Exhibit A Purchase Agreement

RLF1 24343737v.2

Exhibit A

Purchase Agreement

Case 20-12088-MFW Doc 235-1 Filed 11/23/20 Page 1 of 76

EXECUTION VERSION

PURCHASE AGREEMENT

DATED AS OF NOVEMBER 10, 2020

BY AND AMONG

ENERGY ALLOYS, L.L.C.,

ENERGY ALLOYS CAYMAN HOLDING, L.L.C.,

AND

BIOURJA COMMODITIES, LLC


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TABLE OF CONTENTS

ARTICLE 1

DEFINITIONS

1.1 Definitions. ......................................................................................................................... 2 1.2 Cross Reference of Other Definitions............................................................................... 13 1.3 Other Definitions and Interpretive Matters....................................................................... 15

ARTICLE 2

PURCHASE AND SALE

2.1 Purchase and Sale ............................................................................................................. 16 2.2 Assignment and Assumption of Contracts........................................................................ 17 2.3 Further Assurances ........................................................................................................... 18

ARTICLE 3

PURCHASE PRICE

3.1 Purchase Price and Purchase Price Adjustments .............................................................. 18

ARTICLE 4

CLOSING AND DELIVERIES

4.1 Closing Date ..................................................................................................................... 21 4.2 Buyer’s Deliveries ............................................................................................................ 22 4.3 Sellers’ Deliveries............................................................................................................. 22

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF SELLERS

5.1 Organization and Good Standing...................................................................................... 23 5.2 Authority; Validity; Consents ........................................................................................... 23 5.3 No Conflict ....................................................................................................................... 24 5.4 Title to Acquired Interests ................................................................................................ 24 5.5 Organization, Standing, Qualification and Power ............................................................ 24 5.6 Authority; Execution and Delivery; Enforceability .......................................................... 24 5.7 No Conflicts; Consents ..................................................................................................... 25 5.8 Capitalization; Subsidiaries .............................................................................................. 25 5.9 Financial Statements ......................................................................................................... 26 5.10 Absence of Certain Developments.................................................................................... 26 5.11 Title to Assets; Sufficiency of Assets ............................................................................... 27 5.12 Property............................................................................................................................. 27 5.13 Environmental Matters ..................................................................................................... 28 5.14 Taxes................................................................................................................................. 29


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5.15 Legal Proceedings............................................................................................................. 29 5.16 Compliance with Legal Requirements; Permits................................................................ 30 5.17 Labor Matters.................................................................................................................... 30 5.18 Employee Benefits............................................................................................................ 31 5.19 Sellers’ Intellectual Property............................................................................................. 32 5.20 Contracts ........................................................................................................................... 33 5.21 Insurance........................................................................................................................... 33 5.22 Brokers or Finders ............................................................................................................ 34 5.23 Undue Influence................................................................................................................ 34 5.24 Suppliers and Customers. ................................................................................................. 34 5.25 Banks; Credit Support....................................................................................................... 34 5.26 Books and Records ........................................................................................................... 35 5.27 No Additional Representations ......................................................................................... 35

ARTICLE 6

REPRESENTATIONS AND WARRANTIES OF BUYER

6.1 Organization and Good Standing...................................................................................... 35 6.2 Authority; Validity; Consents ........................................................................................... 35 6.3 No Conflict ....................................................................................................................... 36 6.4 Availability of Funds ........................................................................................................ 36 6.5 Litigation........................................................................................................................... 36 6.6 Brokers or Finders ............................................................................................................ 36 6.7 Qualification ..................................................................................................................... 36 6.8 Information ....................................................................................................................... 36

ARTICLE 7

ACTIONS PRIOR TO THE CLOSING DATE

7.1 Access and Reports........................................................................................................... 37 7.2 Operations Prior to the Closing Date ................................................................................ 37 7.3 Cooperation....................................................................................................................... 38 7.4 Bankruptcy Court Matters................................................................................................. 39 7.5 Stalking Horse Bid Protections......................................................................................... 40 7.6 Sellers Update of Disclosure Schedules; Notice of Developments; Buyer Update

of Disclosure Schedules.................................................................................................... 41 7.7 Limitations........................................................................................................................ 41 7.8 Names and Transition Trademark License ....................................................................... 41 7.9 Assigned Contracts; Adequate Assurance and Performance ............................................ 42

ARTICLE 8

INDEMNIFICATION

8.1 Indemnification by Sellers ................................................................................................ 42 8.2 Indemnification by Buyer ................................................................................................. 43 8.3 Calculation and Mitigation of Losses; Other Limitations................................................. 43 8.4 Termination of Indemnification........................................................................................ 44 8.5 Indemnification Procedures .............................................................................................. 44


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8.6 Survival of Representations, Warranties and Covenants .................................................. 46

ARTICLE 9

ADDITIONAL AGREEMENTS

9.1 Taxes................................................................................................................................. 47 9.2 Payments Received ........................................................................................................... 48 9.3 Release.............................................................................................................................. 48 9.4 Adequate Assurance and Performance ............................................................................. 49 9.5 Post-Closing Books and Records and Personnel .............................................................. 49 9.6 Representations and Warranties Exclusive....................................................................... 49

ARTICLE 10

CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER TO CLOSE

10.1 Accuracy of Representations ............................................................................................ 50 10.2 Sellers’ Performance......................................................................................................... 51 10.3 No Order ........................................................................................................................... 51 10.4 Consents............................................................................................................................ 51 10.5 Sellers’ Deliveries............................................................................................................. 51 10.6 Sale Order ......................................................................................................................... 51 10.7 Material Adverse Effect.................................................................................................... 51 10.8 Releases and Termination Statements .............................................................................. 51 10.9 Assigned Contracts ........................................................................................................... 51 10.10 Frustration of Closing Conditions..................................................................................... 52

ARTICLE 11

CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLERS TO CLOSE

11.1 Accuracy of Representations ............................................................................................ 52 11.2 Buyer’s Performance ........................................................................................................ 52 11.3 No Order ........................................................................................................................... 52 11.4 Buyer’s Deliveries ............................................................................................................ 52 11.5 Sale Order ......................................................................................................................... 52 11.6 Frustration of Closing Conditions..................................................................................... 53

ARTICLE 12

TERMINATION

12.1 Termination Events........................................................................................................... 53 12.2 Stalking Horse Bid Protections......................................................................................... 54 12.3 Effects of Termination. ..................................................................................................... 55


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ARTICLE 13

GENERAL PROVISIONS

13.1 Confidentiality .................................................................................................................. 55 13.2 Public Announcements ..................................................................................................... 56 13.3 Notices .............................................................................................................................. 56 13.4 Waiver............................................................................................................................... 57 13.5 Entire Agreement; Amendment ........................................................................................ 57 13.6 Assignment ....................................................................................................................... 58 13.7 Severability ....................................................................................................................... 58 13.8 Expenses ........................................................................................................................... 58 13.9 Governing Law; Consent to Jurisdiction and Venue; Jury Trial Waiver.......................... 58 13.10 Counterparts...................................................................................................................... 59 13.11 Captions ............................................................................................................................ 59 13.12 Parties in Interest; No Third Party Beneficiaries; No Amendment................................... 59 13.13 Remedies........................................................................................................................... 59 13.14 Specific Performance for Post-Closing Covenants........................................................... 59 13.15 Sellers’ Representative; Reliance ..................................................................................... 60 13.16 Limitations on Losses ....................................................................................................... 61 13.17 Non-Recourse ................................................................................................................... 62 13.18 Legal Representation ........................................................................................................ 62 13.19 Joinder............................................................................................................................... 63

EXHIBITS

Exhibit A Form of JoinderExhibit B Agreed Principals Exhibit C Example Net Working Capital Adjustment CalculationExhibit D Adjustment Escrow AgreementExhibit E Indemnification Escrow AgreementExhibit F Form of Trademark Assignment AgreementExhibit G Forms of Consent LetterExhibit H Form of Assignment and Assumption Agreement


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PURCHASE AGREEMENT

THIS PURCHASE AGREEMENT (this “Agreement”), dated as of November 10, 2020 (the “Execution Date”), is made and entered into by and among (a) BioUrja Commodities, LLC, a Delaware limited liability company (“Buyer”), on one hand, and (b) Energy Alloys, L.L.C., a Texas limited liability company, and Energy Alloys Cayman Holding, L.L.C., a Texas limited liability company, on the other hand (the “Sellers” and each entity individually, a “Seller”). Capitalized terms used herein and not otherwise defined herein have the meanings set forth in ARTICLE 1.

RECITALS

WHEREAS, on September 9, 2020 (the “Petition Date”), Sellers and certain of their Affiliates (collectively, the “Debtors”) filed a voluntary petition for relief (the “Bankruptcy Case”) pursuant to Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”);

WHEREAS, Sellers, through their direct and indirect foreign Subsidiaries, are engaged in the business of providing various goods and services to global oil and gas manufacturers and service companies pursuant to their business operations located in: (a) Dubai (the “Dubai Business”), (b) Singapore (the “Singapore Business”), and (c) the United Kingdom (the “UK Business” and, together with the Dubai Business and the Singapore Business, the “Business”);

WHEREAS, the Debtors were previously engaged in the business of providing various goods and services to global oil and gas manufacturers and service companies pursuant to their business operations located in North America (such business, the “Excluded Business”);

WHEREAS, the Sellers own, together, 100% of the outstanding equity interests (the “Acquired Interests”) of Energy Alloys International Middle East, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands with company number 134362 and having its registered office at Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands (“EA International Middle East”), and Energy Alloys International Holdings B.V., a private company with limited liability, incorporated and existing under the laws of the Netherlands, having its corporate seat in Rotterdam and offices at Luna Arena, Herikerbergweg 238, 1101 CM Amsterdam, the Netherlands (“EA International Holdings” and, together with EA International Middle East, the “Acquired Parent Entities”), and the Acquired Parent Entities own, directly or indirectly, 100% of the outstanding equity interests of: (i) Energy Alloys UK Limited, a private company limited by shares registered in England and Wales, registered no. 05044016 (“EA UK”), which owns and operates the UK Business, (ii) Energy Alloys PTE Ltd, a private company limited by shares incorporated in the Republic of Singapore, company registration no. 200703957D (“EA Singapore”), which owns and operates the Singapore Business, and (iii) Energy Alloys Middle East, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands with company number 134364 and having its registered office at Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008,Cayman Islands (“EA Middle East”), which owns and operates the Dubai Business;

WHEREAS, in accordance with the Bidding Procedures and subject to the terms and conditions set forth in this Agreement and the entry of the Sale Order, Sellers desire to sell to the Buyer all of the Acquired Interests and Specified Assets, and Buyer desires to purchase from Sellers all of the Acquired Interests and Specified Assets upon the terms and conditions hereinafter set forth;


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WHEREAS, the Acquired Interests and Specified Assets shall be purchased by the Buyerpursuant to the Sale Order, free and clear of any and all Encumbrances (other than Permitted Encumbrances), pursuant to, inter alia, Section 363 of the Bankruptcy Code;

WHEREAS, Sellers’ ability to consummate the transactions contemplated by this Agreement is subject to, among other things, the entry of the Sale Order by the Bankruptcy Court; and

WHEREAS, the applicable board of managers or similar governing body of each Seller hasdetermined that it is advisable and in the best interests of such Seller and its constituencies to enter into this Agreement and to consummate the transactions provided for herein and each has approved the same, in each case, subject to entry of the Sale Order.

NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the foregoing and of the representations, warranties, covenants, agreements and conditions herein contained, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:

ARTICLE 1

DEFINITIONS

1.1 Definitions.

For purposes of this Agreement, the following terms have the meanings specified or referenced below.

“Accounts Receivable” means, with respect to the Company Group, all accounts receivable, notes receivable, purchase orders, negotiable instruments, chattel paper, notes and other rights to payment, in each case, with respect of services rendered or products delivered to customers of the Business by the Company Group.

“Accounting Procedures” means, with respect to the UK Business, FRS 102, and, with respect to the Singapore Business and the Dubai Business, International Financial Reporting Standards (IFRS), in each case, applied in a manner consistent with the Financial Statements.

“Action” means any legal action, suit, petition, plea, charge, claim, demand, arbitration, audit, complaint, grievance, summons, litigation, mediation, suit, proceeding (including any civil, criminal, or administrative proceeding), prosecution, contest, hearing, audit, examination or investigationcommenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority.

“Adjustment Escrow” means the escrow account established pursuant to the Adjustment Escrow Agreement.

“Adjustment Escrow Agreement” means an escrow agreement by and among Buyer, Sellers and Escrow Agent for the disbursement of the amounts payable by Buyer pursuant to Section 3.1,in substantially the form attached hereto as Exhibit D.

“Adjustment Escrow Amount” means $500,000.


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“Affiliate” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act of 1934.

“Agreed Principles” means those methodologies, policies, procedures, practices, estimation techniques, assumptions and principles used in the preparation of the Financial Statements as modified by the practices, principles, policies, methodologies, and procedures set forth on Exhibit B.

“Agreed Cure Costs” means the Cure Costs, in each case, as set forth on Schedule 1.1(q)or as otherwise agreed by Sellers.

“Alternative Transaction” means (a) the sale, conveyance, transfer or assignment, directly or indirectly, including through an asset sale, stock sale, merger, consolidation, business combination, amalgamation or other similar transaction, as applicable, of the Acquired Interests, or all or substantially all of the Assets of the Business (other than sales in the Ordinary Course of Business), in a transaction or a series of transactions with one or more Persons other than Buyer and/or its Affiliates; or (b) a plan of reorganization or liquidation that does not contemplate the sale of the Acquired Interests by Sellers to Buyer and/or its Affiliates in accordance with the terms of this Agreement.

“Assets” means any and all assets of the Company Group, including all right, title and interest in, to and under the following, in each case, that are primarily used in or held for use in the operation of the Business:

(a) all Equipment, including all Equipment set forth on Schedule 1.1(a);

(b) all Inventory;

(c) all Contracts;

(d) all (i) Owned Real Property and (ii) Leased Real Property (and any such agreement and rights related thereto or under the associated lease(s)), in each case, together with all interests in and to all Improvements located thereon or attached thereto, and other appurtenances thereto, and rights in respect thereof;

(e) all Permits and pending applications therefor that relate to the Business or the other Assets, to the extent transferrable hereunder;

(f) all Intellectual Property;

(g) all Accounts Receivable included as Current Assets;

(h) all Pre-Paid Expenses;

(i) all goodwill, customer and referral relationships, other intangible property and all privileges, set-offs, indemnification rights, causes of action, Actions, and demands and rights of any kind as against others (whether by Contract or otherwise) relating to, arising from or associated with any of the other Assets (including the Intellectual Property) and/or the Business;

(j) to the extent permitted by applicable Law, all Documents, including allbooks and records (financial, accounting, personnel files and other), and correspondence, and all customer sales, marketing, advertising, packaging and promotional materials, files, data, software (whether written, recorded or stored on disk, film, tape or other media, and including all computerized data), drawings,


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engineering and manufacturing data and other technical information and data, and all other business and other records, in each case, to the extent arising under or relating to the Company Group, the Assets or the Business;

(k) all rights, remedies and benefits, but not obligations, of the Company Grouparising under or relating to any of the Assets or the Business, including rights, remedies and benefits arising out of express or implied warranties, representations and guarantees from suppliers, manufacturers, contractors or others to the extent relating to the operation of the Business or affecting any of the Assets or ordered by the Company Group prior to the Closing Date (and in any case, any component thereof), and all claims and causes of action arising or existing therefrom;

(l) all rights, but not obligations, under non-disclosure or confidentiality, non-compete, or non-solicitation agreements or key employee retention plans or similar arrangements with (or for the benefit of) employees and agents of the Company Group or with third parties (including any non-disclosure or confidentiality, non-compete, or non-solicitation agreements contemplated by the Bidding Procedures);

(m) all telephone, telex and facsimile numbers and other directory listings of the Business, including those set forth on Schedule 1.1(m);

(n) all assets (whether in trust or otherwise) with respect to any Benefit Plan;

(o) shares of capital stock or other equity interests in any member of the Company Group; and

(p) all assets, if any, listed on Schedule 1.1(p) (regardless of whether such assets are covered by any of the foregoing).

“Assignment and Assumption Agreement” means the Assignment and Assumption Agreement in substantially the form attached hereto as Exhibit E.

“Backup Bidder” has the meaning set forth in the Bidding Procedures.

“Bankruptcy Code” means Title 11 of the United States Code, Sections 101 et seq.

“Bid Deadline” has the meaning set forth in the Bidding Procedures.

“Bid Protections” has the meaning set forth in Section 12.2(a).

“Bidding Procedures” means the bid procedures approved by the Bankruptcy Court pursuant to the Bidding Procedures Order, as may be modified from time to time pursuant to the terms thereof.

“Bidding Procedures Order” means an Order of the Bankruptcy Court entered onNovember 6, 2020, as may be modified from time to time pursuant to the terms thereof and the Cash Collateral Orders.

“Break-Up Fee” has the meaning set forth in Section 12.2(a).


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“Business Day” means any day of the year on which national banking institutions in New York, New York and Wilmington, Delaware are open to the public for conducting business and are not required or authorized to close.

“Buyer” has the meaning set forth in the introductory paragraph and shall also include any Buyer Designee designated by Buyer pursuant to the terms of this Agreement.

“Buyer Designee” means Buyer or any other Persons designated by Buyer to purchase any of the Acquired Interests or the Specified Assets pursuant to the terms of this Agreement.

“Cash Collateral Orders” means that certain Interim Order Pursuant to 11 U.S.C. §§ 105, 361, 362, 363, 507 and 552, and Bankruptcy Rules 2002, 4001, and 9014, (I) Authorizing the Debtors’ Use of Cash Collateral, (II) Granting Adequate Protection to Prepetition Secured Parties, (III) Scheduling a Final Hearing Pursuant to Bankruptcy Rule 4001(b), and (IV) Granting Related Relief [Docket No. 34],and/or any final order authorizing the Debtors’ use of cash collateral, including any budget governing or relating to such use, as consented to by the First Lien Agent (as defined therein) in its sole discretion, in each case, entered in the Bankruptcy Case.

“Closing Date” means the date and time as of which the Closing occurs as set forth in Section 4.1.

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

“Company Group” means the Acquired Parent Entities, EA UK, EA Singapore, EA Middle East, and each of their other direct and indirect Subsidiaries.

“Consent Letters” means letter agreements from the counterparties to the Material Contracts set forth on Schedule 1.1(q), in substantially the forms attached hereto as Exhibit G.

“Contract” means any written and binding agreement, contract, obligation, promise, undertaking, lease, sublease, purchase order, arrangement, license, commitment, insurance policy or other binding arrangement or understanding, and any written and binding amendments, modifications or supplements thereto.

“Copyrights” means all United States and foreign copyright rights in any original works of authorship, whether registered or unregistered, including all copyright registrations and applications.

“Credit Support” means all guaranties, letters of credit, reimbursement agreements, bonds, deposits, prepayments amounts and other credit or contractual assurances of a comparable nature made by Debtors for the benefit of the Company Group or any counterparty under any Contract of the Company Group or otherwise in connection with the Business.

“Cure Costs” means all monetary liabilities, including pre-petition monetary liabilities, of Sellers that must be paid or otherwise satisfied to cure all of Sellers’ monetary defaults under the Assigned Contracts pursuant to Section 365 of the Bankruptcy Code at the time of the assumption thereof and assignment to Buyer as provided hereunder as such amounts are determined by the Bankruptcy Court.

“Cure Notice” means, with respect to each Assigned Contract, the notice submitted bySellers to the counterparty or counterparties thereto pursuant to the applicable Order of the Bankruptcy Court setting forth the Cure Cost amount with respect thereto as calculated by Sellers.


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“Disclosure Schedules” means the Disclosure Schedules attached hereto, dated as of the Execution Date, delivered by Sellers to Buyer in connection with the execution of this Agreement and as may be amended, restated, modified or updated in accordance with the terms hereof.

“Documents” means all of the existing documents of, generated by, used in or held for use in the operation of, the Business.

“Employees” means all employees of any member of the Company Group as of the Execution Date as well as any additional persons who provide services to the Business as permitted by Section 7.2 during the period from the Execution Date through and including the Closing Date.

“Encumbrance” means (a) to the extent permitted by applicable Legal Requirements, any “interest” under Section 363(f) of the Bankruptcy Code and, without limiting this section (a), (b) any mortgage, deed of trust, pledge, security interest, lien, charge, hypothecation, option, right of first offer or first refusal, restrictive covenant, right of way, preemptive right, conditional sale or other title retentionagreement or any other encumbrance.

“Environmental Laws” means any and all current Legal Requirements concerning or relating to the protection of worker/occupational health from exposure to Hazardous Substances or pollution or protection of the environment, including those relating to the presence, use, manufacturing, refining, production, generation, handling, transportation, treatment, recycling, storage, disposal, discharge, Release, control, or cleanup of Hazardous Substances as applicable to the Business.

“Equipment” means all furniture, fixtures, equipment, computers, machinery, tools, molds, vehicles, apparatus, appliances, implements, telephone systems, management information systems (including all proprietary software and hardware related thereto), signage, supplies and all other tangible personal property of every kind and description, and improvements and tooling with respect thereto, in each case, of the Company Group, that are primarily used in or held for use in the operation of the Business and located at the Real Property, including communications equipment, information technology assets, and any attached and associated hardware, routers, devices, panels, cables, manuals, cords, connectors, cards, and vendor documents with respect thereto, and including all warranties of the vendor applicable thereto.

“Escrow Agent” means US Bank, N.A. or such other escrow agent mutually acceptable to Sellers and Buyer.

“Excluded Accounts Receivables” means any Accounts Receivables to the extent not attributable to or generated by the Business or the Company Group.

“Excluded Assets” means (a) the Excluded Accounts Receivable, (b) the Excluded Real Property, and (c) any other asset exclusively used by the Excluded Business.

“Excluded Real Property” means the real property, together with all buildings and other structures, facilities or improvements currently or hereafter located on, all fixtures, systems, equipment and items of personal property attached or appurtenant thereto and all easements, licenses, rights and appurtenances relating to the foregoing, located at: (a) 10399 Silver Springs Rd., Conroe, TX 77303, and (b) 9450 W Wingfoot Rd, Houston, TX 77041.

“Expense Reimbursement” means an amount, up to a maximum amount of $100,000, that is equal to the actual, documented reasonable out-of-pocket costs, fees and expenses of Buyer (includingactual, documented reasonable expenses of legal, financial advisory, accounting, due diligence, and other similar costs, fees and expenses) related to the transactions contemplated by this Agreement.


