Exhibit 1
JOINT FILING AGREEMENT
The undersigned hereby agree as follows:
(i) Each of them is individually eligible
to use the Schedule 13D to which this Exhibit is attached, and such Schedule 13D is filed on behalf of each of them; and
(ii) Each of them is responsible for the
timely filing of such Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such
person contained therein; but none of them is responsible for the completeness or accuracy of the information concerning the other persons
making the filing, unless such person knows or has reason to believe that such information is inaccurate.
Date: December 23, 2024
Erik B. Nordstrom |
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Estate of Bruce A. Nordstrom |
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By: |
/s/ Erik B. Nordstrom |
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By: |
/s/ Margaret Jean O’Roark Nordstrom |
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Name: Margaret Jean O’Roark Nordstrom |
Peter E. Nordstrom |
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Title: Co-Executor of the Estate of Bruce A. Nordstrom |
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By: |
/s/ Peter E. Nordstrom |
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By: |
/s/ Erik B. Nordstrom |
James F. Nordstrom, Jr. |
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Name: Erik B. Nordstrom |
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Title: Co-Executor of the Estate of Bruce A. Nordstrom |
By: |
/s/ James F. Nordstrom, Jr. |
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Anne E. Gittinger |
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By: |
/s/ Peter E. Nordstrom |
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Name: Peter E. Nordstrom |
By: |
/s/ Anne E. Gittinger |
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Title: Co-Executor of the Estate of Bruce A. Nordstrom |
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Charles W. Riley, Jr. |
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Susan E. Dunn |
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By: |
/s/ Charles W. Riley, Jr., |
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By: |
/s/ Susan E. Dunn |
solely in his capacity as trustee and not in any individual capacity |
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Margaret Jean O’Roark Nordstrom |
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Alexandra F. Nordstrom |
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By: |
/s/ Margaret Jean O’Roark Nordstrom |
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By: |
/s/ Alexandra F. Nordstrom |
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Linda Nordstrom |
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Andrew L. Nordstrom |
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By: |
/s/ Linda Nordstrom |
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By: |
/s/ Andrew L. Nordstrom |
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Molly Nordstrom |
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Leigh E. Nordstrom |
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By: |
/s/ Molly Nordstrom |
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By: |
/s/ Leigh E. Nordstrom |
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Kimberly Mowat Bentz |
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Samuel C. Nordstrom |
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By: |
/s/ Kimberly Mowat Bentz |
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By: |
/s/ Samuel C. Nordstrom |
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Mari Mowat Wolf |
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Sara D. Nordstrom |
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By: |
/s/ Mari Mowat Wolf |
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By: |
/s/ Sara D. Nordstrom |
Exhibit 2
NONDISCLOSURE CONFIDENTIALITY AGREEMENT
April 17, 2024
Erik B. Nordstrom
Peter E. Nordstrom
1617 Sixth Avenue
Seattle, Washington, 98101
Attention: Erik B. Nordstrom and Peter
E. Nordstrom
Ladies and Gentlemen:
Erik B. Nordstrom and Peter
E. Nordstrom (together with the other non-Company signatories hereto, “you”) have requested of the Special Committee
of the Board of Directors (the “Special Committee”) of Nordstrom, Inc. (the “Company”) that
you be permitted to obtain and share certain non-public information in connection with your consideration of a possible negotiated transaction
between the Company, on the one hand, and one or more of you or your controlled affiliates, on the other hand (the “Possible
Transaction”), subject to and effective upon the execution and delivery of this nondisclosure confidentiality agreement (this
“Agreement”). The Company is willing to furnish Proprietary Information (as defined below) to you, and permit you to
share Proprietary Information with certain persons, on the terms and subject to the conditions of this Agreement.
1. Proprietary
Information; Other Defined Terms.
(a) All
information concerning the Company and its subsidiaries and all other information that is furnished to you or your Representatives (as
defined below) directly or indirectly by the Company or any of its Representatives, including, without limitation, trade secrets, software
programs, intellectual property, data files, source code, computer chips, system designs and product designs, whether or not marked as
confidential, whether furnished before or after the date hereof, whether oral, written or electronic, and regardless of the manner in
which furnished, together with any notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or
other materials prepared by you or any of your Representatives that contain, reference, reflect or are based upon, in whole or in part,
any such information (such notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or other
materials are referred to herein as “Derivative Materials”), is referred to herein as “Proprietary Information.”
Proprietary Information does not include, however, information that (i) was or becomes available to you on a non-confidential basis
from a source other than the Company or any of its Representatives, provided that such other source is not known by you or any
of your Representatives to be bound by a confidentiality obligation to the Company or any of its affiliates with respect to such information,
(ii) was or becomes generally available to and known by the public (other than as a result of a breach by you or any of your Representatives
of this Agreement or a violation by you or any of your Representatives of any other confidentiality obligation to the Company or any of
its affiliates), (iii) was previously in your possession as demonstrated by your written records, provided that such information
is not known by you or any of your Representatives to be subject to another confidentiality obligation to the Company or any of its affiliates
(including, without limitation, pursuant any non-use and confidentiality agreements or other obligations of secrecy to the Company or
any of its affiliates, contractual or otherwise, that are applicable to them), or (iv) you can demonstrate by written evidence was
independently developed by you or any of your Representatives (other than in your role as a director or employee of the Company or its
subsidiaries) without derivation from, reference to or reliance upon, or using in any manner, the Proprietary Information and without
breach of this Agreement or a violation by you or any of your Representatives of any other non-use or confidentiality obligation to the
Company or any of its affiliates. To the extent that any Proprietary Information may include materials subject to the attorney-client
privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental
investigations, you and the Company understand and agree that you and the Company have a commonality of interest with respect to such
matters, and it is the mutual desire, intention and understanding of you and the Company that the sharing of such materials is not intended
to, and shall not, waive or diminish in any way the confidentiality of such materials or their continued protection under the attorney-client
privilege, work product doctrine or other applicable privilege. Accordingly, and in furtherance of the foregoing, you agree not to claim
or contend that the Company has waived any attorney-client privilege, work product doctrine or any other applicable privilege by providing
information pursuant to this Agreement or any subsequent definitive written agreement regarding a Possible Transaction.
(b) For
purposes of this Agreement, references herein to your “Representatives” shall include only your spouses and your affiliates
and your and their respective officers, directors, employees, investment bankers, financial advisors, accountants, legal counsel, consultants,
other advisors and, only if you receive the prior written consent of the Company, potential sources of capital or financing (debt, equity
or otherwise) (provided that, subject to compliance with Paragraph 10(a) hereof with respect to such persons, no such consent shall
be required with respect to (I) any potential source of financing mutually agreed in writing or (II) any potential source of
financing who is a Family Owner (as defined below) who executes a confidentiality and standstill agreement directly with the Company or
joinder to this Agreement agreeing to be subject to your obligations hereunder (in each case, in a form reasonably acceptable to the Company));
provided that none of the Company or its subsidiaries shall be deemed to be your Representative, and “Representatives”
in respect of the Company or the Special Committee shall mean their respective officers, directors, employees, investment bankers, financial
advisors, accountants, legal counsel, consultants and other agents and representatives; provided that you shall not be deemed to
be a Representative of the Company. As used in this Agreement, (i) the term “person” shall be broadly interpreted
to include, without limitation, any corporation, company, limited liability company, partnership, joint venture, trust, other entity or
individual and (ii) the term “affiliate” shall have the meaning ascribed thereto in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(c) The
confidentiality and use obligations set forth herein with respect to Proprietary Information shall not restrict Erik B. Nordstrom and
Peter E. Nordstrom from carrying out their duties as members of the Company’s and its subsidiaries’ management, and to the
extent applicable, members of the boards of directors of the Company and its subsidiaries, in each case that are unrelated to the Possible
Transaction, or if related to a Possible Transaction, in (and solely in) such person’s capacity as an officer or director of the
Company or any of its subsidiaries, provided that each of them shall continue to be bound by all other non-use and confidentiality
agreements or other obligations of secrecy to the Company or any of its affiliates, contractual or otherwise, that are applicable to them.
2. Use
of Proprietary Information and Confidentiality; Transaction Information to Remain Confidential. Except as (i) otherwise
permitted under this Agreement (including, without limitation, in accordance with Paragraph 1(c)), (ii) otherwise agreed to in writing
by the Company, or (iii) to the extent permitted by this Agreement, if requested or required by applicable law, regulation, stock
exchange rule or other market or reporting system or by legal, judicial, regulatory or administrative process (by oral questions,
interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process)
(“Legally Required”), you shall, and shall direct your Representatives to, (a) keep all Proprietary Information
confidential and not disclose or reveal any Proprietary Information to any person other than your Representatives who are participating
in evaluating, negotiating or advising with respect to the Possible Transaction or who otherwise need to know the Proprietary Information
for the purpose of evaluating, negotiating or advising with respect to the Possible Transaction (all of whom shall be specifically informed
of the confidential nature of such Proprietary Information and directed to abide by the terms of this Agreement applicable to Representatives),
(b) not use any Proprietary Information for any purpose other than in connection with evaluating, negotiating or advising with respect
to the Possible Transaction or the consummation of the Possible Transaction, and (c) not disclose to any person (other than your
Representatives who are participating in evaluating, negotiating or advising with respect to the Possible Transaction, in any such case,
whom you will direct to observe the terms of this Agreement relating to the confidential treatment and use of Transaction Information
(as defined below)) the existence or terms of this Agreement, that Proprietary Information has been made available, that you, the Company,
or any other persons are considering the Possible Transaction or any alternative transaction involving the Company, that you are subject
to any of the restrictions set forth in this Agreement, that investigations, discussions or negotiations are taking or have taken place
concerning the Possible Transaction or involving the Company, any term, condition or other matter relating to the Possible Transaction
or such investigations, discussions or negotiations, including, without limitation, the status thereof, or any information that could
enable such other person to identify the Company or any of its affiliates, or any other persons, as a party to any discussions or negotiations
with you or others (the items described in this clause (c), “Transaction Information”). Without limiting the foregoing,
neither you nor any of your Representatives will, without the prior written consent of the Company, enter into any Exclusive Arrangement
with any potential source of capital or financing (debt, equity or otherwise), including, for the avoidance of doubt, any of your Representatives,
in connection with the Possible Transaction; provided that, without such prior written consent, you may enter into an Exclusive
Arrangement with one or more Family Owners who are your Representatives, subject to compliance with the other terms and conditions of
this Agreement. For purposes of this Agreement, an “Exclusive Arrangement” means any agreement, arrangement or understanding,
whether written or oral, with any potential source of capital or financing (debt, equity or otherwise), including, for the avoidance of
doubt, any of your other Representatives, which does, or could be reasonably expected to, legally or contractually limit, restrict or
otherwise impair in any manner, directly or indirectly, such source from consummating a transaction involving the Company or any of its
affiliates or acting as a potential source of capital or financing (debt, equity or otherwise) to any other person with respect to a potential
transaction with the Company or any of its affiliates. If the Special Committee, the Company or any of their respective Representatives
publicly disclose any Transaction Information (other than to other Representatives of the Company or Special Committee who need to know
such information in connection with a Possible Transaction) then you shall also be permitted to disclose such disclosed Transaction Information
and any additional Transaction Information required to make the disclosed Transaction Information not misleading in a material respect.
3. Legally
Required Disclosure. In the event that you (or any of your Representatives) should be Legally Required to disclose any Proprietary
Information or Transaction Information, you shall, to the extent legally permissible and reasonably in advance of such disclosure, provide
the Company with prompt written notice of such requirement. You also agree, to the extent legally permissible, to provide the Company,
in advance of any such disclosure, with a list of any Proprietary Information and Transaction Information that you intend (or that your
Representative intends) to disclose (and, if applicable, the text of the disclosure language itself) and to cooperate with the Company
(at the Company’s sole expense) to the extent it may seek to limit such disclosure, including, without limitation, if requested,
taking all reasonable steps to resist or avoid (to the extent legally permissible) any such legal, judicial, regulatory or administrative
process. If you are (or any of your Representatives is) Legally Required to disclose any Proprietary Information or Transaction Information,
you or your Representative, as applicable, (a) will exercise reasonable best efforts to obtain assurance that confidential treatment
will be accorded to that Proprietary Information or Transaction Information, as applicable, and (b) may disclose, without liability
hereunder, such portion of the Proprietary Information or Transaction Information that, according to the advice of your counsel, is Legally
Required to be disclosed (the “Public Disclosure”); provided, however, that, to the extent legally
permissible prior to such disclosure, you shall have considered in good faith the Company’s suggestions concerning the scope and
nature of the information to be contained in the Public Disclosure. Notwithstanding the foregoing, your Representatives who are accounting
firms may disclose Derivative Materials to the extent, if any, required by law, rule, regulation or applicable professional standards
of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or
obligations thereunder, provided that, to the extent permitted by law or regulation, prior written notice of any such required
disclosure will be provided to the Company.
4. Responsibility
for Representatives. You agree that you shall, at your sole expense, undertake all reasonable measures (i) to restrain your Representatives
from prohibited or unauthorized disclosure or use of any Proprietary Information or Transaction Information and (ii) to safeguard
and protect the confidentiality of the Proprietary Information and the Transaction Information disclosed to you or any of your Representatives
and to prevent the use of any Proprietary Information or Transaction Information in any way that would violate any antitrust or other
applicable law or this Agreement. You will notify the Company promptly in writing of any breach of this Agreement by you or, to your knowledge,
your Representatives. You will be responsible for any breach of this Agreement by you and any deemed breach of this Agreement by any of
your Representatives (which shall include any failure by your Representatives to comply with directives that you are required to give
to your Representatives hereunder). You are aware, and will advise your Representatives to whom any Proprietary Information or Transaction
Information is disclosed, of the restrictions imposed by applicable securities laws on the purchase or sale of securities by any person
who has received material, non-public information about the issuer of such securities and on the communication of such information to
any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance upon
such information.
5. No
Representations Regarding Proprietary Information.
(a) You
understand and agree that neither the Company nor any of its Representatives makes any representation or warranty, express or implied,
on which you may rely as to the accuracy or completeness of the Proprietary Information for your purposes and that only those representations
and warranties made by the Company in a subsequent definitive written agreement related to the Possible Transaction, if any, and subject
to such limitations and restrictions as may be specified therein, shall have any legal effect. You agree that, other than as may be set
forth in such definitive written agreement, neither the Company nor any of its Representatives shall have any liability whatsoever to
you or any of your Representatives, including, without limitation, in contract, tort or under federal or state securities laws, relating
to or resulting from the use of the Proprietary Information or any errors therein or omissions therefrom.
(b) Without
limiting the generality of Paragraph 5(a), the Proprietary Information may include certain statements, estimates and projections with
respect to the Company’s anticipated future performance. Such statements, estimates and projections reflect various assumptions
made by the Company, which assumptions may or may not prove to be correct, and are subject to various risks and uncertainties. No representations,
warranties or assurances are made by the Company or any of its Representatives as to such assumptions, statements, estimates or projections,
including, without limitation, any budgets, and you hereby waive any claims in respect thereof.
(c) You
acknowledge and agree that (i) the Company shall be free to conduct any process for an acquisition or business combination transaction
involving the Company as the Company in its sole and absolute discretion shall determine (including, without limitation, negotiation with
any other person and, other than solely as may be required in your capacity as a director of the Company, entering into a definitive written
agreement without prior notice to you or any other person) and (ii) the Company reserves the right, in its sole and absolute discretion,
to reject any proposals and to terminate discussions and negotiations with you at any time for any reason whatsoever; provided,
that if the Special Committee informs you in writing within sixty days of the date hereof that it is no longer considering a Possible
Transaction (which, for the avoidance of doubt, shall not include a rejection of a proposal for a Possible Transaction), your restrictions
and obligations under Paragraph 7 shall terminate and be of no further force or effect.
6. Return
or Destruction of Proprietary Information. Upon the Company’s request, subject to the provisions of Paragraph 1(c), you shall
(and shall direct your Representatives to) promptly (and in any event within five days) either (at your or your Representative’s
option) return to the Company or destroy (and certify such destruction to the Company in writing) all copies or other reproductions of
Proprietary Information, other than any Derivative Materials, in your possession or the possession of any of your Representatives, and
shall not retain any copies or other reproductions, in whole or in part, of such materials. You shall (and shall direct your Representatives
to) destroy all Derivative Materials (including, without limitation, expunging all such Derivative Materials from any computer, word processor
or other device containing such information), and such destruction will be certified in writing to the Company. Notwithstanding the foregoing,
you and your Representatives may retain (a) data or electronic records containing Proprietary Information for the purposes of backup,
recovery, contingency planning or business continuity planning so long as such data or records are not accessible in the ordinary course
of business and are not accessed except as required for backup, recovery, contingency planning or business continuity planning purposes,
and (b) one copy each exclusively for regulatory or records retention policy compliance and for dispute resolution; provided,
that any such Proprietary Information may not be accessed or used for any other purpose. Notwithstanding the return or destruction of
Proprietary Information required by this Paragraph 6, you and your Representatives shall continue to be bound by all duties and obligations
hereunder in accordance with the terms hereof. For avoidance of doubt, this Paragraph 6 shall not apply to any information that would
constitute Proprietary Information and/or Derivative Materials but was received by you in your role as a director or employee of the Company
or its subsidiaries.
7. Standstill.
You hereby represent to the Company that, as of the date hereof, except as set forth in reports filed prior to the date hereof with the
U.S. Securities and Exchange Commission, neither you nor, to your knowledge, any of your present Representatives as of the date hereof,
has beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of any securities of the Company or any of its subsidiaries.
In consideration for your being permitted to share Proprietary Information with certain persons, you agree that, unless requested in writing
in advance by the Special Committee’s Representatives (for so long as the Special Committee is in existence and the Company’s
Representatives acting at the direction of the independent and disinterested members of the Board of Directors after the Special Committee
has been disbanded), neither you nor your Representatives will, at any time during the twelve month period commencing on the date hereof
(or, at any time during such period, assist, advise, act in concert or participate with or knowingly encourage others to), directly or
through others (including, without limitation, in your capacity as a trustee): (a) acquire (or agree, offer, seek or propose to acquire,
in each case, publicly or privately), by purchase, tender offer, exchange offer, agreement or business combination or in any other manner,
any ownership, including, but not limited to, beneficial ownership, as defined in Rule 13d-3 under the Exchange Act, of any material
assets or businesses or any securities of the Company or any direct or indirect subsidiary thereof, or any rights or options to acquire
such ownership (including, without limitation, from any third party) (provided that this clause (a) shall not prohibit (i) any
of you from gifting or otherwise transferring to another signatory hereto, shares of common stock held by you (provided that you give
the Company written notice of the details of any such gift or transfer no later than three days after it is made) or from acquiring shares
of stock pursuant to distributions to shareholders of the Company by the Company, (ii) Erik B. Nordstrom and Peter E. Nordstrom from
being awarded or receiving any grants of equity awards or equity securities of the Company upon vesting or exercise of such awards pursuant
to their roles as members of the Company’s management and/or the Company’s board of directors); (iii) any of you or any
of your parents, step-parents, spouses, aunts, uncles, children, nephews, nieces, cousins, or other blood relatives, and any trusts for
which you now or in the future serve in any administrative or trust capacity (collectively, the “Family Owners,” and
each individually, a “Family Owner”) or for which any Family Owner is a trustee or beneficiary, from making or receiving
bona fide gifts or transfers of any equity securities of the Company from any other Family Owner, (iv) any transfer or acquisition
of rights or beneficial ownership in respect of any equity securities of the Company made in respect of bona fide estate planning,
resulting from or to give effect to, any estate plans; or (v) acting in any fiduciary role with respect to any Family Owner(s), or
trust for the benefit of such Family Owner(s), including, but not limited to, executor, trustee, attorney-in-fact, agent, and/or custodian,
and taking all any and all actions required thereby; (b) publicly or privately offer to enter into, or publicly or privately propose
(except in your capacity as an officer of the Company where the Company is acting as an acquiror, in each case only if expressly invited
to do so by the Special Committee), any merger, business combination, recapitalization, restructuring or other extraordinary transaction
with the Company or any direct or indirect subsidiary thereof; (c) unless (i) the Board of Directors or the Special Committee
adversely alters the status, duties and terms of employment (other than changes to compensation in the ordinary course of business by
the Compensation Committee of the Board) in a material respect or expressly threatens the employment status of Erik B. Nordstrom or Peter
E. Nordstrom or requests either of their resignations as an officer, employee or director of the Company, or (ii) the Board of Directors
or any committee thereof proposes to seek the resignation of Erik Nordstrom or Peter Nordstrom from the Board of Directors or communicates
an intent not to nominate them for re-election as members of the Board of Directors, (A) initiate any stockholder proposal, or except
in your capacity as a director or officer of, in each case only if expressly directed to do so by the Company’s board of directors,
the Company with respect to any annual or special meeting called by the Board of Directors, the convening of a stockholders’ meeting
of or involving the Company or any direct or indirect subsidiary thereof; or (B) solicit proxies (as such terms are defined
in Rule 14a-1 under the Exchange Act), whether or not such solicitation is exempt pursuant to Rule 14a-2 under the Exchange
Act, with respect to any matter, except in your capacity as an officer or director of the Company, in each case only if expressly directed
to do so by the Company’s board of directors, otherwise seek to influence, advise or direct the vote of, holders of any shares of
capital stock of the Company or any securities convertible into or exchangeable or exercisable for (in each case, whether currently or
upon the occurrence of any contingency) such capital stock, or make any communication exempted from the definition of solicitation by
Rule 14a-1(I)(2)(iv) under the Exchange Act; (d) other than discussions, negotiations, agreements, arrangements or understandings
among yourselves and your Representatives with respect to the Possible Transaction in compliance with this Agreement, enter into any discussions,
negotiations, agreements, arrangements or understandings with any other person with respect to any matter described in the foregoing clauses
(a) through (c) or form, join or participate in a “group” (within the meaning of Section 13(d)(3) of the
Exchange Act) to vote, acquire or dispose of any securities of the Company or any of its subsidiaries; or (e) other than as expressly
permitted by this Agreement (x) make any public disclosure, or (y) take any action that could reasonably be expected to require
you or the Company to make a public disclosure, with respect to any of the matters set forth in this Agreement. Notwithstanding anything
in this Paragraph 7 to the contrary, you may (1) unless otherwise requested by the Special Committee, enter into discussions with
the Special Committee and its Representatives to explore a Possible Transaction, and (2) make requests (but only privately to the
Company and not publicly) for amendments, waivers, consents under or agreements not to enforce clauses (a) through (c) of this
Paragraph 7 and may make proposals or offers (but only privately to the Company not publicly) regarding the transactions contemplated
by clauses (a) through (c) of this Paragraph 7, in each case under this clause (2), at any time after a Fundamental Change Event
(as defined below). A “Fundamental Change Event” means the Company has after the date of this Agreement entered into
a definitive written agreement providing for (i) any acquisition of 30% or more of the voting securities of the Company by any person
or group, (ii) any acquisition of a majority of the consolidated assets of the Company and its subsidiaries by any person or group,
or (iii) any tender or exchange offer, merger or other business combination or any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction (provided that, in the case of any transaction covered by the foregoing clause (iii), immediately
following such transaction, any person, other than you or your controlled affiliates (or the direct or indirect shareholders of such person),
will beneficially own a majority of the outstanding voting power of the Company or the surviving parent entity in such transaction). For
purposes of this Paragraph 7, the following will be deemed to be an acquisition of beneficial ownership of securities: (1) establishing
or increasing a call equivalent position, or liquidating or decreasing a put equivalent position, with respect to such securities within
the meaning of Section 16 of the Exchange Act; or (2) entering into any swap or other arrangement that results in the acquisition
of any of the economic consequences of ownership of such securities, whether such transaction is to be settled by delivery of such securities,
in cash or otherwise. For purposes of this Paragraph 7, any acquisition of beneficial ownership of securities shall not include an acquisition
pursuant to any stock split, reverse stock split, recapitalization, reclassification of shares, or similar transaction, in each case undertaken
by the Company.
8. No
Solicitation of Employees. You agree that, without the prior written consent of the Company, you shall not (and you shall direct your
Representatives not to), for a period of two years after the date hereof, directly or through others, solicit the services of or employ,
as employee, consultant or otherwise, (a) any executive officer or member of the board of directors of the Company (other than your
family members) or (b) any other person (other than your family members) who is employed by the Company or any of its direct or indirect
subsidiaries on the date hereof or at any other time hereafter and prior to the termination of discussions between you and the Company
with respect to the Possible Transaction and whose annual salary (at the time of any such solicitation) exceeded $200,000 (any such person
described in clause (b) referred to herein as an “Other Employee”); provided, however, that
the foregoing shall not preclude (1) the solicitation (or employment as a result of the solicitation) of Other Employees whose employment
has been terminated or (2) the solicitation (or employment as a result of the solicitation) of Other Employees through (i) public
advertisements or general solicitations that are not specifically targeted at such person(s) or (ii) recruiting or search firms
retained by you, or internal search personnel who did not have access to Proprietary Information, using a database of candidates without
targeting the Company or specific individuals, without direction or knowledge on your behalf by any person who had access to Proprietary
Information. You agree that you and your Representatives will not, without the prior written consent of the Company, engage in discussions
with management of the Company regarding the terms of their post-transaction employment or equity participation as part of, in connection
with or after a Possible Transaction, unless and until a definitive agreement is executed and delivered with respect to the Possible Transaction.
9. Ownership
of Proprietary Information. You agree that the Company is and shall remain the exclusive owner of the Proprietary Information (other
than Derivative Materials to the extent created by you, other than Proprietary Information reflected therein) and all patent, copyright,
trade secret, trademark, domain name and other intellectual property rights therein. No license or conveyance of any such rights or any
portions thereof to you or any of your Representatives is granted or implied under this Agreement.
10. Certain
Process Matters.
(a) Subject
to and effective upon the execution and delivery of this Agreement, upon a recommendation from the Special Committee, a majority of the
members of the Board of Directors has approved in advance, for purposes of Section 23B.19.040(1) of the Washington Business
Corporation Act (the “Washington Act”), the formation of a group among the signatories hereto and certain other persons
who are not yet members with you of a “group” under Section 13(d)(3) of the Exchange Act (the “Transaction
Group”) that may, as a result of the Transaction Group’s “beneficial ownership” (as defined in the Washington
Act) of shares of the Company’s common stock constitute an “acquiring person” as defined in the Washington Act. Each
of you (i) represents and warrants to the Company that prior to the execution and delivery of this Agreement such person has not
taken any actions that, but for the prior approval of the Board, would require approvals under Section 23B.19.040(1)(a)(iii) of
the Washington Business Corporation Act and (ii) covenants that such person shall not take any actions that, but for the prior approval
of the Board, would require approvals under Section 23B.19.040(1)(a)(iii) of the Washington Business Corporation Act. It is
understood and agreed that each of you that is a signatory hereto is executing and delivering this Agreement individually, that no decision
has been made by you at this time to form, join or participate in a “group” (within the meaning of Section 13(d)(3) of
the Exchange Act) (other than as between the signatories hereto) to vote, acquire or dispose of any securities of the Company or any of
its subsidiaries or to act as a partnership, syndicate, or other group for the purpose of acquiring, holding, or dispersing of any securities
of the Company or any of its subsidiaries, and that the execution and delivery of this Agreement by all signatories does not, in and of
itself, give rise to the formation of such a “group”, partnership, syndicate, or other group. Upon the formation of any partnership,
syndicate, or other group within the meaning of Section 23B.19.020(12) of the Washington Act between you and one or more members
of the Transaction Group other than the signatories hereto, such other person shall promptly execute and deliver to the Company a joinder
to this Agreement agreeing to be bound by your obligations hereunder. Notwithstanding whether any partnership, syndicate, or other group
for the purpose of acquiring, holding or dispersing of securities of the Company within the meaning of Section 23B.19.020(12) of
the Washington Act has been formed between or among any members of the Transaction Group, the Transaction Group shall automatically, and
without any further action by any person, be disbanded on the date that is the earlier of twelve months after the date hereof and the
date on which you notify the Company in writing that you have elected to cease participating in the Transaction Group, which disbandment
shall be binding upon all members of the Transaction Group. You acknowledge and agree that (a) after the disbandment of the Transaction
Group, neither you nor any other members of the Transaction Group shall form another partnership, syndicate, or other group within the
meaning of Section 23B.19.020(12) of the Washington Act (whether composed of some or all of the persons who are members of the Transaction
Group or some or all of such persons and other persons) that may be considered an “acquiring person” under the Washington
Act, and (b) the additional board and shareholder voting requirements set forth in Section 23B.19.040(1)(a)(iii) of the
Washington Act will be required with respect to any “significant business transaction” (as defined in the Washington Act)
involving any such new partnership, syndicate, or other group (or “affiliates” or “associates” (as such terms
are defined in the Washington Act) thereof) and the Company during the five year period following the formation of such new partnership,
syndicate, or other group, unless, prior to such formation, the formation of such new partnership, syndicate, or other group is approved
by a majority of the Board of Directors consisting of independent and disinterested members of the Board of Directors. This Paragraph
10(a) shall survive the termination of this Agreement.
(b) You
agree as follows: (i) you shall keep the Special Committee informed on a current basis of the status of discussions with Representatives
that are possible financing sources and (ii) following the delivery of any proposal relating to a Possible Transaction submitted
by you or your Representatives to the Special Committee, you shall provide the Special Committee with documentation regarding such discussions
that is reasonably responsive to requests from the Special Committee.
(c) For
the avoidance of doubt, Moelis & Company LLC (“Moelis”) has been permitted to contact persons until the date hereof
for the sole purpose of evaluating their interest in being a source of financing for a Possible Transaction, provided that (i) Moelis
has not contacted any persons whom Moelis, you or your other Representatives knew has entered into a confidentiality agreement with the
Company, (ii) Moelis, you and your other Representatives have not disclosed any Confidential Information to any such person, which
Confidential Information may only be disclosed pursuant to a confidentiality agreement, if any, entered into between the Company and such
person, and (iii) no later than the date hereof, you shall have provided the Special Committee with a list of persons contacted by
Moelis, and any persons who contacted Moelis or you, regarding a Possible Transaction and identify any such persons who are interested
in being a source of financing for a Possible Transaction.
11. Miscellaneous.
(a) The
parties acknowledge that irreparable damage would occur to the Company or you if any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. Accordingly, you and the Company agree that a party, without prejudice
to any rights and remedies otherwise available, shall be entitled to equitable relief, including, without limitation, specific performance
and injunction, in the event of any breach or threatened breach by a party or its Representatives of the provisions of this Agreement
without proof of actual damages. Neither party will oppose the granting of such relief on the basis that there is an adequate remedy at
law. No party shall seek, and each party will waive any requirement for, the securing or posting of a bond in connection with a party
seeking or obtaining such relief.
(b) The
parties agree that no failure or delay by the other party in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder. No party’s waiver of any right, power or privilege hereunder, and a party’s consent to
any action that requires its consent hereunder, shall be effective only if given in writing by such party.
(c) If
any provision contained in this Agreement or the application thereof to you, the Company or any other person or circumstance shall be
invalid, illegal or unenforceable in any respect under any applicable law as determined by a court of competent jurisdiction, the validity,
legality and enforceability of the remaining provisions contained in this Agreement, or the application of such provision to such persons
or circumstances other than those as to which it has been held invalid, illegal or unenforceable, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability,
such invalid, illegal or unenforceable provision shall be replaced with one that most closely approximates the effect of such provision
that is not invalid, illegal or unenforceable. Should a court refuse to so replace such provision, the parties hereto shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties hereto.
(d) This
Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Any assignment
of this Agreement by you (including, without limitation, by operation of law) without the prior written consent of the Company shall be
void. Any purchaser of the Company or of all, or substantially all, the Company’s assets shall be entitled to the benefits of this
Agreement, whether or not this Agreement is assigned to such purchaser.
(e) This
Agreement (i) constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes
all prior discussions, negotiations, agreements, arrangements and understandings between the parties hereto with respect to the subject
matter hereof, (ii) may be amended or modified only in a written instrument executed by the parties hereto, and (iii) shall,
except as otherwise specifically set forth herein, cease to be effective three years after the date hereof; provided, however,
that the confidentiality provisions contained herein shall continue to apply to you so long as you or any of your Representatives retain
copies of any Proprietary Information or Transaction Information. Without limiting the generality of the preceding sentence, any “click-through”
or similar confidentiality agreement entered into by a Receiving Party or any of its Representatives in connection with accessing any
electronic data room will have no force or effect, whether entered into before, on or after the date hereof.
(f) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF WASHINGTON APPLICABLE TO CONTRACTS EXECUTED
IN AND TO BE PERFORMED IN THAT STATE. Each party hereto irrevocably and unconditionally consents to submit to the exclusive personal jurisdiction
of the courts of the State of Washington and the United States of America, in each case located in King County, Washington, for such actions,
suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby (and agrees not to commence
any such action, suit or proceeding except in such courts). Notwithstanding the foregoing, any party hereto may commence an action, suit
or proceeding with any governmental entity anywhere in the world for the sole purpose of seeking recognition and enforcement of a judgment
of any court referred to in the preceding sentence. Each party hereto irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby in the
courts of the State of Washington and the United States of America, in each case in King County, Washington, and further waives the right
to, and agrees not to, plead or claim that any such action, suit or proceeding brought in any such court has been brought in an inconvenient
forum. Service of any process, summons, notice or document by U.S. registered mail to your address set forth below or to the Company’s
address set forth below shall be effective service of process for any action, suit or proceeding brought against you or the Company, as
applicable, in any court of competent jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(g) Any
notice or other communication required or permitted under this Agreement shall be treated as having been given or delivered when (i) delivered
personally or by overnight courier service (costs prepaid), (ii) sent by facsimile or e-mail with confirmation of transmission by
the transmitting equipment, or (iii) received or rejected by the addressee, if sent by certified mail, return receipt requested,
in each case, subject to the preceding sentence, to the addresses, facsimile numbers or e-mail addresses and marked to the attention of
the person (by name or title) designated below (or to such other address, facsimile number, e-mail address or person as such party may
designate by a written notice delivered to the other party hereto). You also agree not to initiate or maintain contact related to the
Possible Transaction with any Representative (other than the Company’s financial advisors and counsel), customer or supplier of
the Company (or any of its affiliates), except with the express permission of the Company.
(h) When
this Agreement calls for the consent of the Company, instructions by the Company, waivers by the Company, or any similar actions by the
Company, or any notice to the Company, it means a consent, instruction, waiver or similar action by, and notice to, the Special Committee
or any person designated by the Special Committee for so long as the Special Committee is in existence. After the date that the Special
Committee has been disbanded, any references in this Agreement to the Special Committee shall be deemed a reference to the Company acting
at the direction of the independent and disinterested members of the Board of Directors unless the Board of Directors empowers another
committee of the Board of Directors with authority relating to a possible transaction with you (in which case any references to the Special
Committee shall refer to such committee).
(i) This
Agreement also constitutes notice to you that the Special Committee has engaged Sidley Austin LLP (“Sidley”) as its
legal counsel in connection with the Possible Transaction. Notwithstanding the fact that Sidley may have represented, and may currently
represent, the Company, you and/or any of your Representatives with respect to matters unrelated to the Possible Transaction, you (on
behalf of yourself and your affiliates) hereby (i) consent to Sidley’s continued representation of the Special Committee in
connection with the Possible Transaction, (ii) waive any actual or alleged conflict that may arise from Sidley’s representation
of the Special Committee in connection with the Possible Transaction, and (iii) agree that Sidley will be under no duty to disclose
any confidential information of the Company to you. By entering into this Agreement, you hereby acknowledge that the Company and Sidley
will be relying on your consent and waiver provided hereby. In addition, you hereby acknowledge that your consent and waiver under this
Paragraph 11(i) is voluntary and informed, and that you have obtained independent legal advice with respect to this consent and waiver.
If you have any questions regarding this Paragraph 11(i), please contact Gary Gerstman and Derek Zaba at Sidley Austin LLP at (312) 853-2060
and (650) 565-7131 or at ggerstman@sidley.com and dzaba@sidley.com.
(j) You
and the Company each agree that unless a definitive agreement is executed and delivered with respect to the Possible Transaction (in which
case, until such execution and delivery), neither the Company nor you intends to be, nor shall either of us be, under any legal obligation
with respect to the Possible Transaction or otherwise, by virtue of any written or oral expressions by our respective Representatives
with respect to the Possible Transaction, including, without limitation, any obligation to commence or continue discussions or negotiations,
except for the matters specifically agreed to in this Agreement.
(k) For
the convenience of the parties, this Agreement may be executed by PDF, facsimile or other electronic means and in counterparts, each of
which shall be deemed to be an original, and both of which, taken together, shall constitute one agreement binding on both parties hereto.
[Signature pages follow]
Please confirm your agreement
with the foregoing by signing and returning to the undersigned the duplicate copy of this Agreement enclosed herewith.
Very truly yours,
NORDSTROM, INC.
By: |
/s/ Ann Munson Steines |
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Name:
Ann Munson Steines
Title: Chief Legal Officer, General Counsel
Address: 1617 Sixth Avenue, Seattle, Washington 98101
Attention: Ann Munson Steines, Chief Legal Officer, General Counsel and Corporate Secretary
ACCEPTED AND AGREED AS OF THE ABOVE DATE |
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/s/ Erik B. Nordstrom |
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Erik B. Nordstrom |
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/s/ Peter E. Nordstrom |
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Peter E. Nordstrom |
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PETE AND BRANDY NORDSTROM 2012 CHILDREN’S TRUST |
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By: |
/s/ Erik B. Nordstrom |
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Name: Erik B. Nordstrom |
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Title: Trustee |
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PETE AND BRANDY MFN 2010 TRUST |
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By: |
/s/ Erik B. Nordstrom |
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Name: Erik B. Nordstrom |
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Title: Trustee |
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PETE AND BRANDY CFN 2012 TRUST |
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By: |
/s/ Erik B. Nordstrom |
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Name: Erik B. Nordstrom |
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Title: Trustee |
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ERIK AND JULIE NORDSTROM 2012 SDN TRUST |
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By: |
/s/ Peter E. Nordstrom |
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Name: Peter E. Nordstrom |
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Title: Trustee |
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BRUCE & JEANNIE NORDSTROM 2010 MFN TRUST |
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By: |
/s/ Peter E. Nordstrom |
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Name: Peter E. Nordstrom |
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Title: Trustee |
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BRUCE & JEANNIE NORDSTROM 2012 CFN TRUST |
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By: |
/s/ Peter E. Nordstrom |
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Name: Peter E. Nordstrom |
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Title: Trustee |
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1976 BRUCE A. NORDSTROM TRUST (aka ELIZABETH NORDSTROM 1976 TRUST FBO BRUCE NORDSTROM) |
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By: |
/s/ Peter E. Nordstrom |
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Name: Peter E. Nordstrom |
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Title: Co-Trustee |
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By: |
/s/ Erik B. Nordstrom |
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Name: Erik B. Nordstrom |
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Title: Co-Trustee |
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FRANCES W. NORDSTROM TRUST FBO BAN, created under will dated April 4, 1984 |
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By: |
/s/ Peter E. Nordstrom |
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Name: Peter E. Nordstrom |
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Title: Co-Trustee |
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By: |
/s/ Erik B. Nordstrom |
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Name: Erik B. Nordstrom |
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Title: Co-Truste |
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Address: 1617 Sixth Avenue, Seattle, Washington 98101 |
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Attention: Erik B. Nordstrom and Peter E. Nordstrom |
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Exhibit 22
September 3, 2024
Special Committee of the Board of Directors of Nordstrom, Inc.
c/o Morgan Stanley & Co. LLC & Centerview Partners LLC
1617 Sixth Avenue
Seattle, Washington 98101
Attention: Carmen Molinos & Tony Kim
Ladies & Gentlemen:
We write in response to your letter, dated June 19, 2024, with
respect to your invitation to submit this written proposal (the “Proposal”) for a potential acquisition (the “Proposed
Transaction”) of Nordstrom, Inc. (the “Company”).
