& PAYNE, INC.,

 INC.,

 INC.

Dated as of May 22, 2017

AGREEMENT AND PLAN OF MERGER

by and among

HELMERICH & PAYNE, INC.,

SPRING MERGER SUB, INC.,

MOTIVE DRILLING TECHNOLOGIES, INC.

and

SHAREHOLDER REPRESENTATIVE SERVICES LLC

___________________________

Dated as of May 22, 2017

___________________________

Page

Article I

THE MERGER

Section 1.1

The Merger

Section 1.2

Effects of the Merger

Section 1.3

Closing; Effective Time of the Merger

Section 1.4

Organizational Documents; Directors and Officers of the Surviving Corporation

Article II

OTHER CLOSING TRANSACTIONS

Section 2.1

Conversion of Capital Stock

Section 2.2

Certain Closing Deliveries

Section 2.3

Closing Payments

Section 2.4

Exchange Procedures; Other Matters

Section 2.5

Appraisal Rights

Section 2.6

Withholding

Article III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Section 3.1

Due Organization and Good Standing

Section 3.2

Organizational Documents

Section 3.3

Capitalization; Subsidiaries

Section 3.4

Authority; Binding Nature of Agreement

Section 3.5

Non-Contravention; Consents

Section 3.6

Financial Statements; Undisclosed Liabilities

Section 3.7

Absence of Certain Changes

Section 3.8

IP Rights

Section 3.9

Title to Assets; Real Property

Section 3.10

Material Contracts

Section 3.11

Compliance with Laws; Permits

Section 3.12

Claims; Orders

Section 3.13

Tax Matters

Section 3.14

Employee Benefit Plans

Section 3.15

Labor Matters

Section 3.16

Environmental Matters

Section 3.17

Insurance

Section 3.18

Takeover Statutes

Section 3.19

Customers and Suppliers

Section 3.20

Sufficiency of Assets

Section 3.21

Solvency

Section 3.22

Bank Accounts

Section 3.23

Brokers

Section 3.24

Matters Regarding Control

Article IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Section 4.1

Due Organization; Etc.

Section 4.2

Authority; Binding Nature of Agreement

Section 4.3

Non-Contravention; Consents

Section 4.4

Ownership and Operations of Merger Sub

Section 4.5

Claims; Orders

Section 4.6

Sufficient Funds

Section 4.7

Brokers

Article V

COVENANTS AND AGREEMENTS

Section 5.1

Interim Operations of the Acquired Entities

Section 5.2

Exclusive Dealing

Section 5.3

Consents, Approvals and Filings; Other Actions

Section 5.4

Access

Section 5.5

Employee Matters

Section 5.6

Publicity; Confidentiality

Section 5.7

Indemnification; Directors’ and Officers’ Insurance

Section 5.8

Termination of Affiliate Contracts

Section 5.9

Treatment of Company Options

Section 5.10

Company Stockholder Approval; Information Statement; Conversion of Preferred Stock

Section 5.11

Earnout Payments

Article VI

CONDITIONS TO THE MERGER

Section 6.1

Conditions to Each Party’s Obligation to Effect the Merger

Section 6.2

Conditions to Obligations of Parent and Merger Sub

Section 6.3

Conditions to Obligation of the Company

Article VII

TERMINATION

Section 7.1

Termination Rights

Section 7.2

Effect of Termination; Procedure for Termination

Article VIII

INDEMNIFICATION

Section 8.1

Survival

Section 8.2

Indemnification

Section 8.3

Monetary Limitations

Section 8.4

Indemnification Procedures

Section 8.5

Losses; Mitigation

Section 8.6

Breach; Losses; Materiality Scrape

Section 8.7

Exclusive Remedy; Escrow Releases; Other Indemnification Matters

Section 8.8

Adjustments for Tax Purposes

Article IX

TAX MATTERS

Section 9.1

Responsibility for Filing Tax Returns

Section 9.2

Straddle Periods

Section 9.3

Tax Refunds

Section 9.4

Contests Related to Taxes

Section 9.5

Cooperation Related to Taxes

Section 9.6

Transfer Taxes

Section 9.7

Tax Sharing Agreements

Section 9.8

Post-Closing Actions

Article X

STOCKHOLDER REPRESENTATIVE

Section 10.1

Appointment

Section 10.2

Indemnification

Section 10.3

Reliance

Section 10.4

Interest

Section 10.5

Representative Expense Fund

Article XI

MISCELLANEOUS PROVISIONS

Section 11.1

Amendment

Section 11.2

Waiver

Section 11.3

Entire Agreement; Counterparts

Section 11.4

Applicable Law; Jurisdiction; WAIVER OF JURY TRIAL

Section 11.5

Remedies; Specific Performance

Section 11.6

Payment of Expenses

Section 11.7

Assignability; Third-Party Rights

Section 11.8

Notices

Section 11.9

Severability

Section 11.10

No Other Representations and Warranties

Section 11.11

Construction

Exhibits*

Exhibit A

Definitions

Exhibit B

Form of Section 1.1445‑2(c)(3) Certificate

Exhibit C

Form of Letter of Transmittal

Exhibit D

Earnout Payments

Exhibit E

Form of Escrow Agreement

Exhibit F

Form of Company Optionholder Surrender Form

Schedules*

Schedule A

Company Disclosure Schedule

* Exhibits and schedules (not otherwise attached below) will be supplementally furnished to the SEC upon request.

(a) The Parties shall consummate the Merger (the “Closing”)  at the offices of Parent, 1437 S. Boulder Ave., Suite 1400, Tulsa, Oklahoma 74119‑3623,  at 10:00 a.m.,  Tulsa, Oklahoma time, on the third (3rd) Business Day after the satisfaction or waiver of the last of the conditions set forth in Article VI to be satisfied or waived (other than any such condition that by its nature is to be satisfied at the Closing, but subject to the satisfaction or waiver of such condition at the Closing),  unless the Parent and the Company otherwise agree in writing to another place, time and date;  provided,  however, that neither Parent nor Merger Sub shall be required to consummate the Merger prior to June 2, 2017.  For purposes of this Agreement, the “Closing Date” means the date on which the Closing actually occurs.

(b) The Company shall file a certificate of merger that has been duly executed and acknowledged in accordance with, and in such form as required by, the relevant provisions of the DGCL (the “Certificate of Merger”)  with the Secretary of State of the State of Delaware concurrently with the Closing. The Merger shall become effective at the time of the filing of the Certificate of Merger with the Secretary of State of the State of Delaware or at such other time as may be mutually agreed in writing by Parent and the Company and set forth in the Certificate of Merger (the time as of which the Merger becomes effective,  the “Effective Time”).

(a) As of the Effective Time, the certificate of incorporation of the Surviving Corporation shall be amended and restated to be the same as the certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended as provided therein and in accordance with applicable Law, except that the name of the Surviving Corporation shall be Motive Drilling Technologies, Inc. As of the Effective Time, the bylaws of the Surviving Corporation shall be amended and restated to be the same as the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended as

(b) As of the Effective Time, (i) the directors of Merger Sub as of immediately prior to the Effective Time shall be the directors of the Surviving Corporation, and (ii) the officers of Merger Sub as of immediately prior to the Effective Time shall be the officers of the Surviving Corporation, in each case until their successors have been duly elected or appointed or until their earlier death, resignation or removal.