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“Final Order” means an Action taken or Order issued by the applicable Governmental Authority as to which: (a) no request for stay of the Action or Order is pending, no such stay is in effect, and, if any deadline for filing any such request is designated by statute or regulation, it is passed, including any extensions thereof; (b) no petition for rehearing or reconsideration of the Action or Order, or protest of any kind, is pending before the Governmental Authority, and the time for filing any such petition or protest is passed; (c) the Governmental Authority does not have the Action or Order under reconsideration or review on its own motion, and the time for such reconsideration or review has passed; and (d) the Action or Order is not then under judicial review, there is no notice of appeal or other application for judicial review pending, and the deadline for filing such notice of appeal or other application for judicial review has passed, including any extensions thereof; provided, however, that the possibility that a motion under Rule 60 of the Federal Rules of Civil Procedure, or any analogous rule under the Bankruptcy Rules, may be filed relating to such order, shall not cause such order not to be a Final Order.

“Firm” means a nationally recognized independent accounting firm which is mutually agreeable to the Sellers and the Buyer; provided, however, that if the Buyer and the Sellers cannot agree on the selection of an independent accounting firm to act as the Firm, the Parties shall request the American Arbitration Association to choose between the nationally recognized independent accounting firm selected by the Buyer and the Sellers and such appointment shall be conclusive and binding on the Parties as the Firm for purposes of this Agreement.

“Fraud” means the actual fraud of the Sellers as finally determined by a court of competent jurisdiction based on the representations and warranties set forth in this Agreement.

“Fundamental Representations” means those representations and warranties set forth in Sections 5.1 through 5.6, inclusive, and in Section 5.8.

“Governmental Authority” means any United States federal, state or local, municipal, or any foreign government, or any governmental authority or regulatory or administrative authority, agency or commission or any court, tribunal or judicial body having jurisdiction, including, for the avoidance of doubt, the Bankruptcy Court, over the applicable Person.

“Governmental Authorization” means any approval, consent, license, Permit, Order, waiver or other authorization issued, granted or otherwise made available by or under the authority of any Governmental Authority.

“Hazardous Substance” means any substance, material or waste (including chemicals, compounds, mixtures, pollutants and contaminants) (a) to the extent such materials are prohibited, limited or regulated by Environmental Laws as “hazardous”, “acutely hazardous”, “toxic” or “dangerous”; (b)petroleum or any fraction thereof, or petroleum products, (c) natural gas, (d) asbestos and asbestos-containing materials, (e) radioactive material, (f) urea formaldehyde, g) polychlorinated biphenyls, (h)hazardous or toxic fungus, mold or mycotoxins or (i) lead or lead-containing paint or plumbing.

“Improvements” means the buildings, structures, systems, facilities, easements, rights-of-way, privileges, improvements, licenses, hereditaments, appurtenances and all other rights and benefits appurtenant or in any way related to and/or demised under any lease of, or other contract or agreement for the use of, any Real Property.

“Indebtedness” means, at any time, without duplication, and with respect to any Person: (a) all indebtedness of such Person for borrowed money; (b) all indebtedness of such Person for the deferred purchase price of property or services; (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments; (d) all indebtedness of such Person created or arising under any


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conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (e) all obligations of such Person under leases which have been recorded as capital leases on the Financial Statements; (f) all reimbursement, payment or similar obligations of such Person, contingent or otherwise, under acceptance, letter of credit or similar facilities; (g) all vendor financing arrangements; (h) all obligations of such Person under interest rate or currency swap transactions or commodity hedges (valued at the termination value thereof); (i) all Indebtedness of others referred to in clauses (a) through (h) above guaranteed directly or indirectly by such Person, or in effect guaranteed directly or indirectly by such Person, through an agreement (i) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, (ii) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (iii) otherwise to assure a creditor against loss in respect of such Indebtedness; and (j) all Indebtedness referred to in clauses (a) through (i) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness.

“Indemnification Escrow” means the escrow account established pursuant to the Indemnification Escrow Agreement.

“Indemnification Escrow Agreement” means an escrow agreement by and among Buyer, Sellers and Escrow Agent for the disbursement of the amounts payable by Sellers pursuant to Section 8.1(a),in substantially the form attached hereto as Exhibit E.

“Indemnification Escrow Amount” means $1,633,800.

“Intellectual Property” means all Copyrights, Patents, Trademarks and Trade Secrets, in each country in which the Company Group operates and that are owned by the Company Group andprimarily used in or held for use in the operation of the Business, including, for the avoidance of doubt, all of the foregoing relating to any recipes, specifications, formulas, manufacturing processes or delivery processes relating to the products of the Business.

“Intercompany Indebtedness” means all Indebtedness, payables, convertible preferred equity, receivables, and/or other amounts to the extent solely owed to, by or among the Sellers and any member(s) of the Company Group, including the intercompany indebtedness set forth in Schedule 1.1(x).

“Inventory” mean all metal pipe, tube, bar, or related metal accessory inventory owned bythe Company Group on the Closing Date and stored at the Real Property (or in transit to the Real Property), including work-in-process, finished goods or products, in each case, to the extent included in Current Assets and to the extent primarily used in or held for use in, the operation of the Business.

“IRS” means the United States Internal Revenue Service.

“Knowledge” means, with respect to any matter in question, in the case of Sellers, the actual knowledge of any of the individuals listed on Schedule 1.1(y), as of the Execution Date upon dueinvestigation or inquiry.

“Leased Real Property” means the real property leased by the Company Group, which is used in or held for use in the operation of the Business (each such real property lease a “Lease,” and, collectively, the “Leases”), together with Improvements currently or hereafter located thereon, all fixtures,


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systems, equipment and items of personal property of the Company Group attached or appurtenant thereto and all easements, licenses, rights and appurtenances relating to the foregoing.

“Legal Requirement” means any federal, state, provincial, local, municipal, foreign, international, multinational, or other administrative Order, constitution, law, ordinance, principle of common law, regulation, statute or treaty.

“Liability” means any indebtedness, liabilities or obligations of any kind or nature whatsoever (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, matured or unmatured, determined or determinable, disputed or undisputed, liquidated or unliquidated, or due or to become due, and whether in contract, tort, strict liability or otherwise), including all fines, costs and expenses relating thereto (including all fees, disbursements and expenses of legal counsel, experts, engineers and consultants and costs of investigation).

“Material Adverse Effect” means any (a) change, event, state of facts or occurrence that individually or in the aggregate (taking into account all other such changes, events, state of facts or occurrences) has had, or would be reasonably expected to have, a material adverse change in or material adverse effect on the Business, its condition (financial or otherwise) or the results of operations of the Business, individually or taken as a whole, or (b) event or circumstance that does or would reasonably be expected to prevent, impair or materially delay the ability of any Seller to consummate the transactions contemplated by this Agreement or to perform any of their obligations under this Agreement; provided,however, that, in the case of clause (a) above, the following (or the direct or indirect effect, of any of the following) shall not be deemed in themselves, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or would be, a Material Adverse Effect: (i) the fact of the commencement and the continuation of the Bankruptcy Cases, any events of default under any Indebtedness necessitating the commencement of such cases, (ii) any national, international or any foreign or domestic regional economic, financial, military or political conditions (including changes therein) or events in general, including the results of any primary or general elections and acceptance or rejection thereof, (iii) any change in any financial, debt, credit, capital or banking markets or conditions (including any disruption thereof), (iv) any change in interest, currency or exchange rates or the price of any commodity, security or market index, (v) any change in Legal Requirements, Orders, or other accounting regulations, principles, or standards, including changes or proposed changes in Legal Requirements, Orders, the Accounting Procedures or other accounting regulations, principles, or standards,or any changes or proposed changes in interpretations or enforcement thereof, (vi) any conditions generally affecting the industries in which Sellers operate, (vii) any change in the price or trading volume of any securities or indebtedness of Sellers, (viii) any change in, or failure of Sellers to meet, or the publication of any report regarding, any internal or public projections, forecasts, budgets or estimates of or relating to Business for any period, including with respect to revenue, earnings, cash flow or cash position (it being agreed that the facts and circumstances giving rise to such failure that are not otherwise described in this clause (viii) may be taken into account in determining whether there has been a Material Adverse Effect),(ix) the occurrence, escalation, outbreak or worsening of any hostilities, war, police action, acts of terrorism or military conflicts, whether or not pursuant to the declaration of an emergency or war, (x) the existence, occurrence or continuation of any force majeure events, including any earthquakes, floods, hurricanes, tropical storms, fires, pandemic (including COVID-19), outbreak of infectious disease, or other natural disasters or any national, international or regional calamity or any man-made disaster, (xi) any actions taken, or not taken, with the consent, waiver or at the request of Buyer or the Buyer Designees or any action taken to the extent expressly permitted by this Agreement, (xii) any actions taken by Buyer, the Buyer Designees or its or their representatives or financing sources after the Execution Date or (xiii) any exceptions to the representations and warranties expressly disclosed in the Schedules; provided, further,that any change, event, state of facts or occurrence referred to in clauses (ii), (iii), (iv), (v), (vi), (ix), or (x)above shall be taken into account in determining whether a Material Adverse Effect has occurred or would


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reasonably be expected to occur only to the extent that such change, event, state of facts or occurrence has a disproportionate effect on the Business as compared to other similar participants in the industry in which it operates.

“Material Contract” means any Contract that: (a) has resulted in or required payments to or by the Company Group in excess of $200,000 in the twelve (12) month period prior to Closing (unless terminable without payment or penalty upon no more than ninety (90) days’ notice) without Liability to the Company Group; (b) has a remaining term of greater than one year from the Execution Date and cannot beunilaterally terminated by the Company Group on less than ninety (90) days’ notice without Liability to the Company Group; (c) is a rental Contract for Assets constituting material tangible personal property that cannot be unilaterally terminated by the Acquired Entity on less than ninety (90) days’ notice, without Liability to the Company Group; (d) creates any obligation of the Company Group for Indebtedness; (e)provides for fixed compensation of $100,000 or more per annum to any Employee or consultant of the Company Group, which, by its terms, is not terminable on ninety (90) days or less notice by the Company Group without Liability to the Company Group; (f) provides severance, retention, change in control, or other similar payments or benefits (other than those provided by applicable Law) to any Employee orconsultant of the Company Group; (g) expressly limits or restricts the ability of the Company Group tocompete or otherwise to conduct any line of business in any manner or place; (h) requires the Company Group to deal exclusively with any Person; (i) obligates the Company Group to purchase a minimum quantity of goods or services in excess of $200,000 in the aggregate in any given year; (j) requires theCompany Group to make any capital investment or other expenditures in excess of $50,000 prior to providing or as a condition to continuing any services; (k) is a Contract with a Governmental Entity; (l) is a Real Property Lease; (m) creates an Encumbrance upon any material portion of the Company Group’s Assets, other than a Permitted Encumbrance; (n) is a Contract between, on one hand, any member of the Company Group and, on the other hand, any other member of the Company Group or any Affiliate of any member of the Company Group; or (o) provides for certification related to the quality or manufacturing processes of any member of the Company Group with respect to a Material Customer.

“Order” means any award, writ, injunction, judgment, order, ruling, decision, subpoena, mandate, precept, command, directive, decree or binding determination or finding entered, issued, made or rendered by any Governmental Authority, or any arbitrator, mediator, or other quasi-judicial or judicially sanctioned Person or body.

“Ordinary Course of Business” means, with respect to any Person, the ordinary and usual course of normal day to day operations of such Person and its business, consistent with its past practice during the period immediately preceding the date of this Agreement; provided, however, that in the case of Sellers and the Company Group, “Ordinary Course of Business” shall include any and all actions taken by Sellers or their Affiliates in preparation of or as required by the Bankruptcy Cases.

“Owned Real Property” means the real property in which the Company Group has fee title (or equivalent) interest, in each case, which is primarily used in or held for use in the operation of the Business, together with all Improvements currently or hereafter located thereon, all fixtures, systems, equipment and items of personal property of the Company Group attached or appurtenant thereto and all easements, licenses, rights and appurtenances relating to the foregoing.

“Party” or “Parties” means, individually or collectively, Buyer and Sellers.

“Patents” means United States and foreign issued patents and pending applications,whether provisional or non-provisional, as well as any continuations, continuations-in-part, substitutions, restorations, divisions, extensions, reexaminations, reissues, renewals and patent disclosures related thereto,and any Governmental Authority-issued indicia of invention ownership (including certificates of invention, petty patents, and patent utility models).


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“Permits” means all approvals, permits, licenses, franchises, waivers, filings, consents, certificates, notices, qualifications, authorizations, registrations and clearances, together with all modifications, amendments, supplements and extensions thereof, of or from any Governmental Authority held by the Company Group necessary to own the Acquired Interests or the Assets or to operate the Business.

“Permitted Encumbrances” means (a) applicable zoning Legal Requirements, building codes and other similar restrictions imposed by Legal Requirements (but excluding any violations of any such Legal Requirements); (b) materialmans’, mechanics’, artisans’, shippers’, warehousemans’ or other similar common law, contractual or statutory liens incurred in the Ordinary Course of Business for sums not yet due and payable or that are due but may not be paid as a result of the commencement of the Bankruptcy Cases or which are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established on the Financial Statements in accordance with the Accounting Procedures; (c) statutory liens for current Taxes not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings; (d) easements, covenants, conditions, restrictions, declarations and other similar non-monetary matters affecting title to real property and encroachments and other non-monetary title and survey defects with respect to any Owned Real Property that, in the case of each of the foregoing, do not and would not reasonably be expected to adversely affect the current occupancy or use of such real property in any material respect; (e) matters that would be disclosed on an accurate survey of the real property that do not and would not reasonably be expected to adversely affect the current occupancy or use of such real property in any material respect; (f) with respect to Leased Real Property, (1) the terms, conditions and provisions of the Leases pursuant to which such Leased Real Property is leased, and (2) any lien, Encumbrance, or other matter affecting title to the fee estate underlying such Leased Real Property; (g) any statutory or common law liens in favor of landlords or lessors under leases or rental agreements to secure amounts that are not yet due or payable thereunder; (h) rights granted to any licensee of any Intellectual Property in the Ordinary Course of Business; (i)Encumbrances that will be and are discharged or released either prior to, or simultaneously with the Closingpursuant to the Payoff Letters; (j) such other Encumbrances, title exceptions or imperfections of title set forth on Schedule 1.1(z) or as Buyer may approve in writing in its sole discretion; (k) any Encumbrances permitted by the Sale Order; and (l) any Liabilities created by this Agreement or any of the other Transaction Documents; provided, however, that the Encumbrances described in clauses (c), (h), (i), and (j) are referred to herein as the “Permitted Specified Encumbrances”.

“Person” means any individual, corporation (including any non-profit corporation), partnership, limited liability company, joint venture, unincorporated organization, estate, trust, association, organization or other legal entity or Governmental Authority.

“Post-Closing Tax Period” means (i) any taxable period that begins after the Closing Date and (ii) the portion of any Straddle Period beginning after the Closing Date.

“Pre-Closing Tax Period” means (i) any taxable period that ends on or before the Closing Date and (ii) the portion of any Straddle Period ending on the Closing Date.

“Professional” means any Person retained by Sellers or their Affiliates in the Bankruptcy Case pursuant to an Order of the Bankruptcy Court under Section 327, 363 or 1103 of the Bankruptcy Code.

“Qualified Bid” has the meaning set forth in the Bidding Procedures.

“Real Property” means the Owned Real Property and the Leased Real Property.


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"Register of Beneficial Owners" shall have the meaning set forth under section 244 (1) of the Companies Law (2020 Revision) of the Cayman Islands.

"Register of Members" shall have the meaning set forth under section 40 (1) of the Companies Law (2020 Revision) of the Cayman Islands.

“Release” means any actual or threatened releasing, spilling, dumping, discharging, disposing, leaking, pumping, injecting, pouring, emitting, leaching, escaping or allowing to escape, or migrating into the indoor or outdoor environment, including ambient air, surface water, groundwater and surface or subsurface strata, within any building, structure, facility or fixture.

“Representative” means, with respect to a particular Person, any director, manager, officer, employee, agent, consultant, advisor or other representative of such Person, including legal counsel, accountants and financial advisors.

“Sale Hearing” means the hearing to consider the entry of the Sale Order.

“Sale Motion” means the motion or motions filed by the Debtors pursuant to, inter alia,Sections 363 and 365 of the Bankruptcy Code seeking entry of the Sale Order.

“Sale Order” means an Order or Orders of the Bankruptcy Court, pursuant to, inter alia,Sections 105, 363, and 365 of the Bankruptcy Code authorizing and approving, inter alia, the sale of the Acquired Interests and the Specified Assets to Buyer or the Buyer Designees, as applicable, on the terms and conditions set forth herein, free and clear of any and all Encumbrances (other than the Permitted Specified Encumbrances), and the assumption and assignment of the Assigned Contracts to Buyer and/or the Buyer Designees, as applicable, and containing findings of fact and conclusions of law that Buyer and/or the Buyer Designees, as applicable, has acted in “good faith” within the meaning of Section 363(m) of the Bankruptcy Code, which Sale Order shall be consistent with the Cash Collateral Orders, and in form and substance reasonably acceptable to Buyer and Seller; provided however, that the Sellers may seek by separate motion an Order of the Bankruptcy Court granting Sellers the authority to assign the Assigned Contracts to Buyer and the Bankruptcy Court’s approval of such assignment.

“Stalking Horse Order” means an Order of the Bankruptcy Court that approves the Bid Protections, as may be modified from time to time pursuant to the terms thereof and the Cash Collateral Orders, and as otherwise acceptable to Buyer in its sole discretion.

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

“Subsidiary” means any entity with respect to which a specified Person (or a Subsidiary thereof) has the power, through the ownership of securities or otherwise, to elect a majority of the managers, directors or similar managing body, whether directly or indirectly.

“Successful Bidder” has the meaning set forth in the Bidding Procedures.

“Tax” or “Taxes” (and with correlative meaning, “Taxable” and “Taxing”) means any federal, state, provincial, local, foreign or other income, alternative minimum, add-on minimum, accumulated earnings, personal holding company, franchise, capital stock, net worth, capital, profits, intangibles, windfall profits, gross receipts, value added, sales, use, goods and services, excise, customs duties, transfer, conveyance, mortgage, registration, stamp, documentary, recording, premium, severance, environmental, natural resources, real property, personal property, ad valorem, intangibles, rent, occupancy,


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license, occupational, employment, unemployment insurance, social security, disability, workers’ compensation, payroll, health care, withholding, estimated or other similar tax, duty, levy or other governmental charge or assessment or deficiency thereof (including all interest and penalties thereon and additions thereto whether disputed or not).

“Tax Refund” means any Tax refund, credit or similar benefit (including any interest paid or credited with respect thereto).

“Tax Return” means any return, declaration, report, claim for refund, information return or other document (including any related or supporting estimates, elections, schedules, statements, or information) filed or required to be filed in connection with the determination, assessment or collection of any Tax or the administration of any laws, regulations or administrative requirements relating to any Tax.

“Trade Secrets” means confidential and proprietary business information, trade secrets, business methods, know-how, inventions (whether or not patentable), discoveries, improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes, techniques, and other confidential and proprietary information, in each case, to the extent protectable under applicable Legal Requirements.

“Trademark Assignment Agreement” means a trademark assignment agreement by and between, Energy Alloys, L.L.C. and Buyer (or the Buyer Designee), in substantially the form attached hereto as Exhibit F.

“Trademarks” means United States, state and foreign trademarks, service marks, logos, slogans, trade dress and trade names, Internet domain names and any other similar designations of source of goods or services, whether registered or unregistered, and registrations and pending applications to register the foregoing, and all goodwill related to or symbolized by the foregoing.

“Transaction Documents” means this Agreement, the Adjustment Escrow Agreement, the Indemnification Escrow Agreement, the Trademark Assignment Agreement, the Assignment and Assumption Agreement, and any other agreements, instruments, certifications, or documents entered into pursuant to this Agreement.

1.2 Cross Reference of Other Definitions. Each capitalized term listed below is defined on the corresponding page of this Agreement:Term Page No.

Acquired Interests ......................................................................................................................................... 1Acquired Parent Entities ........................................................................................................................... 1, 5AG Work Product ....................................................................................................................................... 62Aggregate Closing Consideration ............................................................................................................... 18Agreement..................................................................................................................................................... 1Bankruptcy Case ........................................................................................................................................... 1Bankruptcy Court.......................................................................................................................................... 1Benefit Plan................................................................................................................................................. 31Bid Protections............................................................................................................................................ 54Bidding Procedures and Sale Motion.......................................................................................................... 39Business ........................................................................................................................................................ 1Buyer............................................................................................................................................................. 1Buyer Indemnitees ...................................................................................................................................... 42


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Buyer Released Claim................................................................................................................................. 48Buyer Released Parties ............................................................................................................................... 48Claim........................................................................................................................................................... 44Closing ........................................................................................................................................................ 21Closing Date................................................................................................................................................ 22Closing Indebtedness Schedule................................................................................................................... 51Closing Statement ....................................................................................................................................... 19Collective Bargaining Agreement............................................................................................................... 30Company Group Constituent Documents ................................................................................................... 25Company Group Membership Interests ...................................................................................................... 25Confidentiality Agreements ........................................................................................................................ 56Debtor Released Parties .............................................................................................................................. 48Debtors.......................................................................................................................................................... 1Dispute ........................................................................................................................................................ 62Dubai Business.............................................................................................................................................. 1Estimated Aggregate Closing Consideration .............................................................................................. 19Estimated Closing Statement ...................................................................................................................... 19Execution Date.............................................................................................................................................. 1Final Aggregate Closing Consideration...................................................................................................... 21Financial Statements ................................................................................................................................... 26General Survival Period.............................................................................................................................. 46Indemnified Parties ..................................................................................................................................... 43Indemnifying Parties................................................................................................................................... 43Interim Financial Statements ...................................................................................................................... 26Labor Claim ................................................................................................................................................ 31Latest Balance Sheet ................................................................................................................................... 26Lease ............................................................................................................................................................. 8Leases............................................................................................................................................................ 8Losses.......................................................................................................................................................... 42Material Customers..................................................................................................................................... 34Material Suppliers....................................................................................................................................... 34Measurement Time ..................................................................................................................................... 19Notice of Disagreement .............................................................................................................................. 20Outside Date................................................................................................................................................ 53Outstanding Escrow Claims........................................................................................................................ 46Overpayment............................................................................................................................................... 21Payoff Letters.............................................................................................................................................. 51Petition Date.................................................................................................................................................. 1Related Party............................................................................................................................................... 55Schedule Supplement.................................................................................................................................. 41Seller ............................................................................................................................................................. 1Seller Counsel ............................................................................................................................................. 62Seller Group................................................................................................................................................ 62Seller Group Confidential Information ....................................................................................................... 62Seller Indemnitees....................................................................................................................................... 43Seller Released Claim................................................................................................................................. 48Sellers............................................................................................................................................................ 1Sellers Representative................................................................................................................................. 60Singapore Business ....................................................................................................................................... 1Specified Assets .......................................................................................................................................... 17Taxable........................................................................................................................................................ 12


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Taxing ......................................................................................................................................................... 12Third Party Claim ....................................................................................................................................... 44Transfer Taxes ............................................................................................................................................ 48UK Business.................................................................................................................................................. 1Union .......................................................................................................................................................... 30

1.3 Other Definitions and Interpretive Matters.

(a) Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:

(i) Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a day other than a Business Day, the period in question shall end on the next succeeding Business Day.

