UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): December
22, 2024
NORDSTROM,
INC.
(Exact
name of registrant as specified in its charter)
| Washington |
|
001-15059 |
|
91-0515058 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
1617
Sixth Avenue, Seattle,
Washington 98101
(Address
of principal executive offices)
Registrant’s
telephone number, including area code (206)
628-2111
Inapplicable
(Former
name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
| ☐ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☒ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbol |
|
Name
of each exchange on which registered |
| Common
stock, without par value |
|
JWN |
|
New
York Stock Exchange |
| Common
stock purchase rights |
|
|
|
New
York Stock Exchange |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
ITEM 1.01
Entry into a Material Definitive Agreement
Merger
Agreement
On
December 22, 2024, Nordstrom, Inc., a Washington corporation (the “Company”), entered into an Agreement and
Plan of Merger (the “Merger Agreement”) with Norse Holdings, Inc., a Delaware corporation (“Parent”),
and Navy Acquisition Co. Inc., a Washington corporation and a direct, wholly owned subsidiary of Parent (“Acquisition Sub”).
The Merger Agreement provides that, on the terms and subject to the conditions of the Merger Agreement, Acquisition Sub will merge with
and into the Company (the “Merger”), with the Company continuing as the surviving corporation in the Merger
and becoming a wholly-owned subsidiary of Parent.
The
Company’s board of directors (the “Company Board”), acting on the unanimous recommendation of a
special committee of the Company Board consisting solely of independent and disinterested directors (the “Special
Committee”), has unanimously (with Messrs. Erik and Peter Nordstrom recusing themselves), among other things,
(i) determined and declared that the Merger Agreement and the consummation by the Company of the transactions contemplated
thereby, including the Merger, are advisable, fair to and in the best interests of the Company and its shareholders, (ii) approved
the Merger Agreement and, subject to receiving the Requisite Shareholder Approvals (as defined below), the consummation of the
transactions contemplated thereby, including the Merger, and (iii) upon the terms and subject to the conditions of the Merger
Agreement, resolved to recommend the approval of the Merger Agreement and the transactions contemplated thereby, including the
Merger, by the Company’s shareholders.
Merger
Consideration, Special Dividend and Treatment of Equity Awards
At
the effective time of the Merger (the “Effective Time”), each share of the Company’s common stock (“Company
Common Stock”) issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common
Stock owned by the Company, Parent, or their respective wholly owned subsidiaries, the shares to be contributed to Parent by El Puerto
de Liverpool S.A.B. de C.V. (“Liverpool”) and certain members of the Nordstrom family and related trusts and
investment vehicles (the “Family Group”) pursuant to the Rollover and Support Agreements (as defined below),
and shares of Company Common Stock held by shareholders who have complied with all the provisions of the Washington Business Corporation
Act concerning dissenters’ rights with respect to the Merger Agreement) will be cancelled and converted into the right to receive
$24.25 per share of Company Common Stock in cash (the “Merger Consideration”), without interest and less any
required tax withholdings.
In
addition, the Merger Agreement allows the Company to declare a special cash dividend (the “Special Dividend”),
which is contingent upon the occurrence of the closing, to holders of Company Common Stock as of a record date that is no later than
one trading day prior to the Effective Time in an amount equal to (i) $0.25 per share or (ii) if the Company cash on hand as of immediately
prior to the Effective Time after giving effect to the amount of the Special Dividend paid to the Company Common Stock and Vested Equity
Awards (as defined below) would be less than $410 million, the greatest amount less than $0.25 per share, if any, that would result in
there being $410 million in Company cash on hand as of immediately prior to the Effective Time after giving effect to payment of such
amount.
Prior
to the Effective Time, except as otherwise agreed to in writing prior to the Effective Time, by Parent, the Company, and a holder of
a Company Option, an RSU Award, or a PSU Award (each as defined below), as applicable, the Board (or any committee thereof) shall adopt
resolutions that provide that, immediately prior to the Effective Time:
| ● | each
outstanding and unexercised option to purchase shares of Company Common Stock granted under
a Company Stock Plan (as defined in the Merger Agreement) (each, a “Company Option”)
that is vested in accordance with its terms, at the Effective Time (each, a “Vested
Company Option”) shall, without any action on the part of the holder thereof,
be cancelled, and in exchange therefor, each holder of any such 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, without interest and
less any required tax withholdings, 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
(as defined in the Merger Agreement) (if the Special Dividend is declared by the Company
in accordance with the terms of the Merger Agreement) over (B) the exercise price per share
of Company Common Stock subject to such cancelled Vested Company Option; provided that, if
the exercise price per share of Company Common Stock subject to any such Vested Company Option
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 the
terms of the Merger Agreement), such Vested Company Option will be cancelled in exchange
for no consideration. 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 pursuant to the Merger Agreement, if any; |
| ● | each
Company Option that is not a Vested Company Option (the “Unvested Company Options”),
shall, 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 the
settlement terms described below) of an amount equal to, without interest and less any required
tax withholdings, 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 the terms of the Merger Agreement)
over (B) the exercise price per share of Company Common Stock subject to such cancelled Unvested
Company Option (such amounts payable, the “Converted Option Cash Award”);
provided that, if the exercise price per share of Company Common Stock subject to any such
Unvested Company Option 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 the terms of the Merger Agreement), such Unvested Company Option will
be cancelled in exchange for no consideration. 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 the Merger Agreement, if any; |
| ● | 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, an “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 the Merger Agreement (each, a “Vested Company RSU”)
shall, 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, without interest and less any required tax withholdings,
the product of (i) the number of shares of Company Common Stock subject to such Vested Company
RSU, multiplied by (ii) 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 the terms
of the Merger Agreement); |
| ● | each
outstanding RSU Award that is not a Vested Company RSU (each, an “Unvested Company
RSU”) shall, without any action on the part of the holder thereof, be cancelled
and converted into the contingent right to receive payment in cash (subject to the vesting
and timing of settlement terms described below) of an amount equal to, without interest and
less any required tax withholdings, the product of (i) the number of shares of Company Common
Stock subject to such Unvested Company RSU, multiplied by (ii) 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 the terms of the Merger Agreement) (such amounts payable, the “Converted
RSU Award”). 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; |
| ● | 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 the Merger Agreement (each, a “Vested Company
PSU” and together with the Vested Company Options and Vested Company RSUs,
the “Vested Equity Awards”) shall, 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, without interest and less any required tax withholdings, the product of (i) 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 the terms of the Merger
Agreement); |
| ● | 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, 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, without interest
and less any tax withholdings, the product of (i) 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 (ii) 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 the terms
of the Merger Agreement) (such amounts payable, the “Converted PSU Award”).
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); and |
| ● | any
portion of a PSU Award that is not a Vested Company PSU or an Unvested Company PSU as described
above will, without any action on the part of the holder thereof, be cancelled for no consideration. |
Prior
to the Effective Time, the 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 (each as defined in the Merger Agreement) 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.
Prior
to the Effective Time, the Board (or any committee thereof) shall adopt resolutions that provide that, as of the Effective Time, all Company
Stock Plans (other than the agreements underlying, and the applicable terms of the Company Stock Plans applicable to the Converted Option
Cash Awards, the Converted RSU Awards and the Converted PSU Awards, in each case, solely to the extent relevant to the terms and conditions
of the Merger Agreement) will terminate.
The
Company Stock Purchase Plan (as defined in the Merger Agreement) 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 described below. With respect to the Company Stock Purchase
Plan: (i) except for the offering period under the Company Stock Purchase Plan currently in effect, no new offering period will be authorized
or commence after the date of the Merger Agreement; (ii) no new participants will commence participation in the Company Stock Purchase
Plan after the date of the Merger Agreement; (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 of the Merger Agreement or to make separate non-payroll contributions
on or following the date of the Merger Agreement, 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”); and (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. 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 the Merger Agreement. 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.
If
the Merger is consummated, the Company Common Stock will be de-listed from The New York Stock Exchange and de-registered under the Securities
Exchange Act of 1934, as amended, as promptly as practicable following the Effective Time.
Closing
Conditions
Each
party’s obligation to consummate the Merger is conditioned upon (i) the approval of the Merger Agreement by two-thirds of the outstanding
shares of the Company Common Stock and a majority of the outstanding shares of the Company Common Stock other than shares owned by Parent,
Acquisition Sub, Liverpool, the Family Group, or their respective affiliates or by any director or officer (within the meaning of Rule
16a-1(f) of the Exchange Act) of the Company (together, the “Requisite Shareholder Approvals”), (ii) the expiration
or termination of the required waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or the grant
of early termination thereof, (iii) the absence of any then effective order issued by any court of competent jurisdiction in the United
States that prohibits, enjoins, or makes illegal the Merger, and (iv) the absence of a Below Investment Grade Rating Event (as defined
in the Merger Agreement) that has occurred and is continuing.
In
addition, the obligation of each party to consummate the Merger is conditioned upon the other party’s representations and warranties
being true and correct (subject to certain customary materiality exceptions) and the other party having performed in all material respects
its obligations under the Merger Agreement.
Non-Solicitation;
Adverse Recommendation Change
From
the date of the Merger Agreement until the earlier of the Effective Time or termination of the Merger Agreement in accordance with its
terms, the Company is subject to customary “no-shop” restrictions requiring the Company not to, among other things, initiate,
solicit, knowingly encourage or knowingly facilitate the making of any Competing Proposal (as defined in the Merger Agreement). The Company
may, however, prior to obtaining the Requisite Shareholder Approvals, engage in negotiations or substantive discussions with, or furnish
any information and other access to, a third party that has made a Competing Proposal that did not result from a material breach of the
non-solicitation provisions 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 (as defined in the Merger Agreement) or could reasonably be expected to lead to a Superior Proposal.
At
any time prior to obtaining the Requisite Shareholder Approvals, the Company Board (acting on the recommendation of the Special Committee)
or the Special Committee may, in certain circumstances, make an Adverse Recommendation Change (as defined in the Merger Agreement) or
terminate the Merger Agreement to enter into a Superior Proposal, subject to complying with specified notice requirements to Parent and
other conditions set forth in the Merger Agreement, including paying a termination fee to Parent in specified circumstances, as described
below. Furthermore, in the event that the Company Board or the Special Committee makes an Adverse Recommendation Change, unless the Merger
Agreement is terminated in accordance with its terms, the Company is required to submit the Merger Agreement to the Company’s shareholders
for approval.
Termination
and Specific Performance
Either
the Company or Parent may terminate the Merger Agreement if, subject to certain limitations, (i) the Merger is not consummated on or
before September 22, 2025 (the “Outside Date”), (ii) any court of competent jurisdiction in the United States
has issued or entered any order permanently restraining, enjoining or otherwise prohibiting the Merger, and such order has become final
and non-appealable, (iii) the Requisite Shareholder Approvals have not been obtained at the meeting of shareholders at which the
Merger Agreement was voted upon, (iv) a Below Investment Grade Rating Event has occurred and is continuing (provided neither the Company
nor Parent shall have the right to terminate for a Below Investment Grade Rating Event until 45 days following the occurrence of the
Below Investment Grade Rating Event), or (v) the other party materially breaches its representations, warranties or covenants in the
Merger Agreement, subject in certain cases to the right of the breaching party to cure the breach. The Company also has the right to
terminate the Merger Agreement, subject to certain limitations, in order to enter into a definitive agreement with respect to a Superior
Proposal or if Parent fails to consummate the Merger in specified circumstances following the satisfaction or waiver of the applicable
closing conditions. Parent also has the right to terminate the Merger Agreement prior to the Company obtaining the Requisite Shareholder
Approvals within ten business days of an Adverse Recommendation Change.
The
Company will be required to pay to Parent a termination fee equal to (i) $85 million if the Merger Agreement is validly terminated by
Parent due to an Adverse Recommendation Change or (ii) $42.5 million if the Merger Agreement is validly terminated by the Company
to enter into a definitive agreement with respect to a Superior Proposal or by the Company or Parent due to a failure to achieve the
Requisite Shareholder Approvals if a Competing Proposal has been publicly announced and within twelve months following such termination
the Company either consummates such Competing Proposal or enters into a definitive agreement for such Competing Proposal that is subsequently
consummated.
Parent
will be required to pay to the Company a termination fee equal to (i) $170 million if the Merger Agreement is validly terminated by the
Company due to Parent materially breaching its representations, warranties or covenants in the Merger Agreement, subject in certain cases
to a cure right, or due to Parent failing to consummate the Merger in specified circumstances following the satisfaction or waiver of
the applicable closing conditions, or by either the Company or Parent in specified circumstances when the Company had the right to terminate
the Merger Agreement for the foregoing reasons or (ii) $100 million if the Merger Agreement is validly terminated by either the Company
or Parent due to a Below Investment Grade Rating Event or by either the Company or Parent in specified circumstances when a Below Investment
Grade Rating Event has occurred and is continuing.
Payment
of the termination fees described above will limit the liability of the Company or Parent and Acquisition Sub under the Merger Agreement,
except that each party is entitled to damages in the event of an intentional breach of the Merger Agreement or other transaction documents,
reimbursement of expenses to enforce such payments, interest on unpaid amounts, and reimbursement of expenses and indemnification related
to the Company’s financing cooperation. Each party’s maximum liability following termination of the Merger Agreement is limited
to $300 million, except for reimbursement of enforcement costs, interest, and reimbursement of expenses and indemnification related to
the Company’s financing cooperation.
The
Merger Agreement also provides that the Company, on the one hand, and Parent and Acquisition Sub, on the other hand, may
specifically enforce the obligations of the other party under the Merger Agreement, except that the Company may only cause Parent to
consummate the Merger and Liverpool to provide the contribution under its equity commitment letter described below if certain conditions are satisfied, including the availability
of at least $450 million (or lesser amounts in certain circumstances) in gross proceeds of Parent's debt financing described below and
Company cash on hand of at least $410 million plus the amount of the Special Dividend to be paid to the holders of Company Common
Stock and Vested Equity Awards minus the amount of unreimbursed expenses and costs incurred in connection with the Company’s
financing cooperation (the “Company Cash Amount”).
Representations,
Warranties and Covenants
The
Merger Agreement contains customary representations, warranties and covenants of the Company, Parent and Acquisition Sub. From the date
of the Merger Agreement until the earlier of the Effective Time or the termination of the Merger Agreement in accordance with its terms,
the Company is required to, and is required to cause each of its subsidiaries to, (i) use commercially reasonable efforts to conduct
its operations in all material respects in the ordinary course of business and preserve intact its business in all material respects
and (ii) refrain from taking certain specified actions without Parent’s consent. Under the Merger Agreement, each of the Company,
Parent and Acquisition Sub has also agreed to (and cause certain of their affiliates to) use their respective reasonable best efforts
to consummate and make effective the transactions contemplated by the Merger Agreement, including the Merger. The Merger Agreement also
contains representations and warranties of Parent and Acquisition Sub and covenants of the Company, Parent and Acquisition Sub relating
to the rating agencies that rate the Company’s senior notes.
Financing
and Limited Guaranties
Parent
has delivered to the Company (i) an equity commitment letter from Liverpool pursuant to which Liverpool has committed, on the terms and
subject to the conditions set forth therein, to invest certain amounts in Parent, and (ii) a debt commitment letter from certain financing
sources named therein, pursuant to which such financing sources have committed, on the terms and subject to the conditions set forth
therein, to provide financing in the amounts set forth therein to Acquisition Sub. The Company is an express and intended third-party
beneficiary of the equity commitment letter and is entitled to specifically enforce Liverpool’s obligations thereunder, on the
terms and subject to the conditions set forth therein.
In
addition, Liverpool and certain members of the Family Group have guaranteed, on a several basis and on the terms and subject to the conditions
set forth therein, the payment and performance of certain obligations of Parent under the Merger Agreement, including payment of the
termination fees described above, damages for intentional breach, reimbursement of enforcement costs under the Merger Agreement and the
applicable limited guaranty, interest on unpaid amounts, and reimbursement of expenses and indemnification related to the Company’s
financing cooperation described below.
The
Merger Agreement also provides that the Company is required to use its reasonable best efforts, at Parent’s sole cost and expense,
to provide customary cooperation reasonably requested by Parent or Acquisition Sub to assist Liverpool, Parent or Acquisition Sub in
connection with their efforts to obtain Parent’s debt financing, and to the extent applicable, the debt financing expected to be
incurred to partially fund Liverpool’s contribution to Parent, and any Company Note Offer and Consent Solicitation or Notes Enhancement
(each as defined below), subject to certain limitations.
Between
the date of the Merger Agreement and the Effective Time, Parent may (or at Parent’s request the Company shall) commence and conduct
any of (1) a consent solicitation with respect to amendments of the Company’s senior notes and debentures and related indentures
(a “Consent Solicitation”), (2) an offer to exchange any or all of the Company’s outstanding senior notes
for new securities of the Company (an “Offer to Exchange” and together with the Consent Solicitation, a “Company
Note Offer and Consent Solicitation”) or (3) granting guarantees by the Company’s subsidiaries to the Company’s
senior notes and debentures (a “Notes Guarantee”).
The
Merger Agreement also requires that, as promptly as reasonably practicable after the date of the Merger Agreement, Parent shall (or,
at Parent’s request, the Company shall) use reasonable best efforts to secure the Company’s senior notes and debentures with
a second lien on the Company’s current assets and related collateral and a first lien on the Company’s other assets (excluding
real estate), which shall only become effective upon the closing of the Merger at the Effective Time (the “Notes Security
Grant” and together with the Notes Guarantee, the “Notes Enhancements”).
Parent
is responsible for preparing any documents related to any Company Note Offer and Consent Solicitation or any Notes Enhancement, and Parent
must pay all fees, costs and expenses in connection with any Company Note Offer and Consent Solicitation and any Notes Enhancements.
Each Company Note Offer and Consent Solicitation and Notes Enhancements will be conducted on terms and conditions that are proposed by
Parent and reasonably acceptable to the Company (other than certain terms that are determined by Parent after consultation with the Company).
Parent must promptly reimburse the Company for any costs and expenses of cooperating with Parent in any Company Note Offer and Consent
Solicitation or Notes Enhancement. In the event of a Successful Note Offer (as defined in the Merger Agreement), any Below Investment
Grade Rating Event will be deemed to have not occurred or be continuing for any series of senior notes for all purposes under the Merger
Agreement, including for purposes of the condition and termination right described above.
Other
Matters
In
connection with the execution of the Merger Agreement, the Company Board approved the formation of a group composed of the Family
Group, Liverpool, Parent and Acquisition Sub and a group composed of the members of the Family Group who are parties to the limited
guaranty described above for purposes of Section 23B.19.040(1) of the Washington Business Corporation Act. The Company also entered
into letter agreements with each group that provides that such groups shall be disbanded for purposes of such statute five (5)
business days after the valid termination of the Merger Agreement and the limited guaranty, respectively.
The
foregoing description of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement does not purport
to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Merger Agreement, which is filed
as Exhibit 2.1 hereto and is incorporated herein by reference.
The
Merger Agreement and the foregoing description thereof have been included to provide shareholders with information regarding the terms
of the Merger Agreement and are not intended to provide any other factual information about the parties to the Merger Agreement or their
respective subsidiaries or affiliates. The representations, warranties, covenants and agreements contained in the Merger Agreement were
made only for purposes of the Merger Agreement and as of specific dates set forth therein, are solely for the benefit of the parties
to the Merger Agreement and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating
the Merger Agreement. The subject matter of the representations and warranties may change after the date of the Merger Agreement, which
subsequent information may or may not be fully reflected in the Company’s public disclosures. In addition, certain representations
and warranties were used for the purpose of allocating risk between the parties to the Merger Agreement, rather than establishing matters
of fact. The representations and warranties may also be subject to a contractual standard of materiality different from what might be
viewed as material to shareholders or the standards of materiality generally applicable to the Company and its reports and documents
filed with the U.S. Securities and Exchange Commission (the “SEC”), and in some cases were qualified by confidential
disclosures that were made by each party to the others, which disclosures are not reflected in the Merger Agreement. Shareholders are
not third-party beneficiaries under the Merger Agreement except to the extent stated expressly therein and should not rely on the representations,
warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of
any party to the Merger Agreement.
Rollover
and Support Agreements
On
December 22, 2024, in connection with the Company’s execution of the Merger Agreement, (i) the Family Group and (ii) Liverpool
entered into Rollover, Voting and Support Agreements (the “Rollover and Support Agreements”) with Parent and
the Company, pursuant to which the shareholders have agreed, among other things, to vote their shares of Company Common Stock in favor
of the approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, in favor of any proposal by
the Company to adjourn, recess or postpone any meeting of the shareholders to a later date that complies with the Merger Agreement, in
favor of any other proposal considered and voted upon by shareholders of the Company necessary for the consummation of the Merger and
the other transactions contemplated by the Merger Agreement, and against any other proposal that would reasonably be expected to result
in any of the conditions to the consummation of the Merger under the Merger Agreement not being fulfilled or impede, frustrate, interfere
with, delay, postpone or adversely affect the Merger and the other transactions contemplated by the Merger Agreement.
The
Rollover and Support Agreements also prohibit the transfer of Company Common Stock by the Family Group and Liverpool (subject to certain
exceptions) and require the Family Group and Liverpool to explore in good faith the possibility of supporting any Competing Proposal
received by the Company (provided that the decision whether to support the Competing Proposal is within each shareholder’s sole
discretion), use reasonable best efforts to consummate the transactions contemplated by the Merger Agreement, make certain agreements
related to information about such shareholder relating to the proxy statement for the approval of the Merger Agreement and the related
Schedule 13E-3, refrain from taking certain actions relating to the rating agencies that rate the Company’s senior notes, and take,
and refrain from taking, actions that Parent is required to cause such shareholders to take, or refrain from taking, under the Merger
Agreement.
In
addition, under the Rollover and Support Agreements, immediately prior to the Effective Time, the Family Group will contribute to Parent
substantially all of its respective holdings of Company Common Stock, and Liverpool will contribute to Parent all of its respective holdings
of Company Common Stock, in exchange for common stock of Parent. As a result of the Merger, the shares of Company Common Stock contributed
to Parent will be cancelled and extinguished without any conversion thereof or consideration paid therefor.
The
foregoing description of the Rollover and Support Agreements and the transactions contemplated thereby does not purport to be complete,
and is subject to, and qualified in its entirety by reference to, the full text of the Rollover and Support Agreements, which are attached
as Exhibit 10.1 and Exhibit 10.2 and are each incorporated by reference herein. The Rollover and Support Agreements and the foregoing
description thereof have been included to provide shareholders with information regarding the terms of the Rollover and Support Agreements
and are not intended to provide any other factual information about the parties to the Rollover and Support Agreements or their respective
subsidiaries or affiliates. The representations, warranties, covenants and agreements contained in the Rollover and Support Agreements
were made only for purposes of the Rollover and Support Agreements and as of specific dates set forth therein, are solely for the benefit
of the parties to the Rollover and Support Agreements and are subject to important qualifications and limitations agreed to by the parties
in connection with negotiating the Rollover and Support Agreements. The subject matter of the representations and warranties may change
after the date of the Rollover and Support Agreements, which subsequent information may or may not be fully reflected in the Company’s
public disclosures. In addition, certain representations and warranties were used for the purpose of allocating risk between the parties
to the Rollover and Support Agreements, rather than establishing matters of fact. The representations and warranties may also be subject
to a contractual standard of materiality different from what might be viewed as material to shareholders or the standards of materiality
generally applicable to the Company and its reports and documents filed with the SEC. Shareholders are not third-party beneficiaries
under the Rollover and Support Agreements and should not rely on the representations, warranties, covenants and agreements, or any descriptions
thereof, as characterizations of the actual state of facts or condition of any party to the Merger Agreement.
Consent
under Revolving Credit Agreement
On
December 22, 2024, the Company and the other Guarantors in respect of that certain Revolving Credit Agreement, originally dated as of
May 6, 2022 (as amended or modified from time to time, the “Credit Agreement”), obtained a consent from Wells
Fargo Bank, National Association (the “Agent”) and certain Lenders party to the Credit Agreement to enter into
the Merger Agreement and the ancillary agreements related thereto notwithstanding anything to the contrary contained in the definition
of “Change of Control” in the Credit Agreement or the fundamental changes and transactions with affiliates covenants of the
Credit Agreement (the “Consent”).
Many
of the banking institutions that are a party to the Credit Agreement, or their affiliates, have in the past performed and may in the
future from time to time perform, investment banking, financial advisory, lending and/or commercial banking services for the Company
and certain of the Company’s subsidiaries and affiliates, for which services they have in the past received, and may in the future
receive, compensation and reimbursement of expenses.
The
foregoing description of the Consent does not purport to be complete and is qualified in its entirety by reference to the Consent, which
is filed as Exhibit 10.3 hereto and is incorporated herein by reference.
Amendment
of Shareholder Rights Agreement
The
information set forth in Item 3.03 of this Current Report on Form 8-K is incorporated into this Item 1.01 by reference.
ITEM
3.03 Material Modification to Rights of Security Holders
On
December 22, 2024, the Company and Computershare Trust Company, N.A. entered into a Third Amendment (the “Rights Agreement
Amendment”) to the Shareholder Rights Agreement (as amended, the “Rights Agreement”). The Rights
Agreement Amendment provides that (i) a group composed of the Family Group, Liverpool, Parent and Acquisition Sub shall be an Exempt
Person under the Rights Agreement until five (5) business days after the valid termination of the Merger Agreement and (ii) a group composed
of certain members of the Family Group who are guaranteeing the performance and payment of certain of Parent’s obligations under
the Merger Agreement shall be an Exempt Person under the Rights Agreement until five (5) business days after the valid termination of
the related limited guaranty.
The
foregoing description of the Rights Agreement Amendment does not purport to be complete and is qualified in its entirety by reference
to the Rights Agreement Amendment, which is filed as Exhibit 4.1 hereto and is incorporated herein by reference.
ITEM
5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers
On
December 22, 2024, the Compensation, People and Culture Committee of the Company Board (the “Compensation Committee”)
approved an amendment and restatement of the Nordstrom Supplemental Executive Retirement Plan (the “SERP”).
The SERP was amended and restated solely to remove provisions requiring the Company to fully fund accrued benefits through a trust in
the event of a change in control. In connection with such amendment and restatement of the SERP, the Compensation Committee also approved
amendments and restatements of the trust agreement applicable to the SERP and the trust agreement applicable to the Nordstrom Deferred
Compensation Plan and Nordstrom Directors Deferred Compensation Plan to remove similar provisions and address certain other administrative
matters.
ITEM
8.01 Other Events
On
December 23, 2024, the Company issued a press release announcing the execution of the Merger Agreement. A copy of the press release is
attached hereto as Exhibit 99.1 and incorporated herein by reference.