(a) any shares of Company Common Stock or Company Preferred Stock held in the Company’s treasury or held by the Company (other than shares of Company Common Stock or Company Preferred Stock that are held in a fiduciary or agency capacity and are beneficially owned by third parties) immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;

(b) any shares of Company Common Stock or Company Preferred Stock held by Parent, Merger Sub or any other wholly owned Subsidiary of Parent immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;

(c) except as provided in Section 2.1(a) and Section 2.1(b), and subject in all respects to Section 2.4(a) and Section 2.5, each share of Company Common Stock outstanding immediately prior to the Effective Time shall be converted into and shall thereafter represent only the right to receive the following, which amounts shall be rounded to the nearest cent on an aggregate basis per Company Securityholder after aggregating all amounts payable in respect of all shares of Company Common Stock and all Company Options held by such Company Securityholder:

(i) the Per-Share Portion of the Estimated Common Stock Closing Consideration, in each case, in cash and without interest and payable as set forth in Section 2.4(a) (the aggregate amount payable under this Section 2.1(c)(i) the “Aggregate Common Stock Closing Amount”);

(ii) a contingent right to receive the Per-Share Portion of the aggregate amount of the funds held in the Indemnification Escrow Account, if any, that is released to the Company Stockholders and the Surviving Corporation or its designee pursuant to Section 8.7(c), in each case, in cash and without interest and payable as set forth in Section 8.7(c) and the Escrow Agreement;

(iii) a contingent right to receive the Per-Share Portion of the aggregate amount of the funds held in the Representative Expense Fund, if any, that is released to the Company Stockholders and the Surviving Corporation or its designee pursuant to Section 10.5, in each case, in cash and without interest and payable as set forth in Section 10.5;  and

(iv) a contingent right to receive the Per-Share Portion of any Earnout Payments, in each case, in cash and without interest and payable as set forth in Section 5.11 and Exhibit D;

(d) each share of Company Preferred Stock outstanding immediately prior to the Effective Time, if any, shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor; and

(e) each share of common stock, par value $0.01 per share, of Merger Sub outstanding immediately prior to the Effective Time shall be converted into one (1) share of common stock, $0.01 par value, of the Surviving Corporation and shall constitute the only outstanding shares of capital stock of the Surviving Corporation as of immediately after the Effective Time.

(a) At the Closing, the Company shall deliver to Parent and Merger Sub the following:

(i) the Escrow Agreement, duly executed by the Stockholder Representative;

(ii) a resignation, effective as of the Effective Time, executed by each director of any Acquired Entity in office immediately prior to the Effective Time, in form and substance reasonably acceptable to Parent;

(iii) a duly executed certificate issued by the Company in form and substance prescribed by Treasury Regulations Section 1.1445‑2(c)(3), stating that the Company is not, and has not been during the relevant period specified in Section 897(c)(1)(ii) of the Code, a “United States real property holding corporation” within the meaning of Section 897(c) of the Code (including a form of notice to the IRS as prescribed by Treasury Regulations Section 1.897‑2(h)(2), along with written authorization for Parent to deliver such form of notice to the IRS) in the form attached hereto as Exhibit B;

(iv) the Company Board Resolutions, duly certified by the secretary or assistant secretary of the Company;

(v) a validly issued certificate (dated not more than two (2) Business Days prior to the Closing Date) as to the good standing of each Acquired Entity in its jurisdiction of incorporation, formation or organization; and

(vi) the certificate contemplated by Section 6.2(c).

(b) At the Closing, Parent shall deliver to the Company the following:

(i) the Escrow Agreement, duly executed by Parent and the Escrow Agent; and

(ii) the certificate contemplated by Section 6.3(c).

(a) Payment Statement.  No later than two (2) Business Days prior to the Closing Date, the Company shall deliver to Parent a written statement (the “Payment Statement”) setting forth the following:

(i) the Company’s good-faith estimate of the Estimated Common Stock Closing Consideration, including the Company’s good-faith estimate of the Unpaid Company Expenses (the “Estimated Unpaid Company Expenses”);

(ii) (1) the number of shares of Company Common Stock outstanding as of immediately prior to the Effective Time, (2) the number of shares of Company Common Stock issuable upon the exercise of all Company Options (as if fully vested) that are outstanding immediately prior to the Effective Time,  (3) the Pro Rata Share held by each Company Stockholder, (4) the Aggregate Common Stock Closing Amount, the amount thereof payable to each Company Stockholder pursuant to Section 2.1(c)(i) and the payment and account information (including wiring instructions where available) of each Company Stockholder and (5) the Aggregate Company Option Closing Amount and the amount thereof payable to each Company Optionholder pursuant to Section 5.9;

(iii) the account of the Company to which Parent should make the payment required by the first sentence of Section 5.9(d); and

(iv) the amount and payee of all Estimated Unpaid Company Expenses payable to any third-party professional advisors to the Company, including invoices from such professional advisors for all such Estimated Unpaid Company Expenses owed thereto and wire instructions for payment thereto.

(b) Payment of Unpaid Company Expenses. At the Closing, Parent shall pay or cause to be paid to the third-party professional advisors of the Company contemplated by Section 2.3(a)(iv) the amount of Estimated Unpaid Company Expenses owed thereto as set forth in the Payment Statement.

(c) Payment of Escrow Amount. At the Closing, pursuant to the Escrow Agreement, Parent shall pay or cause to be paid to the Escrow Agent, by wire transfer of immediately available funds to the applicable account set forth in the Escrow Agreement, the Initial Indemnification Escrow Amount to be held in the Indemnification Escrow Account.

(a) Exchange.

(i) Unless earlier mailed or delivered by the Company,  as soon as reasonably practicable after the Effective Time, and in any event no later than five (5) Business Days after the Closing Date, Parent or the Surviving Corporation shall mail or deliver, or cause to be mailed or delivered, to: each Company Stockholder in respect of the certificates of shares of Company Common Stock (the “Company Stock Certificates”)  held by such Company Stockholder or the book-entry shares representing shares of Company Common Stock (“Book-Entry Shares”) held by such Company Stockholder, in each case, that were converted into the right to receive a specified cash amount or contingent rights pursuant to Section 2.1(c) (A) a letter of transmittal, substantially in the form of Exhibit C (each, a “Letter of Transmittal”) and (B) instructions for use in delivering a duly executed and fully completed Letter of Transmittal to Parent and effecting the surrender of the Company Stock Certificates and Book-Entry Shares, as applicable, in exchange for the applicable specified cash amount or contingent rights under Section 2.1(b) or Section 2.1(c) (such instructions, the “Surrender Instructions”).

