UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 20-F/A

(Amendment No. 1)

Date of event requiring this shell company report:

Commission file number: 1-14832

Securities registered or to be registered pursuant to Section 12(b) of the Act:

Securities registered or to be registered pursuant to Section 12(g) of the Act:

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report.

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

Yes x   No o

If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.

Yes o   No x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

Yes x   No o

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).

Yes x   No o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,  a non-accelerated filer, or an emerging growth company. See definition of "large accelerated filer," "accelerated filer," and "emerging growth company" in Rule 12b-2 of the Exchange Act.

If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. o

†The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.

Indicate by check mark which basis of accounting the registrant has used to prepare the statements included in this filing:

If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.

Item 17 o   Item 18 o

If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

Yes o   No x

Explanatory Note

This Amendment No. 1 (this “Amendment”) to the Annual Report on Form 20-F for the year ended December 31, 2018 (the “Original Filing”), filed on March 11, 2019 (the “Original Filing Date”) by Celestica Inc. (“we,” “our,” or the “Company”), is being filed solely: (i) to update the address of each of our principal executive office and company contact person set forth on the cover page of the Original Filing; (ii) to correct a transposed File No. in the Exhibit Index; and (iii) to replace Exhibits 4.24, 4.31 and 4.32 with the attached Exhibits 4.24, 4.31 and 4.32 (and amend the corresponding footnote in the Exhibit Index) to reflect amendments to paragraph 4(a) of Instructions as to Exhibits of Form 20-F governing the redaction of confidential information in material contracts, which became effective as of April 2, 2019.

Additionally, in connection with the filing of this Amendment, we are including certifications of our Chief Executive Officer and Chief Financial Officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”).

Except as described above, this Amendment: does not amend any other information set forth in the Original Filing; speaks as of the Original Filing Date; does not reflect any events that may have occurred subsequent to the Original Filing Date; and does not modify or update any disclosures made in the Original Filing.

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Item 19.    Exhibits

The following exhibits have been filed as part of this Annual Report:

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3

4

*                                         Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. This exhibit has been filed separately with the Securities and Exchange Commission without redactions. Confidential treatment has been granted pursuant to our Application for an Order Granting Confidential Treatment Pursuant to Rule 24b-2 of the U.S. Exchange Act.

**                                  Will not be deemed “filed” for purposes of Section 18 of the U.S. Exchange Act, or otherwise subject to the liability of Section 18 of the U.S. Exchange Act, and will not be incorporated by reference into any filing under the U.S. Securities Act, or the U.S. Exchange Act, except to the extent that the registrant specifically incorporates it by reference.

†                                         Certain portions of this exhibit have been omitted because they are both: (i) not material; and (ii) would likely cause competitive harm to the Company if publicly disclosed.

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SIGNATURES

The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this Amendment No. 1 to annual report on its behalf.

Date: April 25, 2019

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Exhibit 4.24

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE LIKELY TO CAUSE COMPETITITVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED. SUCH EXCLUDED INFORMATION IS DENOTED BY ASTERISKS IN BRACKETS [**].

TENTH AMENDMENT TO THE AMENDED AND RESTATED

REVOLVING TRADE

RECEIVABLES PURCHASE AGREEMENT

MEMORANDUM OF AGREEMENT made as of the 23rd day of November, 2018.

BETWEEN:

CELESTICA INC.,

(hereinafter referred to as the “Servicer”),

- and –

CELESTICA LLC,

CELESTICA HOLDINGS PTE LTD,

CELESTICA VALENCIA S.A. (SOCIEDAD UNIPERSONAL),

CELESTICA HONG KONG LTD.,

CELESTICA (ROMANIA) S.R.L.,

CELESTICA JAPAN KK,

CELESTICA OREGON LLC,

CELESTICA ELECTRONICS (M.) SDN.

BHD.,

CELESTICA IRELAND LIMITED

and

CELESTICA INTERNATIONAL LP

(hereinafter referred to collectively as the “Sellers”),

- and -

DEUTSCHE BANK (MALAYSIA) BERHAD

(hereinafter referred to as “Purchaser”, and together with Deutsche Bank, as the “Purchasers”)

- and -

DEUTSCHE BANK AG, NEW YORK BRANCH,

(hereinafter referred to as the “Administrative Agent” and “Deutsche Bank”).

WHEREAS the Sellers, the Servicer, the Purchasers and the Administrative Agent are parties to an Amended and Restated Revolving Trade Receivables Purchase Agreement, dated as of November 4, 2011, as amended by the First Amendment, dated as of November 19, 2012; by the Second Amendment, dated as of January 2, 2013; by the Third Amendment, dated as of November 21, 2013, by the Fourth Amendment, dated as of November 21, 2014, by the Fifth Amendment, dated as of November 23, 2015, by the Sixth Amendment, dated as of November 23, 2016, by the Seventh Amendment, dated as of October 6, 2017, by Eighth Amendment, dated as of November 22, 2017, and by Ninth

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Amendment, dated as of March 9, 2018 (as so amended, the “Receivables Purchase Agreement”);

WHEREAS the Sellers, the Servicer, the Purchasers and the Administrative Agent now wish to further amend the Receivables Purchase Agreement by this Tenth Amendment to the Amended and Restated Revolving Trade Receivables Purchase Agreement (this “Amending Agreement”);

AND WHEREAS Section 9.1 of the Receivables Purchase Agreement permits written amendments thereto with the written consent of each of the Sellers, the Servicer, the Required Purchasers and the Administrative Agent;

NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises, covenants and agreements of the parties herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each party, the parties hereby covenant and agree as follows:

1.                              Defined Terms: All capitalized terms and expressions used and not otherwise defined in this Amending Agreement including in the recitals hereto shall have the meanings specified in the Receivables Purchase Agreement.

2.                              Amendments of Definitions in Section 1.1:

(a)                            The definition of “Availability Termination Date” is amended and restated in its entirety as follows:

““Availability Termination Date”: the earlier of (i) the date that is the fourteenth anniversary of the Closing Date and (ii) the date on which the Administrative Agent delivers to the Servicer a notice of termination as a result of a Termination Event in accordance herewith (or the date on which such termination becomes effective automatically pursuant to Section 7).”