ITEM
9.01 Financial Statements and Exhibits
| Exhibit
No. |
|
Description |
| 2.1* |
|
Agreement
and Plan of Merger, dated as of December 22, 2024, by and among Norse Holdings, Inc., Navy Acquisition Co. Inc. and Nordstrom, Inc. |
| 4.1 |
|
Third
Amendment to the Shareholder Rights Agreement, dated as of December 22, 2024, by and between Nordstrom, Inc. and Computershare Trust
Company, N.A., as Rights Agent |
| 10.1 |
|
Rollover,
Voting and Support Agreement, dated as of December 22, 2024, by and among the shareholders party thereto, Norse Holdings, Inc., and
Nordstrom, Inc. |
| 10.2 |
|
Rollover,
Voting and Support Agreement, dated as of December 22, 2024, by and among El Puerto de Liverpool, S.A.B. de C.V., Norse Holdings,
Inc., and Nordstrom, Inc. |
| 10.3 |
|
Consent
under the Revolving Credit Agreement, dated as of December 22, 2024, by and among Nordstrom, Inc., Wells Fargo Bank, National Association,
the Lenders party thereto, and the Guarantors party thereto |
| 99.1 |
|
Press Release, dated as of December 23, 2024 |
| 104 |
|
Cover Page Interactive Data
File (embedded within the Inline XBRL document) |
| * | Schedules
and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company
hereby undertakes to furnish supplemental copies of any of the omitted schedules or exhibits
upon request by the SEC; provided that the Company may request confidential treatment pursuant
to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules or exhibits
so furnished. |
Additional
Information Regarding the Merger and Where to Find It
This
Current Report on Form 8-K relates to the proposed transaction (the “proposed transaction”) involving the Company,
Parent and Acquisition Sub, whereby the Company would become a wholly-owned subsidiary of Parent. This Current Report on Form 8-K does
not constitute an offer to sell or the solicitation of an offer to buy any securities of the Company or any other person or the solicitation
of any vote or approval. The Company and affiliates of the Company intend to jointly file a transaction statement on Schedule 13E-3 (the
“Schedule 13E-3”) relating to the proposed transaction, and the Company intends to file a proxy statement on
Schedule 14A relating to a special meeting of shareholders to approve the proposed transaction, each of which will be mailed or otherwise
disseminated to the shareholders of the Company entitled to vote on the proposed transaction. The Company may also file other relevant
documents with the SEC regarding the proposed transaction. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE PROPOSED
TRANSACTION, INVESTORS AND SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT REGARDING THE PROPOSED TRANSACTION
(INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO), THE SCHEDULE 13E-3 (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO), AND OTHER RELEVANT
DOCUMENTS FILED OR TO BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders may obtain free copies of the definitive proxy statement,
any amendments or supplements thereto and other documents containing important information about the Company, once such documents are
filed with the SEC, through the website maintained by the SEC at www.sec.gov. In addition, shareholders of the Company may obtain free
copies of such documents by accessing the Investor Relations portion of the Company’s website at https://nordstrom.gcs-web.com/financial-information/sec-filings.
Participants
in the Solicitation
The
Company and certain of its directors, executive officers and other employees may, under the rules of the SEC, be deemed to be participants
in the solicitation of proxies in connection with the proposed transaction. Information about the directors and executive officers of
the Company is set forth in the Company’s definitive proxy statement on Schedule 14A for the 2024 annual meeting of the shareholders
of the Company, filed with the SEC on April 11, 2024 (available here), under the sections “Corporate Governance—Director
Compensation and Stock Ownership Guidelines,” “Compensation of Executive Officers,” and “Security Ownership of
Certain Beneficial Owners and Management.” To the extent the security holdings of directors and executive officers have changed
since the amounts described in these filings, such changes are set forth on Initial Statements of Beneficial Ownership on Form 3 or Statements
of Change in Ownership on Form 4 filed with the SEC. Updated information regarding the identity of participants and their direct or indirect
interests, by security holdings or otherwise, in the Company will be set forth in the Company’s Proxy Statement on Schedule 14A
regarding the approval of the proposed transaction and other relevant documents to be filed with the SEC, if and when they become available.
These documents will be available free of charge as described above.
Cautionary
Statement Regarding Forward-Looking Statements
This
Current Report on Form 8-K contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended,
and Section 21E of the Securities Exchange Act of 1934, as amended, including, without limitation, statements regarding the anticipated
timing of the consummation of the proposed transaction. Forward-looking statements provide current expectations of future events based
on certain assumptions and include any statement that does not directly relate to any historical or current fact. Forward-looking statements
can also be identified by words such as “anticipates,” “believes,” “plans,” “expects,”
“future,” “intends,” “may,” “will,” “would,” “could,” “should,”
“estimates,” “predicts,” “potential,” “continues,” “target,” “outlook”
and similar terms and expressions, but the absence of these words does not mean that the statement is not forward-looking. Actual results
may differ significantly from management’s expectations due to various risks and uncertainties including, without limitation: (i)
the risk that the proposed transaction may not be completed in a timely manner, or at all; (ii) the failure to satisfy the conditions
to the consummation of the proposed transaction, including, without limitation, the receipt of shareholder approvals or the absence of
a Below Investment Grade Rating Event; (iii) unanticipated difficulties or expenditures relating to the proposed transaction; (iv) the
effect of the announcement or pendency of the proposed transaction on the plans, business relationships, operating results and operations;
(v) potential difficulties retaining employees, suppliers and customers as a result of the announcement and pendency of the proposed
transaction; (vi) the response of employees, suppliers and customers to the announcement of the proposed transaction; (vii) risks related
to diverting management’s attention from the Company’s ongoing business operations; (viii) legal proceedings, including those
that may be instituted against the Company, its board of directors, its executive officers or others following the announcement of the
proposed transaction; and (ix) risks regarding the failure to obtain the necessary financing or have a sufficient amount of Company cash
on hand to complete the proposed transaction or pay the full amount of the Special Dividend. In addition, a description of certain other
factors that could affect the Company’s business, financial condition or results of operations is included in the Company’s
most recent Annual Report on Form 10-K and most recent Quarterly Report on Form 10-Q filed with the SEC. Forward-looking statements reflect
the Company’s good faith beliefs, assumptions and expectations but are not guarantees of future performance or events. Readers
are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this Current Report
on Form 8-K. The Company undertakes no obligation to update any forward-looking statements to reflect events or circumstances after the
date hereof, except as may be required by law.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
| |
NORDSTROM,
INC. |
| |
(Registrant) |
| |
|
| |
/s/ Ann Munson Steines |
| |
Ann Munson Steines |
| |
Chief Legal Officer, |
| |
General Counsel and Corporate Secretary |
Date: December
23, 2024
12
Exhibit 2.1
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 |
22 |
| 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 |
29 |
| Section 4.17 |
Real and Personal Property |
31 |
| Section 4.18 |
Environmental Matters |
32 |
| Section 4.19 |
Vote Required |
32 |
| Section 4.20 |
Brokers |
32 |
| Section 4.21 |
Opinion of Financial Advisors |
33 |
| Section 4.22 |
Insurance |
33 |
| 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 |
35 |
| Section 5.3 |
No Conflict; Required Filings and Consents |
36 |
| Section 5.4 |
Litigation |
36 |
| Section 5.5 |
Absence of Certain Agreements |
37 |
| 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 |
39 |
| Section 5.12 |
Solvency |
39 |
| Section 5.13 |
Share Ownership |
39 |
| Section 5.14 |
Acknowledgment of Disclaimer of Other Representations and Warranties |
40 |
| |
|
|
ARTICLE VI
COVENANTS AND AGREEMENTS
|
| |
|
| Section 6.1 |
Conduct of Business by the Company Pending the Merger |
40 |
| Section 6.2 |
Preparation of the Proxy Statement and Schedule 13E-3; Shareholders’ Meeting |
46 |
| Section 6.3 |
Appropriate Action; Consents; Filings |
48 |
| Section 6.4 |
Access to Information; Confidentiality |
50 |
| Section 6.5 |
Non-Solicitation; Competing Proposals; Intervening Event |
51 |
| Section 6.6 |
Directors’ and Officers’ Indemnification and Insurance |
57 |
| Section 6.7 |
Notification of Certain Matters |
59 |
| Section 6.8 |
Public Announcements |
60 |
| Section 6.9 |
Employee Benefits |
60 |
| Section 6.10 |
Conduct of Business by Parent Pending the Merger |
62 |
| Section 6.11 |
Financing |
62 |
| Section 6.12 |
Financing Cooperation |
65 |
| Section 6.13 |
Acquisition Sub; Parent Parties |
71 |
| Section 6.14 |
No Control of the Company’s Business |
71 |
| Section 6.15 |
Rule 16b-3 Matters |
72 |
| Section 6.16 |
Stock Exchange Matters |
72 |
| Section 6.17 |
Shareholder Litigation |
72 |
| Section 6.18 |
Takeover Laws |
72 |
| Section 6.19 |
Repayment of Indebtedness |
73 |
| Section 6.20 |
Special Dividend |
73 |
| |
|
|
ARTICLE VII
CONDITIONS TO THE MERGER |
| |
|
|
| Section 7.1 |
Conditions to the Obligations of Each Party |
74 |
| Section 7.2 |
Conditions to Obligations of Parent and Acquisition Sub to Effect the Merger |
74 |
| Section 7.3 |
Conditions to Obligation of the Company to Effect the Merger |
75 |
| |
|
|
ARTICLE VIII
TERMINATION |
| |
|
|
| Section 8.1 |
Termination |
75 |
| Section 8.2 |
Effect of Termination |
78 |
| Section 8.3 |
Termination Fees; Expenses |
78 |
| |
|
|
ARTICLE IX
GENERAL PROVISIONS |
| |
|
|
| Section 9.1 |
Non-Survival of Representations, Warranties and Agreements |
82 |
| Section 9.2 |
Notices |
82 |
| Section 9.3 |
Interpretation; Certain Definitions |
84 |
| Section 9.4 |
Severability |
85 |
| Section 9.5 |
Assignment |
86 |
| Section 9.6 |
Entire Agreement |
86 |
| Section 9.7 |
No Third-Party Beneficiaries |
86 |
| Section 9.8 |
Amendment |
87 |
| Section 9.9 |
Extension; Waiver |
87 |
| Section 9.10 |
Expenses; Transfer Taxes |
87 |
| Section 9.11 |
Governing Law |
87 |
| Section 9.12 |
Specific Performance |
88 |
| Section 9.13 |
Consent to Jurisdiction |
89 |
| Section 9.14 |
Counterparts |
90 |
| Section 9.15 |
WAIVER OF JURY TRIAL |
90 |
Index of Defined Terms
| Acquisition Sub |
1, A-1 |
| Action |
A-1 |
| Additional Obligations |
80, A-1 |
| Adverse Recommendation Change |
53, 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 |
63, A-1 |
| Alternative Transaction Termination Fee |
A-1 |
| Anti-Corruption Laws |
19, A-1 |
| Anti-Money Laundering Laws |
A-1 |
| Antitrust Laws |
A-2 |
| 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 |
23, A-3 |
| 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 |
73, A-3 |
| Company Disclosure Letter |
A-3 |
| Company Intellectual Property Rights |
25, A-3 |
| Company IT Assets |
A-3 |
| Company Material Adverse Effect |
A-4 |
| Company Material Contract |
29, A-5 |
| Company Note Offer and Consent Solicitation |
67, A-5 |
| Company Note Offer or Consent Solicitation |
A-5 |
| Company Options |
9, A-5 |
| Company Permits |
19, A-5 |
| Company Recommendation |
A-5 |
| Company Related Parties |
80, 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 |
56, A-5 |
| Confidentiality Agreements |
A-5 |
| Consent |
18, A-5 |
| Consent Solicitation |
67, A-5 |
| Continuation Period |
60, A-5 |
| Continuing Employees |
60, A-5 |
| Contract |
A-6 |
| control |
A-6 |
| controlled by |
A-6 |
| Converted Option Cash Award |
10, A-6 |
| Converted PSU Award |
12, A-6 |
| Converted RSU Award |
11, A-6 |
| D&O Indemnified Parties |
57, A-6 |
| Debt Commitment Letter |
37, A-6 |
| Debt Financing |
37, A-6 |
| Debt Financing Sources |
A-6 |
| Debt Payoff Amount |
73, 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-4 |
| Effective Time |
3, A-6 |
| Environmental Laws |
A-7 |
| Environmental Permits |
A-7 |
| Equity Commitment Letter |
2, A-7 |
| Equity Financing |
2, A-7 |
| ERISA |
23, A-7 |
| ERISA Affiliate |
A-7 |
| Exchange Act |
A-7 |
| Exchange Fund |
6, A-7 |
| Excluded Information |
69, A-7 |
| Existing Credit Agreement |
A-7 |
| Existing D&O Insurance Policies |
58, A-7 |
| Expenses |
A-7 |
| Family Confidentiality Agreement |
A-8 |
| Family Group |
A-8 |
| 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-9 |
| Insurance Policies |
33 |
| Insurance Policy |
33, A-9 |
| Intellectual Property Rights |
25, A-9 |
| Intentional Breach |
A-9 |
| Intervening Event |
57, 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-10 |
| Malicious Code |
A-10 |
| Maximum Amount |
58, A-10 |
| Maximum Liability Amount |
A-10 |
| Merger |
1, A-10 |
| Merger Consideration |
5, A-10 |
| New Debt Commitment Letter |
63, A-10 |
| New Plans |
61, A-10 |
| Notes Enhancements |
A-10 |
| Notes Enhancements Documents |
67 |
| Notes Guarantee |
A-10 |
| Notes Security Grant |
A-10 |
| Notice of Adverse Recommendation |
54, A-10 |
| NYSE |
A-11 |
| Offer and Consent Solicitation Documents |
67, A-11 |
| Offer to Exchange |
67, A-11 |
| Old Plans |
61, A-11 |
| Open Source Software |
A-11 |
| Order |
A-11 |
| Other Required Filing |
46, A-11 |
| Outside Date |
75, A-11 |
| Owned Real Property |
A-11 |
| Pandemic |
A-11 |
| Pandemic Measures |
A-11 |
| Parent |
1, A-11 |
| Parent Disclosure Letter |
A-12 |
| Parent Material Adverse Effect |
A-12 |
| Parent Parties |
A-12 |
| Parent Party |
A-12 |
| Parent Related Parties |
79, A-12 |
| Paying Agent |
6, A-12 |
| Paying Agent Agreement |
6, A-12 |
| Payoff Letter |
73, A-12 |
| Permitted Liens |
A-12 |
| Person |
A-13 |
| Personal Data |
A-13 |
| Pre-Closing Period |
40, A-13 |
| Pre-Release Information |
65, A-13 |
| Privacy Obligations |
A-13 |
| Proxy Statement |
21, A-14 |
| PSU Award |
11, A-14 |
| Rating Agencies |
A-14 |
| Real Property |
A-14 |
| 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-15 |
| Sanctioned Person |
A-15 |
| 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 |
42, A-15 |
| Senior Notes |
A-15 |
| Shareholder Rights Agreement |
A-15 |
| Shareholders’ Meeting |
47, A-15 |
| Solvent |
39, A-15 |
| Special Committee |
1, A-16 |
| Special Dividend |
73, A-16 |
| Special Dividend Payment |
73, A-16 |
| Special Dividend Per Share Amount |
73, A-16 |
| Specified Date |
16, A-16 |
| Stock Unit |
A-16 |
| Stub Period Dividend |
41, A-16 |
| Subsidiary |
A-16 |
| Successful Note Offer |
A-2 |
| Superior Proposal |
56, A-16 |
| Surviving Corporation |
3, A-16 |
| Tail Coverage |
58, A-16 |
| Takeover Laws |
33, A-16 |
| Tax |
A-16 |
| Tax Group |
A-16 |
| Tax Returns |
A-16 |
| Taxes |
A-16 |
| Third Party |
A-17 |
| Trade Controls |
20, A-17 |
| trade war |
A-4 |
| Transaction Documents |
A-17 |
| Transfer Taxes |
A-17 |
| Treasury Regulations |
A-17 |
| under common control with |
A-6 |
| 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 |
11, A-17 |
| Vested RSU Payments |
10, 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, 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 |
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.
1617 Sixth Avenue
Seattle, Washington, 98101
| |
E-mail: |
Ann.Steines@nordstrom.com |
| |
Attention: |
Ann Munson Steines, Chief Legal Officer, General Counsel and Corporate Secretary |
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
1001 Page Mill Road Building 1
Palo Alto, California 94304
Phone: (650) 565-7000
| |
Email: |
dzaba@sidley.com |
| |
Attention: |
Derek Zaba |
and
Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
Phone: (312) 853-7000
| |
Email: |
ggerstman@sidley.com |
| |
|
swilliams@sidley.com |
| |
Attention: |
Gary Gerstman |
| |
|
Scott R. Williams |
For purposes of clarity, any notice required to
be provided to Acquisition Sub shall be deemed provided when made to Parent, subject to compliance with the other procedures set forth
in this Section 9.2.
Section 9.3
Interpretation; Certain Definitions.
(a)
The parties hereto have participated jointly in the negotiation and drafting of this Agreement, which each party acknowledges is
the result of extensive negotiations between the parties. In the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this Agreement.
(b)
Disclosure of any fact, circumstance or information in any section of the Company Disclosure Letter or Parent Disclosure Letter
shall be deemed to be disclosure of such fact, circumstance or information with respect to any other section of the Company Disclosure
Letter or Parent Disclosure Letter, respectively, if it is reasonably apparent on the face of such disclosure that such disclosure relates
to any such other section. The inclusion of any item in the Company Disclosure Letter or Parent Disclosure Letter shall not be deemed
to be an acknowledgment that the information is required to be disclosed or admission or evidence of materiality of such item, nor shall
it establish any standard of materiality for any purpose whatsoever.
(c) The words
“hereof,” “herein,” “hereby,” “hereunder” and “herewith” and words of
similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The use of the word
“or” shall not be exclusive, unless context requires otherwise. The word “extent” in the phrase “to
the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply
“if.” References to articles, sections, clauses, paragraphs, exhibits, annexes and schedules are to the articles,
sections, clauses and paragraphs of, and exhibits, annexes and schedules to, this Agreement, unless otherwise specified, and the
table of contents and headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words “include,” “includes” or “including” (and
words of similar meaning) are used in this Agreement, they shall be deemed to be followed by the phrase “without
limitation.” Words describing the singular number shall be deemed to include the plural and vice versa, words denoting any
gender shall be deemed to include all genders, words denoting natural persons shall be deemed to include business entities and vice
versa, and references to a Person are also to its permitted successors and assigns. The phrases “the date of this
Agreement” and “the date hereof” and terms or phrases of similar import shall be deemed to refer to immediately
prior to the execution and delivery of this Agreement, unless the context requires otherwise. Terms defined in the text of this
Agreement have such meaning throughout this Agreement, unless otherwise indicated in this Agreement, and all terms defined in this
Agreement shall have the meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise
defined therein. Any Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law
and to any rules or regulations promulgated thereunder (in the case of a statute) as from time to time amended, modified or
supplemented, including (in the case of statutes) by succession of comparable successor Laws (provided that for purposes of
any representations and warranties contained in this Agreement that are made as of a specific date or dates, references to any
statute shall be deemed to refer to such statute, as amended, and to any rules or regulations promulgated thereunder, in each case,
as of such date). All references to “dollars” or “$” refer to currency of the United States of America. All
references to “U.S.” or the “United States” are to the United States of America, including its territories
and possessions. Any reference to “days” means calendar days unless Business Days are expressly specified. When
calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this
Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is
not a Business Day, the period shall end on the next succeeding Business Day.
(d) Unless otherwise
specified, the words “made available to,” “delivered to” or “disclosed to” (or words of similar
import) (i) Parent or Acquisition Sub include the documents (a) posted to the VDR, or otherwise provided to Parent or its
Representatives in response to a due diligence request from Parent or its Representatives or otherwise, prior to 8:00 p.m. (New York
City time) on the day immediately preceding the date of this Agreement or (b) included as an exhibit to the Company SEC Documents
filed with, or furnished to, the SEC by the Company prior to the date of this Agreement and (ii) the Company include the documents
provided to the Company or its Representatives prior to 8:00 p.m. (New York City time) on the day immediately preceding the date of
this Agreement. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree that the Financing, the
Rollover, the Liverpool Debt Financing, and any Company Note Offers or Consent Solicitation is the responsibility of Parent and
Acquisition Sub and not the Company or any Subsidiary of the Company and that (A) the Company makes no representations or warranties
relating to the Financing, the Rollover, the Liverpool Debt Financing, any Company Note Offer and Consent Solicitation or any Notes
Enhancement (including whether the Company has authorized the Financing, the Rollover, the Liverpool Debt Financing, any Company
Note Offer and Consent Solicitation or any Notes Enhancement or whether any of the transactions contemplated by the Financing, the
Rollover, the Liverpool Debt Financing, any Company Note Offer and Consent Solicitation or any Notes Enhancement conflict with or
violate any obligation of the Company or any Subsidiary of the Company or Contract to which the Company or any Subsidiary of the
Company is a party), (B) except for Section 6.12, none of the covenants of the Company in this Agreement require the Company
to take any action relating to the Financing, the Rollover, the Liverpool Debt Financing, any Company Note Offer and Consent
Solicitation or any Notes Enhancement and (C) for purposes of the representations and warranties and covenants and obligations of
the Company hereunder, the transactions contemplated by this Agreement shall not include the Financing, the Rollover, the Liverpool
Debt Financing, any Company Note Offer and Consent Solicitation or any Notes Enhancement. Reference to “other party
hereto” or “other parties hereto” when derived from the Company shall mean Parent and Acquisition Sub and shall
mean the Company when derived from either Parent or Acquisition Sub.
Section 9.4
Severability. If any term, provision, covenant or restriction of this Agreement or the application thereof to any Person
or circumstance is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, so long as the economic and legal substance of the transactions contemplated by
this Agreement is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the Merger be consummated
as originally contemplated to the fullest extent possible.
Section 9.5
Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated,
in whole or in part, by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the
other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the
parties hereto and their respective permitted successors and assigns. Any attempted assignment in violation of this Section 9.5
shall be null and void.
Section 9.6
Entire Agreement. This Agreement (including the exhibits, annexes and appendices hereto) constitutes, together with the
other Transaction Documents, the entire agreement, and supersedes all other prior agreements and understandings, both written and oral,
among the parties hereto, or any of them, with respect to the subject matter hereof. Parent and Acquisition Sub acknowledge that an Intentional
Breach of a Transaction Document by any of the Parent Parties shall constitute an Intentional Breach of Parent and Acquisition Sub under
this Agreement.
Section 9.7 No
Third-Party Beneficiaries. Parent, Acquisition Sub and the Company hereby agree that their respective representations,
warranties and covenants set forth in this Agreement are solely for the benefit of the other parties to this Agreement and are not
intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder (including the right
to rely upon the representations and warranties set forth in this Agreement), except for (a) Article III, which, after the
Closing, shall be for the benefit of any Person entitled to payment thereunder, (b) Section 6.6 (Directors’ and
Officers’ Indemnification and Insurance), which, after the Effective Time, shall be for the benefit of each D&O
Indemnified Party, such D&O Indemnified Party’s heirs, executors or administrators and each D&O Indemnified
Party’s representatives, (c) with respect to Section 8.3, the Parent Related Parties and the Company Related Parties,
respectively, as it relates to the provisions specifically attributable to such Persons, (d) the rights of Affiliates and
Representatives of the Company and its Subsidiaries to reimbursement and indemnification under Section 6.12 (Financing
Cooperation) and (e) the right of the Company, on behalf of holders of shares of Company Common Stock, Vested Company Options,
Vested Company RSUs and Vested Company PSUs (each of whom shall be an express third-party beneficiary of this Agreement to the
extent required for this clause (e) to be enforceable) to pursue claims for damages, costs, expenses and liabilities of
any kind suffered such persons in the event of an Intentional Breach of this Agreement by Parent or Acquisition Sub and other
relief, including equitable relief, for a breach by Parent or Acquisition Sub of its obligations under this Agreement (provided that
such holders shall not be entitled to pursue such damages, costs, expenses, liabilities or other relief on their own behalf). The
parties agree that the rights of third-party beneficiaries under clauses (a) and (b) of this Section 9.7
shall not arise unless and until the Effective Time occurs. Each of the Persons identified in clauses (a) through (e)
of this Section 9.7 shall be an express third-party beneficiary of this Agreement in accordance with such clauses and the
provisions referenced therein; provided that the Persons named in clause (a) or (b) of this Section
9.7 shall be entitled to enforce their rights under this Agreement. In the event of an Intentional Breach, the breaching party
shall be fully liable for any and all damages, costs, expenses, liabilities of any kind suffered by the other party, which the
parties acknowledge and agree shall not be limited to reimbursement of expenses or out-of-pocket costs and which, in the case of an
Intentional Breach by a Parent Party, shall include, in addition to any other remedies available at law or in equity, a payment from
Parent or Acquisition Sub in an amount representing, or based on the loss of, the premium the shareholders of the Company would be
entitled to receive pursuant to the terms of this Agreement if the Merger were consummated in accordance with the terms hereof, and
if, pursuant to the foregoing, the Company is entitled to receive any such payment, the Company shall be entitled to enforce
Parent’s and Acquisition Sub’s payment obligation and, upon receipt of any such payment, the Company shall be entitled
to retain the amount of such payment so received, in each case, as contemplated by Section 261(a)(1) of the Delaware General
Corporation Law as if it were applicable to the Company, but subject to Section 8.3(f) and Section 8.3(g). The
representations and warranties in this Agreement are the product of negotiations among the parties hereto and are for the sole
benefit of the parties hereto. Any inaccuracies in such representations and warranties may be subject to waiver by the parties
hereto in accordance with Section 9.9 without notice or liability to any other Person. In some instances, the representations
and warranties in this Agreement may represent an allocation among the parties hereto of risks associated with particular matters
regardless of the knowledge of any of the parties hereto. Consequently, Persons other than the parties hereto may not rely upon the
representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this
Agreement or as of any other date. Notwithstanding anything in this Agreement to the contrary, Parent, Acquisition Sub and the Company
agree that the Debt Financing Sources and the Liverpool Debt Financing Sources are express third party beneficiaries of, and may enforce,
any of the provisions of this Section 9.7, Section 9.8, Section 9.11, Section 9.13 and Section 9.15
and that such Sections (and any other provision of this Agreement to the extent an amendment, supplement, waiver or other modification
of such provision would modify the substance of such Sections) may not be amended in a manner materially adverse to the Debt Financing
Sources or Liverpool Debt Financing Sources without the written consent of the parties to the Debt Commitment Letter or the parties to
the Liverpool Debt Commitment Letter, as applicable.
Section 9.8
Amendment. This Agreement may be amended by mutual agreement of the Company and Parent at any time before or after receipt
of the Requisite Shareholder Approvals; provided that (a) after the Requisite Shareholder Approvals have been obtained, there shall
not be any amendment that by Law or in accordance with the rules of any stock exchange requires further approval by the shareholders of
the Company without such further approval of such shareholders; (b) any amendment to this Section 9.8 or Section 8.3, Section
9.4, Section 9.5, Section 9.6, Section 9.7, Section 9.11, Section 9.13 or Section 9.15 or
any defined term used therein (or any other provisions of this Agreement to the extent that such amendment would modify the substance
of any of the foregoing Sections or any defined terms used therein), in each case to the extent such amendment would adversely affect
the rights of a Debt Financing Source or Liverpool Debt Financing Source under such Section, shall also be approved by such parties to
the Debt Commitment Letter or the parties to the Liverpool Debt Commitment Letter, as applicable; and (c) no amendment shall be made to
this Agreement after the Effective Time. Any such amendment shall be valid only if set forth in an instrument in writing signed by each
of the parties hereto.
Section 9.9
Extension; Waiver. At any time prior to the Effective Time, subject to applicable Law, any party hereto may (a) extend the
time for the performance for its benefit of any obligation or other act of any other party hereto, (b) waive any breach or inaccuracy
in the representations and warranties made to it by another party contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any agreement or condition for its benefit contained herein; provided that after obtaining the Requisite
Shareholder Approvals, there shall be no extension of or waiver under this Agreement that by Law or in accordance with the rules of any
stock exchange require further approval by the shareholders of the Company without such further approval of such shareholders. Any such
extension or waiver shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby. Notwithstanding
the foregoing, no failure or delay by the Company, Parent or Acquisition Sub in exercising any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
Section 9.10
Expenses; Transfer Taxes. Except as expressly set forth herein (including the following sentence), all Expenses shall be
paid by the party incurring such Expenses, whether or not such transactions are consummated; provided that Parent shall pay all
costs and Expenses in connection with the filings of the notification and report forms under any Antitrust Laws, and any other notices,
filings or similar actions to obtain any other Consent of any Governmental Authority, in each case, in connection with the transactions
contemplated by this Agreement. Parent or the Company, as applicable, shall timely and duly pay all Transfer Taxes.