As you know, Erik and Peter Nordstrom have been exploring the possibility
of making a proposal to acquire the Company in a going private transaction. On August 31, 2024, they requested that the Board of
Directors of the Company (the “Board”) grant them permission to form a group comprising (i) certain other members of
the Nordstrom family, including various family-affiliated trusts and the estate of Bruce Nordstrom (the “Family Group”), and
(ii) El Puerto de Liverpool, S.A.B. de C.V. (“Liverpool,” together with the Family Group, the “Buyer Group”).
Prior to the delivery of this letter, on September 3, 2024, the Board of Directors authorized the formation of the Buyer Group. The
members of the Buyer Group beneficially own approximately 43% of the outstanding shares of the Company’s common stock, based on
the aggregate number of shares of the Company’s common stock reported on the Company’s most recently filed quarterly report
on Form 10-Q.
On behalf of the Buyer Group, we are pleased to submit our proposal
(this “Proposal”) to acquire 100% of the outstanding shares of common stock of the Company (other than the Rollover Shares
(as defined below)) at a cash purchase price of $23.00 per share (the “Offer Price”), on the terms set forth in this letter.
| 1. | Valuation and Assumptions: This purchase price provides a significant premium to the unaffected price of the Company’s
shares in a transaction with a high degree of certainty to close. Our price represents: |
| · | a 34.8% premium over the unaffected price of $17.06 per share on March 18, 2024, the closing price on the day before news reports
were first published disclosing discussions between the Company and Erik and Peter Nordstrom regarding the Proposed Transaction; and |
| · | an 11.0% premium over the $20.71 average twelve month consensus share price targets for 14 analysts who regularly cover the Company’s
share performance. |
Our Proposal implies an equity value for the Company of
$3.764 billion, and assumes the following:
| · | an aggregate of $2.615 billion of indebtedness outstanding as of the consummation of the Proposed Transaction, all of which would
remain outstanding thereafter; |
| · | an aggregate of approximately 163,648,780 shares of common stock of the Company outstanding immediately prior to the completion of
the Proposed Transaction; and |
| · | that promptly following the closing of the Proposed Transaction, the Company will fund the currently underfunded amount under the
Company’s Supplemental Executive Retirement Plan (“SERP”), with the exception of the amounts required to be funded on
behalf of Erik Nordstrom, Peter Nordstrom and Jamie Nordstrom, who are willing to waive the funding requirement for their SERP benefits. |
| 2. | Identity of Purchaser: The purchaser is expected to be a newly-formed Delaware entity (“Parent”) that will be jointly
owned by: (a) an entity formed by the Family Group (such entity, the “Family Investor”), and (b) Liverpool (collectively
with the Family Investor, the “Investors”). It is expected that immediately following the completion of the Proposed Transaction,
Parent would be owned approximately 50.1% by the Family Investor and 49.9% by Liverpool. |
Liverpool is a leading Mexican omnichannel retail group with
significant resources and access to capital to facilitate a transaction. Founded more than 175 years ago, Liverpool operates 312 stores
across its various retail banners in 87 cities in Mexico and is Mexico’s third largest credit card issuer with more than 7.2 million
active accounts. Liverpool is a public company, listed on the Mexican Stock Exchange since 1964 and has a market capitalization of ~$8.6
billion, yearly revenues of ~$10.5 billion for 2023 and cash and cash equivalents of ~$1.2 billion as of June 30, 2024. Liverpool
has a corporate debt rating of BBB by Standard & Poor’s and BBB+ by Fitch.
| 3. | Structure Considerations: The Proposed Transaction would be effected via a merger of a newly-formed, wholly-owned corporate
subsidiary of Parent with and into the Company (the “Merger”), with the Company being the surviving corporation of the Merger.
Each outstanding share of common stock of the Company outstanding as of the effective time of the Merger (other than dissenting shares,
shares held in treasury of the Company and the Rollover Shares), would be converted into the right to receive the Offer Price. |
| 4. | Sources of Financing: The Proposed Transaction would be funded as follows: |
| · | Immediately prior to the effective time of the Merger, pursuant to rollover agreements entered into in connection with the execution
of definitive documentation for the Proposed Transaction: (a) the Family Group would contribute to the Family Investor an aggregate
of approximately 49.6 million shares of common stock of the Company in exchange for newly-issued equity interests in the Family Investor,
having an implied value of approximately $1.14 billion based on the Offer Price, and, in turn, the Family Investor would contribute those
shares, and (b) Liverpool would contribute an aggregate of 15,755,000 shares of common stock of the Company, having an aggregate
implied value of $362 million based on the Offer Price (the shares of common stock of the Company referenced in clauses (a) and (b),
collectively, the “Rollover Shares”), in each case, to Parent in exchange for newly-issued common equity interests in Parent. |
| · | In addition to the Rollover Shares contributed to Parent by the Investors, (a) the Family Investor would commit to provide an
additional $454 million to Parent in exchange for newly-issued common interests in Parent, and (b) Liverpool would commit to provide
an additional approximate $1.23 billion to Parent in exchange for newly-issued common interests in Parent, in each of cases (a) and
(b) pursuant to equity commitment letters to be executed in connection with entrance of Parent into definitive documentation providing
for the Proposed Transaction. |
| · | We also expect to obtain incremental bank financing of $250 million at the Company. We have received preliminary proposals from two
existing lenders to the Company, and with the Company’s continued cooperation, are highly confident in our ability to arrange this
incremental financing and secure financing commitment letters. |
A sources and uses table for the Proposed Transaction is set forth
below:
Sources ($ in millions) |
Company Cash on Balance Sheet | |
$ | 620 | |
Company Existing Debt | |
| 2,615 | |
New Transaction Debt | |
| 250 | |
Family Investor Equity Roll | |
| 1,141 | |
Family New Equity | |
| 454 | |
Liverpool Equity Roll | |
| 362 | |
Liverpool New Equity | |
| 1,226 | |
Total Sources | |
$ | 6,669 | |
Uses ($ in millions) |
Company Equity Value | |
$ | 3,764 | |
Existing Debt | |
| 2,615 | |
SERP Funding | |
| 140 | |
Preliminary Transaction Fees | |
| 50 | |
Minimum Cash Balance at the Company | |
| 100 | |
| |
| | |
Total Uses | |
$ | 6,669 | |
| 5. | Due Diligence Requirements: The Buyer Group has completed the necessary due diligence to allow it to make this Proposal, including
(a) business and industry due diligence and (b) preliminary financial and accounting due diligence. The Buyer Group would expect
to complete limited, confirmatory due diligence on an expedited basis. |
| 6. | Approvals and Timing: We are prepared to negotiate and execute definitive documentation on an expedited basis and complete
the Proposed Transaction as promptly as practicable. We would expect that the limited, confirmatory due diligence described above would
be completed in parallel with the negotiation of definitive documentation for the Proposed Transaction. We welcome further discussions
with the Special Committee around how we would propose to enter into definitive documentation for the Proposed Transaction as expeditiously
as possible. |
While the Family Group and Liverpool have all approved the
making of this Proposal, execution of definitive documentation with respect to the Proposed Transaction would be subject to, among other
things, final approval of the board of directors of Liverpool.
Our Proposal requires that it be approved not only by the
Special Committee and the Board, and meet the two-third (2/3) shareholder vote requirement (including the shares held by the Buyer Group)
under Washington State law, but also by a non-waivable majority of the outstanding shares of the Company other than shares owned by the
Buyer Group. We also reiterate that in our capacity as shareholders of the Company, members of the Buyer Group will engage in good faith
discussions with other potential buyers of the Company who submit a competing proposal, should one present itself, but, presently, we
have no interest in a disposition or sale of our collective holdings in the Company, other than as contemplated by this Proposal. In our
capacity as shareholders, we currently have no intention to vote in favor of any alternative or competing sale, merger or similar transaction
involving the Company.
| 7. | Required Legal Disclosure: In accordance with our legal obligations, each of Liverpool and the Family Group will promptly file
a Schedule 13D, including a copy of this letter. In addition, Liverpool will promptly file a notice of material corporate event
(evento relevante) as required pursuant to the Mexican Securities Market Law (Ley del Mercado de Valores). |
| 8. | Contacts: Each of the Family Group and Liverpool has retained financial and legal advisors in connection with the making of
this Proposal and the Proposed Transaction as set forth below. We would welcome the earliest opportunity to meet with the Special
Committee and/or its advisors to discuss the details of our Proposal. |
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Family Group |
Liverpool |
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Financial Advisors/Contact |
Perry Hall
Managing Director
Moelis
399 Park Avenue,
5th Floor
New York, New
York 10022 |
Jonathan Dunlop
Managing Director
J.P. Morgan
2029 Century
Park East, 38th Floor
Los Angeles,
California 90067
Nik Johnston
Managing Director
J.P. Morgan
383 Madison
Avenue, 34th Floor
New York, New
York 10179 |
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Legal Advisors/Contact |
Keith Trammell
Michael Gilligan
Wilmer Cutler
Pickering Hale & Dorr LLP
7 World Trade
Center
250 Greenwich
Street
New York, NY
10007 |
Ben P. Schaye
Juan F. Mendez
Simpson Thacher &
Bartlett LLP
425 Lexington
Avenue
New York, NY
10017 |
Other Considerations
This letter is not legally binding and does not create any obligation
of any kind on any Investor or any of their respective affiliates, but is intended only to constitute an expression of our strong interest
in exploring the Potential Transaction. No obligation of any kind on our part will be created unless and until definitive documentation
with respect to a transaction is duly executed and delivered, and then only to the extent set forth therein. This letter, any information
obtained in discussions or negotiations, and our interest in any Potential Transaction should be kept confidential by the Company and
its affiliates and its and their respective representatives and advisors.
[Signature page follows]
Very truly yours,
On behalf of the Family Group |
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On behalf of Liverpool |
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EL PUERTO DE LIVERPOOL, S.A.B. DE C.V. |
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/s/ Erik Nordstrom |
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By: |
/s/ Graciano Guichard |
Erik Nordstrom |
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Name: |
Graciano Guichard |
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Title: |
Chairman of the Board |
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/s/ Peter Nordstrom |
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By: |
/s/ Enrique Güijosa |
Peter Nordstrom |
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Name: |
Enrique Güijosa |
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Title: |
Chief Executive Officer |
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/s/ Jamie Nordstrom |
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Jamie Nordstrom |
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Exhibit 23
JOINDER AGREEMENT
September 3, 2024
Nordstrom, Inc.
1617 Sixth Avenue
Seattle, Washington 98101
Attention: Ann Munson Steines, Chief Legal Officer, General Counsel and Corporate Secretary
Erik B. Nordstrom
Peter E. Nordstrom
1617 Sixth Avenue
Seattle, Washington 98101
Attention: Erik B. Nordstrom and Peter E. Nordstrom
Ladies and Gentlemen:
Each of the undersigned (collectively,
the “Family Owners”) hereby acknowledges that he, she or it has received and reviewed a copy of the Nondisclosure Confidentiality
Agreement, dated as of April 17, 2024, by and between Erik B. Nordstrom, Peter E. Nordstrom, and certain related trusts (collectively,
“Messrs. Erik and Pete Nordstrom”) and Nordstrom, Inc. (the “Company”), a copy of which
is attached hereto as Exhibit A (the “NDA”). Capitalized terms used but not defined in this letter agreement
(this “Joinder”) and the term “person” have the meaning ascribed thereto in the NDA.
Each Family Owner acknowledges
that he, she or it is a potential source of financing to Messrs. Erik and Pete Nordstrom in connection with the Possible Transaction.
Accordingly, each Family Owner acknowledges that he, she or it is a Representative of Messrs. Erik and Pete Nordstrom pursuant to
the terms of the NDA and that all references to “Representatives” in the NDA will be deemed to include such Family Owner.
Each Family Owner hereby acknowledges
and agrees that:
(i) such
Family Owner has been informed by Messrs. Erik and Pete Nordstrom of the confidential nature of the Proprietary Information and the
Transaction Information;
(ii) such
Family Owner shall act in accordance with and be bound by the provisions of the NDA applicable to Messrs. Erik
and Pete Nordstrom as if a party thereto;
(iii) such
Family Owner is a member of the Transaction Group and the Transaction Group shall automatically, and without
any further action by any person, be disbanded on the date that is the earlier of twelve months after the date of the NDA and the date
on which Messrs. Erik and Pete Nordstrom notify the Company in writing that they have elected to cease participating in the Transaction
Group, which disbandment shall be binding upon all members of the Transaction Group, including the Family Owners; and
(iv) the
Proprietary Information and/or Transaction Information may contain or may itself be material non-public information concerning the Company
and he, she or it has been advised of the restrictions imposed by the United States securities laws on the purchase or sale of securities
by any person who has received material, non-public information about the issuer of such securities and on the communication of such information
to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell such securities in reliance
upon such information; and
(v) none
of the Company, Messrs. Erik and Pete Nordstrom or their respective Representatives (other than such Family Owner) shall have any
liability whatsoever to such Family Owner or any of its representatives, including, without limitation, in contract, tort or under federal
or state securities laws, relating to or resulting from the use of the Proprietary Information or any errors therein or omissions therefrom.
Each Family Owner and the
Company hereby acknowledge and agree that:
(i) The
allowance set forth Section 7(a)(ii) of the NDA shall be amended to include James F. Nordstrom, Jr. in
that provision; and
(ii) Nothing
herein or in the NDA shall preclude any Family Owner from transferring or selling any securities of the Company in the Possible Transaction.
This letter agreement shall
be governed by the terms and conditions set forth in Section 11 of the NDA, as applicable, mutatis mutandis, as if the Family
Owners were Messrs. Erik and Pete Nordstrom.
[Signature Page Follows]
Very truly yours, |
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FAMILY OWNERS: |
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Everett Nordstrom Trust FBO Anne Gittinger |
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By: |
/s/ Charles W. Riley, Jr. |
|
Name: |
Charles W. Riley, Jr. |
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Title: |
Trustee |
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/s/ James F. Nordstrom, Jr. |
|
James F. Nordstrom, Jr. |
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|
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/s/ Anne E. Gittinger |
|
Anne E. Gittinger |
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1976 Elizabeth J. Nordstrom Trust FBO Anne Gittinger |
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By: |
/s/ Anne E. Gittinger |
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Name: |
Anne E. Gittinger |
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Title: |
Trustee |
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Elizabeth J. Nordstrom Trust FBO Susan Dunn |
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By: |
/s/ Susan E. Dunn |
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Name: |
Susan E. Dunn |
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Title: |
Trustee |
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/s/ Susan E. Dunn |
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Susan E. Dunn |
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/s/ Brandy Nordstrom |
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Brandy Nordstrom |
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/s/ Julie A. Nordstrom |
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Julie A. Nordstrom |
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Bruce A. Nordstrom TR Frances W. Nordstrom Testamentary Trust |
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By: |
/s/ Erik B. Nordstrom |
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Name: |
Erik B. Nordstrom |
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Title: |
Co-Trustee |
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|
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By: |
/s/ Peter E. Nordstrom |
|
Name: |
Peter E. Nordstrom |
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Title: |
Co-Trustee |
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|
|
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By: |
/s/ Charles W. Riley, Jr. |
|
Name: |
Charles W. Riley, Jr. |
|
Title: |
Co-Trustee |
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Estate of Bruce A. Nordstrom |
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By: |
/s/ Margaret Jean O’Roark Nordstrom |
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Name: |
Margaret Jean O’Roark Nordstrom |
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Title: |
Co-Executor of the Estate of Bruce A. Nordstrom |
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By: |
/s/ Peter E. Nordstrom |
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Name: |
Peter E. Nordstrom |
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Title: |
Co-Executor of the Estate of Bruce A. Nordstrom |
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By: |
/s/ Erik B. Nordstrom |
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Name: |
Erik B. Nordstrom |
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Title: |
Co-Executor of the Estate of Bruce A. Nordstrom |
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/s/ Margaret Jean O’Roark Nordstrom |
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Margaret Jean O’Roark Nordstrom |
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Katharine T. Nordstrom 2007 Trust Agreement |
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By: |
/s/ James F. Nordstrom, Jr. |
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Name: |
James F. Nordstrom, Jr. |
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Title: |
Trustee |
|
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Julia K. Nordstrom 2007 Trust Agreement |
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By: |
/s/ James F. Nordstrom, Jr. |
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Name: |
James F. Nordstrom, Jr. |
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Title: |
Trustee |
|
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Audrey G. Nordstrom 2007 Trust Agreement |
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|
|
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By: |
/s/ James F. Nordstrom, Jr. |
|
Name: |
James F. Nordstrom, Jr. |
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Title: |
Trustee |
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LN 1989 TRUST JWN |
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By: |
/s/ Linda Nordstrom |
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Name: |
Linda Nordstrom |
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Title: |
Trustee |
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LN Holdings JWN LLC |
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By: |
/s/ Linda Nordstrom |
|
Name: |
Linda Nordstrom |
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Title: |
Co-Manager |
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|
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By: |
/s/ Kimberly Bentz |
|
Name: |
Kimberly Bentz |
|
Title: |
Co-Manager |
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LN Holdings JWN II LLC |
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By: |
/s/ Linda Nordstrom |
|
Name: |
Linda Nordstrom |
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Title: |
Co-Manager |
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|
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By: |
/s/ Kimberly Bentz |
|
Name: |
Kimberly Bentz |
|
Title: |
Co-Manager |
|
/s/ Alexandra F. Nordstrom |
|
Alexandra F. Nordstrom |
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Blake & Molly Nordstrom 2012 Alexandra F. Nordstrom Trust |
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|
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By: |
/s/ Alexandra F. Nordstrom |
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Name: |
Alexandra F. Nordstrom |
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Title: |
Trustee |
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Blake and Molly Nordstrom 2012 Andrew L Nordstrom Trust |
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|
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By: |
/s/ Andrew L. Nordstrom |
|
Name: |
Andrew L. Nordstrom |
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Title: |
Trustee |
|
|
|
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/s/ Leigh E. Nordstrom |
|
Leigh E. Nordstrom |
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|
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/s/ Samuel C. Nordstrom |
|
Samuel C. Nordstrom |
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/s/ Sara D. Nordstrom |
|
Sara D. Nordstrom |
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Address for Family Owners: |
|
1617 Sixth Avenue, Seattle, Washington 98101 |
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Attention: Erik B. Nordstrom and Peter E. Nordstrom |
|
Acknowledged and agreed:
COMPANY:
NORDSTROM, INC.
By: |
/s/ Ann Munson Steines |
|
Name: |
Ann Munson Steines |
|
Title: |
Chief Legal Officer, General Counsel and Corporate Secretary |
|
Address: 1617 Sixth Avenue, Seattle, Washington 98101
Attention: Ann Munson Steines, Chief Legal Officer, General Counsel and Corporate Secretary
MESSRS.
ERIK AND PETE NORDSTROM:
/s/ Erik B. Nordstrom |
|
Erik B. Nordstrom |
|
|
|
/s/ Peter E. Nordstrom |
|
Peter E. Nordstrom |
|
PETE AND BRANDY NORDSTROM 2012 CHILDREN'S
TRUST
By: |
/s/ Erik B. Nordstrom |
|
Name: |
Erik B. Nordstrom |
|
Title: |
Trustee |
|
PETE AND BRANDY NORDSTROM 2010 MFN
TRUST |
|
|
|
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By: |
/s/ Erik B. Nordstrom |
|
Name: |
Erik B. Nordstrom |
|
Title: |
Trustee |
|
PETE AND BRANDY NORDSTROM 2012 CFN TRUST |
|
|
|
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By: |
/s/ Erik B. Nordstrom |
|
Name: |
Erik B. Nordstrom |
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Title: |
Trustee |
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ERIK AND JULIE NORDSTROM SARA D. NORDSTROM 2012 TRUST |
|
|
|
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By: |
/s/ Peter E. Nordstrom |
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Name: |
Peter E. Nordstrom |
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Title: |
Trustee |
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BRUCE AND JEANNIE NORDSTROM 2010 MFN TRUST |
|
|
|
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By: |
/s/ Peter E. Nordstrom |
|
Name: |
Peter E. Nordstrom |
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Title: |
Trustee |
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BRUCE AND JEANNIE NORDSTROM 2012 CFN TRUST |
|
|
|
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By: |
/s/ Peter E. Nordstrom |
|
Name: |
Peter E. Nordstrom |
|
Title: |
Trustee |
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1976 BRUCE A. NORDSTROM TRUST (aka 1976 ELIZABETH J. NORDSTROM TRUST
FBO BRUCE NORDSTROM) |
|
|
|
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By: |
/s/ Peter E. Nordstrom |
|
Name: |
Peter E. Nordstrom |
|
Title: |
Co-Trustee |
|
By: |
/s/ Erik B. Nordstrom |
|
Name: |
Erik B. Nordstrom |
|
Title: |
Co-Trustee |
|
FRANCES W. NORDSTROM TRUST FBO BAN, created under will dated April 4,
1984 |
|
|
|
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By: |
/s/ Peter E. Nordstrom |
|
Name: |
Peter E. Nordstrom |
|
Title: |
Co-Trustee |
|
By: |
/s/ Erik B. Nordstrom |
|
Name: |
Erik B. Nordstrom |
|
Title: |
Co-Trustee |
|
Address: 1617 Sixth Avenue, Seattle,
Washington 98101
Attention: Erik B. Nordstrom and Peter
E. Nordstrom
Exhibit 24
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Peter E. Nordstrom and Charles W. Riley, Jr., or either one of them acting singly,
and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such persons
and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned and in
the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Erik B. Nordstrom |
|
Signature |
|
|
|
ERIK B. NORDSTROM |
|
Print Name |
|
Exhibit 25
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom and Charles W. Riley, Jr., or either one of them acting singly,
and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such persons
and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned and in
the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Peter E. Nordstrom |
|
Signature |
|
|
|
PETER E. NORDSTROM |
|
Print Name |
|
Exhibit 26
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ James F. Nordstrom, Jr. |
|
Signature |
|
|
|
James F. Nordstrom, Jr. |
|
Print Name |
|
Exhibit 27
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Anne E. Gittinger |
|
Signature |
|
|
|
Anne E. Gittinger |
|
Print Name |
|
Exhibit 28
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom and Peter E. Nordstrom, or either one of them acting singly, and with
full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such persons and their
substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Charles W. Riley, Jr. |
|
Signature |
|
|
|
CHARLES W. RILEY, JR. |
|
Print Name |
|
Exhibit 29
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Margaret Jean O’Roark Nordstrom |
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Signature |
|
|
|
Margaret Jean O’Roark Nordstrom |
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Print Name |
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Exhibit 30
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Linda Nordstrom |
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Signature |
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|
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Linda Nordstrom |
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Print Name |
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Exhibit 31
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
Estate of Bruce A. Nordstrom |
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|
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By: |
/s/ Margaret Jean O’Roark Nordstrom |
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Name: |
Margaret Jean O’Roark Nordstrom |
|
Title: |
Co-Executor of the Estate of Bruce A. Nordstrom |
|
|
|
By: |
/s/ Erik B. Nordstrom |
|
Name: |
Erik B. Nordstrom |
|
Title: |
Co-Executor of the Estate of Bruce A. Nordstrom |
|
|
|
By: |
/s/ Peter E. Nordstrom |
|
Name: |
Peter E. Nordstrom |
|
Title: |
Co-Executor of the Estate of Bruce A. Nordstrom |
|
Exhibit 32
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Susan E. Dunn |
|
Signature |
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|
|
Susan E. Dunn |
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Print Name |
|
Exhibit 33
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Alexandra F. Nordstrom |
|
Signature |
|
|
|
Alexandra F. Nordstrom |
|
Print Name |
|
Exhibit 34
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Andrew L. Nordstrom |
|
Signature |
|
|
|
Andrew L. Nordstrom |
|
Print Name |
|
Exhibit 35
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Leigh E. Nordstrom |
|
Signature |
|
|
|
Leigh E. Nordstrom |
|
Print Name |
|
Exhibit 36
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Samuel C. Nordstrom |
|
Signature |
|
|
|
Samuel C. Nordstrom |
|
Print Name |
|
Exhibit 37
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
1. Prepare,
execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto, and any
other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with the SEC
of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities Exchange
Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC;
2. Prepare,
execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange on which the
Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required to file with
the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16 of the Exchange
Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and
3. Obtain,
as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity securities
from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and the undersigned
hereby authorizes any such third party to release any such information to the Attorney-in-Fact.
The undersigned acknowledges that:
a) This
Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided to such
Attorney-in-Fact without independent verification of such information;
b) Any
documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be in such
form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable;
c) Neither
the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements of Section 13
or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply with such requirements,
or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange Act; and
d) This
Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under Section 13
or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13 or Section 16
of the Exchange Act.
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of September 4, 2024.
/s/ Sara D. Nordstrom |
|
Signature |
|
|
|
Sara D. Nordstrom |
|
Print Name |
|
Exhibit 38
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
| 1. | Prepare, execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto,
and any other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with
the SEC of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities
Exchange Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC; |
| 2. | Prepare, execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange
on which the Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required
to file with the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16
of the Exchange Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and |
| 3. | Obtain, as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity
securities from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and
the undersigned hereby authorizes any such third party to release any such information to the Attorney-in-Fact. |
The undersigned acknowledges that:
| a) | This Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided
to such Attorney-in-Fact without independent verification of such information; |
| b) | Any documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be
in such form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable; |
| c) | Neither the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements
of Section 13 or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply
with such requirements, or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange
Act; and |
| d) | This Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under
Section 13 or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13
or Section 16 of the Exchange Act. |
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of December 23, 2024.
/s/ Molly Nordstrom |
|
Signature |
|
|
|
Molly Nordstrom |
|
Print Name |
|
Exhibit 39
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
| 1. | Prepare, execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto,
and any other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with
the SEC of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities
Exchange Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC; |
| 2. | Prepare, execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange
on which the Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required
to file with the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16
of the Exchange Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and |
| 3. | Obtain, as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity
securities from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and
the undersigned hereby authorizes any such third party to release any such information to the Attorney-in-Fact. |
The undersigned acknowledges that:
| a) | This Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided
to such Attorney-in-Fact without independent verification of such information; |
| b) | Any documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be
in such form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable; |
| c) | Neither the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements
of Section 13 or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply
with such requirements, or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange
Act; and |
| d) | This Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under
Section 13 or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13
or Section 16 of the Exchange Act. |
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of December 23, 2024.
/s/ Kimberly Mowat Bentz |
|
Signature |
|
|
|
Kimberly Mowat Bentz |
|
Print Name |
|
Exhibit 40
Power of Attorney
Know all by these presents, that the undersigned
hereby makes, constitutes and appoints each of Erik B. Nordstrom, Peter E. Nordstrom and Charles W. Riley, Jr., or any of them acting
singly, and with full power of substitution and re-substitution, the undersigned’s true and lawful attorney-in-fact (each of such
persons and their substitutes being referred to herein as the "Attorney-in-Fact"), with full power to act for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to:
| 1. | Prepare, execute, and submit to the Securities and Exchange Commission ("SEC") a Form ID, including amendments thereto,
and any other documents necessary or appropriate to obtain codes and passwords enabling the undersigned to make electronic filings with
the SEC of reports required or considered by the Attorney-in-Fact to be advisable under Section 13 or Section 16 of the Securities
Exchange Act of 1934 (the "Exchange Act") or any rule or regulation of the SEC; |
| 2. | Prepare, execute and submit to the SEC, Nordstrom, Inc. (the “Company”), and/or any national securities exchange
on which the Company’s securities are listed any and all reports (including any amendments thereto) the undersigned is required
to file with the SEC, or which the Attorney-in-Fact considers it advisable to file with the SEC, under Section 13 or Section 16
of the Exchange Act or any rule or regulation thereunder, or under Rule 144 under the Securities Act of 1933 (“Rule 144”),
with respect to the any security of the Company, including Forms 3, 4 and 5, Schedules 13D and 13G, and Forms 144; and |
| 3. | Obtain, as the undersigned's representative and on the undersigned's behalf, information regarding transactions in the Company's equity
securities from any third party, including the Company and any brokers, dealers, employee benefit plan administrators and trustees, and
the undersigned hereby authorizes any such third party to release any such information to the Attorney-in-Fact. |
The undersigned acknowledges that:
| a) | This Power of Attorney authorizes, but does not require, the Attorney-in-Fact to act in his or her discretion on information provided
to such Attorney-in-Fact without independent verification of such information; |
| b) | Any documents prepared or executed by the Attorney-in-Fact on behalf of the undersigned pursuant to this Power of Attorney will be
in such form and will contain such information as the Attorney-in-Fact, in his or her discretion, deems necessary or desirable; |
| c) | Neither the Company nor the Attorney-in-Fact assumes any liability for the undersigned's responsibility to comply with the requirements
of Section 13 or Section 16 of the Exchange Act or Rule 144, any liability of the undersigned for any failure to comply
with such requirements, or any liability of the undersigned for disgorgement of profits under Section 16(b) of the Exchange
Act; and |
| d) | This Power of Attorney does not relieve the undersigned from responsibility for compliance with the undersigned's obligations under
Section 13 or Section 16 of the Exchange Act, including, without limitation, the reporting requirements under Section 13
or Section 16 of the Exchange Act. |
The undersigned hereby grants to the Attorney-in-Fact
full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done in connection with
the foregoing, as fully, to all intents and purposes, as the undersigned might or could do in person, hereby ratifying and confirming
all that the Attorney-in-Fact, or his or her substitute or substitutes, shall lawfully do or cause to be done by authority of this Power
of Attorney.
This Power of Attorney shall remain in full force
and effect until the undersigned is no longer required to file Forms 4 or 5 or Schedules 13D or 13G or Forms 144 with respect to the undersigned's
holdings of and transactions in securities of the Company, unless earlier revoked by the undersigned in a signed writing delivered to
the Attorney-in-Fact.
IN WITNESS WHEREOF, the undersigned has executed
this Power of Attorney as of December 23, 2024.
/s/ Mari Mowat Wolf |
|
Signature |
|
|
|
Mari Mowat Wolf |
|
Print Name |
|
Exhibit 41
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
by and among
NORSE HOLDINGS, INC.,
NAVY ACQUISITION CO. INC.
and
NORDSTROM, INC.
Dated as of December 22, 2024
Table
of Contents
Article I |
DEFINITIONS |
|
|
|
Section 1.1 |
Definitions |
3 |
|
|
|
Article II |
THE
MERGER |
|
Section 2.1 |
The Merger |
3 |
Section 2.2 |
The Closing |
3 |
Section 2.3 |
Effective Time |
3 |
Section 2.4 |
Articles of Incorporation and Bylaws |
4 |
Section 2.5 |
Board of Directors |
4 |
Section 2.6 |
Officers |
4 |
|
|
|
Article III |
EFFECT
OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES |
|
Section 3.1 |
Effect on Securities |
4 |
Section 3.2 |
Payment for Securities; Exchange of Certificates |
6 |
Section 3.3 |
Company Equity Awards |
9 |
Section 3.4 |
Lost Certificates |
14 |
Section 3.5 |
Dissenting Shares |
14 |
Section 3.6 |
Transfers; No Further Ownership Rights |
14 |
Section 3.7 |
Payment of Special Dividend and Stub Period Dividend |
15 |
|
|
|
Article IV |
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY |
|
Section 4.1 |
Organization and Qualification; Subsidiaries |
15 |
Section 4.2 |
Capitalization |
16 |
Section 4.3 |
Authority Relative to Agreement |
17 |
Section 4.4 |
No Conflict; Required Filings and Consents |
18 |
Section 4.5 |
Permits; Compliance with Laws |
19 |
Section 4.6 |
Company SEC Documents; Financial Statements |
20 |
Section 4.7 |
Information Supplied |
21 |
Section 4.8 |
Disclosure Controls and Procedures |
21 |
Section 4.9 |
Absence of Certain Changes or Events |
21 |
Section 4.10 |
No Undisclosed Liabilities |
22 |
Section 4.11 |
Litigation |
22 |
Section 4.12 |
Employee Benefit Plans |
23 |
Section 4.13 |
Labor Matters |
24 |
Section 4.14 |
Intellectual Property Rights |
25 |
Section 4.15 |
Taxes |
27 |
Section 4.16 |
Material Contracts |
28 |
Section 4.17 |
Real and Personal Property |
30 |
Section 4.18 |
Environmental Matters |
31 |
Section 4.19 |
Vote Required |
32 |
Section 4.20 |
Brokers |
32 |
Section 4.21 |
Opinion of Financial
Advisors |
32 |
Section 4.22 |
Insurance |
32 |
Section 4.23 |
Takeover Statutes |
33 |
Section 4.24 |
No Other Representations or
Warranties |
33 |
|
|
|
Article V |
REPRESENTATIONS
AND WARRANTIES OF PARENT |
AND
ACQUISITION SUB |
|
Section 5.1 |
Organization and Qualification |
34 |
Section 5.2 |
Authority Relative to Agreement |
34 |
Section 5.3 |
No Conflict; Required Filings
and Consents |
35 |
Section 5.4 |
Litigation |
36 |
Section 5.5 |
Absence of Certain Agreements |
36 |
Section 5.6 |
Information Supplied |
37 |
Section 5.7 |
Financing; Sufficient Funds |
37 |
Section 5.8 |
Guaranties |
39 |
Section 5.9 |
Capitalization |
39 |
Section 5.10 |
Investment Intention |
39 |
Section 5.11 |
Brokers |
40 |
Section 5.12 |
Solvency |
40 |
Section 5.13 |
Share Ownership |
41 |
Section 5.14 |
Acknowledgment of Disclaimer
of Other Representations and Warranties |
41 |
|
|
|
Article VI |
COVENANTS
AND AGREEMENTS |
|
|
|
Section 6.1 |
Conduct of Business by the
Company Pending the Merger |
43 |
Section 6.2 |
Preparation of the Proxy Statement
and Schedule 13E-3; Shareholders’ Meeting |
48 |
Section 6.3 |
Appropriate Action; Consents;
Filings |
51 |
Section 6.4 |
Access to Information; Confidentiality |
53 |
Section 6.5 |
Non-Solicitation; Competing
Proposals; Intervening Event |
55 |
Section 6.6 |
Directors’ and Officers’
Indemnification and Insurance |
60 |
Section 6.7 |
Notification of Certain Matters |
62 |
Section 6.8 |
Public Announcements |
63 |
Section 6.9 |
Employee Benefits |
63 |
Section 6.10 |
Conduct of Business by Parent
Pending the Merger |
65 |
Section 6.11 |
Financing |
65 |
Section 6.12 |
Financing Cooperation |
69 |
Section 6.13 |
Acquisition Sub; Parent Parties |
77 |
Section 6.14 |
No Control of the Company’s
Business |
77 |
Section 6.15 |
Rule 16b-3 Matters |
77 |
Section 6.16 |
Stock Exchange Matters |
77 |
Section 6.17 |
Shareholder Litigation |
77 |
Section 6.18 |
Takeover Laws |
78 |
Section 6.19 |
Repayment of Indebtedness |
78 |
Section 6.20 |
Special Dividend |
79 |
Article VII |
CONDITIONS
TO THE MERGER |
|
Section 7.1 |
Conditions to the Obligations of
Each Party |
79 |
Section 7.2 |
Conditions to Obligations of Parent and Acquisition
Sub to Effect the Merger |
79 |
Section 7.3 |
Conditions to Obligation of the Company to Effect the
Merger |
80 |
|
|
|
Article VIII |
TERMINATION |
|
Section 8.1 |
Termination |
81 |
Section 8.2 |
Effect of Termination |
83 |
Section 8.3 |
Termination Fees; Expenses |
84 |
|
|
|
Article IX |
GENERAL
PROVISIONS |
|
|
|
Section 9.1 |
Non-Survival of Representations, Warranties and Agreements |
87 |
Section 9.2 |
Notices |
87 |
Section 9.3 |
Interpretation; Certain Definitions |
89 |
Section 9.4 |
Severability |
91 |
Section 9.5 |
Assignment |
91 |
Section 9.6 |
Entire Agreement |
91 |
Section 9.7 |
No Third-Party Beneficiaries |
92 |
Section 9.8 |
Amendment |
93 |
Section 9.9 |
Extension; Waiver |
93 |
Section 9.10 |
Expenses; Transfer Taxes |
93 |
Section 9.11 |
Governing Law |
93 |
Section 9.12 |
Specific Performance |
94 |
Section 9.13 |
Consent to Jurisdiction |
96 |
Section 9.14 |
Counterparts |
96 |
Section 9.15 |
WAIVER OF JURY TRIAL |
97 |
Index of Defined Terms |
Acquisition Sub |
1, A-1 |
Action |
A-1 |
Additional Obligations |
86, A-1 |
Adverse Recommendation Change |
56, A-1 |
Adverse Recommendation Termination Fee |
A-1 |
Advisor Engagement Letters |
32, A-1 |
Affiliate |
A-1 |
Aggregate Merger Consideration |
A-1 |
Agreement |
1, A-1 |
Alternative Financing |
67, A-1 |
Alternative Transaction Termination Fee |
A-1 |
Anti-Corruption Laws |
19, A-1 |
Anti-Money Laundering Laws |
A-1 |
Antitrust Laws |
A-1 |
Articles of Merger |
3, A-2 |
Bankruptcy and Equity Exception |
17, A-2 |
Base Reverse Termination Fee |
A-2 |
Below Investment Grade Rating Event |
A-2 |
Blue Sky Laws |
A-2 |
Book-Entry Shares |
5, A-2 |
Business Day |
A-2 |
CARES Act |
A-2 |
Certificates |
5, A-2 |
Closing |
3, A-2 |
Closing Date |
3, A-2 |
Code |
A-2 |
Company |
1, A-2 |
Company Benefit Plan |
22, A-2 |
Company Board |
1, A-3 |
Company Bylaws |
15, A-3 |
Company Cash Amount |
A-3 |
Company Cash on Hand |
A-3 |
Company Charter |
15, A-3 |
Company Common Stock |
2, A-3 |
Company Debt |
78, A-3 |
Company Disclosure Letter |
A-3 |
Company Intellectual Property Rights |
25, A-3 |
Company IT Assets |
A-3 |
Company Material Adverse Effect |
A-3 |
Company Material Contract |
28, A-5 |
Company Note Offer and Consent Solicitation |
72 |
Company Options |
9, A-5 |
Company Permits |
19, A-5 |
Company Recommendation |
A-5 |
Company Related Parties |
85, A-5 |
Company SEC Documents |
20, A-5 |
Company Stock Plans |
A-5 |
Company Stock Purchase Plan |
A-5 |
Company Termination Fee |
A-5 |
Competing Proposal |
59, A-5 |
Confidentiality Agreements |
A-5 |
Consent |
18, A-5 |
Consent Solicitation |
72, A-5 |
Continuation Period |
63, A-5 |
Continuing Employees |
63, A-5 |
Contract |
A-5 |
control |
A-5 |
controlled by |
A-5 |
Converted Option Cash Award |
10, A-6 |
Converted PSU Award |
12, A-6 |
Converted RSU Award |
11, A-6 |
D&O Indemnified Parties |
60, A-6 |
Debt Commitment Letter |
37, A-6 |
Debt Financing |
37, A-6 |
Debt Financing Sources |
A-6 |
Debt Payoff Amount |
78, A-6 |
Deferred Compensation Plans |
A-6 |
director |
A-6 |
Dissenting Shareholder |
14, A-6 |
Dissenting Shares |
14, A-6 |
Downgrade Reverse Termination Fee |
A-6 |
Effect |
A-3 |
Effective Time |
3, A-6 |
Environmental Laws |
A-6 |
Environmental Permits |
A-7 |
Equity Commitment Letter |
2, A-7 |
Equity Financing |
2, A-7 |
ERISA |
22, A-7 |
ERISA Affiliate |
A-7 |
Exchange Act |
A-7 |
Exchange Fund |
6, A-7 |
Excluded Information |
75, A-7 |
Existing Credit Agreement |
A-7 |
Existing D&O Insurance Policies |
61, A-7 |
Expenses |
A-7 |
Family Confidentiality Agreement |
A-7 |
Family Group |
A-7 |
Final Exercise Date |
13, A-8 |
Financing |
37, A-8 |
Financing Commitments |
37, A-8 |
Financing Sources |
A-8 |
Funded Debt Amount |
A-8 |
Funding Obligations |
38, A-8 |
Funds |
38, A-8 |
GAAP |
A-8 |
Governmental Authority |
A-8 |
Guaranties |
2, A-8 |
Guarantors |
2, A-8 |
Hazardous Substances |
A-8 |
HSR Act |
A-8 |
Inside Date |
A-8 |
Insurance Policies |
32 |
Insurance Policy |
32, A-8 |
Intellectual Property Rights |
25, A-8 |
Intentional Breach |
A-8 |
Intervening Event |
59, A-9 |
IRS |
23, A-9 |
IT Assets |
A-3 |
Knowledge |
A-9 |
Law |
A-9 |
Leased Real Property |
A-9 |
Lien |
A-9 |
Liverpool |
A-9 |
Liverpool Confidentiality Agreement |
A-9 |
Liverpool Debt Commitment Letter |
A-9 |
Liverpool Debt Financing |
A-9 |
Liverpool Debt Financing Sources |
A-9 |
Malicious Code |
A-10 |
Maximum Amount |
61, A-10 |
Maximum Liability Amount |
A-10 |
Merger |
1, A-10 |
Merger Consideration |
5, A-10 |
New Debt Commitment Letter |
67, A-10 |
New Plans |
64, A-10 |
Notes Enhancements |
A-10 |
Notes Enhancements Documents |
72 |
Notes Guarantee |
A-10 |
Notes Security Grant |
A-10 |
Notice of Adverse Recommendation |
57, A-10 |
NYSE |
A-10 |
Offer and Consent Solicitation Documents |
72, A-10 |
Offer to Exchange |
A-10 |
Old Plans |
64, A-10 |
Open Source Software |
A-11 |
Order |
A-11 |
Other Required Filing |
49, A-11 |
Outside Date |
81, A-11 |
Owned Real Property |
A-11 |
Pandemic |
A-11 |
Pandemic Measures |
A-11 |
Parent |
1, A-11 |
Parent Disclosure Letter |
A-11 |
Parent Material Adverse Effect |
A-11 |
Parent Parties |
A-12 |
Parent Party |
A-12 |
Parent Related Parties |
85, A-12 |
Paying Agent |
6, A-12 |
Paying Agent Agreement |
6, A-12 |
Payoff Letter |
78, A-12 |
Permitted Liens |
A-12 |
Person |
A-13 |
Personal Data |
A-13 |
Pre-Closing Period |
42, A-13 |
Pre-Release Information |
69, A-13 |
Privacy Obligations |
A-13 |
Proxy Statement |
21, A-13 |
PSU Award |
11, A-13 |
Rating Agencies |
A-13 |
Real Property |
A-13 |
Real Property Leases |
31, A-14 |
Release |
A-14 |
Representatives |
A-14 |
Required Financial Statements |
A-14 |
Requisite Shareholder Approvals |
32, A-14 |
Reverse Termination Fee |
A-14 |
Rollover |
2, A-14 |
Rollover and Support Agreements |
2, A-14 |
Rollover Shares |
2, A-14 |
RSU Award |
10, A-14 |
Sanctioned Country |
A-14 |
Sanctioned Person |
A-14 |
Schedule 13E-3 |
21, A-15 |
SEC |
A-15 |
Secretary |
3, A-15 |
Securities Act |
A-15 |
Senior Debentures |
A-15 |
Senior Debt |
A-15 |
Senior Employee |
44, A-15 |
Senior Notes |
A-15 |
Shareholder Rights Agreement |
A-15 |
Shareholders’ Meeting |
49, A-15 |
Solvent |
40, A-15 |
Special Committee |
1, A-15 |
Special Dividend |
78, A-15 |
Special Dividend Payment |
79, A-15 |
Special Dividend Per Share Amount |
79, A-15 |
Specified Date |
16, A-15 |
Stock Unit |
A-15 |
Stub Period Dividend |
43, A-16 |
Subsidiary |
A-16 |
Successful Note Offer |
A-2 |
Superior Proposal |
59, A-16 |
Surviving Corporation |
3, A-16 |
Tail Coverage |
61, A-16 |
Takeover Laws |
33, A-16 |
Tax |
A-16 |
Tax Group |
A-16 |
Tax Returns |
A-16 |
Taxes |
A-16 |
Third Party |
A-16 |
Trade Controls |
20, A-16 |
trade war |
A-4 |
Transaction Documents |
A-16 |
Transfer Taxes |
A-16 |
Treasury Regulations |
A-17 |
under common control with |
A-5 |
Unvested Company Options |
10 |
Unvested Company PSU |
12, A-17 |
Unvested Company RSU |
11, A-17 |
VDR |
33, A-17 |
Vested Company Options |
9, A-17 |
Vested Company PSU |
11, A-17 |
Vested Company RSU |
10, A-17 |
Vested Option Payments |
9, A-17 |
Vested PSU Payments |
12, A-17 |
Vested RSU Payments |
11, A-17 |
WARN Act |
25 |
WBCA |
1, A-17 |
WBCA Shareholder Approval |
32, A-17 |
Exhibits
Exhibit A |
Articles of Incorporation of the Surviving Corporation |
THIS
AGREEMENT AND PLAN OF MERGER, dated as of December 22, 2024 (this “Agreement”), is made by and among
Norse Holdings, Inc., a Delaware corporation (“Parent”), Navy Acquisition Co. Inc., a Washington corporation
and a direct, wholly owned Subsidiary of Parent (“Acquisition Sub”), and Nordstrom, Inc., a Washington
corporation (the “Company”).