(ii) A Company Stockholder shall not be entitled to receive any specified cash amount or any contingent right under Section 2.1(c) until such Company Stockholder has delivered to Parent a duly executed and fully completed Letter of Transmittal (and any required Form W‑9 or Form W‑8, duly completed and validly executed in accordance with the Surrender Instructions) and surrendered to the Surviving Corporation such Company Stockholder’s Company Stock Certificates and Book-Entry Shares, as applicable, in accordance with the Surrender Instructions, subject to Section 2.4(f). Upon delivery to Parent by a Company Stockholder of a duly executed and fully completed Letter of Transmittal (and any required Form W‑9 or Form W‑8, duly completed and validly executed in accordance with the Surrender Instructions) and the surrender to the Surviving Corporation of such Company Stockholder’s Company Stock Certificates and Book-Entry Shares, as applicable, in accordance with the Surrender Instructions, such Company Stockholder shall be entitled to receive (1) the specified cash amounts into which the shares of Common Stock formerly represented by such Company Stock Certificates or such Book-Entry Shares, as applicable, were converted under Section 2.1(c)(i), and Parent shall promptly pay, or cause to be paid, such specified cash amounts to such Company Stockholder and (2) any contingent right into which any Common Stock formerly represented by such Company Stock Certificates or such Book-Entry Shares were converted under Sections 2.1(c)(ii)-(iv); provided,  however, that, for the avoidance of doubt, no Company Stockholder shall be entitled to receive any cash amount contemplated by the contingent rights set forth in Sections 2.1(c)(ii)–(iv) until such cash amounts are otherwise payable in accordance with, and which cash amounts are subject to specified contingencies set forth in, this Agreement.  Until surrendered to the Surviving Corporation as set forth above, each Company Stock Certificate and each Book-Entry Share will be deemed from and after the Effective Time, for all corporate purposes, to evidence only the rights set forth in Section 2.1(c).

(b) Transfers of Ownership. If any cash amounts are to be paid under Section 2.4(a) in accordance with Section 2.1(c) to any Person other than the Person whose name is reflected on the Company Stock Certificate, or in the Company’s books and records with respect to any Book-Entry Share, surrendered in exchange therefor, it shall be a condition of the issuance or delivery thereof that (i) the Company Stock Certificate so surrendered shall be properly endorsed and the Company Stock Certificate or the Book-Entry Share shall otherwise in proper form for transfer, and (ii) the Person requesting such payment will have paid to Parent, or any agent designated by it, any transfer or other similar Taxes required by reason of the issuance of payment in any name other than that of the registered holder of the Company Stock Certificate or Book-Entry Share surrendered or established to the satisfaction of Parent or any agent designated by it that such Tax has been paid or is not payable.

(c) No Interest With Respect to Unexchanged Company Common Stock. No interest will be paid or accrue for the benefit of any holder of Company Common Stock or otherwise with respect to any amount payable under this Agreement.

(d) No Liability or Obligation. Notwithstanding anything to the contrary in this Agreement, no Party shall be liable or have any other obligation in respect of any other amount payable under this Article II for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar Law pursuant to its withholding rights set forth in Section 2.6.

(e) No Further Ownership Rights in Company Capital Stock. All holders of Company Stock Certificates and Book-Entry Shares shall cease to have any rights as Company Stockholders from and after the Effective Time, except the specific rights set forth in Section 2.1(c), as applicable, with respect to each share of Company Common Stock evidenced thereby (or to appraisal rights as provided in Section 2.5 with respect to Dissenting Shares), and (b) at the Effective Time, the stock transfer books of the Company shall be closed with respect to all shares of Company Common Stock outstanding immediately prior to the Effective Time. No further transfer of any such Company Stock Certificates or Book-Entry Shares shall be made on such stock transfer books after the Effective Time.

(f) Lost, Stolen or Destroyed Certificates. In the event any Company Stock Certificates shall have been lost, stolen or destroyed, Parent shall pay in exchange for such lost, stolen or destroyed Company Stock Certificates, upon the making of an affidavit of that fact by the holder thereof, such amount, if any, as may be required pursuant to Section 2.1(c), as applicable;  provided,  however, that Parent may, in its sole discretion and as a condition precedent to the issuance thereof, require the holder of such lost, stolen or destroyed Company Stock Certificates to provide an indemnity as security against any Claim that may be made against Parent or the Surviving Corporation with respect to any Claims arising from the Company Stock Certificates alleged to have been lost, stolen or destroyed.

(a) The authorized capital stock of the Company consists of (i) 19,000,000 shares of Company Common Stock, of which (1) 6,708 shares were issued and outstanding as of the date of this Agreement and (2) zero (0) shares were held by the Company in its treasury as of the date of this Agreement, and (ii) 15,810,000 shares of Preferred Stock, of which (1) 15,767,151 were issued and outstanding as of the date of this Agreement, (2) 5,810,000 shares of Preferred Stock are designated as “Series A Preferred Stock” in the Company Charter, of which 5,767,151 are outstanding as of the date of this Agreement and (3) 10,000,000 shares of Preferred Stock are designated as “Series A‑1 Preferred Stock” in the Company Charter and all of which are outstanding as of the date of this Agreement. As of immediately prior to the Effective Time, zero (0) shares of Company Preferred Stock will be issued or outstanding. All of the shares of Company Common Stock and Company Preferred Stock are held in certificated form.

(b) As of the date of this Agreement,  (i) 1,836,028 shares of Company Common Stock are subject to issuance pursuant to outstanding Company Options and (ii) 312,857 shares of Company Common Stock are reserved for future issuance pursuant to the Company Equity Plan. The Company has made available to Parent  a true, complete and correct copy of the Company Equity Plan and the form of stock option agreement evidencing the Company Options.

(c) All of the issued and outstanding shares of Company Common Stock and Company Preferred Stock have been, and all shares of Company Common Stock that may be issued pursuant to the Company Options, will be,  when issued in accordance with the respective terms thereof, duly authorized and validly issued, and are (or in the case of such shares of Company Common Stock not yet issued, will be) fully paid and nonassessable and free of preemptive rights created by the Company’s Organizational Documents or any agreement to which the Company is a party. Except as described in Section 3.3(a) and Section 3.3(b), there are no (i) outstanding shares of capital stock or other voting securities or equity interests of the Company,  (ii) outstanding subscriptions, options, calls, warrants,  rights, commitments or agreements to acquire or that obligate any Acquired Entity to issue any shares of the capital stock or other equity securities or voting interests of such Acquired Entity, (iii) outstanding restricted shares,  stock appreciation rights, redemption rights, repurchase rights,  “phantom” stock rights, performance shares, performance units, interests in or rights to the ownership or earnings of any Acquired Entity or other equity equivalent or equity-based awards or rights or (iv) outstanding securities, instruments or obligations of any Acquired Entity that are or may become convertible into or exchangeable for any shares of the capital stock or other equity security or voting interest of such Acquired Entity (the items in clauses (i)–(iv) above, collectively, the “Company Securities”). There are no outstanding obligations of an Acquired Entity to repurchase, redeem or otherwise acquire any Company

(d) Section 3.3(d) of the Company Disclosure Schedule lists each Subsidiary of the Company, including its jurisdiction of incorporation, formation or organization, as applicable, issued and outstanding capital stock, and each record holder of its capital stock. Except for the capital stock of, or other equity or voting interests in, its Subsidiaries, the Company does not own, directly or indirectly, any equity, membership interest, partnership interest, joint venture interest or other equity or voting interest in, or any interest convertible into, exercisable or exchangeable for any of the foregoing, and none of the Acquired Entities are under any obligation to form, provide funds to or make any loan, capital contribution, guarantee, or other investment in, any Person. All of the outstanding shares of capital stock or other equity interests of each of the Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are wholly owned beneficially and of record by an Acquired Entity, free and clear of any Liens. No outstanding shares of Company Common Stock or Company Preferred Stock are held by any Subsidiary of the Company.