(ii) Day. Any reference in this Agreement to days (but not Business Days) means to calendar days.

(iii) Dollars. Any reference in this Agreement to $ means United States dollars.

(iv) Exhibits/ Schedules. All Exhibits and Schedules attached or annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein shall be defined as set forth in this Agreement.

(v) Gender and Number. Any reference in this Agreement to gender includes all genders, and words imparting the singular number only include the plural and vice versa.

(vi) Headings. The provision of a table of contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in the construction or interpretation of this Agreement. All references in this Agreement to any “Section” or “Article” are to the corresponding Section or Article of this Agreement unless otherwise specified.

(vii) Herein. Words such as “herein,” “hereof” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear, unless the context otherwise requires.

(viii) Including. The word “including” or any variation thereof means “including, without limitation,” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

(ix) Made Available. Any reference in this Agreement to “made available” shall mean that such documents or information referenced shall have been provided in that certain electronic dataroom titled “Sequel” located at https://americas.datasite.com/manda/project/5f0e035e644cfd56214e345f/content/index?mode=index for Buyer and its Representatives at least two (2) days prior to the Execution Date.


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(x) Non-Implication. The specification of any dollar amount or the inclusion of any item in the representations and warranties contained in this Agreement is not intended to imply that the amounts, or higher or lower amounts, or the items so included, are required to be disclosed (including whether such amounts or items are required to be disclosed as material or threatened), are within or outside of the Ordinary Course of Business, or are or are not material, and no Party shall use the fact of the setting of the amounts or the fact of the inclusion of any item in this Agreement in any dispute or controversy between the Parties as to whether any obligation, item or matter not described or included in this Agreement is material within or outside of the ordinary course of business for purposes of this Agreement.

(xi) Estimates. Any cost estimates, projections or other forward-looking statements contained or referred to in this Agreement or in the Schedules and Exhibits hereto or in any materials that have been provided, directly or indirectly, to Buyer by the Sellers or their Representatives are not and shall not be deemed to be representations or warranties of the Sellers.

(xii) Time is of the Essence. Time is of the essence in the performance of each of the parties’ respective obligations contained herein.

(b) No Strict Construction. Buyer, on the one hand, and Sellers, on the other hand, participated jointly in the negotiation and drafting of this Agreement, and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by Buyer, on the one hand, and Sellers, on the other hand, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. Without limiting the foregoing, no rule of strict construction construing ambiguities against the draftsperson shall be applied against any Person with respect to this Agreement.

(c) Disclosure Schedules. The disclosures in the Disclosure Schedules modify and relate to the representations and warranties in the corresponding section or subsection of such Article to which they refer and are intended to qualify and provide certain information elicited by, such representations and warranties. The information set forth in one section or subsection of the Disclosure Schedules that is specifically referred to in another section or subsection of the Disclosure Schedules by appropriate cross-reference shall also be deemed to qualify such other section or subsection of such Article, and the information set forth in one section or subsection of the Disclosure Schedules shall also be deemed to qualify each other section or subsection of such Article if the relevance of a disclosure in one section or subsection of the Disclosure Schedules to another section or subsection of such Article is reasonably apparent on its face.

ARTICLE 2

PURCHASE AND SALE

2.1 Purchase and Sale.

(a) Subject to the entry of the Sale Order and upon the terms and subject to the conditions of this Agreement, on the Closing Date, Sellers shall sell, transfer, assign, convey and deliver, or cause to be sold, transferred, assigned, conveyed and delivered, to Buyer and/or the applicable Buyer Designee, and Buyer and/or the applicable Buyer Designee shall purchase, acquire and accept from Sellers, free and clear of any and all Encumbrances, all of Sellers’ right, title and interest in, to the Acquired Interests.


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(b) Subject to the entry of the Sale Order and upon the terms and subject to the conditions of this Agreement, on the Closing Date, Sellers shall sell, transfer, assign, convey and deliver, or cause to be sold, transferred, assigned, conveyed and delivered, to Buyer, and Buyer shall purchase, acquire and accept from Sellers, free and clear of any and all Encumbrances, except for Permitted Specified Encumbrances, all of Sellers’ direct or indirect right, title and interest in, to or under the following rights and assets (the “Specified Assets”):

(i) all of Sellers’ respective rights under the Contracts set forth on Schedule 1.1(q), in each case, as may be modified or amended pursuant to the Consent Letters (the “Assigned Contracts”), in each case, including any “claim” as defined in Section 101(5) of the Bankruptcy Code, against any Seller with respect thereto or any Action with respect thereto;

(ii) all of the Trademarks of Sellers set forth on Schedule 2.1(b)(ii);and

(iii) such other assets of Sellers set forth on Schedule 2.1(b)(iii).

(c) Subject to the entry of the Sale Order and upon the terms and subject to the conditions of this Agreement (including Section 2.2), on the Closing Date, Buyer shall, effective at the time of the Closing, assume and agree to promptly discharge and perform when due, all of the following Liabilities (the “Assumed Liabilities”): (i) all Cure Costs and (ii) all Liabilities with respect to the Assigned Contracts. The assumption by Buyer or any of its applicable Buyer Designees of any Assumed Liabilities shall not, in any way, enlarge the rights of any third parties relating thereto.

2.2 Assignment and Assumption of Contracts.

Schedule 1.1(q) sets forth a list of the Assigned Contracts to which one or more of Sellers are party and which are to be included in the Specified Assets and Sellers’ good faith estimate of the Cure Costs as of the Execution Date. Sellers shall use commercially reasonable efforts to take all actions required to assign the Assigned Contracts to Buyer or any of its applicable Buyer Designees (other than payment of Cure Costs, if so required), including taking all actions required to obtain an Order containing a finding thatthe proposed assumption and assignment of the Assigned Contracts to Buyer or the applicable Buyer Designee satisfies all applicable requirements of section 365 of the Bankruptcy Code; provided, however,notwithstanding the foregoing, no monetary amount shall be required to be paid or incurred by Sellers or their affiliates in connection with any consent or approval from any Person that is required to assume and assign any Assigned Contracts to Buyer or any of its applicable Designees. Upon the Closing, Sellers shall, pursuant to the Sale Order and the Assumption Agreement, assign to Buyer or the applicable Buyer Designee (the consideration for which is included in the Purchase Price), and Buyer or the applicable Buyer Designee shall assume, each of the Assigned Contracts that is capable of being assigned and assumed and as soon as practicable following the Closing, Buyer or the applicable Buyer Designee shall pay promptly all Cure Costs (if any) in connection with such assignment and assumption and assume and perform and discharge the Assumed Liabilities (if any) under the Assigned Contracts, pursuant to the Assumption Agreement and any applicable Consent Letters. In the event that the actual aggregate Cure Costs for all of the Assigned Contracts exceed the Agreed Cure Costs, then (a) the Buyer and Sellers may mutually agree to exclude from the definition of “Specified Assets” any Assigned Contract that has a Cure Cost in excess of the Agreed Cure Cost for such Assigned Contract as set forth on Schedule 1.1(q) and such Assigned Contract shall be deleted from Schedule 1.1(q) (and therefore shall not be an Assigned Contract) or (b)Sellers may agree to increase the Agreed Cure Costs in order to permit the applicable Seller to assign to Buyer, and to permit Buyer to assume from the applicable Sellers, each such Assigned Contract (it being understood that if Sellers agree to an Agreed Cure Cost then the applicable Cure Cost, if any, set forth in the applicable Consent Letter shall be equal such Agreed Cure Cost).


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2.3 Further Assurances.

At and after the Closing, and without further consideration therefor, Sellers and their Affiliates shall execute and deliver to Buyer such further instruments and certificates as shall be necessary (a) to vest, perfect or confirm ownership (of record or otherwise) in Buyer and/or one or more Buyer Designees, Sellers’ right, title or interest in, to or under any or all of the Acquired Interests and Specified Assets, free and clear of any and all Encumbrances (other than, with respect to the Specified Assets, Permitted Specified Encumbrances), and (b) to otherwise effectuate the purposes and intent of this Agreement and the other Transaction Documents or for aiding, assisting, collecting and reducing to possession any of the Acquired Interests and Specified Assets and exercising rights with respect thereto. Each Seller, on the one hand, and Buyer and any Buyer Designee(s), on the other hand, shall take, or cause to be taken, all actions and shall do, or cause to be done all things as may be reasonably requested by the other Party in order to vest, perfect or confirm any and all right, title and interest in, to and under the Acquired Interests and Specified Assets in Buyer or one of more Buyer Designees or otherwise to carry out the purposes of this Agreement and shall execute and deliver all deeds, bills of sale, instruments of conveyance, powers of attorney, assignments, assumptions and assurances, and as may be reasonably required to consummate the transactions contemplated by this Agreement.

ARTICLE 3

PURCHASE PRICE

3.1 Purchase Price and Purchase Price Adjustments.

(a) For purposes of this Agreement, the following terms shall have the respective meanings assigned to such terms below.

(i) “Aggregate Closing Consideration” means an amount equal to the result of: (A) $16,338,000.00 (the “Base Purchase Price”), minus (B) the outstanding amount of Indebtedness set forth on the Payoff Letters received from the Persons identified on the Closing Indebtedness Schedule as of the Closing, plus (C) the amount, if any, by which Net Working Capital exceeds the Net Working Capital Target, minus (D) the amount, if any, by which Net Working Capital is less than the Net Working Capital Target, plus (E) the Closing Date Cash Amount, minus (F) any Company Group Transaction Expenses.

(ii) “Closing Date Cash Amount” means, as of the Measurement Time and without duplication, the sum of (A) the Company Group’s cash, checking account balances, marketable securities, certificates of deposit, time deposits, bankers’ acceptances, commercial paper, government securities and other cash equivalents (including any cash or cash equivalents deposited with, pledged to, or held by any banks, financial institutions or other third parties as collateral or other credit support for any Indebtedness, amounts, liabilities or other obligations of the Company Group under or relating to any letters of credit, surety bonds or hedging agreements (including any currency swap transaction) outstanding, plus (B) the aggregate amount of all checks, drafts and other bank deposits received by the Company Group but not yet credited to the bank accounts of the Company Group, minus (C) the aggregate amount of all issued but uncleared checks and drafts and pending electronic debits, in each case, as determined in accordance with the Agreed Principles.

(iii) “Closing Date Cash Purchase Price” means an amount equal to the result of: (A) the Estimated Aggregate Closing Consideration, minus (B) the Adjustment Escrow Amount, minus (C) the Indemnification Escrow Amount.


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(iv) “Company Group Transaction Expenses” means, as of the Measurement Time and without duplication, the sum of (A) any unpaid fees, costs or expenses incurred by the Company Group (including the fees, costs or expenses of third-party advisors retained by the Company Group or its Affiliates) in connection with the drafting, negotiation, and execution of this Agreement or the transactions contemplated hereby (including any amounts paid or payable pursuant to Transaction Bonus Agreements (as defined on and set forth on Schedule 5.18(a)); provided, however,that in no event shall “Company Group Transaction Expenses” be deemed to include any fees, costs, and expenses to the extent incurred by or at the direction of Buyer or otherwise relating to Buyer’s or its Affiliates’ financing (including obtaining any consent or waiver related thereto) for the transactions contemplated hereby or any other liabilities or obligations incurred or arranged by or on behalf of Buyer or its Affiliates in connection with the transactions contemplated hereby (including any fees payable to any financing institution or the accountants or any member of the Company Group on behalf of Buyer or its Affiliates) and (B) Agreed Cure Costs (if any).

(v) “Current Assets” means, as of the Measurement Time and without duplication, the current assets of the Company Group, in each case, (A) as determined in accordance with the Agreed Principles and (B) excluding (1) any Intercompany Indebtedness, (2) the Closing Date Cash Amount, and (3) any Company Group Transaction Expenses.

(vi) “Current Liabilities” means, as of the Measurement Time and without duplication, the current liabilities of the Company Group, in each case, (A) as determined in accordance with the Agreed Principles, (B) including any current liabilities of the Company Group for Taxes (less the sum of any deferred tax assets and Tax Refunds) and (C) excluding (1) any Indebtedness of the Company Group, (2) any Intercompany Indebtedness, (3) any liabilities or portion thereof that are being paid pursuant to issued but uncleared checks and drafts and pending electronic debits and (4)any Company Group Transaction Expenses.

(vii) “Measurement Time” means 11:59 p.m. (prevailing Eastern Time) on the day immediately prior to the Closing Date.

(viii) “Net Working Capital” means, with respect to the CompanyGroup, the Current Assets, minus the Current Liabilities, as adjusted by the formulas set forth in Exhibit C. An illustrative calculation of Net Working Capital, including the line items comprising Current Assets and Current Liabilities, also is detailed in Exhibit C.

(ix) “Net Working Capital Target” means an amount equal to Eight Million Six Hundred Thousand Dollars ($8,600,000.00).

(b) At least two (2) Business Days prior to the Closing Date, the Sellers shall deliver to Buyer a statement of the Company Group’s estimate of the Aggregate Closing Consideration (such amount, the “Estimated Aggregate Closing Consideration”), including the Company Group’s calculation of each of the components thereof (such statement, the “Estimated Closing Statement”), which estimate shall be prepared by the Sellers, in consultation with Buyer (including any third party experts retained by Buyer), in good faith based upon the books and records of the Company Group, consistent with the Agreed Principles.

(c) Within thirty (30) days after the Closing Date, Buyer shall deliver to the Sellers’ Representative a statement setting forth Buyer’s calculation of the Aggregate Closing Consideration, including (i) its calculation of each of the components thereof and (ii) any variances on an account by account basis to the Estimated Aggregate Closing Consideration and the components thereof (the “Closing Statement”). The parties agree that the Closing Statement (i) shall be prepared in good faith


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based upon the books and records of the Company Group, (ii) shall be prepared in accordance with the Agreed Principles and the applicable definitions set forth in this Agreement, (iii) shall not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby, and (iv) is not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies.

(d) Following the Sellers’ Representative’s receipt of Buyer’s proposed Closing Statement and until the Aggregate Closing Consideration is finally determined pursuant to this Section 3.1(d), the Sellers’ Representative shall be permitted to review the Closing Group’s books and records and working papers related to Buyer’s and the Company Group’s draft of the proposed Closing Statement and determination of the Aggregate Closing Consideration (and the components thereof), and Buyer shall provide the Sellers’ Representative with reasonable access to Buyer’s and the CompanyGroup’s personnel, books and records and facilities in connection with such review. The proposed Closing Statement delivered by Buyer shall become final and binding on the parties thirty (30) days following Buyer’s delivery thereof to the Sellers’ Representative unless the Sellers’ Representative delivers written notice of its disagreement (“Notice of Disagreement”) to Buyer on or prior to such date. If a timely Notice of Disagreement is delivered by the Sellers’ Representative, then the Closing Statement shall become final and binding on the parties on the earlier of (i) the date Buyer and the Sellers’ Representative resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, and (ii) the date all matters in dispute are finally resolved in writing by the Firm.

(e) During the fifteen (15) days following delivery of a Notice of Disagreement, Buyer and the Sellers’ Representative shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. If Buyer and the Sellers’ Representative, notwithstanding such good faith efforts, fail to resolve any such differences they may have with respect to the matters specified in the Notice of Disagreement, then at the end of such 15-day period, Buyer and the Sellers’ Representative shall submit such dispute to the Firm for resolution of all matters that remain in dispute and that were included in the Notice of Disagreement (andshall take all actions reasonably requested by the Firm in connection with such resolution, including submitting written claims to the Firm if so requested), and the Firm shall make a final determination of the Aggregate Closing Consideration in accordance with the terms of this Agreement (with it being understood that Buyer and the Sellers’ Representative shall request that the Firm deliver to Buyer and the Sellers’ Representative its resolution in writing not more than thirty (30) days after its engagement). The Firm shall make a determination only with respect to the matters still in dispute and, with respect to each such matter, its determination shall be within the range of the dispute between Buyer and the Sellers’ Representative.None of the Sellers, the Company Group, or Buyer (and none of their respective Representatives) shall have any ex parte conversations or meetings with the Firm without the prior consent of (i) with respect to the Sellers and their Representatives, the Buyer, and (ii) with respect to Buyer, the Company Group, and their Representatives, the Sellers’ Representative. In making such determination, the Firm shall be functioning as an expert and not as an arbitrator. The Firm’s determination shall be based solely on written materials submitted by Buyer and the Sellers’ Representative (i.e., not on independent review) and on the Agreed Principles and the definitions of “Current Assets”, “Current Liabilities”, “Indebtedness,” “Closing Date Cash Amount,” “Net Working Capital”, “Company Group Transaction Expenses” and related definitions included herein and the provisions of this Agreement. All determinations made by the Firm shall be final, conclusive and binding on the parties. Any party hereto may seek to have a judgment entered to enforce the determinations of the Firm in any court having jurisdiction over the party against which such determinations are to be enforced.

(f) The fees, costs and expenses of the Firm shall be allocated between Buyer and the Sellers based upon the percentage of the portion of the contested amount not awarded to Buyer or


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the Sellers bears to the amount actually contested by such party. For example, if the Sellers claim that the Aggregate Closing Consideration is $1,000 greater than the amount claimed by Buyer, and Buyer contests only $500 of the amount claimed by the Sellers, and if the Firm ultimately resolves the dispute by awarding the Sellers $300 of the $500 contested, then the fees, costs and expenses of the Firm will be allocated 60% (i.e., 300 ÷ 500) to Buyer and 40% (i.e., 200 ÷ 500) to the Sellers.

(g) If the Aggregate Closing Consideration as finally determined pursuant to this Section 3.1(g) (the “Final Aggregate Closing Consideration”) is greater than the Estimated Aggregate Closing Consideration, then, within three (3) Business Days after the date on which the Final Aggregate Closing Consideration is determined, Buyer and the Company Group shall, and Buyer shall cause the Company Group to, pay to Sellers by wire transfer of immediately available funds to an account or accounts specified by the Sellers’ Representative, an amount equal to such excess.

(h) If the Final Aggregate Closing Consideration is less than the Estimated Aggregate Closing Consideration (such amount, the “Overpayment”), then, within three (3) Business Days after the date on which the Final Aggregate Closing Consideration is determined, Buyer and Sellers shall jointly instruct the Escrow Agent to release a payment from the Adjustment Escrow, by wire transfer of immediately available funds to an account or accounts specified by Buyer, in an amount equal to the Overpayment. The dispute resolution provisions provided in this Section 3.1 shall be the exclusive remedies for the matters addressed or that could be addressed therein. For the avoidance of doubt, no claim by Buyeror the Company Group for the payment of any of the fees, costs and expenses of the Firm or any Overpayment shall be asserted against any Seller, any Debtor, or any of their Affiliate, absent Fraud or manifest error. Except in cases of Fraud and manifest error, Buyer’s sole recourse for any Overpayment shall be the amount contained in the Adjustment Escrow and in no event shall Buyer be entitled to any payment greater than the Adjustment Escrow Amount (even in the event that the amount of the Overpayment is greater than the Adjustment Escrow Amount). In the event of Fraud or manifest error, Buyer shall be entitled to recovery of any amounts above the Adjusted Escrow Amount as necessary to recover any Overpayment.

(i) In the event that (i) there are no payments required to be made to Buyerfrom the Adjustment Escrow Account pursuant to this Section 3.1, then the entire Adjustment EscrowAmount shall be promptly released and distributed to the Sellers or their designee(s), and (ii) the payments required to be made to the Buyer from the Adjustment Escrow Account are less than the Adjustment EscrowAmount, then the Adjustment Escrow Amount, less the amount required to be paid to the Buyer from the Adjustment Escrow Account pursuant to the terms hereof, shall be promptly released and distributed to the Sellers or their designee(s), in each case, by wire transfer of immediately available funds to an account or accounts as may be specified by Sellers or Sellers’ Representative.

(j) All payments required pursuant to Sections 3.1(e), 3.1(g), 3.1(h), and 3.1(i), shall be deemed for Tax purposes to be adjustments to the aggregate purchase price paid by Buyer for the Acquired Interests and Specified Assets.

ARTICLE 4

CLOSING AND DELIVERIES

4.1 Closing Date.

Upon the terms and subject to the conditions hereof, the closing of the sale of the Acquired Interests (the “Closing”) shall take place at the offices of Akin Gump Strauss Hauer & Feld LLP, 2001 K Street N.W., Washington, DC 20006, or via overnight courier, facsimile or portable document format (.pdf)


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as agreed by the parties hereto, no later than three (3) Business Days following the date on which all the conditions set forth in ARTICLE 10 and ARTICLE 11 have been satisfied or (if permissible) waived by the Party entitled to waive such condition (other than the conditions which by their nature are to be satisfied at the Closing, but subject to the satisfaction or (if permissible) waiver of such conditions at the Closing), or on such other date and time as Sellers and Buyer may mutually agree in writing. The date and time at which the Closing actually occurs is hereinafter referred to as the “Closing Date.” Upon consummation of the Closing, the purchase and sale of the Acquired Interests hereunder and the Closing, shall be each deemed to have occurred as of 12:01 a.m. (New York time) on the Closing Date.

4.2 Buyer’s Deliveries.

At the Closing, Buyer shall deliver, or cause to be delivered, to Sellers’ Representative:

(a) the Estimated Aggregate Closing Consideration in cash by wire transfer of immediately available funds to the accounts specified by Sellers to Buyer at least three (3) days prior to the anticipated Closing Date, as follows:

(i) an amount equal to the Adjustment Escrow Amount into the Adjustment Escrow solely for the purpose of paying any amounts payable by the Sellers pursuant to Section 3.1;

(ii) an amount equal to the Indemnification Escrow Amount into the Indemnification Escrow solely for the purpose of paying any amounts payable pursuant to Section 8.1; and

(iii) an amount equal to the Closing Date Cash Purchase Price to the Sellers.

(b) counterpart of share transfer forms related to the equity interests of EA International Middle East and EA Middle East executed by the Buyer;

(c) each other Transaction Documents to which Buyer is a party, duly executed by Buyer;

(d) the certificates of Buyer to be received by Sellers pursuant to Sections 11.1and 11.2; and

(e) such other documents as Sellers may reasonably request that are customary for a transaction of this nature and necessary to evidence or consummate the transactions contemplated by this Agreement.