W I T N E S S E T H:
WHEREAS, on February 11,
2024, the Board of Directors of the Company (the “Company Board”) approved the formation of a special committee
of the Company Board consisting only of independent and disinterested directors of the Company (the “Special Committee”)
and delegated authority to the Special Committee to, among other things, consider and evaluate certain matters, including ultimately the
advisability of this Agreement and the transactions contemplated by this Agreement and to make a recommendation to the Company Board as
to whether the Company should enter into this Agreement and consummate such transactions;
WHEREAS, the Special Committee
has unanimously (a) determined that this Agreement and the Merger, on the terms and subject to the conditions set forth herein, are advisable,
fair to and in the best interests of the Company and the Company’s shareholders and (b) recommended that the Company Board (i) approve
this Agreement and the transactions contemplated by this Agreement, including the merger of Acquisition Sub with and into the Company,
pursuant to the Washington Business Corporation Act (as amended, the “WBCA”), upon the terms and subject to
the conditions set forth in this Agreement (the “Merger”), and (ii) recommend that the shareholders of the Company
approve this Agreement and the transactions contemplated hereby, including the Merger;
WHEREAS,
the Company Board, acting on the recommendation of the Special Committee, has unanimously (excluding the members of the Company Board
who are Parent Parties) (a) determined and declared that this Agreement and the consummation by the Company of the transactions contemplated
by this Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its shareholders, (b) approved
this Agreement, including Exhibit A hereto, and authorized the execution, delivery and performance of this Agreement, and subject
to receiving the Requisite Shareholder Approvals, the consummation by the Company of the transactions contemplated by this Agreement,
including the Merger, (c) directed that this Agreement be submitted to the shareholders of the Company to be approved and (d) upon
the terms and subject to the conditions of this Agreement, resolved to recommend the approval of this Agreement and the transactions contemplated
hereby, including the Merger, by the Company’s shareholders in accordance with Section 23B.11A.040 of the WBCA;
WHEREAS, the board of directors
of Acquisition Sub has unanimously (a) determined and declared that this Agreement and the consummation by Acquisition Sub of the
transactions contemplated by this Agreement, including the Merger, are in the best interests of Acquisition Sub and its sole shareholder,
(b) approved and declared advisable the execution, delivery and performance of this Agreement and the consummation by Acquisition
Sub of the transactions contemplated by this Agreement, including the Merger, upon the terms and subject to the conditions set forth in
this Agreement, (c) directed that this Agreement be submitted to the shareholder of Acquisition Sub to be approved and (d) upon
the terms and subject to the conditions of this Agreement, resolved to recommend approval of this Agreement by the shareholder of Acquisition
Sub;
WHEREAS, the board of directors
of Parent has unanimously approved and declared advisable the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated by this Agreement, including the Merger;
WHEREAS, concurrently with
the execution of this Agreement, as a material inducement to, and as a condition to, the willingness of the Company to enter into this
Agreement, the Family Group and Liverpool are entering into Rollover, Voting and Support Agreements (as amended, supplemented, replaced
or modified, the “Rollover and Support Agreements”) with the Company and Parent pursuant to which, among other
things, the Family Group and Liverpool have agreed to, in each case, subject to the terms and conditions contained in the Rollover and
Support Agreements, (a) transfer, contribute and deliver the number of shares of common stock, no par value per share, of the Company
(the “Company Common Stock”) set forth therein (the “Rollover Shares” and the transfer,
contribution or delivery of the Rollover Shares, the “Rollover”) to Parent in exchange for common stock of Parent,
(b) vote their shares of Company Common Stock and any other voting securities of the Company in favor of the approval of this Agreement
and the transactions contemplated hereby, including the Merger, and (c) take or abstain from taking certain other actions;
WHEREAS, concurrently with
the execution of this Agreement, as a material inducement to, and as a condition to, the willingness of the Company to enter into this
Agreement, Parent and Acquisition Sub have delivered to the Company (a) an equity commitment letter, dated as of the date hereof,
pursuant to which Liverpool has committed, subject only to the terms thereof, to invest in Parent the amount set forth therein (the “Equity
Commitment Letter” and the investment of such amount, the “Equity Financing”); (b) limited
guaranties from certain members of the Family Group and Liverpool (the “Guarantors”) in favor of the Company,
dated as of the date hereof, pursuant to which the Guarantors are guaranteeing the performance and payment of certain of Parent’s
and Acquisition Sub’s obligations under this Agreement (as amended or supplemented in compliance with this Agreement, the “Guaranties”);
and (c) the Debt Commitment Letter (as defined below); and
WHEREAS, each of Parent, Acquisition
Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also
to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration
of the foregoing and the representations, warranties, covenants and agreements in connection with the transactions contemplated by this
Agreement, and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
Article I
DEFINITIONS
Section 1.1 Definitions.
Defined terms used in this Agreement have the respective meanings ascribed to them by definition in this Agreement or in Appendix
A.
Article II
THE
MERGER
Section 2.1 The
Merger. Upon the terms and subject to the conditions of this Agreement, and in accordance with the WBCA, at the Effective Time, Acquisition
Sub shall be merged with and into the Company, whereupon the separate existence of Acquisition Sub shall cease, and the Company shall
continue under the name “Nordstrom, Inc.” as the surviving corporation (the “Surviving Corporation”)
and shall succeed to and assume all of the rights and obligations of Acquisition Sub and the Company in accordance with the WBCA.
Section 2.2 The
Closing. Subject to the provisions of Article VII, the closing of the Merger (the “Closing”)
shall take place at 9:00 a.m. (New York City time) on a date to be specified by the Company and Parent, but no later than the third
(3rd) Business Day after the satisfaction or, to the extent not prohibited by Law, waiver of all of the conditions set forth in Article VII
(other than those conditions that by their terms are only capable of being satisfied on the Closing Date, but subject to the satisfaction
or, to the extent not prohibited by Law, waiver of such conditions by the party hereto entitled to waive such conditions), and the Closing
shall take place by the electronic exchange of signatures and documents, unless another time, date or place is agreed to in writing by
the Company and Parent; provided that notwithstanding the foregoing, in no event shall Parent be required to effect the Closing
prior to the Inside Date without its consent (such date on which the Closing occurs being the “Closing Date”).
Section 2.3 Effective
Time.
(a) Concurrently
with the Closing, each of the Company, Parent and Acquisition Sub shall cause articles of merger with respect to the Merger (the “Articles
of Merger”) to be executed, delivered to and filed with the Office of the Secretary of State of the State of Washington
(the “Secretary”) in such form as required by, and executed in accordance with, the WBCA, together with such
other appropriate documents, in such forms, as required by and executed in accordance with, the relevant provisions of the WBCA. The Merger
shall become effective in accordance with the WBCA on the date and time at which the Articles of Merger have been filed by the Secretary
(such date and time of filing, or such later time as may be agreed to by Parent, Acquisition Sub and the Company and set forth in the
Articles of Merger, being hereinafter referred to as the “Effective Time”).
(b) The
Merger shall have the effects set forth in the applicable provisions of the WBCA, this Agreement and the Articles of Merger. Without limiting
the generality of the foregoing, from and after the Effective Time, the Surviving Corporation shall possess all properties, rights, privileges,
powers and franchises of the Company and Acquisition Sub without transfer, reversion or impairment, and all of the claims, obligations,
liabilities, debts and duties of the Company and Acquisition Sub shall become the claims, obligations, liabilities, debts and duties of
the Surviving Corporation.
Section 2.4 Articles
of Incorporation and Bylaws. Subject to compliance with Section 6.6, in accordance with Section 23B.11A.020(5) of
the WBCA, the articles of incorporation of the Surviving Corporation shall be amended and restated at the Effective Time in the form
attached as Exhibit A hereto and the bylaws of the Surviving Corporation shall be amended and restated at the Effective
Time to be identical to the bylaws of Acquisition Sub, until thereafter amended in accordance with the applicable provisions of the articles
of incorporation and bylaws of the Surviving Corporation (as applicable) and the WBCA, except that (a) in the case of the bylaws,
the name of the Surviving Corporation shall be “Nordstrom, Inc.” and (b) subject to Section 6.6, the
indemnification provisions shall be the same as those under the Company’s articles of incorporation and bylaws, respectively, in
each case as in effect immediately prior to the Effective Time.
Section 2.5 Board
of Directors. The board of directors of the Surviving Corporation effective as of, and immediately following, the Effective Time
shall consist of the members of the board of directors of Acquisition Sub as of immediately prior to the Effective Time, each to hold
office in accordance with the applicable provisions of the WBCA and the articles of incorporation and bylaws of the Surviving Corporation.
Section 2.6 Officers.
From and after the Effective Time, the officers of the Company as of immediately prior to the Effective Time shall be the officers of
the Surviving Corporation, each to hold office in accordance with the applicable provisions of the WBCA and the articles of incorporation
and bylaws of the Surviving Corporation.
Article III
EFFECT
OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES
Section 3.1 Effect
on Securities. At the Effective Time (or such other time specified in this Section 3.1), by virtue of the Merger and
without any action on the part of the Company, Parent, Acquisition Sub or any holder of any securities of the Company or Acquisition
Sub or any other Person:
(a) Expiration
or Cancellation of Company Securities. Each share of Company Common Stock held by the Company or owned of record by the Company or
any Subsidiary of the Company and all shares of Company Common Stock held, directly or indirectly, by Parent or Acquisition Sub or any
of their wholly owned Subsidiaries (other than, in each case, shares of Company Common Stock held on behalf of a Third Party), immediately
prior to the Effective Time and all Rollover Shares shall automatically be cancelled and retired and shall cease to exist as issued or
outstanding shares, and no consideration or payment shall be delivered in exchange therefor or in respect thereof. For the avoidance
of doubt, holders of record of the Rollover Shares as of the record date for the Special Dividend and the Stub Period Dividend shall
be entitled to be paid such dividends, in each case if such dividends are declared by the Company and contingent upon the occurrence
of the Closing.
(b) Conversion
of Company Common Stock. Except as otherwise provided in this Agreement, each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time (other than any shares of Company Common Stock cancelled pursuant to Section 3.1(a) and
any Dissenting Shares) shall be converted into the right to receive $24.25 per share of Company Common Stock in cash (the “Merger
Consideration”), without interest thereon and less any required Tax withholdings as provided in Section 3.2(g).
Each share of Company Common Stock converted into the right to receive the Merger Consideration as provided in this Section 3.1(b) shall
no longer be issued or outstanding and shall automatically be cancelled and shall cease to exist, and the holders of certificates (the
“Certificates”) or non-certificated book-entry shares of Company Common Stock (“Book-Entry Shares”)
which immediately prior to the Effective Time represented such shares of Company Common Stock (other than any shares of Company Common
Stock cancelled pursuant to Section 3.1(a) and any Dissenting Shares) shall cease to have any rights with respect to
such Company Common Stock other than the right to receive, upon surrender of such Certificates or Book-Entry Shares in accordance with
Section 3.2, the Merger Consideration without interest thereon and less any required Tax withholdings as provided in Section 3.2(g).
For the avoidance of doubt, the Rollover Shares shall not be entitled to receive the Merger Consideration and shall, immediately prior
to the Closing, be contributed, directly or indirectly, to Parent pursuant to the terms of the applicable Rollover and Support Agreement
and cancelled pursuant to Section 3.1(a). In addition, for the avoidance of doubt, holders of record of Company Common Stock
as of the record date for the Special Dividend and the Stub Period Dividend shall be entitled to be paid such dividends, in each case
if such dividends are declared by the Company and contingent upon the occurrence of the Closing.
(c) Conversion
of Acquisition Sub Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the holder
thereof, each share of common stock, no par value per share, of Acquisition Sub issued and outstanding immediately prior to the Effective
Time shall automatically be converted into and become one (1) fully paid, non-assessable share of common stock, no par value per
share, of the Surviving Corporation and shall constitute the only issued or outstanding shares of capital stock of the Surviving Corporation.
At the Effective Time, all certificates representing common stock of Acquisition Sub (if any) shall be deemed for all purposes to represent
the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding
sentence.
(d) Adjustments.
Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the Effective
Time, any change in the number of outstanding shares of Company Common Stock shall occur as a result of a reclassification, recapitalization,
stock split (including a reverse stock split) or similar event, or combination, exchange or readjustment of shares, or any stock dividend
with a record date during such period, the Merger Consideration and the Special Dividend Per Share Amount (if the Special Dividend is
declared by the Company in accordance with Section 6.20) shall be equitably adjusted to provide the same economic effect as
contemplated by this Agreement prior to such event. Nothing in this Section 3.1(d) shall be construed to permit any party
to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.
Section 3.2 Payment
for Securities; Exchange of Certificates.
(a) Designation
of Paying Agent; Deposit of Exchange Fund. No later than ten (10) days prior to the Effective Time, Parent shall, at its sole
cost and expense, designate a reputable bank or trust company (the “Paying Agent”) that is organized and doing
business under the Laws of the United States, the identity and the terms of appointment of which to be reasonably acceptable to the Company,
to act as paying agent for the payment of the Aggregate Merger Consideration, and shall enter into an agreement (the “Paying
Agent Agreement”) relating to the Paying Agent’s responsibilities with respect thereto, in form and substance reasonably
acceptable to the Company.
(i) Parent
Funding. Substantially contemporaneously with the filing of the Articles of Merger, Parent shall deposit, or cause to be deposited,
with the Paying Agent, cash constituting an amount equal to the Aggregate Merger Consideration minus the amounts funded by the
Company pursuant to Section 3.2(a)(ii) (the Aggregate Merger Consideration as deposited with the Paying Agent pursuant
to this Section 3.2(a), the “Exchange Fund”).
(ii) Company
Funding. Substantially contemporaneously with the filing of the Articles of Merger, the Company shall deposit, or cause to be deposited,
with the Paying Agent cash in an amount requested by Parent in writing at least two (2) Business Days before the Closing Date (but
not to exceed the amount of Company Cash on Hand minus $100,000,000); provided that the amount of cash deposited by the Company
shall be held in a segregated account by the Paying Agent prior to the Effective Time and returned to the Company by the Paying Agent
immediately upon its request at any time prior to the Effective Time. Following the Effective Time, the amount of cash deposited by the
Company in accordance with this Section 3.2(a)(ii) shall be released from the segregated account held with the Paying
Agent and deposited with the Paying Agent in the Exchange Fund.
(iii) For
purposes of determining the amount to be deposited by Parent pursuant to this Section 3.2(a), Parent shall not be required
to deposit or cause to be deposited with the Paying Agent funds sufficient to pay the Merger Consideration that would be payable in respect
of any Dissenting Shares if such Dissenting Shares were not Dissenting Shares. In the event the Exchange Fund shall be insufficient to
make the payments contemplated by Section 3.1(b), Parent shall promptly deposit, or cause to be deposited, additional funds
with the Paying Agent by wire transfer of immediately available funds in an amount which is equal to the deficiency in the amount required
to make such payments in full such that the Exchange Fund becomes sufficient to make such payments. The Exchange Fund shall be (A) held
for the benefit of the holders of shares of Company Common Stock entitled to the Merger Consideration in accordance with Section 3.1(b),
except prior to the Effective Time for the amounts deposited by the Company, and (B) following the Closing, to be applied promptly
to making the payments pursuant to Section 3.1(b). The Exchange Fund shall not be used for any purpose other than to fund
payments pursuant to this Section 3.2, except as expressly provided for in this Agreement. All amounts payable pursuant to
Section 3.6 to a holder of Company Common Stock shall be paid to the Paying Agent for further distribution to each of the
holders of Company Common Stock, or, after the Effective Time, to the Surviving Corporation, for further distribution, in each case, as
provided in this Agreement.
(b) Procedures
for Exchange.
(i) Certificates.
As promptly as reasonably practicable following the Effective Time and in any event not later than the third (3rd) Business Day
thereafter, the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of a Certificate that
immediately prior to the Effective Time represented outstanding shares of Company Common Stock (A) a letter of transmittal, in
customary form mutually agreed to by the Company and Parent prior to the Effective Time, which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon proper receipt of the Certificates (or affidavits of
loss in lieu thereof in accordance with Section 3.4) by the Paying Agent and which shall be in the form and have such
other provisions as Parent and the Company may reasonably specify and (B) instructions for use in effecting the surrender of
the Certificates in exchange for the Merger Consideration into which the number of shares of Company Common Stock previously
represented by such Certificate have been converted pursuant to this Agreement (which instructions shall be in customary form
mutually agreed to by the Company and Parent). In the event of a transfer of ownership of shares of Company Common Stock that is not
registered in the transfer records of the Company, payment of the Merger Consideration may be made to a Person other than the Person
in whose name the Certificate so surrendered is registered, if such Certificate shall be presented to the Paying Agent, accompanied
by all documents reasonably required by the Paying Agent to evidence and effect such transfer and the Person requesting such payment
or such issuance shall either pay to the Surviving Corporation (or any agent designated by the Surviving Corporation) any transfer
and other similar Taxes required by reason of the payment of the Merger Consideration, as applicable, to a Person other than the
registered holder of the Certificate so surrendered or shall establish to the reasonable satisfaction of the Paying Agent that such
Taxes either have been paid or are not required to be paid.
(ii) Book-Entry
Shares. Any holder of Book-Entry Shares converted into the right to receive the Merger Consideration shall not be required to deliver
a Certificate or an executed letter of transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled
to receive pursuant to Section 3.1(b). In lieu thereof, subject to Section 3.2(c) and Section 3.5,
each registered holder of one or more Book-Entry Shares shall automatically upon the Effective Time be entitled to receive the Merger
Consideration in accordance with Section 3.1(b). Payment of the Merger Consideration with respect to Book-Entry Shares shall
only be made to the Person in whose name such Book-Entry Shares are registered.
(c) Timing
of Exchange. Upon surrender of a Certificate (or affidavit of loss in lieu thereof in accordance with Section 3.4 or in
the event shares of Company Common Stock whose transfer was not registered in the transfer records of the Company, such information, documentation
and payment of Taxes (or evidence of payment thereof) requested by the Surviving Corporation or the Paying Agent in accordance with Section 3.2(b)(i))
or Book-Entry Share for cancellation to the Paying Agent, together with, in the case of Certificates, a letter of transmittal duly completed
and validly executed in accordance with the instructions thereto, or, in the case of Book-Entry Shares, receipt of an “agent’s
message” by the Paying Agent (it being understood that holders of Book-Entry Shares will be deemed to have surrendered such Book-Entry
Shares upon receipt of an “agent’s message” with respect to such Book-Entry Share), and such other customary evidence
of surrender as the Paying Agent may reasonably require, the holder of such Certificate or Book-Entry Share shall be entitled to receive
in exchange therefor the Merger Consideration for each share of Company Common Stock formerly represented by such Certificate or Book-Entry
Share, upon the later to occur of (i) the Effective Time or (ii) the Paying Agent’s receipt of such Certificate (or affidavit
of loss in lieu thereof in accordance with Section 3.4 or in the event shares of Company Common Stock whose transfer was not
registered in the transfer records of the Company, such information, documentation and payment of Taxes (or evidence of payment thereof)
requested by the Surviving Corporation or the Paying Agent in accordance with Section 3.2(b)(i)) or Book-Entry Share, in accordance
with the procedures in Section 3.2(b), as applicable, and the Certificate (including any Certificate that is the subject of
the affidavit of loss in lieu thereof) or Book-Entry Share so surrendered shall be forthwith cancelled. The Paying Agent Agreement shall
provide that the Paying Agent shall accept such Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares upon compliance
with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal
exchange practices. No interest shall be paid or accrued for the benefit of holders of the Certificates (or affidavits of loss in lieu
thereof) or Book-Entry Shares on the Merger Consideration payable upon the surrender of the Certificates or Book-Entry Shares.
(d) Termination
of Exchange Fund. Any portion of the Exchange Fund that remains undistributed to the holders of the Certificates or Book-Entry Shares
for one (1) year after the Effective Time (including any interest received with respect thereto) shall be delivered to the Surviving
Corporation, upon written demand, and any such holders prior to the Merger who have not theretofore complied with this Article III
shall thereafter look only to the Surviving Corporation as a general creditor thereof for payment of their claims for Merger Consideration
(without any interest thereon) in respect thereof, subject to abandoned property, escheat or similar Law.
(e) No
Liability. None of Parent, Acquisition Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Person
in respect of any cash held in the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat
or similar Law.
(f) Investment
of Exchange Fund. The Paying Agent Agreement shall provide that the Paying Agent shall invest any cash included in the Exchange Fund
as directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment (including
any losses thereon) shall relieve Parent or the Paying Agent from making the payments required by this Article III, and following
any losses (or any diminishment of the Exchange Fund for any other reason below the level required to make cash payment in full of the
aggregate funds required to be paid pursuant to the terms hereof), Parent shall promptly provide additional funds to the Paying Agent
for the benefit of the holders of Company Common Stock in the amount of such losses, which additional funds will be held and disbursed
in the same manner as funds initially deposited to the Paying Agent to make the payments contemplated by Section 3.1(b), (ii) no
such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such
investments shall be in short-term obligations of the United States of America with maturities of no more than thirty (30) days or guaranteed
by the United States of America and backed by the full faith and credit of the United States of America. Any interest or income produced
by such investments will be payable to the Surviving Corporation or Parent, as directed by Parent.
(g) Withholding.
Parent, the Surviving Corporation or the Paying Agent, as applicable, shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such
payment under applicable Law. To the extent that amounts are so withheld and paid over to or deposited with the relevant Governmental
Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which
such deduction and withholding was made.
Section 3.3 Company
Equity Awards.
(a) Treatment
of Company Options.
(i) Vested
Company Options. Prior to the Effective Time, the Company Board (or any committee thereof) shall adopt resolutions that provide that,
immediately prior to the Effective Time, each option to purchase shares of Company Common Stock granted under a Company Stock Plan (the
“Company Options”) that is vested in accordance with its terms, and is outstanding and unexercised at
the Effective Time (the “Vested Company Options”) shall, except as otherwise agreed to in writing prior to
the Effective Time by Parent, the Company and a holder of Company Options, without any action on the part of the holder thereof, be cancelled
and, in exchange therefor, each holder of any such cancelled Vested Company Option shall be entitled to receive, in consideration of
the cancellation of such Vested Company Option and in settlement therefor, a payment in cash of an amount equal to the product of (i) the
total number of shares of Company Common Stock subject to such cancelled Vested Company Option, multiplied by (ii) the excess, if
any, of (A) the sum of the Merger Consideration and the Special Dividend Per Share Amount (if the Special Dividend is declared by
the Company in accordance with Section 6.20) over (B) the exercise price per share of Company Common Stock subject to
such cancelled Vested Company Option, without interest (such amounts payable hereunder, the “Vested Option Payments”);
provided, that (1) any such Vested Company Option with respect to which the exercise price per share subject thereto is equal
to or greater than the sum of the Merger Consideration and the Special Dividend Per Share Amount (if the Special Dividend is declared
by the Company in accordance with Section 6.20) shall be cancelled in exchange for no consideration and (2) such Vested
Option Payments may be reduced by the amount of any required Tax withholdings as provided in Section 3.2(g). From and after
the Effective Time, no Vested Company Option shall be exercisable, and each Vested Company Option shall entitle the holder thereof only
to the payment provided for in this Section 3.3(a)(i), if any.
(ii) Unvested
Company Options. Prior to the Effective Time, the Company Board (or any committee thereof) shall adopt resolutions that provide that,
immediately prior to the Effective Time, each Company Option that is not a Vested Company Option (the “Unvested Company
Options”) shall, except as otherwise agreed to in writing prior to the Effective Time by Parent, the Company and a holder
of Company Options, without any action on the part of the holder thereof, be cancelled and converted into the contingent right to receive
a payment in cash (subject to the vesting and timing of settlement terms described below) of an amount equal to the product of (i) the
total number of shares of Company Common Stock subject to such cancelled Unvested Company Option, multiplied by (ii) the excess,
if any, of (A) the sum of the Merger Consideration and the Special Dividend Per Share Amount (if the Special Dividend is declared
by the Company in accordance with Section 6.20) over (B) the exercise price per share of Company Common Stock subject
to such cancelled Unvested Company Option, without interest (such amounts payable hereunder, the “Converted Option Cash Award”);
provided that (1) any Unvested Company Option with respect to which the exercise price per share subject thereto is equal
to or greater than the sum of the Merger Consideration and the Special Dividend Per Share Amount (if the Special Dividend is declared
by the Company in accordance with Section 6.20) shall be cancelled in exchange for no consideration and (2) any payment
in respect of the Converted Option Cash Award may be reduced by the amount of any required Tax withholdings as provided in Section 3.2(g).
Each such Converted Option Cash Award will continue to have, and will be subject to, the same vesting and timing of settlement terms and
conditions as applied to the corresponding Unvested Company Option immediately prior to the Effective Time except for terms rendered inoperative
by reason of the Merger or for such other administrative and ministerial changes as in the reasonable and good faith determination of
Parent are appropriate to conform the administration of the Converted Option Cash Award; provided that no such changes shall adversely
affect the rights of the applicable holder. From and after the Effective Time, no Unvested Company Option shall be exercisable, and each
Unvested Company Option shall entitle the holder thereof only to the payment provided for in this Section 3.3(a)(ii), if any.
(b) Treatment
of Restricted Stock Units.
(i) Vested
Company RSUs. Prior to the Effective Time, the Company Board (or any committee thereof) shall adopt resolutions that provide that,
immediately prior to the Effective Time, each outstanding award of restricted stock units with respect to shares of Company Common
Stock granted pursuant to a Company Stock Plan that vests solely based on the holder’s provision of services over time (each, a
“RSU Award”) that is vested but not yet settled or that vests as a result of the consummation by the
Company of the transactions contemplated by this Agreement (each, a “Vested Company RSU”) shall, except as
otherwise agreed to in writing prior to the Effective Time by Parent, the Company and a holder of an RSU Award, without any action on
the part of the holder thereof, be cancelled, and in exchange therefor, each holder of any such cancelled Vested Company RSU shall be
entitled to receive, in consideration of the cancellation of such Vested Company RSU and in settlement therefor, a payment in cash of
an amount equal to the product of (A) the number of shares of Company Common Stock subject to such Vested Company RSU, multiplied
by (B) the sum of the Merger Consideration and the Special Dividend Per Share Amount (if the Special Dividend is declared by the
Company in accordance with Section 6.20), without interest (such amounts payable hereunder, the “Vested RSU Payments”);
provided that such Vested RSU Payments may be reduced by the amount of any required Tax withholdings as provided in Section 3.2(g).
(ii) Unvested
Company RSUs. Prior to the Effective Time, the Company Board (or any committee thereof) shall adopt resolutions that provide that,
immediately prior to the Effective Time, each outstanding RSU Award that is not a Vested Company RSU (each, an “Unvested
Company RSU”) shall, except as otherwise agreed to in writing prior to the Effective Time by Parent, the Company and a holder
of an RSU Award, without any action on the part of the holder thereof, be cancelled and converted into the contingent right to receive
a payment in cash (subject to the vesting and timing of settlement terms described below) of an amount equal to the product of (A) the
number of shares of Company Common Stock subject to such Unvested Company RSU, multiplied by (B) the sum of the Merger Consideration
and the Special Dividend Per Share Amount (if the Special Dividend is declared by the Company in accordance with Section 6.20),
without interest (such amounts payable hereunder, the “Converted RSU Award”); provided that such Converted
RSU Award may be reduced by the amount of any required Tax withholdings as provided in Section 3.2(g). Each such Converted
RSU Award will continue to have, and will be subject to, the same terms and conditions (including with respect to vesting and timing of
payment), except for terms rendered inoperative by reason of the Merger or for such other administrative and ministerial changes as in
the reasonable and good faith determination of Parent are appropriate to conform the administration of the Converted RSU Award; provided
that no such changes shall adversely affect the rights of the applicable holder.
(c) Treatment
of PSUs.
(i) Vested
Company PSUs. Prior to the Effective Time, the Company Board (or any committee thereof) shall adopt resolutions that provide that,
immediately prior to the Effective Time, each outstanding award of performance-based restricted stock units with respect to shares of
Company Common Stock granted pursuant to a Company Stock Plan (each, a “PSU Award”) that is vested but
not yet settled or that vests as a result of the consummation by the Company of the transactions contemplated by this Agreement (each,
a “Vested Company PSU”) shall, except as otherwise agreed to in writing prior to the Effective Time by Parent,
the Company and a holder of a PSU Award, without any action on the part of the holder thereof, be cancelled, and in exchange therefor,
each holder of any such cancelled Vested Company PSU shall be entitled to receive, in consideration of the cancellation of such Vested
Company PSU and in settlement therefor, a payment in cash of an amount equal to the product of (A) the number of shares of Company
Common Stock that vested with respect to such Vested Company PSU, multiplied by (B) the sum of the Merger Consideration and the Special
Dividend Per Share Amount (if the Special Dividend is declared by the Company in accordance with Section 6.20), without interest
(such amounts payable hereunder, the “Vested PSU Payments”); provided that such Vested PSU Payments may
be reduced by the amount of any required Tax withholdings as provided in Section 3.2(g).
(ii) Unvested
Company PSUs. Prior to the Effective Time, the Company Board (or any committee thereof) shall adopt resolutions that provide that,
immediately prior to the Effective Time, each PSU Award that is not a Vested Company PSU and is outstanding as of immediately prior to
the Effective Date (each, an “Unvested Company PSU”) shall, except as otherwise agreed to in writing
prior to the Effective Time by Parent, the Company and a holder of a PSU Award, without any action on the part of the holder thereof,
be cancelled and converted into the contingent right to receive a payment in cash of an amount equal to the product of (A) the number
of shares of Company Common Stock subject to such Unvested Company PSU (as eventually determined based on actual performance for the applicable
performance period based on the applicable terms of such Unvested Company PSU), multiplied by (B) the sum of the Merger Consideration
and the Special Dividend Per Share Amount (if the Special Dividend is declared by the Company in accordance with Section 6.20),
without interest (such amounts payable hereunder, the “Converted PSU Award”); provided that such Converted
PSU Award may be reduced by the amount of any required Tax withholdings as provided in Section 3.2(g). Each such Converted
PSU Award will continue to have, and will be subject to, the same terms and conditions (including with respect to vesting and timing of
payment, except for (x) terms rendered inoperative by reason of the Merger and (y) such other administrative and ministerial
changes as in the reasonable and good faith determination of Parent are appropriate to conform the administration of the Converted PSU
Award, provided that no such changes shall adversely affect the rights of the applicable holder).
(iii) Prior
to the Effective Time, the Company Board (or any committee thereof) shall adopt resolutions that provide that, immediately prior to the
Effective Time, any portion of a PSU Award that is not a Vested Company PSU or Unvested Company PSU shall, except as otherwise agreed
to in writing prior to the Effective Time by Parent, the Company and holder of a PSU Award, without any action on the part of the holder
thereof, be cancelled for no consideration.
(d) Deferred
Compensation Plans. Prior to the Effective Time, the Company Board (or any committee thereof) shall adopt resolutions that provide
that, immediately prior to the Effective Time, all Stock Units credited to accounts under a Deferred Compensation Plan immediately prior
to the Effective Time shall be notionally reinvested in one or more other investment funds as determined by the Company prior to the Effective
Time until such accounts are distributed in cash pursuant to the terms of the applicable Deferred Compensation Plan as in effect immediately
prior to the Effective Time.
(e) Termination
of Company Stock Plans. Prior to the Effective Time, the Company and the Company Board (or any committee thereof) shall adopt resolutions
to approve, provide for or give effect to the transactions contemplated by this Section 3.3 and to authorize and direct the
Company’s officers and employees to take such actions as may be necessary to give effect thereto. All Company Stock Plans (other
than the agreements underlying, and the terms of the Company Stock Plans applicable to the Converted Option Cash Award, the Converted
RSU Awards and the Converted PSU Awards, in each case, solely to the extent relevant to the terms and conditions of this Section 3.3)
shall terminate as of the Effective Time, and the Company and the Company Board (or any committee thereof) shall adopt resolutions to
effect the foregoing. Following the date hereof, the Company shall provide to Parent or its counsel for review and approval drafts
of any resolutions prepared by the Company or its counsel to effectuate the foregoing and shall consider in good faith Parent’s
timely comments thereto.
(f) Treatment
of Company Stock Purchase Plan. As soon as practicable following the date hereof, the Company and the Company Board (or any committee
thereof) shall adopt resolutions and take all other actions necessary or required under the Company Stock Purchase Plan or applicable
Law to provide that (i) except for the offering period under the Company Stock Purchase Plan in effect, no new offering period under
the Company Stock Purchase Plan will be authorized or commence after the date hereof; (ii) no new participants will commence participation
in the Company Stock Purchase Plan after the date hereof; (iii) no Company Stock Purchase Plan participant will be permitted to
increase such participant’s payroll deduction election or contribution rate in effect as of the date hereof or to make separate
non-payroll contributions on or following the date hereof, except as may be required by applicable Law; (iv) each purchase right
under the Company Stock Purchase Plan outstanding as of the date hereof shall be exercised as of no later than five (5) Business
Days prior to the date on which the Effective Time occurs (the “Final Exercise Date”); (v) each Company
Stock Purchase Plan participant’s accumulated contributions under the Company Stock Purchase Plan shall be used to purchase shares
of Company Common Stock as of the Final Exercise Date; and (vi) the Company Stock Purchase Plan will terminate effective as of (and
subject to the occurrence of) immediately prior to the Effective Time, but subsequent to the exercise of purchase rights on the Final
Exercise Date. Each share of Company Common Stock purchased on the Final Exercise Date shall be cancelled at the Effective Time and converted
into the right to receive the Merger Consideration in accordance with Section 3.1(b). At the Effective Time, any funds credited
as of such date under the Company Stock Purchase Plan that are not used to purchase shares of Company Common Stock on the Final Exercise
Date within the associated accumulated payroll withholding account for each participant under the Company Stock Purchase Plan shall be
refunded to the applicable participant without interest.