(b)                            A new definition of “Tenth Amendment” is hereby included in the correct alphabetical order:

““Tenth Amendment”: the Tenth Amendment to the Amended and Restated Revolving Trade Receivables Purchase Agreement, dated as of November 2018, by and among the Servicer, the Sellers, Deutsche Bank (Malaysia) Berhad and Deutsche Bank AG, New York Branch.”

3.                              Amendment to the Obligor Limits Schedule 1.2, “Eligible Buyers, Obligor Limits and Applicable Percentages” is deleted and replaced with Schedule 1.2 attached hereto.

4.                              Representations and Warranties To induce the Administrative Agent and the

Purchasers to enter into this Amending Agreement, the Guarantor and each of the Sellers hereby jointly and severally make the following representations and warranties (provided that Celestica Valencia and Celestica Romania shall only be responsible hereunder for its own representations and warranties):

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(a)                                 The Guarantor and each of the Sellers hereby represent and warrant as of the date of this Amending Agreement that no Termination Event or Incipient Termination Event has occurred and is continuing.

(b)                                 The Guarantor and each of the Sellers hereby represent and warrant as of the date of this Amending Agreement and as of the Effective Date (as defined below) that the audited consolidated balance sheets of Celestica Canada and its consolidated Subsidiaries as of December 31, 2017, and the related statements of income and of cash flows of Celestica Canada for the fiscal year ended on such dates, present fairly in all material respects the consolidated financial condition of Celestica Canada and its consolidated Subsidiaries as at such date, and Celestica Canada’s consolidated results of operations and cash flows for the respective fiscal years then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP, applied consistently throughout the periods involved (except as approved by Celestica Canada’s accountants and disclosed therein).

(c)                                  The Guarantor and each of the Sellers hereby represent and warrant as of the date of this Amending Agreement and as of the Effective Date (as defined below) that since the date of the most recent financial statements made available to the Administrative Agent and the Purchasers there has been no change, development or event that has had or could reasonably be expected to have a Material Adverse Effect.

5.                                 Ratification Except for the specific changes and amendments to the Receivables Purchase Agreement contained herein, the Receivables Purchase Agreement and all related documents are in all other respects ratified and confirmed and the Receivables Purchase Agreement as amended hereby shall be read, taken and construed as one and the same instrument.

6.                                 Counterparts This Amending Agreement may be executed by one or more of the parties to this Amending Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of this Amending Agreement signed by all the parties shall be lodged with the Servicer and the Administrative Agent.

7.                                 Confirmation of Guarantee Guarantor hereby confirms and agrees that (i) the Guarantee is and shall continue to be in full force and effect and is otherwise hereby ratified and confirmed in all respects; and (ii) the Guarantee is and shall continue to be an unconditional and irrevocable guarantee of all of the Obligations (as defined in the Guarantee).

8.                                 Further Assurances Each party shall, and hereby agrees to, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such further acts, deeds, mortgages, transfers and assurances as are reasonably required for the purpose of accomplishing and effecting the intention of this Amending Agreement.

9.                                 Conditions to Effectiveness This Amending Agreement shall become effective (such date being the “Effective Date”) upon receipt by the Administrative Agent of counterparts (i) hereof, duly executed and delivered by each of the parties hereto and (ii) of the Fee Letter duly executed and delivered by Celestica Canada. The

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Administrative Agent shall inform the Guarantor, the Sellers and the Purchasers of the occurrence of the Effective Date.

10.                          Successors and Assigns This Amending Agreement shall be binding upon and inure to the benefit of the Sellers, the Servicer, the Purchasers, the Administrative Agent, and their respective successors and permitted assigns.

11.                          Governing Law This Amending Agreement shall be governed and construed in accordance with the laws of the Province of Ontario.

[remainder of this page intentionally left blank]

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Schedule 1.2

[**] Certain confidential information contained in this document, marked with asterisks in brackets, has been omitted because it is both not material and would be likely to cause competitive harm to the Company if publicly disclosed.

IN WITNESS WHEREOF, the parties hereto have caused this Amending Agreement to be duly executed and delivered by their properly and duly authorized officers as of the day and year first above written.

Exhibit 4.31

Execution Version

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE LIKELY TO CAUSE COMPETITITVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED. SUCH EXCLUDED INFORMATION IS DENOTED BY ASTERISKS IN BRACKETS [**].

NOTE: The representations and warranties contained in the following agreement have been made solely for the benefit of the parties thereto and should not be relied on by any other person. In addition, such representations and warranties: (i) have been qualified by disclosure schedules, (ii) are subject to the materiality standards set forth herein, which may differ from what may be considered to be material by investors, and (iii) were made only as of the date of the agreement or such other date as specified therein. Accordingly, investors and security holders should not rely on the representations and warranties as characterizations of the actual state of facts. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the agreement, which subsequent information may or may not be fully reflected in the Company’s disclosures.

SECURITIES PURCHASE AND MERGER AGREEMENT

dated as of

October 9, 2018

by and among

IMPAKT HOLDINGS, LLC,

GRAYCLIFF PRIVATE EQUITY PARTNERS III PARALLEL (A-1 BLOCKER) LLC,

GRAYCLIFF PRIVATE EQUITY PARTNERS III PARALLEL LP,

CELESTICA (USA) INC.

IRON MAN ACQUISITION INC.,

IRON MAN MERGER SUB, LLC

and

FORTIS ADVISORS LLC,

in its capacity as Holder Representative

Table of Contents

Table of Contents

(continued)

Table of Contents

(continued)

Annexes

Annex A — Intentionally Deleted

Annex B — Agreed Accounting Principles

Annex C — Distribution Waterfall

Annex D — R&W Insurance Policy

Annex E — Blocker Interest Assignment Certificate

Annex F — Form of Escrow Agreement

Annex G — Form of Letter of Transmittal

Annex H — Form of Resignation

Annex I — Non-Solicitation and Non-Competition Agreements

Annex J — Form of Closing Certificate

Annex K — Form of Corporate Certificate

Annex L — Pre-Closing Reorganization

Annex M — Other Adjustment Items

Annex N — Special Receivable Amounts

Annex O — Key Consents

Schedules

Schedule 1.1: Liens

Schedule 1.2: Persons with Knowledge

Schedule 2.2(b)(ix): Persons Executing Non-Solicitation and/or Non-Competition Agreements