4.3 Sellers’ Deliveries.

At the Closing, Sellers shall deliver, or cause to be delivered, to Buyer:

(a) possession of the Acquired Interests;

(b) the Transaction Documents to which any Seller is a party, duly executed by the applicable Sellers;

(c) board resolutions of EA International Middle East authorizing the transfer of its portion of the Acquired Interests to the Buyer and appointing new directors;

(d) board resolutions of EA Middle East appointing new directors;


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(e) counterpart of share transfer forms related to the equity interests of EA International Middle East and EA Middle East executed by, as applicable, the Sellers and EA International Middle East;

(f) a deed, executed by a Dutch notary, transferring the shares in Energy Alloys International Holdings B.V. to Buyer;

(g) a certified copy of the Sale Order;

(h) the certificates of Sellers to be received by Buyer pursuant to Sections 10.1and 10.2;

(i) executed copies of the Payoff Letters;

(j) certificates evidencing all of the Acquired Interests, to the extent the Acquired Interests are certificated, each duly endorsed (or accompanied by duly executed stock powers or analogous documentation required by Legal Requirement) by Sellers for transfer to Buyer;

(k) letters of resignation of the directors and officers set forth on Schedule 4.3(k) of each member of the Company Group, dated as of the Closing (or written commitments from such individuals to resign when and as requested by Buyer following the Closing); and

(l) executed copies of the Consent Letters.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF SELLERS

Sellers hereby, jointly and severally, represent and warrant to Buyer as follows, except as set forth in the corresponding numbered section of the Disclosure Schedules attached hereto:

5.1 Organization and Good Standing.

Each Seller is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.

5.2 Authority; Validity; Consents.

Each Seller has, subject to entry of the Sale Order, the requisite power and authority necessary to enter into and perform its obligations under this Agreement and the other Transaction Documents to which such Seller is a party and to consummate the transactions contemplated hereby and thereby, and, subject to entry of the Sale Order, the execution, delivery and performance of this Agreement and such other Transaction Documents by such Seller and the consummation by such Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite action. This Agreement has been duly and validly executed and delivered by each Seller, and each other Transaction Document required to be executed and delivered by a Seller at the Closing will be duly and validly executed and delivered by such Seller at the Closing. Subject to entry of the Sale Order, this Agreement and the other Transaction Documents constitute, with respect to each Seller that is party thereto, the legal, valid and binding obligations of such Seller, enforceable against such Seller in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally


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or general principles of equity. Subject to entry of the Sale Order, except, in each case, (a) for notices, filings and consents required in connection with the Bankruptcy Case and (b) for the notices, filings and consents set forth on Schedule 5.2, Sellers are not required to give any notice to, make any registration, declaration or filing with or obtain any consent, waiver or approval from, any Person (including any Governmental Authority) in connection with the execution and delivery of this Agreement and the other Transaction Documents or the consummation or performance of any of the transactions contemplated hereby and thereby.

5.3 No Conflict.

Except as set forth in Schedule 5.3, neither the execution and delivery by any Seller of this Agreement or any other Transaction Document to which it is (or will be) a party nor after giving effect to the Sale Order, the consummation of the transactions contemplated hereby or thereby nor, after giving effect to the Sale Order, compliance by it with any of the provisions hereof or thereof will (a) conflict with or result in a violation or breach of (i) any provision of the certificate of incorporation or bylaws (or other organizational or governing documents) of such Seller or (ii) any material Legal Requirement binding uponsuch Seller, (b) violate, conflict with, or result in a breach of any of the terms of, or constitute a default under, or give rise to any right of termination, modification, cancellation or acceleration under (with or without the giving of notice, the lapse of time or both) any Contract to which such Seller is subject, or (c) result in the creation of any Encumbrance upon the Acquired Interests, and, in in the case of clause (b)above, would not, individually or in the aggregate, have a Material Adverse Effect.

5.4 Title to Acquired Interests.

Immediately prior to the Closing, Sellers will have, and, upon delivery to Buyer or the applicable Buyer Designee at Closing of the instruments of transfer contemplated by Section 4.3, and subject to the Sale Order, Sellers will thereby transfer to Buyer or the applicable Buyer Designee, and Buyer or the applicable Buyer Designee will be vested, to the maximum extent permitted by, inter alia,Section 363 of the Bankruptcy Code, with good, valid and marketable title to all of the Acquired Interests, free and clear of any and all Encumbrances at the Closing.

5.5 Organization, Standing, Qualification and Power.

Each member of the Company Group is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has all requisite power and authority: (i) to own, lease, use and operate its properties and assets in the manner in which its properties and assets are presently owned, leased, used and operated and (ii) to carry on its business as presently conducted,except as would not, individually or in the aggregate, be expected to have a Material Adverse Effect. Each member of the Company Group is duly qualified and in good standing to do business in each of the jurisdictions in which such qualification is necessary because of the nature of the Business, except where the failure to be so qualified would not, individually or in the aggregate, have a Material Adverse Effect on the Company Group.

5.6 Authority; Execution and Delivery; Enforceability.

Each member of the Company Group has all necessary power and authority to execute anyTransaction Documents to which it is, or is specified to be, a party, to consummate the transactions contemplated thereby, and to perform its obligations thereunder. The execution and delivery by each member of the Company Group of the Transaction Documents to which it is, or is specified to be, a party and the consummation by such member of the transactions contemplated thereby will be duly authorized by all necessary organizational action on the part of such member prior to the Closing. Each TransactionDocument to which it is, or is specified to be, a party will at the Closing constitute, in each case, assuming


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the due execution and delivery of such Transaction Documents by the other parties hereto and thereto, a legal, valid and binding obligation of each member of the Company Group enforceable against such member of the Company Group in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or other similar laws affecting the enforcement of creditors’ rights generally and general equitable principles.

5.7 No Conflicts; Consents.

(a) Except as set forth in Schedule 5.7(a), the execution and delivery by each member of the Company Group of each Transaction Document to which it is, or is specified to be, a party will not, and the consummation of the transactions contemplated thereby and compliance by the Company Group with the terms thereof will not directly or indirectly (with or without notice or lapse of time or both) contravene, conflict with, or result in any violation of or breach or default under, or give rise to a right of termination, cancellation or acceleration of any obligation or a loss of a benefit under, any provision of:(i) the certificate of incorporation, certificate of formation, limited liability company agreement, by-laws or similar organizational documents of any member of the Company Group (the “Company Group Constituent Documents”); (ii) any Material Contract of the Company Group; (iii) any Order or Law applicable to any member of the Company Group or its respective properties or assets; or (iv) any material Permit that is held by any member of the Company Group, other than, in the case of clauses (ii), (iii) and (iv), any such contraventions, conflicts, violations, breaches, or defaults that would not prevent any member of the Company Group from the conduct and operation of its business in the Ordinary Course of Business.

(b) Except as set forth in Schedule 5.7(b), no mandatory Permit, registration, declaration or filing with, notice to, or consent of any Governmental Entity is required to be obtained or made by any member of the Company Group in connection with the execution, delivery and performance by the Company Group of any Transaction Document to which it is, or is specified to be, a party, or any of the transactions contemplated thereby, which has not been made or obtained, except as would not, individually or in the aggregate, have a Material Adverse Effect.

5.8 Capitalization; Subsidiaries.

(a) All of the outstanding equity interests in each member of the Company Group (the “Company Group Membership Interests”) are held of record in accordance with Schedule 5.8(a). The Company Group Membership Interests have been duly authorized and are validly issued, fully-paid and non-assessable as required under applicable Legal Requirements.

(b) Except for the Company Group Membership Interests, no member of the Company Group has any other equity securities, or securities containing any equity features, authorized, issued or outstanding.

(c) Except as set forth on Schedule 5.8(c), there are no (i) outstanding options, warrants, rights, calls, agreements or other commitments or rights issued by any member of the CompanyGroup or to which any member of the Company Group is a party to purchase or acquire any unissued membership interests or other securities from any member of the Company Group, and no other equity interests of any member of the Company Group are reserved for any purpose; (ii) Contracts to which any member of the Company Group is a party that relate to its securities; (iii) outstanding equity appreciation, phantom equity, profit participation or similar rights with respect to any member of the Company Group;(iv) outstanding bonds, debentures, notes or other Indebtedness of any member of the Company Grouphaving the right to vote (or, convertible into, or exchangeable for, securities having the right to vote) on any matters on which the Sellers (or other direct or indirect equity holders of any member of the Company Group) may vote; and (v) voting trusts, irrevocable proxies or other Contracts or understandings to which


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any member of the Company Group is a party or is bound with respect to the voting or consent of any Company Group Membership Interests or the other equity interests of any member of the Company Group.

(d) No member of the Company Group (i) owns, directly or indirectly, any capital stock, membership interest, partnership interest, joint venture interest or other equity interest in any Person other than as set forth on Schedule 5.8(a); (ii) has any direct or indirect interest in, or is under any current or prospective obligation to receive an interest in, any shares or other equity or ownership interest in any other Person; or (iii) is a member of or participant in any partnership, joint venture or similar entity.

5.9 Financial Statements.

Schedule 5.9 consists of: (a) the Company Group’s unaudited consolidated balance sheet as of August 31, 2020 (the “Latest Balance Sheet”), and the related unaudited statement of income for the eight (8) month period then ended (collectively with the Latest Balance Sheet, the “Interim Financial Statements”), and (b) the Company Group’s unaudited consolidated balance sheet and related unaudited statement of income for the fiscal year ended December 31, 2019 (the “Annual Financial Statements”)(the statements described in clauses (a) and (b) of this Section 5.9, collectively, the “Financial Statements”). The Financial Statements have been prepared from the books and records of the Company Group in accordance with the Accounting Procedures (except as indicated in the notes to the Financial Statements). The Financial Statements present fairly, in all material respects, the consolidated financial position and results of operations of the Company Group, as of the times and for the periods referred to therein, in conformity with the Accounting Procedures, subject to (i) the absence of footnote disclosures and other presentation items, and (ii) changes resulting from normal year-end adjustments.

5.10 Absence of Certain Developments.

(a) Since the date of the Latest Balance Sheet, there has not occurred:

(i) any event, occurrence or change that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(ii) any amendment of the organizational documents of any member of the Company Group;

(iii) any split, combination or reclassification of the membership interests in the Company Group;

(iv) an issuance, sale or other disposition of, or creation of any Encumbrance on, any membership interests in any member of the Company Group, or grant of any options, warrants orother rights to purchase or obtain (including upon conversion, exchange or exercise) any membership interests in any member of the Company Group, excluding any Encumbrances released pursuant to the Sale Order:

(v) declaration or payment of any distributions on or in respect of any membership interests of any member of the Company Group or redemption, purchase or acquisition of any member of the Company Group's outstanding membership interests;

(vi) material change in any method of accounting or accounting practice of the Company Group, except as disclosed in the notes to the Financial Statements;


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(vii) incurrence, assumption or guarantee of any indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;

(viii) transfer, assignment, sale or other disposition of any of the assets shown or reflected in the Latest Balance Sheet or cancellation of any debts or entitlements reflected on the Latest Balance Sheet;

(ix) acceleration, termination, material modification to or cancellation of any Material Contract to which the Company Group is a party or by which it is bound;

(x) entry into any Contract that would constitute a Material Contract;

(xi) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets, stock or other equity of, or by any other manner, any business or any Person or any division thereof;

(xii) action by the Company Group to make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period; or

(xiii) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.

(b) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.10, since the date of the Latest Balance Sheet, no member of the Company Group has: (a) sold, assigned or transferred any material portion of its assets or properties, except in the ordinary course of business; (b) made any equity investment in, or any loan to, any other Person (other than another member of the Company Group); (c) made commitments for capital expenditures in excess of $250,000, in the aggregate,that cannot be unilaterally terminated by the Company Group without Liability to the Company Group; or (d) committed in writing to do any of the foregoing.

5.11 Title to Assets; Sufficiency of Assets.

The Company Group either (a) has good and valid title to or (b) has valid leases, licenses or rights to use, in each case, each Asset free and clear of any and all Encumbrances, other than the Permitted Encumbrances. Other than as set forth on Schedule 5.11, the Assets and the Specified Assets comprise all material assets that are primarily used in or held for use in the Business. All items of tangible personal property included in the Assets are in a state of reasonably good condition and state of maintenance and repair, in each case, subject to ordinary wear and tear.

5.12 Property.

(a) Owned Real Property. Except for Permitted Encumbrances and as set forth on Schedule 5.12(a)(i), the applicable member of the Company Group has fee simple title in the Owned Real Property set forth on Schedule 5.12(a). Except for the Permitted Encumbrances and except as set forth on Schedule 5.12(a)(ii), none of the Owned Real Property is subject to any material lease or grant to any Person of any right to the use, purchase or occupancy of such Owned Real Property or any portion thereof. Except for Permitted Encumbrances, the Owned Real Property is not subject to any Encumbrances or to any use restrictions, exceptions, reservations or limitations, which in any material respect interfere with or impair the present and continued use thereof in the Ordinary Course of Business.


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(b) Leased Real Property.

Schedule 5.12(b) contains a list of all Leased Real Property held, occupied, or used for the operation of the Business. Prior to the date hereof, Buyer has either been supplied with, or has been given access to, true, correct and complete copies of each Lease and any amendments, modifications, renewals, guaranties and other Contracts thereto relating to such Leased Real Property. None of the Leased Real Property is subject to any sublease or grant to any Person of any right to the use or occupancy of the LeasedReal Property or any portion thereof. The applicable member of the Company Group has a valid leasehold interest in each Leased Real Property that is not subject to any Encumbrances (other than Permitted Encumbrances). Each Lease is in full force and effect and is enforceable against the applicable member of the Company Group party thereto, and to Sellers’ Knowledge, the other parties thereto, except, in each case, as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally or general principles of equity or asotherwise required by the Bankruptcy Court (including any limitations on operations imposed by the Bankruptcy Court or the Bankruptcy Code). No member of the Company Group nor, to Sellers’ Knowledge, any other party to any Lease is in breach thereof or default thereunder, and to Seller’s Knowledge there does not currently exist any conditions or circumstances that, upon the passage of time or the giving of notice or both, would constitute such a default, except, in each case, for such breaches and defaults which would not, individually or in the aggregate, reasonably be expected to materially and adversely affect the current use or occupancy of the applicable Leased Real Property.

5.13 Environmental Matters.

Notwithstanding anything to the contrary in this Agreement, the representations and warranties contained in this Section 5.13 are the sole and exclusive representations and warranties of the Sellers pertaining or relating to any environmental matters, including any arising from or relating to any Environmental Law, except as would not, individually or in the aggregate, have a Material Adverse Effect or as set forth on Schedule 5.13,

(a) the operation of the Business, and use of the Real Properties related thereto, have materially complied during the previous three (3) years and are in material compliance with all applicable Environmental Laws;

(b) no member of the Company Group is aware of the existence of, or hasreceived, any written notice alleging any material violation, non-compliance, liability or potential liability regarding Environmental Laws with regard to any of the Real Properties or the Business;

(c) to Sellers’ Knowledge, no properties or facilities currently owned or operated by any member of the Company Group related to the Business contain any Hazardous Substances in amounts or concentrations which constitute a material violation of any Environmental Law or which would reasonably be expected to give rise to any material Liability under any applicable Environmental Law;

(d) no material Action is pending or, to Sellers’ Knowledge, threatened, under any Environmental Law against member of the Company Group with respect to the Real Properties or the Business, nor are there any Orders outstanding under any Environmental Law with respect to the Leased Real Properties or the Business;

(e) (i) all Permits required under Environmental Laws for the operation of the Business have been obtained and (ii) none of the members of the Company Group have received any notice,


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written or otherwise, that the Permits required under Environmental Law will be cancelled, suspended, modified, or not renewed;

(f) there has not been any offsite disposal of any Hazardous Substances by any member of the Company Group in connection with the Business contrary to any applicableEnvironmental Law;

(g) the Company Group has not retained or assumed, by contract or operation of Law, any liabilities or obligations of third parties under Environmental Law; and

(h) the Company Group has provided or otherwise made available to Buyerand listed in Schedule 5.13(h): (i) any and all environmental reports, studies, audits, records, sampling data, site assessments, risk assessments, economic models and other similar documents with respect to the Assets, including the Leased Real Property, in each case, which are in the possession or control of the Company Group related to compliance with Environmental Laws; and (ii) any and all material documents concerning planned or anticipated capital expenditures required to reduce, offset, limit or otherwise control pollution and/or emissions, manage waste or otherwise ensure compliance with current or future Environmental Laws (including, without limitation, costs of remediation, pollution control equipment and operational changes).

5.14 Taxes.

Except as would not, individually or in the aggregate, have a Material Adverse Effect or asset forth on Schedule 5.14,

(a) Each member of the Company Group has timely filed all income or other material Tax Returns required to be filed with the appropriate Governmental Authorities (taking into account any extension of time to file granted to such member of the Company Group), and all such Tax Returns are true, correct and complete in all material regards. All income and other material Taxes due and payable, whether or not shown to be payable on such Tax Returns, have been timely paid. No member of the Company Group is the beneficiary of any extension of time within which to file any Tax Return. No claim has been made in writing within the last three (3) taxable years by a Governmental Authority in a jurisdiction where any member of the Company Group does not file Tax Returns that such member of the Company Group is or may be subject to taxation by that jurisdiction. There are no Encumbrances on any of the assets of any member of the Company Group that arose in connection with any failure (or alleged failure) to pay any Tax, other than Permitted Encumbrances.

(b) No examination or audit of any income or other material Tax Return ofany member of the Company Group is currently in progress by any Governmental Authority and no member of the Company Group has received notice of any threatened or contemplated audit or examination of any such Tax Return. No adjustment has been proposed in writing with respect to any income or other material Tax Return of any member of the Company Group for the last three (3) taxable years by any Governmental Authority.

5.15 Legal Proceedings.

Except for the Bankruptcy Case, there is no Action or Order that, individually or in the aggregate, imposes, or is reasonably likely to impose, a potential liability on any member of the Company Group in an amount greater than ten thousand dollars ($10,000.00) that is pending or, to the Knowledge of Seller, threatened, against or related to the Business, whether at law or in equity, whether civil or criminalin nature or by or before any arbitrator or Governmental Authority, nor, to Sellers’ Knowledge, are there


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any investigations relating to the Business pending or threatened by or before any arbitrator or any Governmental Authority that, individually or in the aggregate, is reasonably likely to impose a potential liability on any member of the Company Group in an amount greater than ten thousand dollars ($10,000.00).There are no Actions or legal proceedings pending as of the date of this Agreement in which any member of the Company Group thereof is the claimant or plaintiff relating to or affecting any of the Acquired Interests, the Specified Assets, the Business or the transactions contemplated hereby.

5.16 Compliance with Legal Requirements; Permits.

(a) The members of the Company Group hold all of the material Permitsnecessary for the Sellers’ operation and conduct of the Business in the Ordinary Course of Business and ownership of the Acquired Interests. The material Permits of the Company Group are set forth on Schedule5.16(a).

(b) Except as set forth on Schedule 5.16(b)(i), during the previous three (3)years the Business has been operated, in all material respects, in accordance with all applicable Legal Requirements, Orders and Permits. Except as set forth on Schedule 5.16(b)(ii), neither the Sellers nor any member of the Company Group have during the previous three (3) years received any written notice or other communication from a Governmental Authority that alleges that the Business is not in materialcompliance with any Legal Requirement, Order or Permit applicable to the Business or the operations or properties of the Business or that states the intention on the part of any issuing authority to cancel, suspend or modify any Permit necessary for the current operation and conduct of the Business..

(c) Except as forth on Schedule 5.2, Schedule 5.3, or Schedule 5.16(c) and subject to entry of the Sale Order, each Permit set forth on Schedule 5.16 may be transferred or reissued to Buyer in accordance with this Agreement and without the approval of any Person (other than the Bankruptcy Court).

5.17 Labor Matters.

(a) None of the members of the Company Group are or ever have been party to or subject to any collective bargaining agreements, works council agreements, labor union contracts, trade union agreements, or other similar agreements (each, a “Collective Bargaining Agreement”) with any union, works council, or labor organization (each, a “Union”).

(b) Except as set forth on Schedule 5.17(b), to Sellers’ Knowledge, (i) at no time in the past three (3) years has any Union or group of Employees or former Employees organized any employees of the Business for purposes of collective bargaining, sought to bargain collectively with any member of the Company Group thereof, made a demand for recognition or certification as an employee representative for purposes of collective bargaining or filed a petition for recognition with any Governmental Authority; (ii) no Collective Bargaining Agreement is being negotiated by any member of the Company Group thereof with respect to the Employees; and (iii) at no time in the past three (3) years, has there been any, and, to Sellers’ Knowledge, there are no currently threatened, strikes, lockouts, slowdowns, work stoppages, boycotts, handbilling, picketing, walkouts, demonstrations, leafleting, sit-ins, sick-outs, or other material forms of organized labor disruption with respect to the Company Group.

(c) Within the past three (3) years, each member of the Company Group hasbeen in compliance in all material respects with all applicable Legal Requirements relating to labor and employment, including all applicable Legal Requirements relating to employment practices; the hiring, promotion, assignment, and termination of employees; discrimination; retaliation; equal employment opportunities; reasonable accommodation; disability; labor relations; wages and hours; classification of


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independent contractors, hours of work; payment of wages; immigration; workers’ compensation; employee benefits; background and credit checks; working conditions; occupational safety and health; family and medical leave; employee terminations; the payment of Taxes; and data privacy and data protection.

(d) Throughout the past three (3) years, each member of the Company Group has complied in all material respects with any applicable Legal Requirement regarding the termination or layoff of employees. Schedule 5.17(d) sets forth a true and complete list of all employees who primarily provided services to the Business and whose employment has been terminated by the Company Group, by date and work location, in the six (6)-month period ending on the Execution Date.

(e) Schedule 5.17(e)(i) sets forth a list of all pending or, to the Knowledge of Sellers, threatened, labor-related claims against any member of the Company Group with respect to the Business brought by or on behalf of any current or former director, officer, employee or independent contractor of any member of the Company Group by any Governmental Authority (a “Labor Claim”).Schedule 5.17(e)(ii) sets forth a list of all Labor Claims relating to wage-and-hour matters or with respect to which class certification was sought or obtained pending at any time in the preceding five (5) years (even if now resolved).

(f) Schedule 5.17(f) sets forth a true, complete, and accurate list of the title,current compensation rate (including base salary or wage rate), and region of employment of all Employees.

(g) Except as set forth on Schedule 5.17(g), within the past three (3) years, (i) none of the members of the Company Group have entered into a settlement agreement with any Employee resolving allegations of sexual harassment by either an officer or an employee of any Seller or Affiliate thereof, and (ii) there have not been any Actions pending or, to Sellers’ Knowledge, threatened, against or related to the Business, in each case, involving allegations of sexual harassment by any employee of the Company Group in a managerial or executive position.

5.18 Employee Benefits.

(a) Except as set forth in Schedule 5.18(a), no member of the Company Group sponsors, maintains or contributes to, or have any obligation to maintain or contribute to, any material plan, program, arrangement or agreement that is a pension, profit-sharing, savings, retirement, employment, consulting, severance pay, termination, executive compensation, incentive compensation, deferred compensation, bonus, stock purchase, stock option, phantom stock or other equity-based compensation, employment, consulting, change in control, retention, salary continuation, vacation, sick leave, disability, death benefit, group insurance, hospitalization, medical, dental, life, “cafeteria” or “flexible” benefit, employee loan, educational assistance or fringe benefit plan, program, arrangement or agreement, whether written or oral, under which any current officer, director, employee, leased employee, consultant or agent (or their respective beneficiaries) in respect of the Business has any present or future right to benefits (each,a “Benefit Plan”).

