax
withholding and reporting obligations for calendar year 2021. Without limiting the generality of
the foregoing, with respect to all Transferred Employees in the United States who were not
employees of the Business for the entire period from January 1, 2021 through the Closing, subject
to data privacy rules and regulations, Seller shall use commercially reasonable efforts to cooperate
with Buyer and Buyer's agents to provide Buyer the payroll tax records required by federal and
state agencies necessary for Buyer to optimize federal and state payroll tax law relating to
successor -in -interest transactions, including the transactions contemplated by this Agreement.
Such cooperation shall include, but shall not be limited to, providing Buyer and its agents with the
following: (a) an executed release form granting permission to Buyer and its agents to obtain
quarterly payroll data from all states within which the Business was conducted through the Closing
Date; (b) if required by state taxing agencies, signatures (or notarized signatures) necessary to grant
permission for Buyer and its agents to file for transfers of experience of payroll tax accounts in
states which require a signed release by the predecessor employer; (c) the most recent Annual 940
Report (including Schedule A), and most recent years "tax rate notices" received from individual
state agencies; and (d) copies of all quarterly wage detail reports filed with individual state
agencies in the calendar year through the Closing Date. If Seller used an outside payroll tax
administrator with respect to any of the Transferred Employees covered by this Section 7.11, then
Seller shall use commercially reasonable efforts to act as a liaison with such payroll tax
administrator and will provide copies of relevant successor -in -interest reports from such payroll
tax administrator (e.g., state tax rate notices, state quarterly contribution reports, W-2s and federal
recap reports such as 940 and 941).
NO

ARTICLE VIII
EMPLOYEE MATTERS
8.1 Employment. Buyer will make an offer of employment, which complies with the
terms of this Article VIII and is effective as of the Closing Date, to each of the Transferred
Employees. Except for voluntary resignations and deaths (or termination for cause), Buyer will
continue to employ each of the Transferred Employees until at least the sixty-first (61") day
following the Closing Date.
8.2 Employee Benefits.
(a) General. For a period of at least one (1) year after the Closing Date, Buyer
shall, or shall cause one of its subsidiaries or Affiliates to, provide each Transferred Employee
with (i) a base salary or an hourly wage rate, as applicable, that is not less than that provided to
such employee immediately prior to the Closing Date, (ii) incentive pay opportunities that are no
less favorable than those provided to such employee by Seller immediately prior to the Closing
Date, and (iii) other compensation and employee benefits that are comparable in the aggregate to
those provided to such employee by Seller under the Benefit Plans, as in effect immediately prior
to the Closing Date.
(b) Service Credit. Buyer and its subsidiaries and Affiliates shall treat, and
shall undertake commercially reasonable efforts to cause each plan, program, policy, practice and
arrangement sponsored or maintained by Buyer or any of its subsidiaries or Affiliates on or after
the Closing Date and in which any Transferred Employee participates or is eligible to participate
(each, a "Buyer Plan") to treat, for all purposes (including eligibility to participate, vesting, and
level of benefits), all service with Seller and its subsidiaries and Affiliates (and any predecessor
employers if such Seller, any of its subsidiaries or Affiliates or any Benefit Plan provides past
service credit) as service with Buyer and its subsidiaries and Affiliates; provided, however, that
such service need not be counted to the extent it would result in duplication of benefits and such
service need be credited only to the same extent and for the same purpose as such service was
credited under the corresponding Benefit Plan.
(c) Accrued Vacation and Holiday Pay. During the year in which Closing
occurs, Buyer shall provide each Transferred Employee with at least the number of paid vacation
days and holidays to which he would have been entitled Seller's practices during such year (except
to the extent used by the Transferred Employee during such year prior to the Effective Time).
(d) Welfare Benefit Plans. Buyer and its subsidiaries and Affiliates will
undertake commercially reasonable efforts to cause each Buyer Plan that is a welfare benefit plan,
within the meaning of Section 3(1) of ERISA, (i) to waive any and all eligibility waiting periods,
actively -at -work requirements, evidence of insurability requirements, pre-existing condition
limitations and other exclusions and limitations regarding the Transferred Employees and their
spouses and dependents to the extent waived, satisfied or not included under the corresponding
Benefit Plan, and (ii) to recognize for each Transferred Employee for purposes of applying annual
deductible, co -payment and out-of-pocket maximums under such Buyer Plan any deductible, co -
payment and out-of-pocket expenses paid by such Transferred Employee and his or her spouse
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and dependents under the corresponding Benefit Plan during the plan year of such Benefit Plan in
which the Closing Date occurs.