(g) Parent
Funding. At the Effective Time, Parent shall deposit with the Surviving Corporation cash in the amount necessary to make the payments
required under this Section 3.3 with respect to the Vested Option Payments, the Vested RSU Payments and the Vested PSU Payments,
but only to the extent that the Surviving Corporation does not have sufficient cash to make such payments. Parent shall cause the Surviving
Corporation to make the payments required under this Section 3.3 with respect to the Vested Option Payments, the Vested RSU
Payments and the Vested PSU Payments as promptly as practicable after the Effective Time, or at such later time as necessary to avoid
a violation and/or adverse tax consequences under Section 409A of the Code. Parent shall cause the Surviving Corporation to pay through
the payroll agent of the Company the applicable Vested Option Payments, Vested RSU Payments and Vested PSU Payments to the applicable
holders, in each case, subject to Section 3.2(g).
Section 3.4 Lost
Certificates. If any Certificate has been lost, stolen or destroyed, then upon the making of an affidavit, in form and substance
reasonably acceptable to Parent and the Company, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed
and, if reasonably required by the Surviving Corporation, the posting by such Person of a bond, in a customary amount as the Surviving
Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent
will issue in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration that the holder has the right to receive
pursuant to Section 3.1(b).
Section 3.5 Dissenting
Shares. Notwithstanding anything in this Agreement to the contrary, any issued and outstanding shares of Company Common Stock
held by a Person (a “Dissenting Shareholder”) who has not voted in favor of or consented to the approval
of this Agreement and the Merger and has complied with all the other provisions of the WBCA concerning dissenters’ rights with
respect to this Agreement (“Dissenting Shares”) shall not be converted into the right to receive the
Merger Consideration as described in Section 3.1(a). By virtue of the consummation of the Merger, all Dissenting Shares
shall be cancelled and shall cease to exist and the holders of such Dissenting Shares shall thereafter be entitled only to such
rights with respect to such Dissenting Shares as provided in Chapter 23B.13 of the WBCA; provided that if a Dissenting
Shareholder shall have effectively withdrawn, or lost the right to, dissent from the Merger and demand payment for its shares of
Company Common Stock, in any case pursuant to the WBCA, its shares shall be deemed to be converted as of the Effective Time into the
right to receive the Merger Consideration, without interest, and such shares shall not be deemed to be Dissenting Shares. The
Company shall give Parent prompt notice of any written demands regarding the exercise of dissenters’ rights received by the
Company, withdrawals of such demands and any other instruments served on the Company pursuant to Chapter 23B.13 of the WBCA and
shall give Parent the opportunity to participate in and direct all negotiations and proceedings with respect thereto. The Company
shall not, without the prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such
demands. Prior to the Closing, Parent shall not, without the prior written consent of the Company, consent or agree to, or require
the Company to make, any payment with respect to any such demands or offer to settle or settle any such demands.
Section 3.6 Transfers;
No Further Ownership Rights. From and after the Effective Time, the stock transfer books of the Company shall be closed, and there
shall be no further registration of transfers on the stock transfer books of the Company of shares of Company Common Stock that were
outstanding immediately prior to the Effective Time. If Certificates (or affidavits of loss in lieu thereof in accordance with Section 3.4)
or Book-Entry Shares are presented to the Surviving Corporation, Parent or Paying Agent for transfer following the Effective Time, they
shall be cancelled against delivery of the applicable Merger Consideration as provided for in Section 3.1(b) for each
share of Company Common Stock formerly represented by such Certificates or Book-Entry Shares. Payment of the Merger Consideration in
accordance with the terms of this Article III, payment of the Special Dividend and Stub Period Dividend (if declared by the
Company) and, if applicable, any unclaimed dividends upon surrender of Certificates, shall be deemed to have been paid in full satisfaction
of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificates or Book-Entry Shares.
Section 3.7 Payment
of Special Dividend and Stub Period Dividend. At the Effective Time, if and only to the extent the Surviving Corporation does not
have sufficient cash to make such payments, if any, Parent shall deposit with the Surviving Corporation cash in the amount necessary
to pay the aggregate amount of the Special Dividend and the Stub Period Dividend to be paid to the issued and outstanding shares of Company
Common Stock, in each case if declared by the Company pursuant to Sections 6.20 or Section 6.1(D), as applicable.
Parent shall cause the Surviving Corporation to make payment of the Special Dividend and the Stub Period Dividend with respect to the
Company Common Stock as promptly as practicable after the Effective Time, in each case if declared by the Company.
Article IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Except (a) as disclosed
in the Company Disclosure Letter (subject to Section 9.3(b)) or (b) as disclosed in the Company SEC Documents filed or
furnished by the Company prior to the date that is at least one (1) Business Day prior to the date of this Agreement (other than
any disclosures set forth under the headings “Risk Factors” or “Forward-Looking Statements” or under any similarly
titled variations thereof (other than any historical or factual matters disclosed in such sections) to the extent such disclosures are
predictive, cautionary or forward-looking in nature) and provided that nothing disclosed in the Company SEC Documents shall be deemed
to be a qualification of or modification to the representations and warranties set forth in Section 4.1(a), Section 4.2,
Section 4.4, Section 4.19, Section 4.20 or Section 4.23, the Company hereby represents
and warrants to Parent as follows:
Section 4.1 Organization
and Qualification; Subsidiaries.
(a) The
Company is a corporation duly incorporated and validly existing under the Laws of the State of Washington. The Company has the requisite
corporate power and authority to conduct its business as it is now being conducted, except where the failure to be so organized or existing
or to be in good standing or to have such power and authority would not, individually or in the aggregate, reasonably be expected to have
a Company Material Adverse Effect. The Company is duly qualified or licensed to do business and (to the extent applicable) is in good
standing in each jurisdiction in which the nature of the business conducted by it makes such qualification or licensing necessary, except
where the failure to be so duly qualified or licensed and (to the extent applicable) in good standing would not, individually or in the
aggregate, reasonably be expected to have a Company Material Adverse Effect. Accurate and complete copies of the Company’s amended
and restated articles of incorporation (the “Company Charter”) and bylaws, as amended and restated (the “Company
Bylaws”), as in effect as of the date of this Agreement, are included in the Company SEC Documents that have been filed
at least one (1) Business Day prior to the date of this Agreement.
(b) Each
of the Company’s Subsidiaries is a corporation, partnership or other entity duly organized, validly existing and (to the extent
applicable) in good standing under the laws of the jurisdiction of its incorporation or organization. Each of the Company’s Subsidiaries
has the requisite corporate power and authority to conduct its business as it is now being conducted, except where the failure to be so
organized or existing or to be in good standing or to have such power and authority would not, individually or in the aggregate, reasonably
be expected to have a Company Material Adverse Effect. Each of the Company’s Subsidiaries is duly qualified or licensed to do business
and (to the extent applicable) is in good standing in each jurisdiction in which the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so duly qualified or licensed and (to the extent applicable) in good
standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Section 4.2 Capitalization.
(a) The
authorized capital stock of the Company consists of one billion (1,000,000,000) shares of Company Common Stock. As of the close of business
on December 17, 2024 (the “Specified Date”), 165,047,106 shares of Company Common Stock were issued and
outstanding, all of which were duly authorized, validly issued, fully paid and nonassessable, and free of preemptive rights.
(b) As
of the close of business on the Specified Date, (i) the Company had no shares of Company Common Stock reserved for issuance, except
for shares of Company Common Stock reserved for issuance pursuant to the Company Stock Plans, shares of Company Common Stock reserved
for issuance pursuant to the Company Stock Purchase Plan, and shares of Company Common Stock reserved for issuance pursuant to the Shareholder
Rights Agreement and (ii) there were (A) 6,425,307 outstanding Company Options with a weighted average exercise price of $33.18693
per share of Company Common Stock, (B) 7,646,775 shares of Company Common Stock subject to outstanding RSU Awards, (C) 1,483,879
shares of Company Common Stock subject to outstanding PSU Awards (assuming achievement of the applicable performance goals at target level)
and (D) 105,102.66 outstanding Stock Units credited to accounts under the Deferred Compensation Plans.
(c) As
of the close of business on the Specified Date, other than as set forth above in Section 4.2(a) and Section 4.2(b),
there are no existing and outstanding (i) options, warrants, calls, subscriptions or other rights, convertible securities, agreements
or commitments of any character to which the Company is a party obligating the Company to issue, transfer or sell any shares of capital
stock or other equity interests in the Company or securities convertible into or exchangeable for such shares or equity interests in the
Company, (ii) contractual obligations of the Company to repurchase, redeem or otherwise acquire any capital stock of the Company
or (iii) stockholder agreements, voting trusts or similar arrangements to which the Company is a party with respect to the voting
or transfer of the capital stock of the Company.
(d) All
of the outstanding shares of capital stock or equivalent equity interests of each of the Company’s Subsidiaries are owned of record
and beneficially, directly or indirectly, by the Company or a wholly owned Subsidiary of the Company and free and clear of all material
Liens except for restrictions imposed by applicable securities Laws and Permitted Liens.
(e) Section 4.2(e) of
the Company Disclosure Letter sets forth a true, correct and complete list of all outstanding awards under the Company Stock Plans, as
of the Specified Date, and with respect to each such outstanding award: (1) the holder of such award; (2) the number of shares
of Company Common Stock underlying the award and the corresponding plan pursuant to which such award was granted and assuming that applicable
performance metrics are achieved at both “target” and “maximum” levels; (3) the grant date; (4) the
applicable vesting schedule; (5) the exercise price for Company Options; and (6) the expiration date for Company Options. All
issued and outstanding Company Options were issued in compliance with applicable Law and each Company Option has been granted with an
exercise price per share of Company Common Stock equal to or greater than the fair market value of a share of Company Common Stock on
the date of grant of such Company Option and has not otherwise been modified.
Section 4.3 Authority
Relative to Agreement.
(a) The
Company has all necessary corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder and,
subject to obtaining the Requisite Shareholder Approvals and assuming the accuracy of the representations and warranties in Section 5.13,
to consummate the transactions contemplated hereby, including the Merger. The execution, delivery and performance of this Agreement by
the Company, and the consummation by the Company of the transactions contemplated by this Agreement, have been duly and validly authorized
by all necessary corporate action by the Company, and except for the Requisite Shareholder Approvals and filing of the Articles of Merger
with the Secretary, assuming the accuracy of the representations and warranties in Section 5.13, no other corporate action
on the part of the Company is necessary to authorize the execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by
the Company and, assuming due authorization, execution and delivery of this Agreement by the other parties hereto, constitutes a legal,
valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that (i) such enforcement
may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting
creditors’ rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought (the
“Bankruptcy and Equity Exception”).
(b) The
Company Board, acting on the recommendation of the Special Committee, has unanimously (excluding the members of the Company Board who
are Parent Parties) (i) approved the execution, delivery and performance of this Agreement, and subject to receiving the Requisite
Shareholder Approvals, the consummation by the Company of the transactions contemplated by this Agreement, including the Merger, upon
the terms and subject to the conditions set forth in this Agreement, (ii) determined and declared that this Agreement and the consummation
by the Company of the transactions contemplated by this Agreement, including the Merger, are advisable, fair to and in the best interests
of the Company and its shareholders, (iii) directed that this Agreement be submitted to the shareholders of the Company to be approved
and (iv) upon the terms and subject to the conditions of this Agreement, resolved to recommend the approval of this Agreement and
the transactions contemplated hereby, including the Merger, by the Company’s shareholders in accordance with Section 23B.11A.040
of the WBCA; provided that any change, modification or rescission of such recommendation by the Company Board or the Special Committee
in accordance with Section 6.5 shall not be a breach of this representation.
Section 4.4 No
Conflict; Required Filings and Consents.
(a) Assuming
the accuracy of the representations and warranties contained in Section 5.13, neither the execution and delivery of this Agreement
by the Company nor the consummation by the Company of the transactions contemplated hereby will (i) subject to obtaining the WBCA
Shareholder Approval, violate any provision of the Company Charter or the Company Bylaws, (ii) assuming that the Consents, registrations,
declarations, filings and notices referred to in Section 4.4(b) have been obtained or made, as applicable, any applicable
waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or
violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries
is bound or affected or (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both)
under, or give rise to any right of termination, acceleration or cancellation of, any Company Material Contract, other than, in the case
of clauses (ii) and (iii), any such conflicts, violations, breaches, defaults or rights of termination, acceleration
or cancellation as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or as
would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of the
Company to consummate the Merger.
(b) No
consent, approval, license, permit, Order or authorization (a “Consent”) of, or registration, declaration or
filing with, or notice to, any Governmental Authority is required to be obtained or made by or with respect to the Company or any of its
Subsidiaries in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated
hereby, other than (i) compliance with the applicable requirements of the Securities Act and the Exchange Act, including the filing
with the SEC of the Proxy Statement in preliminary and definitive forms, the filing of the Schedule 13E-3, and other filings as may
be required under the Securities Act or the Exchange Act, (ii) the filing of the Articles of Merger with the Secretary and, to the
extent applicable, the filing of appropriate documents with the relevant authorities of the other jurisdictions in which the Company or
any of its Subsidiaries is qualified to do business, (iii) applicable requirements under any applicable international, federal or
state securities Laws or “Blue Sky Laws,” (iv) such filings as may be required in connection with any Transfer Taxes,
(v) filings as may be required under the rules and regulations of NYSE, (vi) such other items required solely by reason
of the participation of the Parent Parties in the transactions contemplated by this Agreement, including by reason of the identity of
the Parent Parties, or their assets, revenues or turnover in any particular jurisdiction, (vii) compliance with and filings or notifications
under the HSR Act or other Antitrust Laws, including the filing of a premerger notification and report form under the HSR Act and the
receipt, termination or expiration, as applicable of waivers, Consents, waiting periods or agreements required under the HSR Act or any
other applicable Antitrust Laws, and (viii) such other Consents, registrations, declarations, filings or notices the failure of which
to be obtained or made as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect
or as would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability
of the Company to consummate the Merger.
Section 4.5 Permits;
Compliance with Laws.
(a) The
Company and its Subsidiaries are in possession of all franchises, grants, registrations, licenses, easements, variances, exceptions, Consents
and certificates necessary for the Company and its Subsidiaries to own, lease and operate their properties and assets that are material
to the Company and its Subsidiaries, taken as a whole, and to carry on their business as it is being conducted as of the date of this
Agreement (the “Company Permits”), and all Company Permits are in full force and effect and no suspension or
cancellation of any of the Company Permits is pending or, to the Knowledge of the Company, threatened, except where the failure to be
in possession of or be in full force and effect, or the suspension or cancellation of, any of the Company Permits would not, individually
or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b) None
of the Company or any of its Subsidiaries is in default or violation of any Law applicable to the Company or any of its Subsidiaries,
except for any such defaults or violations as would not, individually or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect,
since January 30, 2022, none of the Company or its Subsidiaries has received any written or, to the Knowledge of the Company, oral
notice from any Governmental Authority of any violation (or any investigation with respect thereto) of any Law by the Company or its Subsidiaries.
(c) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the businesses of each
of the Company and each of its Subsidiaries, and their respective officers and directors, and to the Knowledge of the Company, any employees
and agents acting on behalf of the Company and its Subsidiaries, in their capacity as such, are being, and since January 30, 2022,
have been, conducted in compliance with the U.S. Foreign Corrupt Practices Act 1977 and other similar applicable anti-bribery Laws in
other jurisdictions (collectively, “Anti-Corruption Laws”) and Anti-Money Laundering Laws. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each of its
Subsidiaries (A) have policies and procedures reasonably designed to ensure compliance with Anti-Corruption Laws and Anti-Money Laundering
Laws, (B) have implemented independent testing to monitor compliance with Anti-Money Laundering Laws, and (C) since January 30,
2022, have complied with the compliance program requirements for dealers in jewels, precious metals, and precious stones under the U.S.
Bank Secrecy Act and the regulations implemented pursuant thereto and (ii) there are no internal investigations or, to the Knowledge
of the Company, pending governmental or other regulatory investigations or proceedings, in each case, regarding any action or any allegation
of any violation of such Anti-Corruption Laws or Anti-Money Laundering Laws.
(d) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the businesses of each
of the Company and its Subsidiaries, and their respective officers and directors, and to the Knowledge of the Company, any employees and
agents acting on behalf of the Company and its Subsidiaries, in their capacity as such, are being, and since January 30, 2022, have
been, conducted in compliance with all applicable economic sanctions, including those administered or enforced by the U.S. Department
of the Treasury’s Office of Foreign Assets Control, or export control laws, including the U.S. Export Administration Regulations
and International Traffic in Arms Regulations and import control Laws, including those administered by the U.S. Customs and Border Protection,
imposed by any Governmental Authority of a jurisdiction where the Company or its Subsidiaries operate (collectively, “Trade
Controls”). None of the Company nor any of its Subsidiaries, or their respective officers or directors, nor to the Knowledge
of the Company, any employees or agents acting on behalf of the Company or its Subsidiaries, in their capacity as such, (i) are Sanctioned
Persons or (ii) since January 30, 2022, have operated in or engaged in any dealings with a Sanctioned Country or Sanctioned
Person. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (A) the
Company and each of its Subsidiaries have policies and procedures reasonably designed to ensure compliance with Trade Controls and (B) there
are no internal investigations or, to the Knowledge of the Company, pending governmental or other regulatory investigations or proceedings,
in each case, regarding any action or any allegation of any violation of the Trade Controls.
Section 4.6 Company
SEC Documents; Financial Statements.
(a) Since
January 29, 2023, the Company has filed with or furnished to (as applicable) the SEC all material forms, documents and reports required
to be filed or furnished prior to such date by it with the SEC (such documents and any other documents filed or furnished by the Company
with or to the SEC since January 29, 2023, as have been supplemented, modified or amended since the time of filing, collectively,
the “Company SEC Documents”). As of their respective dates, or, if supplemented, modified or amended, as of
the date of the last such amendment, supplement or modification, the Company SEC Documents complied in all material respects with the
requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act of 2002, as the case may be, and the applicable rules and
regulations promulgated thereunder, and none of the Company SEC Documents at the time it was filed (or, if amended, supplemented or modified
as of the date of the last amendment, supplement or modification) contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which
they were made, or are to be made, not misleading.
(b) The
audited consolidated financial statements and unaudited consolidated interim financial statements of the Company and the consolidated
Subsidiaries of the Company (including in each case all related notes thereto) included in, or incorporated by reference into, the Company
SEC Documents (i) fairly present in all material respects the consolidated financial position of the Company and its consolidated
Subsidiaries as of the respective dates thereof and its consolidated statements of operations, and consolidated statements of cash flows
for the respective periods then ended (except as may be indicated in the notes thereto or, in the case of unaudited interim consolidated
financial statements, for normal year-end audit adjustments that were not or will not be material in amount or effect) and (ii) were
prepared in conformity with GAAP (as in effect in the United States on the date of such financial statements) applied on a consistent
basis during the periods involved (except as may be indicated therein or in the notes thereto, except, in the case of unaudited statements,
as permitted by SEC rules and regulations).
Section 4.7 Information
Supplied. None of the information supplied or to be supplied by or on behalf of the Company or any of its Subsidiaries expressly
for inclusion or incorporation by reference in: (a) the proxy statement relating to the adoption by the shareholders of the Company
of this Agreement (together with any amendments or supplements thereto, the “Proxy Statement”), (b) the
Rule 13E-3 transaction statement on Schedule 13E-3 relating to this Agreement (together with any amendments or supplements thereto,
the “Schedule 13E-3”), or (c) any Other Required Filing, will, at the date the Proxy Statement or Schedule
13E-3 is first mailed to the shareholders of the Company (with respect to the Proxy Statement and Schedule 13E-3), at the time the applicable
Other Required Filing is filed with the SEC (with respect to any Other Required Filing), and at the time of the Shareholders’ Meeting,
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty
is made by the Company with regard to statements made therein based on information supplied by or on behalf of any Parent Party for inclusion
therein.
Section 4.8 Disclosure
Controls and Procedures. The Company has designed and maintains a system of “disclosure controls and procedures” and
“internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange
Act) intended to provide reasonable assurances regarding the reliability of financial reporting for the Company and its consolidated
Subsidiaries. The Company has designed disclosure controls and procedures (as defined in Rules 13a-15(e) and
15d-15(e) of the Exchange Act) intended to provide reasonable assurance that material information required to be disclosed by
the Company in the reports that it files or furnishes under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the SEC’s rules and forms and that is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure. To the Knowledge of the Company, the Company has
disclosed, based on its most recent evaluation of the Company’s internal control over financial reporting prior to the date
hereof, to the Company’s auditors and the audit committee of the Company Board (a) any significant deficiencies and
material weaknesses in the design or operation of its internal controls over financial reporting (as defined in
Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect in any material respect the
Company’s ability to record, process, summarize and report financial information and (b) any fraud, whether or not
material, that involves management or other employees who have a significant role in the Company’s internal control over
financial reporting.
Section 4.9 Absence
of Certain Changes or Events.
(a) From
November 3, 2024 to the date of this Agreement, the businesses of the Company and its Subsidiaries, taken as a whole, have been conducted
in all material respects in the ordinary course of business consistent with past practice.
(b) From
November 3, 2024, there has not been any adverse change, event, effect or circumstance that has had or would reasonably be expected
to have a Company Material Adverse Effect.
Section 4.10 No
Undisclosed Liabilities. Except (a) as reflected, disclosed or reserved against in the Company’s financial statements
(as amended or restated, as applicable) or the notes thereto included in the Company SEC Documents, (b) for liabilities or obligations
incurred in the ordinary course of business since November 3, 2024, (c) for liabilities or obligations incurred in connection
with this Agreement and the transactions contemplated hereby, (d) for liabilities or obligations as would not, individually or in
the aggregate, reasonably be expected to have a Company Material Adverse Effect or (e) as set forth in Section 4.10
of the Company Disclosure Letter, as of the date hereof, the Company and its Subsidiaries do not have any liabilities or obligations
of any nature, whether or not accrued, contingent or otherwise, that would be required by GAAP to be reflected on a consolidated balance
sheet (or in the notes thereto) of the Company and its consolidated Subsidiaries. Neither the Company nor any of its Subsidiaries is
a party to, or has any commitment to become a party to, any “off balance sheet arrangement” within the meaning of Item 303
of Regulation S-K promulgated under the Securities Act, except as would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect.
Section 4.11 Litigation.
As of the date hereof, there is no Action pending to which the Company or any of its Subsidiaries is a party, or, to the Knowledge of
the Company, threatened against the Company or any of its Subsidiaries, that would have a Company Material Adverse Effect, nor is there
any Order of any Governmental Authority outstanding against, or to the Knowledge of the Company, investigation pending or threatened
in writing by any Governmental Authority involving, the Company or any of its Subsidiaries that would have a Company Material Adverse
Effect. As of the date hereof, there is no Action pending or, to the Knowledge of the Company, threatened seeking to prevent, enjoin,
modify, materially prevent, delay or challenge the Merger or any of the other transactions contemplated by this Agreement or the ability
of the Company to fully perform its covenants and obligations pursuant to this Agreement.
Section 4.12 Employee
Benefit Plans.
(a) Section 4.12(a) of
the Company Disclosure Letter sets forth a true and complete list as of the date hereof of each material “employee benefit plan”
as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
whether or not subject to ERISA, and each other material employment, individual consulting, retention, stay bonus, profit-sharing, savings,
bonus, commission, stock option, stock appreciation right, stock purchase, restricted stock, restricted stock unit, performance stock
unit, phantom equity or other equity or equity-based, incentive, deferred compensation, severance, separation, redundancy, termination,
retirement, disability, insurance, vacation, pension, change in control, health, welfare, fringe benefit or other compensation or benefit
plan, agreement, policy, program or arrangement, in each case, that is maintained by, contributed to or sponsored by, the Company or any
of its Subsidiaries, or to which the Company or any of its Subsidiaries has any liability (each a “Company Benefit Plan”);
provided that individualized agreements that are substantially similar to a form agreement that has been made available to Parent
shall not be required to be included on such Section 4.12(a) of the Company Disclosure Letter. With respect to each such
Company Benefit Plan, the Company has made available to Parent a true and correct copy of, as applicable: (i) all current plan documents
for each such Company Benefit Plan that has been reduced to writing and all amendments thereto (or with respect to any such Company Benefit
Plan that is not in writing, a written description of the material terms thereof), other than any individualized agreement that is substantially
similar to a form agreement that has been made available to Parent; (ii) each current trust, insurance, or other funding agreement
relating to each such Company Benefit Plan and any amendments thereto; (iii) the most recent summary plan description of each Company
Benefit Plan provided to participants and all summaries of material modifications thereto; (iv) the most recent annual reports (Form 5500)
filed with the Internal Revenue Service (“IRS”) and attached schedules; (v) the most recent determination
or opinion letter, if any, issued by the IRS with respect to any Company Benefit Plan intended to be qualified under Section 401(a) of
the Code; (vi) the most recent audited financial statements and actuarial valuation reports; and (vii) any non-routine material
correspondence since January 30, 2022 with the IRS, the U.S. Department of Labor or any similar Governmental Authority relating to
any such Company Benefit Plan. No Company Benefit Plan is maintained outside the jurisdiction of the United States, or covers any current
or former director, officer, employee or other individual service provider of the Company or any of its Subsidiaries residing or working
outside the United States.
(b) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Company
Benefit Plan is, and has been established, operated, funded and administered in compliance with its terms and all applicable Laws, including
ERISA and the Code, and (ii) there are no Actions (other than for routine claims for benefits) pending or, to the Knowledge of the
Company, threatened with respect to any Company Benefit Plan or any fiduciary thereof. Each Company Benefit Plan which is intended to
qualify under Section 401(a) of the Code has either received a favorable determination letter from the IRS as to its qualified
status or has timely filed an application for a favorable determination letter, or may rely upon an opinion letter for a prototype or
volume submitter plan.
(c) Section 4.12(c) of
the Company Disclosure Letter lists as of the date hereof each Company Benefit Plan that provides health or life benefits after retirement
or other termination of employment, other than (i) as required by Law or (ii) through the end of the month in which an employee
terminates employment.
(d) At
no time during the six (6)-year period prior to the date of this Agreement has the Company or any Subsidiary of the Company sponsored,
maintained, established, contributed to or had any obligation to contribute or liabilities (contingent or otherwise, including in respect
of any ERISA Affiliates of the Company or any Subsidiary of the Company) with respect to (i) a “multiple employer plan”
(as defined in Section 4063 or Section 4064 of ERISA), (ii) any plan that is subject to Section 302 or Title IV of
ERISA or Section 412 of the Code, (iii) any “multiemployer plan” (within the meaning of Section 3(37) or 4001(a)(3) of
ERISA). No Company Benefit Plan is a welfare benefit fund within the meaning of Section 419 of the Code or a “multiple employer
welfare arrangement” (as defined in Section 3(40) of ERISA).
(e) Except
as set forth on Section 4.12(e) of the Company Disclosure Letter, neither the execution of this Agreement nor the shareholder
or other approval hereof nor the completion of the transactions contemplated hereby (either alone or in conjunction with any other event)
would result in (i) any compensation or benefits becoming due to any current or former director, officer, employee or other individual
service provider of the Company or any of its Subsidiaries; (ii) the acceleration of vesting or timing of, or trigger any payment
or funding of, any compensation or benefits, to any current or former director, officer, employee or other individual service provider
of the Company or any of its Subsidiaries; (iii) any increase to the compensation or benefits otherwise payable under any Company
Benefit Plan; (iv) a requirement that the Company transfer or set aside any assets to fund any benefits under any Company Benefit
Plan; or (v) limit or restrict the right to merge, amend, terminate or transfer the assets of any Company Benefit Plan on or following
the Effective Time. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse
any current or former director, officer, employee or other individual service provider of the Company or any of its Subsidiaries for any
Tax incurred by such individual under Section 409A or Section 4999 of the Code.
(f) None
of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement shall result in
any payment or benefit made by the Company or any of its Subsidiaries (other than any payment or benefit pursuant to any agreement or
arrangement with Parent or entered into at Parent’s direction) to be characterized as an “excess parachute payment”
within the meaning of Section 280G of the Code.
Section 4.13 Labor
Matters.
(a) As
of the date hereof, neither the Company nor any of its Subsidiaries is a party to or bound by any works council or collective bargaining
agreement, nor is any such agreement being negotiated. Except as would not, individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect, there are no labor-related strikes, walkouts or other work stoppages pending or, to the Knowledge
of the Company, threatened in writing, and, since January 30, 2022, neither the Company nor any of its Subsidiaries has experienced
any such labor-related strike, walkout or other work stoppage. To the Knowledge of the Company, as of the date of this Agreement, there
is no pending organizing campaign, and no labor union or works council has made a pending written demand for recognition or certification,
in each case, with respect to any employees of the Company or any of its Subsidiaries.
(b) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and its
Subsidiaries are, and since January 30, 2022 have been, in compliance with all applicable Laws pertaining to employment and employment
practices, including, but not limited to, wages, hours, compensation, employee classification (either as exempt or non-exempt, or as a
contractor versus employee), fringe benefits, paid sick leave, employment or termination of employment, leave of absence rights, employment
policies, immigration, terms and conditions of employment, labor or employee relations, affirmative action, government contracting obligations,
equal employment opportunity and fair employment practices, disability rights or benefits, workers’ compensation, unemployment compensation
and insurance, health insurance continuation, whistle-blowing, privacy rights, harassment, discrimination, retaliation, and working conditions
or employee safety or health.
(c) Except
as set forth in Section 4.13(c) of the Company Disclosure Letter, since January 30, 2022, neither the Company or
any of its Subsidiaries has implemented a plant closing, mass layoff or other action which would trigger the notice requirements of the
Worker Adjustment and Retraining Notification Act of 1988 or any similar applicable Laws (collectively, the “WARN Act”)
and there are no outstanding material liabilities under the WARN Act.
(d) To
the Knowledge of the Company, in the past three (3) years, no material allegation of sexual harassment has been made by or against
any officer or director of the Company or any of its Subsidiaries in their capacity as such.
Section 4.14 Intellectual
Property Rights.
(a) Section 4.14(a) of
the Company Disclosure Letter sets forth as of the date hereof a list of all (i) patents and registrations of other Intellectual
Property Rights, including Internet domain names, owned by the Company or one of its Subsidiaries and (ii) all pending patent applications
or applications for registration of other Intellectual Property Rights owned by the Company or one of its Subsidiaries. Except as would
not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries
exclusively own, free and clear of all Liens (other than Permitted Liens), or to the Knowledge of the Company, have the right to use in
the manner currently used, all patents, trademarks, trade names, copyrights, Internet domain names, service marks, trade dress, trade
secrets, software and other intellectual property rights of any jurisdiction throughout the world (the “Intellectual Property
Rights”) that are used in the business of the Company and its Subsidiaries as currently conducted. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of its
Subsidiaries has received, since January 30, 2022, any written charge, complaint, claim, demand, or notice challenging the validity,
unencumbered sole ownership or enforceability of any Intellectual Property Rights owned or purported to be owned by the Company or any
of its Subsidiaries (the “Company Intellectual Property Rights”).
(b) Except
as set forth in Section 4.14(b) of the Company Disclosure Letter, all material registered items on Section 4.14(a) of
the Company Disclosure Letter are subsisting and unexpired and, to the Knowledge of the Company, valid and enforceable.
(c) To
the Knowledge of the Company, the conduct of the business of the Company and its Subsidiaries has not, since January 30, 2022, infringed
upon, misappropriated or otherwise violated any Intellectual Property Rights of any other Person, except for any such infringement, misappropriation
or other violation as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Since
January 30, 2022, none of the Company or any of its Subsidiaries has been party to any Action or received any written charge, complaint,
claim, demand or notice alleging any such infringement, misappropriation or other violation by the Company or any of its Subsidiaries,
except for any such infringement, misappropriation or other violation as would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect. To the Knowledge of the Company, since January 30, 2022, no other Person has infringed,
misappropriated or otherwise violated any Company Intellectual Property Rights, except for any such infringement, misappropriation or
other violation as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(d) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, since January 30,
2022, the Company and its Subsidiaries have implemented and maintained commercially reasonable measures with respect to technical, administrative
and physical safeguards designed to preserve and protect the confidentiality, availability, security and integrity of (i) the Company
IT Assets (and all data stored therein or processed thereby, including Personal Data) and (ii) the trade secrets and other confidential
information included in the Company Intellectual Property Rights. Without limiting the foregoing, the Company and its Subsidiaries have
implemented commercially reasonable data backup, data storage, system redundancy and disaster avoidance and recovery procedures. To the
Knowledge of the Company, the Company IT Assets and the products and services currently developed, marketed, licensed, sold, performed,
distributed or otherwise made available by the Company or any of its Subsidiaries are free of Malicious Code.
(e) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) no proprietary
software that is licensed, conveyed, distributed or otherwise made available to other Persons by the Company or its Subsidiaries incorporates,
contains, is derived from or otherwise uses or links to any Open Source Software in a manner that requires any proprietary source code
of the Company or its Subsidiaries to be licensed or made available to others in such circumstances and (ii) no Person (other than
employees or service providers for purposes of providing services to the Company or its Subsidiaries and subject to reasonable confidentiality
provisions) has possession of, or any current or contingent right to access or possess, any proprietary source code of the Company or
its Subsidiaries.
(f) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, since January 30,
2022, (i) there have been no Actions pending or, to the Knowledge of the Company, threatened against the Company or its Subsidiaries
alleging a violation of any Privacy Obligations (including related to any fines or other sanctions), (ii) neither the Company nor
any of its Subsidiaries has notified or been required to notify any Person or Governmental Authority of any data security breaches, security
incidents, or breaches under any Privacy Obligations, (iii) there has been no unauthorized access, unauthorized use, unauthorized
acquisition or disclosure, or any loss, interruption or theft, as applicable, of the Company IT Assets or any Personal Data of the Company,
its Subsidiaries or its or their customers while such Personal Data was in the possession or control of the Company, its Subsidiaries
or third Persons acting on their behalf, and (iv) the Company and its Subsidiaries have complied, and are in compliance, with all
Privacy Obligations.
(g) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company IT Assets
are sufficient for the conduct of the Company’s and its Subsidiaries’ business as currently conducted.
Section 4.15 Taxes.
(a) Except
as would not have a Company Material Adverse Effect, (i) the Company and each of its Subsidiaries have filed all income and other
material Tax Returns required to be filed by any of them; (ii) each of such filed Tax Returns (taking into account all amendments
thereto) is complete and accurate; and (iii) all material Taxes (whether or not reflected on any Tax Return) have been timely paid
in full, except for Taxes being contested in good faith and for which adequate reserves in accordance with GAAP have been provided on
the Company’s consolidated financial statements.
(b) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the
Company nor any of its Subsidiaries has received written notice of any audit, examination or other Action from any taxing authority in
respect of liabilities for Taxes of the Company or any of its Subsidiaries or asserted Tax deficiencies or assessments of Tax with respect
to the Company or its Subsidiaries, which have not been fully paid or settled; (ii) there are no Liens for Taxes on any of the assets
of the Company or any of its Subsidiaries other than Permitted Liens; (iii) with respect to any tax years open for audit as of the
date hereof, neither the Company nor any of its Subsidiaries has granted any waiver of any statute of limitations with respect to, or
any extension of a period for the assessment of, any Tax, other than as a result of an automatic extension to extend the time for filing
any Tax Return in the ordinary course of business; and (iv) neither the Company nor any of its Subsidiaries has received or requested
any private letter rulings from the IRS (or any comparable Tax rulings from any other Governmental Authority) that would be applicable
after the Closing Date.
(c) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and each
of its Subsidiaries have (i) withheld all Taxes required to be withheld by any of them in respect of all payments to employees, officers,
managers, directors, independent contractors, stockholders, creditors and any other Persons and (ii) timely remitted all such Taxes
withheld to the appropriate Governmental Authorities in accordance with applicable Laws.
(d) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, no Governmental Authority
in a jurisdiction where the Company or its Subsidiaries do not file Tax Returns has made any claim that any of the Company or its Subsidiaries
is or may be subject to Tax in that jurisdiction.
(e) Neither
the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction
from, income for any Tax period (or portion thereof) ending after the Closing Date as a result of (i) any change in method of accounting
for a taxable period (or portion thereof) ending on or prior to the Closing Date made prior to the Closing, (ii) the use of an incorrect
method of accounting prior to the Closing, (iii) any “closing agreement” executed prior to the Closing or any agreement
with any taxing authority entered into or any ruling received or requested from any taxing authority on or prior to the Closing, (iv) any
intercompany transaction or excess loss account described in Treasury Regulations under Section 1502 of the Code entered into or
existing prior to the Closing, (v) any prepaid amount received, or paid, on or prior to the Closing or any deferred revenue accrued
or existing on or before the Closing Date, in each case outside the ordinary course of business, (vi) any installment sale or open
transaction disposition occurring on or before the Closing Date or (vii) an election pursuant to Section 965(h) of the
Code.
(f)
Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the
Company nor any of its Subsidiaries is or has ever been a member of any Tax Group, other than a Tax Group the common parent of which
is the Company or one of its Subsidiaries the sole members of which are the Company and its Subsidiaries. Except as would not,
individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any of
its Subsidiaries has any liability for Taxes of any other Person (other than the Company or its Subsidiaries) (i) as a result
of being or ceasing to be a member of any Tax Group (including any liability under Treasury Regulation Section 1.1502-6 or any
comparable provision of other applicable Law) or (ii) by operation of Law, by reason of being a successor or transferee, by
contract or otherwise.
(g) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, neither the Company
nor any of its Subsidiaries is party to or bound by any contract, agreement, or other arrangement regarding the sharing or allocation
of either liability for Taxes or payment of Taxes (excluding commercial agreements entered into with third parties in the ordinary course
of business, the principal purpose of which is not related to Taxes).
(h) Within
the last two (2) years, neither the Company nor any of its Subsidiaries has been either a “distributing corporation”
or a “controlled corporation” within the respective meanings of such terms under Section 355(a)(1)(A) of the Code
in a distribution of stock qualifying under Section 355 of the Code.
(i)
Neither the Company nor any of its Subsidiaries has engaged in any “listed transaction” as defined in Treasury
Regulations Section 1.6011-4(b)(2) or Treasury Regulations Section 301.6111-2(b)(2).
(j)
Neither the Company nor any of its Subsidiaries is the beneficiary of any material Tax exemption, Tax holiday or other Tax incentive
agreement or order that is reasonably expected to be terminated as a result of the Closing.
Section 4.16 Material
Contracts.