(b) No member of the Company Group maintains, contributes to, or has any material obligation to maintain or contribute to, or has any material direct or indirect Liability, whether contingent or otherwise, with respect to, and within the last six (6) years, have not maintained, contributed to or had any direct or indirect Liability, whether contingent or otherwise, with respect to any Benefit Plan.

(c) (i) Each Benefit Plan has been established and administered in all material respects in accordance with its terms and in compliance with all applicable Legal Requirements; (ii) with respect to each Benefit Plan, all reports, returns, notices and other documentation that are required to have


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been filed with or furnished to any Governmental Authority, or to the participants or beneficiaries of such Benefit Plan, have been filed or furnished on a timely basis; (iii) other than routine claims for benefits, no liens, lawsuits or complaints to or by any person or Governmental Authority have been filed against any Benefit Plan or any member of the Company Group, to the Sellers’ Knowledge, against any other person or party and, to the Sellers’ Knowledge, no such liens, lawsuits or complaints are contemplated or threatened with respect to any Benefit Plan; and (iv) no individual who has performed services for anymember of the Company Group has been improperly excluded from participation in any Benefit Plan.

(d) All material contributions (including all employer contributions and employee salary reduction contributions) or premium payments required to have been made under the terms of any Benefit Plan, or in accordance with Legal Requirements, as of the Execution Date have been timely made or reflected on the Financial Statements.

(e) Except as set forth on Schedule 5.18(e), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event): (i) result in any payment becoming due, or increase the amount of any compensation due, to any current or former officer, director, employee, leased employee, consultant or agent (or their respective beneficiaries) in respect of the Business; (ii) increase any benefits otherwise payable under any Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits under any Benefit Plan; or (iv) result in any breach or violation of, or default under (with or without notice or lapse of time, or both) or limit the Company Group’s ability to amend, modify or terminate, any Benefit Plan, in each case, with respect to any Employee.

(f) With respect to each Benefit Plan, a true, correct and complete copy (or, to the extent no such copy exists or the Benefit Plan is not in writing, an accurate written description) thereofhas been made available to Buyer and, to the extent applicable, (i) all material documents constituting such Benefit Plan, (ii) any related trust agreements and all other material contracts currently in effect with respect to such Benefit Plan, (iii) any material correspondence with any Governmental Authority in relation thereto,and (iv) any other documents reasonably requested by Buyer.

5.19 Sellers’ Intellectual Property.

(a) Schedule 5.19(a) sets forth a true and complete list of all U.S. and foreign (i) issued Patents and pending applications for Patents; (ii) registered Trademarks and pending applications for Trademarks; (iii) registered Copyrights and pending applications for Copyrights and (iv) domain name registrations, in each case, which are primarily used or held by the Company Group for use in the conduct of the Business and owned by any member of the Company Group as of the Execution Date, specifying as to each, as applicable: the title, mark, or design; the record owner and inventor(s), if any; the jurisdiction by or in which it has been issued, registered, or filed; the patent, registration, or application serial number; the issue, registration, or filing date; and the current status. Members of the Company Group have the valid and enforceable right to use all Patents, Trademarks and Copyrights set forth on Schedule 5.19(a) in the conduct of the Business. Except as set forth on Schedule 5.19(a), members of the Company Group the sole owners of all of the applications and registrations set forth on Schedule 5.19(a), free and clear of all liens except for Permitted Encumbrances, and all such applications and registrations are in effect and subsisting.

(b) Except as disclosed on Schedule 5.19(b), to Seller’s Knowledge, (i) the conduct of the Business as currently conducted (including the products and services currently sold or provided by Sellers) does not infringe or otherwise violate in any material respects any Person’s intellectual property rights, and no such claims are pending or threatened in writing against any Member of the Company Group related to the Business and (ii) no Person is infringing or otherwise violating any


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Intellectual Property owned by Sellers, and no such claims are pending or threatened in writing against any Person by any member of the Company Group.

(c) All of the Company Group’s material Intellectual Property rights are valid and enforceable, and all registrations are subsisting and in full force and effect. The Company Group has taken all reasonable and necessary steps to maintain and enforce its material Intellectual Property and to preserve the confidentiality of all Trade Secrets included in the Intellectual Property.

5.20 Contracts.

(a) Each Material Contract is set forth on Schedule 5.20(a)(i). Each Material Contract is in full force and effect and is a legal, valid, binding and enforceable obligation of the member(s) of the Company Group party thereto in accordance with its terms and conditions, in each case, except (i) assuch enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally or general principles of equity and (ii) as set forth on Schedule 5.20(a)(ii).

(b) Subject to entry of the Sale Order and except as set forth on Schedule 5.20(b), (i) no member of the Company Group will be in material breach or default of its obligations under any Material Contract, and (ii) to Sellers’ Knowledge, no other party to any Material Contract is in material breach or default thereunder and no event has occurred, and no circumstance or condition exists, that (with or without notice, lapse of time or both) would reasonably be expected to result in such breach or default.Each Material Contract will continue to be legal, valid, binding and enforceable and in full force and effect on the same terms as immediately following the consummation of the transaction contemplated hereby, in each case, except (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally or general principles of equity, and (b) as set forth on Schedule 5.20(b).

5.21 Insurance.

The Company Group maintains the insurance policies set forth on Schedule 5.21, which Schedule sets forth all insurance policies in respect of the assets, Employees and operations of the Business (including policies providing property, casualty, liability and workers’ compensation coverage). With respect to each insurance policy listed on Schedule 5.21, (a) all such policies are in full force and effect, (b) all premiums on such policies that were due and payable prior to the Closing Date have been paid in full,(c) to Sellers’ Knowledge, neither Sellers nor their Affiliates have done anything by way of action or inaction that invalidates any such policies in whole or in part, (d) neither the Seller nor any of their Affiliates has received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such insurance policies; all such insurance policies (x) are valid and binding in accordance with their terms; (y) are provided by carriers who are financially solvent; and (z) have not been subject to any lapse in coverage; (e) there are no claims related to the business of the Company Group pending under any such insurance policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights; (f) none of Sellers or their Affiliates (including the Company Group) are in default under, or have otherwise failed to comply with, in any material respect, any provision contained in any such insurance policy; and (g) the insurance policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Company Group and are sufficient for compliance with all applicable Legal Requirements and Contracts to which the Company Group is a party or by which it is bound.


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5.22 Brokers or Finders.

Neither Sellers, their Affiliates, nor any Person acting on their behalf, has paid or become obligated to pay any fee or commission to any broker, finder, investment banker, agent or intermediary for or on account of the transactions contemplated by this Agreement or any other Transaction Document for which Buyer is or will become liable.

5.23 Undue Influence.

No member of the Company Group or, to the Knowledge of Sellers, any person or other entity acting on behalf of any member of the Company Group has, directly or indirectly, with respect to the Business: (a) made any contributions, payments or gifts of its property to or for the private use of any governmental official, employee or agent where either the payment or the purpose of such contribution, payment or gift is illegal under the laws of the United States, any state thereof or any other jurisdiction (foreign or domestic); (b) either established or maintained any unrecorded fund or asset for any purpose, or made any intentionally false or artificial entries on its books or records for any reason; (c) made any payments to any Person with the intention or understanding that any part of such payment was to be used for any purpose other than that described in the documents supporting the payment; (d) either made any contribution, or reimbursed any political gift or contribution made by any other Person, to candidates for public office, whether federal, state or local, where such contribution or reimbursement would be in violation of any Legal Requirement in any material respect; (e) made or received any payment which was not legal in any material respect to make or receive; (f) engaged in any material transaction or made or received any material payment which was not properly recorded on the books and records of such Person;(g) created or used any “off-book” bank or cash account or “slush fund;” or (h) engaged in any conduct constituting a violation in any material respect of the Foreign Corrupt Practices Act of 1977.

5.24 Suppliers and Customers. Schedule 5.24(a) sets forth a list of the ten (10) largest suppliers (the “Material Suppliers”) of the Business for (i) the year ended December 31, 2019 and (ii) theeight (8) month period ending August 31, 2020, together with, in each case, the amount of purchases from such supplier in the applicable period. No Seller has received any notice that any of its Material Suppliers has ceased, or intends to cease, to supply goods or services to the Company Group or to otherwise terminate or materially reduce its relationship with the Business.

(b) Schedule 5.24(b) sets forth a list of the ten (10) largest customers (the “Material Customers”) of the Business for (i) the year ended December 31, 2019 and (ii) the eight (8) month period ending August 31, 2020, together with, in each case, the amount of sales to the Material Customers in the applicable period. No Seller has received any notice that any Material Customers intends to materially alter its relationship with the Business.

5.25 Banks; Credit Support.

(a) Schedule 5.25(a)(i) contains a list of the names and locations of all banks in which any member of the Company Group has accounts or safe deposit boxes and the names of all Persons authorized to draw thereon or to have access thereto. Except as set forth on Schedule 5.25(a)(ii),no Person holds a power of attorney to act on behalf of any member of the Company Group.

(b) Schedule 5.25(b) sets forth all Contracts for which the Sellers or their Affiliates has, or is required to provide, performance, surety or similar bonds, letters of credit or similar third-party assurances or credit support in connection with the Business, and the amount of such bonds, letters of credit or assurances or credit support and the issuer thereof.


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5.26 Books and Records.

The minute books of the Company Group are complete and correct, and have been maintained, in accordance with sound business practices. The minute books of the Company Group contain accurate and complete records of all meetings, and actions taken by written consent of, the members and the managers, and no meeting, or action taken by written consent, of any such members or managers has been held for which minutes have not been prepared and are not contained in such minute books. At the Closing, all of those books and records will be in the possession of the Company Group.

5.27 No Additional Representations.

The representations and warranties made by Sellers in this Article V are the exclusive representations and warranties made by Sellers with respect to Sellers, the Company Group, the Assets, the Business, or the transactions contemplated by this Agreement. Sellers hereby disclaim any other express or implied representations or warranties with respect to Sellers, the Company Group, the Assets, the Business, or the transactions contemplated by this Agreement.

ARTICLE 6

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Sellers as follows:

6.1 Organization and Good Standing.

Buyer is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware.

6.2 Authority; Validity; Consents.

Buyer has, subject to entry of the Sale Order, the requisite power and authority necessary to enter into and perform its obligations under this Agreement and the other Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby, and, subject to entry of the Sale Order, the execution, delivery and performance of this Agreement and such other Transaction Documents by Buyer and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite corporate or limited liability company action. This Agreement has been duly and validly executed and delivered by the Buyer, and each other Transaction Document required to be executed and delivered by the Buyer at the Closing will be duly and validly executed and delivered by Buyer at the Closing. Subject to entry of the Sale Order, this Agreement and the other Transaction Documents constitute, with respect to Buyer, the legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors’ rights generally or general principles of equity. Subject to entry of the Sale Order, except, in each case, (a) for notices, filings and consents required in connection with the Bankruptcy Case and (b) for the notices, filings and consents set forth on Schedule 6.2, Buyer is not required to give any notice to, make any registration, declaration or filing with or obtain any consent, waiver or approval from, any Person (including any Governmental Authority) in connection with the execution and delivery of this Agreement and the other Transaction Documents or the consummation or performance of any of the transactions contemplated hereby and thereby.


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6.3 No Conflict.

Neither the execution and delivery by Buyer of this Agreement or the other Transaction Documents to which it is (or will be) a party nor after giving effect to the Sale Order, the consummation of the transactions contemplated hereby or thereby nor, after giving effect to the Sale Order, compliance by it with any of the provisions hereof or thereof will conflict with or result in a violation or breach of (a) any provision of the certificate of incorporation or bylaws (or other organizational or governing documents) of the Buyer or (b) any Legal Requirement binding upon the Buyer.

6.4 Availability of Funds.

Buyer has access to as of the Execution Date, and shall have access to on the Closing Date, sufficient unrestricted funds or committed lines of credit on hand to pay the Aggregate Closing Consideration, in each case, at the Closing.

6.5 Litigation.

There is no Action or Order pending or, to the knowledge of Buyer, threatened against Buyer, whether at law or equity, whether civil or criminal in nature, or by or before any arbitration or Governmental Authority, that would affect Buyer’s ability to perform its obligations under this Agreement or any other Transaction Documents or to consummate the transactions contemplated hereby or thereby.

6.6 Brokers or Finders.

Neither Buyer nor any Person acting on behalf of Buyer has paid or become obligated to pay any fee or commission to any broker, finder, investment banker, agent or intermediary for or on account of the transactions contemplated by this Agreement or any other Transaction Document for which any Seller or any Affiliate of Seller is or will become liable.

6.7 Qualification.

To Buyer’s knowledge, there exist no facts or circumstances that would cause, or be reasonably expected to cause, Buyer and or its Affiliates not to qualify as “good faith” Buyers under Section 363(m) of the Bankruptcy Code.

6.8 Information

Buyer has conducted such investigations of the Company Group and the Business as it deems necessary and appropriate in connection with the execution and delivery of this Agreement and the other Transaction Documents to which Buyer is a party and the consummation of the transactions contemplated hereby and thereby. Buyer acknowledges that it and its Representatives have been permitted full and complete access to the books and records, facilities, equipment, Tax Returns, Contracts, insurance policies (or summaries thereof) and other properties and assets of Business, that it and its Representatives have desired or requested to see or review, and that it and its Representatives have had a full opportunity to meet with the officers and employees of Sellers to discuss the Business. Neither Sellers nor any other Person (including any officer, director, member or partner of Sellers or any of their Affiliates) shall have or be subject to any liability to Buyer, or any other Person, resulting from Buyer’s use of any information, documents or material made available to Buyer in any “data rooms,” management presentations, due diligence or in any other form in expectation of the transactions contemplated hereby or by the other Transaction Documents.


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ARTICLE 7

ACTIONS PRIOR TO THE CLOSING DATE

7.1 Access and Reports.

(a) Subject to applicable Legal Requirements, during the period from and including the Execution Date through and including the Closing Date or the earlier termination of this Agreement in accordance with the provisions of ARTICLE 12, Sellers shall, and shall cause the Company Group to, (i) afford Buyer and its Representatives access, upon reasonable notice, to the Company Group’s books, Contracts and records during normal business hours to the extent such access does not unreasonably interfere with the Business as may be reasonably requested by Buyer; (ii) furnish or make available to Buyer such financial and operating data and other information relating to the Company Group or the Business as may be reasonably requested; (iii) permit Buyer to make such reasonable inspections and copies as Buyer may require, in each case, during normal business hours to the extent such inspections and making of copies does not unreasonably interfere with the Business; and (iv) instruct the executive officers and senior business managers, employees, counsel, auditors and financing advisors of the Company Group to cooperate with Buyer and its Representatives regarding the same. All requests for information made pursuant to this Section 7.1 shall be directed to Moelis & Company. All such information shall be governed by the terms of the Confidentiality Agreements. No investigation pursuant to this Section 7.1 or by Buyer or its Representatives at any time prior to or following the Execution Date shall affect or be deemed to modify any representation or warranty made by Sellers herein. Notwithstanding anything contained in this Agreement to the contrary, none of Buyer or any Buyer Designees shall have any right to perform or conduct any product testing or any environmental sampling, testing or invasive investigation in, at, on or underneath any of the Company Group’s properties or facilities without the prior written consent of Sellers.

(b) This Section 7.1 shall not require Sellers to permit any access to, or to disclose (i) any information that, in the reasonable, good faith judgment (after consultation with counsel, which may be in-house counsel) of the Sellers or the Company Group, is reasonably likely to result in any violation of any Legal Requirement or cause any privilege (including attorney-client privilege) that Sellersor the Company Group would be entitled to assert to be undermined with respect to such information and such undermining of such privilege could in the Sellers’ or the Company Group’s good faith judgment (after consultation with counsel, which may be in-house counsel) adversely affect in any material respect Sellers’ position in any pending or, what the Sellers believes in good faith (after consultation with counsel, which may be in-house counsel) could be, future litigation or (ii) if the any Seller, on the one hand, and Buyer or any of its Affiliates, on the other hand, are adverse parties in a litigation, any information that is reasonably pertinent thereto; provided, however, that, in the case of clause (i), the Parties shall cooperate in seeking to find a way to allow disclosure of such information to the extent doing so (A) would not (in the good faith belief of the Sellers (after consultation with counsel, which may be in-house counsel)) be reasonably likely to result in the violation of any such Legal Requirement or be reasonably likely to cause such privilege to be undermined with respect to such information or (B) could reasonably (in the good faith belief of the Sellers (after consultation with counsel, which may be in-house counsel)) be managed through the use of customary “clean-room” arrangements pursuant to which non-employee Representatives of Buyer could be provided access to such information.

7.2 Operations Prior to the Closing Date.

Sellers covenant and agree that, except (1) as expressly contemplated by this Agreement, (2) as disclosed in Schedule 7.2, (3) with the prior written consent of Buyer (which consent shall not be unreasonably conditioned, withheld or delayed), (4) as otherwise required by Legal Requirements or the Bankruptcy Court (including any limitations on operations imposed by the Bankruptcy Court or the


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Bankruptcy Code), (5) as occurring as a result of Sellers or the Debtors being in bankruptcy under the Bankruptcy Code, or (6) with respect to any Excluded Assets, after the Execution Date and prior to the Closing Date:

(a) Sellers shall cause the Company Group to:

(i) carry on the Business in the Ordinary Course of Business and use commercially reasonable efforts to maintain, preserve and protect the Assets and the Business as exist on the Execution Date, except for ordinary wear and tear and except for replacements, modifications or maintenance in the Ordinary Course of Business;

(ii) maintain their books, accounts and records in accordance with past custom and practice;

(iii) (A) comply in all material respects with all Legal Requirements applicable to them or having jurisdiction over the Business or the Assets, (B) comply in all material respects with contractual obligations applicable to or binding upon them pursuant to the Material Contracts and (C) maintain in full force and effect all Permits and comply in all material respects with the terms of each such Permit;

(iv) cause any of their current property insurance policies with respect to the Business or any of the Assets not to be canceled or terminated or any of the coverage thereunder to lapse unless simultaneously with such termination, cancellation or lapse, replacement policies providing coverage equal to or greater than the coverage under the canceled, terminated or lapsed policies are in full force and effect; and

(v) use commercially reasonable efforts to maintain, preserve and protect in full force and effect the existence of all material Intellectual Property owned by the Company Group.

(b) Sellers shall cause the Company Group not to:

(i) other than in the Ordinary Course of Business, hire or terminate any employee, individual independent contractor or consultant whose annual rate of base salary or fee is greater than $100,000;

(ii) except as required by Legal Requirement, increased the hourly wages of any Employees in any amount that increased the compensation expense of the Business by more than $100,000 per month in the aggregate;

(iii) take or permit any action that would cause any of the changes, events, or conditions described in Section 5.10; or

(iv) authorize, or commit or agree to take, any of the actions set forth in this Section 7.2(b).

7.3 Cooperation.

(a) Sellers, on the one hand, and Buyer, on the other hand, shall use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other in doing, all things necessary to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby, including taking


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commercially reasonable steps to: (i) cause the conditions precedent set forth in ARTICLE 10 and ARTICLE 11 to be satisfied; (ii) obtain, at the earliest practicable date, all necessary Governmental Authorizations and making all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Authorities and with the registered office of EA International Middle East and EA Middle East in relation to the updating of the Register of Beneficial Owners with respect thereto, if any); (iii) avoid any Action by any Governmental Authority; (iv) defend any Actions challenging this Agreement or the consummation of the transaction contemplated hereby, and (v) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement.

(b) Buyer and Sellers shall take all commercially reasonable actions and do,or cause to be done, all commercially reasonable things necessary under the applicable Legal Requirements with the appropriate Governmental Authorities to put in place, to transfer, to amend, or to acquire, as applicable, all Permits that are necessary for the operation and conduct of the Business by or on the Closing Date, unless the applicable Legal Requirements regarding such a Permit require certain actions to be taken upon or after Closing, and, in that event, Buyer and Sellers shall take all commercially reasonable actions and do, or cause to be done, all commercially reasonable things necessary or desirable under the applicable Legal Requirements with the appropriate Governmental Authorities which can only be taken or done after Closing to put in place, to transfer, to amend, or to acquire such remaining Permits as promptly as reasonably practicable after the Closing.

(c) Sellers, on the one hand, and Buyer, on the other hand, (i) shall to the extent legally permitted promptly inform each other of any communication from any Governmental Authority concerning this Agreement, the transactions contemplated hereby, and any filing, notification or request for approval and (ii) shall permit the other to review in advance any proposed written or material oral communication or information submitted to any such Governmental Authority in response thereto (excluding documents and communications which are subject to preexisting confidentiality agreements or to the attorney-client privilege or work product doctrine). In addition, none of the Parties shall agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry with respect to this Agreement or the transactions contemplated hereby, unless, to the extent legally permitted, such Party consults with the other Parties in advance and, to the extent permitted by any such Governmental Authority, gives the other Parties the opportunity to attend and participate in such meeting,in each case, to the maximum extent practicable. Subject to restrictions under any Legal Requirements, each of Buyer, on the one hand, and Sellers, on the other hand, shall furnish the other with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and the Governmental Authority or members of its staff on the other hand, with respect to this Agreement, the transactions contemplated hereby (excluding documents and communications which are subject to preexisting confidentiality agreements or to the attorney-client privilege or work product doctrine or which refer to valuation of the Business) or any such filing, notification or request for approval. Each Party shall also furnish the other Party with such necessary information and assistance as such other Party and its Affiliates may reasonably request in connection with their preparation of necessary filings, registration or submissions of information to the Governmental Authority in connection with this Agreement, the transactions contemplated hereby and any such filing, notification or request for approval.

7.4 Bankruptcy Court Matters.

(a) Bidding Procedures and Sale Motion. On October 2, 2020, the Debtorsfiled with the Bankruptcy Court a motion Docket No. 79 (the “Bidding Procedures and Sale Motion”) seeking entry of the Bidding Procedures Order and the Sale Order.


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(b) Sale Order. Sellers shall use their reasonable best efforts to obtain the Bankruptcy Court’s entry of the Sale Order in accordance with the Bidding Procedures Order and the Sale Order.