8.3 WARN Act. Buyer shall not engage in a "mass layoff' or "plant closing" as defined
in the United States Worker Adjustment and Retraining Notification Act (the "WARN Act")
without complying with the WARN Act. Buyer shall defend, indemnify and hold harmless each
Seller and its Related Persons from any claims, charges, suits, demands, damage, or Liability
arising out of or relating either to non-compliance with the WARN Act from and after the Closing
Date or from Buyer's decision to terminate the employment of any Transferred Employee.
8.4 Access. Buyer shall permit Seller and their Representatives reasonable access to
the Transferred Employees following the Closing for any reasonable purpose, including the
defense of Actions constituting Retained Liabilities or Tax or financial audits involving the
Business.
ARTICLE IX
INDEMNIFICATION
9.1 Survival Periods.
(a) Sellers' respective representations and warranties contained in this
Agreement and the Ancillary Agreements shall survive for a period of One (1) year after the
Closing Date.
(b) Buyer's representations and warranties contained in this Agreement shall
survive for a period of One (1) year after the Closing Date.
(c) No Party providing indemnification pursuant to this Article IX (an
"Indemnifying Party") is obligated to provide such indemnification to the other Party or its Related
Persons (the "Indemnified Party") unless the Indemnified Party has delivered written notice of its
claim for indemnification prior to the expiration of any applicable period set forth in this
Section 9.1. Claims for indemnification asserted prior to the end of the applicable survival period
set forth in this Section 9.1 shall survive until final resolution thereof. It is the express intent of
the Parties to this Agreement that the survival of the representations and warranties in this
Agreement and any other purported representation or warranty (and the associated right to bring a
claim for a breach of such representations and warranties) is shorter than the statute of limitations
that would otherwise have been applicable to such representations or warranties, and, by contract,
the applicable statute of limitations with respect to the representations and warranties of Seller
contained herein or in any Ancillary Agreement (and the associated right to bring a claim for a
breach of such representations and warranties) is hereby reduced so they end One Year (1) after
Closing, as provided in this Section 9.1.
9.2 Indemnification. Subject to the other provisions of this Article IX:
(a) Subject to the limitations set forth in this Article IX, from and after the
Closing, Seller shall indemnify and hold harmless Buyer and its successors and permitted assigns
(collectively, the "Buyer Indemnitees") from and against, and shall pay to the Buyer Indemnitees,
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the amount of Damages actually incurred by any of the Buyer Indemnitees following the Closing
arising from or relating to:
(i) any breach of any of the representations or warranties of any Seller
in this Agreement, any of the Ancillary Agreements, or any certificate, document,
schedule, exhibit, or instrument executed in connection herewith or therewith (in
each case without regard to any qualification as to materiality or Material Adverse
Effect);
(ii) any breach by any Seller of or failure by any Seller to comply with
any covenants or obligations of such Seller in this Agreement, any of the Ancillary
Agreements, or any certificate, document, schedule, or instrument executed in
connection herewith or therewith;
(iii) any obligation or liability (other than the Assumed Liabilities) of
Sellers or relating to the Acquired Assets or the operation of the Business arising
out of transactions entered into or events occurring prior to the Closing, including
any successor liability or responsible officer liability asserted against Buyer (or
their respective personnel or other representatives) for Taxes or otherwise relating
to events occurring prior to the Closing;
(iv) any Retained Asset or Retained Liability;
(v) any and all Actions, demands, assessments, audits or judgments
arising out of any of the foregoing.
(b) Buyer shall indemnify and hold harmless Seller, their Affiliates and their
respective successors and permitted assigns (collectively, the "Seller Indemnitees") from and
against all Damages arising from or relating to:
(i) any breach of any of the representations or warranties of Buyer in
this Agreement, any of the Ancillary Agreements, or any certificate, document,
schedule, exhibit, or instrument executed in connection herewith or therewith (in
each case without regard to any qualification as to materiality);
(ii) any breach by Buyer of or failure by Buyer to comply with any
covenants or obligations of Buyer in this Agreement, any of the Ancillary
Agreements, or any certificate, document, schedule, or instrument executed in
connection herewith or therewith;
(iii) any obligation or liability of Buyer or relating to the operation of the
Business after Closing or use or operation of the Acquired Assets after Closing,
including any successor liability or responsible officer liability asserted against a
Seller (or respective personnel or other representatives) for Taxes or otherwise,
solely to the extent such claims relate to any such claim arises from events which
occur after Closing;
(iv) any Assumed Liability; and
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(v) any and all Action, demands, assessments, audits or judgments
arising out of any of the foregoing.
(c) Notwithstanding any provision of this Agreement to the contrary, no Party
may assert a claim for indemnification under this Agreement for punitive or exemplary Damages
other than any punitive or exemplary damages that are payable to a third -party claimant.