(a) Section 4.16(a) of
the Company Disclosure Letter sets forth a list, as of the date hereof, of each Company Material Contract, except for any Contract (including
amendment thereto) filed or required to be filed as an exhibit to the Company SEC Documents (all of which shall be deemed to have been
made available to Parent). For purposes of this Agreement, “Company Material Contract” means any Contract (other
than any Company Benefit Plan, or Contract solely between the Company and any of its Subsidiaries or among any of its Subsidiaries) to
which the Company or any of its Subsidiaries is a party or their respective properties or assets are bound, except for this Agreement,
that:
(i)
constitutes a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with
respect to the Company and its Subsidiaries, taken as a whole;
(ii) is
a joint venture, alliance or partnership agreement that is material to the operation of the Company and its Subsidiaries, taken as whole;
(iii)
is a loan, guarantee of indebtedness or credit agreement, note, mortgage, security agreement, pledge, indenture or other agreement
evidencing borrowed money in excess of $25,000,000 (other than trade payables arising in the ordinary course of business and those
between or among the Company and any of its Subsidiaries);
(iv) is
a Contract entered into outside the ordinary course of business that involves future expenditures, commitments or receipts by the Company
or any of its Subsidiaries in excess of $15,000,000 individually or $30,000,000 in the aggregate, in each case in any one (1)-year period
that cannot be terminated on less than ninety (90) days’ notice without material payment or penalty;
(v) involves
the acquisition from another Person or disposition to another Person, directly or indirectly, of any business or assets (including by
merger, consolidation or acquisition, or disposition of stock or assets) for aggregate consideration under such Contract in excess of
$15,000,000;
(vi) is
with any vendor or supplier of the Company or any of its Subsidiaries who, in the fiscal year ended February 3, 2024, was one of
the twenty (20) largest vendors or suppliers based on revenue received from goods sold by the Company and its Subsidiaries from such vendor
or supplier;
(vii) is
with any service provider of the Company or any of its Subsidiaries who, in the fiscal year ended February 3, 2024, was one of the
twenty (20) largest sources of payment obligations of the Company and its Subsidiaries, based on amounts paid or payable (but excluding
payments made to such service providers for pass-through payments and expenses);
(viii) is
a Contract relating to Intellectual Property Rights or Company IT Assets, in each case, other than (x) merchandising, promotional
and brand licenses entered into in the ordinary course of business, (y) non-exclusive licenses to Company Intellectual Property Rights
granted to service providers in the ordinary course of business and (z) non-exclusive licenses to commercially available software
or IT Assets with annual or aggregate fees of less than $5,000,000;
(ix) is
a Real Property Lease relating to the Leased Real Property that is (A) a distribution center or warehouse or (B) one of the
twenty (20) retail stores with the highest net sales during the fiscal year ended February 3, 2024;
(x) except
as would not be material to the Company and its Subsidiaries, taken as a whole, or can be terminated on less than ninety (90) days’
notice without material payment or penalty, is a Contract that prohibits the Company or any of its Subsidiaries from (A) engaging
or competing in any material line of business, in any geographical location or with any Person or (B) selling any products or services
of or to any other Person in any geographic region;
(xi) except
as would not be material to the Company and its Subsidiaries, taken as a whole, or can be terminated on less than ninety (90) days’
notice without material payment or penalty, is a Contract that (A) grants “most favored nation” status or is a “requirements”
Contract or (B) provides for the purchase of goods or services exclusively from any Third Party;
(xii) is
a settlement or similar Contract with respect to any Action involving payments by the Company or its Subsidiaries after the Closing in
excess of $25,000,000 in the aggregate or any injunctive or similar equitable obligations that impose material restrictions on the Company
or any of its Subsidiaries; or
(xiii) except
for compensation, indemnification, employment or other arms-length ordinary course of business arrangements, is a Contract between the
Company or any of its Subsidiaries, on the one hand, and any Affiliate (including any director or officer) thereof, but not including
any wholly owned Subsidiary of the Company, on the other hand, that would be required to be disclosed pursuant to Item 404 of Regulation
S-K promulgated by the SEC in the Company’s Form 10-K or proxy statement pertaining to an annual meeting of shareholders.
(b) To
the Knowledge of the Company, neither the Company nor any of its Subsidiaries is in breach of or default under the terms of any Company
Material Contract, except where such breach or default would not, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect. As of the date hereof, to the Knowledge of the Company, no other party to any Company Material Contract is in
breach of or default under the terms of any Company Material Contract where such breach or default would, individually or the aggregate,
reasonably be expected to have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of
the Company or its Subsidiary and, to the Knowledge of the Company, the other parties thereto, except such as would not, individually
or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception.
Section 4.17 Real
and Personal Property.
(a) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, as of the date hereof,
the Company or its Subsidiaries have (i) good and valid marketable fee simple title to all Owned Real Property and (ii) a valid
leasehold estate in or right to use all Leased Real Property, in each case free and clear of all Liens except for Permitted Liens.
(b) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, as of the date hereof,
(i) each of the leases and subleases of the Leased Real Property (the “Real Property Leases”) is a valid
and binding agreement of the Company or one of its Subsidiaries, as the case may be, and, to the Knowledge of the Company, the other parties
thereto, is in full force and effect and, subject to the Bankruptcy and Equity Exception, enforceable in accordance with its terms, (ii) neither
the Company nor any Subsidiary has received or delivered written notice of any breach or default under any Real Property Lease, (iii) no
event has occurred that with notice or lapse of time, or both, would constitute a breach or default by the Company, any Subsidiary or
any other party under any Real Property Lease, and (iv) there is no pending or threatened (in writing) condemnation or eminent domain
proceeding affecting any Real Property.
(c) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and each
of its Subsidiaries has good title to, or a valid leasehold interest in, the tangible personal assets and properties used or held for
use by it in connection with the conduct of its business as conducted on the date of this Agreement, free and clear of all Liens other
than Permitted Liens.
Section 4.18 Environmental
Matters.
(a) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(i) the
Company and each of its Subsidiaries are, and since January 30, 2022, have been, in compliance with all applicable Environmental
Laws (including possessing and complying with all material Environmental Permits required for the conduct of their operations and businesses
as currently conducted);
(ii) there
are no Actions pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, and since January 30,
2022, none of the Company or any of its Subsidiaries has received any written notice, in either case, alleging that the Company or such
Subsidiary is in violation of, or liable under, any Environmental Law and which notice or Action remains unresolved; and
(iii) to
the Knowledge of the Company, there has been no Release of any Hazardous Substances (including by the Company or any of its Subsidiaries
at, on or under the Owned Real Property or Leased Real Property) that has resulted or could reasonably be expected to result in liability
under Environmental Laws on the part of the Company or any of its Subsidiaries.
Notwithstanding any other representation
or warranty contained in this Article IV, the representations and warranties set forth in Section 4.18 are the
Company’s sole and exclusive representations and warranties regarding environmental matters, Environmental Laws, Environmental Permits
and Hazardous Substances.
Section 4.19 Vote
Required. Assuming the accuracy of the representations and warranties in Section 5.13, the only vote required under applicable
Law, the Company Charter or the Company Bylaws of the holders of any class or series of capital stock or other equity securities of the
Company to approve this Agreement and the transactions contemplated hereby (including the Merger) is the affirmative vote of the holders
of shares of Company Common Stock representing two-thirds of the outstanding shares of the Company Common Stock entitled to vote thereon
at the Shareholders’ Meeting (the “WBCA Shareholder Approval”). In addition, the approval of this Agreement
and the transactions contemplated hereby (including the Merger) shall be subject to the approval by the affirmative vote of holders of
shares of Company Common Stock representing a majority of the outstanding shares of the Company Common Stock entitled to vote thereon
at the Shareholders’ Meeting other than shares owned, directly or indirectly, by any of the Parent Parties or by any director or
officer (within the meaning of Rule 16a-1(f) of the Exchange Act) of the Company (together with the WBCA Shareholder Approval,
the “Requisite Shareholder Approvals”).
Section 4.20 Brokers.
Except for Morgan Stanley & Co. LLC and Centerview Partners LLC pursuant to the Advisor Engagement Letters, no broker,
finder, investment banker or financial advisor is entitled to any investment banking, brokerage, finder’s or similar fee or commission
in connection with the Merger or any of the other transactions contemplated by this Agreement based upon arrangements made by or on behalf
of the Company or any of its Subsidiaries. The Company has, prior to the execution and delivery of this Agreement, made available to
Parent true, correct and complete copies of the Company’s engagement letters with Morgan Stanley & Co. LLC and Centerview
Partners LLC relating to the transactions contemplated by this Agreement as in effect on the date of this Agreement (the “Advisor
Engagement Letters”).
Section 4.21 Opinion
of Financial Advisors. The Special Committee has received the opinions, dated as of the date hereof, of Morgan Stanley &
Co. LLC and Centerview Partners LLC that, as of the date hereof and subject to the limitations, qualifications and assumptions set forth
in such opinions, the Merger Consideration is fair, from a financial point of view, to the holders of shares of Company Common Stock
(other than excluded shares (as defined in such opinions)). A true and complete signed copy of each such opinion will be delivered to
Parent after the date hereof solely for informational purposes and on a non-reliance basis following receipt thereof by the Special Committee.
Section 4.22 Insurance.
Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect,
(a) each material insurance policy held or maintained by the Company and its Subsidiaries (other than any insurance policy held
in connection with a Company Benefit Plan) (each an “Insurance Policy” and collectively, the
“Insurance Policies”) is in full force and effect and all premiums due thereon have been paid in full,
(b) neither the Company nor any of its Subsidiaries has received a written notice of cancellation from the insurer(s) of
any such Insurance Policy, (c) to the Knowledge of the Company, the Company and its Subsidiaries are in compliance with all
conditions contained in the Insurance Policies, (d) there are no material claims pending under any of such Insurance Policies
as to which coverage has been denied or disputed by the insurers of such policies or in respect of which such insurers have reserved
their rights, other than those reservations of rights issued in the ordinary course of business and (e) to the Knowledge of the
Company, all claims under which coverage under any such Insurance Policy is available have been appropriately tendered to the
applicable insurers.
Section 4.23 Takeover
Statutes. Assuming the accuracy of the representations and warranties in Section 5.13, (a) the Company Board has
taken all necessary action such that the restrictions imposed on significant business transactions by Chapter 23B.19 of the WBCA are
inapplicable to this Agreement and the Merger, and (b) no other “control share acquisition,” “fair price,”
“moratorium,” “business combination” or other anti-takeover Law (collectively, “Takeover Laws”)
is applicable to this Agreement, the Merger or any other transaction contemplated by this Agreement. The Shareholder Rights Agreement
is inapplicable to the Merger.
Section 4.24 No
Other Representations or Warranties.
(a) Except
for the representations and warranties expressly set forth in this Article IV, neither the Company nor any other Person on
behalf of the Company makes, or has made (and the Company, on behalf of itself, each of the Company’s Subsidiaries and their respective
Affiliates and Representatives, hereby disclaims), any express or implied representation or warranty with respect to the Company or any
of the Company’s Subsidiaries or with respect to the accuracy or completeness of any information provided, or made available, to
the Parent Parties or their Representatives, including with respect to their business, operations, assets, liabilities, conditions (financial
or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated by this Agreement.
None of the Company, any of the Company’s Subsidiaries or any other Person makes (and the Company, on behalf of itself, each of
the Company’s Subsidiaries, and their respective Affiliates and Representatives, hereby disclaims) any express or implied representation
or warranty (including as to completeness or accuracy) to the Parent Parties or their Representatives with respect to, and none of the
Company, the Company’s Subsidiaries or any other Person shall be subject to, any liability to the Parent Parties or their Representatives
or any other Person resulting from, the Company, the Company’s Subsidiaries or their respective Affiliates or Representatives providing
or making available to the Parent Parties or their Representatives, or resulting from the omission of, any estimate, projection, prediction,
forecast, data, financial information, memorandum, presentation or any other materials or information, including any materials or information
made available to the Parent Parties or their Representatives in connection with presentations by the Company’s management or information
made available on any electronic data room for “Project Norse” and maintained by the Company for purposes of the Merger and
the other transactions contemplated by this Agreement, including the electronic data room hosted by Datasite under the title Norse (collectively,
the “VDR”).
(b) Except
for the representations and warranties contained in Article V, the Company acknowledges and agrees that (i) none of Parent
or Acquisition Sub or any other Person on behalf of Parent or Acquisition Sub makes, or has made, any express or implied representation
or warranty with respect to Parent or Acquisition Sub, including with respect to their business, operations, assets, liabilities, conditions
(financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated
by this Agreement and the Company is not relying on any representation, warranty or other information of any Person except for those expressly
set forth herein or in the other Transaction Documents, and (ii) no Person has been authorized by Parent or Acquisition Sub on behalf
of Parent or Acquisition Sub to make any representation or warranty relating to Parent or Acquisition Sub or their respective business
or otherwise in connection with this Agreement and the Merger, and, if made, such representation or warranty shall not be relied upon
by the Company as having been authorized by either such entity.
Article V
REPRESENTATIONS
AND WARRANTIES OF PARENT AND ACQUISITION SUB
Except as disclosed in the
Parent Disclosure Letter (subject to Section 9.3(b)), Parent and Acquisition Sub hereby jointly and severally represent and
warrant to the Company as follows:
Section 5.1 Organization
and Qualification. Each of Parent and Acquisition Sub is a corporation, partnership or other entity duly organized, validly existing
and (to the extent applicable) in good standing under the laws of the jurisdiction of its incorporation or organization and has the requisite
corporate or other legal entity power and authority to conduct its business as it is now being conducted, except where the failure to
be so organized or existing or to be in good standing or to have such power and authority as would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect. Each of Parent and Acquisition Sub is duly qualified or licensed to
do business and (to the extent applicable) is in good standing in each jurisdiction in which the nature of the business conducted by
it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and (to the extent applicable)
in good standing as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Parent
has made available to the Company true, correct and complete copies of the certificate of incorporation and bylaws of Parent and Acquisition
Sub, as in effect on the date of this Agreement, and neither Parent nor Acquisition Sub is in violation of any provision of such documents
applicable to it.
Section 5.2 Authority
Relative to Agreement.
(a) Each
of Parent and Acquisition Sub has all necessary entity power and authority to execute and deliver this Agreement and perform its obligations
hereunder and to consummate the transactions contemplated hereby, including the Merger. The execution, delivery and performance of this
Agreement by Parent and Acquisition Sub, and the consummation by Parent and Acquisition Sub of the transactions contemplated by this Agreement,
have been duly and validly authorized by all necessary entity action by Parent and Acquisition Sub, and no other legal entity action on
the part of Parent and Acquisition Sub is necessary to authorize the execution, delivery and performance of this Agreement by Parent and
Acquisition Sub and the consummation by Parent and Acquisition Sub of the transactions contemplated by this Agreement. This Agreement
has been duly executed and delivered by Parent and Acquisition Sub and, assuming due authorization, execution and delivery of this Agreement
by the other party hereto, constitutes a legal, valid and binding obligation of Parent and Acquisition Sub, enforceable against Parent
and Acquisition Sub in accordance with its terms, subject to the Bankruptcy and Equity Exception.
(b) The
board or directors of Parent has unanimously approved and declared advisable the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated by this Agreement, including the Merger, upon the terms and subject to the conditions
set forth herein, in each case, by resolutions duly adopted, which resolutions have not been subsequently rescinded, withdrawn or modified
in a manner adverse to the Company. No vote of, or consent by, the holders of any class or series of capital stock of Parent is necessary
to authorize the execution, delivery and performance by Parent of this Agreement and the consummation of the transactions contemplated
by this Agreement, including the Merger, or otherwise required by the certificate of incorporation or bylaws of Parent, applicable Law
(including any shareholder approval provisions under the rules of any applicable securities exchange) or any Governmental Authority.
(c) The
board of directors of Acquisition Sub has unanimously (i) determined and declared that this Agreement and the consummation by Acquisition
Sub of the transactions contemplated by this Agreement, including the Merger, are in the best interests of Acquisition Sub and its sole
shareholder, (ii) approved and declared advisable the execution, delivery and performance of this Agreement and the consummation
by Acquisition Sub of the transactions contemplated by this Agreement, including the Merger, upon the terms and subject to the conditions
set forth in this Agreement, (iii) directed that this Agreement be submitted to the shareholder of Acquisition Sub to be approved
and (iv) upon the terms and subject to the conditions of this Agreement, resolved to recommend approval of this Agreement by the
shareholder of Acquisition Sub in accordance with Section 23B.11A.040 of the WBCA.
Section 5.3 No
Conflict; Required Filings and Consents.
(a) Neither
the execution and delivery of this Agreement by Parent and Acquisition Sub nor the consummation by Parent and Acquisition Sub of the transactions
contemplated hereby will (i) violate any provision of Parent’s, Acquisition Sub’s or any of their respective Subsidiaries’
certificate of incorporation or bylaws (or equivalent organizational documents), (ii) assuming that the Consents, registrations,
declarations, filings and notices referred to in Section 5.3(b) have been obtained or made, as applicable, any applicable
waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or
violate any Law applicable to Parent or any of its Subsidiaries (including Acquisition Sub) or by which any property or asset of Parent
or any of its Subsidiaries (including Acquisition Sub) is bound or affected or (iii) result in any breach of, or constitute a default
(with or without notice or lapse of time, or both) under, or give rise to any right of termination, acceleration or cancellation of, any
Contract to which Parent or any of its Subsidiaries (including Acquisition Sub) is a party, or by which any of their respective properties
or assets is bound, other than, in the case of clauses (ii) and (iii), any such conflicts, violations, breaches,
defaults or rights of termination, acceleration or cancellation as would not, individually or in the aggregate, reasonably be expected
to have a Parent Material Adverse Effect.
(b) No
Consent of, or registration, declaration or filing with, or notice to, any Governmental Authority is required to be obtained or made by
or with respect to Parent or any of its Subsidiaries (including Acquisition Sub) in connection with the execution, delivery and performance
of this Agreement or the consummation of the transactions contemplated hereby, other than (i) compliance with the applicable requirements
of the Securities Act and the Exchange Act, including the filing with the SEC of the Proxy Statement in preliminary and definitive forms,
the filing of the Schedule 13E-3, and the applicable requirements of and filings with the SEC under the Exchange Act, (ii) the filing
of the Articles of Merger with the Secretary, (iii) applicable requirements under any applicable international, federal or state
securities Laws or “Blue Sky Laws,” (iv) such filings as may be required in connection with any Transfer Taxes, (v) filings
as may be required under the rules and regulations of the NYSE, (vi) compliance with and filings or notifications under the
HSR Act or other Antitrust Laws, including the filing of a premerger notification and report form under the HSR Act and the receipt, termination
or expiration, as applicable, of waivers, Consents, waiting periods or agreements required under the HSR Act or any other applicable Antitrust
Laws, and (vii) such other Consents, registrations, declarations, filings or notices the failure of which to be obtained or made
that would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.
Section 5.4 Litigation.
As of the date hereof, there is no Action pending or, to the Knowledge of Parent, threatened against Parent or any of its Subsidiaries
that would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, nor is there any Order
of any Governmental Authority outstanding against, or, to the Knowledge of Parent, investigation by any Governmental Authority involving,
Parent or any of its Subsidiaries that would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse
Effect. As of the date hereof, there is no Action pending or, to the Knowledge of Parent, threatened seeking to prevent, enjoin, hinder,
modify, delay or challenge the Merger or any of the other transactions contemplated by this Agreement.
Section 5.5 Absence
of Certain Agreements. Except for the Rollover and Support Agreements, the Financing Commitments, and agreements, arrangements and
understandings solely among the Parent Parties, no Parent Party has entered into any agreement, arrangement or understanding (in each
case, whether oral or written), or authorized, committed or agreed to enter into any agreement, arrangement or understanding (in each
case, whether oral or written) with any shareholders, officers, directors, employees or Affiliates of the Company or its Subsidiaries
(a) relating to (i) this Agreement or the Merger or (ii) the Surviving Corporation or any of its Subsidiaries, businesses
or operations (including as to continuing employment) from and after the Effective Time; (b) pursuant to which any shareholder of
the Company (i) would be entitled to receive consideration of a different amount or nature than the Merger Consideration, (ii) agrees
to vote to approve this Agreement or the Merger or (iii) agrees to vote against any Superior Proposal; or (c) pursuant to which
any Third Party has agreed to provide, directly or indirectly, equity capital to Parent, Acquisition Sub, other Parent Parties or the
Company to finance in whole or in part the Merger.
Section 5.6 Information
Supplied. None of the information supplied or to be supplied by or on behalf of the Parent Parties expressly for inclusion or incorporation
by reference in the Proxy Statement, Schedule 13E-3 or Other Required Filing will, at the date the Proxy Statement and Schedule 13E-3
are first mailed to the shareholders of the Company (with respect to the Proxy Statement and Schedule 13E-3), the time that any Other
Required Filing is filed with the SEC (with respect to any such Other Required Filing), and at the time of the Shareholders’ Meeting,
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty
is made by Parent or Acquisition Sub with regard to statements made therein based on information supplied by or on behalf of the Company
(or any of its Affiliates) for inclusion therein.
Section 5.7 Financing;
Sufficient Funds.
(a) Parent
has delivered to the Company (i) a true, correct and complete copy of an executed debt commitment letter, dated as of the date hereof,
from the Debt Financing Sources party thereto to Parent, together with true, correct and complete copies of any related executed fee letters
(provided that, solely with respect to any such fee letters, the economic, financial or “flex” terms (none of which
affects availability, timing, conditionality, enforceability, termination or aggregate principal amount of such financing) may be redacted
in a customary manner from such true, correct and complete copies) (collectively, including all exhibits, schedules, amendments, supplements,
modifications and annexes thereto, the “Debt Commitment Letter” and together with the Equity Commitment Letter
and the Rollover and Support Agreements, the “Financing Commitments”), pursuant to which, and subject to the
terms and conditions thereof, the Debt Financing Sources party thereto have committed to lend to Parent the aggregate amount of debt financing
set forth therein on the terms and conditions set forth therein (together with any alternative debt financing arranged pursuant to Section 6.11(d),
the “Debt Financing” and together with the Equity Financing, the “Financing”) and
(ii) a true, correct and complete copy of the executed Equity Commitment Letter. The Equity Commitment Letter expressly provides
and will continue to expressly provide that the Company is a third-party beneficiary thereof.
(b) As
of the date hereof, the Financing Commitments are in full force and effect and have not been restated, modified, amended or supplemented
in any respect or waived and no such restatement, modification, amendment, supplement or waiver is contemplated, and the respective obligations
and commitments contained in the Financing Commitments have not been withdrawn, reduced, rescinded, amended, restated, otherwise modified
or repudiated in any respect or terminated and no such withdrawal, reduction, rescission, amendment, restatement, other modification,
repudiation or termination is contemplated. The Equity Commitment Letter and the Rollover and Support Agreements, in the forms so delivered,
constitute legal, valid and binding obligations of each of the Parent Parties that are party thereto and are enforceable in accordance
with their respective terms against each of the Parent Parties that are party thereto, subject to the Bankruptcy and Equity Exception.
The Debt Commitment Letter, in the form so delivered, constitutes legal, valid and binding obligations of Parent and Acquisition Sub,
as applicable, and (to the Knowledge of Parent and Acquisition Sub) the Debt Financing Sources party thereto and is enforceable in accordance
with its terms against Parent and Acquisition Sub and (to the Knowledge of Parent and Acquisition Sub) against each of the Debt Financing
Sources party thereto, subject to the Bankruptcy and Equity Exception. There are no engagement letters, side letters or other agreements,
arrangements or understandings (in each case, whether oral or written) to which any Parent Party is a party relating to the Financing
or the Rollover that could reasonably be expected to affect the conditionality, amount, availability, enforceability or termination of
the Financing or the consummation of the Financing or the Rollover. As of the date hereof, neither Parent nor Acquisition Sub, nor (with
respect to the Debt Financing, to the Knowledge of Parent and Acquisition Sub) any other party to any of the Financing Commitments, is
in default in the performance, observation or fulfillment of any obligation, covenant or condition contained in any Financing Commitment,
and no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected
to (A) constitute or result in a default under or breach on the part of Parent or Acquisition Sub, or (with respect to the Debt Financing,
to the Knowledge of Parent and Acquisition Sub) on the part of any other party, under the Financing Commitments, or (B) constitute
or result in a failure by Parent or Acquisition Sub or (with respect to the Debt Financing, to the Knowledge of Parent and Acquisition
Sub) any other party to the Financing Commitments to satisfy, or any delay in satisfaction of, any condition or other contingency to the
full funding of the Financing or the consummation of the Rollover, as applicable, under the Financing Commitments. Assuming satisfaction
or waiver of the conditions set forth in Section 7.1 and Section 7.2, and the compliance in all material respects
by the Company with its obligations under Section 6.12, neither Parent nor Acquisition Sub has reason to believe (both before
and after giving effect to any flex provisions contained in the Debt Commitment Letter) that it or the other parties thereto will be unable
to satisfy on a timely basis, and in any event, not later than the Closing, any term or condition of the Financing Commitments required
to be satisfied by it or such other parties or that the full amounts committed pursuant to the Financing Commitments will not be established
or made available, as applicable, on the Closing Date or the total number of Rollover Shares will not be contributed on the Closing Date
if the terms or conditions to be satisfied by it contained in the applicable Financing Commitments are satisfied. Parent and Acquisition
Sub have fully paid any and all commitment fees or other fees or deposits required by the Financing Commitments or the Financing, in each
case, to be paid on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing. The aggregate
proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and
after giving effect to the maximum amount of “flex” (including any original issue discount flex)) when funded in accordance
with the Financing Commitments, together with Company Cash on Hand not exceeding the Company Cash Amount, are sufficient and available
to fund all of the amounts required to be provided by Parent or Acquisition Sub for the consummation of the transactions contemplated
hereby, fund the payment of the Aggregate Merger Consideration, the Special Dividend Payment, the Debt Payoff Amount and all amounts payable
pursuant to Section 3.3, and fund the payment of all associated costs and Expenses of the Merger (including any fees (including
original issue discount), premiums and expenses related to the transactions contemplated hereby, including the Financing) (collectively,
the “Funding Obligations” and such sufficient proceeds, the “Funds”). There are no
conditions precedent or other contingencies related to the funding or investing, as applicable, of the full net proceeds (or any portion)
of the Financing or the consummation of the Rollover at or prior to the Closing, other than as expressly set forth in the Financing Commitments
as in effect on the date hereof. Notwithstanding anything contained in this Agreement to the contrary, but subject to the limitations
on the Company’s ability to seek an injunction, specific performance or other equitable remedies to enforce Parent’s and Acquisition
Sub’s obligations to consummate the Merger and to enforce Liverpool’s obligation to provide the Equity Financing set forth
in Section 9.12(a), Parent and Acquisition Sub acknowledge and agree that their respective obligations hereunder are not conditioned
in any manner whatsoever upon obtaining the Funds to satisfy the Funding Obligations, including the availability of any amount of Company
Cash on Hand, or consummating the Financing or the Rollover.
(c) Neither
Parent nor any of its Subsidiaries (including Acquisition Sub) has any indebtedness for borrowed money outstanding as of the date hereof.
(d) Prior
to the execution and delivery of this Agreement, Parent has made available to the Company true, correct and complete copies of all written
communications and materials provided to any of the Rating Agencies by the Parent Parties or their Representatives relating to the Company,
its Subsidiaries, or the transactions contemplated by this Agreement prior to the date hereof. All material oral communications made
by the Parent Parties or their Representatives to any of the Rating Agencies relating to the Company, its Subsidiaries, or the transactions
contemplated by this Agreement prior to the date hereof are consistent with the written communications and materials described in the
first sentence of this Section 5.7(d) and any written materials from the Rating Agencies relating to the transactions
contemplated by this Agreement made available to the Company prior to the date hereof.
Section 5.8 Guaranties.
Concurrently with the execution of this Agreement, Parent and Acquisition Sub have delivered to the Company the duly executed Guaranties
of the Guarantors, dated as of the date hereof. Each of the Guaranties has been duly and validly executed and delivered by the applicable
Guarantor and is in full force and effect and is a legal, valid and binding obligation of such Guarantor, enforceable against such Guarantor
in accordance with its terms (subject to the Bankruptcy and Equity Exception), and no event has occurred or circumstance exists which,
with or without notice, lapse of time or both, would or would reasonably be likely to constitute or result in a default under or breach
on the part of any Guarantor of the applicable Guaranty.
Section 5.9 Capitalization.
All of the issued and outstanding share capital of Acquisition Sub is, and at the Effective Time will be, owned by Parent. Acquisition
Sub was formed solely for the purpose of engaging in the transactions contemplated hereby, and it has not conducted any business prior
to the date hereof and has no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other than
those incident to its formation and pursuant to this Agreement and the Merger and other transactions contemplated by this Agreement.
All of the issued and outstanding share capital of Parent is, and except as a result of the transactions contemplated by the Equity Commitment
Letter and the Rollover and Support Agreements, through the Effective Time will be owned by the Persons set forth on Section 5.9
of the Parent Disclosure Letter.
Section 5.10 Investment
Intention. Parent is acquiring through the Merger the shares of capital stock of the Surviving Corporation for its own account, for
investment purposes only and not with a view to the distribution (as such term is used in Section 2(11) of the Securities Act) thereof.
Parent understands that the shares of capital stock of the Surviving Corporation will not be registered under the Securities Act or any
Blue Sky Laws and cannot be sold unless subsequently registered under the Securities Act, any applicable Blue Sky Laws or pursuant to
an exemption from any such registration.
Section 5.11 Brokers.
Except for Moelis & Company LLC and J.P. Morgan Securities LLC, no broker, finder, investment banker, consultant or intermediary
is entitled to any investment banking, brokerage, finder’s or similar fee or commission in connection with the Merger or any of
the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of any of the Parent Parties.
Section 5.12 Solvency.
None of Parent, Acquisition Sub or the other Parent Parties is entering into the transactions contemplated by this Agreement with the
actual intent to hinder, delay or defraud either present or future creditors of Parent, Acquisition Sub, the other Parent Parties or
any of their respective Subsidiaries (which, for purposes of this Section 5.12, shall include the Company and its Subsidiaries).
Each of Parent and Acquisition Sub is Solvent as of the date hereof, and assuming that (a) the conditions to the obligations of
Parent to consummate the Merger set forth in Article VII have been satisfied or waived, (b) the accuracy in all material
respects as of the date hereof and as of the Closing of the representations and warranties of the Company set forth in Article IV
hereof, and (c) any repayment or refinancing of indebtedness pursuant to Section 6.19, each of Parent and the Surviving
Corporation will, after giving effect to all of the transactions contemplated by this Agreement, including the Financing, and the Funding
Obligations, be Solvent at and immediately after the Effective Time. As used in this Section 5.12, the term “Solvent”
means, with respect to a particular date, that on such date, (a) Parent and Acquisition Sub, and, after the Merger, Parent and the
Surviving Corporation and its Subsidiaries, are able to pay their respective indebtedness and other liabilities, contingent or otherwise,
as the indebtedness and other liabilities become due in the ordinary course of business, (b) the present fair saleable value of
Parent’s and Acquisition Sub’s total assets exceed the value of their total liabilities, including a reasonable estimate
of the amount of all contingent and other liabilities of each of Parent and Acquisition Sub and, after the Merger, each of Parent and
the Surviving Corporation and its Subsidiaries and (c) each of Parent and Acquisition Sub and, after the Merger, Parent and the
Surviving Corporation and its Subsidiaries has sufficient capital and liquidity with which to conduct its business. For purposes of this
Section 5.12, (i) the amount of any “contingent and other liabilities” at any time shall be computed as
the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected
to become an actual or matured liability, (ii) “present fair and saleable value” means the aggregate amount of net consideration
(giving effect to reasonable and customary costs of sale or taxes, where the probable amount of any such taxes is reasonably identifiable)
that could be expected to be realized from an interested purchaser by a seller, in an arm’s length transaction under present conditions
in a current market for the sale of assets of a comparable business enterprise, where both parties are aware of all relevant facts and
neither party is under any compulsion to act, where such seller is interested in disposing of the entire operation as a going concern,
presuming the business will be continued, in its present form and character, and with reasonable promptness, (iii) “indebtedness”
means any liability on a claim and (iv) “claim” means (A) any right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured, and (B) any right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
Section 5.13 Share
Ownership. Except for any Person who became an “acquiring person” (as defined in Section 23B.19.020 of the WBCA)
prior to the date that is five (5) years before the date hereof, no Parent Party (or any “affiliate” or “associate”
thereof, as such terms are defined in Section 23B.19.020 of the WBCA), nor any partnership, syndicate, or other group acting for
the purpose of acquiring, holding, or dispersing of any shares of Company Common Stock or other securities convertible into, exchangeable
for or exercisable for shares of Company Common Stock or any securities of any Subsidiary of the Company that included one or more Parent
Parties became an “acquiring person” before the approval by a majority of the members of the Company Board of such Person’s
“share acquisition time” (as defined in Section 23B.19.020 of the WBCA). Except as set forth on Section 5.13
of the Parent Disclosure Letter, none of the Parent Parties beneficially owns (within the meaning of Section 13 of the Exchange
Act and the rules and regulations promulgated thereunder), as of the date of this Agreement, any shares of Company Common Stock
or other securities convertible into, exchangeable for or exercisable for shares of Company Common Stock or any securities of any Subsidiary
of the Company, or is a party as of the date of this Agreement, or will at any time prior to the Closing Date become a party to any agreement,
arrangement or understanding (other than this Agreement) for the purpose of acquiring, holding, voting or disposing of any shares of
Company Common Stock or other securities convertible into, exchangeable for or exercisable for shares of Company Common Stock or any
securities of any Subsidiary of the Company.
Section 5.14 Acknowledgment
of Disclaimer of Other Representations and Warranties.
(a) Each
of Parent and Acquisition Sub acknowledges that the Parent Parties (i) have received full and complete access to (A) such books
and records, facilities, properties, premises, equipment, Contracts and other properties and assets of the Company and its Subsidiaries
which they and their Representatives and such Affiliates have desired or requested to see or review and (B) the VDR, (ii) have
had full opportunity to meet with the officers and employees of the Company and its Subsidiaries and to discuss the business and assets
of the Company and its Subsidiaries and (iii) have had an adequate opportunity to make such legal, factual and other inquiries and
investigation as they deem necessary, desirable or appropriate with respect to the Company and each of its Subsidiaries.
(b) Except
for the representations and warranties expressly set forth in this Article V and the other Transaction Documents, neither
Parent nor Acquisition Sub nor any other Person on behalf of Parent or Acquisition Sub makes (and Parent, on behalf of itself, the other
Parent Parties, and their respective Representatives, hereby disclaims) any express or implied representation or warranty with respect
to Parent, Acquisition Sub, its Subsidiaries or any of their respective businesses, operations, properties, assets, liabilities or otherwise
in connection with this Agreement, the Merger or the other transactions contemplated hereby, including as to the accuracy or completeness
of any information.
(c) Except
for the representations and warranties expressly set forth in Article IV, each of the Parent Parties acknowledges and agrees
that (i) none of the Company, the Company’s Subsidiaries or any other Person on behalf of the Company or any of the Company’s
Subsidiaries makes, or has made, any express or implied representation or warranty with respect to the Company or any of the Company’s
Subsidiaries or with respect to the accuracy or completeness of any information provided, or made available, to the Parent Parties or
their Representatives, including with respect to the Company and its Subsidiaries respective businesses, operations, assets, liabilities,
conditions (financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated
by this Agreement, and the Parent Parties and their Representatives are not relying on, and waive any claim based on reliance on, any
representation, warranty or other information of the Company or any Person except for those expressly set forth in Article IV,
and (ii) no Person has been authorized by the Company, the Company’s Subsidiaries or any other Person on behalf of the Company
to make any representation or warranty relating to the Company, its Subsidiaries or their respective businesses or otherwise in connection
with this Agreement, the Merger or the other transactions contemplated hereby, and if made, such representation or warranty shall not
be relied upon by the Parent Parties as having been authorized by such entity. Without limiting the generality of the foregoing, the Parent
Parties acknowledge and agree that none of the Company, any of the Company’s Subsidiaries or any other Person has made a representation
or warranty (including as to accuracy or completeness) to the Parent Parties with respect to, and none of the Company, any of the Company’s
Subsidiaries or any other Person shall be subject to any liability to the Parent Parties or any other Person resulting from, the Company
or any of the Company’s Subsidiaries or their respective Representatives or Affiliates providing, or making available, to the Parent
Parties or their respective Representatives, or resulting from the omission of, any estimate, projection, prediction, forecast, data,
financial information, memorandum, presentation or any other materials or information, including any materials or information made available
to the Parent Parties or their respective Representatives in connection with presentations by the Company’s management or in the
VDR. Parent and Acquisition Sub acknowledge that there are uncertainties inherent in attempting to make estimates, projections, budgets,
pipeline reports and other forecasts and plans, that they are familiar with such uncertainties and that each of Parent and Acquisition
Sub is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, budgets, pipeline
reports and other forecasts and plans so furnished to it, including the reasonableness of the assumptions underlying such estimates, projections,
budgets, pipeline reports and other forecasts and plans. Each of the Parent Parties acknowledges that it has conducted, to its satisfaction,
its own independent investigation of the condition (financial or otherwise), operations, assets and business of the Company and its Subsidiaries
and, in making its determination to proceed with the Merger and the other transactions contemplated by this Agreement, each of the Parent
Parties has relied solely on the results of its own independent investigation and the representations and warranties set forth in Article IV
and has not relied, directly or indirectly, on any materials or information made available to the Parent Parties or their Representatives
by or on behalf of the Company.