(a) The execution, delivery and performance of this Agreement, and each Other Transaction Agreement to which the Company is or will be a party, by the Company and the consummation by the Company of the transactions contemplated by this Agreement and each Other Transaction Agreement to which the Company is or will be a party does not and will not (i) contravene, conflict with or result in any violation or breach of any of the provisions of the Organizational Documents of any Acquired Entity, (ii) subject to making or obtaining, as applicable, the Consents and Filings set forth in Section 3.5(b),  contravene, conflict with or result in any violation or breach of any Law or (iii) require any consent, approval or authorization of (each, a “Consent”), or any notice to or filing with (each, a “Filing”), any Person other than a Party with respect to, result in any breach or violation of,  constitute a default (or an event which with or without notice or lapse of time or both would become a default) under, result in the loss of a benefit or result in the imposition of an obligation under, or give rise to any right of termination, cancellation or amendment of any Person or any acceleration of any right of any Person or of any obligation of any Person under, any Contract to which an Acquired Entity is a party or any Permit to which an Acquired Entity is subject, except for such Consents or Filings which, if not obtained or made, would not be material to any Acquired Entity and would not prevent, materially alter or materially delay the consummation of the transactions contemplated by this Agreement.

(b) No  Acquired Entity is required to make any Filing with or to, or to obtain any Consent from, any Governmental Entity in connection with the execution and delivery of this Agreement, or any Other Transaction Agreement to which the Company is or will be a party, by the Company or the performance and consummation by the Company of the transactions contemplated by this Agreement or any Other Transaction Agreement to which the Company is or will be a party, except for the Filing of the Certificate of Merger with the Secretary of State of the State of Delaware.

(a) Section 3.6(a) of the Company Disclosure Schedule sets forth (i) the unaudited consolidated balance sheet of the Acquired Entities as of April 30, 2017 (the “Latest Balance Sheet”), and the related statements of income for the four (4)-month period then ended, and (ii) the unaudited consolidated balance sheet of the Acquired Entities as of December 31, 2016 and December 31, 2015, and the related statements of income for the years then ended (all such financial statements referred to in the foregoing clauses (i) and (ii), the “Financial Statements”).  The Financial Statements fairly present, in all material respects, the consolidated financial position of the Acquired Entities as at the respective dates thereof and the consolidated results of operations of the Acquired Entities for the respective periods covered thereby in accordance with GAAP applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements or, in the case of unaudited statements, subject to the absence of notes not required by GAAP and normal year-end adjustments).

(b) No Acquired Entity has any Liabilities, except for (i) Liabilities accrued or disclosed in the Latest Balance Sheet, (ii) Liabilities incurred since the date of the Latest Balance Sheet Date in the ordinary course of business and consistent with past practice, (iii) Liabilities incurred in connection with this Agreement, the Other Transaction Agreements and the transactions contemplated by this Agreement or the Other Transaction Agreement,  (iv) Liabilities which are not required to be accrued or disclosed in the Financial Statements in accordance with GAAP or (v) Liabilities that are not or would not reasonably be expected to be material to the Acquired Entities, taken as a whole.

(c) Section 3.6(c) of the Company Disclosure Schedule sets forth the principal amount of all Indebtedness of the Acquired Entities.

(a) Except with respect to any claim that the conduct of the businesses of each Acquired Entity, including any product or service marketed, used, licensed, sold, or otherwise provided by such Acquired Entity, has infringed, misappropriated or otherwise violated, or does infringe, misappropriate or otherwise violate, any IP Rights (excluding therefrom any copyrights or trade secrets) owned by any other Person, each Acquired Entity owns, or has valid rights to use, all IP Rights that are being used in, or are necessary for, the conduct of its businesses in the manner in which they are currently being conducted.

(b) Section 3.8(b) of the Company Disclosure Schedule lists all (i) issued patents and patent applications (published or unpublished), (ii) trademark registrations and

(c) Each Acquired Entity has recorded with the appropriate Governmental Entities, to the extent required by applicable Law, all assignments and any other documentation necessary to establish ownership in it of all rights, title and interest in and to any of the Acquired Entity-owned IP Rights listed in Section 3.8(b) of the Company Disclosure Schedule to which such Acquired Entity has acquired rights from its employees, Affiliates or third parties.

(d) Each Acquired Entity is not bound by any policies or agreements under which any of the IP Rights listed in Section 3.8(b) of the Company Disclosure Schedule have been or will be assigned to anyone other than the Acquired Entity. Each Acquired Entity has good, clear record and title to all of the Acquired Entity-owned IP Rights listed in Section 3.8(b) of the Company Disclosure Schedule, free and clear of all Liens other than Permitted Liens.

(e) There is no agreement in effect pursuant to which any Acquired Entity has granted any license, right or authority under any of the Acquired Entity-owned IP Rights listed in Section 3.8(b) of the Company Disclosure Schedule to any Person, nor has any Acquired Entity extended any covenant not to sue under such IP Rights listed in Section 3.8(b)) of the Company Disclosure Schedule to any Person, except for such non-exclusive licenses granted in the ordinary course of the Company’s business.

(f) Except as set forth in Section 3.8(f) of the Company Disclosure Schedule, each Acquired Entity has not sought, applied for or received any support, funding, resources or assistance from any Governmental Entity in connection with the development, conception or reduction to practice of the Acquired Entity-owned IP Rights listed in Section 3.8(b) of the Company Disclosure Schedule or the inventions claimed therein.

(g) Except for the licensed IP Rights as set forth in Section 3.8(b) of the Company Disclosure Schedule, there is no information known to any Acquired Entity that would preclude it from owning the Acquired Entity-owned IP Rights listed in Section 3.8(b)) of the Company Disclosure Schedule.

(h) To the Company’s Knowledge, there are no Orders that affect the ownership, validity, enforceability or subsistence of the IP Rights listed in Section 3.8(b) of the Company Disclosure Schedule.