(c) Bankruptcy Filings. From and after the Execution Date and until the Closing Date, Sellers shall consult with Buyer with respect to any and all material pleadings, motions, notices, statements, plans, disclosure statements, schedules, applications, reports and other papers to be filed or submitted in connection with this Agreement, including any Tax motions, in each case, that relate to the Acquired Interests, the Business, Buyer’s obligations hereunder or the consummation or approval of the transactions contemplated by this Agreement and such filings shall, if and when applicable, be consistent with this Agreement and otherwise reasonably acceptable to Buyer solely to the extent they relate to the Acquired Interests, the Business, Buyer’s obligations hereunder or the consummation or approval of the transactions contemplated by this Agreement. Sellers agree to use commercially reasonable efforts to prosecute the entry of the Bidding Procedures Order and the Sale Order. In the event the entry of the Bidding Procedures Order or the Sale Order shall be appealed, Sellers shall use commercially reasonable efforts to defend such appeal. Sellers shall comply with all notice requirements (i) of the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure, (ii) of the Local Rules of Bankruptcy Practice and Procedure for the United States Bankruptcy Court for the District of Delaware, or (iii) required by the Sale Order, in each case, in connection with any pleading, notice or motion to be filed in connection herewith.Buyer shall use its commercially reasonable efforts to cause the Bidding Procedures Order and the Sale Order to be entered and become a Final Order as soon as practicable after entry and to defend any appeal of the Bidding Procedures Order and/or the Sale Order. Notwithstanding the foregoing, nothing in this Agreement precludes the Parties from consummating the transactions contemplated by this Agreement if the Sale Order has been entered and has not been stayed and the Buyer, in its sole discretion, waives in writing the condition set forth in Section 10.6 that the Sale Order be a Final Order.

(d) Bidding Procedures and Sale Order. The Sellers and the Buyer shall comply with all of their respective obligations under the Bidding Procedures Order and Sale Order, in each case, after the entry of such Order by the Bankruptcy Court.

(e) Qualified Bids. Pursuant to the Bidding Procedures Order and except as otherwise provided therein, any and all Qualified Bids shall have been submitted on or prior to the Bid Deadline. If more than one Qualified Bid is submitted prior to the Bid Deadline (or after the Bid Deadline to the extent permitted by the Bidding Procedures Order), Sellers shall have commenced the Auction as promptly as practicable in accordance with the Bidding Procedures, the Bidding Procedures Order, and this Agreement.

7.5 Stalking Horse Bid Protections.

From and after entry of the Bidding Procedures Order, subject to the Bankruptcy Court’s approval, Sellers agree to pay Buyer the Bid Protections in the event this Agreement is terminated if and to the extent provided Section 12.2. The Parties acknowledge and agree that, other than with respect to Section 12.2(b), the terms and conditions set forth in Section 11.2 with respect to the payment of the Bid Protectionsshall become operative only if and to the extent that the Bankruptcy Court enters the Bidding Procedures Order and the Stalking Horse Order.


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7.6 Sellers Update of Disclosure Schedules; Notice of Developments; Buyer Update of Disclosure Schedules.

(a) Seller Supplements. Until the Closing Date, Sellers may from time to time, supplement or amend the Disclosure Schedules with a corresponding reference to be added in this Agreement to disclose any matter hereafter arising or of which Sellers becomes aware of after the Execution Date which, if existing, occurring or known at the Execution Date, would have been required to be set forth or described in the Disclosure Schedules or that is otherwise necessary to correct any information in the Disclosure Schedules that has been rendered inaccurate thereby (each a “Schedule Supplement”) at least five (5) days prior to the anticipated Closing Date.

(b) Notice of Developments. Sellers shall promptly notify Buyer of, and furnish Buyer any information it may reasonably request with respect to, (i) any event that would reasonably be expected to cause any of the conditions set forth in ARTICLE 10 not to be fulfilled by the Outside Date,(ii) any fact, circumstance event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (B) has resulted in, or could reasonably be expected to result in, any representation or warranty made by Sellershereunder not being true and correct; (iii) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; and (iv) any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement. Buyer’s receipt of information pursuant to this Section 7.6(b) shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller in this Agreement and shall not be deemed to amend or supplement the Disclosure Schedules.

7.7 Limitations.

For the avoidance of doubt, nothing in this Agreement, including Section 2.1, Section 2.3,or Section 7.3, shall (a) prevent any of the Sellers from, or require any of the Sellers to delay, the winding down of their bankruptcy estates, (b) require any of the Sellers to pay or incur any monetary amount, (c) impose on any Seller any burdens not expressly imposed on such Seller pursuant to the other provisions of this Agreement, (d) require any Seller to become involved in any Action, or (e) transfer or sell any Excluded Asset.

7.8 Names and Transition Trademark License.

Within ninety (90) days after Closing (the “Cease Date”) each Seller shall, and shall cause their direct and indirect subsidiaries to, discontinue the use of the name “Energy Alloys” (and any other trade names or “d/b/a” names reflecting such name that are currently utilized by Sellers or its direct or indirect Subsidiaries) and shall not subsequently change its name to or otherwise use or employ any name which includes “Energy Alloys” without the prior written consent off Buyer, and each Seller shall cause the names of Sellers in the caption of the Bankruptcy Case to be changed to the new names of each Seller as provided in the last sentence of this Section 7.9. During this transition period, Buyer shall grant to Sellers and does hereby grant to Sellers, a limited license to use the applicable trademarks and d/b/a names in connection with its operations and the transition to a new name and trademark. All use of such names and marks shall be consistent with each Sellers’ past practices and subject to Buyer’s quality control. No new use of the names and trademarks shall be permitted. From the Closing and after the Cease Date, each Seller covenants and agrees not to use or otherwise employ any of the trade names, corporate names, “d/b/a” names or any mark that is confusingly similar to the Intellectual Property rights utilized by Sellers and Sellers’ Subsidiaries in the conduct of the Business, which rights shall be included in the Specified Assets purchased hereunder. Promptly following the Closing but no later than the Cease Date, Sellers shall file,


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and shall cause their direct and indirect Subsidiaries to file all necessary organizational amendments with the applicable Secretary of State of each Seller’s jurisdiction of formation and in each State in which each such Seller is qualified to do business and with the Bankruptcy Court to effectuate the foregoing.

7.9 Assigned Contracts; Adequate Assurance and Performance.

Buyer shall use commercially reasonable efforts to provide adequate assurance of thefuture performance by Buyer of each Assigned Contract as required under Section 365 of the BankruptcyCode. Buyer and Sellers agree that they will promptly take all actions reasonably required to assist inobtaining a Bankruptcy Court finding that there has been an adequate demonstration of adequate assurance of future performance under the Assigned Contracts pursuant to Section 365 of the Bankruptcy Code, such as furnishing timely requested and factually accurate affidavits, non-confidential financial information and other documents or information for filing with the Bankruptcy Court and making Buyer’s and Sellers’ employees and representatives available to testify before the Bankruptcy Court.

ARTICLE 8

INDEMNIFICATION

8.1 Indemnification by Sellers.

(a) If the Closing shall have been consummated, the Buyer and its respective Affiliatesand Representatives (for purposes of this Article VIII, the “Buyer Indemnitees”) shall be entitled to, subject to the limitations set forth in this Section 8.1, indemnification against, and to be held harmless from, any loss, liability, damage, claim, demand, settlement, judgment, award, fine, penalty, fee, charge, cost, or expense (including reasonable legal fees and expenses) (“Losses”) incurred or suffered by any Buyer Indemnitee, or that any Buyer Indemnitee has become subject to, resulting from, arising from, relating to or otherwise in respect of:

(i) any inaccuracy in or breach of any representation or warranty of the Sellersin this Agreement that survives the Closing (and has not otherwise expired);

(ii) any breach of or failure to perform any covenant of the Sellers contained in this Agreement or any Transaction Documents; and

(iii) unpaid Company Group Transaction Expenses.

(b) After the Closing, in the absence of Fraud, the Buyer Indemnitees’ right to recovery from the Indemnification Escrow Fund shall be the sole and exclusive remedy under this Agreement for any Losses resulting from, arising out of, relating to or otherwise in respect of the matters referred to in Section 8.1(a). Buyer acknowledges that except for (i) the purchase price adjustment provisions in Section 3.1, (ii) Losses arising from Fraud; (iii) Losses arising from breach of any Fundamental Representations; and (iv) remedies that cannot be waived as a matter of Law and injunctive, provisional and equitable relief (including specific performance), the Buyer Indemnitees’ sole and exclusive remedy for any Losses arising out of or related to this Agreement or the Transaction Documents will be indemnification pursuant to and subject to the limitations contained in this Article VIII. Notwithstanding anything to the contrary herein, other than in accordance with Section 8.1 and in the absence of Fraud,neither Sellers nor any Affiliates of Sellers shall have any liability to Buyer or the Company Group in connection with this Agreement, the Transaction Documents, or any of the transactions contemplated hereby or thereby.


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(c) Buyer Indemnitees shall not be entitled to make indemnification claims under Section 8.1(a) unless the aggregate of all Losses for which Buyer Indemnitees would be entitled to seek indemnification exceeds on a cumulative basis an amount equal to Seventy-Five Thousand Dollars ($75,000) and then only to the extent of any such excess.

(d) Subject to Section 8.1(b), the aggregate amount of Losses recoverable by the Buyer Indemnitees for indemnification claims under Section 8.1(a) or otherwise pursuant to this Agreement at any time shall not exceed the amount then remaining in the Indemnification Escrow Account and Buyer expressly acknowledges for itself and the Buyer Indemnitees that any claim brought pursuant to Section 8.1(a) or otherwise pursuant to this Agreement shall be asserted solely against the Indemnification EscrowAccount (and not any Sellers or Debtors individually), pursuant to the terms of the Indemnification EscrowAgreement and in no event shall any Seller or Debtor have any liability for any Losses other than indirectly on account of the total amount then remaining in the Indemnification Escrow Account.

(e) Notwithstanding anything contained in this Agreement to the contrary, Buyer Indemnitees’ right to indemnification under this Article VIII with respect to any Losses or alleged Losses shall be reduced by the amount (but only to the amount) of any allowance, provision or reserve, if any, that has been made for such matter in the Final Aggregate Closing Consideration.

8.2 Indemnification by Buyer.

(a) If the Closing shall have been consummated, Buyer and the Company Group, jointly and severally, shall indemnify and defend the Sellers and their respective Affiliates and Representatives (the “Seller Indemnitees” and, together with the Buyer Indemnitees, the “Indemnified Parties”) against, and shall hold each of them harmless from, any Losses actually incurred or suffered by any of them resulting from, arising from, relating to or otherwise in respect of (i) any inaccuracy in or breach of any representation or warranty of Buyer set forth in this Agreement that survives the Closing (and has not otherwise expired), (ii) any breach of any covenant of Buyer contained in this Agreement or any Transaction Document, (iii) any Taxes of any member of the Company Group for any Post-Closing Tax Period, or (iv) any Liability of any member of the Company Group arising after the Closing.

8.3 Calculation and Mitigation of Losses; Other Limitations.

(a) The amount of any Loss for which indemnification is provided under this Article VIII shall be net of any amounts actually recovered by such Indemnified Party under insurance policies with respect to such Loss. In the event any amounts recovered or recoverable with commercially reasonable efforts under insurance policies are not received before any claim for indemnification is paid pursuant to this Article VIII, then the Indemnified Party shall pursue such insurance policies with reasonable diligence, and in the event it actually receives any recovery shall reimburse the Person providing indemnification under this Article VIII (the “Indemnifying Party”) with respect to such claim to the extent of such payment would not have been so paid had such recovery been obtained prior to such payment, provided, that, if such payments were made from the Indemnification Escrow Account and the recovery of such amount has been obtained prior to the Survival Date, such reimbursement shall be paid to the Indemnification EscrowAccount, and, provided, further, that if such payments were made from the Indemnification EscrowAccount and the recovery of such amount has been obtained following the General Survival Period then such reimbursement shall be paid to Sellers. If the Indemnified Party fails to pursue any such insurance policies with reasonable diligence, then the Sellers’ Representative shall have the right of subrogation to pursue such insurance policies and may take any reasonable actions necessary to pursue such rights of subrogation in its name or the name of the party from whom subrogation is obtained.


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(b) For the sole purpose of calculating the amount of Losses pursuant to this Article VIII, and for determining whether or not any breaches of representations or warranties have occurred, each representation and warranty shall be interpreted without giving effect to any limitations or qualifications as to “materiality” (including the word “material”) or “Material Adverse Effect” contained in such representation or warranty (i.e., as if such limitation or qualification were deleted from such representation or warranty).

(c) Each party shall take all commercially reasonable steps to mitigate any of its Losses (including incurring costs to the extent necessary to remedy the breach which gives rise to the Losses) upon becoming aware of any event which would reasonably be expected to, or does, give rise thereto.

(d) No Seller shall have any right of contribution, right of indemnity or other right or remedy against the Company Group in connection with any indemnification obligation or any other Liability to which such Seller may become subject or which may be payable out of the Indemnification Escrow Fund under or in connection with this Agreement; provided, that the foregoing shall not limit any of the rights or remedies of any Seller Indemnitee under Section 8.2(a).

8.4 Termination of Indemnification.

The obligations herein to indemnify and hold harmless any Indemnified Party shall terminate, in respect of a breach of any representation or warranty, covenant, agreement, or obligation on the expiration of the applicable survival period specified in Section 8.6; provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the Indemnified Party shall have made, before the expiration of the applicable survival period specified in Section 8.6, a bona fide claim by delivering a notice of such claim (stating in reasonable detail the basis of such claim) pursuant to Section 8.5 to the party to be providing the indemnification (the “Indemnifying Party”).

8.5 Indemnification Procedures.

(a) In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving any claim (a “Claim”) by an Indemnified Party such Indemnified Party must notify the Indemnifying Party in writing (and in reasonable detail) of such Claim within ten (10) Business Days after knowledge by such Indemnified Party of such Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been materially prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). Thereafter, the Indemnified Party shall give the Indemnifying Party reasonable access to the books, records and assets of the Indemnified Party which evidence or support such Claim or the act, omission or occurrence giving rise to such Claim and the right, upon prior notice, to interview any employee, agent or other Representative of the Indemnified Party related thereto. If the Indemnifying Party does not respond within 30 days of receipt of notice of a Claim,the Indemnifying Party shall be deemed to have rejected such Claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.

(b) If an Indemnified Party is entitled to indemnification hereunder because of a Claim asserted by a claimant other than another Indemnified Party hereunder (a “Third Party Claim”), then the following shall apply:


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(i) Subject to the requirements of this Section 8.5(b), the Indemnifying Party shall be entitled to participate in the defense thereof at its sole expense and, if it so chooses in its sole discretion, to assume the defense thereof, at its sole expense with counsel selected by the Indemnifying Party, which counsel must be reasonably satisfactory to the Indemnified Party. Should the Indemnifying Party so elect to assume the defense of a Third Party Claim, it shall within a reasonable period (taking into account the circumstances of such Third Party Claim) of theIndemnified Party’s having delivered written notice of the assertion of such Third Party Claim together with all materials and documents relating thereto reasonably necessary or requested by the Indemnifying Party, notify the Indemnified Party of its intent to do so and the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof; provided, however, that the Indemnifying Party must conduct its defense of the Third Party Claim actively and diligently thereafter, as reasonably required for such Third Party Claim, in order to preserve its rights in this regard.

(ii) If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in the defense thereof, at its sole expense, and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense; provided, however, that such Indemnified Party shall be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if in the reasonable opinion of outside counsel to the Indemnified Party, a conflict exists between the Indemnified Party and the Indemnifying Party that would make such separate representation necessary; and provided, further, that the Indemnifying Party shall not be required to pay for more than one such counsel for all Indemnified Parties in connection with any Third Party Claim. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of reasonable access to the books, records, electronic data, personnel and assets of the Indemnified Party which relate to evidence or support such Claim or the act, omission or occurrence giving rise to such Claim and the right, upon prior notice, to interview any employee, agent or other Representative of the Indemnified Party related thereto.

(iii) Whether or not the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge or permit a default or consent to entry of any judgment with respect to, such Third Party Claim without the Indemnifying Party’s prior written consent. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall agree to any settlement, compromise or discharge of a Third Party Claim that the Indemnifying Party may recommend, provided that such settlement, compromise or discharge, (x) is paid solely from the Indemnification Escrow Account and such payment is sufficient to pay the full amount of the Liability in connection with such Third Party Claim or the claimant (or claimants) and the Indemnifying Party provides to the Indemnified Party an unqualified release from all Liability in respect of the Third Party Claim and (y) does not include any admission of liability on the part of the Indemnified Party.

(c) If the Indemnifying Party disputes its liability with respect to any Claim (including any Third Party Claim), the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations, such dispute shall be resolved by litigation in an appropriate court of competent jurisdiction.


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(d) The Sellers’ Representative shall act on behalf of the Sellers for the purposes of this Section 8.5 for all Claims (including all Third Party Claims) which are the subject of indemnification hereunder pursuant to Article VIII.

(e) All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by applicable Legal Requirements.

(f) The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party's right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by reason of the Indemnified Party's waiver of any condition set forth in this Agreement.

8.6 Survival of Representations, Warranties and Covenants.

(a) Except for Fundamental Representations, which shall survive until thirty (30) days after the applicable statute of limitations has expired, the representations and warranties made by the Sellersin Article V of this Agreement and the indemnification obligations set forth in Section 8.1(a) with respect to such representations and warranties, shall survive the Closing and shall remain in full force and effect until, and shall expire at, 5:00 pm Eastern Time on the six (6) month anniversary of the Closing Date (the “General Survival Period”).

(b) The representations and warranties made by Buyer in Article VI of this Agreementand the indemnification obligations set forth in Section 8.2(a) with respect to such representations and warranties, shall survive the Closing and shall remain in full force and effect until, and shall expire at, 5:00 pm Eastern Time on the six (6) month anniversary of the Closing Date.

(c) The covenants of each party hereto contained in this Agreement, which by their terms survive the Closing and shall remain in full force and effect until the date that such covenant terminates or expires by its terms and (ii) the indemnification obligations set forth in Article VIII with respect to such covenants shall survive the Closing and shall remain in full force and effect until the date that is thirty (30) Business Days after the expiration of the applicable statute of limitations relating thereto.

(d) Except for the amount with respect to which an Indemnified Party shall have, prior to the expiration of the General Survival Period previously made a bona fide claim pursuant to the procedures set forth in Section 8.5 and for which the obligations to indemnify, if any, shall not have been satisfied from the Indemnification Escrow Account (the “Outstanding Escrow Claims”), title and all rights to the Indemnification Escrow Account shall automatically transfer to the Sellers’ Representative (for the benefit of the Sellers) on the expiration of General Survival Period, and Buyer and the Company Groupshall take all actions necessary to cause the Escrow Agent to release the funds held in the Indemnification Escrow Account less the amount of the Outstanding Escrow Claims to the Sellers’ Representative or its designee (for the benefit of the Sellers), on the expiration of General Survival Period. Buyer further agrees that as soon as the Outstanding Escrow Claims are resolved pursuant to the procedures set forth in Section 8.5, it shall cause the Escrow Agent to release promptly any remaining cash held by the Escrow Agent pursuant to the terms of the Indemnification Escrow Agreement to the Sellers’ Representative or its designee (for the benefit of the Sellers).

ARTICLE 9

ADDITIONAL AGREEMENTS


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9.1 Taxes.

(a) After the Closing, upon reasonable notice, Buyer shall furnish or cause to be furnished to the Sellers and its Representatives access, during normal business hours, to such information and assistance relating to the Company Group as is reasonably necessary for financial reporting and accounting purposes. After the Closing, upon reasonable written notice, the Sellers, each member of the Company Group, Buyer and their respective Subsidiaries shall furnish or cause to be furnished to each other, as promptly as practicable, such information and assistance (to the extent within the control of such party) relating to the Company Group (including access to books and records (in any form or medium)) as is reasonably necessary for the filing of all Returns, and making of any election related to Taxes, the preparation for any audit by any taxing authority and the prosecution or defense of any Proceeding related to any Return. Such assistance shall include the commercially reasonable efforts of each of the Sellers, the Company Group, Buyer and their respective Subsidiaries to obtain any certificate or other document from any Governmental Entity or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that is or could be imposed (including with respect to the transactions contemplated hereby).

(b) Each member of the Company Group shall timely file, or cause to be timely filed, as soon as practicable (but no later than when due) any Tax Returns of such member of the Company Group that is required to be filed on or prior to the Closing Date, and such member of the Company Group shall pay all Taxes shown as due on such Return. Buyer shall timely file, or cause to be timely filed, as soon as practicable (but no later than when due) all Returns of each member of the Company Group that are required to be filed after the Closing Date and Buyer shall pay or cause the Company Group to pay, as applicable, all Taxes shown as due on such Tax Returns.

(c) All Tax Returns relating to (x) Pre-Closing Tax Periods or (y) Straddle Periods that are prepared by Buyer pursuant to this Section 9.1 shall be prepared in a manner that is consistent with the Company Group’s past practice but subject to applicable Law. The Tax Returns described in the preceding sentence shall be submitted to the Sellers’ Representative no later than sixty (60) days prior to the due date for filing such Returns (taking into account any applicable extensions). The Sellers’ Representative shall respond in writing to Buyer with any comments within thirty (30) days of receiving the draft Tax Return(s). Buyer shall make any changes to such Tax Returns that are requested. Buyer shall file (or cause to be filed) such Tax Returns as expeditiously as possible. Buyer shall provide copies of such Tax Returns to the Sellers’ Representative promptly after filing. The Sellers’ Representative, the Company Group and Buyer shall cooperate with each other in the conduct of any audit or other Proceeding relating to Taxes involving the Company Group.

(d) Except as required by applicable Law, Buyer covenants that, without the prior written consent of Sellers’ Representative (which consent shall not be unreasonably withheld), it will not cause or permit any member of the Company Group or any Affiliate of Buyer (i) to take any action on the Closing Date other than in the ordinary course of business, including but not limited to the distribution of any dividend or the effectuation of any redemption that could give rise to any Tax liability or reduce any Tax asset or potential Tax Refund of any member of the Company Group or give rise to any indemnification obligations in favor of Buyer; (ii) to make any election or deemed election under Sections336 or 338 of the Code or any comparable provision under applicable Law; or (iii) to make or change any Tax election, amend any Tax Return or take any Tax position on any Tax Return that results in any increased Tax liability or reduction of any Tax asset or Tax Refund of the Company Group in respect of any Pre-Closing Tax Period.

(e) Unless otherwise provided pursuant to this Article IX, Buyer shall control all Proceedings taken in connection with any Tax claim (including selection of counsel and accountants) and, without limiting the foregoing, may in its sole discretion pursue or forego any and all administrative


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appeals, Proceedings, hearings, audits and conferences with any Governmental Entity with respect thereto and may, in its sole discretion, either pay the Tax claimed and sue for a Tax Refund where Law permits such Tax Refund suits or contest the Tax claim in any permissible manner or settle or pay the Tax claim; provided, however, that Buyer shall afford the Sellers’ Representative the opportunity to participate, as may reasonably be requested by the Sellers’ Representative, with Buyer in contesting any Tax claim solely to the extent such Tax claim relating to a Pre-Closing Tax Period or that would give rise to an indemnity obligation under Section 8.1(a); and provided further, that Buyer shall not settle or otherwise compromise any Tax claim relating to a Pre-Closing Tax Period or that would give rise to an indemnity obligation under Section 8.1(a) without the Sellers’ Representative’s prior written consent (which consent shall not be unreasonably withheld) unless Buyer agrees to waive its right to seek indemnity under Section 8.1(a)with respect to such Tax claim.