Article VI
COVENANTS
AND AGREEMENTS
Section 6.1 Conduct
of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the
earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1 (the
“Pre-Closing Period”), except as (a) may be required by Law, any Governmental Authority or the
rules or regulations of the NYSE, (b) the Company determines, in its reasonable discretion, may be necessary in accordance
with any Pandemic Measures or otherwise in response to a Pandemic, (c) may be consented to in writing (email being sufficient)
by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (d) may be required or contemplated
pursuant to this Agreement or (e) set forth in Section 6.1 of the Company Disclosure Letter, (i) the Company
shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to conduct its operations in all material
respects in the ordinary course of business, and to the extent consistent therewith, the Company shall use its commercially
reasonable efforts to preserve intact its business in all material respects; and (ii) the Company shall not, and shall not
permit any of its Subsidiaries to:
(A) amend
(1) the Company Charter or the Company Bylaws or (2) the equivalent organizational or governing documents of any of its Subsidiaries
in any way that would reasonably be expected to be adverse to Parent;
(B) adjust,
split, combine, reclassify, redeem, repurchase or otherwise acquire or amend the terms of any capital stock or other equity interests
of the Company (other than repurchases or retention of shares of the Company Common Stock in connection with the exercise, vesting or
settlement of Company Options, RSU Awards and PSU Awards or as required by the Shareholder Rights Agreement) or any of the Company’s
Subsidiaries;
(C) issue,
reissue, sell, pledge, dispose, encumber or grant any shares of capital stock or other equity interests in the Company or any of its Subsidiaries,
or any options, warrants, convertible securities or other rights of any kind to acquire any shares of capital stock or equity interests
of the Company or any of its Subsidiaries, other than (1) transactions between or among the Company and its direct or indirect wholly-owned
Subsidiaries that do not involve or require the issuance of any shares of capital stock in the Company or its Subsidiaries, (2) the
crediting of Stock Units to participant accounts under the Deferred Compensation Plans in the ordinary course of business and consistent
with past practice, (3) the issuance of shares of Company Common Stock upon the exercise of Company Options or under the Company
Stock Purchase Plan, the vesting of RSU Awards or PSU Awards and the settlement of Stock Units, in each case outstanding as of the date
hereof or otherwise permitted to be granted hereunder, (4) the issuance of securities by a Subsidiary of the Company to the Company
or another direct or indirect wholly-owned Subsidiary of the Company, (5) encumbrances or pledges of shares of capital stock or other
equity interests of the Company or any of its direct or indirect wholly-owned Subsidiaries to the extent constituting Permitted Liens
or (6) as required by the Shareholder Rights Agreement;
(D) other
than (x) quarterly cash dividends made in the ordinary course of business in an amount not greater than $0.19 per share, (y) a
“stub period” cash dividend (the “Stub Period Dividend”) contingent upon the occurrence of
the Closing and payable to shareholders of record as of a date that is no later than one trading day prior to Effective Time equal to
the product of (1) the number of days from the record date for payment of the last quarterly dividend paid by the Company prior to
the Effective Time through and including immediately prior to the Effective Time and (2) a daily dividend rate determined by dividing
the amount of the last quarterly dividend prior to the Effective Time by ninety-one (91) and (z) the Special Dividend (provided,
that the Company is not required to declare such dividends, and if declared, the record date of any such cash dividends shall be prior
to the Rollover), declare, set aside, make or pay any dividend or other distribution with respect to the capital stock of the Company,
whether payable in cash, stock, property or a combination thereof;
(E) except
as required by applicable Law or under the terms of a Company Benefit Plan in effect on the date of this Agreement, (1) increase
or commit to increase the compensation or benefits of any Person who is employed by or provides services to the Company or any of its
Subsidiaries as, or in a more senior position to, Vice President (a “Senior Employee”); (2) enter into,
establish, adopt, amend or terminate any Company Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement
that would be a Company Benefit Plan if it were in existence as of the date of this Agreement; (3) grant to any Senior Employee any
(x) severance, termination or retention payments or benefits, (y) payments or benefits triggered by a change in control or by
the consummation of the transactions contemplated by this Agreement or (z) bonuses, long-term cash awards, or equity, equity-based
or incentive compensation; (4) take any action to accelerate the time of vesting or payment or lapsing of restrictions, or fund or
in any way secure the payment of, compensation or benefits under any Company Benefit Plan, including any equity or equity-based awards;
(5) hire, engage or terminate (other than for cause) any Person who is employed by or provides services to the Company or any of
its Subsidiaries as, or in a more senior position to, Senior Vice President or as an individual service provider of the Company or any
of its Subsidiaries in a substantially equivalent role to a Senior Vice President or more senior position; (6) grant any current
or former director, officer, employee or other individual service provider of the Company or any of its Subsidiaries any right to reimbursement,
indemnification or payment for any Taxes, including any Taxes incurred under Section 409A or 4999 of the Code; or (7) enter
into any collective bargaining agreement or similar labor agreement or voluntarily recognize any labor union, works council, or other
labor organization;
(F) acquire
(including by merger, consolidation or acquisition of stock or assets), except in respect of any merger, consolidation, business combination
between or among the Company and its direct or indirect wholly-owned Subsidiaries or between or among the Company’s direct or indirect
wholly-owned Subsidiaries, any material equity interest in or business of any Person, except with respect to acquisitions (1) in
the ordinary course of business consistent with past practice, (2) pursuant to agreements in effect prior to the execution of this
Agreement or (3) with a purchase price not exceeding $10,000,000 individually or $30,000,000 in the aggregate (excluding any earn-out
or similar contingent, deferred or fixed payment obligations in connection with any such acquisition);
(G) sell,
lease, license, transfer, assign, abandon, sublease, mortgage, pledge or otherwise encumber or dispose of any assets or rights (including
Intellectual Property Rights) of the Company or its Subsidiaries, except (1) assets and rights that are not material to the Company
and its Subsidiaries, taken as a whole, (2) (x) sales, transfers or other disposals of Company products, services, inventory,
or fixtures and (y) grants of non-exclusive licenses (including merchandising, promotional and brand licenses and Intellectual Property
Rights), in each case in the ordinary course of business, (3) any mortgages, pledges or encumbrances as required under the loan documents
governing the Existing Credit Agreement, (4) pursuant to Contracts to which the Company or any of its Subsidiaries is a party as
of the date hereof, (5) sales or dispositions made in connection with any transaction between or among the Company and any of its
direct or indirect wholly-owned Subsidiaries or between or among any of its direct or indirect wholly-owned Subsidiaries, (6) sales
or disposals of any marketable securities, any similar securities, and any other investments in order to permit the net proceeds to be
used to satisfy the Company Cash Amount; (7) for properties or assets not currently used in the business of the Company or any of
its Subsidiaries; (8) statutory expirations of registered Intellectual Property Rights, (9) Permitted Liens or (10) the
Notes Security Grant;
(H) incur
any indebtedness for borrowed money (including issue any debt securities, assume or guarantee any such indebtedness for any Person (other
than a direct or indirect wholly-owned Subsidiary of the Company) for borrowed money), except for indebtedness or guarantees (1) that
do not exceed $30,000,000 in an aggregate principal amount at any time outstanding, (2) up to $150,000,000 in an aggregate principal
amount at any time outstanding during the Pre-Closing Period under the Existing Credit Agreement, (3) relating to capital leases
and equipment financing entered into as part of the capital expenditures permitted under clause (O) of this Section 6.1
in the ordinary course of business, (4) for surety or performance bonds (and related guarantees) that do not exceed $10,000,000 individually
or in the aggregate, (5) between or among the Company or any of its direct or indirect wholly-owned Subsidiaries or between or among
any of its direct or wholly-owned indirect Subsidiaries, or (6) any Notes Guarantee;
(I) make
any loans, advances or capital contributions to or investments in any Person (other than (1) between or among the Company or any
direct or indirect wholly-owned Subsidiary of the Company, (2) accounts receivable and extensions of credit in the ordinary course
of business and (3) advances of travel and relocation expenses to directors, officers and employees in the ordinary course of business
and consistent with past practice);
(J) (1) amend,
prepay or repay, modify or terminate or grant a waiver of any rights under any of the Company Material Contracts described in Section 4.16(a)(iii) (other
than scheduled repayments in accordance with the terms of any such Company Material Contracts or any termination of undrawn commitments,
repayment of revolving obligations under the Existing Credit Agreement, any Notes Guarantee or the Notes Security Grant), (2) amend
or modify, terminate (other than any termination in accordance with the terms thereof that occurs automatically or any termination relating
to a counterparty’s material breach) or grant a waiver of any rights under any Company Material Contract, in each case, in a manner
that would be material and adverse to the Company and its Subsidiaries, taken as a whole, or (3) enter into a new Contract (other
than renewals or extensions of a Company Material Contract on terms that are not materially less favorable to the Company and its Subsidiaries,
taken as a whole, than the existing Company Material Contract) that (x) would have been a Company Material Contract of the types
described in clauses (iv), (x), (xi) and (xiii) of Section 4.16(a) if it had been in effect on the date hereof
or (y) that contains a change in control provision in favor of the other party or parties thereto that would prohibit, or give such
party or parties a right to terminate such agreement as a result of, the Merger or would require a payment to or give rise to any rights
to such other party or parties as a result of the transactions contemplated hereby, which Contract, payment or rights would be material
to the Company and its Subsidiaries, taken as a whole;
(K) make
any material change to its non-Tax related methods of accounting in effect as of February 4, 2024, except (1) as required by
GAAP (or any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority of competent jurisdiction, (2) as
required or recommended by the Company’s auditors in connection with an audit or review of the Company’s financial statements,
(3) to permit the audit of the Company’s financial statements in compliance with GAAP, (4) as required by a change in
applicable Law or (5) as disclosed in the Company SEC Documents;
(L) except
as required by applicable Law, (1) amend any previously filed federal income Tax Return or other material Tax Return of the
Company or any of its Subsidiaries; (2) other than with respect to any transaction conducted at arms’ length with a third party,
incur any material liabilities for Taxes other than in the ordinary course of business, (3) make, revoke or change any material Tax
election of the Company or its Subsidiaries; (4) adopt or change any material accounting method with respect to Taxes or change an
annual accounting period; (5) settle, consent to or compromise any material Tax claim or assessment relating to the Company or any
of its Subsidiaries; (6) enter into any closing agreement or advance pricing agreement (or similar agreement) in respect of a material
Tax; (7) surrender any right to claim a refund for material Taxes; or (8) consent to any extension or waiver of any limitation
period with respect to any material Tax claim or assessment relating to the Company or any of its Subsidiaries (other than any automatic
extension of time in which to file a Tax Return);
(M) dissolve,
wind-up or liquidate (or adopt or enter into a plan of complete or partial liquidation or dissolution), merge, consolidate, restructure,
recapitalize or reorganize the Company, other than the Merger;
(N) settle
or compromise any Action that would be material to the Company and its Subsidiaries, taken as a whole, other than (1) in the ordinary
course of business, (2) settlements or compromises of Actions where the amount paid (less the amount reserved for such matters by
the Company or otherwise covered by insurance) in settlement or compromise, in each case, does not exceed, on an individual basis, the
amount set forth in clause (N) of Section 6.1 of the Company Disclosure Letter or (3) any Action with respect
to which an insurer or other Third Party (but neither the Company nor any of its Subsidiaries) has the right to control the decision to
compromise or settle such Action, or the Company is contractually obligated not to unreasonably delay, condition or withhold its consent
to such Third Party’s decision to compromise or settle such Action; provided that (x) in connection with any of the
foregoing clauses (1), (2) and (3), neither the Company nor any of its Subsidiaries shall agree or permit to be agreed to any restrictions
with respect to their assets or the conduct of their respective businesses that are material to the Company and its Subsidiaries, taken
as a whole, and (y) the compromise or settlement of an Action that is subject to Section 6.17 shall be governed by the
terms of that section;
(O) (x) incur
or commit to incur any capital expenditure(s) for the fiscal years ended February 1, 2025 and January 31, 2026 in excess
of $10,000,000 other than those consistent with the capital expenditure budgets set forth in clause (O) of Section 6.1
of the Company Disclosure Letter or those that do not exceed 105% of the budgeted amounts set forth therein or (y) commit to incur
capital expenditures in the fiscal year ending February 6, 2027 or future fiscal years, other than such commitments made in the ordinary
course of business and approved in a manner consistent with the Company’s capital expenditure policy in effect as of the date hereof;
(P) cancel
or fail to use commercially reasonable efforts to prevent the termination of any Insurance Policy or any lapse of the coverage thereunder,
unless simultaneously with such cancellation, termination or lapse replacement coverage equal to or greater than the existing coverage
is in full force and effect with no gap in coverage;
(Q) engage
in any plant closing, mass layoff or other action which would trigger the notice requirements pursuant to the WARN Act; or
(R) authorize
or enter into any Contract to do any of the foregoing.
Section 6.2 Preparation
of the Proxy Statement and Schedule 13E-3; Shareholders’ Meeting.
(a) As
promptly as reasonably practicable following the date of this Agreement, (i) the Company shall prepare and file with the SEC a preliminary
Proxy Statement and (ii) the Company and Parent shall jointly prepare and file with the SEC a Rule 13E-3 transaction statement
on Schedule 13E-3, with each to be filed concurrently. Each of Parent and the Company shall furnish to the other party all information
concerning, in the case of Parent, the Parent Parties, and in the case of the Company, the Company and its Affiliates, that is required
or reasonable to be included in the Proxy Statement and Schedule 13E-3 and shall promptly provide such other assistance in connection
with the preparation, filing and distribution of the Proxy Statement and Schedule 13E-3 as may be reasonably requested by the other party
from time to time. The parties shall use their respective reasonable best efforts to have the Proxy Statement and Schedule 13E-3 cleared
by the SEC as promptly as reasonably practicable after such filing. Each party shall promptly notify the other party upon the receipt
of any comments from the SEC or the staff of the SEC regarding the Proxy Statement, Schedule 13E-3 or any Other Required Filing or any
request from the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement, Schedule 13E-3 or any Other Required
Filing. Each party shall promptly provide the other party with copies of all correspondence between such party and its Representatives,
on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Proxy Statement, the Schedule 13E-3, any
Other Required Filing or the transactions contemplated by this Agreement. Each party shall use its reasonable best efforts to respond
as promptly as reasonably practicable to any comments of the SEC or the staff of the SEC with respect to the Proxy Statement or the Schedule
13E-3. Prior to filing or mailing of the Proxy Statement and Schedule 13E-3 or responding to any comments of the SEC (or the staff of
the SEC) with respect thereto, the Company and Parent, as applicable, shall provide the other party with a reasonable opportunity to review
and to propose comments on such document or response, in each case except to the extent prohibited by Law or to the extent relating to
a Competing Proposal, which comments such party shall consider and include or incorporate in such documents or responses unless such party
objects thereto in good faith. The Company shall cause the Proxy Statement and Schedule 13E-3 to be disseminated to the Company’s
shareholders in definitive form as promptly as reasonably practicable following clearance thereof with the SEC.
(b) If
the Company or any of the Parent Parties is required to file any document with the SEC other than the Proxy Statement and Schedule 13E-3
in connection with the Merger or the Shareholders’ Meeting pursuant to applicable Law (an “Other Required Filing”),
then such Person shall (or, if such Person is a Parent Party other than Parent or Acquisition Sub, Parent shall cause such Person to)
promptly prepare and file such Other Required Filing with the SEC. Prior to filing an Other Required Filing or responding to any comments
of the SEC (or the staff of the SEC) with respect thereto, to the extent reasonably practicable, the filing Person shall (or, if such
filing Person is a Parent Party other than Parent or Acquisition Sub, Parent shall cause such Person to) provide the Company (with respect
to a filing by any Parent Party) or Parent (with respect to a filing by the Company) with a reasonable opportunity to review and to propose
comments on such document or response, in each case except to the extent prohibited by Law or to the extent relating to a Competing Proposal,
which comments such Person shall (or, if such Person is a Parent Party other than Parent or Acquisition Sub, which comments Parent shall
cause such Person to) consider and include or incorporate in such documents or responses unless such party objects thereto in good
faith.
(c) If,
at any time prior to the Shareholders’ Meeting, any information relating to the Company, the Parent Parties, or any of their respective
Affiliates, officers or directors, or any transaction any of them have entered, or are contemplating entering, into in connection with
this Agreement, is discovered by the Company, Parent or Acquisition Sub that should be set forth in an amendment or supplement to the
Proxy Statement or Schedule 13E-3 so that the Proxy Statement or Schedule 13E-3 (or any amendment or supplement thereto) would not contain
an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they are made, not misleading, the party that discovers such information
shall promptly notify the other parties thereof. Following such notification, the Company or Parent, as applicable, shall prepare an appropriate
amendment or supplement of the Proxy Statement or Schedule 13E-3 containing such information, and such party shall, as promptly as reasonably
practicable, file such amendment or supplement with the SEC and, to the extent the Company determines it is required by applicable Law,
promptly disseminate any such amendment or supplement to the Proxy Statement to the Company’s shareholders.
(d) The
Company shall, as promptly as practicable following the date on which the SEC confirms that it has no comments or no further comments
on the Proxy Statement and Schedule 13E-3, give notice of and duly call, convene and hold a meeting of its shareholders for the purpose
of obtaining the Requisite Shareholder Approvals (including any postponement, recess or adjournment thereof, the “Shareholders’
Meeting”). Notwithstanding anything in this Agreement to the contrary, the Company may, in its reasonable discretion after
consultation with Parent, postpone, recess or adjourn the Shareholders’ Meeting and may change the record date thereof, (i) in
the event of an absence of a quorum necessary to conduct the business of the Shareholders’ Meeting, (ii) to the extent as may
be necessary or advisable, in the judgment of the Company Board (acting upon the recommendation of the Special Committee) or the Special
Committee, to allow reasonable additional time for any supplemental or amended disclosure which the Company has determined in good faith
is necessary under applicable Law to be disseminated and reviewed by the Company’s shareholders prior to the Shareholders’
Meeting, or (iii) to allow additional solicitation of votes in order to obtain the Requisite Shareholder Approvals; provided
that without the written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned), in no event shall the
Shareholders’ Meeting be postponed, recessed or adjourned (x) more than two times (except as may be required by Law) or (y) to
a date that is less than five (5) Business Days before the Outside Date. Unless the Company Board or the Special Committee has effected
an Adverse Recommendation Change pursuant to Section 6.5(e) or Section 6.5(f), the Company shall, through
the Company Board, provide the Company Recommendation and include the Company Recommendation in the Proxy Statement. Unless there has
been an Adverse Recommendation Change pursuant to Section 6.5(e) or Section 6.5(f) or this Agreement
has been terminated in accordance with its terms, the Company shall use its reasonable best efforts to: (A) solicit proxies in favor
of the Requisite Shareholder Approvals, (B) at Parent’s request, retain a proxy solicitor on customary terms in connection
with the solicitation of the Requisite Shareholder Approval, (C) conduct a “broker search” in a manner to enable the
record date for the Shareholders’ Meeting to be set so that the Shareholders’ Meeting can be held promptly following the effectiveness
of the Proxy Statement and (D) keep Parent reasonably informed with respect to proxy solicitation as reasonably requested by Parent
and provide such information as Parent may reasonably request in connection therewith, including with respect to providing a list of all
shareholders of the Company entitled to vote at the Shareholders’ Meeting and a tally of all proxies that have been granted and
not withdrawn by shareholders of the Company (but not more frequently than on a weekly basis prior to the five days before the Shareholders’
Meeting and daily in the five days before the Shareholders’ Meeting). Parent and Acquisition Sub shall vote all shares of Company
Common Stock (if any) held by them in favor of the approval of this Agreement. The Parent Parties and their Representatives shall have
the right to solicit proxies in favor of the Requisite Shareholder Approvals, and shall keep the Company reasonably informed with respect
to their solicitation as reasonably requested by the Company and provide such information as the Company may reasonably request in connection
therewith. Furthermore, in the event that subsequent to the date hereof, the Company Board or the Special Committee effects an Adverse
Recommendation Change pursuant to Section 6.5(e) or Section 6.5(f), unless this Agreement is terminated in
accordance with its terms, the Company shall nevertheless, pursuant to the authority granted by Section 23B.08.245 of the WBCA, submit
this Agreement to the Company’s shareholders for approval at the Shareholders’ Meeting.
Section 6.3 Appropriate
Action; Consents; Filings.
(a) In
accordance with the terms and subject to the conditions of this Agreement (including Section 6.5), the Company shall, and
shall cause its Affiliates to, and Parent and Acquisition Sub shall, and shall cause the other Parent Parties to, use their respective
reasonable best efforts to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger
set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business
Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary
actions or non-actions and Consents from Governmental Authorities necessary in connection with the consummation of the transactions contemplated
by this Agreement, including the Merger, and the making of all necessary registrations and filings (including filings with Governmental
Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid any Action by,
any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including
the Merger, (ii) the obtaining of all Consents or waivers from Third Parties set forth in Section 6.3(a) of the
Company Disclosure Letter (provided that neither the Company, its Subsidiaries, the Parent Parties or any of their Representatives
shall be obligated to make any payment or commercial concession to any Third Party, or incur any liability, as a condition to (or in connection
with) obtaining any such consent or waiver, unless such payment, concession or liability is agreed to by the Company and Parent and is
conditioned and effective only upon the Closing), (iii) the contesting and defending of any Actions, whether judicial or administrative,
challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, including seeking to have
any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution
and delivery of any additional instruments necessary or advisable to consummate the transactions contemplated hereby. The Company shall,
and shall cause its Affiliates to, and Parent and Acquisition Sub shall, and shall cause the other Parent Parties to, promptly (and, in
the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof, unless such
filing under the HSR Act is made after the effective date of the October 7, 2024 final rule amending the Premerger Notification
Rules promulgated by the Federal Trade Commission, then such filing under the HSR Act shall be made as promptly as reasonably practicable)
(A) comply as promptly as reasonably practicable and advisable with any request under the HSR Act for additional information (including
responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission,
the Antitrust Division of the U.S. Department of Justice or any other Governmental Authority under any Antitrust Laws in respect of any
such filings with respect to the transactions contemplated hereby, including the Merger, and (B) act in good faith and reasonably
cooperate with the other parties hereto in connection with any such filings (including, if requested by the other parties hereto, to accept
all reasonable additions, deletions or changes suggested by the other parties hereto in connection therewith) and in connection with resolving
any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws. In taking the foregoing actions,
each of the Company, Parent and Acquisition Sub shall act as promptly as reasonably practicable. Notwithstanding anything in this Agreement
to the contrary, obtaining any Consents or waivers from any Third Party pursuant to Section 6.3(a)(ii) above or otherwise
shall not be a condition to the obligations of any party to consummate the Merger.
(b) Without
limiting anything in this Section 6.3 and notwithstanding any limitations in Section 6.3(a) or elsewhere
in this Agreement, (i) Parent and Acquisition Sub agree to take, and shall cause the other Parent Parties to take, as expeditiously
as possible any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate
each and every impediment and obtain all Consents (including under any Antitrust Laws) that may be required by any Governmental Authority
so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, as expeditiously as possible
(and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree,
hold separate order, trust or otherwise: (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing
to sell, divest, license or otherwise dispose of, any assets of the Company or its Subsidiaries, (B) terminating, amending or assigning
existing relationships and contractual rights and obligations, (C) requiring the Company or any of its Subsidiaries to grant any
right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with,
any Third Party and (D) imposing limitations on the Company or any of its Subsidiaries or any Parent Party or any of its Subsidiaries
with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets of the Company and
its Subsidiaries; provided that any such action contemplated by clauses (A) through (D) above is conditioned
upon the consummation of the transactions contemplated by this Agreement; and (ii) the Company may make, subject to the condition
that the Closing actually occurs, any undertakings (including undertakings to accept operational restrictions or limitations or to make
sales or other dispositions, provided that such restrictions, limitations, sales or other dispositions are conditioned upon the
consummation of the transactions contemplated by this Agreement) as are required to obtain such Consents of such Governmental Authorities
or to avoid the entry of, or to effect the dissolution of or vacate or lift, any Orders that would otherwise have the effect of preventing
or materially delaying the consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing, this
Section 6.3(b) shall not require or obligate Liverpool or the Family Group (or any of their respective Affiliates, other
than Parent and Acquisition Sub) to take any actions that would be material to their respective businesses or assets (other than to the
extent relating to the Company and its Subsidiaries). Parent agrees to pay 100% of all filings fees under the HSR Act or other Antitrust
Laws.
(c) The
Company will furnish to Parent and Parent will, and will cause the other Parent Parties to, furnish to the Company such necessary information
and reasonable assistance as Parent or the Company, as applicable, may reasonably request in connection with the preparation of any required
governmental filings or submissions and will reasonably cooperate in good faith in responding to any inquiry from a Governmental Authority,
including (i) promptly informing the other parties hereto of such inquiry, (ii) consulting in advance before making any substantive
presentations or submissions to a Governmental Authority, (iii) giving the other parties hereto the opportunity to attend and participate
in any substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental Authority
and (iv) to the extent permissible under applicable Law, supplying each other with copies of all material correspondence, filings
or communications between either party and any Governmental Authority with respect to this Agreement. Notwithstanding anything to the
contrary contained in this Agreement, Parent shall, and shall cause the other Parent Parties to, consult with the Company and consider
in good faith the views of the Company in connection with all material communications with any Governmental Authority and strategy regarding
the Antitrust Laws. The Company and the Parent Parties, in their respective sole and absolute discretion, may designate any competitively
sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall
be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient
unless express permission is obtained in advance from the source of the materials or its legal counsel. Parent shall, in consultation
with the Company, determine the strategy to be pursued for obtaining all necessary actions or non-actions and Consents from Governmental
Authorities, including any related litigation, pursuant to any Antitrust Law in connection with the transactions contemplated by this
Agreement.
(d) Neither
Parent nor Acquisition Sub shall, and they shall cause the other Parent Parties not to, and the Company shall not, and shall not permit
any of its Affiliates to, directly or indirectly through one or more of their respective Affiliates or otherwise, (i) acquire or
agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner,
any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or
equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material
license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in
the obtaining of, or materially increase the risk of not obtaining, approval from, or avoiding an Action by, any Governmental Authority
necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period,
(B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions
contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by
this Agreement.
(e) Notwithstanding
anything to the contrary in the foregoing, nothing in this Section 6.3 shall restrict or limit the ability of (1) the
Company and its Representatives to take actions in accordance with Section 6.5 or Section 8.1, or (2) Parent
and its Representatives to take actions in accordance with Section 8.1.
Section 6.4 Access
to Information; Confidentiality.
(a) Upon
reasonable notice, the Company shall (and shall cause each of its Subsidiaries to) afford to Parent and its Representatives reasonable
access, at Parent’s sole cost and expense, in a manner not disruptive in any material respect to the operations of the business
of the Company and its Subsidiaries, during normal business hours and upon reasonable advance written notice submitted in accordance
with this Section 6.4, throughout the Pre-Closing Period, to the properties, books and records of the Company and its Subsidiaries
and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information
(to the extent not publicly available) concerning the business, properties and personnel of the Company and its Subsidiaries (except
for any information relating to the negotiation and execution of the Transaction Documents, any Competing Proposal, or any Adverse Recommendation
Change) as may reasonably be requested by Parent in connection with the consummation of the transactions contemplated by this Agreement;
provided that nothing herein shall require the Company or any of its Subsidiaries or their respective Representatives to disclose
any information to Parent or Acquisition Sub to the extent such disclosure would, as determined in the reasonable judgment of the Company,
(i) cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are
not consummated, (ii) breach, contravene or violate applicable Law (including the HSR Act or any other Antitrust Law), any Pandemic
Measures or the provisions of any Contract to which the Company or any of its Subsidiaries is a party (including any confidentiality
obligations to which the Company or any of its Subsidiaries is subject), (iii) jeopardize any attorney-client or other legal privilege,
(iv) disclose or provide access to any personnel records relating to individual performance or evaluations, medical histories or
other information that in the Company’s good faith opinion (A) is sensitive or (B) the disclosures of which could subject
the Company or its Subsidiaries or their respective Affiliates or Representatives to the risk of liability or would otherwise violate
applicable Law, (v) jeopardize the health and safety of any employee of the Company or any of its Subsidiaries; provided,
further, that nothing herein shall authorize Parent or its Representatives to undertake any environmental testing involving sampling
of soil, groundwater, air or other environmental medium or similar invasive techniques at any of the properties owned, operated or leased
by the Company or its Subsidiaries. In the event that the Company objects to any request submitted pursuant to and in accordance with
this Section 6.4(a) and withholds information on the basis of the foregoing clauses (i) through (v), the Company
shall inform Parent as to the general nature of what is being withheld and shall use commercially reasonable efforts to make appropriate
substitute arrangements to permit reasonable disclosure that does not suffer from any of the foregoing impediments (including, if reasonably
requested by Parent, entering into a joint defense agreement with Parent on customary and mutually acceptable terms if requested with
respect to any such information). During any visit to the business or property sites of the Company or any of its Subsidiaries, each
of Parent and Acquisition Sub shall, and shall cause their respective Representatives accessing such business or property sites to, comply
with all applicable Laws and all of the Company’s and its Subsidiaries’ safety and security procedures, and use reasonable
best efforts to minimize any interference with the Company’s and its Subsidiaries’ business operations in connection with
any such access. All requests for information made pursuant to this Section 6.4 shall be directed to the Persons designated
by the Company in writing as authorized to receive such requests.
(b) Notwithstanding
anything herein to the contrary, the Company shall not be required to provide access or make any disclosure to Parent pursuant to this
Section 6.4 to the extent that such access or information is reasonably pertinent to any pending or threatened Action where
the Company or any of its Affiliates, on the one hand, and any Parent Party or any of its Affiliates, on the other hand, are, or are
reasonably expected to be, adverse parties, except for any such Action relating solely to a dispute over the requirements of Section 6.4(a).
(c) No
investigation or access permitted pursuant to this Section 6.4 shall affect or be deemed to modify any representation or
warranty made by the Company hereunder. Parent agrees that it will not, and will cause the other Parent Parties and its and their respective
Representatives not to, use any information obtained pursuant to this Section 6.4 for any competitive or other purpose unrelated
to the consummation of the transactions contemplated by this Agreement (which transactions, for the avoidance of doubt, shall include
the Debt Financing) or the post-Closing operations or financing the Surviving Company and its Subsidiaries. Parent shall, and shall cause
each of the other Parent Parties and its and their respective Representatives (and any other Person subject to or bound by the terms
of the Confidentiality Agreements) to, hold all information provided or furnished pursuant to this Section 6.4 confidential
in accordance with the terms of the Confidentiality Agreements. The Confidentiality Agreements shall apply with respect to information
furnished by the Company, its Subsidiaries and the Company’s officers, employees and other Representatives under this Agreement
and, if this Agreement is terminated prior to the Effective Time, the Confidentiality Agreements shall remain in full force and effect
in accordance with their terms prior to giving effect to the execution of this Agreement.
Section 6.5 Non-Solicitation;
Competing Proposals; Intervening Event.
(a) Except
as otherwise permitted by this Agreement, immediately following the execution hereof, (i) the Company shall, and shall cause its
Subsidiaries and direct the Company’s directors, officers, financial advisors and counsel to cease any existing solicitation of,
or discussions or negotiations with, any Third Party that may be ongoing as of the execution of this Agreement relating to any Competing
Proposal or any inquiry or request that would reasonably be expected to lead to a Competing Proposal, (ii) the Company shall promptly
request that each Third Party that has previously executed a confidentiality agreement promptly return to the Company or destroy all
non-public information previously furnished or made available to such Third Party or any of its Representatives by or on behalf of the
Company or its Representatives in accordance with the terms of such confidentiality agreement and, (iii) the Company and its Subsidiaries
shall promptly shut off all access of any such Third Party to any electronic data room maintained by the Company. Except as otherwise
permitted by this Agreement, during the Pre-Closing Period, the Company shall not, and shall cause its Subsidiaries and direct the Company’s
directors, officers, financial advisors and counsel not to, directly or indirectly, (A) initiate, solicit, knowingly encourage or
knowingly facilitate the making of any Competing Proposal or (B) engage in negotiations or discussions with (it being understood
that the Company may inform Persons of the provisions contained in this Section 6.5), or knowingly furnish any material nonpublic
information to, any Third Party that has made a Competing Proposal or any inquiry or request that would reasonably be expected to lead
to a Competing Proposal. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be permitted to grant
a waiver of or terminate any “standstill” or similar obligation of any Third Party with respect to the Company or any of
its Subsidiaries to allow such Third Party to submit a Competing Proposal.
(b) As
promptly as reasonably practicable, and in any event within twenty-four (24) hours, after receipt by the Company or any of its Representatives
of any Competing Proposal or any inquiry, expression of interest, proposal or offer that constitutes, or could reasonably be expected
to lead to, a Competing Proposal, the Company shall deliver to Parent a written notice setting forth the material terms and conditions
of any such inquiry, expression of interest, proposal, offer or Competing Proposal, including the identity of the Person making such
inquiry, expression of interest, proposal, offer or Competing Proposal. The Company shall keep Parent reasonably informed on a reasonably
current basis of any material amendment or modification to any such inquiry, expression of interest, proposal, offer or Competing Proposal
as promptly as is reasonably practicable following the Company’s receipt in writing of such material amendment or modification.
Notwithstanding the foregoing, the Company shall not be required to violate the terms of any confidentiality agreement in effect as of
the date hereof.
(c) Notwithstanding
anything to the contrary contained in this Agreement, at any time after the date hereof and prior to the earlier of receipt of the Requisite
Shareholder Approvals and the termination of this Agreement in accordance with its terms, in the event that the Company receives a Competing
Proposal from any Person that did not result from a material breach of Section 6.5(a), the Company Board, the Special Committee
and the Company and their respective Representatives may engage in negotiations or substantive discussions with, or furnish any information
and other access to, any Person making such Competing Proposal and its Representatives or potential sources of financing, if the Company
Board (acting on the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation with
its outside legal counsel and outside financial advisors) that such Competing Proposal either constitutes a Superior Proposal or could
reasonably be expected to lead to a Superior Proposal; provided that (i) prior to furnishing any material nonpublic information
concerning the Company or its Subsidiaries, the Company receives from such Person, to the extent such Person is not already subject to
a confidentiality agreement with the Company, an executed confidentiality agreement with such Person containing confidentiality terms
that are not materially less favorable in the aggregate to the Company than those contained in the Liverpool Confidentiality Agreement
(unless the Company offers to amend each Confidentiality Agreement to reflect such more favorable terms), it being understood that such
confidentiality agreement need not contain a standstill provision or otherwise restrict the making, or amendment, of a Competing Proposal
(and related communications) to the Company or the Company Board or Special Committee and (ii) any such material nonpublic information
so furnished in writing shall be promptly made available to Parent to the extent it was not previously made available to any Parent Party
or any of its Representatives. If the Company takes any action pursuant to this Section 6.5(c) or Section 6.5(e),
the Family Group and Liverpool shall be released from Section 7 of the Family Confidentiality Agreement and Section 4 of the
Liverpool Confidentiality Agreement, respectively.
(d) Except
as otherwise provided in Section 6.5(e) or Section 6.5(f), during the Pre-Closing Period, the Company Board
shall not (and no committee thereof, including the Special Committee, shall) (i) withdraw, withhold or modify, or propose publicly
to withdraw, withhold or modify, in a manner adverse to Parent or Acquisition Sub, the Company Recommendation, (ii) adopt, approve
or recommend, or propose publicly to approve or recommend, to the Company’s shareholders any Competing Proposal, (iii) fail
to include the Company Recommendation in the Proxy Statement, (iv) following the public disclosure of a Competing Proposal (which
shall be deemed to include any public report about such Competing Proposal), fail to publicly reaffirm the Company Recommendation within
ten (10) Business Days after Parent so requests in writing; provided that the Company shall not be required to reaffirm the
Company Recommendation more than once per Competing Proposal (unless the terms of such Competing Proposal change in any material respects
and such change is publicly disclosed), (v) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9 under
the Exchange Act, against any Competing Proposal that is a tender offer or exchange offer subject to Regulation 14D promulgated under
the Exchange Act within ten (10) Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange
Act) of such tender offer or exchange offer (or if the Shareholders’ Meeting is scheduled to be held within ten (10) Business
Days from the date of such commencement, promptly and in any event prior to the date which is two (2) Business Days before the date
on which the Shareholders’ Meeting is scheduled), (vi) publicly agree or propose an intention or resolution to do any of the
foregoing (any such action described in clause (i) through (vi) being referred to as an “Adverse
Recommendation Change”) or (vii) allow the Company or any of its Subsidiaries to execute or enter into, any definitive
agreement to effect any Competing Proposal.
(e) Notwithstanding
anything in this Agreement to the contrary, at any time prior to receipt of the Requisite Shareholder Approvals, the Company Board (acting
on the recommendation of the Special Committee) or the Special Committee may make an Adverse Recommendation Change or the Company Board
(acting on the recommendation of the Special Committee) may authorize, adopt or approve a Competing Proposal and, with respect to such
Competing Proposal constituting a Superior Proposal, cause or permit the Company to enter into a definitive agreement to effect such
Superior Proposal substantially concurrently with the termination of this Agreement pursuant to Section 8.1(c)(ii), if:
(i) a
bona fide Competing Proposal (that did not result from a material breach of Section 6.5(a)) is made to the Company by a Third
Party;
(ii) the
Company Board (acting on the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation
with its outside legal counsel and outside financial advisors) that (A) such Competing Proposal constitutes a Superior Proposal
and (B) the failure to take such action with respect to such Competing Proposal would reasonably be expected to be inconsistent
with the directors’ fiduciary duties under applicable Law (it being agreed that such determination by the Company Board or the
Special Committee under clause (A) or (B) above shall not, in itself, constitute an Adverse Recommendation
Change);
(iii) the
Company provides Parent prior written notice of the intention of the Company Board (acting upon the recommendation of the Special Committee)
or the Special Committee to make an Adverse Recommendation Change (a “Notice of Adverse Recommendation”)
in response to such Competing Proposal, which notice shall include the material terms and conditions of such Competing Proposal including
the identity of the Person making such Competing Proposal (it being agreed that neither the delivery of a Notice of Adverse Recommendation
by the Company, nor any public announcement that the Company Board or the Special Committee has delivered such notice, shall, in itself,
constitute an Adverse Recommendation Change);
(iv) upon
the request by Parent, the Company has negotiated, and directed any of its applicable Representatives to negotiate, in good faith, with
Parent and its Representatives during the four (4)-Business-Day period immediately after the date of such Notice of Adverse Recommendation
with respect to any changes to the terms and conditions of this Agreement proposed by Parent in a binding irrevocable written offer to
the Company prior to the expiration of such four (4)-Business-Day period; and
(v) after
taking into account any changes to the terms and conditions of this Agreement proposed by Parent in a binding irrevocable written offer
to the Company pursuant to clause (iv) above, the Company Board (acting on the recommendation of the Special Committee)
or the Special Committee has determined in good faith, after consultation with its outside legal counsel and outside financial advisors,
that (A) such Competing Proposal continues to constitute a Superior Proposal and (B) the failure to make an Adverse Recommendation
Change with respect to such Superior Proposal or terminate this Agreement to enter into a definitive agreement to effect such Superior
Proposal would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, even if such
changes irrevocably offered in writing by Parent were to be given effect; provided that any material amendment to the terms of
such Competing Proposal (whether or not in response to any changes irrevocably offered in writing by Parent pursuant to clause (iv) above
and it being understood that any changes to the financial terms, including form, amount and timing of payment of consideration shall
be deemed a material amendment) shall require a new Notice of Adverse Recommendation and an additional two (2)-Business-Day period from
the date of such notice during which the terms of clause (iv) above and this clause (v) shall apply
mutatis mutandis (other than the number of days).
(f) Notwithstanding
anything in this Agreement to the contrary, other than in connection with a Competing Proposal (which shall be subject to Section 6.5(e)),
at any time before the Requisite Shareholder Approvals are obtained, the Company Board (acting upon the recommendation of the Special
Committee) or the Special Committee may make an Adverse Recommendation Change (and nothing in this Agreement shall prohibit or restrict
the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee from effecting an Adverse Recommendation
Change), if the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith
(after consultation with its outside legal counsel and outside financial advisors) that an Intervening Event has occurred and the failure
to make an Adverse Recommendation Change in response to such Intervening Event would reasonably be expected to be inconsistent with the
directors’ fiduciary duties under applicable Law (it being agreed that such determination by the Company Board (acting upon the
recommendation of the Special Committee) or the Special Committee shall not, in itself, constitute an Adverse Recommendation Change);
provided that, to the extent practicable, (i) the Company Board (acting upon the recommendation of the Special Committee)
or the Special Committee provides to Parent a Notice of Adverse Recommendation in response to such Intervening Event, which Notice of
Adverse Recommendation shall describe such Intervening Event in reasonable detail (it being agreed that neither the delivery of the Notice
of Adverse Recommendation by the Company nor any public announcement that the Company Board (acting upon the recommendation of the Special
Committee) or the Special Committee has delivered such notice shall, in itself, constitute an Adverse Recommendation Change); (ii) if
requested by Parent, during the four (4)-Business-Day period immediately after delivery of the Notice of Adverse Recommendation, the
Company and its Representatives negotiate in good faith with Parent and its Representatives relating to changes to the terms and conditions
hereof set forth in a binding irrevocable written offer to the Company and (iii) at the end of such four (4)-Business-Day period
and taking into account any changes to the terms hereof proposed by Parent in a binding irrevocable written offer to the Company, the
Company Board (acting on the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation
with its outside legal counsel and outside financial advisors) that the failure to make such an Adverse Recommendation Change in response
to such Intervening Event would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable
Law, even if such changes proposed by Parent were to be given effect.
(g) Nothing
in this Agreement shall restrict the Company or the Company Board (or any committee thereof, including the Special Committee) from (i) taking
or disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated
under the Exchange Act or (ii) otherwise making disclosure (including regarding the business, financial condition or results of
operations of the Company and its Subsidiaries) to the shareholders of the Company to comply with applicable Law (it being agreed that
a “stop, look and listen” communication by the Company Board (or any committee thereof, including the Special Committee)
to the Company’s shareholders as contemplated under the Exchange Act or a factually accurate public statement by the Company that
describes the Company’s receipt of a Competing Proposal and the operation of this Agreement with respect thereto shall not be deemed
to be an Adverse Recommendation Change or give rise to a Parent termination right pursuant to Section 8.1(b)(iii)).
(h) For
purposes of this Agreement:
(i) “Competing
Proposal” shall mean any proposal or offer made by any Third Party or group (as defined in Section 13(d)(3) of
the Exchange Act) of Third Parties (A) to purchase or otherwise acquire, directly or indirectly, in one transaction or a series
of transactions, (1) beneficial ownership (as defined under Section 13(d) of the Exchange Act) of more than twenty percent
(20%) of any class of equity securities of the Company pursuant to a merger, consolidation or other business combination, sale of shares
of capital stock, tender offer, exchange offer or similar transaction or (2) any one or more assets or businesses of the Company
and its Subsidiaries that constitute more than twenty percent (20%) of the assets (based on the fair market value thereof as determined
by the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee in good faith), revenue or net
income (as measured in accordance with GAAP) of the Company and its Subsidiaries, taken as a whole, or (B) with respect to any merger,
consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or other transaction involving the Company
or its Subsidiaries pursuant to which any Third Party or group (as defined in Section 13(d)(3) of the Exchange Act) of Third
Parties would, directly or indirectly, have beneficial ownership (as defined under Section 13(d) of the Exchange Act) of securities
representing more than twenty percent (20%) of the total outstanding equity securities of the Company after giving effect to the consummation
of such transaction.