(i) To the Company’s Knowledge as to (i) and (ii) only, (i) the conduct of the businesses of each Acquired Entity, including any product or service marketed,

(j) Each Acquired Entity has at all times complied with all applicable Laws, as well as its own rules, policies, and procedures, relating to privacy, data protection, and the collection and use of personal information collected, used, or held for use by any Acquired Entity. No Claim has been asserted or threatened against any Acquired Entity alleging a violation of any Person’s privacy or personal information or data rights and the consummation of the transactions contemplated by this Agreement will not breach or otherwise cause any violation of any Laws or rule, policy or procedure related to privacy, data protection or the collection and use of personal information collected, used or held for use by or on behalf of any Acquired Entity in the conduct of its businesses. Each Acquired Entity takes reasonable measures to ensure that such information is protected against unauthorized access, use, modification, or other misuse. Each Acquired Entity also takes reasonable measures to ensure the confidentiality, integrity and availability of all such information in electronic format and protect against reasonably anticipated threats or hazards to the security of such information and the unauthorized use or disclosure of such information. Except with respect to Contracts concerning commercially available shrink-wrap or off-the-shelf software, or online software-as-a-service offerings that in each case have an acquisition price of less than $10,000 per unit or per year and “open source” or similar licenses, and except as set forth in Section 3.8(j) of the Company Disclosure Schedule, only employees acting within the scope of their employment by any Acquired Entity or contractors acting pursuant to a signed, written agreement with an Acquired Entity, have authored any software or other copyrightable works used by any Acquired Entity to provide services or as a product of an Acquired Entity. In each case, an Acquired Entity has a signed, written agreement with each such employee and contractor that (i) provides for ownership of all IP Rights in and to such software or works by an Acquired Entity and transfers any Acquired Entity such ownership of IP Rights; and (ii) imposes obligations of confidentiality on such employee and contractor with respect to such software or other works as are reasonable and customary for companies such as the Company, and that such confidentiality obligations continue to apply after termination of the employment or contractor relationship as set forth therein.

(k) Except with respect to Contracts concerning commercially available shrink-wrap or off-the-shelf software, or online software-as-a-service offerings that in each case have an acquisition price of less than $10,000 per unit or per year,  Section 3.8(k) of the Company Disclosure Schedule lists all software owned by any Acquired Entity, or used or held for use in the business of any Acquired Entity that in either case is material to the business of the Company or the operation thereof, indicating in each instance whether such software is owned

(l) The consummation of the transactions contemplated by this Agreement will not result in the loss or impairment of or payment of any additional amounts with respect to, nor require the consent of any other Person in respect of, any Acquired Entity’s right to own, use or hold for use any of the IP Rights as owned, used or held for use in the conduct of its businesses.

(a) Each Acquired Entity owns, and has good and valid title to, all tangible personal property used or held for use in its businesses, free and clear of any Lien (other than any Permitted Lien).

(b) No Acquired Entity owns any real property.

(c) Section 3.9(c) of the Company Disclosure Schedule lists the addresses and the names of the fee owners, landlords, tenants, subtenants and sub-subtenants, as applicable, of each real property leased, subleased, sub-subleased, licensed or otherwise occupied by an Acquired Entity (the “Leased Real Property” and, together with the Owned Real Property, collectively, the “Real Property”), as well as any and all leases, subleases, sub-subleases, licenses, occupancy agreements, and purchase options thereunder, and all amendments, terminations and modifications thereof (collectively, the “Real Estate Leases”).

An Acquired Entity has a valid leasehold interest in, and enjoys actual, exclusive, peaceful and undisturbed possession of, the relevant Leased Real Property, in each case free and clear of any Lien (other than Permitted Liens). There are no leases, subleases, licenses, occupancy agreements, options, rights or other agreements or arrangements to which any Acquired Entity is a party granting to any Person the right to use, occupy or otherwise obtain a real property interest in all or any portion of a Leased Real Property.

(d) The Leased Real Property is in material compliance with all Laws related to the business currently being conducted on such Leased Real Property. Each Acquired Entity is in material compliance with all Liens and other matters of record affecting the Leased Real Property, and no Acquired Entity has received any written notice alleging any default under any of such Liens or other matters of record.

(e) Except as provided by the Real Estate Leases, there are no outstanding Contracts, commitments, options, rights of reverter or rights of first refusal (i) to which any Acquired Entity is a party or (ii) to the Company’s Knowledge, to which any landlord or sub-landlord, as applicable, and parties other than an Acquired Entity, are a party, in each case, granted to third parties to purchase or lease any Leased Real Property, or any portion thereof or interest therein.

(a) Section 3.10 of the Company Disclosure Schedule lists, as of the date of this Agreement, each Contract described below to which any Acquired Entity is a party or by which any Acquired Entity is bound other than Company Plans (each, a “Material Contract”):

(i) any Contract (other than Contracts in which the sole parties are Acquired Entities) with respect to a joint venture, partnership, limited liability company or other similar agreement or arrangement, related to the formation, creation, operation, management or control of any partnership, joint venture or limited liability company;

(ii) any Contract relating to Indebtedness, any obligation to purchase, redeem, retire, defease or otherwise acquire for value any capital stock or any warrants, rights or options to acquire such capital stock;

(iii) any Contract relating to an acquisition, divestiture, merger or similar transaction that contains representations, covenants, indemnities or other obligations (including payment, indemnification, “earnout”  or other contingent obligations) that are in effect on the date of this Agreement;

(iv) any Contract, other than a Contract related to an acquisition subject to Section 3.10(a)(iii),  that obligates any Acquired Entity to make any capital commitment or expenditure (including pursuant to any joint venture) in excess of $100,000;

(v) any Contract that prohibits the payment of dividends or distributions in respect of the Company Securities or otherwise, prohibits the pledging of the Company Securities or prohibits the issuance of guarantees by any Acquired Entity;

(vi) any Contract containing any covenant limiting or prohibiting the right of any Acquired Entity (1) to engage in any line of business or conduct business in any geographic area, (2) to distribute or offer any products or services or (3) to compete with any other Person in any line of business or in any geographic area or levying a fine, charge or other payment for doing any of the foregoing;

(vii) any Contract that grants any right of first refusal, right of first offer or similar right with respect to any material assets, rights or properties of any Acquired Entity;

(viii) any Contract that would reasonably be expected to involve payments by or to any Acquired Entity in excess of $100,000 during the twelve (12) month period after the date of this Agreement, excluding salary payments to employees;

(ix) any material Contract with any Governmental Entity;

(x) any Contract pursuant to which any of the benefits thereunder, to any Acquired Entity or to any other party thereto, will be increased, or the vesting of benefits of which will be accelerated, by the consummation of the Merger or the other transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;

(xi) any Contract (1) relating to the employment of, or the performance of services by, any director, employee or consultant that requires payment of base salary (or compensation) in excess of $100,000 on an annual basis to any Person, (2) the terms of which obligate or may in the future obligate any Acquired Entity to make any severance, termination or similar payment to any current or former employee or (3) pursuant to which any Acquired Entity may be obligated to make any bonus or similar payment in excess of $50,000 to any current or former employee or director;

(xii) any Real Estate Lease;

(xiii) any Collective Bargaining Agreement;

(xiv) any Contract pursuant to which any Acquired Entity has received from any other Person rights to exploit any IP Rights that are being used in, or are necessary for, the conduct of such Acquired Entity’s businesses, excluding (1) Contracts concerning commercially available shrink-wrap or off-the-shelf software, or online software-as-a-service offerings that in each case have an acquisition price of less than $10,000 per unit or per year,  (2) “open source” or similar licenses, and (3) routine licenses to pre-existing works contained in employee or independent contractor agreements;