(f) Buyer shall pay, and shall indemnify and hold the Seller Indemnitees harmless against, any documentary, sales, use, registration, value-added, real property transfer or gains tax, stamp tax, stock transfer tax, or other similar Tax imposed on the Company Group or any Seller as a result of the transactions contemplated by this Agreement (collectively, “Transfer Taxes”) and any penalties or interest with respect to the Transfer Taxes, regardless of the Person liable for such obligations under applicable law or the Person making payment to the applicable Governmental Authority or other third party. Sellers and Buyer shall cooperate with each other and use their commercially reasonable efforts to minimize the amount of such Transfer Taxes.

9.2 Payments Received.

Sellers, on the one hand, and Buyer, on the other hand, each agree that, after the Closing, each will hold and will promptly transfer and deliver to the other, from time to time as and when received by them, any cash, checks with appropriate endorsements (using commercially reasonable efforts not toconvert such checks into cash) or other property that they may receive on or after the Closing which belongs to the other and will account to the other for all such receipts.

9.3 Release.

(a) Subject to the indemnity obligations under Article VIII, from and after the Closing, Buyer and the Company Group, on behalf of itself and each of its respective Subsidiaries and Affiliates, hereby release Seller, each Debtor, and each of their respective Representatives (collectively, the “DebtorReleased Parties”) from any and all disclosed Intercompany Indebtedness, Actions, debts, dues, sums of money, accounts, reckoning, bonds, bills, Liabilities, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, Losses, judgments, extents, executions, claims and demands (each, a “Buyer Released Claim”) and agree not to bring or threaten to bring or otherwise join in any Buyer Released Claim against the Debtor Released Parties or any of them, relating to, arising out of or in connection with any facts or circumstances, directly or indirectly, relating to the Company Group or the Company Group’s assets, including real property, which existed on or prior to the date hereof, provided, however, that the foregoing shall not apply to any Buyer Released Claim arising under, related to, or resulting from any breach of this Agreement, any other Transaction Document.

(b) Subject to the indemnity obligations under Article VIII, from and after the Closing, Sellers, on behalf of itself and each of its respective Subsidiaries and Affiliates, hereby release the Company Group and each of their respective Representatives (collectively, the “Buyer Released Parties”) from any and all Intercompany Indebtedness, Actions, causes of action, suits, debts, dues, sums of money, accounts, reckoning, bonds, bills, liabilities, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, Losses, judgments, extents, executions, claims and demands (each, a “Seller Released Claim”) and agree not to bring or threaten to bring or otherwise join in any Seller


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Released Claim against the Buyer Released Parties or any of them, relating to, arising out of or in connection with any facts or circumstances, directly or indirectly, relating to the Company Group or the Company Group’s assets, including real property, which existed on or prior to the date hereof, provided,however, that the foregoing shall not apply to any Seller Released Claim arising under, related to, or resulting from any breach of this Agreement or any other Transaction Document.

(c) From and after the Closing, neither Sellers nor Buyer nor any of their Affiliates(including, with respect to Buyer, any member of the Company Group), shall directly or indirectly commence, maintain, or prosecute, or voluntarily aid any action at law or in equity, or any other proceeding, against any Debtor Released Party or Buyer Released Party, as applicable, that arises from any Buyer Released Claim or Seller Released Claim, as applicable, in any administrative or judicial forum of any jurisdiction in any nation. Neither Sellers nor Buyer nor any of their Affiliates (including, withrespect to Buyer, any member of the Company Group) shall file any complaint against any Debtor Released Party or Buyer Released Party, as applicable, with, any governmental or non-governmental authority, based on, or which involves, any allegation, cause of action, damages, claim, cross-claim, liability, debt, attorneys’ fees, cost, or demand that arises from any Buyer Released Claim or Seller Released Claim, as applicable.

9.4 Adequate Assurance and Performance.

Without limiting the provisions of this Section 9.4, Buyer acknowledges that Sellers and their Affiliates (other than the members of the Company Group) have no duty to maintain any Credit Support to secure performance for any Contract of the Business after the Closing. Prior to the Closing, Buyer shall use commercially reasonable efforts, and Sellers will cooperate (it being understood that such cooperation will not include any requirement to pay any consideration or offer or grant any financial accommodation) in all reasonable respects with Buyer, to ensure that, effective as of the Closing, all Credit Support and any Liabilities related thereto, whether attributable to periods before or after the Closing that were posted by Sellers or their Affiliates (other than the members of the Company Group) shall be fully and unconditionally released as to such Sellers or their Affiliates, as applicable, and, to the extent any such Credit Support or any Liabilities related thereto have not been fully and unconditionally released as to such Sellers and their Affiliates, as applicable, at Closing, Buyer shall promptly take such actions after the Closing as necessary to obtain such release.

9.5 Post-Closing Books and Records and Personnel.

From and after the Closing Date, each Party hereto shall provide the other Parties hereto (and their respective Representatives) with access, at reasonable times and in a manner so as not to unreasonably interfere with their normal business, solely to the books and records acquired pursuant to this Agreement as of the Closing Date so as to enable Buyer and Sellers to prepare Tax, financial or court filings or reports, to respond to court orders, subpoenas or inquiries, investigations, audits or other proceedings of Governmental Authorities, and to prosecute and defend legal Actions or for other like purposes, including Claims, objections and resolutions, and with respect to Sellers, to wind up their bankruptcy estates. If anyparty desires to dispose of any such records, such Party shall, thirty (30) days prior to such disposal, provide the other Party with a reasonable opportunity to remove such records to be disposed of at the removing Party’s expense; provided, however, that the disposal of any records related to any matter which may be subject to indemnification pursuant to Article VIII shall not be permitted under any circumstances.

9.6 Representations and Warranties Exclusive.

Buyer acknowledges and agrees that it has conducted its own independent investigation, review and analysis of the Business and acknowledges that it has been provided adequate access to the


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personnel, properties, assets, premises, books and records, and other documents and data of Sellers for such purpose. Buyer acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, Buyer has relied solely upon its own investigation and the express representations and warranties of Sellers set forth in ARTICLE 5 of this Agreement and (b) none the Sellers nor any other Person has made any representation or warranty as to the Sellers, the Business, the Acquired Interests, the Assumed Liabilities or this Agreement, except as expressly set forth in ARTICLE 5 of this Agreement (as qualified by the Disclosure Schedules). SUCH REPRESENTATIONS AND WARRANTIES MADE BY THE SELLERS IN ARTICLE 5 CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF THE SELLERS TO BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE 5 OF THIS AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION REGARDING THE SELLERS,ANY AFFILIATES OF THE SELLERS, THE BUSINESS, THE ACQUIRED INTERESTS OR THE ASSUMED LIABILITIES FURNISHED OR MADE AVAILABLE TO BUYER AND ITS REPRESENTATIVES AND ANY INFORMATION, DOCUMENTS OR MATERIAL MADE AVAILABLE TO BUYER, MANAGEMENT PRESENTATIONS OR IN ANY OTHER FORM IN EXPECTATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR AS TO THE FUTURE REVENUE, PROFITABILITY OR SUCCESS OF THE BUSINESS, OR ANY REPRESENTATION OR WARRANTY ARISING FROM STATUTE OR OTHERWISE IN LAW OR IN EQUITY OR RELATING TO MERCHANTABILITY OR FITNESS FOR USE) ARE SPECIFICALLY DISCLAIMED BY THE SELLERS. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT BUYER IS PURCHASING THE ACQUIRED INTERESTS ON AN “AS IS, WHERE IS” BASIS AFTER GIVING EFFECT TO THE TERMS CONTAINED HEREIN.

ARTICLE 10

CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER TO CLOSE

The obligations of Buyer to consummate the transactions contemplated by this Agreement are subject to fulfillment, at or prior to the Closing, of each of the following conditions, any one or more of which may be waived by Buyer, in its sole and absolute discretion:

10.1 Accuracy of Representations.

Each of (a) the representations and warranties of the Sellers contained in this Agreement (without giving effect to any “Material Adverse Effect” or similar materiality qualification therein), other than the Fundamental Representations, shall be true and correct as of the Closing Date, as if made anew at and as of that time (except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall have been true and correct at and as of such date), except for, in each case, any inaccuracy or omission that would not reasonably be expected to have a Material Adverse Effect and (b) the Fundamental Representations shall be true and correct as of the Closing Date as if made anew at and as of that time, (except with respect to the Fundamental Representations which speak as to an earlier date, which Fundamental Representations shall have been true and correct at and as of such date).Buyer shall have received a certificate of Sellers to such effect signed by a duly authorized officer thereof.


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10.2 Sellers’ Performance.

The covenants and agreements that Sellers are required to perform or to comply with pursuant to this Agreement at or prior to the Closing shall have been performed and complied with, in all material respects, and Buyer shall have received a certificate of Sellers to such effect signed by a duly authorized officer thereof.

10.3 No Order.

No Governmental Authority shall have enacted, issued, promulgated, decreed or entered any Order, which is in effect and has the effect of restraining or preventing the consummation of or imposing material modifications on the transactions contemplated by this Agreement.

10.4 Consents.

All notices, filings, approvals and consents set forth on Schedule 10.4 shall have been made or obtained.

10.5 Sellers’ Deliveries.

Each of the deliveries required to be made to Buyer pursuant to Section 4.3 shall have been so delivered.

10.6 Sale Order.

The Bankruptcy Court shall have entered the Sale Order.

10.7 Material Adverse Effect.

Since the Execution Date, no Material Adverse Effect shall have occurred nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.

10.8 Releases and Termination Statements.

At least two (2) Days prior to Closing, Buyer shall have received payoff or similar letters (the “Payoff Letters”) at the Closing from each of the entities set forth on Schedule 10.8 (the “Closing Indebtedness Schedule”) indicating that, upon payment of the amount specified in such letters, all Liens against the Assets of the Company Group held by such entities shall be released and all obligations of the Company Group (other than contingent indemnity obligations) to such entities shall be satisfied; provided,however, that releases shall not be required with respect to Encumbrances that are released by the Sale Order.

10.9 Assigned Contracts.

The Bankruptcy Court shall have approved and authorized the assumption and assignment of each Assigned Contract.


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10.10 Frustration of Closing Conditions.

The Buyer may not rely on the failure of any condition set forth in this Article 10 to be satisfied if such failure was caused by a breach or failure of Buyer to perform its obligations under this Agreement or the Transaction Documents.

ARTICLE 11

CONDITIONS PRECEDENT TO THE OBLIGATION OF SELLERS TO CLOSE

The obligations of Sellers to consummate the transactions contemplated by this Agreement are subject to fulfillment, at or prior to the Closing, of each of the following conditions, any one or more of which may be waived by Sellers, in their sole and absolute discretion:

11.1 Accuracy of Representations.

Each of (a) the representations and warranties of the Buyer contained in this Agreement (without giving effect to any “material adverse effect” or similar materiality qualification therein) shall be true and correct as of the Closing Date, as if made anew at and as of that time (except with respect to representations and warranties which speak as to an earlier date, which representations and warranties shall have been true and correct at and as of such date), except for, in each case, any inaccuracy or omission that would not reasonably be expected to have a material adverse effect and (b) the representations and warranties made in Sections 6.1, 6.2, 6.3, and 6.4 shall be true and correct as of the Closing Date as if made anew at and as of that time (except with respect to the such of those representations and warranties which speak as to an earlier date, which representations and warranties shall have been true and correct at and as of such date). Sellers shall have received a certificate of Buyer to such effect signed by a duly authorized officer thereof.

11.2 Buyer’s Performance.

The covenants and agreements that Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing shall have been performed and complied with, in all material respects, and Sellers shall have received a certificate of Buyer to such effect signed by a duly authorized officer thereof.

11.3 No Order.

No Governmental Authority shall have enacted, issued, promulgated or entered any Order, which is in effect and has the effect of preventing the consummation of the transactions contemplated by this Agreement.

11.4 Buyer’s Deliveries.

Each of the deliveries required to be made to Sellers pursuant to Section 4.2 shall have been so delivered.

11.5 Sale Order.

The Bankruptcy Court shall have entered the Sale Order.


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11.6 Frustration of Closing Conditions.

The Sellers may not rely on the failure of any condition set forth in this Article 11 to be satisfied if such failure was caused by a breach or failure of Sellers to perform their obligations under this Agreement or the Transaction Documents.

ARTICLE 12

TERMINATION

12.1 Termination Events.

Anything contained in this Agreement to the contrary notwithstanding, this Agreement may be terminated at any time prior to the Closing only as follows:

(a) by mutual written consent of Sellers and Buyer;

(b) by written notice of either Sellers or Buyer:

(i) if the Closing shall not have occurred by December 31, 2020 (as may be extended by written agreement of the Parties, the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 12.1(b)(i) shall not be available to any Party whose failure to fulfill any of its obligations under this Agreement shall have been the primary cause of, or shall have resulted in, the failure of the Closing to occur on or prior to the Outside Date;

(ii) if a Governmental Authority issues a final, non-appealable ruling or Order permanently restraining, enjoining or otherwise prohibiting consummation of the transactions contemplated hereby where such ruling or Order was not requested, encouraged or supported by the terminating Party; provided, however, that the right to terminate this Agreement under this Section 12.1(b)(ii) shall not be available to any Party whose failure to fulfill any obligation under this Agreement shall have been the primary cause of, or shall have resulted in, the failure of the Closing to occur on or prior to the Outside Date;

(c) by Buyer:

(i) if the Bidding Procedures Order has not been entered by the Bankruptcy Court on or before the date that is thirty (30) days after the Execution Date;

(ii) if the Bankruptcy Court enters an Order dismissing any of the cases commenced by Sellers under chapter 11 of the Bankruptcy Code and comprising part of the Bankruptcy Case or such an order of dismissal is entered for any reason and is not be reversed or vacated within fourteen (14) days after the entry thereof or any of Sellers seeks such an Order;

(iii) in the event of any breach by any Seller of, or failure by any Seller to perform, any agreements, covenants, representations or warranties of any Seller contained herein or in the Sale Order, which breach or failure to perform would result in Sellers being unable to satisfy a condition set forth in Section 10.1 or Section 10.2 by the Outside Date; provided, however, that Buyer shall not have the right to terminate the Agreement pursuant to this Section 12.1(c)(iii)if Buyer is in breach, in any material respect, of its covenants, representations or agreements contained in this Agreement;


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(iv) at any time after (A) any Seller seeks Bankruptcy Court approval of, or Seller fails to oppose the Bankruptcy Court’s approval of, any Alternative Transaction, (B) filing with the Bankruptcy Court of a motion, disclosure statement or other document that announces that Sellers have resolved to pursue an Alternative Transaction or (C) any Seller shall have entered into a definitive agreement with respect to an Alternative Transaction, in each case, prior to the entry by the Bankruptcy Court of the Bidding Procedures Order;

(v) if (A) the Sale Order is not entered within fifteen (15) days after the conclusion of the Auction or such other date as the Bankruptcy Court’s schedule permits if Seller has timely moved the Bankruptcy Court to enter the Sale Order, or (B) the Bidding Procedures Order or the Sale Order shall have been stayed, vacated, or materially and adversely to Buyer amended or modified or supplemented without Buyer’s prior written consent;

(vi) if, at the end of the Auction, Buyer is not determined by Sellers to be the Successful Bidder or the Backup Bidder and Sellers have entered into a material agreement with any such Successful Bidder or Backup Bidder in connection therewith; provided, however, that in the event Buyer is not the Successful Bidder but has been declared the Backup Bidder, Buyer may terminate this Agreement on the earlier of (x) thirty (30) days after the Sale Hearing and (y) the closing of the sale to the Successful Bidder; or

(d) by Sellers:

(i) in the event of any breach by Buyer of, or failure by Buyer to perform, any agreements, covenants, representations or warranties of Buyer contained herein, which breach or failure to perform would result in Buyer being unable to satisfy a condition set forth in Section 11.1 or Section 11.2; provided, however, that Sellers shall not have the right to terminate the Agreement pursuant to this Section 12.1(d)(i) if any Seller is in breach in any material respect of its covenants, representations or agreements contained in this Agreement; or

(ii) if, at the end of the Auction, Buyer is not determined by Sellers to be the Successful Bidder or the Backup Bidder and Sellers have entered into a material agreement with any such Successful Bidder or Backup Bidder in connection therewith.

12.2 Stalking Horse Bid Protections.

(a) Subject to approval by the Bankruptcy Court pursuant to the Bidding Procedures Order and the Stalking Horse Order and consistent with such Orders, as applicable, if (x) this Agreement is terminated by Buyer pursuant to Section 12.1(c)(iii) or Section 12.1(c)(vi) or (y) this Agreement is terminated by Sellers pursuant to Section 12.1(d)(ii), or (z) an Alternative Transaction is consummated (including pursuant to confirmation of any plan of reorganization) within one hundred eighty (180) days of any termination of this Agreement, then, in any such case, Sellers shall, jointly and severally, pay to Buyer within five (5) Business Days of such termination or consummation (as applicable), a break-up fee (the “Break-Up Fee”) in an aggregate amount equal to (i) three percent (3%) of the Base Purchase Price and (ii) the Expense Reimbursement (such amount, the “Bid Protections”), in each case, pursuant to the wiring instructions provided by Buyer upon termination.

(b) For the avoidance of doubt, and notwithstanding anything to the contrary set forth in this Section 11.2, (x) under no circumstances shall Sellers be obligated to pay the Bid Protections, or any portion thereof, more than once and (y) in no event shall Sellers (or any other Person, including any other Buyer under a Qualified Bid) be required to pay all or any portion of the Bid Protections,


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or any portion thereof, to Buyer if (A) Buyer and/or (B) Sellers, as applicable, have terminated this Agreement pursuant to Section 12.1(a), Section 12.1(b), Section 12.1(d)(i).

(c) The Sellers acknowledge (i) that Buyer has made a substantial investment of management time and incurred substantial out-of-pocket expenses in connection with the negotiation and execution of this Agreement, its due diligence of the Business, and the Sellers and its effort to consummate the transactions contemplated hereby, and (ii) that the Parties’ efforts have substantially benefited the Sellers and the bankruptcy estates of the Debtors through the submission of the offer that is reflected in this Agreement, that will serve as a minimum bid on which other potential interested bidders can rely, thus increasing the likelihood that the price at which the Acquired Interests are sold will reflect their true worth. The Parties hereby acknowledge that the amounts payable pursuant to this Section 12.2are commercially reasonable and necessary to induce Buyer to enter into this Agreement and consummate the transactions contemplated hereby. For the avoidance of doubt, the covenants set forth in this Section 12.2 are continuing obligations and survive termination of this Agreement.

12.3 Effects of Termination.

(a) In the event of termination of this Agreement by Buyer or Sellers pursuant to this ARTICLE 12, this Agreement shall become null and void and have no effect and all rights and obligations of the Parties under this Agreement shall terminate without any Liability of any Party to any other Party except (i) nothing herein shall relieve any Party from Liability for any breach of this Agreement occurring prior to such termination and (ii) the provisions of Section 7.5 and ARTICLE 11 (and, to the extent applicable to the interpretation or enforcement of such provisions, ARTICLE 1 and ARTICLE 13), shall expressly survive the termination of this Agreement.

(b) The Parties acknowledge and agree that any payment of the Bid Protections shall constitute liquidated damages (and not a penalty) and shall be deemed to be the sole and exclusive remedy of Buyer and any other Person against Sellers in connection with the termination of this Agreement, and Sellers’ former, current or future equity holders, controlling persons, directors, officers, employees, agents, managers, members, shareholders, Affiliates or assignees and any and all former, current or future equity holders, controlling persons, directors, officers, employees, agents, general or limited partners, managers, management companies, members, shareholders, Affiliates or assignees of any of the foregoing, and any and all former, current or future heirs, executors, administrators, trustees, successors or assign of any of the foregoing, and each Affiliate, officer, director, employee, controlling person, advisor, agent, attorney or representatives of any such Person (each, a “Related Party” and neither Sellers nor any Related Party of Sellers shall have any other Liability for any or all damages suffered or incurred by Buyer or any other Person in connection with the termination of this Agreement or any matter forming the basis for such termination, and, upon payment of the Bid Protections, in each case, as applicable, under such circumstances, neither Buyer nor any other Person shall be entitled to bring or maintain any other Action against Sellers or any Related Party of Sellers and none of Sellers nor any Related Party of Sellers shall have any further liability or obligation to Buyer arising out of this Agreement or any matters forming the basis for such termination.

ARTICLE 13

GENERAL PROVISIONS

13.1 Confidentiality.

The Parties agree that the confidentiality agreements entered into by them and their Affiliates, dated May 15, 2020 (as amended by their terms from time to time, the “Confidentiality


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Agreements”), shall continue in full force and effect notwithstanding the execution and delivery by the Parties of this Agreement; provided, however, that (a) the Confidentiality Agreements shall be deemedterminated effectively immediately upon the occurrence of the Closing with respect to all or any of the information concerning the Business or the Acquired Interests, (b) disclosure of matters that become a matter of public record as a result of the Bankruptcy Case and the filings related thereto shall not constitute a breach of such Confidentiality Agreements, and (c) disclosures permitted under this Agreement shall not constitute a breach of such Confidentiality Agreements. Following the Closing, each Seller agrees to, and to cause its Affiliates to, treat and hold as confidential, and not use or disclose all or any of the information concerning the Business, the Acquired Interests, the negotiation or existence and terms of this Agreement or the business affairs of Buyer except (i) disclosure of matters that become a matter of public record as a result of the Bankruptcy Case and the filings related thereto and (ii) disclosures permitted under this Agreement.

13.2 Public Announcements.

Prior to Closing, unless otherwise required by applicable Legal Requirement or by obligations of Buyer or Sellers or their respective Affiliates pursuant to any listing agreement with or rules of any securities exchange, Buyer, on the one hand, and Sellers, on the other hand, shall consult with each other before issuing any press release or otherwise making any public statement with respect to this Agreement, the transactions contemplated hereby or the activities and operations of the other and shall not issue any such release or make any such statement without the prior written consent of the other (such consent not to be unreasonably withheld or delayed).