(ii) “Superior
Proposal” shall mean a Competing Proposal (with all references to “twenty percent (20%)” increased to “fifty
percent (50%)”) made by a Third Party on terms that the Company Board (acting upon the recommendation of the Special Committee)
or the Special Committee determines in good faith, after consultation with its outside legal counsel and outside financial advisors and
considering such factors as the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee considers
to be appropriate (including the conditionality and the timing and likelihood of consummation of such proposal), would, if consummated,
result in a transaction or series of related transactions that are more favorable to the Company’s shareholders than the transactions
contemplated by this Agreement (including any changes to the terms of this Agreement committed to by Parent to the Company in writing
in response to such Competing Proposal under the provisions of Section 6.5(e) and after taking into account any applicable
Company Termination Fee).
(iii) “Intervening
Event” shall mean any Effect or state of facts that, individually or in the aggregate, is material to the Company and its
Subsidiaries, taken as a whole, that was not known by the Special Committee prior to the Company’s execution and delivery of this
Agreement, which Effect or state of facts, becomes known by the Special Committee after the Company’s execution and delivery of
this Agreement and prior to obtaining the Requisite Shareholder Approvals; provided that in no event shall any change, in itself,
in the trading price or trading volume of Company Common Stock or the mere fact that the Company meets or exceeds any internal or published
financial projections, forecasts or estimates for any period ending on or after the date hereof, be an Intervening Event or be taken
into account in determining whether an Intervening Event has occurred, except that the underlying reasons for such change or meeting
or exceeding such projections, forecasts or estimates may constitute an Intervening Event and may be taken into account in determining
whether an Intervening Event has occurred.
Section 6.6 Directors’
and Officers’ Indemnification and Insurance.
(a) Parent
and Acquisition Sub agree that all rights to exculpation, indemnification, contribution and advancement of expenses for facts, events,
acts or omissions occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including
any matters arising in connection with this Agreement or the transactions contemplated hereby and whether or not asserted before the
Effective Time), now existing in favor of the current or former directors, officers or employees of the Company or any of its Subsidiaries
or any other individual serving at the request of the Company or any of its Subsidiaries as a director, officer or employee of (or in
a comparable role with) another Person (the “D&O Indemnified Parties”), as the case may be, shall survive
the Merger and shall continue in full force and effect in accordance with their terms (it being agreed that, subject to compliance with
applicable Law, after the Effective Time such rights shall be mandatory rather than permissive, if applicable), and Parent shall, and
shall cause the Surviving Corporation and its Subsidiaries to, perform such obligations thereunder. For a period of six (6) years
from the Effective Time, Parent and the Surviving Corporation, except as required by applicable Law, shall maintain in effect the exculpation,
indemnification, advancement of expenses and limitation of director, officer and employee (or comparable) liability provisions of the
Company’s and any of its indirect or direct Subsidiaries’ articles of incorporation, bylaws or other organizational documents
as in effect immediately prior to the Effective Time or in any indemnification agreements of the Company or any of its indirect or direct
Subsidiaries with any of the D&O Indemnified Parties as in effect immediately prior to the Effective Time, and, except as required
by applicable Law, shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights
thereunder of any D&O Indemnified Parties.
(b) Without
limiting the foregoing, to the fullest extent permitted under applicable Law, Parent shall (and Parent shall cause the Surviving Corporation
to) (i) indemnify, defend and hold harmless each D&O Indemnified Party against all losses, expenses (including reasonable attorneys’
fees and expenses and including expenses incurred in enforcing such D&O Indemnified Party’s rights under this Section 6.6),
judgments, fines, claims, damages or liabilities and amounts paid in settlement with respect to all facts, events, acts or omissions
by them in their capacities as such at any time prior to and including the Effective Time (including any matters arising in connection
with this Agreement or the transactions contemplated hereby and whether or not asserted before the Effective Time); and (ii) pay
in advance of the final disposition of any Action against any D&O Indemnified Party the fees and expenses (including reasonable attorneys’
fees) incurred in connection therewith by such D&O Indemnified Party promptly to such D&O Indemnified Party after statements
therefor are received by the Company and, if required by the WBCA, the Surviving Corporation’s organizational documents or any
applicable indemnification agreement, upon receipt by the Surviving Corporation (or, if applicable, a Subsidiary thereof) of a written
undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed if it is ultimately determined by a final, non-appealable
judgment of a court of competent jurisdiction that such D&O Indemnified Party is not permitted to be indemnified under applicable
Law. Notwithstanding anything to the contrary contained in this Section 6.6(b) or elsewhere in this Agreement, Parent
shall not (and Parent shall cause the Surviving Corporation not to) settle or compromise or consent to the entry of any judgment or otherwise
seek termination with respect to any Action for which indemnification would reasonably be expected to be sought hereunder, unless such
settlement, compromise, consent or termination includes an unconditional release of all of the D&O Indemnified Parties covered by
such Action from all liability arising out of such Action.
(c) For
at least six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to,
maintain in full force and effect the coverage provided by the existing directors’ and officers’ liability insurance, employment
practices liability insurance and fiduciary liability insurance in effect as of immediately prior to the Effective Time and maintained
by the Company or any of its Subsidiaries, as applicable (collectively, the “Existing D&O Insurance Policies”),
or provide substitute policies (with insurance carriers having an A.M. Best financial strength rating of least an “A”)
for the Company, its Subsidiaries and the D&O Indemnified Parties who are currently covered by such Existing D&O Insurance Policies,
in either case, with limits and on terms and conditions no less advantageous overall to the D&O Indemnified Parties than the Existing
D&O Insurance Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective
Time, including the transactions contemplated hereby. In lieu of such insurance, prior to the Effective Time, the Company may purchase
prepaid, non-cancellable six (6)-year “tail” directors’ and officers’ liability insurance, employment practices
liability insurance and fiduciary liability insurance (“Tail Coverage”), effective as of the Effective Time,
with limits and on terms and conditions no less advantageous overall to the D&O Indemnified Parties than the Existing D&O Insurance
Policies, covering claims arising from facts, events, acts or omissions that occurred at or prior to the Effective Time, including the
transactions contemplated hereby (provided that Parent shall not be required to expend for such “tail” insurance an
aggregate premium in excess of three hundred percent (300%) of the aggregate annual premium paid for the Existing D&O Insurance Policies
(the “Maximum Amount”); provided, further that if such insurance is not available or the “annual
premium” for such insurance exceeds the Maximum Amount, then Parent shall obtain the best coverage available for a cost not exceeding
the Maximum Amount), and Parent shall cause the Surviving Corporation (or its applicable Subsidiaries) to maintain such Tail Coverage
in full force and effect, without any modification, and continue to honor the obligations thereunder, in which event Parent shall cease
to have any obligations under the first sentence of this Section 6.6(c).
(d) In
the event that Parent, the Surviving Corporation, any of the Company’s Subsidiaries or any of their successors or assigns shall
(i) consolidate with or merge or amalgamate into any other Person and shall not be the continuing or surviving company or entity
of such consolidation, merger or amalgamation or (ii) transfer all or substantially all of its properties and assets to any Person,
then, and in each such case, Parent shall cause proper provision to be made so that the successor and assign of Parent, the Surviving
Corporation, any such Subsidiary or all or substantially all of its or their properties and assets, as the case may be, assumes the obligations
set forth in this Section 6.6.
(e) The
D&O Indemnified Parties are third-party beneficiaries of this Section 6.6. The provisions of this Section 6.6
shall survive the Merger and are intended to be for the benefit of, and enforceable by, each D&O Indemnified Party and his or
her successors, heirs or representatives. Parent and the Surviving Corporation shall pay all reasonable expenses, including reasonable
attorneys’ fees, that may be incurred by any D&O Indemnified Party in enforcing its indemnity and other rights under this Section 6.6.
The rights of each D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other applicable rights
such D&O Indemnified Party may have under the respective organizational documents of the Company or any of its Subsidiaries or the
Surviving Corporation, any other indemnification arrangement, applicable Law or otherwise.
(f) Notwithstanding
anything herein to the contrary, if any claim (whether arising before, at or after the Effective Time) is made against any of the D&O
Indemnified Parties on or prior to the sixth (6th) anniversary of the Effective Time, the provisions of this Section 6.6
shall continue in effect until the final disposition of such claim. The provisions of this Section 6.6 shall not be amended
in a manner that is adverse to any D&O Indemnified Party (including such D&O Indemnified Party’s successors, assigns and
heirs, as applicable) without the consent of the D&O Indemnified Party (including the successors, assigns and heirs, as applicable)
affected thereby.
Section 6.7 Notification
of Certain Matters. During the Pre-Closing Period, the Company shall give prompt notice to Parent, and Parent shall give prompt notice
to the Company, of (a) any written notice received by such party from any Person alleging that the Consent of such Person is or
may be required in connection with the Merger or the other transactions contemplated by this Agreement, if the subject matter of such
communication or the failure of such party to obtain such Consent could reasonably be expected to be material to the Company, the Surviving
Corporation or Parent, and (b) any Action commenced against, relating to or involving or otherwise affecting such party or any of
its Subsidiaries that relates to this Agreement or the transactions contemplated by this Agreement (including the Merger). This Section 6.7
shall not apply to (i) Antitrust Laws, which are governed by Section 6.3, (ii) notification procedures relating
to a Competing Proposal, which are governed by Section 6.5 or (iii) shareholder-related Actions, which are governed
by Section 6.17.
Section 6.8 Public
Announcements. Except as otherwise contemplated by Section 6.5 or in connection with any dispute among the parties hereto
regarding this Agreement, the Company shall consult with Parent and Parent shall (and shall cause the other Parent Parties to) consult
with the Company before issuing any press release or otherwise making any public statements with respect to this Agreement or the transactions
contemplated hereby, and none of the parties hereto shall, and the Company and Parent shall (and Parent shall cause the other Parent
Parties to) cause their respective Affiliates and Representatives acting on their behalf not to, issue any such press release or make
any public statement prior to obtaining the consent of the other party (which consent shall not be unreasonably withheld, conditioned
or delayed); provided that the restrictions set forth in this Section 6.8 (including any obligation to obtain advance
consent) shall not apply to any press release, public statement or other announcement issued or made, or proposed to be issued or made,
by: (a) the Company or its Representatives in connection with a Competing Proposal, Superior Proposal, Adverse Recommendation Change
or Intervening Event, (b) the Company, the Parent or their respective Representatives as may be required under applicable Law or
obligations pursuant to applicable stock exchange rule or any listing agreement (in which event the Company or Parent, as the case
may be, shall use its reasonable best efforts to provide a meaningful opportunity to the Company or Parent, as the case may be, to review
and comment upon the portion of such press release or other announcement relating to this Agreement or the transactions contemplated
hereby prior to making any such press release, public statement or other announcement), or (c) the Company, Parent or their respective
Representatives that is consistent in all material respects with public disclosures or prior communications previously consented to by
Parent or the Company, as applicable, in accordance with this Section 6.8 or otherwise made consistent with this Section 6.8,
including investor conference calls, filings with the SEC, Q&As or other publicly disclosed documents, in each case, to the extent
such disclosure is still accurate. In addition, the Company may, without Parent’s or Acquisition Sub’s consent, communicate
with its suppliers, vendors, resellers, customers, distributors, creditors, employees, investors or other business partners of the Company
or its Subsidiaries, and nothing in this Section 6.8 shall limit such communications by the Company and its Representatives;
provided that such communication is consistent with prior communications of the Company or any communications plan previously
agreed to by Parent and the Company in which case such communications may be made consistent with such plan. The initial press release
concerning this Agreement and the transactions contemplated hereby shall be a joint release in the form mutually agreed by the Company
and Parent. The contents of the Proxy Statement and Schedule 13E-3 shall be governed by Section 6.2 and not this Section 6.8
and public filings providing notice to or seeking Consent from any Governmental Authority made pursuant to Section 6.3
shall be governed by Section 6.3 and not this Section 6.8.
Section 6.9 Employee
Benefits.
(a) Employees
of the Company or its Subsidiaries immediately prior to the Effective Time who remain employees of Parent, the Surviving Corporation
or any of their Affiliates following the Effective Time are hereinafter referred to as the “Continuing Employees”.
For the period commencing at the Effective Time and ending one (1) year after the Effective Time (such period, the “Continuation
Period”), Parent shall, or shall cause the Surviving Corporation or any of their respective Affiliates to, provide for
each Continuing Employee, while such Continuing Employee remains employed by Parent, the Surviving Corporation or any of its Subsidiaries
(i) base salary or wage rate, as applicable, that are no less favorable in the aggregate than those provided to such Continuing
Employee as of immediately prior to the Effective Time, (ii) target short and long-term cash incentive compensation opportunities
that are in the aggregate substantially comparable with the cash and equity compensation opportunities provided to such Continuing Employee
as of immediately prior to the Effective Time and (iii) other employee benefits (excluding long-term incentive benefits, equity
or equity-based compensation arrangements, change-in-control, retention or transaction-related benefits, defined benefit pension benefits
and post-retirement welfare benefits) that are substantially comparable in the aggregate to those benefits (excluding long-term incentive
benefits, equity or equity-based compensation arrangements, change-in-control, retention or transaction-related benefits, defined benefit
pension benefits and post-retirement welfare benefits) in effect for Continuing Employees under Company Benefit Plans as of immediately
prior to the Effective Time. Without limiting the generality of the foregoing, during the Continuation Period, Parent shall provide,
or shall cause the Surviving Corporation or any of their respective Affiliates to provide, severance payments and benefits to each Continuing
Employee whose employment is terminated during the Continuation Period (under circumstances that would have been treated as a qualifying
termination of employment under the applicable severance arrangement) that are no less favorable in the aggregate than the severance
payments and benefits that such Continuing Employee would have been eligible to receive under the applicable Company’s severance
arrangements in effect immediately prior to the Effective Time and set forth in Section 4.12(a) of the Company Disclosure
Letter.
(b) Parent
hereby acknowledges that consummation of the Merger will constitute a “change in control” (or similar term) of the Company
under the terms of the Company Stock Plans and Deferred Compensation Plans, as applicable.
(c) From
and after the Effective Time, Parent shall, or shall cause the Surviving Corporation or any of their respective Subsidiaries to, assume
and honor all obligations under the Deferred Compensation Plans and with respect to awards outstanding under the Company Stock Plans
(as amended as contemplated herein), in each case, in accordance with their terms as in effect immediately prior to the Effective Time.
(d) For
purposes of eligibility to participate, vesting and entitlement to, and level of, benefits where length of service is relevant (other
than vesting of any equity or equity-based arrangements) under any benefit plan, policy, practice or arrangement of Parent, the Surviving
Corporation or any of their respective Subsidiaries providing benefits to any Continuing Employees after the Effective Time (collectively,
the “New Plans”), Parent shall, or shall cause the Surviving Corporation to cause the Continuing Employees
to receive credit for service with the Company and its Subsidiaries (and any respective predecessors) prior to the Effective Time, to
the same extent such service credit was granted under the corresponding benefit plan, policy, practice or arrangement of the Company
or any of its Subsidiaries, except (i) to the extent any such service credit would result in the duplication of benefits or (ii) for
purposes of any defined benefit pension plan or plan that provides retiree welfare benefits (other than any retiree welfare benefits
under any Company Benefit Plan set forth on Section 4.12(a) of the Company Disclosure Letter). In addition and without
limiting the generality of the foregoing, Parent shall, or shall cause the Surviving Corporation to: (i) cause each Continuing Employee
to be immediately eligible to participate, without any waiting time or satisfaction of any other eligibility requirements, in any and
all New Plans to the extent that (A) coverage under such New Plan replaces coverage under a Company Benefit Plan in which such Continuing
Employee participated immediately before the Effective Time (collectively, the “Old Plans”), and (B) such
Continuing Employee has satisfied all waiting time and other eligibility requirements under the Old Plan being replaced by the New Plan
and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical, vision or other welfare benefits to any Continuing
Employee, Parent shall cause (A) all preexisting condition exclusions and actively-at-work requirements of such New Plan to be waived
for such Continuing Employee and his or her covered dependents to the extent such conditions were inapplicable or waived under the comparable
Old Plan and (B) any expenses incurred by any Continuing Employee and his or her covered dependents during the portion of the plan
year of the Old Plan ending on the date such Continuing Employee’s participation in the corresponding New Plan begins to be taken
into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable
to such Continuing Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance
with such New Plan.
(e) Notwithstanding
anything in this Section 6.9 to the contrary, nothing in this Agreement, whether express or implied, shall (i) be treated
as an amendment or other modification of any Company Benefit Plan, New Plan or any other employee benefit plans of the Company or Parent
or as a guarantee of employment for any employee of the Company or any of its Subsidiaries, (ii) create any third-party beneficiary
rights in any director, officer, employee or individual Person, including any present or former employee, officer, director or individual
independent contractor of the Company or any of its Subsidiaries (including any beneficiary or dependent of such individual) or (iii) guarantee
employment for any period of time for, or preclude the ability of Parent, the Surviving Corporation or any of their respective Subsidiaries
to terminate any Continuing Employee.
Section 6.10 Conduct
of Business by Parent Pending the Merger. Parent and Acquisition Sub covenant and agree with the Company that during the Pre-Closing
Period, Parent and Acquisition Sub shall not amend or otherwise change any of the organizational documents of Acquisition Sub, except
for any amendments or changes as would not reasonably be expected to prevent, delay or impair the ability of Parent and Acquisition Sub
to consummate the Merger and the other transactions contemplated by this Agreement.
Section 6.11 Financing.
(a) Each
of Parent and Acquisition Sub shall, and shall cause the other Parent Parties to, use reasonable best efforts to take, or cause to be
taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to consummate the Financing and shall consummate
the Rollover, in each case subject to Section 6.11(b), on the terms and subject only to the conditions set forth in the Financing
Commitments (as the same may be amended in compliance with Section 6.11(b)) or any Alternative Financing (as defined below)
(including any “flex” provisions applicable to the Debt Financing), including: (i) complying with and maintaining in
full force and effect the Financing Commitments in accordance with the terms and subject to the conditions thereof, (ii) negotiating,
entering into and delivering (and causing its Affiliates to negotiate, enter into and deliver) definitive agreements with respect to
the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter (including any “flex” provisions),
(iii) satisfying, on a timely basis, all conditions to the availability of the Financing and the consummation of the Rollover to
the extent within Parent’s, Acquisition Sub’s or the other Parent Parties’ control and assisting in the satisfaction
of all other conditions to the Debt Financing and the definitive agreements entered into with respect to the Debt Commitment Letter,
(iv) consummating the Financing in an amount, together with Company Cash on Hand not exceeding the Company Cash Amount, necessary
to satisfy the Funding Obligations at or prior to the Closing, (v) consummating the Rollover immediately prior to the Effective
Time, (vi) enforcing their rights under the Financing Commitments and the definitive agreements related to the Debt Financing and
(vii) accepting to the extent necessary to obtain the full amount of the Debt Financing all flex provisions contemplated by the
Debt Commitment Letter.
(b) Parent
shall not, and shall cause the other Parent Parties not to, agree to or permit any amendments, supplements, replacements or other modifications
to, obtain any replacement of, or grant any waivers of, any condition, remedy or other provision under (i) the Equity Commitment
Letter without the prior written consent of the Company or (ii) the Debt Financing (other than to effect any flex provisions set
forth in the Debt Commitment Letter) without the prior written consent of the Company if such amendments, supplements, replacements,
waivers or modifications would or would reasonably be expected to (A) reduce the aggregate amount of the Debt Financing or the net
cash proceeds available from the Debt Financing (including, in each case, by changing the amount of fees or other amounts to be paid
(including original issue discount) with respect to the Debt Financing) such that the Parent Parties will not have sufficient cash proceeds
to, when together with Company Cash on Hand not exceeding the Company Cash Amount, satisfy the Funding Obligations at or prior to the
Closing, (B) (1) impose new or additional conditions or contingencies to the Debt Financing or otherwise expand any of the
conditions or contingencies to the Debt Financing or (2) otherwise amend, waive or modify any of the conditions or contingencies
to the Debt Financing, in the case of this clause (2), in a manner that could prevent or delay the Closing or otherwise prevent, delay
or impair the ability of Parent and Acquisition Sub to obtain the Debt Financing or consummate the transactions contemplated hereby or
(C) otherwise expand, amend, waive or modify any provisions of, or remedies under, the Debt Commitment Letter in a manner that would
or would reasonably be expected to (1) prevent, delay or make less likely the funding of the Debt Financing (or the satisfaction
of the conditions to the Financing) at the Closing, (2) adversely impact the ability of Parent or any of the other Parent Parties’
ability, to enforce their respective rights against the parties to the Financing Commitments or the definitive agreements with respect
thereto or otherwise obtain the Debt Financing and consummate the transactions contemplated hereby, or (3) result in the termination
of any Financing Commitment or any definitive agreement related thereto; provided that subject to compliance with the other provisions
of this Section 6.11, Parent may amend, supplement or otherwise modify the Debt Commitment Letter to add lenders, lead arrangers,
syndication agents or other Debt Financing Sources that have not executed the Debt Commitment Letter as of the date hereof (which will
not change or waive the terms thereof other than to alter the commitment percentages of the parties thereto in accordance with the parameters
set forth in the Debt Commitment Letter as of the date hereof). Subject to Parent’s obligation to obtain Alternative Financing
pursuant to Section 6.11(d), Parent shall not permit, release or consent to the withdrawal, termination, repudiation or rescission
of the Financing Commitments or any definitive agreement with respect to the Financing and shall not release or consent to the termination
of the obligations of any Financing Source under the Financing or any Parent Party under the Rollover and Support Agreements, in each
case of the foregoing, below an amount necessary to satisfy the Funding Obligations without the prior written consent of the Company.
For purposes of this Agreement, references to “Debt Financing,” “Equity Financing,” “Debt Financing Sources,”
“Debt Commitment Letter,” and “Equity Commitment Letter,” shall refer to such terms as hereafter amended, supplemented,
replaced or modified, to the extent such amendment, supplementation, replacement or modification is permitted by this Section 6.11(b).
(c) Parent
shall not (and shall cause the other Parent Parties not to): (i) award any agent, broker, investment banker, financial advisors
or other firm or Person, except for Moelis & Company LLC and J.P. Morgan Securities LLC, any financial advisory role on an exclusive
basis in connection with the Merger or the other transactions contemplated hereby or (ii) prohibit or restrict or seek to prohibit
or restrict any bank or investment bank or other Third Party potential provider of debt or equity financing from providing or seeking
to provide financing or financial advisory services to any Person (other than the Parent Parties) in connection with a transaction relating
to the Company or its Subsidiaries or in connection with the Merger or the other transactions contemplated hereby.
(d) In
the event that (i) all or any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the
Debt Commitment Letter (including any flex provisions applicable thereto) or (ii) the Company informs Parent in writing that the
Company Cash on Hand is expected to be less than the Company Cash Amount at the time that Parent is expected to be required to effect
the Closing and as a result Parent will not have sufficient funds available at the Closing to consummate the transactions contemplated
by this Agreement, Parent and Acquisition Sub shall, and shall cause the other Parent Parties to, within five (5) Business Days
after the occurrence of such event, notify the Company in writing thereof and promptly after the occurrence of such event, (A) use
their respective commercially reasonable efforts to take any and all actions to arrange and obtain alternative financing from the same
or alternative financial institutions in an amount sufficient to enable Parent and Acquisition Sub to consummate the transactions contemplated
by this Agreement in accordance with the terms of this Agreement, that does not impose any conditions or contingencies that would be
reasonably expected to prevent or delay the Closing or contain any terms that would reasonably be expected to prevent, delay or impair
the ability of Parent and Acquisition Sub to obtain the Debt Financing or consummate the transactions contemplated hereby, as compared
to the conditions and other terms set forth in the Debt Commitment Letter as of the date hereof (as amended in accordance with Section 6.11(b)),
taking into account any flex provisions thereof as promptly as practicable following the occurrence of such event (the “Alternative
Financing”) and (B) obtain and deliver a debt commitment letter to the Company with respect to such Alternative Financing,
including true, correct and complete copies of any related executed fee letters, engagement letters and other agreements (provided
that such fee letters may be redacted in the same manner as permitted by Section 5.7(a)) (collectively, including all
exhibits, schedules, amendments, supplements, modifications and annexes thereto, a “New Debt Commitment Letter”);
provided that, in no event shall Parent or Acquisition Sub be required to, and in no event shall its commercially reasonable efforts
be deemed or construed to require it to, obtain Alternative Financing that includes terms and conditions, taken as a whole, that are
less favorable to Parent or Acquisition Sub than the terms and conditions, taken as a whole, set forth in the Debt Commitment Letter
as of the date hereof (taking into account any “market flex” provisions applicable thereto contained in the related fee letter)
or would require it to pay any fees or agree to pay any interest rate amounts or original issue discount, in either case, materially
in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (taking into account any “market
flex” provisions applicable thereto contained in the related fee letter). For purposes of this Agreement, references to “Financing”
shall include the financing contemplated by any Alternative Financing and New Debt Commitment Letter to the extent permitted by this
Section 6.11(d), and references to “Debt Commitment Letter”, “Debt Financing Sources”, or “Financing”
shall include such documents (or commitments or financing sources, as applicable) in connection with any Alternative Financing and New
Debt Commitment Letter to the extent permitted by this Section 6.11(d).
(e) Parent
and Acquisition Sub shall (i) furnish the Company with complete, correct and executed copies (promptly upon their execution) of
each amendment, supplement, replacement, waiver or other modification of the Financing Commitments and definitive financing documents
for the Debt Financing (but, in the case of any fee letter or amendment thereto, subject to the redaction of such fee letter in a manner
consistent with Section 5.7(a) hereof), (ii) give the Company prompt written notice of any (A) breach or default
or any event that, with or without notice, lapse of time or both, would (or would reasonably be expected to) give rise to any default
or breach by any party to the Financing Commitments of which Parent or Acquisition Sub becomes aware, including the receipt of any written
notice or other written communication from any Financing Source with respect to any breach or default (or alleged breach or default)
by any party to the Financing Commitments, (B) material dispute or disagreement between or among any parties to any Financing Commitments
or the definitive documents relating to the Financing (other than ordinary course negotiations between the parties to the Financing Commitments)
that would reasonably be expected to (1) result in all or any portion of the Financing Commitments becoming unavailable on the terms
and conditions contemplated by the Financing Commitments (including, in respect of the Debt Commitment Letter, any flex provisions applicable
thereto), (2) delay or make less likely the funding of the Financing (or the satisfaction of the conditions to the Financing) at
the Closing or (3) impose new conditions or expand existing conditions to the funding of the Financing Commitments, (C) withdrawal,
repudiation or termination or written threat of withdrawal, repudiation or termination thereof of which Parent or Acquisition Sub becomes
aware or (D) event or circumstance that makes a condition precedent relating to the Financing or the Rollover unable to be satisfied
by any party, (iii) notify the Company promptly (and in any event within two (2) Business Days) if for any reason Parent or
Acquisition Sub no longer believes in good faith that it will be able to obtain all or any portion of the Financing or Rollover contemplated
by the Financing Commitments on the terms and from the sources described therein and (iv) otherwise keep the Company, upon its request,
reasonably and promptly informed of the status of its efforts to arrange the Financing (including any Alternative Financing), including
by providing the Company with drafts of the definitive agreements or offering memoranda, as applicable, relating to the Financing a reasonable
period of time prior to their execution or use.
(f) Without
the prior written consent of Parent or the Company, as applicable (such consent not to be unreasonably withheld, conditioned or delayed),
each of Parent and Acquisition Sub shall not, and shall cause the other Parent Parties not to, and the Company shall not, and shall cause
each of its Subsidiaries not to, meet or have any communications with any of the Rating Agencies, except for (i) meetings that the
Company’s Representatives (who shall be designated by the Special Committee and mutually agreeable to Parent) or Parent’s
Representatives (who shall be mutually agreeable to the Company), as applicable, are given an opportunity to attend, (ii) written
communications and materials so long as the sending party provided the other party with a reasonable opportunity to review and to propose
comments on such written communications and materials, which the sending party will consider in good faith, and (iii) meetings or
communications between Liverpool and the Rating Agencies that also issue credit ratings for Liverpool or its indebtedness so long as
such meetings and communications make no reference to matters that would reasonably be expected to impact the credit ratings of the Company
or its indebtedness, including the Senior Notes. Without the prior written consent of the Company (such consent not to be unreasonably
withheld, conditioned or delayed), each of Parent and Acquisition Sub shall not, and shall cause the other Parent Parties not to, make
any statement, take any action, or refrain from taking any action inconsistent with the materials and communications provided to the
Rating Agencies prior to the date of this Agreement to the extent relating to this Agreement, the other Transaction Documents and the
transactions contemplated hereby and thereby or relating to the Parent Parties, the Surviving Corporation, or its Subsidiaries following
the Effective Time. Parent and Acquisition Sub shall, and shall cause the other Parent Parties to, inform their Representatives who would
be reasonably expected to meet or communicate with the Rating Agencies or make statements relating to the Company, its Subsidiaries,
and the transactions contemplated by this Agreement of the terms of this Section 6.11(f) and the obligations of the
Parent Parties hereunder.
(g) Between
the date of this Agreement and the Closing, Parent shall not, nor shall it permit any of its Subsidiaries to, incur any indebtedness
for borrowed money without the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed).
Between the date of this Agreement and the Closing, Parent shall not, and shall cause the other Parent Parties not to, enter into any
Contract that would increase the indebtedness of Parent or its Subsidiaries, including the Company, following the Closing, except as
provided in the Debt Commitment Letter.
Section 6.12 Financing
Cooperation.
(a) Prior
to the Closing, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts
to, in each case, at Parent’s sole cost and expense, provide customary cooperation reasonably requested by Parent or Acquisition
Sub to assist Liverpool, Parent or Acquisition Sub in connection with their efforts to obtain the Debt Financing, and, to the extent
applicable, the Liverpool Debt Financing, the Notes Enhancements and the Company Note Offer and Consent Solicitation, which cooperation
shall include using reasonable best efforts to:
(i) furnish,
or cause to be furnished to, Liverpool, Parent, Acquisition Sub and the Debt Financing Sources or Liverpool Debt Financing Sources the
Required Financial Statements and the Projections and such other financial statements, schedules, other financial data or other information
regarding the Company and its Subsidiaries that are (A) in the possession of the Company or reasonably available to the Company
without undue burden or expense at such time and (B) reasonably requested by Liverpool, Parent, the Debt Financing Sources or the
Liverpool Debt Financing Sources, except that the Company shall not be required to provide preliminary summary financial results
or any trends discussion for any fiscal period of the Company for which historical financial statements or earnings release have not
yet been made public (the “Pre-Release Information”) unless (w) the Pre-Release Information is consistent
with the amount of information disclosed on Section 6.12(a) of the Company Disclosure Letter (except that any Pre-Release
Information that is provided for due diligence purposes only and which shall not be disclosed orally or in writing in any offering material
or otherwise shall not be limited to such amount of information), (x) the Company is confident of the accuracy of such Pre-Release
Information, (y) disclosure of such Pre-Release Information is advisable or necessary, in the view of the Debt Financing Sources,
Liverpool Debt Financing Sources or dealer manager with respect to a Company Note Offer and Consent Solicitation, at the time the offering
or solicitation is being made, and (z) the Company has been given reasonable opportunity to review and provide comments on the proposed
disclosure;
(ii) participate
in a reasonable number of lender meetings, lender and investor presentations, drafting and due diligence sessions and meetings with the
Rating Agencies, in each case, upon reasonable advance notice, during normal business hours and at mutually agreed times and locations
(which, at the Company’s option, may be attended via teleconference or virtual meeting platforms);
(iii) provide
reasonable assistance to Parent and Liverpool in the preparation of customary rating agency presentations, customary bank information
memoranda and similar documents reasonably and customarily required in connection with the Debt Financing, the Liverpool Debt Financing
and Company Note Offer and Consent Solicitation, in each case, solely with respect to information relating to the Company and its Subsidiaries;
(iv) furnish
Parent for distribution to the Debt Financing Sources and the trustee and holders of the Senior Debt, as promptly as practicable with
such information regarding the Company and its Subsidiaries as is customary in connection with, and otherwise provide customary assistance
with, establishing any security required by the Debt Financing and Notes Enhancements (and perfection thereof, but with respect to perfection,
only to the extent such perfection is required, pursuant to the terms of the Debt Commitment Letter, to be accomplished at the Effective
Time);
(v) cooperate
with Parent in obtaining customary appraisals and field examinations required in connection with the Debt Financing upon reasonable advance
notice, during normal business hours and at mutually agreed times, including permitting prospective lenders or investors involved in
the Debt Financing to evaluate the Company’s and its Subsidiaries’ inventory, equipment, current assets, cash management
systems, accounting systems and policies and procedures relating thereto for the purpose of establishing customary collateral arrangements
and conducting customary collateral-related diligence, in each case, to the extent necessary to obtain any portion of the Debt Financing
consisting of an asset-based credit facility;
(vi) ensure
that an officer of the Company executes prior to the Closing customary “authorization” letters in connection with bank information
memoranda authorizing the distribution of information to prospective lenders; provided that such customary authorization letters
(or the bank information memoranda in which such letters are included) shall include customary language that exculpates the Company,
each of its Subsidiaries and their respective Representatives from any liability in connection with the unauthorized use by the recipients
thereof of the information set forth in any such bank confidential information memoranda or similar memoranda or report distributed in
connection therewith;
(vii) deliver
at least four (4) Business Days prior to the Closing Date information and documentation related to the Company and its Subsidiaries
required and reasonably requested in writing by Parent or Acquisition Sub at least ten (10) Business Days prior to the Closing Date
with respect to compliance under applicable “know your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act;
(viii) arrange
for customary payoff letters, lien terminations and instruments of discharge to be delivered at the Closing (including the Payoff Letter)
providing for the payoff, discharge and termination on the Closing Date of the Debt Payoff Amount (and cooperate in the replacement,
backstop or cash collateralization of any outstanding letters of credit issued for the account of the Company or any of its Subsidiaries);
(ix) consult
with Parent in connection with the negotiation of such definitive financing documents and agreements with respect to the Debt Financing,
any Notes Enhancements and any Company Note Offer and Consent Solicitation and such other customary documents as may be reasonably requested
by Parent with respect thereto;
(x) assist
in borrowing base certificates required in connection with the Debt Financing for borrowings to be made on the Closing Date;
(xi) request
that its independent accountants provide, and using reasonable best efforts to cause them to provide, with respect to the Liverpool Debt
Financing referred to in clause (ii) of the definition thereof and any Company Note Offer and Consent Solicitation, and solely with
respect to financial information relating to the Company and its Subsidiaries, comfort letters (including “negative assurance”
comfort), agreed upon procedures letters (if required) and consents for use of their reports, in each case, consistent with customary
market practice and on customary terms for similar financings and offerings;
(xii) introducing
Parent to the existing banking relationships of the Company and its Subsidiaries; and
(xiii) permit
the reasonable use by Parent and its Affiliates of the Company’s and its Subsidiaries’ logos, names and trademarks for syndication
and underwriting, as applicable, of the Debt Financing, the Liverpool Debt Financing, Company Note Offer and Consent Solicitation and
any Notes Enhancements, provided that such logos, names and trademarks are used solely in a manner that is not intended to nor
reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of
its Subsidiaries and its or their marks;
provided
that in no event shall the Company have any cooperation obligations under this Section 6.12(a) in respect
of the Liverpool Debt Financing other than pursuant to clauses (i), (ii), (iii), (vi), (xi) and (xiii) of this Section 6.12(a).
(b) Between
the date of this Agreement and the Effective Time, Parent may (or, at Parent’s request, the Company shall) commence and conduct
any of (x) a consent solicitation with respect to the Senior Debt and the related indentures to obtain from the requisite holders
thereof consent to certain amendments to such Senior Notes or the related indentures (a “Consent Solicitation”),
(y) an offer to exchange any or all of the outstanding Senior Debt for securities (secured or unsecured) of the Company (an “Offer
to Exchange” and together with the Consent Solicitation, if any, a “Company Note Offer and Consent Solicitation”)
or (z) any Notes Guarantee. Between the date of this Agreement and the Closing, Parent shall (or, at Parent’s request, the
Company shall) use reasonable best efforts to give effect to the Notes Security Grant as promptly as reasonably practicable after the
date hereof, and in the event that Parent does not take such actions or request that the Company take such actions, the Company shall
be entitled to take such actions for all purposes under this Agreement. The effectiveness of each Company Note Offer and Consent Solicitation
or any Notes Enhancements shall be expressly conditioned on the occurrence of the Effective Time. Each Company Note Offer and Consent
Solicitation shall be conducted on such terms and conditions as may be proposed by Parent and are reasonably acceptable to the Company,
except that Parent shall have the right to determine the terms set forth on Section 6.12(b) of the Parent Disclosure
Letter after reasonable consultation with the Company; provided that the terms and conditions of any Company Note Offer and Consent
Solicitation shall comply with any applicable provisions of the terms of the Senior Debt and the related indentures under which they
are issued, the Existing Credit Agreement, the other Company Material Contracts, and applicable Law, including applicable SEC rules and
regulations, and shall not reasonably be expected to result in the Debt Financing or the Liverpool Debt Financing being unavailable at
the time that Parent is expected to be required to effect the Closing. Parent shall not conduct (or request that the Company conduct)
any Company Note Offer and Consent Solicitation in a manner that would violate any applicable provisions of the terms of the Senior Debt
and the indentures under which they are issued, the Existing Credit Agreement, or any other Company Material Contract or applicable Law,
including applicable SEC rules and regulations, or in a manner that would reasonably be expected to result in the Debt Financing
or the Liverpool Debt Financing being unavailable at the time that Parent is expected to be required to effect the Closing. Notwithstanding
anything to the contrary in Section 6.12(a), (i) Parent shall be responsible for the preparation of any consent solicitation
statement, offer to exchange, letter of transmittal, registration statement, prospectus, offering memorandum, other securities filing,
and any other document related to or in connection with each Company Note Offer and Consent Solicitation (the “Offer and
Consent Solicitation Documents”) and any documentation in connection with the Notes Enhancements (the “Notes
Enhancements Documents”), subject to the Company’s rights under the second sentence of this Section 6.12(b),
(ii) Parent shall consult with the Company and afford the Company a reasonable opportunity to review and comment on the Offer and
Consent Solicitation Documents and any Notes Enhancements Documents and will consider and include any comments raised by the Company
unless Parent objects thereto in good faith, (iii) Parent shall be responsible for the payment of all fees, costs and expenses in
connection with such Company Note Offer and Consent Solicitation and any Notes Enhancements, (iv) Parent shall identify and engage
any dealer manager, solicitation, information, collateral agent, collateral trustee, and depositary agents, trustees and other agents
and advisors in connection with any Company Note Offer and Consent Solicitation and Notes Enhancements, who shall be reasonably acceptable
to the Company, and the fees and expenses thereof will be paid directly by Parent, and (v) Parent shall cause its counsel to provide
all legal opinions customary or required in connection with the transactions and actions contemplated by this Section 6.12(b).