(xv) any Contract with (1) any Company Stockholder or any Affiliate (other than any Acquired Entity), director, manager or officer of any Acquired Entity or (2) any Affiliate of, or any “associate” or any member of the “immediate family” (as such terms are defined in Rules 12b‑2 and 16a‑1 under the Exchange Act) of, any such Company Stockholder or any such Affiliate, director, manager or officer  (each such Contract, collectively, the “Affiliate Contracts”);

(xvi) any Contract obligating an Acquired Entity to purchase or otherwise obtain any product or service exclusively from any Person or sell any product or service exclusively to any Person;

(xvii) any Contract relating to leases of equipment, vehicles or other personal property that, in each case, is material to any Acquired Entity;

(xviii) any stockholders, investors rights, registration rights or similar agreement or arrangement;

(xix) any Contract under which an Affiliate of an Acquired Entity (without treating the Acquired Entities as Affiliates of each other)  has an obligation to indemnify a counterparty thereto;

(xx) any Contract with a Customer pursuant to which the Acquired Entity provides, or, since December 31, 2016, has provided, products or services (each such Contract, a “Customer Contract”);

(xxi) any Contract with a Supplier pursuant to which the Supplier provides, or, since December 31, 2016, has provided products or services that are material to the businesses of the Acquired Entities, taken as a whole; and

(xxii) any Contract under which any Person provides marketing, advertising or sales services to any Acquired Entity.

(b) Prior to the date of this Agreement, the Company has made available to Parent true, complete and correct copies of each Material Contract (including all exhibits and schedules thereto).

(c) Each Material Contract is in full force and effect and is the legal, valid and binding obligation of the Acquired Entity party thereto and the other parties thereto, enforceable against each of them in accordance with its terms, subject to (i) Laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and other Laws affecting creditors’ rights generally and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. No Acquired Entity is in material breach of or in material default under any Material Contract, and, to the Company’s Knowledge, no other party to any Material Contract is in material breach of or material default thereunder, and no event has occurred that with notice or lapse of time or both would constitute a material breach or material default of the Acquired Entity party thereto or any other party thereto. No party to any Material Contract has provided notice to any other party requesting any indemnification or defense under such Material Contract. No party to any Material Contract has provided written notice exercising any termination rights with respect thereto, and no party to any of the Material Contracts has given written notice of any material dispute with respect to any Material Contract or any intent to terminate, adversely modify, not renew or challenge the validity or enforceability of any Material Contract.

(a) Each Acquired Entity is, and since January 1, 2014 has been, in compliance in all material respects with all applicable Laws. Since January 1, 2014,  no Acquired Entity has received any written or, to the Company’s Knowledge, oral communication from any Governmental Entity alleging or asserting that any Acquired Entity is not in compliance in any material respect with any Laws. To the Company’s Knowledge, no Governmental Entity is conducting, and since January 1, 2014 no Governmental Entity has conducted, any investigation into any Acquired Entity’s potential noncompliance in a material respect with any applicable Law. This Section 3.11(a) does not apply to Tax matters, which are addressed in Section 3.13.

(b) Each Acquired Entity holds all material Permits necessary for the lawful conduct of its business as it is currently being conducted. Such Permits are valid and in full force and effect. Each Acquired Entity is in material compliance with the terms and requirements of such Permits. No Acquired Entity has received any written notice from any Governmental Entity (and to the Company’s Knowledge, no Governmental Entity has threatened any notice) (i) asserting any material violation of any term or requirement of any such Permit,  (ii) notifying any Acquired Entity of the revocation or withdrawal of any such Permit or (iii) imposing any condition, modification or amendment on any such Permit, in each case that has not been cured or waived.

(a) The Acquired Entities have timely filed with the appropriate Taxing Authority, or have caused to be timely filed on their behalf (taking into account any extension of time within which to file), all income and other material Tax Returns required by Law to be filed by them, and all such filed Tax Returns are true, correct and complete in all material respects. Except as set forth in Section 3.13(a) of the Disclosure Schedule, no Acquired Entity is currently the beneficiary of any extension of time within which to file any Tax Return (other than statutory automatic extensions).

(b) Section 3.13(b) of the Company Disclosure Schedule sets forth an accurate and complete list of all federal, state, local and foreign income Tax Returns filed with respect to the Acquired Entities for taxable periods ended on or after January 1, 2013, indicates those income Tax Returns that have been audited, and indicates those Tax Returns that currently are the subject of audit. The Acquired Entities has made available to Parent accurate copies of all federal income Tax Returns, examination reports, and statements of deficiencies assessed against or agreed to by any Acquired Entity filed or received since January 1, 2013.

(c) All income and other material Taxes due and payable by or with respect to the Acquired Entities, whether or not shown to be due on any Tax Return, have been

(d) All Taxes required to have been withheld and paid by the Acquired Entities under applicable Law, including in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party, have been timely withheld and paid to the appropriate Taxing Authority, and all IRS Forms W‑2 and 1099 and other applicable forms required with respect thereto have in all material respects been properly completed and timely filed.

(e) No deficiency with respect to Taxes has been proposed, asserted or assessed in writing against any Acquired Entity which has not been fully paid or reserved for in accordance with GAAP on the Financial Statements.

(f) There is no audit, claim or assessment pending, proposed in writing, asserted or threatened in writing against or with respect to any Acquired Entity by any Taxing Authority in respect of any Tax or Tax Return, and no Taxing Authority has indicated in writing an intent to investigate, commence or open such an audit, claim or assessment with respect to any such Tax or Tax Return.

(g) No Acquired Entity (i) is or has been a member of a group filing an affiliated, consolidated, combined or unitary Tax Return other than those for which the Company was the common parent, nor has any Acquired Entity been included in any similar arrangement for relief under applicable Law, such as a loss sharing regime, other than those for which the Company was the common parent, or (ii) has any liability for Taxes of any other Person (other than an Acquired Entity) under Treasury Regulations Section 1.1502‑6 (or any analogous, comparable or similar provision of state, local or foreign Law) or as a transferee or successor under any provision of applicable Law, or by Contract.

(h) No Acquired Entity will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of any (i) change in method of Tax accounting made prior to the Closing,  (ii) “closing agreement” as described in Section 7121 of the Code (or any analogous, comparable or similar provision of state, local or foreign Law) entered into prior to the Closing,  (iii) deferred intercompany gain or excess loss account described in Section 1502 of the Code (or any analogous, comparable or similar provision of state, local or foreign Law) resulting from a transaction consummated prior to the Closing,  (iv) installment sale or open transaction disposition consummated prior to the Closing,  (v) prepaid amount received prior to the Closing, other than in the ordinary course of business or (vi) election under Section 108(i) of the Code (or any analogous, comparable or similar provision of state, local or foreign Law) made prior to the Closing.

(i) No Acquired Entity is a party to, is bound by or has any obligation under any Tax Sharing Agreement.