9.3 Procedures for Claims. If an Indemnified Party intends to seek indemnification
pursuant to this Article IX, such Indemnified Parry shall promptly notify the Indemnifying Party
in writing of such claim (the "Dispute Notice") describing such claim in such reasonable detail as
is then available; provided, however, that, so long as the survival period applicable to such claim
as set forth in or Section 9.1 has not expired, the failure to provide such notice will not affect the
obligations of the Indemnifying Party unless it is actually and materially prejudiced thereby; and
provided, further, that an Indemnified Parry shall not be obligated to give notice of a claim unless
it is in writing.
(a) If any third parry shall notify any Indemnified Party with respect to any
matter (a "Third -Party Claim") that may give rise to a claim for indemnification against any
Indemnifying Party under this Article IX, then the Indemnified Parry shall promptly (and in any
event within ten (10) Business Days after receiving notice of the Third -Parry Claim) notify each
Indemnifying Party thereof in writing ("Third -Party Claim Notice"); provided that the failure by
an Indemnified Parry to give timely notice of a Third -Party Claim will not affect the rights or
obligations of any Party hereunder except and only to the extent that, as a result of such failure,
any Party entitled to receive such notice was materially prejudiced as a result of such failure to
give timely notice vis-a-vis its rights and obligations hereunder or otherwise.
(b) Subject to Section 9.4(c), the Indemnifying Party will have the right, within
thirty (30) days after receipt of the Third -Parry Claim Notice or such shorter period as may be
necessary to respond to such Third -Party Claim in a timely fashion, to notify the Indemnified Party
of its election to assume the defense of such Third -Parry Claim, and thereafter conduct the defense
of the Third -Parry Claim with counsel of his, her, or its choice reasonably satisfactory to the
Indemnified Parry; provided that (i) the Indemnifying Party has delivered notice within such thirty
(30) day period and (ii) in connection with such notice has delivered an unqualified written
acknowledgment of the Indemnified Parry's right to indemnification under this Agreement with
respect to the Third -Party Claim in question and evidence the Indemnifying Party has the financial
resources to defend and satisfy such Third -Party Claim in full. Notwithstanding the foregoing, in
the event that the Indemnifying Party becomes aware of additional facts or information not known
to such Indemnifying Party prior to the issuance of such unqualified written acknowledgment of
responsibility with respect to a Third -Party Claim, and such facts indicate that it is reasonably
likely that the Third -Party Claim would not give rise to indemnification obligations hereunder, the
Indemnifying Party shall have the right to withdraw such acknowledgement and relinquish control
of the defense within five (5) days of learning such facts. The Indemnified Party may participate,
through counsel chosen by it and at its own expense, in the defense of any such Third -Party Claim
as to which the Indemnifying Party has so elected to conduct and control the defense thereof. The
Indemnified Party will fully cooperate, at the Indemnifying Party's expense, in connection with
the defense, compromise or settlement of any Third -Party Claim pursuant to this Section 9.3 and
will furnish such records, information and testimony and attend such conferences, discovery
24

proceedings, hearings, trials and appeals as may be reasonably requested by the Indemnifying
Party in connection therewith. The Indemnifying Parry will not settle or compromise a Third -
Parry Claim without the prior written consent of the Indemnified Party, which will not be
unreasonably withheld or delayed, unless (x) the Indemnified Party is given a full and complete
release (in a form reasonably satisfactory to the Indemnified Party) of any and all Liabilities by all
relevant parties to such Third -Party Claim, (y) the settlement does not act as a material adverse
precedent upon the Indemnified Party with respect to any similar claims or demands and (z) the
settlement involves only monetary Damages which are paid in full by the Indemnifying Party and
does not impose an injunction or other equitable or other non -monetary relief upon the Indemnified
Party.
(c) Notwithstanding anything in Section 9.4(a) and Section 9.4(b) to the
contrary, the Indemnified Party will have the right to conduct and control, through counsel of its
choosing, the defense, compromise and settlement of any Third -Party Claim that (i) seeks as a
remedy an injunction or other equitable or non -monetary relief against the Indemnified Party, (ii)
relates to Taxes imposed on the Business or that involves the Tax Returns of the Business, in each
case for periods that begin after the Closing Date, (iii) the settlement of which may act as a material
and adverse binding precedent upon the Indemnified Party with respect to similar claims or
demands or (iv) involves any criminal proceeding. Additionally, the Indemnifying Party will lose
its right to contest, defend, litigate and settle the Third -Party Claim if (A) it fails to accept a tender
of the defense of the Third -Party Claim pursuant to Section 9A(b), or (B) it fails to diligently
contest the Third -Party Claim. In such event, the Indemnified Party will have the right, at the
Indemnifying Party's expense, to conduct and control, through counsel of its choosing, the defense,
compromise or settlement of any such Third -Party Claim.