Schedule 3.2: Subsidiaries

Schedule 3.4: No Conflict

Schedule 3.5: Government Approvals; Consents

Schedule 3.6(a): Capitalization of the Company

Schedule 3.7: Capitalization of Subsidiaries

Schedule 3.8: Audited Financial Statements

Schedule 3.9: Undisclosed Liabilities

Schedule 3.10: Litigation and Proceedings

Schedule3.11: Legal Compliance

Schedule 3.13(a): Material Contracts

Schedule 3.13(b): Breach of Material Contracts

Schedule 3.14: Employee Benefit Plans

Schedule 3.15: Labor Relations

Schedule3.16: Taxation Matters of the Company and its Subsidiaries

Schedule 3.18: Broker’s Fees

Schedule 3.19: Licenses, Permits and Authorizations

Schedule 3.20: Real Property

Schedule 3.21(a): Intellectual Property

Schedule 3.21(b): Company Products

Schedule 3.22(d): Environmental Matters

Schedule 3.23(b): Absence of Certain Material Changes or Events

Schedule 3.24: Related Party Transactions

Schedule 3.25: Insurance

Schedule 3.26(a): Principal Customers

Schedule 3.26(b): Principal Suppliers

Schedule 3.27: Export Control

Schedule 3.32: Banking Information

Schedule 3.35: Blocker Company

Schedule3.36(c): Actions Against or Involving Impakt Fluid Systems, LLC

Schedule 4.9: Broker’s Fees

Schedule 5.1: Conduct of Business

SECURITIES PURCHASE AND MERGER AGREEMENT

This Securities Purchase and Merger Agreement (this “Agreement”), dated as of October 9, 2018 is entered into by and among GRAYCLIFF PRIVATE EQUITY PARTNERS III PARALLEL (A-1 BLOCKER) LLC, a Delaware limited liability company (“Blocker Company”), GRAYCLIFF PRIVATE EQUITY PARTNERS III PARALLEL LP (the “Blocker Seller”), IMPAKT HOLDINGS, LLC, a Delaware limited liability company (the “Company”), CELESTICA (USA) INC. (“Celestica USA”), IRON MAN ACQUISITION INC., a Delaware corporation (“Acquiror”), IRON MAN MERGER SUB, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Acquiror (“Merger Sub”), and FORTIS ADVISORS LLC, a Delaware limited liability company, solely in its capacity as the initial Holder Representative hereunder (the “Holder Representative”).  Certain capitalized terms used herein have the meanings ascribed to such terms in ARTICLE I hereof.

RECITALS

WHEREAS, Acquiror, Merger Sub and the Company are hereby adopting a plan of merger, providing for the merger of Merger Sub with and into the Company, with the Company being the surviving entity;

WHEREAS, on the date hereof, each member of the Board of Managers and holders of Company units who hold, in the aggregate, a number of units entitled to cast votes in excess of that number of votes necessary, in each case, under and in full compliance with any requirements, including any notice requirements, of the DLLCA and the Existing LLC Agreement, for the approval of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby by the unitholders of the Company, have determined that this Agreement, the other Transaction Documents, and the transactions contemplated hereby and thereby are fair to, and in the best interests of, the Company and its unitholders, and have approved and adopted this Agreement, the Merger, the other Transaction Documents, and the transactions contemplated hereby and thereby and approved their advisability;

WHEREAS, the holders of at least 90% of the Units will deliver within five (5) Business Days of the execution and delivery of this Agreement, an agreement, inter alia, to be bound by the indemnification provisions of this Agreement and to provide specified releases following the Effective Time (collectively, the “Unitholder Agreements”);

WHEREAS, the Blocker Seller is the record and beneficial owner of 100% of the equity of the Blocker Company (such interest, the “Blocker Interest”), and as of the Closing, the Blocker Company will be the registered and beneficial owner of 3,404,408 Class A Units of the Company; and

WHEREAS, the Blocker Seller desires to sell to Acquiror and Acquiror desires to acquire from Blocker Seller all of the Blocker Interest in accordance with and subject to the terms set forth herein.

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AGREEMENT

In consideration of the mutual agreements hereinafter contained, the Blocker Company, the Blocker Seller, Acquiror, Merger Sub, the Company and the Holder Representative agree as follows:

ARTICLE I.
CERTAIN DEFINITIONS

1.1          As used herein, the following terms shall have the following meanings:

“2016 Agreement” means the Securities Purchase Agreement dated June 22, 2016 among Yong Su Pak, Yong Kil Pak, Impakt Opti Holdings, Inc., Impakt Holdings, LLC and Graycliff Impakt A-1 Coinvestors, LLC.

“Acquiror” has the meaning specified in the Preamble.

“Action” means any action, suit, audit, arbitration, mediation, complaint, counterclaim, examination, investigation, administrative enforcement proceeding, request for information or any other proceeding, in each case, whether criminal or civil, by or before any Governmental Authority at Law or in equity, including any appeal or review thereof and application for leave for appeal or review.

“Adjustment Amount” has the meaning specified in Section 2.7(c).

“Adjustment Escrow Amount” means $[**]1.

“Adjustment Escrow Fund” means a separate account in which the Adjustment Escrow Amount will be deposited to be held in trust with the Escrow Agent for the benefit of the Escrow Participants in accordance with this Agreement and the Escrow Agreement.

“Affiliate” means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person,  through one or more intermediaries or otherwise.  For purposes of this definition “control” shall mean, when used with respect to any Person, the power to direct the management and policies of such Person, directly or indirectly, through the ownership of voting securities, by contract or otherwise.  For purposes of this Agreement, the Blocker Company shall be deemed an “Affiliate” of the Company.

“Agreed Accounting Principles” means the accounting principles and methodologies set forth on Annex B hereto.

“Agreement” has the meaning specified in the Preamble.

1  Certain confidential information contained in this document, marked with asterisks in brackets, has been omitted because it is both not material and would be likely to cause competitive harm to the Company if publicly disclosed.

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“Antitrust Authorities” means the Antitrust Division of the United States Department of Justice, the United States Federal Trade Commission or the antitrust or competition Law authorities of any other jurisdiction (whether United States, foreign or multinational).

“Audited Financial Statements” has the meaning specified in Section 3.8(a).