(j) No Acquired Entity has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Section 355 of the Code or Section 361 of the Code (or any analogous, comparable or similar provision of state, local or foreign Law).

(k) No closing agreements (as described in Section 7121 of the Code or any corresponding, analogous or similar provision of state, local or foreign Law), private letter rulings, technical advice memoranda or similar agreements or rulings have been entered into or requested by or with respect to any Acquired Entity.

(l) Each Acquired Entity has in its possession official foreign government receipts for any Taxes paid by it to any foreign Taxing Authority.

(m) Each Acquired Entity is in compliance in all material respects with Tax exemption, Tax holiday or other Tax reduction agreement or order to which any Acquired Entity is currently a party or is currently subject, as applicable, and copies of all such agreements or orders have been made available to Parent.

(n) No Acquired Entity has recognized a material amount of Subpart F income as defined in Section 952 of the Code during the Pre-Closing Tax Period of a taxable year of any Acquired Entity, as applicable, that includes but does not end on the Closing Date.

(o) No Acquired Entity is or has been a party to any “listed transaction” as defined in Section 6707A(c) of the Code or Treasury Regulations section 1.6011‑4 or comparable Laws of jurisdictions other than the United States.

(p) There are no Liens with respect to Taxes (other than Permitted Liens) upon any of the assets or properties of any Acquired Entity.

(q) No written claim has been made by a Taxing Authority in a jurisdiction where Tax Returns are not filed or Taxes are not paid by or with respect to any Acquired Entity that such a Tax Return is required to be filed or such Taxes are required to be paid.

(r) The unpaid Taxes of the Acquired Entities (i) as of December 31, 2016,  have been reserved for in accordance with GAAP on the Latest Balance Sheet, and (ii) will be reserved for in accordance with GAAP to account for the passage of time through the Closing Date in accordance with the past custom and practice of the Acquired Entities in filing their respective Tax Returns and in accordance with applicable Law.

(s) There are no currently outstanding agreements, consents or waivers to extend any statute of limitations filed by or on behalf of any Acquired Entity with respect to any Tax Return of any Acquired Entity or in respect of any Taxes payable by or with respect to any Acquired Entity. No power of attorney has been granted with respect to any matter relating to Taxes payable by or with respect to any Acquired Entity that is currently in force.

(t) The Company Common Stock, the Company Preferred Stock, and the Company Options represent the only equity interests in the Company for Tax purposes.

(u) Section 3.13(u) of the Company Disclosure Schedule sets forth the respective entity classifications of the Acquired Entities for U.S. federal and state Tax purposes and such classifications have been effective since the inception of the applicable Acquired Entity.

(a) Section 3.14(a) of the Company Disclosure Schedule contains a true, complete and correct list of each material Company Plan. The Company has described or provided or made available to Parent current, accurate and complete copies of all (i) Company Plans, including all amendments thereto and all related trust documents, (ii) the three most recent annual reports (Form Series 5500), if any, required under ERISA or the Code in connection with each Company Plan, (iii) the most recent actuarial reports (if applicable) for all Company Plans, (iv) the most recent summary plan description, if any, required under ERISA with respect to each Company Plan, (v) all material written contracts, instruments or agreements relating to each Company Plan, including administrative service agreements and group insurance contracts, (vi) the most recent Internal Revenue Service determination or opinion letter issued with respect to each Company Plan intended to be qualified under Section 401(a) of the Code, (vii) all filings under the Internal Revenue Service’s Employee Plans Compliance Resolution System program or any of its predecessors or the Department of Labor Delinquent Filer Voluntary Compliance Program and (viii) all material correspondence in the last 5 years with a Governmental Entity with respect to an inquiry, audit or investigation of any Company Plan. “Company Plans” means the employee benefit plans, programs and arrangements (including any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”)) and any other employment, bonus, stock option, stock purchase, incentive, deferred compensation, supplemental retirement, health, life or disability insurance, dependent care, severance and other fringe or employee benefit plans, programs, arrangements or agreements sponsored or maintained by any Acquired Entity or to which any Acquired Entity makes contributions or with respect to which any Acquired Entity has or would reasonably be expected to have any liability (contingent or otherwise) for the benefit of any current or former employee, officer, director, consultant or other natural person service provider of any Acquired Entity in their capacity as such. No Acquired Entity has any express or implied commitment to create any other material employee benefit plan, program or arrangement or to modify, change or terminate any Company Plan, other than with respect to a modification, change or termination required by ERISA or the Code.

(b) Each Company Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service stating that such Company Plan is so qualified or is a prototype plan to whose sponsor a favorable opinion letter has been issued by the Internal Revenue Service and nothing has occurred that caused or is reasonably likely to cause the loss of such qualification or the imposition of any penalty or Tax liability. Each Company Plan has been operated in material compliance with its terms and all applicable Laws and complies in form and in operation in all material respects with all applicable Laws.

(c) No current or former employee, officer, director, consultant or other service provider of any Acquired Entity is or may become entitled under any Company Plan to receive health, life insurance or other welfare benefits (whether or not insured), beyond their retirement or other termination of service, other than health continuation coverage as required by Section 4980B of the Code or other applicable Laws.

(d) Each Company Plan that constitutes in any part a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in operational and documentary compliance with Section 409A of the Code and all Internal Revenue Service guidance promulgated thereunder.

(e) Neither the execution and delivery of this Agreement nor the consummation of the Merger will, either alone or in combination with any other event, (i) entitle any current or former employee, officer, director, consultant or other natural person service provider of the Company to severance pay or any other similar termination payment, or (ii) accelerate the time of payment or vesting, or increase the amount of or otherwise enhance any benefit due any such employee, officer, director, consultant or other natural person service provider.

(f) No Acquired Entity is a party to any Contract (including any Company Plan) that has resulted or would result, separately or in the aggregate, in connection with the transactions contemplated by this Agreement (either alone or in combination with any other events), in the payment of any “excess parachute payments” within the meaning of Section 280G of the Code.

(g) Other than benefit Claims made in the ordinary course of business, there are no Claims which have been asserted, instituted or, to the Company’s Knowledge, threatened against any Company Plan, the assets of any Company Plan or any Acquired Entity or the plan administrator or any fiduciary of the Company Plans with respect to the operation of such Company Plans.

(h) No Acquired Entity has incurred any material liability for any Tax, fine or penalty under the Code, ERISA or other applicable Law in connection with the existence or operation of any Company Plan, and no fact or event exists which could give rise to any such material liability.

(i) None of the Acquired Entities or any ERISA Affiliate sponsors, contributes to, or has any liability (contingent or actual) with respect to, a multiemployer plan

(j) None of the Acquired Entities or any ERISA Affiliate has used the services of workers provided by third party contract labor suppliers, temporary employees, “leased employees” within the meaning of Section 414(n) of the Code or individuals who have provided services as independent contractors in a manner that could result in the disqualification of any Company Plan or the imposition of penalties or excise taxes with respect to any Company Plan by the Internal Revenue Service, the Department of Labor or any other Governmental Entity.