Section 9.11 Governing
Law.
(a)
Except to the extent the Laws of the State of Washington are mandatorily applicable to the Merger (including under Chapter 23B.13
of the WBCA) and any other transactions contemplated by this Agreement, this Agreement and all Actions (whether based on Contract, tort
or otherwise) arising out of or relating to this Agreement or the actions of Parent, Acquisition Sub or the Company in the negotiation,
administration, performance and enforcement thereof, shall be governed by, and construed in accordance with the laws of the State of Delaware,
without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
(b)
Notwithstanding anything to the contrary contained in this Agreement, each of the parties hereto: (i) agrees that it will not bring
or support any Person in any Action before any Governmental Authority of any kind or description, whether at law or in equity, whether
in contract or in tort or otherwise, against any of the Debt Financing Sources or the Liverpool Debt Financing Sources in any way relating
to this Agreement or any of the transactions contemplated by this Agreement, including any dispute arising out of or relating in any way
to the Debt Financing or the performance thereof or the financings contemplated thereby, in any forum other than the United States Federal
and New York State courts located in New York County, State of New York and (ii) agrees that, except as specifically set forth in the
Debt Commitment Letter, all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any of the
Debt Financing Sources or the Liverpool Debt Financing Sources in any way relating to this Agreement, the Debt Financing, the Liverpool
Debt Financing or the performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State
of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York.
Section 9.12
Specific Performance.
(a) The parties hereto
acknowledge and agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would
occur in the event that the parties hereto do not perform the provisions of this Agreement (including failing to take such actions
as are required of them hereunder to consummate this Agreement) in accordance with its specified terms or otherwise breach such
provisions. Accordingly, the parties hereto acknowledge and agree that the parties hereto shall be entitled to an injunction,
specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce
specifically the terms and provisions hereof, including the right of a party hereto to cause the other parties hereto to consummate
the Merger and the other transactions contemplated by this Agreement (subject to the immediately succeeding sentence), in addition
to any other remedy to which they are entitled at law or in equity. Notwithstanding the foregoing, it is explicitly agreed that the
right of the Company to an injunction, specific performance or other equitable remedies (i) to enforce Parent’s and
Acquisition Sub’s obligations to consummate the Merger and (ii) to enforce Liverpool’s obligation to provide the Equity
Financing, in each case shall be subject to the following additional requirements: (A) all conditions set forth in Section
7.1 and Section 7.2 (other than those conditions that by their terms are capable of being satisfied only on the Closing
Date, but subject to the satisfaction or, if permissible, waiver of such conditions by the party entitled to waive such conditions)
have been satisfied (or waived), (B) the Debt Financing has been funded or would be funded at the Closing in accordance with the
terms of the Debt Commitment Letter if the Equity Financing is funded, in each case in an amount that would result in gross proceeds
of at least the Funded Debt Amount; (C) the Company Cash on Hand is at least the Company Cash Amount (minus the net proceeds
of any Alternative Financing arranged in respect of clause (ii) of Section 6.11(d)), (D) the Company has confirmed in a
written notice that (i) the Company is ready, willing and able to consummate the Closing and (ii) if specific performance is granted
and the Equity Financing and the portion of the Debt Financing that would result in gross proceeds of at least the Funded Debt
Amount are funded, then the Company would take such actions required of it by this Agreement to cause the Closing to occur and (E)
Parent and Acquisition Sub have failed to effect the Closing prior to the earlier of the third (3rd) Business Day following the
delivery of such confirmation specified in clause (D) above and one (1) Business Day before the Outside Date. Each of
the parties hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on
the basis that any other party has adequate remedy at law or that any award of specific performance is not an appropriate remedy for
any reason at law or in equity. Any party seeking an injunction or any other equitable relief to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement shall not be required to show proof of actual damages or
provide any bond or other security in connection with any such Order.
(b)
To the extent any party hereto brings an Action to specifically enforce the performance of the terms and provisions of this Agreement
(other than an Action to enforce specifically any provision that expressly survives the termination of this Agreement) or to specifically
enforce the Equity Commitment Letter or the Rollover and Support Agreements, the Outside Date shall automatically be extended to (i) the
twentieth (20th) Business Day following the later of the resolution of such Action and the resolution of any Action brought in another
jurisdiction seeking enforcement of such Action or (ii) such other time period established by the court presiding over such Action. In
the event that the condition set forth in Section 7.1(d) was satisfied at the time that an Action was brought to seek specific
performance of Parent’s obligation to effect a Closing, Parent and Acquisition Sub shall not subsequently be permitted to assert
the failure of such condition and Parent shall not be entitled to terminate this Agreement pursuant to Section 8.1(b)(iv).
(c) Each of the parties
hereto agrees that nothing set forth in this Agreement shall require a party to institute any Action for (or limit a party’s
right to institute any Action for) specific performance under this Section 9.12 prior, or as a condition, to exercising any
termination right under Article VIII (and pursuing damages after such termination), nor shall the commencement of any Action
seeking remedies pursuant to this Section 9.12 or anything set forth in this Section 9.12 restrict or limit a
party’s right to terminate this Agreement in accordance with the terms of Article VIII or pursue any other remedies
under this Agreement that may be available then or thereafter, provided, however, that under no circumstances will either
party be permitted or entitled to receive both (x) a grant of specific performance that results in the occurrence of the Closing and
(y) monetary damages, including the applicable Reverse Termination Fee or Company Termination Fee.
Section 9.13
Consent to Jurisdiction.
(a)
Each of the parties hereto hereby (a) expressly and irrevocably submits to the exclusive personal jurisdiction of the state courts
of the Delaware Court of Chancery, any other court of the State of Delaware or any federal court sitting in the State of Delaware, in
the event any dispute arises out of this Agreement or the transactions contemplated hereby, (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from any such court, (c) agrees that it will not bring any Action
relating to this Agreement or the transactions contemplated hereby in any court other than the Delaware Court of Chancery, any other court
of the State of Delaware or any federal court sitting in the State of Delaware, (d) waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue of any Action arising out of or relating to this Agreement
and (e) agrees that each of the other parties hereto shall have the right to bring any Action for enforcement of a judgment entered by
the state courts of the Delaware Court of Chancery, any other court of the State of Delaware or any federal court sitting in the State
of Delaware. Each of Parent, Acquisition Sub and the Company agrees that a final judgment in any Action shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Notwithstanding anything in this Agreement
to the contrary, the Company and Parent, their respective Subsidiaries and each of their controlled Affiliates and each Parent Related
Party, hereby: (i) agree that any Action, whether in law or in equity, whether in contract or in tort or otherwise, brought against the
Debt Financing Sources or the Liverpool Financing Sources, arising out of or relating to, this Agreement or the transactions contemplated
by this Agreement, including the Debt Financing and the Liverpool Debt Financing, shall be subject to the exclusive jurisdiction of any
federal or state court in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate
court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action to the exclusive jurisdiction
of such court, (ii) agree that any such Action shall be governed by the laws of the State of New York (without giving effect to any conflicts
of law principles that would result in the application of the laws of another state), except as otherwise provided in any agreement relating
to the Debt Financing or the Liverpool Debt Financing and except to the extent relating to the interpretation of any provisions in this
Agreement (including any provision in the Debt Commitment Letter or the Liverpool Debt Commitment Letter or in any definitive documentation
related to the Debt Financing or the Liverpool Debt Financing that expressly specifies that the interpretation of such provisions shall
be governed by and construed in accordance with the law of the State of Washington) and (iii) agree that none of the Debt Financing Sources
or Liverpool Financing Sources shall have any liability to any Company Related Party relating to or arising out of this Agreement, the
Debt Financing or the Liverpool Debt Financing (other than obligations to the Company or its Subsidiaries arising at or after the Effective
Time).
(b) Each
party irrevocably consents to the service of process outside the territorial jurisdiction of the courts referred to in Section
9.13(a) in any such Action by mailing copies thereof by registered or certified United States mail, postage prepaid, return
receipt requested, to its address as specified in or pursuant to Section 9.2. However, the foregoing shall not limit the
right of a party to effect service of process on the other party by any other legally available method.
Section 9.14
Counterparts. This Agreement may be executed in multiple counterparts, all of which shall together be considered one and
the same agreement. Delivery of an executed signature page to this Agreement by electronic transmission shall be as effective as delivery
of a manually signed counterpart of this Agreement.
Section 9.15
WAIVER OF JURY TRIAL. EACH OF PARENT, ACQUISITION SUB AND THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE MERGER, ANY OF THE OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE ACTIONS OF PARENT, ACQUISITION SUB OR THE COMPANY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9.15; PROVIDED, THAT NOTWITHSTANDING ANYTHING IN THIS AGREEMENT
TO THE CONTRARY, PARENT, ACQUISITION SUB AND THE COMPANY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVES TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW TRIAL BY JURY IN ANY SUCH ACTION BROUGHT AGAINST THE DEBT FINANCING SOURCES OR THE LIVERPOOL DEBT FINANCING SOURCES
IN ANY WAY ARISING OUT OF OR RELATING TO, THIS AGREEMENT, THE DEBT COMMITMENT LETTER OR THE DEBT FINANCING OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
[Remainder of page intentionally left blank;
signature page follows.]
IN WITNESS WHEREOF, Parent,
Acquisition Sub and the Company have caused this Agreement to be executed as of the date first written above by their respective officers
thereunto duly authorized.
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NORSE HOLDINGS, INC. |
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By: |
/s/ Erik B. Nordstrom |
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Name: |
Erik B. Nordstrom |
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Title: |
Co-Chief Executive Officer |
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NAVY ACQUISITION CO. INC. |
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|
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By: |
/s/ Erik B. Nordstrom |
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|
Name: |
Erik B. Nordstrom |
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Title: |
President, Treasurer and Secretary |
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NORDSTROM, INC. |
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|
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By: |
/s/ Cathy R. Smith |
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Name: |
Cathy R. Smith |
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Title: |
Chief Financial Officer |
[Signature Page to Agreement and Plan of Merger]
APPENDIX A
As used in this Agreement,
the following terms shall have the following meanings:
“Acquisition Sub”
shall have the meaning set forth in the Preamble.
“Action”
shall mean any claim, charges, demand, inquiry, action, suit, investigation, inquiries, arbitration, litigation, administrative hearing,
enforcement proceeding or other similar proceeding, whether civil, criminal, administrative or investigative, at law or in equity, in
each case by or before any Governmental Authority or arbitral body.
“Additional Obligations”
shall have the meaning set forth in Section 8.3(f).
“Adverse Recommendation
Change” shall have the meaning set forth in Section 6.5(d).
“Adverse Recommendation
Termination Fee” shall mean $85,000,000.
“Advisor Engagement
Letters” shall have the meaning set forth in Section 4.20.
“Affiliate”
shall have the meaning set forth in Rule 12b-2 of the Exchange Act; provided that (i) none of the Parent Parties shall be deemed
to be Affiliates of the Company or its Subsidiaries and (ii) the Parent Parties shall be deemed to be Affiliates of Parent and Acquisition
Sub.
“Aggregate Merger
Consideration” shall mean the product of (x) the number of shares of Company Common Stock issued and outstanding (other
than those shares cancelled pursuant to Section 3.1(a)) immediately prior to the Effective Time multiplied by (y) the Merger Consideration.
“Agreement”
shall have the meaning set forth in the Preamble.
“Alternative Financing”
shall have the meaning set forth in Section 6.11(d).
“Alternative Transaction
Termination Fee” shall mean $42,500,000.
“Anti-Corruption
Laws” shall have the meaning set forth in Section 4.5(c).
“Anti-Money Laundering
Laws” means the applicable anti-money laundering, anti-terrorist financing, and “know your customer” Laws of
all jurisdictions where the Company and its Subsidiaries conduct business and the rules and regulations thereunder, including, as applicable,
the Bank Secrecy Act, the Money Laundering Control Act, the Currency and Foreign Transactions Reporting Act, The Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
“Antitrust Laws”
shall mean the Sherman Act of 1890; the Clayton Act of 1914; the Federal Trade Commission Act of 1914; the HSR Act, and all other federal,
state, foreign or supranational Laws or Orders in effect from time to time that are designed or intended to prohibit, restrict or regulate
actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
“Articles of Merger”
shall have the meaning set forth in Section 2.3(a).
“Bankruptcy and
Equity Exception” shall have the meaning set forth in Section 4.3(a).
“Base Reverse
Termination Fee” shall mean $170,000,000.
“Below Investment
Grade Rating Event” shall have the meanings ascribed thereto in the Senior Notes, except that a Below Investment Grade Rating
Event shall be deemed to have not occurred or be continuing for any series of Senior Notes for all purposes under this Agreement (including
for the condition set forth in Section 7.1(d) and the right to terminate this Agreement set forth in Section 8.1(b)(iv))
in the event that a Successful Note Offer has occurred. A “Successful Note Offer” shall have occurred when the
aggregate principal amount of all series of Senior Notes that have (i) tendered in an Offer to Exchange and been accepted by Parent
or Company, as applicable, or (ii) tendered in an Offer to Exchange (in which all conditions to close such Offer to Exchange have
otherwise been satisfied or waived other than (x) any condition based on the Merger having occurred or (y) those conditions that by their
terms are only capable of being satisfied on the closing date of such Offer to Exchange, which would be satisfied if the closing were
to occur as of such date) and do not have withdrawal rights is together at least the amount set forth on Schedule A-1 of the Parent
Disclosure Letter.
“Blue Sky Laws”
shall mean state securities or “blue sky” laws.
“Book-Entry Shares”
shall have the meaning set forth in Section 3.1(b).
“Business Day”
shall mean any day other than a Saturday, Sunday or a day on which all banking institutions in New York, New York or Governmental Authorities
in the State of Washington are authorized or obligated by Law or executive order to close.
“CARES Act”
shall mean the Coronavirus Aid, Relief, and Economic Security Act (including any changes in state or local law that are analogous to provisions
of the CARES Act or adopted to conform to the CARES Act) and any legislative or regulatory guidance issued pursuant thereto.
“Certificates”
shall have the meaning set forth in Section 3.1(b).
“Closing”
shall have the meaning set forth in Section 2.2.
“Closing Date”
shall have the meaning set forth in Section 2.2.
“Code”
shall mean the Internal Revenue Code of 1986.
“Company”
shall have the meaning set forth in the Preamble.
“Company Benefit
Plan” shall have the meaning set forth in Section 4.12(a).
“Company Board”
shall have the meaning set forth in the Recitals.
“Company Bylaws”
shall have the meaning set forth in Section 4.1(a).
“Company Cash
Amount” shall mean (i) $410,000,000 plus (ii) the Special Dividend Payment, if the Special Dividend is declared by the Company,
minus (iii) the amount of expenses and costs for which the Company is entitled to be reimbursed under Section 6.12 that have not been
paid to the Company.
“Company Cash
on Hand” shall mean all available cash of the Company and its Subsidiaries, in each case determined in accordance with GAAP
applied based on the Company’s historic practices and accounting policies and expressed in U.S. dollars; provided that the
amount of cash deposited by the Company or its Subsidiaries with the Paying Agent in accordance with Section 3.2(a)(ii) and any
cash deposited with the Company’s transfer agent in connection with payment of the Special Dividend shall be deemed to be Company
Cash on Hand.
“Company Charter”
shall have the meaning set forth in Section 4.1(a).
“Company Common
Stock” shall have the meaning set forth in the Recitals.
“Company Debt”
shall have the meaning set forth in Section 6.19.
“Company Disclosure
Letter” shall mean the disclosure letter delivered by the Company to Parent concurrently with or prior to the execution
of this Agreement, including the documents attached thereto or incorporated by reference therein (it being agreed that disclosure of any
item in any section or subsection of the Company Disclosure Letter shall be deemed to be disclosed with respect to the corresponding section
or subsection of this Agreement and any other section or subsection in this Agreement to which the relevance of such item is reasonably
apparent on the face of such disclosure).
“Company Intellectual
Property Rights” shall have the meaning set forth in Section 4.14(a).
“Company IT Assets”
shall mean the computer systems, software and software platforms, hardware, electronic data processing and telecommunications networks,
databases, websites, servers, routers, hubs, switches, circuits, networks, data communications lines and all other information technology
infrastructure and equipment, including any outsourced systems and processes (“IT Assets”), in each case, that
are used by the Company or any of its Subsidiaries in connection with the operation of the business of the Company and its Subsidiaries.
“Company
Material Adverse Effect” shall mean any change, event, effect or circumstance (each an
“Effect”) which has had, or would reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as
a whole; provided that none of the following, and no Effect arising out of or resulting from the following, shall constitute
or be taken into account in determining whether there has been, or would reasonably expect to be, a Company Material Adverse Effect:
(i) any Effect generally affecting the industries, businesses or markets in which the Company or its Subsidiaries operate; (ii) any
development or change in any Law or GAAP (or changes in interpretations of any Law or GAAP) and, to the extent relevant to the
business of the Company and its Subsidiaries, in any legal or regulatory requirement or condition or the regulatory enforcement
environment; (iii) general economic, regulatory or political conditions (or changes therein) or conditions (or changes therein
or disruptions thereof) in the U.S. or global economy or financial, credit, banking, securities, debt or other capital markets
(including changes in interest or currency exchange rates, any suspension of trading in securities generally on the NYSE, and any
anti-dumping actions, international tariffs, sanctions, trade policies or disputes or any “trade war” or
similar actions); (iv) any acts of God, natural disasters, force majeure events, terrorism, sabotage, armed hostilities, civil
unrest, declared or undeclared acts of war, Pandemics (including, for the avoidance of doubt, any Pandemic Measures) or any
escalation or worsening of any of the foregoing; (v) any seasonal fluctuations materially consistent with historical seasonal
fluctuations affecting the business of the Company or its Subsidiaries; (vi) the negotiation, execution, announcement, consummation,
existence or pendency of this Agreement or the transactions contemplated hereby, including by reason of (A) the identity of, or any
facts or circumstances relating to, any Parent Party, (B) the plans or intentions of the Parent Parties with respect to the conduct
of the business or the operations or strategy of the Company or any of its Subsidiaries following the Effective Time, (C) the
failure to obtain any Consent of a Third Party, or any loss or diminution of rights or privileges, or any creation of, increase in
or acceleration of obligations, pursuant to Contract or otherwise, in connection with the transactions contemplated by this
Agreement or (D) the impact of any of the foregoing in this clause (vi) on any existing or potential relationships
(contractual or otherwise) with suppliers, vendors, resellers, customers, distributors, creditors, employees, investors or other
business partners of the Company or its Subsidiaries or any other Third Party, provided that no effect shall be given to this clause (vi)
for purposes of the representation and warranty in Section 4.4(a); (vii) any action taken by or on behalf of the Company
pursuant to, or required by, the explicit terms of this Agreement or with the prior written consent or at the prior written
direction of Parent or Acquisition Sub; (viii) (A) any changes in the market price or trading volume of the Company Common Stock,
(B) any failure by the Company or its Subsidiaries to meet any public estimates or expectations of the Company’s revenue,
earnings or other financial performance or results of operations for any period or any internal budgets, plans, projections or
forecasts of its revenues, earnings or other financial performance or results of operations or (C) any changes in credit ratings and
any changes in any analysts’ recommendations or ratings with respect to the Company or any of its Subsidiaries or any
securities or indebtedness issued thereby (provided that the facts or occurrences giving rise to or contributing to such
changes or failure referenced in this clause (viii) that are not otherwise excluded from the definition of
“Company Material Adverse Effect” may be taken into account in determining whether there has been, or would reasonably
be expected to be, a Company Material Adverse Effect); or (ix) any Action threatened or initiated by current or former shareholders
or other securityholders of the Company against the Company, any of its Subsidiaries or any of their respective officers or
directors, in each case, arising out of or relating to the execution or performance of this Agreement or the transactions
contemplated hereby; provided that with respect to clauses (i), (ii), (iii) and (iv), such
Effects may be taken into account to the extent they materially and disproportionately adversely affect the Company and its
Subsidiaries, taken as a whole, compared to other companies operating primarily in the same industries in which the Company and its
Subsidiaries operate.
“Company Material
Contract” shall have the meaning set forth in Section 4.16(a).
“Company Note
Offer and Consent Solicitation” shall have the meaning set forth in Section 6.12(b).
“Company Options”
shall have the meaning set forth in Section 3.3(a)(i).
“Company Permits”
shall have the meaning set forth in Section 4.5(a).
“Company Recommendation”
shall mean the recommendation of each of the Company Board, acting upon the recommendation of the Special Committee, and the Special Committee
that the shareholders of the Company vote in favor of approving this Agreement.
“Company Related
Parties” shall have the meaning set forth in Section 8.3(d).
“Company SEC Documents”
shall have the meaning set forth in Section 4.6(a).
“Company Stock
Plans” shall mean the Company’s 2019 Equity Incentive Plan and the Company’s 2010 Equity Incentive Plan, each
as amended.
“Company Stock
Purchase Plan” shall mean the Company’s Employee Stock Purchase Plan, as amended and restated.
“Company Termination
Fee” shall mean the Alternative Transaction Termination Fee and the Adverse Recommendation Termination Fee.
“Competing Proposal”
shall have the meaning set forth in Section 6.5(h)(i).
“Confidentiality
Agreements” shall mean, together, the Family Confidentiality Agreement and the Liverpool Confidentiality Agreement.
“Consent”
shall have the meaning set forth in Section 4.4(b).
“Consent Solicitation”
shall have the meaning set forth in (a).
“Continuation
Period” shall have the meaning set forth in Section 6.9(a).
“Continuing Employees”
shall have the meaning set forth in Section 6.9(a).
“Contract”
shall mean any written contract, subcontract, lease, sublease, conditional sales contract, license, indenture, note, bond, loan, instrument,
understanding, permit, concession, franchise, commitment or other agreement (excluding any purchase order, sales order, task order, work
order or delivery order).
“control”
(including the terms “controlled by” and “under common control with”) shall mean,
with respect to a Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, as trustee or executor, by Contract or credit arrangement
or otherwise.
“Converted Option
Cash Award” shall have the meaning set forth in Section 3.3(a)(ii).
“Converted PSU
Award” shall have the meaning set forth in Section 3.3(c)(ii).
“Converted RSU
Award” shall have the meaning set forth in Section 3.3(b)(ii).
“D&O Indemnified
Parties” shall have the meaning set forth in Section 6.6(a).
“Debt Commitment
Letter” shall have the meaning set forth in Section 5.7(a).
“Debt Financing”
shall have the meaning set forth in Section 5.7(a).
“Debt Financing
Sources” shall mean the entities that have committed to arrange or provide or otherwise entered into agreements to commit
to arrange or provide all or any portion of the Debt Financing or any Alternative Financing, including the parties to any commitment letters
(including the Debt Commitment Letter), joinder agreements, indentures or credit agreements entered into pursuant thereto or relating
thereto, together with their respective Affiliates, and their respective Affiliates’ former, future or current direct or indirect
equity holders, controlling Persons, general or limited partners, members, shareholders, officers, directors, managers, employees, agents,
attorneys, advisors, and representatives and their respective successors and assigns. Notwithstanding anything in this Agreement to the
contrary, none of the Parent Parties shall be considered Debt Financing Sources.
“Debt Payoff Amount”
shall have the meaning set forth in Section 6.19.
“Deferred Compensation
Plans” shall mean the Company’s Deferred Compensation Plan, the Company’s Supplemental Executive Retirement
Plan and the Company’s Directors Deferred Compensation Plan, each as amended.
“director”
shall mean any member of the board of directors or any similar governing body.
“Dissenting Shareholder”
shall have the meaning set forth in Section 3.5.
“Dissenting Shares”
shall have the meaning set forth in Section 3.5.
“Downgrade Reverse
Termination Fee” shall mean $100,000,000.
“Effective Time”
shall have the meaning set forth in Section 2.3(a).
“Environmental
Laws” shall mean all Laws and Orders concerning pollution, public or worker health or safety (to the extent relating to
Hazardous Substances), or protection of the environment (including those relating to the use, handling, transport, treatment, storage
or Release of any Hazardous Substance).
“Environmental
Permits” shall mean any permit, registration, license or other authorization required under any applicable Environmental
Law.
“Equity Commitment
Letter” shall have the meaning set forth in the Recitals.
“Equity Financing”
shall have the meaning set forth in the Recitals.
“ERISA”
shall have the meaning set forth in Section 4.12(a).
“ERISA Affiliate”
shall mean, for any Person, each trade or business, whether or not incorporated, that, together with such Person, would be deemed a “single
employer” within the meaning of Section 4001(b) of ERISA or Section 414 of the Code.
“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.
“Exchange Fund”
shall have the meaning set forth in Section 3.2(a)(ii).
“Excluded Information”
shall have the meaning set forth in Section 6.12(c).
“Existing Credit
Agreement” shall mean that certain Revolving Credit Facility, dated as of May 6, 2022, by and among the Company, the lenders
from time to time party thereto, the issuing banks from time to time party thereto and Wells Fargo Securities, LLC, as administrative
agent, as amended, restated, amended and restated, refinanced, replaced, supplemented or otherwise modified from time to time.
“Existing D&O
Insurance Policies” shall have the meaning set forth in Section 6.6(c).
“Expenses”
shall mean all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants
to a party hereto and its Affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation,
negotiation, execution and performance of this Agreement, the Rollover and Support Agreements, the Equity Commitment Letter, the Debt
Commitment Letter, the Guaranties, and the other contracts, documents and instruments related to this Agreement and the transactions contemplated
hereby, the preparation, printing, filing and mailing of the Proxy Statement and all SEC and other regulatory filing fees incurred in
connection with the Proxy Statement, the solicitation of shareholder approvals, any filing with, and obtaining of any necessary action
or non-action or Consent from any Governmental Authority, including pursuant to any Antitrust Laws, engaging the services of the Paying
Agent, any other filings with the SEC and all other matters related to the Closing and the other transactions contemplated by this Agreement.
“Family Confidentiality
Agreement” shall mean that certain nondisclosure confidentiality agreement, dated as of April 17, 2024, by and among Erik
B. Nordstrom, Peter E. Nordstrom, and certain related trusts and the Company and related joinders.
“Family Group”
shall mean the Persons listed on Schedule A-2 of the Parent Disclosure Letter.
“Final Exercise
Date” shall have the meaning set forth in Section 3.3(f).
“Financing”
shall have the meaning set forth in Section 5.7(a).
“Financing Commitments”
shall have the meaning set forth in Section 5.7(a).
“Financing Sources”
shall mean the Debt Financing Sources and Liverpool.
“Funded Debt Amount”
shall mean the least of (i) $450,000,000, (ii) an amount sufficient to enable Parent and Acquisition Sub to pay the Funding Obligations
required to be paid on the Closing Date (assuming receipt of the gross proceeds of the Equity Financing and the use of all Company Cash
on Hand in excess of $100,000,000), and (iii) the amount of the Debt Financing requested to be funded by Parent in a notice to the Debt
Financing Sources.
“Funding Obligations”
shall have the meaning set forth in Section 5.7(b).
“Funds”
shall have the meaning set forth in Section 5.7(b).
“GAAP”
shall mean U.S. generally accepted accounting principles.
“Governmental
Authority” shall mean any United States (federal, state or local) or foreign government, multi-national, national, federal,
regional, state, provincial or local court, legislature, or any governmental, regulatory, self-regulatory authority, judicial or administrative
authority, agency or commission, or other similar governmental authority, body, tribunal or subdivision thereof of competent jurisdiction.
“Guaranties”
shall have the meaning set forth in the Recitals.
“Guarantors”
shall have the meaning set forth in the Recitals.
“Hazardous Substances”
shall mean any substance, material, chemical or waste that is defined as or included in the definition of, “hazardous substance”,
“hazardous waste”, “hazardous material”, “toxic substance”, “pollutant” or “contaminant”
(or for which liability or standards of conduct can be imposed) under any Environmental Law, including petroleum, asbestos, radioactive
materials, per- and polyfluoroalkyl substances, lead and polychlorinated biphenyls.