“Auditor” has the meaning specified in Section 2.7(a).

“Blocker Adjustment Amount” has the meaning specified in Section 2.7(c).

“Blocker Company” has the meaning specified in the Preamble.

“Blocker Company Payment” means a portion of the Closing Consideration distributable to the Blocker Seller as consideration for the sale of the Blocker Interest to Acquiror in accordance with the Distribution Waterfall minus the Estimated Current Blocker Tax Liabilities.

“Blocker Company Interest Acquisition” has the meaning specified in Section 2.1(b).

“Blocker Interest” has the meaning specified in the Recitals.

“Blocker Interest Assignment Certificate” has the meaning specified in Section 2.1(b).

“Blocker Seller” has the meaning specified in the Preamble.

“Board of Managers” means the Board of Managers of the Company.

“Bonus Agreement” the Bonus Agreement dated on or about September 27, 2018.

“Bonus Agreement Payment” means the payments due pursuant to the Bonus Agreement by [**]2, [**]2 and Impakt Opti Holdings, Inc. to the Bonus Payment Recipient, which will be paid by [**]2, [**]2 and Impakt Opti Holdings, Inc.  in accordance with the terms of the Bonus Agreement.

“Bonus Payment Recipient” means the individual entitled to payments pursuant to the Bonus Agreement.

“Books and Records” means all information in any form relating to the business of the Company Group, including books of account, financial, tax, business, marketing, sales, personnel and research information and records, client lists, information and records, equipment logs, operating guides and manuals, business reports, plans and projections, litigation records and all other documents, files, correspondence and other information.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York, or Toronto, Ontario are authorized or required by Law to close.

2  Certain confidential information contained in this document, marked with asterisks in brackets, has been omitted because it is both not material and would be likely to cause competitive harm to the Company if publicly disclosed.

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“Cash and Cash Equivalents” of any Person as of any date means the cash and cash equivalents required to be reflected as cash and cash equivalents on a consolidated balance sheet of such Person and its Subsidiaries as of such date prepared in accordance with GAAP (which may be a negative number in the event of overdrafts), including cash and checks that are deposits-in-transit net of all checks, outgoing wires or drafts written by or on behalf of such Person and its Subsidiaries but not yet cleared and excluding all security or similar deposits.

“Certificate of Merger” has the meaning specified in Section 2.1(a).

“Change in Control Payment” means (a) any bonus, success fee, change in control payment, severance payment, retention payment, and any other payment, benefit or compensation that is accelerated, accrues or becomes due or payable by any member of the Company Group to any present or former director, employee or consultant of the Company Group or to any other Person or Governmental Authority, including pursuant to any Employee Plan or Contract, in each case as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (including any such payment, benefit or compensation conditioned on the occurrence of the Closing or the Merger) but not any action (including any termination of service following the Closing or the Merger) by the Acquiror, Surviving Entity or any of its Subsidiaries taken after the Closing and (b) the employer portion of any payroll Taxes attributable to any amounts described in the preceding clause (a). For greater certainty, any Change of Control Payments (as defined in the DGC Agreement) and any amounts payable under or in connection with the termination of the DGC Agreement that remain unpaid as of the Effective Time shall be treated as Change of Control Payments hereunder.  Further, except for the employer portion of any payroll Taxes attributable thereto, any amounts payable under or in connection with the Bonus Agreement shall not be treated as Change of Control Payments hereunder.

“Closing” has the meaning specified in Section 2.2.

“Closing Balance Sheet” has the meaning specified in Section 2.7(a).

“Closing Certificate” has the meaning specified in Section 2.2(b)(i).

“Closing Consideration” has the meaning specified in Section 2.4(a)(ii).

“Closing Consideration Allocation” has the meaning specified in Section 7.5(c)(ii).

“Closing Date” has the meaning specified in Section 2.2.

“Closing Date Cash” means the Cash and Cash Equivalents of the Company Group as of the Reference Time.

“Closing Date Indebtedness” means the aggregate amount of all Indebtedness of the Company Group as of the time of Closing (other than any Indebtedness included in Holder Expenses).

“Closing Date Net Working Capital” means (i) Current Assets minus (ii) Current Liabilities, in each case as of the Reference Time.

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“Closing Date Other Adjustment Amount” means, without duplication, the aggregate net amount, whether positive or negative, of the value of the Other Adjustment Items, in each case calculated as of the Reference Time in accordance with the Agreed Accounting Principles.

“Closing Statement” has the meaning specified in Section 2.7(a).

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

“Company” has the meaning specified in the Preamble.

“Company Disclosure Schedule” has the meaning specified in the introduction to ARTICLE III.

“Company Group” means the Blocker Company, the Company and each of their respective Subsidiaries.

“Company Intellectual Property” has the meaning specified in Section 3.21(c).

“Company Products” means all products from which the Company and its Subsidiaries have derived within the one (1) year period preceding the date hereof revenue from the sale, license, maintenance or provision thereof.

“Company Transaction” has the meaning specified in Section 5.3.

“Confidentiality Agreement” has the meaning specified in Section 12.13.

“Contracts” means any written or oral contracts, agreements, subcontracts, leases, licenses, bonds, mortgage, indentures and notes.

“Cooley” has the meaning specified in Section 12.7.

“Credit Agreements” means (i) the Credit Agreement dated January 23, 2017 among the Company, A-1 Machine Manufacturing Incorporated and Comerica Bank, as amended March 17, 2017, which includes the Master Revolving Note dated January 23, 2017, the term loan note dated August 31, 2017, the Guaranty dated January 23, 2017 made by Sun Surface Technology the general security agreement dated January 23, 2017 and the pledge agreement dated January 23, 2017, (ii) the Loan Contract, dated April 14, 2017, by and between Industrial Bank of Korea and A-1 Engineering Korea, Inc. and (iii) Loan Contract, dated June 30, 2017, by and between Industrial Bank of Korea and A-1 Engineering Korea, Inc.