(d) Mediation of Other Claims. If an indemnification claim does not involve a
Third -Party Claim, and if the Parties are not able to resolve their differences within sixty (60) days
of the delivery of the Dispute Notice, the Parties shall submit the dispute to mediation in
accordance with the Commercial Mediation Rules of the American Arbitration Association. The
Parties will jointly appoint a mutually acceptable mediator, seeking assistance in such regard from
the American Arbitration Association if they have been unable to agree upon such appointment
within twenty (20) days after the conclusion of the sixty (60) day period referred to above. The
Parties shall participate in good faith in the mediation and negotiations related thereto for a period
of sixty (60) days from the initial meeting with the mediator. If the mediation does not result in a
resolution of the dispute within such 60-day time frame, then either Party may pursue any other
remedy available to it under this Agreement no sooner than ten (10) Business Days after delivering
written notice to the other Party specifying the intended course of action.
9.4 Payment of Losses. The Indemnifying Party shall pay to the Indemnified Party in
cash the amount to which the Indemnified Party may become entitled by reason of the provisions
of this Article IX within fifteen (15) Business Days after such amount is finally determined either
by mutual agreement of the parties or pursuant to the dispute resolution process set forth in
Section 9.3, in the case of Damages described in any Third Party Claim Notice, the date on which
both such amount and the Indemnified Party's obligation to pay such amount have been determined
by a final judgment of the trial court or administrative body having jurisdiction over such Action.
Notwithstanding the foregoing, any amount to which Buyer becomes entitled by reason of the
provisions of this Article IX shall be:
25

(a) First, to the extent payments remain due and owing to Seller under Note 1
and Note 2, Buyer may satisfy any unsatisfied Damages by setting off against any amounts which
remain due and owing to Sellers under Note 1 and Note 2, on a dollar for dollar basis.
(b) Second, if the payments under Note 1 and Note 2 have been paid in full and
there remain unsatisfied Damages, Buyer shall have full recourse against Seller (including their
assets of whatsoever kind or nature) for payment of such Damages.
9.5 Tax Treatment of Indemnification Payments. All indemnification payments
made under this Agreement will be treated by the Parties as an adjustment to the Purchase Price
for Tax purposes, unless otherwise required by Law.
ARTICLE X
MISCELLANEOUS
10.1 Expenses. All costs and expenses (including all legal, accounting, broker, finder
or investment banker fees) incurred in connection with this Agreement and the Transaction are to
be paid by the Party incurring such expenses.
10.2 Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and permitted assigns, but no Party may assign
(whether by operation of Law or otherwise) either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other Party, except that Buyer may
assign this Agreement and its rights to its lenders for collateral purposes; provided, however, that
in such event, Buyer shall remain fully liable for the fulfillment of all such obligations and
Liabilities hereunder.
10.3 Third -Party Beneficiaries. Except as set forth in Section 9.2, this Agreement does
not benefit or create any legal or equitable right, remedy or claim in or on behalf of any Person
other than the Parties. This Agreement and all of its terms and conditions are for the sole and
exclusive benefit of the Parties and their successors and permitted assigns.
10.4 Notices. Any notice, consent or other communication provided for herein or given
hereunder to a Party hereto shall be made in writing, and delivered in person, sent by facsimile
transmission (electronically confirmed), emailed to an identified email address, mailed by first
class registered or certified mail, postage prepaid, or sent by Federal Express or other overnight
courier of national reputation, addressed as follows:
If to Buyer:
Zimmerman Marine Incorporated
Attention: Steve Zimmerman
Email:

If to Seller:
with a copy (which shall not constitute notice) to:
Dunton, Simmons & Dunton, LLP
P.O. Box 5
White Stone, Virginia 22578
Attention: John Hodges
Email: [e-mail]
Deaton Yacht Services, Inc.
Attention: John P. Deaton
2011 Yawl Place
Oriental, North Carolina 28571
e-mail [e-mail]
with a copy (which shall not constitute notice) to:
White & Allen, P.A.
P.O. Drawer U
New Bern, North Carolina 28563
Attention: Sherwood C. Henderson
Email: [e-mail]
or to such other address with respect to a Party as such Party notifies the other in writing as
provided above.
10.5 Complete Agreement. This Agreement (along with the Schedules, Exhibits and
Appendix hereto), together with the Ancillary Agreements and the Confidentiality Agreement,
contains the complete and exclusive statement of the terms of the agreements between the Parties
with respect to the Transaction and supersedes all other prior agreements and understandings
between the Parties with respect thereto.
10.6 Construction. Each provision of this Agreement has been subject to mutual
consultation, negotiation and agreement of the Parties and therefore is to be construed as if the
Parties drafted it jointly. The word "including" shall mean including without limitation. All
references to the masculine herein shall include the feminine and neuter, all references to the neuter
herein shall include the masculine and feminine, all references to the plural shall include the
27