“HSR Act”
shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations thereunder.
“Inside Date”
shall mean sixty (60) days after the date hereof.
“Insurance Policy”
shall have the meaning set forth in Section 4.22.
“Intellectual
Property Rights” shall have the meaning set forth in Section 4.14(a).
“Intentional Breach”
shall mean a material breach of any Transaction Document that is a consequence of an intentional act, or intentional failure to act, undertaken
by the breaching party with the actual knowledge that the taking of such intentional act, or intentional failure to act, will, or will
reasonably be expected to, cause such material breach. An Intentional Breach by a party shall include a party’s not consummating
the Closing at the time the Closing is required to be consummated in accordance with Section 2.2; provided that Parent’s
failure to effect the Closing following the occurrence and during the continuation of a Below Investment Grade Rating Event, or when the
criteria set forth in clauses (B) and (C) of Section 9.12(a) are not present, shall not in and of itself constitute an Intentional
Breach.
“Intervening Event”
shall have the meaning set forth in Section 6.5(h)(iii).
“IRS”
shall have the meaning set forth in Section 4.12(a).
“Knowledge”
shall mean the actual (but not constructive or imputed) knowledge, without independent investigation, of (i) for the Company, each of
the individuals listed on Appendix A of the Company Disclosure Letter and (ii) for Parent, each of the directors and officers of
Parent and Acquisition Sub.
“Law”
shall mean any and all domestic (federal, state or local) or foreign laws (including common law), rules, statutes, directives, constitutions,
treaties, conventions, ordinances, mandates, codes, regulations, orders, judgments or decrees or other similar requirements enacted, adopted,
promulgated or applied by any Governmental Authority, including any Pandemic Measures.
“Leased Real Property”
shall mean all real property leased or subleased (whether as tenant or subtenant) by the Company or any of its Subsidiaries.
“Lien”
shall mean liens, license, claims, mortgages, encumbrances, pledges, security interests, adverse ownership interests or charges of any
kind.
“Liverpool”
shall mean El Puerto de Liverpool S.A.B. de C.V.
“Liverpool Confidentiality
Agreement” shall mean that certain nondisclosure confidentiality agreement, dated as of December 14, 2023, by and between
Liverpool and the Company.
“Liverpool Debt
Financing” means (i) the senior unsecured bridge facility incurred pursuant to that certain debt commitment letter, dated
as of the date hereof, by and among Liverpool and JPMorgan Chase Bank, N.A. (the “Liverpool Debt Commitment Letter”)
or (ii) a broadly-marketed underwritten offering of debt
securities under Rule 144A or Regulation S promulgated under the Securities Act.
“Liverpool Debt
Financing Sources” shall mean the entities that have committed to arrange or provide or otherwise entered into agreements
to commit to arrange or provide all or any portion of the Liverpool Debt Financing, including the parties to any commitment letters, joinder
agreements, indentures or credit agreements entered into pursuant thereto or relating thereto together with their respective Affiliates,
and their and their respective Affiliates’ former, future or current direct or indirect equity holders, controlling Persons, general
or limited partners, members, shareholders, officers, directors, managers, employees, agents, attorneys, advisors, and representatives
and their respective successors and assigns. Notwithstanding anything in this Agreement to the contrary, none of the Parent Parties shall
be considered Liverpool Debt Financing Sources.
“Malicious Code”
shall mean any (i) “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,”
“ransomware” or “worm” (as such terms are commonly understood in the software industry) or (ii) other code designed
or intended to have, or capable of performing, any of the following functions: (a) disrupting, disabling, harming, interfering with or
otherwise impeding in any manner the operation of, or providing unauthorized access to, a Company IT Asset on which such code is stored
or installed; or (b) damaging or destroying any data or file without the user’s consent.
“Maximum Amount”
shall have the meaning set forth in Section 6.6(c).
“Maximum Liability
Amount” shall mean $300,000,000.
“Merger”
shall have the meaning set forth in the Recitals.
“Merger Consideration”
shall have the meaning set forth in Section 3.1(b).
“New Debt Commitment
Letter” shall have the meaning set forth in Section 6.11(d).
“New Plans”
shall have the meaning set forth in Section 6.9(d).
“Notice of Adverse
Recommendation” shall have the meaning set forth in Section 6.5(e)(iii).
“Notes Enhancements”
shall mean the Notes Security Grant and any Notes Guarantee.
“Notes Guarantee”
shall mean any guarantees provided by the Company’s Subsidiaries for the benefit of the holders of the Senior Debt in connection
with the Notes Security Grant.
“Notes
Security Grant” shall mean an amendment of the Senior Debt, the indentures under which they are issued and/or entering
into a security agreement and related arrangements to provide the Senior Debt with collateral on the terms and conditions presented
to the Rating Agencies by Parent (which terms and conditions
are reflected in written materials made available to the Company).
“NYSE”
shall mean the New York Stock Exchange.
“Offer and Consent
Solicitation Documents” shall have the meaning set forth in Section 6.12(b).
“Offer to Exchange”
shall have the meaning set forth in Section 6.12(b).
“Old Plans”
shall have the meaning set forth in Section 6.9(d).
“Open Source Software”
shall mean any software licensed, provided or distributed under any open-source or similar license, including any license meeting the
Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software
Foundation) (including the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD
licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License
(SISL), Open Source Initiative and the Apache License).
“Order”
shall mean any order, verdict, decision, writ, rule, ruling, directive, stipulation, determination, decree, settlement, judgment or injunction
made, issued or entered by or with any Governmental Authority, whether preliminary, interlocutory or final.
“Other Required
Filing” shall have the meaning set forth in Section 6.2(b).
“Outside Date”
shall have the meaning set forth in Section 8.1(b)(i).
“Owned Real Property”
shall mean all real property owned by the Company or any of its Subsidiaries, together with all buildings, improvements and fixtures located
thereon and all appurtenances thereto.
“Pandemic”
shall mean any outbreak, epidemics or pandemic relating to any virus (including influenza, SARS-CoV-2 or COVID-19), or any variants, evolutions
or mutations thereof, and any further epidemics or pandemics arising therefrom.
“Pandemic Measures”
shall mean any workforce reduction, quarantine, “shelter in place,” “stay at home,” workforce reduction, social
distancing, shut down, closure, sequester, safety or similar Law, directive, guidelines or recommendations promulgated by any industry
group or any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each
case, in connection with, related to or in response to any Pandemic, including the CARES Act and the Families First Coronavirus Response
Act or any disaster plan of the Company or any change in applicable Laws related to in connection with or in response to a Pandemic.
“Parent”
shall have the meaning set forth in the Preamble.
“Parent Disclosure
Letter” shall mean the disclosure letter delivered by Parent to the Company simultaneously with the execution of this Agreement
(it being agreed that disclosure of any item in any section or subsection of the Parent Disclosure Letter shall be deemed to be disclosed
with respect to the corresponding section or subsection of this Agreement and any other section or subsection in this Agreement to which
the relevance of such item is reasonably apparent on the face of such disclosure).
“Parent Material
Adverse Effect” shall mean any Effect which, individually or in the aggregate, has prevented or materially delayed or materially
impaired or would reasonably be expected to prevent or materially delay or materially impair, the ability of Parent or Acquisition Sub
to consummate the Merger and the other transactions contemplated by this Agreement.
“Parent Party”
or “Parent Parties” shall mean Parent, Acquisition Sub, the Family Group, Liverpool and their respective Affiliates.
“Parent Related
Parties” shall have the meaning set forth in Section 8.3(c).
“Paying Agent”
shall have the meaning set forth in Section 3.2(a).
“Paying Agent
Agreement” shall have the meaning set forth in Section 3.2(a).
“Payoff Letter”
shall have the meaning set forth in Section 6.19.
“Permitted Liens”
shall mean (a) any Lien for Taxes, utilities, landlords and other governmental charges not yet due and payable or that are being contested
in good faith by any appropriate proceedings and for which adequate accruals or reserves have been established in accordance with GAAP,
(b) Liens securing indebtedness or liabilities that are reflected in the Company SEC Documents or incurred in the ordinary course of business
since the end of the most recent fiscal year for which an Annual Report on Form 10-K has been filed by the Company with the SEC and Liens
securing indebtedness or liabilities that have otherwise been disclosed to Parent in writing, (c) such Liens or other imperfections of
title, if any, that do not materially impair the value, occupancy or use of the Real Property in the conduct of the business of the Company
and its Subsidiaries, including (i) easements or claims of easements whether or not shown by the public records, boundary line disputes,
overlaps, encroachments and any matters not of record which would be disclosed by an accurate survey or a personal inspection of the property,
(ii) any rights of parties in possession, (iii) any supplemental Taxes or assessments not shown by the public records which, in each case,
are not yet due and payable or that are being contested in good faith by any appropriate proceedings and for which adequate accruals or
reserves have been established in accordance with GAAP (iv) title to any portion of the premises lying within the right of way or boundary
of any public road or private road, (v) Liens imposed or promulgated by Laws with respect to Real Property and improvements, including
zoning regulations, permits, licenses, utility easements, rights of way and similar Liens imposed or promulgated by any Governmental Authority
which are not violated in any material respect, and (vi) non-monetary Liens disclosed on existing title policies, title reports or existing
surveys made available to Parent prior to the date hereof, (d) mechanics’, carriers’, workmen’s, repairmen’s,
materialmen’s, warehousemen’s, suppliers’, cashiers’, landlords’
and similar Liens incurred in the ordinary course of business or arising by operation of law or that are not otherwise material, (e) Liens
securing acquisition financing with respect to the applicable asset, including refinancings thereof, (f) non-exclusive licenses or other
grants of Intellectual Property Rights in the ordinary course of business, (g) covenants, conditions, restrictions, rights of way, servitudes,
encroachments, permits and oil, gas, mineral and any mining reservations, rights, licenses and leases that do not materially impair the
value, occupancy or use of the Real Property, (h) pledges or deposits made in the ordinary course of business to secure payments of worker’s
compensation, unemployment insurance or other types of social security benefits or the performance of bids, tenders, sales, Contracts,
public or statutory obligations, and surety, stay, appeal, customs or performance bonds, in each case, arising in the ordinary course
of business, (i) Liens resulting from securities Laws, (j) Liens incurred in the ordinary course of business in connection with any purchase
money security interests, equipment leases or similar financing arrangements, (k) Liens created by (or at the request of) Parent, Acquisition
Sub or any of the other Parent Parties, (l) Liens that will be removed prior to or at the Effective Time, (m) Liens securing obligations
in connection with the Existing Credit Agreement, (n) Liens created by or resulting from any suit, claim, action or proceeding which is
not otherwise a violation of the representations set forth in Article IV, (o) Liens that affect the underlying fee interest of
any Leased Real Property not granted by the Company or any of its Subsidiaries, and (p) Liens that would not, individually or in the aggregate,
reasonably be expected to have Company Material Adverse Effect.
“Person”
shall mean an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or organization,
including a Governmental Authority.
“Personal Data”
shall mean data or information that (a) identifies or is reasonably capable of being associated with or identifying a natural person or
(b) is defined as “personal data,” “personal information,” “personally identifiable information,”
“protected health information”, “consumer health data” or a similar term under any Privacy Obligations.
“Pre-Closing Period”
shall have the meaning set forth in Section 6.1.
“Pre-Release Information”
shall have the meaning set forth in Section 6.12(a).
“Privacy Obligations”
shall mean, to the extent applicable to the Company or its Subsidiaries, all (a) Laws and binding industry standards related to cybersecurity
and the creation, processing, receipt, collection, maintenance, storage, transmission, transfer, disclosure and/or use of Personal Data,
including HIPAA, (b) publicly facing privacy policies of the Company or its Subsidiaries or (c) material contractual requirements or obligations
that in each case pertain to data privacy, cybersecurity or restrictions or obligations related to the collection or processing of Personal
Data (including any security breach notification requirements).
“Projections”
shall mean pro forma projections consisting of consolidated balance sheets and related consolidated statements of earnings and cash flows
of the Company and its Subsidiaries covering the fiscal quarter in which the Closing
Date occurs and the next three fiscal quarters thereafter and presented on a quarterly basis
“Proxy Statement”
shall have the meaning set forth in Section 4.7.
“PSU Award”
shall have the meaning set forth in Section 3.3(c)(i).
“Rating Agencies”
shall mean Moody’s Investors Service Inc., and any successor to its rating agency business, S&P Global Ratings, a division of
S&P Global, Inc. and any successor to its rating agency business, Fitch Ratings Limited, and any successor to its rating agency business,
and any other “Rating Agency” as defined under the indenture for the Senior Notes.
“Real Property”
shall mean the Owned Real Property and Leased Real Property.
“Real Property
Leases” shall have the meaning set forth in Section 4.17(b).
“Release”
shall mean any release, spill, emission, emptying, escaping, leaking, pumping, pouring, injection, deposit, disposal, discharge, dispersal,
dumping or leaching into the environment.
“Representatives”
shall mean, as to any Person, such Person’s Affiliates and its and their respective directors, officers, employees, agents, advisors,
consultants, representatives and controlling Persons and any representatives of the foregoing; provided that no member of the Family
Group shall be deemed to be Representatives of the Company or its Subsidiaries for the purposes of this Agreement.
“Required Financial
Statements” shall mean the (a) audited consolidated balance sheets and related consolidated statements of earnings, of shareholders’
equity and of cash flows of the Company and its Subsidiaries for the three most recent fiscal years ended at least 90 days prior to the
Closing Date and (b) unaudited consolidated balance sheets and related consolidated statements of earnings, of shareholders’ equity
and of cash flows of the Company and its Subsidiaries for each subsequent fiscal quarter ended at least 60 days before the Closing Date,
other than the last fiscal quarter of any fiscal year.
“Requisite Shareholder
Approvals” shall have the meaning set forth in Section 4.19.
“Reverse Termination
Fee” shall mean the Downgrade Reverse Termination Fee or the Base Reverse Termination Fee.
“Rollover”
shall have the meaning set forth in the Recitals.
“Rollover and
Support Agreements” shall have the meaning set forth in the Recitals.
“Rollover Shares”
shall have the meaning set forth in the Recitals.
“RSU Award”
shall have the meaning set forth in Section 3.3(b)(i).
“Sanctioned Country”
shall mean any country or region subject to economic sanctions or trade restrictions of the United States, the United Kingdom, the European
Union or the United Nations that broadly prohibit or restrict dealings with such country or region (as of the date hereof, Cuba, Iran,
North Korea, Syria, the Crimea region of Ukraine, the so-called “Donetsk People’s Republic” and the so-called “Luhansk
People’s Republic” regions of Ukraine and the non-government controlled areas of the Zaporizhzhia and Kherson regions of Ukraine).
“Sanctioned Person”
shall mean (i) any Person identified in any sanctions list maintained by the U.S. government, including the U.S. Department of the Treasury’s
Office of Foreign Assets Control, the U.S. Department of State, the United Nations Security Council, the European Union, any member state
of the European Union or the United Kingdom; (ii) any Person located, organized, or resident in any Sanctioned Country; and (iii) any
Person directly or indirectly owned 50% or more by, controlled by or acting for the benefit or on behalf of a Person described in clauses
(i) or (ii).
“Schedule 13E-3”
shall have the meaning set forth in Section 4.7.
“SEC”
shall mean the Securities and Exchange Commission.
“Secretary”
shall have the meaning set forth in Section 2.3(a).
“Securities Act”
shall mean the Securities Act of 1933, as amended.
“Senior Employee”
shall have the meaning set forth in Section 6.1(E).
“Senior Debentures”
shall mean the Company’s senior debentures issued under that certain Indenture by and between the Company and Norwest Bank Colorado,
National Association, as Trustee, dated as of March 10, 1998, including the 6.95% Senior Debentures due 2028.
“Senior Debt”
shall mean the Senior Debentures and the Senior Notes.
“Senior Notes”
shall mean the Company’s senior notes issued under that certain Indenture by and between the Company and Wells Fargo Bank, National
Association, dated as of December 3, 2007, including the Company’s 4.000% senior notes due 2027, 4.375% senior notes due 2030, 4.250%
senior notes due 2031, 5.000% senior notes due 2044 and 7.00% senior notes due 2038.
“Shareholder Rights
Agreement” shall mean that certain Shareholder Rights Agreement, dated as of September 19, 2022, by and between the Company
and Computershare Trust Company, N.A., as Rights Agent, as amended by that certain First Amendment, dated as of August 21, 2023, that
certain Second Amendment, dated as of September 3, 2024, and that certain Third Amendment, dated as of December 22, 2024.
“Shareholders’
Meeting” shall have the meaning set forth in Section 6.2(c).
“Solvent”
shall have the meaning set forth in Section 5.12.
“Special Committee”
shall have the meaning set forth in the Recitals.
“Special Dividend”
shall have the meaning set forth in Section 6.20.
“Special Dividend
Payment” shall have the meaning set forth in Section 6.20.
“Special Dividend
Per Share Amount” shall have the meaning set forth in Section 6.20.
“Specified Date”
shall have the meaning set forth in Section 4.2(a).
“Stock Unit”
shall mean a notional unit credited to an account under a Deferred Compensation Plan that is measured by reference to a share of Company
Common Stock.
“Stub Period Dividend”
shall have the meaning set forth in Section 6.1(D).
“Subsidiary”
of any Person shall mean any corporation, partnership, joint venture or other legal entity of which such Person (either above or through
or together with any other subsidiary) owns, directly or indirectly, more than fifty percent (50%) of the stock or other equity interests,
the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation
or other legal entity.
“Superior Proposal”
shall have the meaning set forth in Section 6.5(h)(ii).
“Surviving Corporation”
shall have the meaning set forth in Section 2.1.
“Tail Coverage”
shall have the meaning set forth in Section 6.6(c).
“Takeover Laws”
shall have the meaning set forth in Section 4.23.
“Tax”
or “Taxes” shall mean any and all taxes, fees, levies, duties, tariffs, imposts and other similar charges (together
with any and all interest, penalties and additions to tax) imposed by any Governmental Authority, including taxes or other charges on
or with respect to income, franchises, windfall or other profits, gross receipts, real property, personal property, sales, use, capital
stock, payroll, employment, social security, workers’ compensation, unemployment compensation or net worth; taxes or other charges
in the nature of excise, withholding, ad valorem, stamp, transfer, value added or gains taxes; customs duties and tariffs; and other obligations
of the same or of a similar nature to any of the foregoing.
“Tax Group”
shall mean any “affiliated group” of corporations within the meaning of Section 1504 of the Code (or any similar affiliated,
combined, consolidated, or unitary group or arrangement for group relief for state, local, or foreign Tax purposes).
“Tax Returns”
shall mean returns, reports, declarations, information statements and similar documents, including any schedule or attachment thereto,
with respect to Taxes required to be filed with the IRS or any other Governmental Authority or taxing authority, including any claim for
refund or amended return.
“Third Party”
shall mean any Person or group other than the Parent Parties.
“Trade Controls”
shall have the meaning set forth in Section 4.5(d).
“Transaction Documents”
means, collectively, this Agreement, the Rollover and Support Agreements, the Confidentiality Agreements, the Guaranties, the Financing
Commitments and any other document contemplated by those agreements, or any document or instrument delivered in connection with this Agreement
or those agreements.
“Transfer Taxes”
shall mean any real property transfer, sales, use, gains, value added, stamp, documentary, recording, registration, conveyance, stock
transfer, intangible property transfer, personal property transfer, gross receipts, registration, duty, securities transactions or similar
fees or Taxes or governmental charges (together with any interest or penalty, addition to Tax or additional amount imposed) as levied
by any Governmental Authority in connection with the transactions contemplated by this Agreement, including any payments made in lieu
of any such Taxes or governmental charges that become payable in connection with the transactions contemplated by this Agreement.
“Treasury Regulations”
shall mean the income tax regulations promulgated under the Code.
“Unvested Company
PSU” shall have the meaning set forth in Section 3.3(c)(ii).
“Unvested Company
RSU” shall have the meaning set forth in Section 3.3(b)(ii).
“VDR”
shall have the meaning set forth in Section 4.24(a).
“Vested Company
Options” shall have the meaning set forth in Section 3.3(a)(i).
“Vested Company
PSU” shall have the meaning set forth in Section 3.3(c)(i).
“Vested Company
RSU” shall have the meaning set forth in Section 3.3(b)(i).
“Vested Option
Payments” shall have the meaning set forth in Section 3.3(a)(i).
“Vested PSU Payments”
shall have the meaning set forth in Section 3.3(c)(i).
“Vested RSU Payments”
shall have the meaning set forth in Section 3.3(b)(i).
“WBCA”
shall have the meaning set forth in the Recitals.
“WBCA Shareholder
Approval” shall have the meaning set forth in Section 4.19.
Exhibit
A
Articles of Incorporation of
the Surviving Corporation
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
Nordstrom, Inc.
ARTICLE
I
NAME
The name of this corporation is Nordstrom, Inc.
ARTICLE
II
Duration
The period of duration of
this corporation is perpetual.
ARTICLE
III
PURPOSE
This corporation is organized
for the purpose of engaging in any business, trade or activity which may be conducted lawfully by a corporation organized under the Washington
Business Corporation Act (the “Act”).
ARTICLE
IV
SHARES
This corporation is authorized
to issue One Hundred (100) shares of common stock.
ARTICLE
V
NO PREEMPTIVE RIGHTS
No preemptive rights shall
exist with respect to shares of stock or securities convertible into shares of stock of this corporation.
ARTICLE
VI
NO CUMULATIVE VOTING
At each election for directors,
every shareholder entitled to vote at such election has the right to vote in person or by proxy the number of shares held by such shareholder
for as many persons as there are directors to be elected. No cumulative voting for directors shall be permitted.
ARTICLE
VII
BYLAWS
The Board of Directors shall
have the power to adopt, amend or repeal the Bylaws or adopt new Bylaws. Nothing herein shall deny the concurrent power of the shareholders
to adopt, alter, amend or repeal the Bylaws.
ARTICLE
VIII
DIRECTORS
The number of directors of
this corporation shall be determined in the manner specified by the Bylaws and may be increased or decreased from time to time in the
manner provided therein.
ARTICLE
IX
SHAREHOLDER ACTION ON LESS THAN
UNANIMOUS CONSENT
In any matter requiring shareholder
action, the shareholders may act by consent of the shareholders holding of record, or otherwise entitled to vote in the aggregate, the
minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on
the action were present and voted. No period of advance notice is required to be given to any nonconsenting shareholders.
ARTICLE
X
LIMITATION OF DIRECTORS' LIABILITY
Any personal liability of
a director to the corporation or its shareholders for monetary damages for conduct as a director is eliminated, except for any liability
for any acts or omissions that involve intentional misconduct by a director or a knowing violation of law by a director, for conduct violating
RCW 23B.08.310, for any transaction from which the director will personally receive a benefit in money, property, or services to which
the director is not legally entitled, or for any act or omission occurring prior to June 15, 1988, the date when this Article initially
became effective. If hereafter the Act is amended to change the corporation’s power to eliminate or limit the liability of a director
to the corporation, then, upon the effective date of the amendment and without further act:
if the amendment permits
further elimination or limitation of liability, the liability of a director shall be additionally eliminated and limited to such further
extent, or
if the amendment changes
the power to eliminate the liability of a director in any other respect, the liability of a director shall be eliminated and limited with
respect to acts or omissions occurring after the effective date of the amendment to the fullest extent permitted by the Act as so amended.
No amendment or repeal of these
Articles of Incorporation shall adversely affect any right or any elimination or limitation of liability of a director existing immediately
prior to the amendment or repeal.
ARTICLE
XI
INDEMNIFICATION
Section 11.1 Right
to Indemnification. Each person (including a person’s personal representative) who was or
is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation, as a witness) in any threatened,
pending, or completed action, suit or proceeding, whether civil, criminal, administrative, investigative or by or in the right of the
corporation, or otherwise (hereinafter a “proceeding”) by reason of the fact that he or she (or a person of whom he
or she is a personal representative) is or was a director or officer of the corporation or an officer of a division of the corporation,
or, while serving as a director or officer of the corporation or an officer of a division of the corporation, is or was acting at the
request of the corporation as a director, officer, partner, trustee, employee, agent or in any other relationship or capacity whatsoever,
of any other foreign or domestic corporation, partnership, joint venture, employee benefit plan or trust or other trust, enterprise or
other private or governmental entity, agency, board, commission, body or other unit whatsoever (hereinafter an “indemnitee”),
whether the basis of such proceeding is alleged action or inaction in an official capacity as a director, officer, partner, trustee, employee,
agent or in any other relationship or capacity whatsoever, shall be indemnified and held harmless by the corporation against all expenses,
liabilities and losses (including but not limited to attorneys’ fees, judgments, claims, fines, ERISA and other excise and other
taxes and penalties and other adverse effects and amounts paid in settlement), reasonably incurred or suffered by the indemnitee; provided,
however, that except as provided in Section 11.2 with respect to suits relating to rights to indemnification, the corporation shall indemnify
any indemnitee in connection with a proceeding (or part thereof) initiated by the indemnitee only if such proceeding (or part thereof)
was authorized by the board of directors of the corporation.
No indemnification shall
be provided to any indemnitee for acts or omissions of such person finally adjudged to be intentional misconduct or a knowing violation
of law, or from or on account of conduct of an indemnitee finally adjudged to be in violation of RCW 23B.08.310, or from or on account
of any transaction with respect to which it was finally adjudged that such indemnitee personally received a benefit in money, property,
or services to which the person was not legally entitled. Notwithstanding the foregoing, if Section 23B.08.560 or any successor provision
of the Act is hereafter amended, the restrictions on indemnification set forth in this Section shall be as set forth in such amended
statutory provision.
The right to indemnification
granted in this Article is a contract right and includes the right to payment by, and the right to receive reimbursement from, the corporation
of all expenses as they are incurred in connection with any proceeding in advance of its final disposition (hereinafter an “advance
of expenses”); provided, however, that an advance of expenses received by an indemnitee in his or her capacity as a director
or officer of the corporation, as an officer of a division of the corporation, or, acting at the request of the corporation, as director
or officer of any other foreign or domestic corporation, partnership, joint venture, employee benefit plan or trust or other trust, enterprise
or other private or governmental entity, agency, board, commission, body or other unit whatsoever (and not in any other capacity in which
service was or is rendered by such indemnitee unless such service was authorized by the board of directors of the corporation) shall be
made only upon (i) receipt by the corporation of a written undertaking (hereinafter an “undertaking”) by or on behalf
of such indemnitee, to repay advances of expenses if and to the extent it shall ultimately be determined by order of a court having jurisdiction
(which determination shall become final upon expiration of all rights to appeal), hereinafter a “final adjudication”,
that the indemnitee is not entitled to be indemnified for such expenses under this Article, (ii) receipt by the corporation of written
affirmation by the indemnitee of his or her good faith belief that he or she has met the standard of conduct applicable (if any) under
the Act necessary for indemnification by the corporation under this Article, and (iii) a determination of the board of directors of the
corporation, in its good faith belief, that the indemnitee has met the standard of conduct applicable (if any) under the Act necessary
for indemnification by the corporation under this Article.
Section 11.2 Right
of Indemnitee to Bring Suit. If any claim for indemnification under Section 11.1 is not paid in
full by the corporation within sixty (60) days after a written claim has been received by the corporation, except in the case of a claim
for an advance of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring
suit against the corporation to recover the unpaid amount of the claim. If the indemnitee is successful in whole or in part in any such
suit, or in any suit in which the corporation seeks to recover an advance of expenses, the corporation shall also pay to the indemnitee
all the indemnitee’s expenses in connection with such suit. The indemnitee shall be presumed to be entitled to indemnification under
this Article upon the corporation’s receipt of indemnitee’s written claim (and in any suits relating to rights to indemnification
where the required undertaking and affirmation have been received by the corporation) and thereafter the corporation shall have the burden
of proof to overcome that presumption. Neither the failure of the corporation (including its board of directors, independent legal counsel,
or shareholders) to have made a determination prior to other commencement of such suit that the indemnitee is entitled to indemnification,
nor an actual determination by the corporation (including its board of directors, independent legal counsel or shareholders) that the
indemnitee is not entitled to indemnification, shall be a defense to the suit or create a presumption that the indemnitee is not so entitled.