“Current Assets” means, without duplication, the aggregate amount of the current assets of the Company and its Subsidiaries measured on a consolidated basis as of the Reference Time and in a manner consistent with the terms set forth in Annex B; provided, however, that “Current Assets” shall exclude: (i) Cash and Cash Equivalents, (ii) Tax assets, (iii) any inventory of the Company and its Subsidiaries that is older than 12 months, (iv) any inventory of the Company and its Subsidiaries to the extent that the Company and its Subsidiaries holds an amount of such inventory that is in excess of 12 months’ demand at current and expected levels of demand; (v) any Special Receivable Amounts, (vi) any amounts in connection with the Other Adjustment

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Items, (vii) any receivable or other asset of A-1 Engineering Korea, Inc. and A-1 Machine Manufacturing Incorporated related to the approximately $472,000 advance made to Impakt Fluid Systems, LLC, (viii) any current assets of Impakt Fluid Systems, LLC; and (ix) all scrap materials, including material scrapped in the Santa Clara site building reduction cleanup and material sent to South Korea for qualification (not production).

“Current Liabilities” means, without duplication, the aggregate amount of the current liabilities of the Company and its Subsidiaries measured on a consolidated basis as of the Reference Time and in a manner consistent with the terms set forth in Annex B, which shall include any current Tax liabilities, calculated in accordance with Section 7.5(i) and 7.5(j); provided, however, that “Current Liabilities” shall exclude (i) any Holder Expenses, (ii) Indebtedness included in Closing Date Indebtedness, (iii) any amounts included in the Other Adjustment Items, (iv) any current liabilities of Impakt Fluid Systems, LLC and (v) the Bonus Agreement Payment Amount.

“Current Blocker Tax Liabilities” means the aggregate amount of current Tax liabilities of the Blocker Company as of the Reference Time, calculated in accordance with Section 7.5(i) and Section 7.5(j).

“Damages” has the meaning specified in Section 9.2(c).

“Deductible” has the meaning specified in Section 9.3(d).

“DGC Agreement” means the Sales Representative Agreement dated as of November 7, 2016 between A-1 Machine Manufacturing Incorporated and DGC Global, Inc.

“Dispute” means any dispute, controversy, claim, counterclaim or similar matter which relates to or arises out of or in connection with this Agreement, including the validity, existence, construction, meaning, performance or effect of this Agreement, or the rights and liabilities of the parties hereto, the Holders and the holders of Phantom Units.

“Distribution Waterfall” is defined in, and shall be calculated in accordance with, the “Distribution Waterfall Schedule” attached hereto as Annex C, which shall be updated as necessary by the Company prior to the Closing.

“DLLCA” means the Delaware Limited Liability Company Act.

“Effective Time” has the meaning specified in Section 2.1.

“Employee Plans” means each “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA), and each other (a) retirement, welfare, severance, bonus, incentive, vacation, life, deferred compensation, profit-sharing, or other benefit or compensation plan, program, policy, arrangement or agreement; (b) stock options, stock appreciation rights, or other forms of equity or equity-based compensation or benefits; and (c) employment or offer letters or agreements, separation, termination, change of control or other contract, arrangement or policy providing compensation or benefits, which, in each case, is currently entered into, maintained, contributed to or required to be contributed to, as the case may

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be, by the Company or any of its Subsidiaries or under which the Company or any of its Subsidiaries has or may incur any liability or obligation.

“Environment” means any of the following:

(a)           land, including surface land, sub-surface strata and any natural or man-made structures;

(b)           water, including coastal and inland waters, surface waters, ground waters, drinking water supplies and waters in drains and sewers, surface and sub-surface strata; and

(c)           air, including indoor and outdoor air; and

(d)           natural resources.

“Environmental Laws” means all Laws, as in effect on or prior to the Closing Date, relating to pollution, the protection of the Environment, Releases of Hazardous Substances or the protection of human health (to the extent related to Hazardous Substances), including, without limitation, CERCLA, the Superfund Amendments and Reauthorization Act, as amended, the Resource Conservation and Recovery Act, as amended, the Toxic Substances Control Act, as amended, the Clean Water Act, as amended, the Clean Air Act, as amended, and any applicable national, international, federal, state or local Law having a similar subject matter.

“Environmental Matter” means:

(a)           pollution or contamination of the Environment, including, soil or groundwater contamination or the occurrence or existence of, or the continuation of the existence of, a Release of any Hazardous Substance;

(b)           the treatment, disposal or Release of any Hazardous Substance;

(c)           exposure of any person to any Hazardous Substance; and/or

(d)           the violation of any Environmental Law or any Environmental Permit.

“Environmental Permit” means any Permit issued, granted or required under Environmental Laws.

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

“ERISA Affiliate” means any Person that, at any relevant time, is treated as a single employer with the Company or any of its Subsidiaries pursuant to Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.

“Escrow Agent” has the meaning specified in Section 2.5(b)(i).

“Escrow Agreement” has the meaning specified in Section 2.5(b)(i).

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“Escrow Fund” means the Indemnity Escrow Fund, the Adjustment Escrow Fund, the Special Escrow Fund and the Current Income Tax Escrow Fund.

“Escrow Participant” means each Holder.

“Estimated Closing Balance Sheet” has the meaning specified in Section 2.6.

“Estimated Closing Date Cash” has the meaning specified in Section 2.6.

“Estimated Closing Date Indebtedness” has the meaning specified in Section 2.6.

“Estimated Closing Date Net Working Capital” has the meaning specified in Section 2.6.

“Estimated Closing Statement” has the meaning specified in Section 2.6.

“Estimated Current Blocker Tax Liabilities” has the meaning specified in Section 2.6.

“Estimated Holder Expenses” has the meaning specified in Section 2.6.

“Estimated Other Adjustment Amount” has the meaning specified in Section 2.6.

“Evaluation Material” has the meaning specified in Section 3.37.

“Excluded Units” has the meaning specified in Section 2.4(a)(i).

“Existing Indebtedness” means Indebtedness pursuant to the Credit Agreements.

“Existing LLC Agreement” means that certain First Amended and Restated Operating Agreement of the Company, dated as of May 2, 2017, as amended on or about December 7, 2017 and February 22, 2018.

“Financial Statements” has the meaning specified in Section 3.8(b).

“Flow-Through Tax Return” means any income Tax Return filed by the Company or any of its Subsidiaries to the extent that (i) the Company or its Subsidiary is treated as a pass-through entity for purposes of such Tax Return and (ii) the results of operations reflected on such Tax Return are allocated to, and reflected on the Tax Returns of, one or more of the holders of Units (or the holders’ direct or indirect owners).