13.3 Notices.

All notices, requests, claims, demands, consents, waivers, or other communications under this Agreement shall be in writing and shall be delivered by hand, overnight courier service or email or to all parties hereto at the following addresses:

(i) If to Sellers, then to:

Energy Alloys Holdings, LLC9450 Pinecroft Drive, P.O. Box 8819, The Woodlands, TX 77380Attention: Doris Stuart, Chief Financial Officer;

Bryan Gaston, Chief Restructuring OfficerEmail: [email protected];

[email protected]

with copies (which shall not constitute notice) to:


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Richards, Layton & Finger, P.A.One Rodney Square, 920 North King StreetWilmington, Delaware 19801Attention: Daniel DeFranceschi; Zachary ShapiroEmail: [email protected]; [email protected]

and

Akin Gump Strauss Hauer & Feld LLP2001 K Street, N.W.Washington, DC 20006Attention: Iain WoodEmail: [email protected]

(ii) If to Buyer:

BioUrja Commodities, LLCc/o BioUrja1080 Eldridge Parkway, Suite 1150 Houston, TX 77077Attention: Shék Jain, Chief Operating OfficerEmail: [email protected]

or to such other Persons or addresses as may be designated in writing by the Person entitled to receive such communication as provided above. Each such communication shall be effective (a) if delivered by hand, when such delivery is made at the address specified in this Section 13.3, (b) if delivered by overnight courier service guaranteeing next Business Day delivery, the next Business Day after such communication is sent to the address specified in this Section 13.3 or (c) if delivered by email, only when the recipient, by return email or notice delivered by other method provided for in this Section 13.3, acknowledges having received that email (with an automatically generated receipt or similar notice not constituting an acknowledgement of an email receipt for purposes of this Section 13.3).

13.4 Waiver.

Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement shall operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by Legal Requirements, (a) no waiver that may be given by a Party shall be applicable except in the specific instance for which it is given, and (b) no notice to or demand on one Party shall be deemed to be a waiver of any right of the Party giving such notice or demand to take further action without notice or demand.

13.5 Entire Agreement; Amendment.

This Agreement (including the Disclosure Schedules, Annexes and the Exhibits), together with the other Transaction Documents, supersede all prior agreements between Buyer, on the one hand, and Sellers, on the other hand, with respect to its subject matter and constitute a complete and exclusive statement of the terms of the agreements between Buyer, on the one hand, and Sellers, on the other hand, with respect to their subject matter. This Agreement (including the Disclosure Schedules, Annexes and


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Exhibits) may not be amended, modified or supplemented except by a written agreement executed by each of the Parties hereto (or, in the case of the Disclosure Schedules, as expressly provided herein).

13.6 Assignment.

This Agreement, and the rights, interests and obligations hereunder, shall not be assigned by any Party by operation of law or otherwise without the express written consent of the other Parties (which consent may be granted or withheld in the sole discretion of such other Party); provided, however,that Buyer shall be permitted to assign all or part of its rights or obligations hereunder to one or more Buyer Designees without the prior consent of Sellers so long as prior to such assignment such Buyer Designee agrees in writing in favor of Sellers to be bound by the provisions of this Agreement, it being agreed that, following any such assignment, (i) Buyer shall continue to be bound by the provisions of this Agreement and (ii) Buyer and all such assignees shall be jointly and severally liable with respect to any breach by any of them of their respective representations, warranties, covenants and agreements contained herein or in any of the other Transaction Documents to which any of them is bound.

13.7 Severability.

The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision, and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability.

13.8 Expenses.

Except as otherwise expressly provided in this Agreement, including Section 11.2, whether or not the transactions contemplated by this Agreement are consummated, the Parties shall bear their own respective expenses (including all compensation and expenses of counsel, financial advisors, consultants, actuaries and independent accountants) incurred in connection with this Agreement and the transactions contemplated hereby. Except as otherwise explicitly provided in this Agreement, any and all fees required by any Governmental Authority or any Person to obtain or for the transfer of a Permit shall be the sole responsibility of Buyer.

13.9 Governing Law; Consent to Jurisdiction and Venue; Jury Trial Waiver.

(a) Except to the extent the mandatory provisions of the Bankruptcy Code apply, this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts made and to be performed entirely in such state without regard to principles of conflicts or choice of laws or any other law that would make the laws of any other jurisdiction other than the State of Delaware applicable hereto.

(b) Without limitation of any Party’s right to appeal any Order of the Bankruptcy Court, (i) the Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms of this Agreement and to decide any claims or disputes which may arise or result from, or be connected with, this Agreement, any breach or default hereunder, or the transactions contemplated hereby, and (ii) any and all claims relating to the foregoing shall be filed and maintained only in the Bankruptcy Court, and the Parties hereby consent and submit to the exclusive jurisdiction and venue of the Bankruptcy Court and irrevocably waive the defense of an inconvenient forum to the maintenance of any such Action; provided, however,


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that, if the Bankruptcy Case is closed, all Actions arising out of or relating to this Agreement shall be heard and determined in a Delaware state court or a federal court sitting in the District of Delaware, and the Parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts in any such Action and irrevocably waive the defense of an inconvenient forum to the maintenance of any such Action. The Parties consent to service of process by mail (in accordance with Section 13.3) or any other manner permitted by law.

(c) THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF SELLERS, BUYER OR THEIR RESPECTIVE REPRESENTATIVES IN THE NEGOTIATION OR PERFORMANCE HEREOF.

13.10 Counterparts.

This Agreement and any amendment hereto may be executed in two or more counterparts, each of which shall be deemed to be an original of this Agreement or such amendment and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement or any amendment hereto by telecopier, facsimile or email attachment that contains a portable document format (.pdf) file of an executed signature shall be effective as delivery of a manually executed counterpart of this Agreement or such amendment, as applicable.

13.11 Captions.

The captions used in this Agreement and descriptions of the Schedules are for convenience of reference only and do not constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this Agreement, and all provisions of this Agreement shall be enforced and construed as if no such caption or description had been used in this Agreement.

13.12 Parties in Interest; No Third Party Beneficiaries; No Amendment.

This Agreement and the other Transaction Documents shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. This Agreement and the other Transaction Documents are for the sole benefit of the Parties and their permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable benefit, claim, cause of action, remedy or right of any kind; provided that nothing herein shall prevent a secured creditor of any Party hereto from taking a collateral interest in this Agreement and the other Transaction Documents. Notwithstanding anything to the contrary, nothing in this Agreement shall constitute an amendment to any Benefit Plan. The Parties acknowledge that the secured creditors of Energy Alloys, L.L.C. have a collateral interest in this Agreement and the other Transactional Documents.

13.13 Remedies.

Neither the exercise of nor the failure to exercise a right of set-off or to give notice of a claim under this Agreement will constitute an election of remedies or limit Sellers or Buyer in any manner in the enforcement of any other remedies that may be available to any of them, whether at law or in equity.

13.14 Specific Performance for Post-Closing Covenants.

Solely with respect to the Parties’ respective covenants under this Agreement that survive the Closing, and solely to the extent to be performed after the Closing, (a) each Party recognizes that if such


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Party breaches or refuses to perform any such covenant, monetary damages alone may not be adequate to compensate the non-breaching Party or Parties for their injuries, (b) the non-breaching Party or Parties shall therefore be entitled, in addition to any other remedies that may be available, to seek specific performance of the terms of such covenants, (c) if any Action is brought by the non-breaching Party or Parties to enforce such covenants, the Party in breach shall waive the defense that there is an adequate remedy at law, and (d) each Party agrees to waive any requirement for the security or posting of any bond in connection with any Action seeking specific performance of such covenants. Notwithstanding any other provision of this Agreement to the contrary, no Party shall be entitled to any equitable remedy, including an injunction or order for specific performance, to enforce any provision of this Agreement prior to the Closing.

13.15 Sellers’ Representative; Reliance.

(a) Energy Alloys, L.L.C., a Delaware limited liability company, is hereby appointed, and is authorized and empowered to act, in connection with, and to facilitate the consummation of, the transactions contemplated by this Agreement and the other Transaction Documents and in connection with any activities to be performed by Sellers under this Agreement and the other Transaction Documents, for the purposes and with the powers, and authority set forth in this Agreement (in such role, “Sellers’ Representative”), which will include, without limitation, the sole power and authority:

(i) to receive notices on behalf of Sellers hereunder pursuant to Section 13.3;

(ii) to receive and distribute the Closing Date Cash Amount or any other amount paid in connection with this Agreement or the other Transaction Documents to Sellers;

(iii) to enforce and protect the rights and interests of Sellers arising out of or under or in any manner relating to this Agreement and the other Transaction Documents (including in connection with any claims related to the transactions contemplated hereby and thereby) and, in connection therewith, to (A) assert any claim or institute any action, (B) investigate, defend, contest or litigate any action initiated by Buyer or any other Person pursuant to this Agreement and the other Transaction Documents and receive process on behalf of each Seller in any such action and compromise or settle on such terms as Energy Alloys, L.L.C. will determine to be appropriate, give receipts, releases and discharges on behalf of all or any Seller with respect to any such action, (C) file any proofs, debts, claims and petitions as Energy Alloys, L.L.C. may deem advisable or necessary, (D) settle or compromise any claims related to the transactions contemplated by this Agreement and the other Transaction Documents, including with respect to the Working Capital Adjustment and the adjustments contemplated by Section 3.1, (E) assume, on each Sellers’ behalf, the defense of any claims related to the transactions contemplated by this Agreement and the other Transaction Documents, and (F) file and prosecute appeals from any decision, judgment or award rendered in any of the foregoing actions;

(iv) to enforce or refrain from enforcing any right of any Seller arising out of or under or in any manner relating to this Agreement or the other Transaction Documents;

(v) to engage attorneys, accountants and agents;

(vi) to amend this Agreement (other than this Section 13.15), or any of the instruments to be delivered to Buyer by Sellers pursuant to this Agreement;

(vii) to take any action to be taken by one or more Sellers under or in connection with this Agreement or any other Transaction Document; or


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(viii) to make, execute, acknowledge and deliver all such other Contracts, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that Energy Alloys, L.L.C., in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the activities described Section 13.15(a)(i) through Section 13.15(a)(iv) and the transactions contemplated by this Agreement and the other Transaction Documents.

(b) Energy Alloys, L.L.C.’s power and grant of authority hereunder is (i) coupled with an interest and is irrevocable and survives the bankruptcy or liquidation of any Seller and will be binding on any successor thereto and (ii) may be exercised by Energy Alloys, L.L.C. signing as the Representative of any Seller.

(c) Buyer and its Affiliates and representatives may conclusively and absolutely rely, without inquiry, upon the action of Energy Alloys, L.L.C. as the action of each Seller (and may ignore any action taken or notice given by any Seller other than Energy Alloys, L.L.C.) in all matters relating to this Agreement, the other Transaction Documents or the transactions contemplated hereby and thereby. Any document delivered or notice delivered by or on behalf of Buyer or its Affiliates to, or action taken by or on behalf of Buyer or its Affiliates with respect to, Energy Alloys, L.L.C. shall be deemed to have been delivered to, or taken with respect to, all Sellers. Any amounts to be paid by Buyer to Sellers pursuant to this Agreement shall be divided by Sellers among themselves, but may be paid by Buyer toEnergy Alloys, L.L.C. Sellers shall be jointly and severally liable for any amounts due to be paid or owed by Sellers to Buyer pursuant to this Agreement.

(d) The agreements in this Section 13.15 shall survive termination of this Agreement.

13.16 Limitations on Losses.

(a) WITHOUT LIMITING ANY RIGHTS OF ANY PARTY TO RECEIVE THE BID PROTECTIONS IN ACCORDANCE WITH SECTION 7.5 OR SECTION 12.2 OF THIS AGREEMENT, NO PARTY (OR ITS AFFILIATES OR REPRESENTATIVES) SHALL, UNDER ANY CIRCUMSTANCE, BE LIABLE TO THE OTHER PARTY (OR ITS AFFILIATES OR REPRESENTATIVES) FOR ANY EXEMPLARY OR PUNITIVE DAMAGES CLAIMED BY SUCH OTHER PARTY UNDER THE TERMS OF OR DUE TO ANY BREACH OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO THE EXTENT SUCH DAMAGES ARE PAYABLE BY THE PARTY SEEKING SUCH DAMAGES TO A THIRD PARTY.

(b) In no event shall any Person be entitled to recover or make a claim for any amounts in respect of consequential, enhanced, incidental, indirect, special, punitive or exemplary damages (except to the extent payable in connection with a Third Party Claim) and, in particular, no loss of future income, revenue, or profits, business interruption, loss of business reputation or opportunity, diminution in value, “multiple of profits,” “multiple of cash flow” or similar valuation methodology shall be used or taken into account in calculating the amount of any Losses, in each case, regardless of whether or not the possibility of such damages has been disclosed to the other party in advance or could have been reasonably foreseen by any Person.

(c) No Buyer Indemnitees or Seller Indemnitees shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one Loss or related group of Losses.


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13.17 Non-Recourse.

No past, present or future director, officer, employee, incorporator, member, partner or equity holder of the Parties will have any liability for any obligations or liabilities of any Seller or Buyer, as applicable, under this Agreement, or any agreement entered into in connection herewith of or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby and thereby. Any claim or cause of action based upon, arising out of, or related to this Agreement or any agreement, document or instrument contemplated hereby may only be brought against Persons that are expressly named as parties hereto or thereto, and then only with respect to the specific obligations set forth herein or therein. Other than the Parties hereto, no Person shall have any liability or obligation for any of the representations, warranties, covenants, agreements, obligations or liabilities of any party under this Agreement or the agreements, documents or instruments contemplated hereby or of or for any action or proceeding based on, in respect of, or by reason of, the transactions contemplated hereby or thereby (including breach,termination or failure to consummate such transactions), in each case, whether based on contract, tort, fraud, strict liability, other Legal Requirements or otherwise and whether by piercing the corporate veil, by a claim by or on behalf of a party hereto or another Person or otherwise.

13.18 Legal Representation.

Each party to this Agreement has had the benefit of independent legal counsel with respect to the preparation of this Agreement and the documents related to the transactions contemplated hereby. Each of the Parties hereby acknowledges and agrees that Richards, Layton & Finger, P.A. and Akin Gump Strauss Hauer & Feld LLP (jointly, the “Seller Counsel”) has served and may continue to serve as counsel to Sellers and its Representatives (individually and collectively, the "Seller Group”), on the one hand, and the Company Group and certain of its Affiliates and Subsidiaries, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, and that following the Closing, Seller Counsel may serve as counsel to any member of the Seller Group in connection with any Action or other matter arising out of or relating to this Agreement or the transactions contemplated by this Agreement (each a "Dispute"), notwithstanding such representation (or any continued representation) of any member of the Seller Group, the Company Group or any of their Subsidiaries or Representatives and each of the parties hereto hereby consents thereto and waives any conflict of interest arising therefrom or in connection therewith. Buyer acknowledges and agrees that Seller Counsel has been and will be providing legal advice to certain members of the Seller Group, the Company Group and certain of their Subsidiaries and Representatives in connection with the transactions contemplated by this Agreement and in such capacity will have obtained confidential information of such parties (the "Seller Group Confidential Information"). The Seller Group Confidential Information includes (a) all communications, whether written or electronic, including any communications between Seller Counsel, any member Seller Group, the Company Group, and any Representative of the foregoing parties and (b) any files, attorney notes, drafts or other documents directly relating to this Agreement which predate or are dated on the Closing Date (collectively, the "Seller Counsel Work Product"). In any Dispute, to the extent that any Seller Group Confidential Information is in Seller Counsel’s possession as of the Closing Date, such Seller Group Confidential Information may be used on behalf of any member of the Seller Group in connection with such Dispute at the sole discretion of Seller. In any Dispute, Buyer and its Representatives waive the right to present any Seller Counsel Work Product as evidence in any Action arising out of or relating to any Dispute. Buyer and its Representatives waive their right to access any Seller Counsel Work Product, except as reasonably necessary in connection with an Action which is not a Dispute. Buyer, each member of the Company Group, and each of their Representatives hereby consent to the disclosure and use by Seller Counsel for the benefit of any member of the Seller Group or their Representatives of any information (confidential or otherwise) disclosed to it by the Company Group, any Subsidiary of the Company Group, or any Representative of the foregoing parties' prior to or on the Closing Date.


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13.19 Joinder.

At the Closing, any Person to whom Buyer assigns the right to receive the Acquired Interests or any of the Specified Assets at Closing shall execute a joinder to this Agreement in the form attached hereto as Exhibit A, pursuant to which each such other Person will assume, and will be obligated with Buyer on a joint and several basis, to perform and satisfy each of Buyer’s obligations under this Agreement.

[signature pages follow.]


SIGNATURE PAGE TO PURCHASE AGREEMENT

IN WITNESS WHEREOF, the Parties have caused this Purchase Agreement to be executed and delivered by their duly authorized representatives, all as of the Execution Date.

ENERGY ALLOYS, L.L.C.

By: _____________________________Name: Bryan GastonTitle: Chief Restructuring Officer

ENERGY ALLOYS CAYMAN HOLDING, L.L.C.


_______________________________________________ _____________________me: Bryaaaaayayayaaaaaaaaayaaaaaaaaan Gaston

________________________________________________________________________ _____________________me: Bryan Gaston


SIGNATURE PAGE TO PURCHASE AGREEMENT

BIOURJA COMMODITIES, LLC

By: _____________________________ Name: Shék Jain Title: Chief Operating Officer


Execution Version

FIRST AMENDMENT TO PURCHASE AGREEMENT

This First Amendment to Purchase Agreement (this “Amendment”), dated as of November 17, 2020 (the “Effective Date”), is made and entered into by and among (a) BioUrja Commodities, LLC, a Delaware limited liability company (“Buyer”), on one hand, and (b) Energy Alloys, L.L.C., a Texas limited liability company, and Energy Alloys Cayman Holding, L.L.C., a Texas limited liability company, on the other hand (the “Sellers” and each entity individually, a “Seller”), and amends that certain Purchase Agreement, dated as of November 10, 2020 (the “Original Purchase Agreement” and, as amended by this Amendment, the “Purchase Agreement”), by and between Buyer and Sellers.

WHEREAS, the parties desire to amend the Original Purchase Agreement in accordance with the terms set forth in this Amendment.

NOW THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Capitalized Terms. All capitalized terms used herein shall have the same meanings ascribed to them in the Original Purchase Agreement, unless otherwise defined in this Amendment.

2. Definitions. The following definition is hereby added to Section 1.1 of the Original Purchase Agreement:

“Good Faith Deposit” means an amount equal to $1,640,000 deposited with Citizens Bank, N.A., a national banking association, in connection with Buyer being named the Successful Bidder pursuant to the Bidding Procedures.

3. Purchase Price.

(a) The reference in Section 3.1(a)(i)(A) of the Original Purchase Agreement to “$16,338,000.000 (the “Base Purchase Price”)” is hereby deleted and replaced with:

“$16,400,000.00 (the “Base Purchase Price”)”

(b) Section 3.1(a)(iii) of the Original Purchase Agreement is hereby deleted and replaced with:

““Closing Date Cash Purchase Price” means an amount equal to the result of: (A) the Estimated Aggregate Closing Consideration, minus (B) the Adjustment Escrow Amount, minus (C) the Indemnification Escrow Amount, minus (d) the Good Faith Deposit.”

4. Buyer’s Delivery of Closing Consideration. Section 4.2(a) of the Original Purchase Agreement is hereby deleted and replaced with:

“the Estimated Aggregate Closing Consideration in cash by wire transfer of immediately available funds to the accounts specified by Sellers to Buyer at least three (3) days prior to the anticipated Closing Date, as follows:

(i) an amount equal to the Adjustment Escrow Amount into the Adjustment Escrow solely for the purpose of paying any amounts payable by Sellers pursuant to Section 3.1;


2

(ii) an amount equal to the Indemnification Escrow Amount into the Indemnification Escrow solely for the purpose of paying any amounts payable pursuant to Section 8.1;

(iii) release of the Good Faith Deposit to Sellers; and

(iv) an amount equal to the Closing Date Cash Purchase Price to Sellers.”

5. Specified Assets – Assigned Contracts.

(a) Those certain Contracts set forth on Schedule 1.1(q) and attached hereto as Exhibit A are hereby (i) removed from Schedule 1.1(q) and (ii) added to Schedule 5.11 as Excluded MSAs.

(b) Further, such Contracts set forth on Exhibit A shall no longer constitute Specified Assets or Assigned Contracts and as such there are no Assigned Contracts under the Purchase Agreement, including any Contracts to be assigned or transferred pursuant to Section 2.1(b)(i) of the Original Purchase Agreement, and correspondingly there are no Cure Costs.

(c) Section 10.9 of the Original Purchase Agreement is hereby deleted and replaced with:

“Reserved.”

6. Consent Letters. Section 4.3(l) of the Original Purchase Agreement is hereby deleted and replaced with:

“Reserved.”

7. Effect. Except to the extent expressly amended herein, the Original Purchase Agreement is hereby ratified and confirmed in all respects and will remain unmodified and in full force and effect. The Original Purchase Agreement is hereby amended so that any reference therein to the Agreement shall mean and refer to the Original Purchase Agreement as amended by this Amendment.

8. Counterparts. This Amendment may be executed in one or more counterparts, (including by means of .pdf or other electronic transmission), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[Signatures on Following Pages]


SIGNATURE PAGE TO FIRST AMENDMENT TO PURCHASE AGREEMENT

IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered by their duly authorized representatives, all as of the Effective Date.

ENERGY ALLOYS, L.L.C.


ENERGY ALLOYS CAYMAN HOLDING, L.L.C.


___________ ___________________________________________________ _____________________e: Bryaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaannn Gaston

____________________________________________________________________________ ___________________Bryan GGGaston


SIGNATURE PAGE TO FIRST AMENDMENT TO PURCHASE AGREEMENT

BIOURJA COMMODITIES, LLC By: _____________________________ Name: Title:

Shék JainChief Operating Officer


Exhibit A

Excluded MSAs

1. Strategic Supply Agreement, dated as of January 24, 2019, by and between Baker Hughes Oilfield Operations LLC and Energy Alloys, L.L.C., including that certain Agreed Addendum to Standard Terms of Purchase, dated as of January 10, 2019, by and between Baker Hughes Oilfield Operations LLC and Energy Alloys, L.L.C.

2. Master Purchase Agreement for Goods and Services, dated as of May 1, 2012, by and between Halliburton Energy Services, Inc. and Energy Alloys LLC, including the following affiliate addendums with respect thereto:

a. Affiliate Addendum, dated as of July 5, 2012, by and between Petroleum Manuf Serv Ltd. and Energy Alloys UK Ltd.

b. Affiliate Addendum, dated as of July 5, 2012, by and between Hall Mfg and Serv Ltd. and Energy Alloys UK Ltd.

c. Affiliate Addendum, dated as of October 1, 2012, by and between Halliburton Completion

Tools Manufacturing Pte Ltd and Energy Alloys Pte Ltd.

d. Affiliate Addendum, dated as of October 1, 2012, by and between Halliburton Far East Pte Ltd and Energy Alloys Pte Ltd.

e. HAL M1 Malaysia Affiliate Addendum, dated as of January 30, 2013 and amended as of

April 15, 2015, by and between Halliburton Manufacturing and Technology (M) Sdn Bhd and Energy Alloys Pte Ltd.

f. Affiliate Addendum, dated as of January 1, 2020, by and between Halliburton

Manufacturing & Leasing Company, LLC and Energy Alloys LLC.