Without limiting Section 6.12(a), and subject to the limitations of Section 6.12(b), the Company shall use its
reasonable best efforts, and shall cause its Subsidiaries to use their reasonable best efforts to, in each case, at Parent’s sole
cost and expense, if requested by Parent, execute (in a form reasonably acceptable to the Company), file (if applicable) and deliver
the Offer and Consent Solicitation Documents and any Note Enhancement Documents. Promptly following the expiration of the Consent Solicitation
and subject to the receipt of any requisite consents, the Company shall (I) execute one or more supplemental indentures to the indenture
governing each series of Senior Debt subject to the Consent Solicitation, in accordance with the terms thereof and providing for the
amendments, security and guarantee arrangements, as applicable, contemplated in the Offer and Consent Solicitation Documents and (II) use
reasonable best efforts to cause the trustee under such indenture to enter into such supplemental indentures; provided that notwithstanding
the fact that such supplemental indentures may become effective earlier, the proposed amendments set forth therein shall not become operative
until the Effective Time. As promptly as reasonably practicable after the finalization of the applicable Notes Enhancements Documents,
the Company shall (I) execute one or more supplemental indentures to the indenture governing each series of Senior Debt subject
to the Notes Security Grant (and the Notes Guarantees, if applicable, and any related security agreements and related documents), in
accordance with the terms thereof and providing for the amendments, security and guarantee arrangements, as applicable, contemplated
in the Notes Security Grant (or Notes Guarantees) and (II) use reasonable best efforts to cause the trustee under such indenture
to enter into such supplemental indentures and any related agreements; provided that notwithstanding the fact that such supplemental
indentures may become effective earlier, the proposed amendments set forth therein shall not become operative until the Effective Time.
The consummation of any Company Note Offer and Consent Solicitation or any Notes Enhancement shall not be a condition to Closing, and,
for the avoidance of doubt, the parties shall be required to effect the Closing at the time the Merger is required to be consummated
in accordance with Section 2.2 whether or not any Company Note Offer and Consent Solicitation or any Notes Enhancement shall
have been consummated.
(c) The
cooperation and other obligations contemplated by Section 6.12(a) and (b) shall not require the Company
or its Subsidiaries or any of their Representatives to:
(i) take
any action that would (or would reasonably be expected to) cause any representation, warranty, covenant or other obligation in this Agreement
to be breached or any closing condition to fail to be satisfied or would be reasonably expected to decrease the Company Cash on Hand
below the Company Cash Amount at the time that Parent is expected to be required to effect the Closing;
(ii) waive
or amend any terms of this Agreement;
(iii) execute,
deliver, enter into, approve or perform any agreement, commitment, document or instrument, or modification of any agreement, commitment,
document or instrument other than (A) the authorization letter contemplated by Section 6.12(a)(vi), (B) as required
by the express terms of Section 6.12(b) and (C) those agreements, commitments, documents or instruments that are
executed or delivered, as applicable, by Persons who will continue as officers of the Company or its Subsidiaries after the Closing and
are subject to and contingent upon, and would not be effective prior to, the Closing;
(iv) deliver
or cause the delivery of any legal opinions or any certificate as to solvency or any other certificate in connection with the Debt Financing
other than the authorization letter contemplated by Section 6.12(a)(vi);
(v) adopt
any resolutions, execute any consents or otherwise take any corporate or similar action other than any resolutions or consents by Persons
who will continue as directors or managers, as applicable, of the Company or its Subsidiaries after the Closing that are subject to and
contingent upon, and would not be effective prior to, the Closing;
(vi) pay
any commitment or other similar fee, incur or reimburse any costs or expenses or incur any liability or obligation of any kind or give
any indemnities prior to the Closing;
(vii) take
any action if doing so could reasonably be expected to cause any director, officer, employee or stockholder of the Company or its Subsidiaries
or their respective Representatives to incur any personal liability;
(viii) provide,
or cause to be provided, any information the disclosure of which is prohibited or restricted under applicable Law or any binding agreement
with a Third Party or is legally privileged or consists of attorney work product or could reasonably be expected to result in the loss
of any attorney-client privilege;
(ix) take
any action that will conflict with or violate its organizational documents or any Laws or result in a violation or breach of, or default
under, any Contract to which the Company or any of its Subsidiaries is a party;
(x) take
any action that will unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or create an unreasonable
risk of damage or destruction to any property or assets of the Company or its Subsidiaries;
(xi) prepare
or deliver any financial statements or other financial data other than the Required Financial Statements and the Projections and the
Pre-Release Information and such other financial statements, schedules, other financial data or other information regarding the Company
and its Subsidiaries that are (A) in the possession of the Company or reasonably available to the Company without undue burden or
expense at such time and (B) reasonably requested as provided in Section 6.12(a)(i), it being understood that under
no circumstances shall the Company and its Subsidiaries be required to provide pro forma financial information, projections or other
pro forma adjustments other than the Projections, all of which shall be the responsibility of Parent and Acquisition Sub (it being understood
that while the Company shall be responsible for producing the Projections, Parent and Acquisition Sub shall provide the Company with
the pro forma adjustments necessary to prepare such Projections on a pro forma basis for the transactions contemplated hereby); or
(xii) provide
or prepare (1) any description of all or any portion of the Financing, the Liverpool Debt Financing, any Company Note Offer and
Consent Solicitation, or any securities issued in lieu thereof, including any “capitalization” (with respect to any Parent
Party), “description of notes,” “description of other indebtedness” or “plan of distribution,” any
such description to be included in liquidity and capital resources disclosure or other information customarily provided by a lead arranger
or an initial purchaser or underwriter, (2) risk factors relating to all or any component of the Financing, the Liverpool Debt Financing,
any Company Note Offer and Consent Solicitation or any securities issued in lieu thereof, (3) any other information required by
Rules 3-05 (with respect to acquisitions made by the Company or the Company’s Subsidiaries), 3-09, 3-10, 3-16, 13-01 or 13-02
of Regulation S-X under the Securities Act, any Compensation Discussion and Analysis or information required by required by Item 302,
402, 403, 404 or 601 of Regulation S-K under the Securities Act, as such provisions may be subsequently amended or supplemented and any
additional related provisions of Regulation S-X or Regulation S-K that may be applicable to Financing, the Liverpool Debt Financing,
any Company Note Offer and Consent Solicitation, or any securities issued in lieu thereof as may be implemented and applicable or any
information regarding executive compensation and related person disclosure or XBRL exhibits and the executive compensation and related
person disclosure rules related to SEC Release Nos. 33-8732A, 34-54302A and IC- 27444A, (4) financial statements or other financial
data (including selected financial data) for any period earlier than the fiscal year ended January 28, 2023 in the case of the Company
and its Subsidiaries, (5) (A) the effects of purchase accounting or any adjustments related thereto for any applicable transaction,
or (B) any tax consideration or use of proceeds disclosure, or (6) projections or other forward-looking statements other than
the Projections (clauses (1) through (6), the “Excluded Information”).
(d) Parent
shall be solely responsible for the contents (other than historical information of the Company and its Subsidiaries) and determination
of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired
to be incorporated into any pro forma financial information. Any offering materials, presentations, bank information memoranda and other
documents prepared by or on behalf of or utilized by Parent, Acquisition Sub or Liverpool, or the Debt Financing Sources or the Liverpool
Debt Financing Sources, in connection with the Parent Parties’ financing activities in connection with the transactions contemplated
hereby (including any Company Note Offer and Consent Solicitation or Notes Enhancement), which include any information provided by the
Company or any of its Affiliates or Representatives, including any offering memorandum, banker’s book, prospectus or similar document
used, or any other written offering materials used, in connection with any Debt Financing or Liverpool Debt Financing, shall include
a conspicuous and customary disclaimer to the effect that none of the Company or any of its Subsidiaries or any of their respective Representatives
have any responsibility for the content of such document and disclaim all responsibility therefor.
(e) Parent
shall promptly upon request reimburse the Company for any reasonable and documented out-of-pocket expenses and costs (including outside
attorneys’ fees and disbursements) incurred in connection with the Company’s, its Subsidiaries’ or their respective
Representatives’ obligations under this Section 6.12 (it being understood that the reimbursement set forth in
this paragraph shall not apply to any fees, costs and expenses that are incurred by, or on behalf of, the Company in connection with
its ordinary course financial reporting requirements or which would have been incurred regardless of any cooperation with the Debt Financing,
Liverpool Debt Financing or any Company Note Offer and Consent Solicitation); provided that Parent’s reimbursement obligations
under this Section 6.12(e), except with respect to any Company Note Offer and Consent Solicitation or any Notes Enhancement,
shall only be required to be paid if this Agreement is terminated without the Closing having occurred.
(f) Parent
shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses,
damages, claims, costs (including cost of investigation), settlement payments, injuries, liabilities, judgments, awards, penalties, fines,
Tax or expenses (including reasonable and documented out-of-pocket attorneys’ fees and disbursements) suffered or incurred by any
of them as a result of, or in connection with, the Company’s, its Subsidiaries’ or their respective Representatives’
obligations under this Section 6.12, the Debt Financing, the Liverpool Debt Financing, any Company Note Offer and Consent
Solicitation, or any Notes Enhancement, or any information used in connection with the Debt Financing, the Liverpool Debt Financing,
any Company Note Offer and Consent Solicitation or any Notes Enhancement and any action taken by any of them at the request of Liverpool,
Parent, Acquisition Sub, any Debt Financing Sources or any Liverpool Debt Financing Sources pursuant to this Section 6.12
or otherwise in accordance with this Section 6.12, except, in each case, to the extent such losses, damages, claims, costs
(including cost of investigation), settlement payments, injuries, liabilities, judgments, awards, penalties, fines, Tax or expenses (including
outside attorneys’ fees and disbursements) arose from the fraud, gross negligence, bad faith, intentional misrepresentation or
willful misconduct by of the Company, its Subsidiaries or any of their respective Representatives, as determined in a final, non-appealable
judgment of a court of competent jurisdiction.
(g) Notwithstanding
anything herein to the contrary, Parent acknowledges and agrees that a breach of this Section 6.12 shall only constitute
a material breach of the Company for purposes of Section 7.2(b) if (i) such breach is a material breach, (ii) Parent
has provided the Company with written notice of such material breach (with reasonable specificity as to the basis for such breach and
detailing in good faith reasonable steps that the Company could take to comply with this Section 6.12 in order to cure such
breach) and the Company has failed to cure such breach in a reasonably timely manner, and (iii) such breach is the proximate cause
of the Debt Financing not being consummated.
Section 6.13 Acquisition
Sub; Parent Parties.
(a) During
the Pre-Closing Period, Parent shall take all actions necessary to (i) cause Acquisition Sub and the other Parent Parties to perform
their respective obligations under this Agreement and under the other Transaction Documents and (ii) ensure that, prior to the Effective
Time, Acquisition Sub shall not engage in any activity, conduct any business, incur or guarantee any indebtedness or make any investments,
other than as specifically contemplated by this Agreement or in furtherance of the transactions contemplated by this Agreement and the
Financing. Any Consent or waiver by Parent under this Agreement shall be deemed to also be a Consent or waiver by Acquisition Sub.
(b) Parent
hereby guarantees the due, prompt and faithful payment, performance and discharge by Acquisition Sub of, and the compliance by Acquisition
Sub with, all of the covenants, agreements, obligations and undertakings of Acquisition Sub under this Agreement in accordance with the
terms of this Agreement, and covenants and agrees to take all actions necessary or advisable to ensure such payment, performance and
discharge by Acquisition Sub hereunder. Parent shall, immediately following the execution and delivery of this Agreement, approve this
Agreement in its capacity as sole shareholder of Acquisition Sub in accordance with applicable Law and the certificate of incorporation
and bylaws of Acquisition Sub.
Section 6.14 No
Control of the Company’s Business. Nothing contained in this Agreement is intended to give Parent, Acquisition Sub or any of
the other Parent Parties, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations
prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this
Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
Section 6.15 Rule 16b-3
Matters. Notwithstanding anything in this Agreement to the contrary, prior to the Effective Time, the Company shall take such further
actions, if any, as may be reasonably necessary or appropriate to ensure that the dispositions of equity securities of the Company (including
any derivative securities) pursuant to the transactions contemplated by this Agreement by any officer or director of the Company who
is subject to Section 16 of the Exchange Act are exempt under Rule 16b-3 promulgated under the Exchange Act.
Section 6.16 Stock
Exchange Matters. The Company shall cooperate with Parent to cause the Company’s securities to be de-listed from the NYSE and
de-registered under the Exchange Act as soon as practicable following the Effective Time; provided that such de-listing and termination
shall not be effective until after the Effective Time.
Section 6.17 Shareholder
Litigation. During the Pre-Closing Period, (a) the Company shall promptly advise Parent in writing of any threatened or commenced
Action by a shareholder of the Company (other than the Parent Parties) against the Company or its directors or officers (in their capacities
as such) arising out of or relating to this Agreement or the transactions contemplated by this Agreement and shall keep Parent reasonably
informed regarding any such Action, (b) the Company shall control the defense of such shareholder Action and shall consult with
Parent on significant decisions related to the defense, settlement or prosecution of any such shareholder Action (provided, that
this obligation shall not require any communication that could reasonably result in a waiver of the attorney-client privilege between
the Company and its counsel), and (c) the Company shall not compromise, settle, come to an arrangement regarding or agree to compromise,
settle or come to an arrangement regarding any such shareholder Action arising or resulting from the transactions contemplated by this
Agreement, or consent to the same without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed).
Parent shall promptly advise the Company of any threatened or commenced Action by a shareholder of the Company against Parent, Acquisition
Sub or any of the Parent Parties in their capacity as shareholders of the Company arising out of or relating to this Agreement or the
transactions contemplated by this Agreement after the date hereof. If such a shareholder Action is commenced, the applicable Parent Party
or Parent Parties may, upon written notice to the Company, assume control of the defense of any claim that relates solely to Parent,
Acquisition Sub, or any Parent Party in its capacity as a shareholder, and the Company shall have the same consultation and consent rights
with respect to such defense as Parent would have with respect to a shareholder Action under the first sentence of this Section 6.17.
Section 6.18 Takeover
Laws. Each of the parties hereto shall use all reasonable efforts (a) to take all action necessary so that no Takeover Law is
or becomes applicable to restrict or prohibit this Agreement, the Merger or the other transactions contemplated by this Agreement and
(b) if any Takeover Law is or becomes applicable to this Agreement, the Merger or any of the other transactions contemplated by
this Agreement, to take all action necessary so that the Merger and the other transactions contemplated hereby may be consummated as
promptly as practicable on the terms contemplated by this Agreement and otherwise to eliminate or minimize (to the greatest extent possible)
the effects of such Takeover Law on this Agreement, the Merger and the other transactions contemplated by this Agreement.
Section 6.19 Repayment
of Indebtedness. In connection with and conditioned upon the Effective Time, Parent shall provide and make available to the Company
in immediately available funds an amount equal to that which is necessary for the Company and its Subsidiaries to repay and discharge
in full all amounts outstanding or otherwise due and owing pursuant to the terms of the Existing Credit Agreement (including, without
limitation, the pledge or deposit of cash collateral or issuance of backstop letters of credit in respect of the Company’s or any
of its Subsidiaries’ existing letters of credit) (the “Company Debt”) in accordance with the Payoff Letter
relating thereto, including accrued interest thereon and all fees and other obligations (including premiums, make-whole amounts, penalties
or other charges or amounts that become payable thereunder as a result of the prepayment thereunder or the consummation of the transactions
contemplated at the Closing or that may become due and payable at the Effective Time) of the Company or any of its Subsidiaries thereunder
(collectively, the “Debt Payoff Amount”) and cause all Liens related to the Debt Payoff Amount to be terminated
(other than the pledge or deposit of cash collateral in respect of the Company’s or any of its Subsidiaries’ existing letters
of credit) in accordance with the Payoff Letter relating thereto. Subject to Parent’s compliance with the previous sentence, the
Company shall pay (or shall cause to be paid) the Debt Payoff Amount to the Persons specified in the relevant Payoff Letter as promptly
as practicable following the date the Company receives such Debt Payoff Amount, but no sooner than the Effective Time. The Company shall,
on or prior to the Closing Date, provide Parent with a customary payoff letter (the “Payoff Letter”) from the
agents on behalf of the financial institutions or other lenders party to the Existing Credit Agreement, which Payoff Letter shall set
forth the aggregate amount required to satisfy in full all such indebtedness of the Company or any of its Subsidiaries under the Existing
Credit Agreement to be discharged at the Closing, together with pay-off instructions for making such repayment on the Closing Date.
Section 6.20 Special
Dividend. Prior to and contingent upon the occurrence of the Closing, the Company shall be permitted to declare in accordance with
applicable Law a special cash dividend (the “Special Dividend”) to holders of record of Company Common Stock
as of a date that is no later than one trading day prior to the Effective Time in an amount equal to (a) $0.25 per share of Company
Common Stock or (b) if such amount would result in the Company Cash on Hand as of immediately prior to the Effective Time being
less than $410,000,000 after giving effect to the aggregate amount of the Special Dividend to be paid on the issued and outstanding shares
of Company Common Stock, Vested Company Options, Vested Company RSUs, and Vested Company PSUs (such aggregate amount, the “Special
Dividend Payment”), the greatest amount per share of Company Common Stock less than $0.25 that would result in there being
$410,000,000 in Company Cash on Hand as of immediately prior to the Effective Time after giving effect to the Special Dividend Payment
(the “Special Dividend Per Share Amount”). For the avoidance of doubt, if the payment of the Special Dividend
in an amount of $0.01 per share of Company Common Stock would cause there to be less than $410,000,000 in Company Cash on Hand as of
immediately prior to the Effective Time after giving effect thereto, then there shall be no Special Dividend pursuant to this Agreement.
Article VII
CONDITIONS
TO THE MERGER
Section 7.1 Conditions
to the Obligations of Each Party. The respective obligations of each party to consummate the Merger are subject to the satisfaction
or (to the extent not prohibited by Law) waiver by each of the Company, Parent and Acquisition Sub at or prior to the Effective Time
of the following conditions:
(a) the
Requisite Shareholder Approvals shall have been obtained;
(b) the
waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated;
(c) no
court of competent jurisdiction in the United States shall have issued or entered any Order that is then in effect that prohibits, enjoins
or makes illegal the consummation of the Merger; and
(d) no
Below Investment Grade Rating Event shall have occurred and is continuing.
Section 7.2 Conditions
to Obligations of Parent and Acquisition Sub to Effect the Merger. The obligations of Parent and Acquisition Sub to effect the Merger
are, in addition to the conditions set forth in Section 7.1, further subject to the satisfaction or (to the extent not prohibited
by Law) waiver by Parent at or prior to the Effective Time of the following conditions:
(a) (i) each
of the representations and warranties of the Company contained in this Agreement (other than the representations and warranties of the
Company set forth in the first sentence of Section 4.1(a) (Organization and Qualification; Subsidiaries), Section 4.2(a),
(b) and (c) (Capitalization), Section 4.3 (Authority Relative to Agreement), Section 4.9(b) (Absence
of Certain Changes or Events), Section 4.19 (Vote Required), and Section 4.20 (Brokers)), without regard to materiality
or Company Material Adverse Effect qualifiers contained within such representations and warranties, shall be true and correct as of the
date hereof and as the Closing Date as though made as of the Closing Date (except to the extent such representations and warranties expressly
relate to another date (in which case such representations and warranties shall be true and correct on and as of such other date)), other
than failures to be true and correct as would not, individually or in the aggregate, have a Company Material Adverse Effect; (ii) the
representations and warranties of the Company set forth in the first sentence of Section 4.1(a) (Organization and Qualification;
Subsidiaries), Section 4.3 (Authority Relative to Agreement), Section 4.19 (Vote Required), and Section 4.20
(Brokers) shall be true and correct in all material respects on the date hereof and as of the Closing Date as though made on and
as of the Closing Date (except to the extent such representations and warranties expressly relate to another date (in which case such
representations and warranties shall be true and correct in all material respects on and as of such other date)); (iii) the representations
and warranties of the Company set forth in Section 4.2(a), (b) and (c) (Capitalization) shall be
true as of the Specified Date in all but de minimis respects and (iv) the representation and warranty of the Company set
forth in Section 4.9(b) (Absence of Certain Changes or Events) shall be true and correct in all respects as of the date
hereof and as of the Closing Date as though made on and as of the Closing Date;
(b) the
Company shall have performed or complied in all material respects with its obligations required under this Agreement to be performed
or complied with on or prior to the Closing Date; and
(c) the
Company shall have delivered a certificate to Parent, dated as of the Closing Date and duly executed by a senior executive officer (or
similar authorized person) of the Company, certifying to the effect that the conditions set forth in Section 7.2(a) and
(b) have been satisfied.
Section 7.3 Conditions
to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger is, in addition to the conditions
set forth in Section 7.1, further subject to the satisfaction or (to the extent not prohibited by Law) waiver by the Company
at or prior to the Effective Time of the following conditions:
(a) each
of the representations and warranties of Parent and Acquisition Sub contained in this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except to the extent such representations
and warranties expressly relate to another date in which case such representations and warranties shall be true and correct in all material
respects on and as of such other date);
(b) Parent
and Acquisition Sub shall have performed or complied in all material respects with their respective obligations required under this Agreement
to be performed or complied with on or prior to the Closing Date; and
(c) Parent
shall have delivered a certificate to the Company, dated as of the Closing Date and duly executed by a senior executive officer of Parent,
certifying to the effect that the conditions set forth in Section 7.3(a) and Section 7.3(b) have been
satisfied.
Article VIII
TERMINATION
Section 8.1 Termination.
Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated at any time prior to the Effective
Time, whether before or after the Requisite Shareholder Approvals are obtained (except as otherwise expressly noted), as follows:
(a) by
mutual written consent of each of Parent and the Company;
(b) by
either Parent or the Company, if:
(i) the
Merger shall not have been consummated on or before 5:00 p.m. (New York City time) on September 22, 2025 (the “Outside
Date”); provided that the right to terminate this Agreement pursuant to this Section 8.1(b)(i) shall
not be available to any party hereto if the failure of such party, and in the case of Parent, including the failure of Acquisition Sub,
to perform or comply with any of its obligations contained in this Agreement has been the proximate cause of, or primarily resulted in,
the failure of the Closing to have occurred on or before such date;
(ii) prior
to the Effective Time, any court of competent jurisdiction in the United States shall have issued or entered any Order permanently restraining,
enjoining or otherwise prohibiting the Merger, and such Order shall have become final and non-appealable;
(iii) the
Requisite Shareholder Approvals shall not have been obtained at the Shareholders’ Meeting duly convened therefor at which this
Agreement has been voted upon; provided that the right to terminate this Agreement under this Section 8.1(b)(iii) shall
not be available to a party if the failure to obtain the Requisite Shareholder Approvals was primarily due to the failure in any material
respect of such party to perform any of its obligations under this Agreement (and in the case of Parent, including the failure of Acquisition
Sub to perform any of its obligations under this Agreement or the failure of any Parent Party to perform its obligations under Section 2
of the Rollover and Support Agreements); or
(iv) a
Below Investment Grade Rating Event has occurred and is continuing; provided that the right to terminate this Agreement under
this Section 8.1(b)(iv) shall not be available to Parent or the Company until the date that is forty-five (45) days
after the Below Investment Grade Rating Event has occurred;
(c) by
the Company, if:
(i) Parent
or Acquisition Sub shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth
in this Agreement, which breach or failure to perform (A) would give rise to the failure of any condition set forth in Section 7.3(a) or
Section 7.3(b) to be satisfied, (B) has been identified by the Company in a written notice delivered to Parent
and (C) is not capable of being cured, or is not cured, by Parent or Acquisition Sub on or before the earlier of (1) the date
that is three (3) Business Days prior to the Outside Date or (2) the date that is thirty (30) calendar days following the Company’s
delivery of written notice to Parent or Acquisition Sub, as applicable, of such breach; provided that the Company shall not have
the right to terminate this Agreement pursuant to this Section 8.1(c)(i) if the Company shall have breached, or failed
to perform, any of its representations, warranties, covenants or agreements contained in this Agreement, in any case, such that a condition
contained in Section 7.2(a) or Section 7.2(b) would not be satisfied;
(ii) prior
to receipt of the Requisite Shareholder Approvals, (A) the Company shall have received a Superior Proposal, (B) the Company
Board (acting upon the recommendation of the Special Committee) shall have authorized the Company to enter into a definitive acquisition
agreement with respect to such Superior Proposal, (C) the Company shall have complied with Section 6.5(e) in respect
of such Superior Proposal and (D) substantially concurrently with such termination, the Company shall have paid (or caused to be
paid) to Parent or its designee the Company Termination Fee as specified in Section 8.3(a)(ii); or
(iii) after
the Inside Date, (A) all of the conditions set forth in Section 7.1 and Section 7.2 shall have been satisfied
(other than those conditions (1) the failure of which to be satisfied is attributable primarily to a breach or failure to perform
by Parent or Acquisition Sub of its representations, warranties, covenants or agreements hereunder or (2) that by their terms are
capable of being satisfied only on the Closing Date, so long as such conditions in this clause (2) are at the time of termination
capable of being satisfied as if such time were the Closing or (to the extent not prohibited by Law) waived by the party hereto entitled
to waive such conditions), (B) the Company shall have notified Parent in writing that all of the conditions set forth in Section 7.1
and Section 7.2 have been satisfied (other than those conditions (1) the failure of which to be satisfied is attributable
primarily to a breach or failure to perform by Parent or Acquisition Sub of its representations, warranties, covenants or agreements
hereunder or (2) that by their terms are capable of being satisfied only on the Closing Date, so long as such conditions in this
clause (2) are at the time of termination capable of being satisfied as if such time were the Closing or (to the extent not prohibited
by Law) waived by the party hereto entitled to waive such conditions) and it stands ready, willing and able to consummate the Merger
and (C) the Merger shall not have been consummated within three (3) Business Days after the later of (1) delivery of such
notice referred to in clause (B) to Parent and (2) the date the Merger was required to be consummated pursuant
to Section 2.2; provided that no party shall be permitted to terminate this Agreement pursuant to Section 8.1(b)(i) during
the three (3)-Business-Day period following the notice referred to in clause (B) above; or
(d) by
Parent, if:
(i) at
any time prior to obtaining the Requisite Shareholder Approvals, the Company Board or the Special Committee shall have made an Adverse
Recommendation Change; provided that Parent’s right to terminate this Agreement pursuant to this Section 8.1(d)(i) shall
expire upon the earlier of (x) the Requisite Shareholder Approvals having been obtained and (y) 5:00 p.m. (New York City
time) on the tenth (10th) Business Day following the date on which such Adverse Recommendation Change occurs; or
(ii) the
Company shall have breached or failed to perform any of its representations, warranties, covenants or agreements set forth in this Agreement,
which breach or failure to perform (A) would give rise to the failure of any condition set forth in Section 7.2(a) or
Section 7.2(b) to be satisfied, (B) has been identified by the Parent in a written notice delivered to the Company
and (C) is not capable of being cured, or is not cured, by the Company on or before the earlier of (1) the date that is three
(3) Business Days prior to the Outside Date and (2) the date that is thirty (30) calendar days following Parent’s delivery
of written notice to the Company of such breach; provided that Parent shall not have the right to terminate this Agreement pursuant
to this Section 8.1(d)(ii) if Parent or Acquisition Sub has breached, or failed to perform, any of its representations,
warranties, covenants or agreements in this Agreement, in any case, such that a condition contained in Section 7.3(a) or
Section 7.3(b) would not be satisfied.
Section 8.2 Effect
of Termination. In the event that this Agreement is validly terminated by either the Company or Parent and the Merger is abandoned
pursuant to Section 8.1, written notice thereof shall be given to the other party or parties hereto, specifying the provisions
hereof pursuant to which such termination is made, and this Agreement shall forthwith become null and void and of no effect without liability
on the part of any party hereto (or any of its Representatives), and all rights and obligations of each party hereto shall cease; provided
that no such termination shall relieve any party hereto of any liability, costs, expenses (including attorneys’ fees) or damages
of any kind, all which shall be deemed in such event to be damages of such party, in the event of any Intentional Breach prior to such
termination, in which case, except as otherwise provided in Section 8.3, the aggrieved party shall be entitled to all remedies
available at law or in equity, including as provided in Section 9.7; provided further that the Confidentiality Agreements,
the Guaranties, the Rollover and Support Agreements, the expense reimbursement and indemnification obligations contained in Section 6.12
(Financing Cooperation), the representations and warranties set forth in Section 4.24 and Section 5.14, the
obligations under the penultimate sentence of Section 6.4(a) (Access to Information; Confidentiality), and the provisions
of Section 6.8 (Public Announcements), this Section 8.2 (Effect of Termination), Section 8.3 (Termination
Fees; Expenses) and Article IX shall survive any termination of this Agreement pursuant to Section 8.1 in accordance
with their respective terms.
Section 8.3 Termination
Fees; Expenses.
(a) Except
in the event that this Agreement is validly terminated in a circumstance where any Reverse Termination Fee is payable, in the event that:
(i) (A) a
Third Party has made to the Company or directly to the Company’s shareholders a Competing Proposal after the date of this Agreement,
(B) this Agreement is subsequently validly terminated by the Company or Parent pursuant to Section 8.1(b)(iii) and
at the time of the Shareholders’ Meeting such Competing Proposal has been publicly announced after the date of this Agreement and
has not been rejected or otherwise withdrawn or abandoned and (C) concurrently with or within twelve (12) months after the date
of such termination of this Agreement, the Company or any of its Subsidiaries consummates such Competing Proposal or enters into a definitive
agreement to effect such Competing Proposal and such Competing Proposal is subsequently consummated; provided that for purposes
of clause (C) of this Section 8.3(a)(i), the references to “twenty percent (20%)” in the definition of Competing
Proposal shall be deemed to be references to “fifty percent (50%)”;
(ii) this
Agreement is validly terminated by the Company pursuant to Section 8.1(c)(ii); or
(iii) this
Agreement is validly terminated by Parent pursuant to Section 8.1(d)(i),
then the Company shall (A) in the case of
clause (i) above, no later than two (2) Business Days following the date of the consummation of such Competing
Proposal, or in the case of clause (ii) above, prior to or substantially concurrently with such termination, pay, or
cause to be paid, by wire transfer of immediately available funds, at the direction of Parent, the Alternative Transaction Termination
Fee and (B) in the case of clause (iii) above, no later than two (2) Business Days after the date of such
termination, pay, or cause to be paid, by wire transfer of immediately available funds, at the direction of Parent, the Adverse Recommendation
Termination Fee (it being understood that notwithstanding any other provision of this Agreement in no event shall the Company be required
to pay either the Alternative Transaction Termination Fee or the Adverse Recommendation Termination Fee on more than one occasion or
pay both the Alternative Transaction Termination Fee and the Adverse Recommendation Termination Fee on any occasion).
(b) In
the event this Agreement is terminated (i) by the Company pursuant to Section 8.1(c)(i) or Section 8.1(c)(iii) or
by the Company or Parent pursuant to Section 8.1(b)(i) or Section 8.1(b)(ii) at a time when the Company
had the right to terminate this Agreement pursuant to Section 8.1(c)(i) or Section 8.1(c)(iii) or (ii) by
the Company or Parent pursuant to Section 8.1(b)(iv) or by the Company or Parent pursuant to Section 8.1(b)(i) at
a time when a Below Investment Grade Rating Event has occurred and is continuing, then in each case, Parent shall, in the case of termination
by (A) Parent, simultaneously with such termination, or (B) the Company, no later than two (2) Business Days after the
date of such termination, in the case of clause (A) and (B) above, pay, or cause to be paid, by wire transfer
of immediately available funds, at the direction of the Company, (1) in the case of clause (i) above, the Base
Reverse Termination Fee or (2) in the case of clause (ii) above, the Downgrade Reverse Termination Fee (it being
understood that notwithstanding any other provision of this Agreement in no event shall Parent be required to pay (x) either the
Base Reverse Termination Fee or the Downgrade Reverse Termination Fee on more than one occasion or (y) both the Base Reverse Termination
Fee and the Downgrade Reverse Termination Fee on any occasion).
(c) Notwithstanding
anything to the contrary set forth in this Agreement, but subject to the Company’s rights set forth in Section 8.2,
Section 8.3(e), Section 8.3(h) and Section 9.12, the Company’s receipt in full of the
applicable Reverse Termination Fee pursuant to Section 8.3(b) (in circumstances where the Reverse Termination Fee is
due pursuant to Section 8.3(b)) and the Additional Obligations (in circumstances where such amounts are due) shall constitute
the sole and exclusive monetary remedy of the Company and its Subsidiaries against Parent, Acquisition Sub, the other Parent Parties,
the Debt Financing Sources and the Liverpool Debt Financing Sources or any of their respective direct or indirect, former, current or
future general or limited partners, shareholders, members, managers, directors, officers, employees, agents, Affiliates or assignees
of any of the foregoing (collectively, the “Parent Related Parties”) for all losses and damages suffered as
a result of the failure of the transactions contemplated by this Agreement to be consummated or for a breach or failure to perform hereunder,
and upon payment of such amount, none of the Parent Related Parties shall have any further liability or obligation relating to or arising
out of this Agreement or the transactions contemplated by this Agreement (except that the Parent Parties shall also be obligated with
respect to the Company’s rights set forth in Section 8.2, Section 8.3(e), Section 8.3(h) and
Section 9.12).
(d) Notwithstanding
anything to the contrary set forth in this Agreement, but subject to Parent’s rights set forth in Section 8.2, Section 8.3(e),
Section 8.3(h) and Section 9.12, Parent’s receipt in full of the applicable Company Termination Fee
pursuant to Section 8.3(a), in circumstances where the Company Termination Fee is owed pursuant to Section 8.3(a),
shall constitute the sole and exclusive monetary remedy of Parent and Acquisition Sub against the Company and its Subsidiaries and any
of their respective direct or indirect, former, current or future general or limited partners, shareholders, members, managers, directors,
officers, employees, agents, Affiliates or assignees of any of the foregoing (collectively, the “Company Related Parties”)
for all losses and damages suffered by any Parent Related Party as a result of the failure of the transactions contemplated by this Agreement
to be consummated or for a breach or failure to perform hereunder, and upon payment of such amount, none of the Company Related Parties
shall have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this
Agreement (except that the Company shall also be obligated with respect to Parent’s and Acquisition Sub’s rights set forth
in Section 8.2, Section 8.3(e), Section 8.3(h) and Section 9.12).
(e) Notwithstanding
Section 8.3(c) and Section 8.3(d), (i) payment of the Reverse Termination Fee pursuant to Section 8.3(b) shall
not constitute (A) liquidated damages with respect to any claim for damages or any other claim which the Company would be entitled
to assert against Parent, any Parent Related Parties or any of their respective assets in connection with or relating to any such termination
of this Agreement in the event of any Intentional Breach by a Parent Party prior to such termination, or (B) the sole and exclusive
remedy in connection with or relating to any such termination of this Agreement in the event of any Intentional Breach by a Parent Party
prior to such termination and (ii) payment of the Company Termination Fee pursuant to Section 8.3(a) shall not
constitute (A) liquidated damages with respect to any claim for damages or any other claim which Parent or Acquisition Sub would
be entitled to assert against the Company, any Company Related Parties or any of their respective assets in connection with or relating
to any such termination of this Agreement in the event of any Intentional Breach by the Company prior to such termination, or (B) the
sole and exclusive remedy in connection with or relating to any such termination of this Agreement in the event of any Intentional Breach
by the Company prior to such termination.
(f) Notwithstanding
anything to the contrary in this Agreement or the Transaction Documents, but subject to the Company’s specific performance remedies
in Section 9.12 and the Company’s rights under the Confidentiality Agreements, the maximum aggregate liability, whether
in equity or at Law, in Contract, in tort or otherwise of the Parent Parties collectively (including monetary damages for Intentional
Breach) (i) under this Agreement or any other Transaction Document; (ii) in connection with the failure of the Merger (including
the Financing) or the other transactions contemplated hereunder or under the Transaction Documents to be consummated; or (iii) in
respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any other Transaction
Document, will not exceed under any circumstances an amount equal to the aggregate of (A) the Maximum Liability Amount (inclusive
of any amounts paid under the Reverse Termination Fees), (B) any costs, expenses and interest payable pursuant to Section 8.3(h),
(C) any reimbursement and indemnification amounts payable pursuant to Section 6.12, and (D) any expenses incurred
by the Company in connection with enforcing its rights under the Limited Guaranties (clauses (B) through (D), the “Additional
Obligations”).
(g) Notwithstanding
anything to the contrary in this Agreement or the Transaction Documents, but subject to Parent’s specific performance remedies
in Section 9.12, the maximum aggregate liability, whether in equity or at Law, in Contract, in tort or otherwise of the Company
Related Parties collectively (including monetary damages for Intentional Breach) under this Agreement or any Transaction Document or
in respect of any representation or warranty made or alleged to have been made in connection with this Agreement or any Transaction Document,
will not exceed under any circumstances an amount equal to the aggregate of (A) the Maximum Liability Amount (inclusive of any amounts
paid under the Termination Fees) and (B) any costs, expenses and interest payable pursuant to Section 8.3(h).
(h) Each
of the parties hereto acknowledges that (i) the agreements contained in this Section 8.3 are an integral part of the
transactions contemplated by this Agreement and without these agreements, Parent, Acquisition Sub and the Company would not enter into
this Agreement, (ii) each of the Company Termination Fee and the Reverse Termination Fee is not a penalty, but, except as set forth
in Section 8.3(e), is liquidated damages, in a reasonable amount that will compensate the Company or Parent, as the case
may be, in the circumstances in which such fee is payable, for the efforts and resources expended and opportunities foregone while negotiating
this Agreement and in reliance on this Agreement and on the expectation of the consummation of the transactions contemplated hereby,
which amount would otherwise be impossible to calculate with precision and (iii) without these agreements, the parties hereto would
not enter into this Agreement. Accordingly, if the Company or Parent, as the case may be, fails to timely pay any amount due pursuant
to this Section 8.3 and, in order to obtain such payment, either Parent or the Company, as the case may be, commences a suit
that results in a judgment against the other party for the payment of any amount set forth in this Section 8.3, such paying
party shall pay the other party its costs and expenses in connection with such suit, together with interest on such amount due pursuant
to this Section 8.3 at the annual rate of two percent (2%) plus the prime rate as published in The Wall Street Journal
in effect on the date such payment was required to be made through the date such payment was actually received, or such lesser rate
as is the maximum permitted by applicable Law. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge and
agree that nothing in this Section 8.3 shall be deemed to affect their respective rights under Section 9.12 in
order to specifically enforce this Agreement.
Article IX
GENERAL
PROVISIONS
Section 9.1 Non-Survival
of Representations, Warranties and Agreements. The representations, warranties, covenants and agreements in this Agreement and any
instrument delivered pursuant to or in connection with this Agreement by any Person shall terminate at the Effective Time or, except
as provided in Section 8.2, upon the termination of this Agreement pursuant to Section 8.1, as the case may be,
except that this Section 9.1 shall not limit any covenant or agreement of the parties hereto which by its terms contemplates
performance after the Effective Time or after termination of this Agreement, including those contained in Section 6.6 and
Section 6.9.
Section 9.2 Notices.
All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or
made (a) as of the date delivered, if delivered personally, (b) on the date the delivering party receives an affirmative confirmation
(excluding automatic acknowledgement of receipt) from the party to whom notice was intended (or if such affirmative confirmation is not
received on the day of delivery, effective on the next Business Day following the date of delivery), if delivered by email as listed
below, or (c) one (1) Business Day after being sent by overnight courier (providing proof of delivery), to the intended recipient
at the following addresses (or at such other physical or email address for a party as may be specified in a notice given in accordance
with this Section 9.2):
if to Parent or Acquisition Sub:
c/o Nordstrom, Inc.
1617 Sixth Avenue,
Seattle, Washington 98101
Phone: (206) 628-2111
Attention: Erik Nordstrom
with copies to (which shall not constitute notice) to:
Wilmer Cutler Pickering Hale & Dorr LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
E-mail: Keith.Trammell@wilmerhale.com
Michael.Gilligan@wilmerhale.com
Attention: Keith
Trammell
Michael Gilligan
and
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
E-mail: ben.schaye@stblaw.com
jmendez@stblaw.com
Attention: Benjamin
P. Schaye
Juan F. Méndez
if to the Company:
Nordstrom, Inc.