It shall be a defense to a claim for an amount of indemnification under this Article (other than a claim for advances of expenses prior
to final disposition of a proceeding where the required undertaking and affirmation have been received by the corporation) that the claimant
has not met the standards of conduct applicable (if any) under the Act to entitle the claimant to the amount claimed, but the corporation
shall have the burden of proving such defense. If requested by the indemnitee, determination of the right to indemnity and amount of indemnity
shall be made by final adjudication (as defined above) and such final adjudication shall supersede any determination made in accordance
with RCW 23B.08.550.
Non-Exclusivity of Rights.
The rights to indemnification (including, but not limited to, payment, reimbursement and advances of expenses) granted in this Article
shall not be exclusive of any other powers or obligations of the corporation or of any other rights which any person may have or hereafter
acquire under any statute, the common law, the corporation’s Articles of Incorporation or Bylaws, agreement, vote of shareholders
or disinterested directors, or otherwise. Notwithstanding any amendment to or repeal of this Article XI, the rights to indemnification
for an indemnitee under this Article XI shall vest at the time the indemnitee first becomes a director, officer, partner, trustee, employee,
agent or in any other relationship or capacity whatsoever and no repeal or amendment of, or adoption of any provision inconsistent with
this Article XI shall adversely affect any rights to indemnification granted to an indemnitee pursuant hereto existing at, arising out
of, or related to any acts or omissions of such indemnitee occurring prior to such amendment or repeal.
Section 11.3 Insurance,
Contracts and Funding. The corporation may purchase and maintain insurance, at its expense, to protect
itself and any person (including a person’s personal representative) who is or was a director, officer, employee or agent of the
corporation or who is or was a director, officer, partner, trustee, employee, agent, or in any other relationship or capacity whatsoever,
of any other foreign or domestic corporation, partnership, joint venture, employee benefit plan or trust or other trust, enterprise or
other private or governmental entity, agency, board, commission, body or other unit whatsoever, against any expense, liability or loss,
whether or not the power to indemnify such person against such expense, liability or loss is now or hereafter granted to the corporation
under the Act. The corporation may enter into contracts granting indemnity, to any such person whether or not in furtherance of the provisions
of this Article and may create trust funds, grant security interests and use other means (including, without limitation, letters of credit)
to secure and ensure the payment of indemnification amounts.
Section 11.4 Indemnification
of Employees and Agents. The corporation may, by action of the board of directors, provide indemnification
and pay expenses in advance of the final disposition of a proceeding to employees and agent of the corporation with the same scope and
effect as the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of
the corporation or pursuant to rights granted under, or provided by, the Act or otherwise.
Section 11.5 Separability
of Provisions. If any provision or provisions of this Article shall be held to be invalid, illegal
or unenforceable for any reason whatsoever (i) the validity, legality and enforceability of the remaining provisions of this Article (including
without limitation, all portions of any sections of this Article containing any such provision held to be invalid, illegal or unenforceable,
that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the fullest
extent possible, the provisions of this Article (including, without limitation, all portions of any paragraph of this Article containing
any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Section 11.6 Partial
Indemnification. If an indemnitee is entitled to indemnification by the corporation for some or
a portion of expenses, liabilities or losses, but not for the total amount thereof, the corporation shall nevertheless indemnify the indemnitee
for the portion of such expenses, liabilities and losses to which the indemnitee is entitled.
Section 11.7 Successors
and Assigns. All obligations of the corporation to indemnify (including, but not limited to, payment,
reimbursement and advances of expenses) any indemnitee: (i) shall be binding upon all successors and assigns of the corporation (including
any transferee of all or substantially all of its assets and any successor by merger or otherwise by operation of law), (ii) shall be
binding on and inure to the benefit of the spouse, heirs, personal representatives and estate of the indemnitee, and (iii) shall continue
as to any indemnitee who has ceased to be a director, officer, partner, trustee, employee or agent (or other relationship or capacity).
Exhibit 4.1
EXECUTION VERSION
THIRD AMENDMENT TO THE SHAREHOLDER RIGHTS AGREEMENT
This Third Amendment to the
Shareholder Rights Agreement (this “Amendment”), dated as of December 22, 2024, amends that certain Shareholder
Rights Agreement, dated as of September 19, 2022 (as amended by the First Amendment, dated as of August 21, 2023, and as further amended
by the Second Amendment, dated as of September 3, 2024, the “Rights Agreement”), by and between Nordstrom, Inc.,
a Washington corporation (the “Company”), and Computershare Trust Company, N.A., a federally chartered trust
company (the “Rights Agent”). The Company and the Rights Agent are collectively referred to as the “Parties”.
Capitalized terms used and not otherwise defined herein have the meanings ascribed to them in the Rights Agreement.
RECITALS
WHEREAS, the Board
of Directors of the Company (the “Board”) has formed a Special Committee of the Board (the “Special
Committee”) and authorized the Special Committee to, among other things, take actions with respect to the amendment of the
Rights Agreement;
WHEREAS, the Special
Committee has determined that it is in the best interests of the Company and its shareholders to amend certain definitions in the Rights
Agreement;
WHEREAS, pursuant to
Section 27 of the Rights Agreement, prior to the Share Acquisition Date, the Company and the Rights Agent may supplement or amend the
Rights Agreement, without the approval of any holders of Rights, in any respect;
WHEREAS, the Share
Acquisition Date has not yet occurred; and
WHEREAS, in compliance
with Section 27 of the Rights Agreement, the Company has delivered to the Rights Agent a certificate from an authorized officer of the
Company that states that this Amendment complies with the terms of the Rights Agreement.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration, the Parties hereby agree as follows:
Section 1. Amendments
to the Rights Agreement.
(a) The
definition of “Bid Group” in Section 1 of the Rights Agreement is hereby deleted and replaced entirely with the following
definition:
“Buyer
Group” shall mean, collectively, Anne E. Gittinger, Anne E. Gittinger Trust u/w Everett W. Nordstrom, 1976 Elizabeth J.
Nordstrom Trust FBO Anne Gittinger, Susan E. Dunn, Susan E. Dunn Trust u/w Elizabeth J. Nordstrom, Estate of Bruce A. Nordstrom, 1976
Bruce A. Nordstrom Trust (aka 1976 Elizabeth J. Nordstrom Trust FBO Bruce A. Nordstrom), Trust A u/w Frances W. Nordstrom, Margaret Jean
O'Roark Nordstrom, Peter E. Nordstrom, Brandy F. Nordstrom, Erik B. Nordstrom, Julie A. Nordstrom, James F. Nordstrom, Jr., Lisa Nordstrom,
Katharine T. Nordstrom 2007 Trust Agreement, Julia K. Nordstrom 2007 Trust Agreement, Audrey G. Nordstrom 2007 Trust Agreement, LN 1989
TRUST JWN, LN Holdings JWN LLC, LN Holdings JWN II LLC, Alexandra F. Nordstrom, Blake and Molly Nordstrom 2012 Trust FBO Alexandra F.
Nordstrom, Andrew L. Nordstrom, Blake and Molly Nordstrom 2012 Trust FBO Andrew L Nordstrom, Leigh E. Nordstrom, Samuel C. Nordstrom,
Sara D. Nordstrom, Erik and Julie Nordstrom 2012 Sara D. Nordstrom Trust, Bruce and Jeannie Nordstrom 2010 MFN Trust, Pete and Brandy
Nordstrom 2010 MFN Trust, Bruce and Jeannie Nordstrom 2012 CFN Trust, Pete and Brandy Nordstrom 2012 CFN Trust, Pete and Brandy Nordstrom
2012 Children’s Trust, Molly Nordstrom, BWN Trust u/w Blake W. Nordstrom, Mari Mowat Wolf, Kimberly Mowat Bentz, Blake Mowat Bentz
1991 Trust, Kyle Andrew Bentz Trust 1993, LN Medina Family LLC, El Puerto de Liverpool, S.A.B. de C.V., Norse Holdings, Inc., and Navy
Acquisition Co. Inc.
(b) Section
1 of the Rights Agreement is hereby amended to include the following definition:
“Family Guarantor Group”
shall mean, collectively, Erik B. Nordstrom, Peter E. Nordstrom, James F. Nordstrom, Jr., Anne E. Gittinger, Anne E. Gittinger Trust u/w
Everett W. Nordstrom, 1976 Elizabeth J. Nordstrom Trust FBO Anne Gittinger, and the Estate of Bruce A. Nordstrom.
(c) The
definition of “Exempt Person” in Section 1 of the Rights Agreement is hereby amended and restated in its entirety as follows:
“Exempt
Person” shall mean (i) the Company or any Subsidiary of the Company, (ii) any officer, director or employee of the Company
or of any Subsidiary of the Company solely in respect of such Person’s status or authority as such (including any fiduciary capacity),
(iii) any employee benefit plan of the Company or of any Subsidiary of the Company or any entity or trustee holding (or acting in a fiduciary
capacity in respect of) shares of capital stock of the Company for or pursuant to the terms of any such plan or for the purpose of funding
other employee benefits for employees of the Company or any Subsidiary of the Company, (iv) the Buyer Group until the date that is five
(5) Business Days after the valid termination of that certain Agreement and Plan of Merger, to be dated as of December 22, 2024, by and
among the Company, Norse Holdings, Inc. and Navy Acquisition Co. Inc. (the “Buyer Group Sunset”); and (v) the
Family Guarantor Group until the date that is five (5) Business Days after the valid termination of that certain Limited Guaranty, to
be dated as of December 22, 2024, by and among the Company and the Family Guarantor Group (the “Family Guarantor Sunset”).
(d) The
second sentence of the definition of “Grandfathered Person” in Section 1 of the Rights Agreement is hereby amended and restated
in its entirety as follows:
A Person ceases to be a “Grandfathered
Person” if and when (i) such Person becomes the Beneficial Owner of less than the Specified Percentage of the shares of Common
Stock then outstanding; or (ii) such Person increases such Person’s Beneficial Ownership of shares of Common Stock (excluding
(x) as a result of any unilateral grant of any security by the Company, (y) through the exercise of any options, warrants, rights or similar
interests (including restricted stock) granted by the Company to its directors, officers or employees or (z) solely as a result of membership
in the Buyer Group prior to the Buyer Group Sunset or the Family Guarantor Group prior to the Family Guarantor Sunset) to an amount equal
to or greater than the greater of (A) the Specified Percentage of the shares of Common Stock then outstanding and (B) the sum
of (1) the lowest Beneficial Ownership of such Person as a percentage of the shares of Common Stock outstanding as of any time from
and after the first public announcement of the adoption of this Agreement (other than as a result of an acquisition of shares of Common
Stock by the Company) plus (2) 0.1% of the then outstanding shares of Common Stock.
Section 4. Remaining
Terms; Controlling Agreement. All other provisions of the Rights Agreement that are not expressly amended hereby shall continue
in full force and effect. From and after the execution and delivery of this Amendment, any references to the Rights Agreement in the Rights
Agreement and other agreements or instruments shall be deemed to refer to the Rights Agreement as amended pursuant to this Amendment.
In the event of any conflict between the terms of this Amendment and the Rights Agreement, this Amendment shall control.
Section 5. Severability.
If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other applicable
authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment shall
remain in full force and effect and shall in no way be affected, impaired or invalidated; provided, however, that, notwithstanding
anything in this Amendment to the contrary, if any such term, provision, covenant or restriction is held by such court or authority to
be invalid, void or unenforceable and the Board or Special Committee determines in its good faith judgment that severing the invalid,
void or unenforceable language from this Amendment would adversely affect the purpose or effect of this Amendment, the right of redemption
set forth in Section 23 of the Rights Agreement shall be reinstated and shall not expire until the Close of Business on the tenth
day following the date of such determination by the Board or the Special Committee; provided, further, however, that
if such excluded term, provision, covenant or restriction shall materially and adversely affect the rights, immunities, liabilities, duties
or obligations of the Rights Agent, the Rights Agent shall be entitled to resign immediately upon written notice to the Company and, if
such resignation occurs after the Distribution Time, to the holders of the Rights Certificates by first-class mail.
Section 6. Governing
Law. This Amendment shall be deemed to be a contract made under the laws of the State of Washington and for all purposes shall
be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within
such State; provided, that all provisions regarding the rights, duties, liabilities and obligations of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of Delaware applicable to contracts made and to be performed entirely
within the State of Delaware.
Section 7. Descriptive
Headings. Descriptive headings of the sections of this Amendment are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
Section 8. Counterparts.
This Amendment may be executed in one or more counterpart(s), each of which shall be deemed to be an original, but all of which shall
constitute one and the same agreement. Delivery of an executed signature page of this Amendment by facsimile or other customary means
of electronic transmission (e.g., “pdf”) shall be as effective as delivery of a manually executed counterpart hereof.
[Remainder of Page Left Intentionally Blank]
IN WITNESS WHEREOF, the Parties
have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first set forth above.
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NORDSTROM, INC. |
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By: |
/s/ Cathy R. Smith |
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Name: |
Cathy R. Smith |
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Title: |
Chief Financial Officer |
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COMPUTERSHARE TRUST COMPANY, N.A. |
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By: |
/s/ David L. Adamson |
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Name: |
David L. Adamson |
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Title: |
Executive Vice President |
[Signature Page to Third Amendment to the Shareholder Rights Agreement]
Exhibit
10.1
EXECUTION
VERSION
ROLLOVER,
VOTING AND SUPPORT AGREEMENT
This
ROLLOVER, VOTING AND SUPPORT AGREEMENT, dated as of December 22, 2024 (this “Agreement”), is made by and among
the shareholders listed on the signature page(s) hereto (collectively, the “Shareholders” and each individually,
a “Shareholder”), Norse Holdings, Inc., a Delaware corporation (“Parent”) (solely
with respect to Sections 1, 11 and 14 through 23), and Nordstrom, Inc., a Washington corporation (the “Company”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement (as
defined below).
RECITALS
WHEREAS,
as of the date hereof, each Shareholder is the record and/or beneficial owner of the number of shares of Company Common Stock set forth
opposite such Shareholder’s name on Schedule A hereto under the heading “Subject Shares” (together with such
additional shares of Company Common Stock or other voting securities of the Company that become beneficially owned (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) by such Shareholder that it is entitled to vote, whether upon the exercise of options,
conversion of convertible securities or otherwise, after the date hereof until the Voting Expiration Date (as defined below), the “Subject
Shares”);
WHEREAS,
concurrently with the execution of this Agreement, Parent, Navy Acquisition Co. Inc., a Washington corporation and a direct, wholly-owned
subsidiary of Parent (“Acquisition Sub”), and the Company are entering into an Agreement and Plan of Merger,
dated as of the date hereof (including any amendment thereto, the “Merger Agreement”), pursuant to which, upon
the terms and subject to the conditions thereof, Acquisition Sub will be merged with and into the Company (the “Merger”),
with the Company surviving the Merger as a wholly owned subsidiary of Parent;
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 the Merger Agreement and the consummation by the Company of the transactions
contemplated by the Merger Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its shareholders,
(b) approved the Merger Agreement, the execution, delivery and performance of the Merger Agreement, and subject to receiving the Requisite
Shareholder Approvals, the consummation by the Company of the transactions contemplated by the Merger Agreement, including the Merger,
upon the terms and subject to the conditions set forth in the Merger Agreement, (c) directed that the Merger Agreement be submitted to
the shareholders of the Company to be approved and (d) upon the terms and subject to the conditions of the Merger Agreement, resolved
to recommend the approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, by the Company’s
shareholders in accordance with Section 23B.11A.040 of the WBCA; and
WHEREAS,
as a material inducement to, and as a condition to, the willingness of the Company to enter into the Merger Agreement, the Shareholders
are entering into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereby agree, severally and not jointly, as follows:
1.
Rollover Contribution.
(a)
Effective immediately prior to the Effective Time, on the terms and subject to the conditions set forth herein, each Shareholder hereby
transfers, contributes and delivers (the “Rollover”) to Parent the number of shares of Company Common Stock
set forth opposite the name of such Shareholder on Schedule A hereto under the heading “Rollover Shares”
in exchange for that number of newly issued shares of common stock in Parent set forth beside the Shareholder’s name on Schedule
A hereto under the heading “Parent Shares” (the “Parent Shares”). From time to time and without
additional consideration, each Shareholder shall (at such Shareholder’s sole cost and expense) execute and deliver, or cause to
be executed and delivered, such additional instruments, and shall (at such Shareholder’s sole cost and expense) take such further
actions, as Parent may reasonably request for the purpose of carrying out and furthering the intent of this Section 1.
(b)
The Rollover shall be subject to the substantially simultaneous, but subsequent, consummation of the Merger in accordance with the terms
and conditions of the Merger Agreement.
2.
Voting of Shares.
(a)
From the date of this Agreement until the earlier to occur of: (i) the valid termination of the Merger Agreement in accordance with its
terms and (ii) the occurrence of an Adverse Recommendation Change (the “Voting Expiration Date”), at every
meeting of the shareholders of the Company called with respect to any of the following, and at every adjournment, recess or postponement
thereof, and on every action or approval by written consent of the shareholders of the Company with respect to any of the following,
each Shareholder shall vote or cause to be voted the Subject Shares (A) in favor of the approval of the Merger Agreement, the Merger
and the other transactions contemplated by the Merger Agreement, (B) in favor of any proposal by the Company to adjourn, recess or postpone
any meeting of the shareholders of the Company to a later date that complies with Section 6.2(d) of the Merger Agreement, (C) in favor
of any other proposal considered and voted upon by shareholders of the Company necessary for the consummation of the Merger and the other
transactions contemplated by the Merger Agreement, and (D) against any other proposal that would reasonably be expected to (x) result
in any of the conditions to the consummation of the Merger under the Merger Agreement not being fulfilled, or (y) impede, frustrate,
interfere with, delay, postpone or adversely affect the Merger and the other transactions contemplated by the Merger Agreement. For the
avoidance of doubt, nothing in this Section 2 shall (x) require or limit any action or inaction on the part of any Shareholder
other than in such Shareholder’s capacity as a shareholder of the Company or (y) impose any obligation to vote such Shareholder’s
Subject Shares in any particular manner other than with respect to the matters described in clauses (A) through (D) hereof. Notwithstanding
anything to the contrary in this Agreement, if at any time following the date hereof and prior to the termination of this Agreement in
accordance with Section 12, a Governmental Authority enters an Order restraining, enjoining or otherwise prohibiting a Shareholder
from taking any action pursuant to this Section 2, then the obligations of such Shareholder set forth in this Section 2
to take such action shall be of no force and effect for so long as such Order is in effect solely to the extent such Order restrains,
enjoins or otherwise prohibits such Shareholder from taking any such action.
(b)
The Company shall timely provide to each Shareholder sufficient information to confirm the manner in which the Subject Shares shall be,
or have been, voted at any Shareholders’ Meeting pursuant to Section 2(a).
(c)
Each Shareholder shall cause the Subject Shares to be counted as present for purposes of determining a quorum at each meeting of the
shareholders of the Company called with respect to the matters set forth in Section 2(a). No Shareholder shall take any action,
or refrain from taking any action, that would reasonably be expected to prevent, materially impair or materially delay the consummation
of the transactions contemplated by the Merger Agreement or that would reasonably be expected to materially restrict, limit or interfere
with, or cause a material delay of, the performance of such Shareholder’s obligations hereunder, in each case other than as contemplated
by Section 5 hereof.
3.
Irrevocable Proxy.
(a)
From the date of this Agreement until the Voting Expiration Date, each Shareholder irrevocably appoints the Company or any Person or
Persons designated by the Company as its attorney-in-fact and proxy with full power of substitution and re-substitution, to the full
extent of Shareholder’s voting rights with respect to all of such Shareholder’s Subject Shares (which proxy is irrevocable
(and as such shall survive and not be affected by the death, incapacity, mental illness or insanity of Shareholder) and which appointment
is coupled with an interest, including for purposes of Section 23B.07.220(4) of the WBCA) to (i) vote (or issue instructions to the record
holder to vote) and (ii) execute (or issue instructions to the record holder to execute) written consents with respect to, all of such
Shareholder’s Subject Shares in accordance with the provisions of Section 2; provided that each Shareholder’s
grant of the proxy contemplated by this Section 3(a) shall be effective if, and only if, a Shareholder fails to deliver (or
cause the record holder to deliver) to the Secretary of the Company, at least two (2) Business Days prior to the applicable meeting or
deadline for action by written consent, as applicable, a duly executed irrevocable proxy card or written consent, as applicable, directing
that such Shareholder’s Subject Shares be voted in accordance with Section 2. This proxy, if it becomes effective, is coupled with
an interest, was given to secure the obligations of each Shareholder under Section 2, was given in consideration of and as an
additional inducement of the Company to enter into the Merger Agreement and, in accordance with Section 23B.07.220(4) of the WBCA, shall
be irrevocable, and each Shareholder agrees to execute any further agreement or form reasonably necessary to confirm and effectuate the
grant of the proxy contained herein and hereby revokes any proxy previously granted by such Shareholder with respect to the Subject Shares.
(b)
The irrevocable proxy and power of attorney granted by each Shareholder in this Section 3 shall not be terminated by any
act of such Shareholder or other Shareholders, by operation of Law or upon the occurrence of any other event other than upon the valid
termination of this Agreement in accordance with its terms, at which time such proxy shall automatically terminate, or pursuant to the
last sentence of this Section 3(b). The irrevocable proxy and power of attorney granted by each Shareholder in this Section
3 and such Shareholder’s other obligations under this Agreement shall be binding upon such Shareholder’s heirs, successors,
legal representatives and permitted assigns. The Company may terminate this proxy with respect to a Shareholder at any time at its sole
election by written notice provided to such Shareholder.
4.
Transfer of Shares. Each Shareholder covenants and agrees that from the date of this Agreement until the Expiration Date (as defined
below) such Shareholder shall not, directly or indirectly, (a) transfer, assign, sell, pledge, encumber, hypothecate or otherwise dispose
(whether by sale, liquidation, dissolution, dividend or distribution) of, including by operation of Law, (a “Transfer”),
or cause or permit to be Transferred, any of the Subject Shares or any beneficial ownership, voting power or any other interest thereof
or therein; (b) deposit any of the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to
the Subject Shares or grant any proxy or power of attorney with respect to the Subject Shares, in each case other than this Agreement,
(c) enter into any contract, option or other arrangement or undertaking with respect to any of the foregoing or (d) take any other action,
that would prevent, materially restrict, limit or interfere with, or cause a material delay of, the performance of such Shareholder’s
obligations hereunder; provided that the foregoing restrictions shall not apply to any Transfer of Subject Shares from any Shareholder
to (i) any other Shareholder or (ii) an Affiliate of such Shareholder or any other Person for bona fide estate planning or estate administration
purposes (each, a “Permitted Transfer”); provided further, in the case of clause (ii) so long as (A)
the transferee thereof enters into a joinder in a form reasonably acceptable to the Company agreeing to become a party to this Agreement,
make the representations set forth in Section 9, and be bound by the terms and conditions hereof as a Shareholder hereunder prior
to or concurrently with such Transfer, (B) such transferee is able to perform its obligations under such joinder and (C) such Transfer
would not reasonably be expected to prevent, materially restrict, limit or interfere with, or cause a material delay of, the performance
of such Shareholder’s obligations hereunder or the consummation of the transactions contemplated by the Merger Agreement. Any Transfer
or attempted Transfer of any Subject Shares or any beneficial ownership, voting power or any other interest thereof or therein in violation
of this Section 4 shall be null and void and of no effect whatsoever.
5.
Competing Proposals. In the event that the Company receives a Competing Proposal or any inquiry, expression of interest, proposal
or offer that constitutes, or could reasonably be expected to lead to, a Competing Proposal, each Shareholder shall, if requested to
do so by the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee (provided that the Company
is permitted pursuant to Section 6.5 of the Merger Agreement to engage in discussions with the Third Party submitting such Competing
Proposal, inquiry, expression of interest, proposal or offer), explore in good faith the possibility of such Shareholder supporting such
Competing Proposal, including the possibility of such Shareholder entering into a voting agreement with respect to such Competing Proposal,
entering into an agreement with respect to the rollover or reinvestment of any shares of Company Common Stock owned by such Shareholder
(including the post-closing governance terms with respect thereto) or selling such shares of Company Common Stock in such Competing Proposal,
it being understood that such Shareholder’s decision as to whether to support such Competing Proposal or enter into any agreements
with any Person or group of Persons with respect to such Competing Proposal shall be within such Shareholder’s sole discretion
which it may exercise irrespective of the recommendation of the Company Board or the Special Committee; provided that such Shareholder
shall not enter into any agreements relating to a Competing Proposal unless 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 result in a Superior
Proposal.
6.
Appropriate Action; Consents; Filings. Each Shareholder shall, and shall cause its Affiliates to, use their respective reasonable
best efforts to consummate and make effective the transactions contemplated by the Merger Agreement and to cause the conditions to the
Merger set forth in the Merger Agreement to be satisfied as expeditiously as practicable (and in any event at least five (5) Business
Days prior to the Outside Date).
7.
Proxy Statement, Schedule 13E-3 and Other Required Filings. Each Shareholder hereby agrees to permit each of Parent and the Company
to publish and disclose in the Proxy Statement, the Schedule 13E-3 or any Other Required Filings any information concerning such Shareholder
that is required or reasonable to be included therein. To the knowledge of each Shareholder, the information supplied by such Shareholder
for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13E-3 or any Other Required Filing will not, at the
time that such information is provided, contain any 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 light of the circumstances under which they are made, not
misleading.
8.
Additional Covenants of the Shareholders.
(a)
Rating Agencies. Without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or
delayed), each Shareholder shall not, and shall cause its Subsidiaries and Affiliates not to, meet or have any communications with any
of the Rating Agencies, except for (A) meetings that the Company’s Representatives (who shall be designated by the Special Committee
and mutually agreeable to Parent) are given an opportunity to attend and (B) written communications and materials so long as the Shareholders
provided the Company with a reasonable opportunity to review and to propose comments on such written communications and materials, which
the Shareholders will consider in good faith. Without the prior written consent of the Company (such consent not to be unreasonably withheld,
conditioned or delayed), each Shareholder shall not, and shall cause its Subsidiaries and Affiliates 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 the Merger Agreement to the extent relating to the Merger Agreement, the other Transaction Documents and the transactions
contemplated thereby or relating to the Parent Parties, the Surviving Corporation, or its Subsidiaries following the Effective Time.
Each Shareholder shall 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 the Merger Agreement of the terms
of this Section 8(a) and the obligations of the Shareholder hereunder.
(b)
Parent’s Obligations. Each Shareholder agrees to take, or refrain from taking, the actions that Parent is required to cause
such Shareholder to take, or refrain from taking, in accordance with and subject to the terms contemplated by the Merger Agreement.
(c)
Waiver of Dissenters’ Rights. Each Shareholder hereby waives, to the full extent of the law, and agrees not to assert any
dissenters’ rights pursuant to Section 23B.13 of the WBCA or otherwise in connection with the Merger (unless the Company Board
(acting upon the recommendation of the Special Committee) or the Special Committee has made an Adverse Recommendation Change (that has
not been rescinded or otherwise withdrawn)) with respect to any and all Subject Shares held by the undersigned of record or beneficially
owned.