“Fraud” means an act in the making of a representation or warranty expressly set forth this Agreement or any certificate delivered pursuant to this Agreement, committed by the Company, the Blocker Company or the Blocker Seller making such express representation or warranty, that such party making such representation or warranty knew or believed to be false or made with reckless indifference to the truth, with intent by it or any of its Representatives to deceive Acquiror or to induce Acquiror to enter into this Agreement, and requires (a) a false representation of fact expressly set forth in the representations and warranties set forth in this Agreement; (b) knowledge by the party making the representation and warranty or their Representatives that such representation and warranty is false; and (c) an intention to induce Acquiror to act or refrain from acting in reliance upon it or causing Acquiror, in justifiable reliance upon such false representation

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and with ignorance to the falsity of such representation, to take or refrain from taking action (the parties acknowledge that “taking action” shall include Acquiror executing this Agreement in reliance on the false or recklessly given representation and warranty); or (d) the Acquiror suffering damage by reason of its reliance on the false or recklessly given representation and warranty.

“Fundamental Representations” shall means each of the representations and warranties set forth in Section 3.1 (Organization of the Company), Section 3.2 (Subsidiaries) Section 3.3 (Due Authorization), Section 3.6 (Capitalization of the Company), Section 3.7 (Capitalization of Subsidiaries), Section 3.18 (Brokers’ Fees), and Section 3.35 (Blocker Company).

“GAAP” means United States generally accepted accounting principles.

“Government Contract” means any prime contract, subcontract, teaming agreement or arrangement, joint venture, basic ordering agreement, purchase order, task order, delivery order, change order or other contractual commitment of any kind, between the Company or its Subsidiaries and (i) a Governmental Authority, (ii) any prime contractor to a Governmental Authority in its capacity as a prime contractor, or (iii) any subcontractor with respect to any Contract described in clauses (i) or (ii) above. A task, purchase or delivery order under a Government Contract will not constitute a separate Government Contract, for purposes of this definition, but will be part of the Government Contract to which it relates.

“Governmental Authority” means any federal, state, provincial, municipal, local or foreign government, governmental or quasi-governmental authority of any nature, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, stock exchange, court, tribunal, arbitrator or arbitral body or mediator of a competent jurisdiction or any individual, entity or body exercising, or entitled to exercise, any governmental, executive, legislative, judicial, administrative, regulatory, audit, investigative, police, military or taxing authority or power on behalf of the above noted entities.

“Governmental Official” means (i) any official, officer, employee or representative of, or any Person acting in an official capacity for or on behalf of, any Governmental Authority, or (ii) any political party or party official or candidate for political office.

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

“Hazardous Substance” means, collectively, any (a) petroleum or petroleum products, or derivative or fraction thereof, radioactive materials (including radon gas), asbestos in any form that is friable, urea-formaldehyde foam insulation (“UFI”), and polychlorinated biphenyls (“PCBs”) and/or (b) any chemical, material, substance or waste, which is defined, classified, listed or characterized by a Governmental Authority as hazardous, toxic, restricted, ignitable, corrosive, reactive, a pollutant or contaminant, or words of similar meaning and effect.

“Holder” means each holder of Units and Blocker Seller.

“Holder Expenses” means the sum of (i) the fees and expenses arising from the provision of services at or prior to the Closing that have been incurred on or prior to the Closing Date and payable by any member of the Company Group in connection with the preparation, negotiation

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and execution of this Agreement or any other Transaction Document or the consummation of the transactions contemplated hereby and thereby or in connection with the sale process or pursuing a sale of the Company or the business of the Company to a buyer other than the Acquiror  (including all such amounts referred to in Section 3.18)  and (ii) the aggregate amount of any Change in Control Payments, in each case, with respect to clauses (i) and (ii), to the extent not paid prior to the Closing.  For the avoidance of doubt, Holder Expenses shall not include Taxes other than as expressly set forth in the definition of Change in Control Payments.

“Holder Representative” has the meaning specified in the Preamble.

“Holder Representative Engagement Agreement” means that certain Engagement Agreement by and among the Company, the Holder Representative and the Advisory Group.

“Holder Representative Expense Fund” has the meaning specified in Section 11.2(b).

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

“[**]3 Investigation” means the active [**]3 investigation of the affairs of the Company Group.

“Immediate Family” means, with respect to any specified Person, such Person’s spouse, parents, children (whether natural or adopted), children of a spouse, and siblings, or any other relative of such Person that shares such Person’s home.

“Income Tax” means any federal, state, local, or foreign Tax measured by or imposed on net income or franchise tax imposed in lieu thereof.

“Indebtedness” of any Person as of any date means, without duplication, all liabilities and obligations of such Person and its Subsidiaries, together with accrued and unpaid interest thereon and any prepayment, premium or other penalties and any fees and expenses thereunder due upon repayment thereof, including any such amounts contingent upon or related to the Closing (a) for borrowed money; (b) evidenced by bonds, debentures, notes, debt securities, loans, credit agreements, mortgages, or similar instruments for the payment of which such Person is responsible or liable; (c) as an account party in respect of letters of credit and bankers’ acceptances or similar credit or surety transactions, but only to the extent drawn at Closing; (d) with respect to leases required to be treated as capital leases under GAAP; (e) for the deferred purchase price of property, services, equity or other assets (including all seller notes and “earn-out” payments but excluding any accounts payable or accrued expenses incurred in the Ordinary Course of Business and included as a current liability in the Closing Date Net Working Capital); (f) contractual obligations relating to interest rate or exchange rate protection, swap agreements and collar agreements or similar arrangements, (g) any amounts owing in respect of declared but unpaid dividends and any amounts owing in respect of put rights that have been exercised; and (h) all guaranties and other contingent obligations in respect of liabilities for borrowed money of others and similar commitments relating to any of the items set forth in clauses (a) through (g).  For the avoidance of doubt, Indebtedness shall not include Taxes.

“Indemnification Escrow Amount” means a cash amount equal to $[**]3.

3  Certain confidential information contained in this document, marked with asterisks in brackets, has been omitted because it is both not material and would be likely to cause competitive harm to the Company if publicly disclosed.

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“Indemnification Escrow Fund” means a separate account in which the Indemnification Escrow Amount will be deposited to be held in trust with the Escrow Agent in accordance with this Agreement and the Escrow Agreement.

“Indemnified Blocker Taxes” means (a) all Taxes imposed on the Blocker Company with respect to a Pre-Closing Tax Period (including Taxes under Section 951 or Section 951A of the Code to the extent attributable to Pre-Closing Tax Periods), (b) all liabilities of the Blocker Company for Taxes of another Person as a result of the Blocker Company being (or having been), on or prior to the Closing Date, a member of an affiliated, consolidated, combined, unitary or similar Tax group, including pursuant to Treasury Regulations Section 1.1502-6 or any analogous or similar Law, (c) all Taxes of any Person imposed on the Blocker Company as a transferee or successor, by contract (other than an Ordinary Commercial Agreement) or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing, and (d) to the extent not included in (a) above all Taxes imposed on the Blocker Company under Section 965 of the Code; provided, however, that Indemnified Blocker Taxes shall be calculated in accordance with Section 7.5(i) and Section 7.5(j) and shall not include any Taxes taken into account as Current Blocker Tax Liabilities in the calculation of the Blocker Company Payment.

“Indemnified Person” has the meaning specified in Section 6.1(a).

“Indemnified Taxes” means (a) all Taxes imposed on the Company or its any of its Subsidiaries with respect to a Pre-Closing Tax Period (including Taxes under Section 951 or Section 951A of the Code to the extent attributable to Pre-Closing Tax Periods), (b) all liabilities of the Company or any of its Subsidiaries for Taxes of another Person as a result of the Company or any of its Subsidiaries being (or having been), on or prior to the Closing Date, a member of an affiliated, consolidated, combined, unitary or similar Tax group, including pursuant to Treasury Regulations Section 1.1502-6 or any analogous or similar Law, (c) all Taxes of any Person imposed on the Company or any of its Subsidiaries as a transferee or successor, by contract (other than an Ordinary Commercial Agreement) or pursuant to any Law, which Taxes relate to an event or transaction occurring before the Closing, and (d) to the extent not included in (a) above all Taxes imposed on the Company or any of its Subsidiaries under Section 965 of the Code; provided, however, that Pre-Closing Taxes shall be calculated in accordance with Section 7.5(i) and Section 7.5(j) and shall not include any Taxes taken into account as Change in Control Payments in the calculation of Holder Expenses or as Current Liabilities in the calculation of Closing Date Net Working Capital.

“Intellectual Property” means all intellectual property and proprietary rights throughout the world,  whether or not registrable, patentable or otherwise formally protectable, and whether or not registered, patented, otherwise formally protected, or the subject of a pending application therefor, including: (a) all inventions, patents and patent applications; (b) all trademarks, service marks, trade dress, and logos, whether at common law or registered, domain names, social media

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identities, mobile applications and all applications, registrations, and renewals in connection therewith; (c) all copyrights, and all applications, registrations and renewals in connection therewith and the benefits of any moral rights waivers in respect of works in which copyright subsists; (d) all industrial designs and all applications and registrations in connection therewith; (e) all trade secrets, know-how and proprietary confidential business information.

“Interim Financial Statements” has the meaning specified in Section 3.8(b).

“Key Consents” means those consents listed on Annex O other than the Required Consent.

“Laws” means, with respect to any Person, all provisions of statutes, rules, regulations, ordinances, policy, guidance, and orders of any Governmental Authority, all common law applicable to such Person and all Governmental Orders to which such Person is a party and all other provisions having the force or effect of law issued by any Governmental Authority.

“Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by the Company or any of its Subsidiaries.

“Leasehold Improvements” means all buildings, structures, improvements and fixtures located on any Leased Real Property which are owned by the Company or any of its Subsidiaries, regardless of whether title to such buildings, structures, improvements or fixtures are subject to reversion to the landlord or other third party upon the expiration or termination of the lease for such Leased Real Property.

“Letter of Transmittal” has the meaning specified in Section 2.5(c).

“Liability” means, with respect to any Person, any Indebtedness, liability, claim, commitment or other obligation of any kind or character, whether fixed or unfixed, known or unknown, asserted or unasserted, liquidated or unliquidated, joint or several, due or to become due, incurred, absolute, contingent or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.

“Lien” means any mortgage, deed of trust, collateral security arrangement, pledge, title imperfection, title defect, hypothecation, conditional or installment sales agreement, charge, easement, encroachment, encumbrance, security interest or other lien, reservation or restriction of any kind.  For the avoidance of doubt, “Liens” shall not include non-exclusive licenses of Intellectual Property.

“Material Adverse Effect” means, any event, change, development, effect, condition, fact, or circumstance that, individually or in the aggregate with other events, changes, developments, effects, conditions, facts, or circumstances, that (a) has had, or could reasonably be expected to have, a material adverse effect on the business, operations, results of operations, assets, liabilities or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole or (b) that does, or would reasonably be expected to, prevent, or materially and adversely impair, delay or affect the ability of such Person or its Subsidiaries to perform their obligations hereunder and to consummate the transactions contemplated hereby (including the Closing and the Merger); provided, however, that, except as set forth in the proviso immediately below, in no event would

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any of the following, alone or in combination, be deemed to constitute, nor shall any of the following (including the effect of any of the following) be taken into account in determining whether there has been or will be, a “Material Adverse Effect” on or in respect of the Company and its Subsidiaries: (i) any change in economic, business or financial market conditions generally, (ii) any acts of terrorism or war, (iii) earthquakes, floods, natural disasters or other acts of nature, (iv) any change generally affecting any of the industries in which such Person or its Subsidiaries operates, (v) changes in Law or GAAP, (vi) the public announcement of this Agreement or the Merger, (vii) the compliance with the express terms of this Agreement or the taking of any action required by this Agreement or (viii) any failure to meet its financial projections (including, without limitation, revenues, bookings or earnings) of the Company and its Subsidiaries relating to any period after the date hereof (but not excluding any of the reasons for or factors contributing to any such failure); provided further that, the items (and the effects of the items) in clauses (i), (ii), (iii), (iv), and (v) shall be taken into account in determining whether a Material Adverse Effect exists or has occurred if such items have a disproportionate impact on the Company and its Subsidiaries taken as a whole relative to other participants in the industries in which the Company or its Subsidiaries operate.