(d)
No Legal Actions. Each Shareholder agrees that such Shareholder shall not (in such Shareholder’s capacity as a shareholder
of the Company), bring, commence, institute, maintain, prosecute or voluntarily aid in any Action which (i) challenges the validity
of or seeks to enjoin the operation of any provision of this Agreement, the Merger Agreement, or (ii) alleges that the execution
and delivery of this Agreement by such Shareholder, or the approval of the Merger Agreement by the Company Board (acting upon the recommendation
of the Special Committee) or the Special Committee’s recommendation that the Company Board approve the Merger Agreement, breaches
any fiduciary duty of the Company’s directors.
(e)
Equity Awards. Notwithstanding the foregoing, nothing in this Agreement shall require a Shareholder to exercise any Company Option,
RSU Award or PSU Award owned of record and/or beneficially by such Shareholder.
9.
Representations and Warranties of each Shareholder. Each Shareholder on its own behalf hereby represents and warrants to the Company,
severally and not jointly, with respect to such Shareholder and such Shareholder’s ownership of the Subject Shares as follows as
of the date hereof and as of immediately prior to the Effective Time:
(a)
Authority. Such Shareholder has all requisite power and authority (or capacity, in the case of a Shareholder who is a natural
person) to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly authorized
(in the case of Shareholders who are not natural persons), executed and delivered by such Shareholder and constitutes a valid and binding
obligation of such Shareholder enforceable in accordance with its terms, except as such enforceability (i) may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar Laws of general application, now or hereafter
in effect, affecting or relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of
equity, whether considered in a proceeding at law or in equity (the “Bankruptcy and Equity Exception”). If
such Shareholder is a trust, no consent of any beneficiary is required for the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby. The execution, delivery and performance by such Shareholder of this Agreement does not require
any consent, approval, authorization or permit of, action by, filing with or notification to any Governmental Authority, other than (x)
filings by such Shareholder with the SEC and (y) any consent, approval, authorization, permit, action, filing or notification the failure
of which to make or obtain would not prevent, materially restrict, limit or interfere with, or cause a material delay of, the performance
of such Shareholder’s obligations hereunder.
(b)
No Conflicts. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby,
nor compliance with the terms hereof, will violate, conflict with or result in a breach of, or constitute a default (with or without
notice or lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree or Law applicable to such
Shareholder or to such Shareholder’s property or assets, except for such violations, conflicts, breaches or defaults as would not,
individually or in the aggregate, reasonably be expected to prevent, materially restrict, limit or interfere with, or cause a material
delay of, the performance of such Shareholder’s obligations hereunder. No consent (other than those that have been granted) of
any Shareholder’s spouse is necessary under any “community property” or other Laws in order for such Shareholder to
enter into and perform his obligations under this Agreement.
(c)
Company Common Stock. Such Shareholder is the record and beneficial owner of, or is a trust or estate that is the record holder
of and whose beneficiaries are the beneficial owners of, and has good and marketable title to, the Subject Shares set forth opposite
such Shareholder’s name on Schedule A hereto, free and clear of any and all security interests, liens, changes, encumbrances,
equities, claims, options or limitations of whatever nature and free of any other limitation or restriction (including any restriction
on the right to vote, sell or otherwise dispose of such Subject Shares), other than any of the foregoing (i) pursuant to this Agreement
or (ii) that would not reasonably be expected to prevent, materially restrict, limit or interfere with, or cause a material delay of,
the performance of such Shareholder’s obligations hereunder. Such Shareholder does not own, of record or beneficially, any shares
of capital stock of the Company other than the Subject Shares set forth opposite such Shareholder’s name on Schedule A hereto
under the heading “Subject Shares” (except that such Shareholder may be deemed to beneficially own Subject Shares owned by
other Shareholders or underlying any Company Option, RSU Award or PSU Award). Such Shareholder has the sole right to vote or direct the
vote of, such Subject Shares (it being understood (x) in the case of Shareholders that are trusts, that the trustees thereof have the
right to cause such Shareholders to take such actions, and (y) in the case of Subject Shares held in a 401(k) plan or individual retirement
account, any such Subject Shares for which a direction to vote is not given may be voted in accordance with the applicable governing
documents), and such Shareholder has the sole right to dispose or direct the disposition of such Subject Shares, except as set forth
in Section 7 of the Family Confidentiality Agreement. None of the Subject Shares is subject to any agreement, arrangement or restriction
with respect to the voting or disposition of such Subject Shares that would reasonably be expected to prevent, materially restrict, limit
or interfere with, or cause a material delay of, the performance of such Shareholder’s obligations hereunder. Other than this Agreement,
there are no agreements or arrangements of any kind, contingent or otherwise, obligating such Shareholder to Transfer, or cause to be
Transferred, any of the Subject Shares, and no Person has any contractual or other right or obligation to purchase or otherwise acquire
any of such Subject Shares other than pursuant to this Agreement.
(d)
Reliance by the Company. Such Shareholder understands and acknowledges that the Company is entering into the Merger Agreement
in reliance upon such Shareholder’s execution and delivery of this Agreement.
(e)
Litigation. As of the date hereof, there is no Action pending, or, to the knowledge of such Shareholder, threatened against such
Shareholder that questions the validity of this Agreement or any action taken or to be taken by such Shareholder in connection with this
Agreement.
(f)
Other Agreements. Such Shareholder is not subject to any obligation that would reasonably be expected to prevent, materially restrict,
limit or interfere with, or cause a material delay of, the performance of such Shareholder’s obligations hereunder or the performance
of Parent and Acquisition Sub under the Merger Agreement. As of the date hereof, except for this Agreement, the Guaranty to which certain
of the Shareholders are parties, that certain amended and restated letter agreement, dated as of December 22, 2024, by and among the
Company and the Buyer Group party thereto, and that certain letter agreement, dated as of December 22, 2024, by and among the Company
and the Family Guarantors party thereto, there are no contracts, undertakings, commitments, agreements, obligations, arrangements or
understandings, whether written or oral, between such Shareholder or any of its Affiliates, on the one hand, and any other Person (other
than another Parent Party), on the other hand, relating in any way to the transactions contemplated by the Merger Agreement, or to the
ownership or operations of the Company after the Effective Time.
(g)
Finders Fees. No broker, investment bank, financial advisor or other Person is entitled to any broker’s, finder’s,
financial adviser’s or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of such Shareholder, except for Moelis & Company LLC.
10.
Representations and Warranties of the Company. The Company represents and warrants to the Shareholders as follows as of the date
hereof and as of immediately prior to the Effective Time:
(a)
The Company is a corporation duly incorporated and validly existing under the Laws of the State of Washington and has all requisite corporate
power and authority to execute and deliver this Agreement and perform its obligations hereunder. The execution, delivery and performance
of this Agreement by the Company have been duly and validly authorized by all necessary corporate action by the Company, and 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. 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, subject to the Bankruptcy and Equity Exception.
11.
Representations and Warranties of Parent. Parent represents and warrants to the Shareholders and the Company as follows as of
the date hereof and as of immediately prior to the Effective Time:
(a)
Authority. Parent is a corporation duly incorporated and validly existing under the Laws of the State of Delaware and has all
requisite corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder. The execution, delivery
and performance of this Agreement by Parent has been duly and validly authorized by all necessary corporate action by Parent, and no
other corporate action on the part of Parent is necessary to authorize the execution, delivery and performance of this Agreement by Parent.
This Agreement has been duly executed and delivered by Parent and, assuming due authorization, execution and delivery of this Agreement
by the other parties hereto, constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with
its terms, subject to the Bankruptcy and Equity Exception. The execution, delivery and performance by Parent of this Agreement does not
require any consent, approval, authorization or permit of, action by, filing with or notification to any Governmental Authority, other
than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not prevent,
materially restrict, limit or interfere with, or cause a material delay of, the performance of Parent’s obligations hereunder.
(b)
No Conflicts. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby,
nor compliance with the terms hereof, will violate, conflict with or result in a breach of, or constitute a default (with or without
notice or lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree or Law applicable to Parent
or to Parent’s property or assets, except for such violations, conflicts, breaches or defaults as would not, individually or in
the aggregate, reasonably be expected to restrict, limit or interfere with, or cause a delay of, the performance of Parent’s obligations
hereunder.
12.
Shareholder Capacity. No Person executing this Agreement who is or becomes during the term hereof a director or officer of the
Company shall be deemed to make any agreement or understanding in this Agreement in such Person’s capacity as a director or officer.
Each Shareholder is entering into this Agreement severally and not jointly and with respect to the obligations set forth in Sections
1 and 2 hereof solely in such Shareholder’s capacity as the record holder or beneficial owner of, or as a trust whose
beneficiaries are the beneficial owners of, Subject Shares and nothing herein shall limit or affect any actions taken (or any failures
to act) by a Shareholder in such Shareholder’s capacity as a director or officer of the Company. The taking of any actions (or
any failures to act) by a Shareholder in such Shareholder’s capacity as a director or officer of the Company shall not be deemed
to constitute a breach of this Agreement, regardless of the circumstances related thereto.
13.
Termination. Except for those obligations which have earlier terminated on the Voting Expiration Date, this Agreement shall automatically
terminate without further action upon the earlier to occur (the “Expiration Date”) of (a) the Effective Time
and (b) the valid termination of the Merger Agreement in accordance with its terms; provided that subject in all cases to Section
14(b), no such termination shall relieve any party hereto or Parent under the Merger Agreement of any liability, costs, expenses
(including attorneys' fees) or damages of any kind, all of which shall be deemed in such event to be damages of such party and Parent
under the Merger Agreement, in the event of any Intentional Breach of this Agreement by a Shareholder prior to such termination, in which
case, subject in all cases to Section 14(b), the aggrieved party shall be entitled to all remedies available at law or in equity.
14.
Specific Performance; Limited Recourse.
(a)
Each Shareholder acknowledges and agrees that irreparable damage for which monetary damages, even if available, would not be an adequate
remedy, would occur in the event that such Shareholder does not perform the provisions of this Agreement in accordance with its specified
terms or otherwise breach such provisions. Accordingly, each Shareholder acknowledges and agrees that the Company shall be entitled to
an injunction, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce
specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Notwithstanding
the foregoing, it is explicitly agreed that the Company’s right to an injunction, specific performance or other equitable remedy
to enforce Shareholder’s obligations under Section 2, 3 and 5 of this Agreement is subject to the Company also seeking a similar
injunction, specific performance or other equitable remedy under the other Rollover and Support Agreement against the party thereto solely
to the extent such party thereto has not complied with, or is not complying with, the terms thereof with respect to the corresponding
obligation under such Rollover and Support Agreement and compliance by such non-compliant party is reasonably expected to be necessary
for obtaining the Requisite Shareholder Approvals. Each Shareholder agrees that it will not oppose the granting of an injunction, specific
performance and other equitable relief on the basis that the Company has an adequate remedy at law or that any award of specific performance
is not an appropriate remedy for any reason at law or in equity. The Company shall not be required to show proof of actual damages or
provide any bond or other security in connection with seeking an injunction or any other equitable relief to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement. These injunctive remedies are cumulative and shall
be the Company’s sole remedy against a Shareholder under this Agreement unless the Company shall have sought and been denied injunctive
remedies, and such denial is other than by reason of the absence of violation of such covenants, obligations or agreements.
(b)
Notwithstanding anything to the contrary herein, but subject to the Company’s rights to specific performance pursuant to Section
14(a) hereof, the Company’s remedies pursuant to the Retained Claims as defined in, and subject to the terms and in accordance
with the limitations set forth in, the Guaranties shall, and are intended to, be the sole and exclusive direct or indirect remedies available
to the Company and its Affiliates against each Shareholder and the Non-Recourse Parties (as defined in the Guaranties) for any liability,
loss, damages or recovery of any kind (including consequential, indirect or punitive damages, and whether at law, in equity or otherwise)
arising under or in connection with any liabilities or obligations arising under, or in connection with, the Merger Agreement or this
Agreement (whether willfully, intentionally, unintentionally or otherwise) or of the failure of the Merger to be consummated or otherwise
in connection with the transactions contemplated hereby and thereby or in respect of any oral representations made or alleged to be made
in connection herewith or therewith, including without limitation in the event Parent (1) breaches its obligations under the Merger Agreement,
whether or not such breach is caused by a Shareholder’s breach of its obligations under this Agreement or (2) enforces its rights
under the Merger Agreement. Each of the parties hereto agrees that an Intentional Breach or other material breach of this Agreement by
a Shareholder shall constitute an Intentional Breach or material breach, as applicable, of Parent under the Merger Agreement, and the
Company’s sole recourse to recover monetary damages in respect of such breach shall be those remedies available at law or in equity
against Parent in accordance with, and subject to the limitations set forth in, the Merger Agreement and the Guarantors (and their permitted
assigns) in accordance with, and subject to the limitations set forth in, the Guaranties.
15.
Governing Law; Jurisdiction.
(a)
Except to the extent the Laws of the State of Washington are mandatorily applicable, this Agreement and all Actions (whether based on
Contract, tort or otherwise) arising out of or relating to this Agreement or the actions of a Shareholder or the Company in the negotiation,
administration, performance and enforcement thereof, shall be governed by, and construed in accordance with the laws of the State of
Delaware, without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction)
that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
(b)
Each of the parties hereto hereby (i) expressly and irrevocably submits to the exclusive personal jurisdiction of the state courts of
the Delaware Court of Chancery, any other court of the State of Delaware or any federal court sitting in the State of Delaware, in the
event any dispute arises out of this Agreement or the transactions contemplated hereby, (ii) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it will not bring
any Action relating to this Agreement or the transactions contemplated hereby in any court other than the Delaware Court of Chancery,
any other court of the State of Delaware or any federal court sitting in the State of Delaware, (iv) waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any Action arising out
of or relating to this Agreement and (v) agrees that each of the other parties hereto (and Liverpool as a third party beneficiary hereunder)
shall have the right to bring any Action for enforcement of a judgment entered by the state courts of the Delaware Court of Chancery,
any other court of the State of Delaware or any federal court sitting in the State of Delaware. Each of the parties hereto agrees that
a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by Law, and each party consents to such enforcement and covenants not to oppose such enforcement in any jurisdiction.
16.
WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR THE ACTIONS OF THE SHAREHOLDERS, OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS
IN THIS SECTION 16.
17.
Amendment, Waivers, etc. This Agreement may only be amended or otherwise modified by mutual agreement of the parties hereto in
an instrument in writing signed by each of the parties. No provision of this Agreement may be waived, discharged or terminated other
than by an instrument in writing signed by the party against whom the enforcement of such waiver, discharge or termination is sought.
18.
Assignment; Third Party Beneficiaries.
(a)
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated, in whole or in part,
by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto, shall
survive the dissolution, death or incapacity of any Shareholder, and shall be binding upon the parties’ respective heirs, successors,
legal representatives and permitted assigns, including with respect to any Shareholder, any Permitted Transferee. Any attempted assignment
in violation of this Section 18 shall be null and void.
(b)
The parties hereto hereby agree that their respective agreements and obligations set forth herein are solely for the benefit of the other
parties hereto and their respective successors and permitted assigns, in accordance with and subject to the terms of this Agreement,
and this Agreement is not intended to, and does not, confer upon any Person other than the parties hereto and their respective successors
and permitted assigns any benefits, rights or remedies under this Agreement; provided, that Liverpool has relied on this Agreement
and, accordingly, and Liverpool is an express third-party beneficiary hereof solely for purposes of seeking the specific performance
of the Shareholders’ obligations hereunder in accordance with Section 14.
19.
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 19).
20.
Severability. If any term, provision, covenant or restriction of this Agreement or the application thereof to any Person or circumstance
is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy,
the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic and legal substance of the transactions contemplated hereby is
not affected in any manner materially adverse to any party. Upon such a determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby
be consummated as originally contemplated to the fullest extent possible.
21.
Entire Agreement. This Agreement (including the schedule hereto) and together with the other Transaction Documents to which any
Shareholder is a party to, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes
all prior agreements and understandings between the parties with respect thereto. Each of the parties hereto acknowledges that the Company
is entering into the Merger Agreement in reliance on the agreements of the Shareholders in this Agreement.
22.
Interpretation. Section 9.3(c) of the Merger Agreement is incorporated by reference herein, mutatis mutandis.
23.
Counterparts. This Agreement and any amendments or waivers hereto may be executed in one or more counterparts, all of which will
be considered one and the same agreement and will become effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties hereto, it being understood that all parties need not sign the same counterpart. Any such counterpart,
to the extent delivered by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery, an “Electronic
Delivery”), will be treated in all manner and respects as an original executed counterpart and will be considered to have
the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto may raise the use
of an Electronic Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated
through the use of an Electronic Delivery, as a defense to the formation of a contract, and each party hereto forever waives any such
defense, except to the extent such defense relates to lack of authenticity.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| ERIK B. NORDSTROM |
|
| |
|
| /s/ Erik B.
Nordstrom |
|
| Erik B. Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: morganm@lanepowell.com |
| Attention: Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| JULIE A. NORDSTROM |
|
| |
|
| /s/
Julie A. Nordstrom |
|
| Julie A. Nordstrom |
|
| |
|
| Address: |
[***] |
|
| Attention: |
[***] |
|
| Email: |
[***] |
|
| |
|
| with copies (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 |
|
| |
|
| Lane Powell PC |
|
| 1420 Fifth Avenue, Suite 4200 |
|
| Seattle, WA 98101 |
|
| E-mail: |
morganm@lanepowell.com |
|
| Attention: |
Michael E. Morgan |
|
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| PETER E.
NORDSTROM |
|
| |
|
| /s/ Peter
E. Nordstrom |
|
| Peter E. Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| BRANDY F.
NORDSTROM |
|
| |
|
| /s/ Brandy
F. Nordstrom |
|
| Brandy F. Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| JAMES F.
NORDSTROM, JR. |
|
| |
|
| /s/ James F.
Nordstrom, Jr. |
|
| James F. Nordstrom, Jr. |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
KATHARINE
T. NORDSTROM 2007
TRUST AGREEMENT |
|
| |
|
| By: |
/s/
James F. Nordstrom, Jr. |
|
| Name: |
James F. Nordstrom, Jr. |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
JULIA K.
NORDSTROM 2007
TRUST AGREEMENT |
|
| |
|
| By: |
/s/
James F. Nordstrom, Jr. |
|
| Name: |
James F. Nordstrom, Jr. |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
AUDREY G.
NORDSTROM 2007
TRUST AGREEMENT |
|
| |
|
| By: |
/s/
James F. Nordstrom, Jr. |
|
| Name: |
James F. Nordstrom, Jr. |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| LISA NORDSTROM |
|
| |
|
| /s/
Lisa Nordstrom |
|
| Lisa Nordstrom |
|
| |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| ANNE E. GITTINGER |
|
| |
|
| /s/
Anne E. Gittinger |
|
| Anne E. Gittinger |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
1976 ELIZABETH
J. NORDSTROM TRUST
FBO ANNE GITTINGER |
|
| |
|
| By: |
/s/
Anne E. Gittinger |
|
| Name: |
Anne E. Gittinger |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
ANNE E. GITTINGER
TRUST
U/W EVERETT W. NORDSTROM |
|
| |
|
| By: |
/s/
Charles W. Riley, Jr. |
|
| Name: |
Charles W. Riley, Jr. |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| SUSAN E. DUNN |
|
| |
|
| /s/
Susan E. Dunn |
|
| Susan E. Dunn |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| SUSAN E.
DUNN TRUST U/W ELIZABETH J. NORDSTROM |
| |
|
| By: |
/s/
Susan E. Dunn |
|
| Name: |
Susan E. Dunn |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| ESTATE OF
BRUCE A. NORDSTROM |
|
| |
|
| By: |
/s/
Margaret Jean O’Roark Nordstrom |
|
| Name: |
Margaret Jean O’Roark Nordstrom |
|
| Title: |
Co-Executor |
|
| |
|
|
| By: |
/s/ Peter
E. Nordstrom |
|
| Name: |
Peter E. Nordstrom |
|
| Title: |
Co-Executor |
|
| |
|
|
| By: |
/s/ Erik B.
Nordstrom |
|
| Name: |
Erik B. Nordstrom |
|
| Title: |
Co-Executor |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
1976 BRUCE
A. NORDSTROM TRUST
(AKA 1976 ELIZABETH J. NORDSTROM TRUST
FBO BRUCE A. NORDSTROM) |
|
| |
|
| 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: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| TRUST A U/W
FRANCES W. NORDSTROM |
|
| |
|
| By: |
/s/
Peter E. Nordstrom |
|
| Name: |
Peter E. Nordstrom |
|
| Title: |
Co-Trustee |
|
| |
|
|
| By: |
/s/ Erik B. Nordstrom |
|
| Name: |
Erik B. Nordstrom |
|
| Title: |
Co-Trustee |
|
| |
|
|
| By: |
/s/ Charles W. Riley, Jr. |
|
| Name: |
Charles W. Riley, Jr. |
|
| Title: |
Co-Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| MARGARET JEAN O'ROARK
NORDSTROM |
|
| |
|
| /s/
Margaret Jean O'Roark Nordstrom |
|
| Margaret Jean O'Roark Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| BRUCE AND
JEANNIE NORDSTROM 2010 MFN TRUST |
| |
|
| By: |
/s/
Peter E. Nordstrom |
|
| Name: |
Peter E. Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| PETE AND
BRANDY NORDSTROM 2010 MFN TRUST |
| |
|
| By: |
/s/
Erik B. Nordstrom |
|
| Name: |
Erik B. Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| BRUCE AND JEANNIE NORDSTROM 2012 CFN TRUST |
| |
|
| By: |
/s/
Peter E. Nordstrom |
|
| Name: |
Peter E. Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| PETE AND BRANDY NORDSTROM 2012 CFN TRUST |
| |
|
| By: |
/s/
Erik B. Nordstrom |
|
| Name: |
Erik B. Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| PETE AND BRANDY NORDSTROM 2012 CHILDREN’S
TRUST |
| |
|
| By: |
/s/
Erik B. Nordstrom |
|
| Name: |
Erik B. Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| LEIGH E. NORDSTROM |
|
| |
|
| /s/
Leigh E. Nordstrom |
|
| Leigh E. Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| SAMUEL C. NORDSTROM |
|
| |
|
| /s/
Samuel C. Nordstrom |
|
| Samuel C. Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| SARA D. NORDSTROM |
|
| |
|
| /s/
Sara D. Nordstrom |
|
| Sara D. Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
ERIK AND
JULIE NORDSTROM 2012
SARA D. NORDSTROM TRUST |
|
| |
|
| By: |
/s/
Peter E. Nordstrom |
|
| Name: |
Peter E. Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| LN 1989 TRUST
JWN |
|
| |
|
| By: |
/s/
Linda Nordstrom |
|
| Name: |
Linda Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| LN HOLDINGS
JWN LLC |
|
| |
|
| By: |
/s/
Kimberly Mowat Bentz |
|
| Name: |
Kimberly Mowat Bentz |
|
| Title: |
Manager |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| LN HOLDINGS
JWN II LLC |
|
| |
|
| By: |
/s/
Kimberly Mowat Bentz |
|
| Name: |
Kimberly Mowat Bentz |
|
| Title: |
Manager |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| LN MEDINA
FAMILY LLC |
|
| |
|
| By: |
/s/
Kimberly Mowat Bentz |
|
| Name: |
Kimberly Mowat Bentz |
|
| Title: |
Manager |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| ALEXANDRA F. NORDSTROM |
|
| |
|
| /s/
Alexandra F. Nordstrom |
|
| Alexandra F. Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| BLAKE &
MOLLY NORDSTROM 2012 TRUST FBO ALEXANDRA F. NORDSTROM |
|
| |
|
| By: |
/s/
Alexandra F. Nordstrom |
|
| Name: |
Alexandra F. Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| ANDREW L. NORDSTROM |
|
| |
|
| /s/
Andrew L. Nordstrom |
|
| Andrew L. Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| BLAKE AND
MOLLY NORDSTROM 2012 TRUST FBO ANDREW L NORDSTROM |
|
| |
|
| By: |
/s/
Andrew L. Nordstrom |
|
| Name: |
Andrew L. Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| MOLLY NORDSTROM |
|
| |
|
| /s/
Molly Nordstrom |
|
| Molly Nordstrom |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| BWN TRUST
U/W BLAKE W. NORDSTROM |
|
| |
|
| By: |
/s/
Molly Nordstrom |
|
| Name: |
Molly Nordstrom |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| MARI MOWAT WOLF |
|
| |
|
| /s/
Mari Mowat Wolf |
|
| Mari Mowat Wolf |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| KIMBERLY MOWAT BENTZ |
|
| |
|
| /s/
Kimberly Mowat Bentz |
|
| Kimberly Mowat Bentz |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| BLAKE MOWAT
BENTZ 1991 TRUST |
|
| |
|
| By: |
/s/
Kimberly Mowat Bentz |
|
| Name: |
Kimberly Mowat Bentz |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| KYLE ANDREW
BENTZ TRUST 1993 |
|
| |
|
| By: |
/s/
Kimberly Mowat Bentz |
|
| Name: |
Kimberly Mowat Bentz |
|
| Title: |
Trustee |
|
| Address: |
[***] |
| Attention: |
[***] |
| Email: |
[***] |
| |
|
| with copies (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 |
| |
| Lane Powell PC |
| 1420 Fifth Avenue, Suite 4200 |
| Seattle, WA 98101 |
| E-mail: |
morganm@lanepowell.com |
| Attention: |
Michael E. Morgan |
[Signature
Page to Rollover, Voting and Support Agreement]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
Solely
with respect to Sections 1, 11 and 14 through 23 of this Agreement:
| NORSE HOLDINGS,
INC. |
|
| |
|
| By: |
/s/
Erik B. Nordstrom |
|
| Name: |
Erik B. Nordstrom |
|
| Title: |
Co-Chief Executive Officer |
|
| Address: |
c/o Norse Holdings, Inc. |
| |
1617 Sixth Avenue |
| |
Seattle, WA 98101 |
| |
|
| Attention: |
Erik B. Nordstrom |
| Email: |
[***] |
| |
|
| with copies (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 |
[Signature
Page to Rollover, Voting and Support Agreement]
SCHEDULE
A
| Shareholder |
|
Subject
Shares |
|
|
Rollover
Shares |
|
|
Parent
Shares |
|
| Anne E. Gittinger |
|
|
13,849,579 |
|
|
|
13,846,274 |
|
|
|
13,846,274 |
|
| Anne E. Gittinger Trust u/w
Everett W. Nordstrom |
|
|
5,501,520 |
|
|
|
5,501,520 |
|
|
|
5,501,520 |
|
| 1976 Elizabeth J. Nordstrom
Trust FBO Anne Gittinger |
|
|
1,555,200 |
|
|
|
1,555,200 |
|
|
|
1,555,200 |
|
| Susan E. Dunn |
|
|
288,419 |
|
|
|
288,419 |
|
|
|
288,419 |
|
| Susan E. Dunn Trust u/w Elizabeth
J. Nordstrom |
|
|
743,420 |
|
|
|
743,420 |
|
|
|
743,420 |
|
| Estate of Bruce A. Nordstrom |
|
|
10,244,147 |
1 |
|
|
10,244,147 |
|
|
|
10,244,147 |
|
| 1976 Bruce A. Nordstrom Trust
(aka 1976 Elizabeth J. Nordstrom Trust FBO Bruce A. Nordstrom) |
|
|
1,555,200 |
|
|
|
1,555,200 |
|
|
|
1,555,200 |
|
| Trust A u/w Frances W. Nordstrom |
|
|
6,935,360 |
2 |
|
|
4,323,261 |
|
|
|
4,323,261 |
|
| Margaret Jean O'Roark Nordstrom |
|
|
261,776 |
|
|
|
261,776 |
|
|
|
261,776 |
|
| Peter E. Nordstrom |
|
|
2,510,606 |
3 |
|
|
2,510,606 |
|
|
|
2,510,606 |
|
| Brandy F. Nordstrom |
|
|
176,057 |
|
|
|
176,057 |
|
|
|
176,057 |
|
| Erik B. Nordstrom |
|
|
2,602,277 |
|
|
|
2,602,277 |
|
|
|
2,602,277 |
|
| Julie A. Nordstrom |
|
|
42,646 |
|
|
|
42,646 |
|
|
|
42,646 |
|
| James F. Nordstrom, Jr. |
|
|
813,346 |
|
|
|
806,098 |
|
|
|
806,098 |
|
| Lisa Nordstrom |
|
|
2,635 |
|
|
|
0 |
|
|
|
0 |
|
| Katharine T. Nordstrom 2007
Trust Agreement |
|
|
24,593 |
|
|
|
24,593 |
|
|
|
24,593 |
|
| Julia K. Nordstrom 2007 Trust
Agreement |
|
|
24,592 |
|
|
|
24,592 |
|
|
|
24,592 |
|
| Audrey G. Nordstrom 2007 Trust
Agreement |
|
|
24,592 |
|
|
|
24,592 |
|
|
|
24,592 |
|
| LN 1989 TRUST JWN |
|
|
169,801 |
|
|
|
169,801 |
|
|
|
169,801 |
|
| LN Holdings JWN LLC |
|
|
435,276 |
|
|
|
435,276 |
|
|
|
435,276 |
|
| LN Holdings JWN II LLC |
|
|
4,465,662 |
|
|
|
4,465,662 |
|
|
|
4,465,662 |
|
| Alexandra F. Nordstrom |
|
|
76,996 |
|
|
|
76,996 |
|
|
|
76,996 |
|
| Blake & Molly Nordstrom
2012 Trust FBO Alexandra F. Nordstrom |
|
|
96,394 |
|
|
|
96,394 |
|
|
|
96,394 |
|
| Andrew L. Nordstrom |
|
|
67,188 |
|
|
|
0 |
|
|
|
0 |
|
| Blake and Molly Nordstrom
2012 Trust FBO Andrew L Nordstrom |
|
|
96,394 |
|
|
|
51,264 |
|
|
|
51,264 |
|
| Leigh E. Nordstrom |
|
|
125,588 |
|
|
|
125,588 |
|
|
|
125,588 |
|
| Samuel C. Nordstrom |
|
|
121,396 |
|
|
|
121,396 |
|
|
|
121,396 |
|
| Sara D. Nordstrom |
|
|
69,806 |
|
|
|
69,806 |
|
|
|
69,806 |
|
| Erik and Julie Nordstrom 2012
Sara D. Nordstrom Trust |
|
|
47,518 |
|
|
|
47,518 |
|
|
|
47,518 |
|
| Bruce and Jeannie Nordstrom
2010 MFN Trust |
|
|
24,530 |
|
|
|
24,530 |
|
|
|
24,530 |
|
| Pete and Brandy Nordstrom
2010 MFN Trust |
|
|
3,403 |
|
|
|
3,403 |
|
|
|
3,403 |
|
| Bruce and Jeannie Nordstrom
2012 CFN Trust |
|
|
24,530 |
|
|
|
24,530 |
|
|
|
24,530 |
|
| Pete and Brandy Nordstrom
2012 CFN Trust |
|
|
3,403 |
|
|
|
3,403 |
|
|
|
3,403 |
|
| Pete and Brandy Nordstrom
2012 Children’s Trust |
|
|
192,789 |
|
|
|
192,789 |
|
|
|
192,789 |
|
| Molly A. Nordstrom |
|
|
487,807 |
|
|
|
377,626 |
|
|
|
377,626 |
|
| BWN Trust u/w Blake W. Nordstrom |
|
|
170,431 |
|
|
|
170,431 |
|
|
|
170,431 |
|
| Mari Mowat Wolf |
|
|
15,270 |
|
|
|
15,270 |
|
|
|
15,270 |
|
| Kimberly Mowat Bentz |
|
|
31,446 |
|
|
|
31,446 |
|
|
|
31,446 |
|
| Blake Mowat Bentz 1991 Trust |
|
|
2,985 |
|
|
|
2,985 |
|
|
|
2,985 |
|
| Kyle Andrew Bentz Trust 1993 |
|
|
2,079 |
|
|
|
2,079 |
|
|
|
2,079 |
|
| LN Medina Family LLC |
|
|
15,834 |
|
|
|
15,834 |
|
|
|
15,834 |
|
Exhibit 10.2
EXECUTION VERSION
ROLLOVER, VOTING AND SUPPORT AGREEMENT
This ROLLOVER, VOTING AND
SUPPORT AGREEMENT, dated as of December 22, 2024 (this “Agreement”), is made by and among the shareholder listed
on the signature page hereto (the “Shareholder”), Norse Holdings, Inc., a Delaware corporation (“Parent”)
(solely with respect to Sections 1, 11 and 13 through 22), and Nordstrom, Inc., a Washington corporation (the
“Company”). Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed
to them in the Merger Agreement (as defined below).