“Merger” has the meaning specified in Section 2.1.

“Merger Sub” has the meaning specified in the Preamble.

“Merger Sub Units” has the meaning specified in Section 4.8.

“Non-Solicitation Agreement” means those certain Non-Solicitation Agreement to be entered into between Acquiror, the Company and each of the Persons identified in Schedule 8.2(f)(viii) in the form attached hereto as Annex I-A.

“Non-Solicitation and Non-Competition Agreements” means those certain Non-Solicitation and Non-Competition Agreements to be entered into between Acquiror, the Company and each of the Persons identified in Schedule 8.2(f)(viii) in the form attached hereto as Annex I-B.

“Notice of Indemnification Claim” has the meaning specified in Section 9.7.

“Ordinary Commercial Agreement” has the meaning specified in Section 3.16(e).

“Ordinary Course of Business” means, consistent in nature, scope and magnitude with the past practices of the Company Group, in the ordinary course of normal day-to-day operations of
the Company Group without requiring the authorization of the equityholders of any of the Company Group or any other separate or special authorization of any nature.

“Other Adjustment Items” means those items set forth on Exhibit M.

“Outside Date” means December 31, 2018 or such later date as may be agreed to in writing by the Parties; provided, that if the Closing has not occurred by the Outside Date as a result of the failure to satisfy the condition set forth in Section 8.1(a), then either Acquiror or the Company may from time to time elect in writing to extend the Outside Date for up to four successive periods of 15 days, provided that such party so electing is then in compliance in all material respects with

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its obligations under this Agreement and the party so extending the Outside Date reasonably believes that the condition set forth in Section 8.1(a) is capable of being satisfied prior to the Outside Date, as it may be extended.

“Owned Intellectual Property” means Intellectual Property owned by the Company or any of its Subsidiaries.

“Owned Real Property” has the meaning specified in Section 3.20(a).

“Paying Agent” means Epiq Corporate Restructuring, or such other Person as the Acquiror and Holder Representative designate.

“Paying Agent Agreement” means that certain Paying Agent Agreement to be entered into between Acquiror, the Holder Representative and the Paying Agent in form and substance reasonably satisfactory to the Acquiror and the Holder Representative.

“Permits” has the meaning specified in Section 3.19.

“Permitted Liens” means (a) mechanics, materialmen’s and similar Liens for labor, materials or supplies provided with respect to Leased Real Property incurred in the Ordinary Course of Business for amounts which are not due and payable and which would not, individually or in the aggregate, materially impair the business conducted thereon; (b) Liens for current Taxes not yet due and delinquent or which are being contested in good faith through appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP; (c) easements, covenants, conditions, restrictions and other similar matters of record affecting title to any Leased Real Property which do not or would not, individually or in the aggregate, materially impair the use or occupancy of such Leased Real Property in the operation of the business conducted thereon; (d) Liens securing payment, or any other obligations, of the Company Group with respect to Existing Indebtedness solely to the extent they will be released without liability or obligation to the Acquiror, Surviving Entity or its Subsidiaries as of the Closing; (e) zoning, building codes and other land use Laws regulating the use or occupancy of any Leased Real Property or the activities conducted thereon which are imposed by any Governmental Authority having jurisdiction over such Leased Real Property which are not violated by the current use or occupancy of such Leased Real Property or the operation of the business thereon; and (f) Liens associated with the Credit Agreements and other Liens described on Schedule 1.1, which will all be released at Closing.

“Person” means any individual, firm, corporation, partnership, limited liability company, unlimited liability company, incorporated or unincorporated association, joint venture, joint stock company, trust, a sole proprietorship, labor union or other employee representative body, Governmental Authority or other entity of any kind.

“Phantom Unit Acknowledgment and Release” means an acknowledgment, release and agreement to the appointment of the Holder Representative under Article XI hereof, in a form reasonably satisfactory to Acquiror, confirming their agreement that the Distribution Waterfall accurately reflects the amounts to which such Person is entitled with respect to his or her Phantom Units.

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“Phantom Unit Cash Payment” has the meaning specified in Section 2.4.

“Phantom Units” means any awards granted under the Phantom Units Plan.

“Phantom Units Plan” means the Company’s 2016 Phantom Units Plan amended as of December 7, 2017.

“Post-Closing Tax Period” means any taxable period beginning after the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period beginning after the Closing Date.

“Pre-Closing Reorganization” means the transactions described in Annex L.

“Pre-Closing Tax Period” means any taxable period that ends on or prior to the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on the Closing Date.

“Principal Customers” has the meaning specified in Section 3.26.

“Principal Suppliers” has the meaning specified in Section 3.26.

“Pro Rata Portion” means, with respect to each Escrow Participant, an amount, rounded to the nearest one one-hundredth of one percent with 0.005% rounded up, equal to the quotient (expressed as a percentage) obtained by dividing (A) the total amount of Closing Consideration due to such Escrow Participant pursuant to Section 2.4(c) by (B) the total amount of Closing Consideration due to all of the Escrow Participants pursuant to Section 2.4(c).

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

“Real Property Leases” has the meaning specified in Section 3.20(b).

“Reference Time” means 11:59 p.m., New York City time, on the day immediately preceding the Closing Date; provided that the Reference Time for purposes of calculating the Tax assets and Tax liabilities included in the Closing Date Net Working Capital and Current Blocker Tax Liabilities shall be 11:59 p.m., local time for each location of the Company or any of its Subsidiaries, on the Closing Date.

“Registered Intellectual Property” means all Intellectual Property that is the subject of registration (or an application for registration), including (a) patents and patent applications; (b) trademark registrations and applications; (c) copyright registrations and applications; (d) industrial design registrations and applications; and (e) domain name registrations.

“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, migration or leaching into the Environment.

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“Release Date” means each of (i) the date that is [**]4 months after the Closing Date, (ii) [**]4, (iii) [**]4 and (iv) [**]4.

“Representatives” has the meaning specified in Section 5.3.

“Required Consent” means that consent listed on Annex O as a Required Consent.

“R&W Insurance Policy” means that certain Representations and Warranties Insurance Policy, which shall be bound immediately prior to the signing of this Agreement and for the benefit of Acquiror as the named insured, substantially in the form attached as Annex D.

“Securities Act” has the meaning specified in Section 4.10.