RECITALS
WHEREAS, as of the date hereof,
the Shareholder is the record and/or beneficial owner of the number of shares of Company Common Stock set forth opposite the Shareholder’s
name on Schedule A hereto (together with such additional shares of Company Common Stock or other voting securities of the Company
that become beneficially owned (within the meaning of Rule 13d-3 promulgated under the Exchange Act) by the Shareholder that it is entitled
to vote, whether upon the exercise of options, conversion of convertible securities or otherwise, after the date hereof until the Voting
Expiration Date (as defined below), the “Subject Shares”);
WHEREAS, concurrently with
the execution of this Agreement, Parent, Navy Acquisition Co. Inc., a Washington corporation and a direct, wholly-owned subsidiary of
Parent (“Acquisition Sub”), and the Company are entering into an Agreement and Plan of Merger, dated as of the
date hereof (including any amendment thereto, the “Merger Agreement”), pursuant to which, upon the terms and
subject to the conditions thereof, Acquisition Sub will be merged with and into the Company (the “Merger”),
with the Company surviving the Merger as a wholly owned subsidiary of Parent;
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 the Merger Agreement and the consummation by the Company of the transactions contemplated by the Merger
Agreement, including the Merger, are advisable, fair to and in the best interests of the Company and its shareholders, (b) approved the
Merger Agreement, the execution, delivery and performance of the Merger Agreement, and subject to receiving the Requisite Shareholder
Approvals, the consummation by the Company of the transactions contemplated by the Merger Agreement, including the Merger, upon the terms
and subject to the conditions set forth in the Merger Agreement, (c) directed that the Merger Agreement be submitted to the shareholders
of the Company to be approved and (d) upon the terms and subject to the conditions of the Merger Agreement, resolved to recommend the
approval of the Merger Agreement and the transactions contemplated thereby, including the Merger, by the Company’s shareholders
in accordance with Section 23B.11A.040 of the WBCA; and
WHEREAS, as a material inducement
to, and as a condition to, the willingness of the Company to enter into the Merger Agreement, the Shareholder is entering into this Agreement.
NOW, THEREFORE, in consideration
of the foregoing and the mutual representations, warranties, covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as follows:
1. Rollover
Contribution.
(a) Effective
immediately prior to the Effective Time, on the terms and subject to the conditions set forth herein, the Shareholder hereby transfers,
contributes and delivers (the “Rollover”) to Parent the number of shares of Company Common Stock set forth opposite
the name of the Shareholder on Schedule A hereto in exchange for that number of newly issued shares of common stock in
Parent set forth beside the Shareholder’s name on Schedule A hereto (the “Parent Shares”). From
time to time and without additional consideration, the Shareholder shall (at the Shareholder’s sole cost and expense) execute and
deliver, or cause to be executed and delivered, such additional instruments, and shall (at the Shareholder’s sole cost and expense)
take such further actions, as Parent may reasonably request for the purpose of carrying out and furthering the intent of this Section
1.
(b) The
Rollover shall be subject to the substantially simultaneous, but subsequent, consummation of the Merger in accordance with the terms and
conditions of the Merger Agreement.
2. Voting
of Shares.
(a) From
the date of this Agreement until the earlier to occur of: (i) the valid termination of the Merger Agreement in accordance with its terms
and (ii) the occurrence of an Adverse Recommendation Change (the “Voting Expiration Date”), at every meeting
of the shareholders of the Company called with respect to any of the following, and at every adjournment, recess or postponement thereof,
and on every action or approval by written consent of the shareholders of the Company with respect to any of the following, the Shareholder
shall vote or cause to be voted the Subject Shares (A) in favor of the approval of the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement, (B) in favor of any proposal by the Company to adjourn, recess or postpone any meeting of the shareholders
of the Company to a later date that complies with Section 6.2(d) of the Merger Agreement, (C) in favor of any other proposal considered
and voted upon by shareholders of the Company necessary for the consummation of the Merger and the other transactions contemplated by
the Merger Agreement, and (D) against any other proposal that would reasonably be expected to (x) result in any of the conditions to the
consummation of the Merger under the Merger Agreement not being fulfilled, or (y) impede, frustrate, interfere with, delay, postpone or
adversely affect the Merger and the other transactions contemplated by the Merger Agreement. For the avoidance of doubt, nothing in this
Section 2 shall (x) require or limit any action or inaction on the part of the Shareholder other than in the Shareholder’s
capacity as a shareholder of the Company or (y) impose any obligation to vote the Shareholder’s Subject Shares in any particular
manner other than with respect to the matters described in clauses (A) through (D) hereof. Notwithstanding anything to the contrary in
this Agreement, if at any time following the date hereof and prior to the termination of this Agreement in accordance with Section
12, a Governmental Authority enters an Order restraining, enjoining or otherwise prohibiting a Shareholder from taking any action
pursuant to this Section 2, then the obligations of the Shareholder set forth in this Section 2 to take such action
shall be of no force and effect for so long as such Order is in effect solely to the extent such Order restrains, enjoins or otherwise
prohibits the Shareholder from taking any such action.
(b) The
Company shall timely provide to the Shareholder sufficient information to confirm the manner in which the Subject Shares shall be, or
have been, voted at any Shareholders’ Meeting pursuant to Section 2(a).
(c) The
Shareholder shall cause the Subject Shares to be counted as present for purposes of determining a quorum at each meeting of the shareholders
of the Company called with respect to the matters set forth in Section 2(a). The Shareholder shall not take any action, or refrain
from taking any action, that would reasonably be expected to prevent, materially impair or materially delay the consummation of the transactions
contemplated by the Merger Agreement or that would reasonably be expected to materially restrict, limit or interfere with, or cause a
material delay of, the performance of the Shareholder’s obligations hereunder, in each case other than as contemplated by Section
5 hereof.
3. Irrevocable
Proxy.
(a) From
the date of this Agreement until the Voting Expiration Date, the Shareholder irrevocably appoints the Company or any Person or Persons
designated by the Company as its attorney-in-fact and proxy with full power of substitution and re-substitution, to the full extent of
Shareholder’s voting rights with respect to all of the Shareholder’s Subject Shares (which proxy is irrevocable (and as such
shall survive and not be affected by the death, incapacity, mental illness or insanity of Shareholder) and which appointment is coupled
with an interest, including for purposes of Section 23B.07.220(4) of the WBCA) to (i) vote (or issue instructions to the record holder
to vote) and (ii) execute (or issue instructions to the record holder to execute) written consents with respect to, all of the Shareholder’s
Subject Shares in accordance with the provisions of Section 2; provided that the Shareholder’s grant of the proxy
contemplated by this Section 3(a) shall be effective if, and only if, the Shareholder fails to deliver (or cause the record
holder to deliver) to the Secretary of the Company, at least two (2) Business Days prior to the applicable meeting or deadline for action
by written consent, as applicable, a duly executed irrevocable proxy card or written consent, as applicable, directing that the Shareholder’s
Subject Shares be voted in accordance with Section 2. This proxy, if it becomes effective, is coupled with an interest, was given to secure
the obligations of the Shareholder under Section 2, was given in consideration of and as an additional inducement of the Company
to enter into the Merger Agreement and, in accordance with Section 23B.07.220(4) of the WBCA, shall be irrevocable, and the Shareholder
agrees to execute any further agreement or form reasonably necessary to confirm and effectuate the grant of the proxy contained herein
and hereby revokes any proxy previously granted by the Shareholder with respect to the Subject Shares.
(b) The
irrevocable proxy and power of attorney granted by the Shareholder in this Section 3 shall not be terminated by any act of
the Shareholder or other shareholders, by operation of Law or upon the occurrence of any other event other than upon the valid termination
of this Agreement in accordance with its terms, at which time such proxy shall automatically terminate, or pursuant to the last sentence
of this Section 3(b). The irrevocable proxy and power of attorney granted by the Shareholder in this Section 3 and the Shareholder’s
other obligations under this Agreement shall be binding upon the Shareholder’s heirs, successors, legal representatives and permitted
assigns. The Company may terminate this proxy with respect to the Shareholder at any time at its sole election by written notice provided
to the Shareholder.
4. Transfer
of Shares. The Shareholder covenants and agrees that from the date of this Agreement until the Expiration Date (as defined below)
the Shareholder shall not, directly or indirectly, (a) transfer, assign, sell, pledge, encumber, hypothecate or otherwise dispose (whether
by sale, liquidation, dissolution, dividend or distribution) of, including by operation of Law, (a “Transfer”),
or cause or permit to be Transferred, any of the Subject Shares or any beneficial ownership, voting power or any other interest thereof
or therein; (b) deposit any of the Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to
the Subject Shares or grant any proxy or power of attorney with respect to the Subject Shares, in each case other than this Agreement,
(c) enter into any contract, option or other arrangement or undertaking with respect to any of the foregoing or (d) take any other action,
that would prevent, materially restrict, limit or interfere with, or cause a material delay of, the performance of the Shareholder’s
obligations hereunder; provided that the foregoing restrictions shall not apply to any Transfer of Subject Shares from any Shareholder
to an Affiliate of the Shareholder (each, a “Permitted Transfer”) so long as (A) the transferee thereof enters
into a joinder in a form reasonably acceptable to the Company agreeing to become a party to this Agreement, make the representations set
forth in Section 9, and be bound by the terms and conditions hereof as a Shareholder hereunder prior to or concurrently with such
Transfer, (B) such transferee is able to perform its obligations under such joinder and (C) such Transfer would not reasonably be expected
to prevent, materially restrict, limit or interfere with, or cause a material delay of, the performance of the Shareholder’s obligations
hereunder or the consummation of the transactions contemplated by the Merger Agreement. Any Transfer or attempted Transfer of any Subject
Shares or any beneficial ownership, voting power or any other interest thereof or therein in violation of this Section 4 shall
be null and void and of no effect whatsoever.
5. Competing
Proposals. In the event that the Company receives a 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 Shareholder shall, if requested to do so by the Company
Board (acting upon the recommendation of the Special Committee) or the Special Committee (provided that the Company is permitted pursuant
to Section 6.5 of the Merger Agreement to engage in discussions with the Third Party submitting such Competing Proposal, inquiry, expression
of interest, proposal or offer), explore in good faith the possibility of the Shareholder supporting such Competing Proposal, including
the possibility of the Shareholder entering into a voting agreement with respect to such Competing Proposal, entering into an agreement
with respect to the rollover or reinvestment of any shares of Company Common Stock owned by the Shareholder (including the post-closing
governance terms with respect thereto) or selling such shares of Company Common Stock in such Competing Proposal, it being understood
that the Shareholder’s decision as to whether to support such Competing Proposal or enter into any agreements with any Person or
group of Persons with respect to such Competing Proposal shall be within the Shareholder’s sole discretion which it may exercise
irrespective of the recommendation of the Company Board or the Special Committee; provided that the Shareholder shall not enter
into any agreements relating to a Competing Proposal unless 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 result in a Superior Proposal.
6. Appropriate
Action; Consents; Filings. The Shareholder shall, and shall cause its Affiliates to, use their respective reasonable best efforts
to consummate and make effective the transactions contemplated by the Merger Agreement and to cause the conditions to the Merger set forth
in the Merger Agreement to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the
Outside Date).
7. Proxy
Statement, Schedule 13E-3 and Other Required Filings. The Shareholder hereby agrees to permit each of Parent and the Company to publish
and disclose in the Proxy Statement, the Schedule 13E-3 or any Other Required Filings any information concerning the Shareholder that
is required or reasonable to be included therein. To the knowledge of the Shareholder, the information supplied by the Shareholder for
inclusion or incorporation by reference in the Proxy Statement, the Schedule 13E-3 or any Other Required Filing will not, at the time
that such information is provided, contain any 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 light of the circumstances under which they are made, not misleading.
8. Additional
Covenants of the Shareholder.
(a) Rating
Agencies. Without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed),
the Shareholder shall not, and shall cause its Subsidiaries and Affiliates not to meet or have any communications with any of the Rating
Agencies, except for (A) meetings that the Company’s Representatives (who shall be designated by the Special Committee and mutually
agreeable to Parent) are given an opportunity to attend, (B) written communications and materials so long as the Shareholder provided
the Company with a reasonable opportunity to review and to propose comments on such written communications and materials, which the Shareholder
will consider in good faith, and (C) meetings or communications between the Shareholder and the Rating Agencies that also issue credit
ratings for the Shareholder 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), the Shareholder shall not, and shall cause its
Subsidiaries and Affiliates 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 the Merger Agreement to the extent relating to the Merger Agreement,
the other Transaction Documents and the transactions contemplated thereby or relating to the Parent Parties, the Surviving Corporation,
or its Subsidiaries following the Effective Time. The Shareholder shall inform its 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 the Merger Agreement of the terms of this Section 8(a) and the obligations of the Shareholder hereunder.
(b) Parent’s
Obligations. The Shareholder agrees to take, or refrain from taking, the actions that Parent is required to cause the Shareholder
to take, or refrain from taking, in accordance with and subject to the terms contemplated by the Merger Agreement.
(c) Waiver
of Dissenters’ Rights. The Shareholder hereby waives, to the full extent of the law, and agrees not to assert any dissenters’
rights pursuant to Section 23B.13 of the WBCA or otherwise in connection with the Merger (unless the Company Board (acting upon the recommendation
of the Special Committee) or the Special Committee has made an Adverse Recommendation Change (that has not been rescinded or otherwise
withdrawn)) with respect to any and all Subject Shares held by the undersigned of record or beneficially owned.
(d) No
Legal Actions. The Shareholder agrees that the Shareholder shall not (in the Shareholder’s capacity as a shareholder of the
Company), bring, commence, institute, maintain, prosecute or voluntarily aid in any Action which (i) challenges the validity of or
seeks to enjoin the operation of any provision of this Agreement, the Merger Agreement, or (ii) alleges that the execution and delivery
of this Agreement by the Shareholder, or the approval of the Merger Agreement by the Company Board (acting upon the recommendation of
the Special Committee) or the Special Committee’s recommendation that the Company Board approve the Merger Agreement, breaches any
fiduciary duty of the Company’s directors.
9. Representations
and Warranties of the Shareholder. The Shareholder on its own behalf hereby represents and warrants to the Company, severally and
not jointly, with respect to the Shareholder and the Shareholder’s ownership of the Subject Shares as follows as of the date hereof
and as of immediately prior to the Effective Time:
(a) Authority.
The Shareholder has all requisite power and authority to enter into this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by the Shareholder and constitutes a valid and binding obligation of the
Shareholder enforceable in accordance with its terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar Laws of general application, now or hereafter in effect, affecting or
relating to the enforcement of creditors’ rights generally and (ii) is subject to general principles of equity, whether considered
in a proceeding at law or in equity (the “Bankruptcy and Equity Exception”). The execution, delivery and performance
by the Shareholder of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification
to any Governmental Authority, other than (x) filings by the Shareholder with the SEC, the Mexican Banking and Securities Commission (Comisión
Nacional Bancaria y de Valores) or the Mexican Stock Exchange (Bolsa Mexicana de Valores) and (y) any consent, approval, authorization,
permit, action, filing or notification the failure of which to make or obtain would not prevent, materially restrict, limit or interfere
with, or cause a material delay of, the performance of the Shareholder’s obligations hereunder.
(b) No
Conflicts. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor
compliance with the terms hereof, will violate, conflict with or result in a breach of, or constitute a default (with or without notice
or lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree or Law applicable to the Shareholder
or to the Shareholder’s property or assets, except for such violations, conflicts, breaches or defaults as would not, individually
or in the aggregate, reasonably be expected to prevent, materially restrict, limit or interfere with, or cause a material delay of, the
performance of the Shareholder’s obligations hereunder.
(c) Company
Common Stock. The Shareholder is the record and beneficial owner of, and has good and marketable title to, the Subject Shares set
forth opposite the Shareholder’s name on Schedule A hereto, free and clear of any and all security interests, liens, changes,
encumbrances, equities, claims, options or limitations of whatever nature and free of any other limitation or restriction (including any
restriction on the right to vote, sell or otherwise dispose of such Subject Shares), other than any of the foregoing (i) pursuant to this
Agreement or (ii) that would not reasonably be expected to prevent, materially restrict, limit or interfere with, or cause a material
delay of, the performance of the Shareholder’s obligations hereunder. The Shareholder does not own, of record or beneficially, any
shares of capital stock of the Company other than the Subject Shares set forth opposite the Shareholder’s name on Schedule A
hereto. The Shareholder has the sole right to vote or direct the vote of, such Subject Shares, and the Shareholder has the sole right
to dispose or direct the disposition of such Subject Shares, except as set forth in Section 4 of the Liverpool Confidentiality Agreement.
None of the Subject Shares is subject to any agreement, arrangement or restriction with respect to the voting or disposition of such Subject
Shares that would reasonably be expected to prevent, materially restrict, limit or interfere with, or cause a material delay of, the performance
of the Shareholder’s obligations hereunder. Other than this Agreement, there are no agreements or arrangements of any kind, contingent
or otherwise, obligating the Shareholder to Transfer, or cause to be Transferred, any of the Subject Shares, and no Person has any contractual
or other right or obligation to purchase or otherwise acquire any of such Subject Shares other than pursuant to this Agreement.
(d) Reliance
by the Company. The Shareholder understands and acknowledges that the Company is entering into the Merger Agreement in reliance upon
the Shareholder’s execution and delivery of this Agreement.
(e) Litigation.
As of the date hereof, there is no Action pending, or, to the knowledge of the Shareholder, threatened against the Shareholder that questions
the validity of this Agreement or any action taken or to be taken by the Shareholder in connection with this Agreement.
(f) Other
Agreements. The Shareholder is not subject to any obligation that would reasonably be expected to prevent, materially restrict, limit
or interfere with, or cause a material delay of, the performance of the Shareholder’s obligations hereunder or the performance of
Parent and Acquisition Sub under the Merger Agreement. As of the date hereof, except for this Agreement, the Equity Commitment Letter,
the Guaranty to which the Shareholder is a party, and that certain amended and restated letter agreement, dated as of December 22, 2024,
by and among the Company and the Buyer Group party thereto, there are no contracts, undertakings, commitments, agreements, obligations,
arrangements or understandings, whether written or oral, between the Shareholder or any of its Affiliates, on the one hand, and any other
Person (other than another Parent Party), on the other hand, relating in any way to the transactions contemplated by the Merger Agreement,
or to the ownership or operations of the Company after the Effective Time.
(g) Finders
Fees. No broker, investment bank, financial advisor or other Person is entitled to any broker’s, finder’s, financial adviser’s
or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the
Shareholder, except for J.P. Morgan Securities LLC.
10. Representations
and Warranties of the Company. The Company represents and warrants to the Shareholder as follows as of the date hereof and as of immediately
prior to the Effective Time:
(a) The
Company is a corporation duly incorporated and validly existing under the Laws of the State of Washington and has all requisite corporate
power and authority to execute and deliver this Agreement and perform its obligations hereunder. The execution, delivery and performance
of this Agreement by the Company have been duly and validly authorized by all necessary corporate action by the Company, and 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. 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, subject to the Bankruptcy and Equity Exception.
11. Representations
and Warranties of Parent. Parent represents and warrants to the Shareholder and the Company as follows as of the date hereof and as
of immediately prior to the Effective Time:
(a) Authority.
Parent is a corporation duly incorporated and validly existing under the Laws of the State of Delaware and has all requisite corporate
power and authority to execute and deliver this Agreement and perform its obligations hereunder. The execution, delivery and performance
of this Agreement by Parent has been duly and validly authorized by all necessary corporate action by Parent, and no other corporate action
on the part of Parent is necessary to authorize the execution, delivery and performance of this Agreement by Parent. This Agreement has
been duly executed and delivered by Parent and, assuming due authorization, execution and delivery of this Agreement by the other parties
hereto, constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, subject
to the Bankruptcy and Equity Exception. The execution, delivery and performance by Parent of this Agreement does not require any consent,
approval, authorization or permit of, action by, filing with or notification to any Governmental Authority, other than any consent, approval,
authorization, permit, action, filing or notification the failure of which to make or obtain would not prevent, materially restrict, limit
or interfere with, or cause a material delay of, the performance of Parent’s obligations hereunder.
(b) No
Conflicts. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor
compliance with the terms hereof, will violate, conflict with or result in a breach of, or constitute a default (with or without notice
or lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree or Law applicable to Parent or
to Parent’s property or assets, except for such violations, conflicts, breaches or defaults as would not, individually or in the
aggregate, reasonably be expected to restrict, limit or interfere with, or cause a delay of, the performance of Parent’s obligations
hereunder.
12. Termination.
Except for those obligations which have earlier terminated on the Voting Expiration Date, this Agreement shall automatically terminate
without further action upon the earlier to occur (the “Expiration Date”) of (a) the Effective Time, (b) the
valid termination of the Merger Agreement in accordance with its terms, and (c) the valid termination of the Equity Commitment Letter
in accordance with its terms; provided that subject in all cases to Section 13(b), no such termination shall relieve any
party hereto or Parent under the Merger Agreement of any liability, costs, expenses (including attorneys' fees) or damages of any kind,
all of which shall be deemed in such event to be damages of such party and Parent under the Merger Agreement, in the event of any Intentional
Breach of this Agreement by the Shareholder prior to such termination, in which case, subject in all cases to Section 13(b), the
aggrieved party shall be entitled to all remedies available at law or in equity.
13. Specific
Performance; Limited Recourse.
(a) The
Shareholder acknowledges and agrees that irreparable damage for which monetary damages, even if available, would not be an adequate remedy,
would occur in the event that the Shareholder does not perform the provisions of this Agreement in accordance with its specified terms
or otherwise breach such provisions. Accordingly, Shareholder acknowledges and agrees that the Company shall be entitled to an injunction,
specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically
the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity. Notwithstanding the foregoing,
it is explicitly agreed that the Company’s right to an injunction, specific performance or other equitable remedy to enforce the
Shareholder’s obligations under Section 2, 3 and 5 of this Agreement is subject to the Company also seeking a similar injunction,
specific performance or other equitable remedy under the other Rollover and Support Agreement against the parties thereto solely to the
extent the parties thereto have not complied with, or are not complying with, the terms thereof with respect to the corresponding obligation
under such Rollover and Support Agreement and compliance by such non-compliant parties is reasonably expected to be necessary for obtaining
the Requisite Shareholder Approvals. The Shareholder agrees that it will not oppose the granting of an injunction, specific performance
and other equitable relief on the basis that the Company has an adequate remedy at law or that any award of specific performance is not
an appropriate remedy for any reason at law or in equity. The Company shall not be required to show proof of actual damages or provide
any bond or other security in connection with seeking an injunction or any other equitable relief to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement. These injunctive remedies are cumulative and shall be the Company’s
sole remedy against the Shareholder under this Agreement unless the Company shall have sought and been denied injunctive remedies, and
such denial is other than by reason of the absence of violation of such covenants, obligations or agreements.
(b) Notwithstanding
anything to the contrary herein, but subject to the Company’s rights to specific performance pursuant to Section 13(a) hereof, the
Company’s remedies pursuant to the Retained Claims as defined in, and subject to the terms and in accordance with the limitations
set forth in, the Guaranties shall, and are intended to, be the sole and exclusive direct or indirect remedies available to the Company
and its Affiliates against a Shareholder and the Non-Recourse Parties (as defined in the Guaranties) for any liability, loss, damages
or recovery of any kind (including consequential, indirect or punitive damages, and whether at law, in equity or otherwise) arising under
or in connection with any liabilities or obligations arising under, or in connection with, the Merger Agreement or this Agreement (whether
willfully, intentionally, unintentionally or otherwise) or of the failure of the Merger to be consummated or otherwise in connection with
the transactions contemplated hereby and thereby or in respect of any oral representations made or alleged to be made in connection herewith
or therewith, including without limitation in the event Parent (1) breaches its obligations under the Merger Agreement, whether or not
such breach is caused by the Shareholder’s breach of its obligations under this Agreement or (2) enforces its rights under the Merger
Agreement. Each of the parties hereto agrees that an Intentional Breach or other material breach of this Agreement by the Shareholder
shall constitute an Intentional Breach or material breach, as applicable, of Parent under the Merger Agreement, and the Company’s
sole recourse to recover monetary damages in respect of such breach shall be those remedies available at law or in equity against Parent
in accordance with, and subject to the limitations set forth in, the Merger Agreement and the Guarantors (and their permitted assigns)
in accordance with, and subject to the limitations set forth in, the Guaranties.
14. Governing
Law; Jurisdiction.
(a) Except
to the extent the Laws of the State of Washington are mandatorily applicable, this Agreement and all Actions (whether based on Contract,
tort or otherwise) arising out of or relating to this Agreement or the actions of the Shareholder or the Company in the negotiation, administration,
performance and enforcement thereof, shall be governed by, and construed in accordance with the laws of the State of Delaware, without
giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the Laws of any jurisdiction other than the State of Delaware.
(b) Each
of the parties hereto hereby (i) expressly and irrevocably submits to the exclusive personal jurisdiction of the state courts of the Delaware
Court of Chancery, any other court of the State of Delaware or any federal court sitting in the State of Delaware, in the event any dispute
arises out of this Agreement or the transactions contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it will not bring any Action relating
to this Agreement or the transactions contemplated hereby in any court other than the Delaware Court of Chancery, any other court of the
State of Delaware or any federal court sitting in the State of Delaware, (iv) waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue of any Action arising out of or relating to this Agreement
and (v) agrees that each of the other parties hereto (and Liverpool as a third party beneficiary hereunder) shall have the right to bring
any Action for enforcement of a judgment entered by the state courts of the Delaware Court of Chancery, any other court of the State of
Delaware or any federal court sitting in the State of Delaware. Each of the parties hereto agrees that a final judgment in any Action
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law, and each
party consents to such enforcement and covenants not to oppose such enforcement in any jurisdiction. The Shareholder hereby appoints Cogency
Global Inc. as its authorized agent (the “Authorized Agent”) upon whom process may be served in any legal proceeding
arising out of or based hereunder or the transactions contemplated hereby that may be instituted in the Delaware Court of Chancery, any
other court of the State of Delaware or any federal court sitting in the State of Delaware by the parties hereto, and service of process
on the Authorized Agent shall be deemed effective service of process upon the Shareholder.
15. WAIVER
OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR THE ACTIONS OF THE SHAREHOLDER, OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION
15.
16. Amendment,
Waivers, etc. This Agreement may only be amended or otherwise modified by mutual agreement of the parties hereto in an instrument
in writing signed by each of the parties. No provision of this Agreement may be waived, discharged or terminated other than by an instrument
in writing signed by the party against whom the enforcement of such waiver, discharge or termination is sought.
17. Assignment;
Third Party Beneficiaries.
(a) Neither
this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated, in whole or in part, by any of
the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto, shall survive the dissolution,
death or incapacity of the Shareholder, and shall be binding upon the parties’ respective heirs, successors, legal representatives
and permitted assigns, including with respect to any Shareholder, any Permitted Transferee. Any attempted assignment in violation of this
Section 17 shall be null and void.
(b) The
parties hereto hereby agree that their respective agreements and obligations set forth herein are solely for the benefit of the other
parties hereto and their respective successors and permitted assigns, in accordance with and subject to the terms of this Agreement, and
this Agreement is not intended to, and does not, confer upon any Person other than the parties hereto and their respective successors
and permitted assigns any benefits, rights or remedies under this Agreement; provided, that Liverpool has relied on this Agreement
and, accordingly, and Liverpool is an express third-party beneficiary hereof solely for purposes of seeking the specific performance of
the Shareholder’s obligations hereunder in accordance with Section 13.
18. 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
18).
19. Severability.
If any term, provision, covenant or restriction of this Agreement or the application thereof to any Person or circumstance is held by
a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder
of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated so long as the economic and legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such a determination that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
hereto as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.
20. Entire
Agreement. This Agreement (including the schedule hereto) and together with the other Transaction Documents to which the Shareholder
is a party to, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior
agreements and understandings between the parties with respect thereto. Each of the parties hereto acknowledges that the Company is entering
into the Merger Agreement in reliance on the agreements of the Shareholder in this Agreement.
21. Interpretation.
Section 9.3(c) of the Merger Agreement is incorporated by reference herein, mutatis mutandis.
22. Counterparts.
This Agreement and any amendments or waivers hereto may be executed in one or more counterparts, all of which will be considered one and
the same agreement and will become effective when one or more counterparts have been signed by each party hereto and delivered to the
other parties hereto, it being understood that all parties need not sign the same counterpart. Any such counterpart, to the extent delivered
by fax or .pdf, .tif, .gif, .jpg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”),
will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect
as if it were the original signed version thereof delivered in person. No party hereto may raise the use of an Electronic Delivery to
deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic
Delivery, as a defense to the formation of a contract, and each party hereto forever waives any such defense, except to the extent such
defense relates to lack of authenticity.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first above written.
| |
NORDSTROM, INC. |
| |
|
|
| |
By: |
/s/ Cathy R. Smith |
| |
Name: |
Cathy R. Smith |
| |
Title: |
Chief Financial Officer |
| |
|
| |
1617 Sixth Avenue |
| |
Seattle, Washington 98101 |
| |
Email: |
Ann.Steines@nordstrom.com |
| |
Attention: |
Ann Munson Steines, Chief Legal Officer, General Counsel and Corporate Secretary |
| |
|
| |
with copies (which shall not constitute notice) to: |
| |
|
| |
Sidley Austin LLP |
| |
1001 Page Mill Road Building 1 |
| |
Palo Alto, California 94304 |
| |
Phone: (650) 565-7000 |
| |
Email: |
dzaba@sidley.com |
| |
Attention: |
Derek Zaba |
| |
|
| |
and |
| |
|
| |
Sidley Austin LLP |
| |
One South Dearborn |
| |
Chicago, Illinois 60603 |
| |
Phone: (312) 853-7000 |
| |
Email: |
ggerstman@sidley.com |
| |
|
swilliams@sidley.com |
| |
Attention: |
Gary Gerstman |
| |
|
Scott R. Williams |
[Signature Page to Rollover, Voting and Support
Agreement (Liverpool)]
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first above written.
| EL PUERTO DE LIVERPOOL, S.A.B. DE C.V. |
|
| |
|
| By: |
/s/ Graciano Francisco Guichard González |
|
| Name: |
Graciano Francisco Guichard González |
|
| Title: |
Chairman of the Board |
|
| |
|
| By: |
/s/ Enrique Guijosa Hidalgo |
|
| Name: |
Enrique Guijosa Hidalgo |
|
| Title: |
Chief Executive Officer |
|
| Address: |
Mario Pani No. 200, |
|
| |
Col. Santa Fe, Del. Cuajimalp |
|
| |
CDMX C.P. 05348 |
|
| Attention: |
Gonzalo Gallegos |
|
| |
Jacobo Apichoto |
|
| Email: |
[***] |
|
| |
[***] |
|
| |
|
| with copies (which shall not constitute notice) to: |
|
| |
|
| 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 |
|
[Signature Page to Rollover, Voting and Support
Agreement (Liverpool)]
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first above written.
Solely with respect to Sections 1, 11 and 14 through
23 of this Agreement:
| NORSE HOLDINGS, INC. |
|
| |
|
| By: |
/s/ Erik B.
Nordstrom |
|
| Name: |
Erik B. Nordstrom |
|
| Title: |
Co-Chief Executive Officer |
|
| Address: |
c/o Norse Holdings, Inc. |
|
| |
1617 Sixth Avenue |
|
| |
Seattle, WA 98101 |
|
| Attention: |
Erik B. Nordstrom |
|
| Email: |
[***] |
|
| |
|
| with copies (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 |
|
[Signature Page to Rollover, Voting and Support
Agreement (Liverpool)]
SCHEDULE A
| Name of Shareholder |
|
Number of Shares of Company Common Stock |
|
|
Number of Shares of Parent Common Stock |
|
| El Puerto de Liverpool, S.A.B. de C.V. |
|
|
15,755,000 |
|
|
|
15,755,000 |
|
Exhibit
10.3
December
22, 2024
Nordstrom,
Inc.
1700 Seventh
Avenue, Suite 1000
Seattle,
WA 98101
| Re: | Revolving
Credit Agreement, dated as of May 6, 2022 (as amended or modified from time to time, the
“Credit Agreement”), among Nordstrom, Inc., a Washington corporation (the
“Borrower”), the Lenders from time to time party thereto and Wells Fargo
Bank, National Association, as administrative agent (the “Agent”) |
Ladies and
Gentlemen:
Reference
is hereby made to the Credit Agreement described above. Capitalized terms used herein without definition shall have the meanings ascribed
to such terms in the Credit Agreement.
The
Borrower has informed the Agent and the Lenders that it may enter into an agreement with an entity affiliated with certain Lineal Descendants,
related persons and El Puerto de Liverpool, S.A.B. de C.V., along with related ancillary agreements (collectively, the “Proposed
Agreements”), to acquire a majority of the Capital Stock of the Borrower and to de-list the Borrower’s Capital Stock
from the New York Stock Exchange. The Borrower has requested that the Required Lenders consent to the entry into the Proposed Agreements.
Notwithstanding
anything to the contrary contained in the definition of “Change of Control” in Section 1.1 of the Credit Agreement or Sections
6.4 and 6.6 of the Credit Agreement, the Required Lenders hereby consent to the entry into the Proposed Agreements. For the avoidance
of doubt, this consent does not permit the consummation of the transactions contemplated by the Proposed Agreements.
The
consent contained herein is a one-time consent and is expressly limited to the purposes and matters set forth herein. Nothing contained
herein shall constitute a waiver or modification of any other rights or remedies the Agent or any Lender may have under any Loan Document
or Applicable Law. The Credit Agreement shall remain in full force and effect according to its terms (as modified by this letter). This
letter is a Loan Document.
The
Loan Parties represent and warrant to the Agent and each Lender that (a) the representations and warranties of the Loan Parties set forth
in Article IV of the Credit Agreement and in the other Loan Documents are true and correct in all material respects as of the
date hereof (except to the extent a representation and warranty specifically refers to an earlier date and then as of such earlier date);
provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already
are qualified or modified by materiality in the text thereof and (b) no event has occurred and is continuing which constitutes a Default
or an Event of Default.
This
letter may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement. Delivery of an executed counterpart by facsimile or other secure electronic
format (.pdf) shall be as effective as an original. This letter shall become effective upon the Agent's receipt of counterparts hereof
duly executed by the Required Lenders and each of the Loan Parties. THIS LETTER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The jurisdiction, service of
process, waiver of venue and waiver of jury trial provisions of Sections 9.12 and 9.23 of the Credit Agreement are hereby
incorporated by reference, mutatis mutandis.
| |
Very truly yours, |
| |
|
| |
WELLS
FARGO BANK, NATIONAL ASSOCIATION, as
Agent and Lender |
| |
|
| |
By: |
/s/
Bina Barnes |
| |
Name: |
Bina Barnes |
| |
Title: |
Vice President |
| LENDERS: |
BANK OF AMERICA, N.A., |
| |
as L/C Issuer and Lender |
| |
|
|
| |
By: |
/s/ Michelle
L. Walker |
| |
Name: |
Michelle L. Walker |
| |
Title: |
Director |
| |
|
|
| |
U.S. BANK NATIONAL ASSOCIATION, |
| |
as L/C Issuer and Lender |
| |
|
|
| |
By: |
/s/ Joyce
P. Dorsett |
| |
Name: |
Joyce P. Dorsett |
| |
Title: |
Senior Vice President |
| |
|
|
| |
Fifth
Third Bank, National Association, |
| |
as a Lender |
| |
|
|
| |
By: |
/s/ Nate Calloway |
| |
Name: |
Nate Calloway |
| |
Title: |
Corporate Banking Associate,
Officer |
| |
|
|
| |
JPMorgan
Chase Bank, N.A., |
| |
as a Lender |
| |
|
|
| |
By: |
/s/ Sean Bodkin |
| |
Name: |
Sean Bodkin |
| |
Title: |
Executive Director |
| |
|
|
| |
MUFG
Bank, Ltd., |
| |
as a Lender |
| |
|
|
| |
By: |
/s/ Cameron
Farrell |
| |
Name: |
Cameron Farrell |
| |
Title: |
Vice President |
| |
|
|
| |
The
Bank of Nova Scotia, |
| |
as Canadian L/C Issuer and Lender |
| |
|
|
| |
By: |
/s/ Todd Kennedy |
| |
Name: |
Todd Kennedy |
| |
Title: |
Managing Director |
| |
|
|
| |
The
Toronto-Dominion Bank, New York Branch, |
| |
as a Lender |
| |
|
|
| |
By: |
/s/ Victoria
Roberts |
| |
Name: |
Victoria Roberts |
| |
Title: |
Authorized Signatory |
| |
Goldman
Sachs Bank USA, |
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as a Lender |
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By: |
/s/
Priyankush Goswami |
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Name: |
Priyankush Goswami |
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Title: |
Authorized Signatory |
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Morgan
Stanley Bank, N.A., |
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as a Lender |
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By: |
/s/ Gretell Merlo |
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Name: |
Gretell Merlo |
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Title: |
Authorized Signatory |
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KeyBank
National Association, |
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as a Lender |
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By: |
/s/ Tad L.
Stainbrook |
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Name: |
Tad L. Stainbrook |
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Title: |
Senior Vice President |
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The
Bank of New York Mellon, |
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as a Lender |
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By: |
/s/ Thomas
J. Tarasovich, Jr. |
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Name: |
Thomas J. Tarasovich, Jr. |
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Title: |
Senior Vice President |
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Bank
of Hawaii, |
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as a Lender |
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By: |
/s/ Terri
L. Okada |
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Name: |
Terri L. Okada |
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Title: |
Senior Vice President |
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Accepted and
Agreed to: |
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| BORROWER: |
NORDSTROM, INC. |
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By: |
/s/ Randolph
R. Kanai |
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Name: |
Randolph R. Kanai |
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Title: |
Vice President Controller |
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| GUARANTORS: |
NORDSTROM, INC. |
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By: |
/s/ Randolph
R. Kanai |
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Name: |
Randolph R. Kanai |
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Title: |
Vice President Controller |
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NIHC, INC. |
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By: |
/s/
Brian DeFoe |
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Name: |
Brian DeFoe |
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Title: |
Secretary |
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NORDSTROM CARD
SERVICES, INC. |
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By: |
/s/
Brian DeFoe |
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Name: |
Brian DeFoe |
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Title: |
Secretary |
Exhibit 99.1
Nordstrom to Be Acquired by Nordstrom Family
and Liverpool
Nordstrom Shareholders to Receive $24.25 Per
Share in Cash
Transaction Represents a Premium of Approximately
42% Since March 18, 2024
Board Also Intends to Pay Special Dividend of
Up to $0.25 Per Share in Cash Contingent on Closing
SEATTLE, December 23, 2024 – Nordstrom, Inc. (NYSE: JWN)
today announced it has signed a definitive agreement under which Erik, Pete, Jamie Nordstrom and other members of the Nordstrom family
(collectively, the “Nordstrom Family”) and El Puerto de Liverpool, S.A.B. de C.V. (“Liverpool”) (BMV: LIVEPOL)
will acquire all of the outstanding common shares of Nordstrom not already beneficially owned by the Nordstrom Family and Liverpool in
an all-cash transaction valued at approximately $6.25 billion on an enterprise basis. Following the close of the transaction, the Nordstrom
Family will have a majority ownership stake in the Company.
Under the terms of the agreement, Nordstrom common shareholders will
receive $24.25 in cash for each share of Nordstrom common stock they hold. The merger consideration represents a premium of approximately
42% to the Company’s unaffected closing common stock price on March 18, 2024, the last trading day prior to media speculation regarding
a potential transaction. In addition, the Board intends to authorize a special dividend of up to $0.25 per share (based on Nordstrom’s
cash on hand) immediately prior to and contingent on the close of the transaction. Upon completion of the transaction, Nordstrom will
become a private company.
The Nordstrom Board of Directors, with Erik and Pete Nordstrom recusing
themselves, has unanimously approved the proposed transaction upon the unanimous recommendation of a special committee of independent
and disinterested directors that led the review and negotiation of this transaction. The special committee, composed of Kirsten Green,
Amie Thuener O’Toole and Eric Sprunk, was formed in February 2024 in response to interest expressed by Erik and Pete Nordstrom in
exploring a possible transaction during the Board’s most recent evaluation of possible avenues to enhance shareholder value.
“The special committee of the Nordstrom Board of Directors reviewed
this proposal against the Company’s standalone prospects for growth,” said Eric Sprunk, chairman of the special committee.
“Following a rigorous and independent evaluation and consultation with outside financial and legal advisors, the special committee
unanimously concluded that this transaction offers greater value for all public shareholders at a significant premium to the unaffected
share price.”
“The Nordstrom Board regularly considers alternatives to enhance
value, culminating in this most recent process,” added Brad Tilden, chairman of the Nordstrom Board. “I want to thank the
special committee for their diligent and thorough work evaluating and negotiating this transaction over the past several months.”
“For over a century, Nordstrom has operated with a foundational principle of helping customers feel good and look their best,”
said Erik Nordstrom, chief executive officer of Nordstrom. “Today marks an exciting new chapter for the business. On behalf of my
family, we look forward to working with our teams to ensure Nordstrom thrives long into the future.”
“We’re grateful to the employees, customers and shareholders who have shaped Nordstrom into the company it is today,”
said Pete Nordstrom, chief brand officer of Nordstrom. “Since our founding in 1901, we have been committed to providing our customers
with the best possible service – and to improving it every day. We look forward to building on that commitment in this next phase
of the Company’s evolution.”
“Nordstrom is one of the worldwide leaders in department store
retailing, and we’re thrilled to be investing in a company that has meaningfully shaped the industry for nearly 125 years,”
said Graciano F. Guichard G., executive chairman of the Board of Directors of Liverpool. “We are honored to partner with the Nordstrom
Family and the Company’s talented team as they continue to deliver outstanding service to customers.”
Transaction Details
The transaction is expected to close in the first half of 2025, subject
to regulatory and other conditions, including approval of holders of two-thirds of the Company’s common stock and the holders of
a majority of the shares of the Company not owned by the Nordstrom Family or Liverpool or their respective affiliates and the Company’s
directors and Section 16 officers.
The transaction will be financed through a combination of rollover
equity by the Nordstrom Family and Liverpool, cash commitments by Liverpool, up to $450 million in borrowings under a new $1.2 billion
ABL bank financing, and Company cash on hand. The Company’s $2.7 billion principal amount of existing senior notes and debentures
are expected to remain outstanding following the transaction. As part of the transaction, the Company expects to take actions to secure
the Company’s existing senior notes and debentures with a second lien on the Company’s current assets and related collateral
and a first lien on the Company’s other assets (excluding real estate), conditioned and effective upon the transaction closing.
Following the closing of the transaction, Nordstrom will be owned 50.1% by the Nordstrom Family and 49.9% by Liverpool.
In addition to the special dividend (if paid), Nordstrom expects to
continue paying regular quarterly cash dividends of 19 cents per share through transaction close, including a pro-rated dividend for any
partial quarter immediately prior to the close of the transaction.
Upon completion of the transaction, Nordstrom’s common stock
will no longer be listed on any public market.
Advisors
Morgan Stanley & Co. LLC and Centerview Partners LLC are acting
as financial advisors to the special committee, and Sidley Austin LLP and Perkins Coie LLP are acting as legal counsel to the special
committee.
Moelis & Company LLC is acting as financial advisor and Wilmer
Cutler Pickering Hale and Dorr LLP, Lane Powell PC and Davis Wright Tremaine LLP are acting as legal counsel to the Nordstrom Family.
J.P. Morgan Securities LLC is acting as financial advisor and Simpson
Thacher & Bartlett LLP and Galicia Abogados, S.C. are acting as legal counsel to Liverpool.
About Nordstrom
At Nordstrom, Inc. (NYSE: JWN), we exist to help our customers feel
good and look their best. Since starting as a shoe store in 1901, how to best serve customers has been at the center of every decision
we make. This heritage of service is the foundation we're building on as we provide convenience and true connection for our customers.
Our interconnected model enables us to serve customers when, where and how they want to shop – whether that's in-store at more than
350 Nordstrom, Nordstrom Local and Nordstrom Rack locations or digitally through our Nordstrom and Rack apps and websites. Through it
all, we remain committed to leaving the world better than we found it.
About El Puerto De Liverpool
El Puerto de Liverpool is a Mexican omnichannel retailer with a leading
presence in department stores and a robust e-commerce platform. It operates across Mexico with 310 stores under the Liverpool and Suburbia
banners, 119 specialized boutiques, as well as 29 shopping centers. The Company is also one of the leading credit card issuers in the
country with more than 7.6 million credit card holders, accounting for 47% of its sales transactions. For 176 years, it has offered a
comprehensive selection of high-quality products and services—from the latest in fashion for the entire family to expert advice
on interior design, food and beverages, housewares, technology, and much more.
Liverpool is recognized as one of the best places to work in Mexico,
employing more than 78,000 workers nationwide. The company is committed to operating with efficiency, growth, innovation, prestige, exceptional
service, profitability, and adaptability to specific markets, all while fostering a strong sense of social responsibility towards the
world around it.
Additional Information
Regarding the Transaction and Where to Find It
This press release relates to the proposed transaction (the “proposed
transaction”) involving the Company, Norse Holdings, Inc. (“Parent”) and Navy Acquisition Co. Inc. (“Acquisition
Sub”), whereby the Company would become a wholly-owned subsidiary of Parent. This press release does not constitute an offer to
sell or the solicitation of an offer to buy any securities of the Company or any other person or the solicitation of any vote or approval.
The Company and affiliates of the Company intend to jointly file a transaction statement on Schedule 13E-3 (the “Schedule
13E-3”) relating to the proposed transaction, and the Company intends to file a proxy statement on Schedule 14A relating
to a special meeting of shareholders to approve the proposed transaction, each of which will be mailed or otherwise disseminated to the
shareholders of the Company entitled to vote on the proposed transaction. The Company may also file other relevant documents with the
Securities and Exchange Commission (the “SEC”) regarding the proposed transaction. BEFORE MAKING ANY VOTING OR INVESTMENT
DECISION WITH RESPECT TO THE PROPOSED TRANSACTION, INVESTORS AND SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ THE DEFINITIVE PROXY
STATEMENT REGARDING THE PROPOSED TRANSACTION (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO OR INCORPORATED BY REFERENCE THEREIN), THE
SCHEDULE 13E-3 (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO OR INCORPORATED BY REFERENCE THEREIN), AND OTHER RELEVANT DOCUMENTS FILED
OR TO BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION
ABOUT THE PROPOSED TRANSACTION. Investors and security holders may obtain free copies of the definitive proxy statement, any amendments
or supplements thereto and other documents containing important information about the Company and the proposed transaction, once such
documents are filed with the SEC, through the website maintained by the SEC at www.sec.gov. In addition, shareholders of the Company may
obtain free copies of such documents by accessing the Investor Relations portion of the Company’s website at https://nordstrom.gcs-web.com/financial-information/sec-filings.
Participants in the Solicitation
The Company and certain of its directors, executive officers and other
employees may, under the rules of the SEC, be deemed to be participants in the solicitation of proxies in connection with the proposed
transaction. Information about the directors and executive officers of the Company is set forth in the Company’s definitive proxy
statement on Schedule 14A for the 2024 annual meeting of the shareholders of the Company, filed with the SEC on April 11, 2024 (available here), under the sections “Corporate Governance—Director Compensation and Stock Ownership Guidelines,” “Compensation
of Executive Officers,” and “Security Ownership of Certain Beneficial Owners and Management.” To the extent the security
holdings of directors and executive officers have changed since the amounts described in these filings, such changes are set forth on
Initial Statements of Beneficial Ownership on Form 3 or Statements of Change in Ownership on Form 4 filed with the SEC. Updated information
regarding the identity of participants and their direct or indirect interests, by security holdings or otherwise, in the Company will
be set forth in the Company’s Proxy Statement on Schedule 14A regarding the approval of the proposed transaction and other relevant
documents to be filed with the SEC, if and when they become available. These documents will be available free of charge as described above.
Cautionary Statement Regarding Forward-Looking Statements
This press release contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, including,
without limitation, statements regarding the anticipated timing of the consummation of the proposed transaction. Forward-looking statements
provide current expectations of future events based on certain assumptions and include any statement that does not directly relate to
any historical or current fact. Forward-looking statements can also be identified by words such as “anticipates,” “believes,”
“plans,” “expects,” “future,” “intends,” “may,” “will,” “would,”
“could,” “should,” “estimates,” “predicts,” “potential,” “continues,”
“target,” “outlook” and similar terms and expressions, but the absence of these words does not mean that the statement
is not forward-looking. Actual results may differ significantly from management’s expectations due to various risks and uncertainties
including, without limitation: (i) the risk that the proposed transaction may not be completed in a timely manner, or at all; (ii) the
failure to satisfy the conditions to the consummation of the proposed transaction, including, without limitation, the receipt of shareholder
approvals, the receipt of necessary regulatory approvals or the absence of a Below Investment Grade Rating Event; (iii) unanticipated
difficulties or expenditures relating to the proposed transaction; (iv) the effect of the announcement or pendency of the proposed transaction
on the plans, business relationships, operating results and operations; (v) potential difficulties retaining employees, suppliers and
customers as a result of the announcement and pendency of the proposed transaction; (vi) the response of employees, suppliers and customers
to the announcement of the proposed transaction; (vii) risks related to diverting management’s attention from the Company’s
ongoing business operations; (viii) legal proceedings, including those that may be instituted against the Company, its board of directors,
its executive officers or others following the announcement of the proposed transaction; and (ix) risks regarding the failure to obtain
the financing to complete the proposed transaction or have a sufficient amount of Company cash on hand to complete the proposed transaction
or pay the full amount of the special dividend contemplated by the proposed transaction. In addition, a description of certain other factors
that could affect the Company’s business, financial condition or results of operations is included in the Company’s most recent
Annual Report on Form 10-K and most recent Quarterly Report on Form 10-Q filed with the SEC. Forward-looking statements reflect the Company’s
good faith beliefs, assumptions and expectations but are not guarantees of future performance or events. Readers are cautioned not to
place undue reliance on these forward-looking statements, which speak only as of the date of this press release. These forward-looking
statements speak only as of the date they are made, and the Company undertakes no obligation to update any forward-looking statements
to reflect events or circumstances after the date hereof, except as may be required by law.
###
INVESTOR CONTACT:
James Duies
Nordstrom, Inc.
InvRelations@Nordstrom.com
MEDIA CONTACT:
Grace Stearns
Nordstrom, Inc.
NordstromPR@Nordstrom.com
Adam Pollack / Tim Ragones
Joele Frank, Wilkinson Brimmer Katcher
(212) 355-4449
4
Nordstrom (NYSE:JWN)
過去 株価チャート
から 11 2024 まで 12 2024
Nordstrom (NYSE:JWN)
過去 株価チャート
から 12 2023 まで 12 2024