(a) No Acquired Entity is party to, or bound by, any Collective Bargaining Agreements; there are no Collective Bargaining Agreements that pertain to any of the employees of the any Acquired Entity; and no employees of any Acquired Entity are represented by any labor union, works council, trade union or labor organization with respect to their employment with any Acquired Entity.

(b) No labor union, trade union, labor organization or group of employees of any Acquired Entity has made a pending demand for recognition or certification, and there are no representation or certification proceedings or petitions seeking a representation proceeding presently pending or, to the Company’s Knowledge, threatened in writing to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority. To Company’s Knowledge, there have been no union organizing activities with respect to any employees of any Acquired Entity.

(c) Since January 1, 2014, (i) there has been no actual, or to the Company’s Knowledge, threatened material arbitrations, material grievances, strikes, lockouts, slowdowns, work stoppages or material labor-related Claims or disputes (collectively, “Labor Disputes”) against or affecting any Acquired Entity, and no such Labor Disputes are pending, and (ii) none of the Acquired Entities or any of their employees, agents or representatives have committed any unfair labor practice as defined in the National Labor Relations Act. The Acquired Entities (i) are not in material violation of any Collective Bargaining Agreement or Law pertaining to labor, employment or employment practices including all Laws regarding worker classification, health and safety, wages and hours, labor relations, employment discrimination, disability rights or benefits, equal opportunity, immigration, plant closures and layoffs, affirmative action, employee leave issues, unemployment insurance and workers’ compensation and (ii) are not, and have not been since January 1, 2014, a party to any Claim alleging a violation of any Collective Bargaining Agreement or Law pertaining to labor, employment or employment practices, nor, to the Company’s Knowledge, is any such Claim pending or threatened.

(d) Except as would not result in material liability to the Acquired Entities, the Acquired Entities (i) are not delinquent in any payments to, or on behalf of, any current or former independent contractors or employees of any Acquired Entity for any services, benefits or amounts required to be reimbursed or otherwise paid or provided, (ii) have withheld and reported all amounts required by Law or by agreement to be withheld and reported with respect to wages, salaries and other payments to any current or former independent contractors or employees of any Acquired Entity and (iii) are not liable for any payment to any trust or other fund governed by or maintained by or on behalf of any Governmental Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for any current or former independent contractors or employees of any Acquired Entity (other than routine payments to be made in the ordinary course of business and consistent with past practice). Since January 1, 2014, none of the Acquired Entities have been subject to any audit or investigation by any Governmental Entity with respect to its employee classification or wage and hour practices or compliance. The Acquired Entities do not have any direct or indirect material liability as a result of any misclassification of any Person as an independent contractor rather than as an employee or as “exempt” or “nonexempt” from wage and hour requirements under applicable Law.

(e) No Acquired Entity is or has been (i) a  “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.

(f) No  employee of any Acquired Entity is, to the Company’s Knowledge, in material violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, restrictive covenant or other obligation (i) to any Acquired Entity or (ii) to a former employer of any such employee relating (1) to the right of any such employee to be employed by any Acquired Entity or (2) to the knowledge or use of trade secrets or proprietary information.

(g) The Acquired Entities are and have been in compliance with all notice and other requirements under the WARN Act. In the eighteen (18) months prior to the date of this Agreement, none of the Acquired Entities have (i) effectuated a “plant closing” (as defined in the WARN Act), (ii) effectuated a “mass layoff” (as defined in the WARN Act) or (iii) undertaken any other similar action requiring notice under the WARN Act or other similar applicable Law.

(h) For purposes of this Section 3.15, reference to any Acquired Entity shall include any professional employer organization engaged by the Company or any of its Subsidiaries in the provision of labor or employment related services for the Company or any of its Subsidiaries and reference to employees of the Company or any of its Subsidiaries shall include such employees engaged through or with a professional employer organization.

(a) (i) Each Acquired Entity is and has been in material compliance with all applicable Environmental Laws, (ii) none of the Acquired Entities has received any written communication alleging that an Acquired Entity is in violation of, or has any liability

(b) There has been no material Release of Hazardous Materials at any of the properties that are currently or formerly owned, leased, operated or used by any Acquired Entity or, to the Company’s Knowledge, at any properties at which any Acquired Entity has assumed liability for any Release of Hazardous Materials or other environmental matters or otherwise provided an indemnification for such liability.

(a) The execution, delivery and performance of this Agreement, and each Other Transaction Agreement to which Parent or Merger is or will be a party, by Parent and Merger Sub, as applicable, and the consummation by Parent and Merger Sub of the transactions contemplated by this Agreement and each Other Transaction Agreement to which the Parent or Merger Sub is or will be a party does not and will not (i) contravene, conflict with or result in any violation or breach of any of the provisions of the Organizational Documents of Parent or Merger Sub, (ii) subject to making or obtaining, as applicable, the Consents and Filings set forth in Sections 4.3(b)(i)–(ii), contravene, conflict with or result in any violation or breach of any

(b) Assuming the accuracy of the Company’s representations and warranties in Section 3.24, neither Parent nor Merger Sub is required to make any Filing with or to, or to obtain any Consent from, any Governmental Entity in connection with the execution and delivery of this Agreement, or any Other Transaction Agreement to which Parent or Merger Sub is or will be a party, by Parent or Merger Sub or the performance and consummation by Parent or Merger Sub of the transactions contemplated by this Agreement or any Other Transaction Agreement to which Parent or Merger is or will be a party, except for the following:

(i) the Filing with the SEC of such reports under, and such other compliance with, the Exchange Act or the Securities Act, and the rules and regulations of the SEC promulgated thereunder, as may be required in connection with this Agreement or the Merger; and

(iii) the Filing of the Certificate of Merger with the Secretary of State of the State of Delaware.

(a) Prior to the Closing,  except as consented to in writing in advance by Parent or as otherwise expressly permitted by this Agreement or as set forth in Section 5.1(a) of the Company Disclosure Schedule, the Company shall, and shall cause each of its Subsidiaries to, (i) carry on its businesses in the ordinary course consistent with past practice and (ii) use commercially reasonable efforts to preserve intact its business and goodwill and its relationships with Governmental Entities, customers, suppliers, landlords and other persons with which it has material business relations, and to keep available the  services of its current officers and employees.

(b) Without limiting the generality of Section 5.1(a), the Company agrees that, prior to the Closing, except as consented to in writing in advance by Parent or as otherwise expressly permitted by this Agreement or as set forth in Section 5.1(b) of the Company Disclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries to:

(i) amend its Organizational Documents;

(ii) adjust,  split, combine, amend the terms of or reclassify any shares of its capital stock;

(iii) declare, set aside or pay any dividend or distribution (whether payable in cash, stock or property) with respect to any shares of its capital stock or issue or propose or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;

(iv) enter into any Contract with respect to the voting of its capital stock;

(v) merge or consolidate with any other Person or restructure, reorganize, recapitalize or completely or partially liquidate (or adopt a plan of liquidation for);

(vi) acquire (including by merger or consolidation) any equity interest in any other Entity;

(vii) acquire assets from any other Person other than in the ordinary course of business consistent with past practice;

(viii) issue, sell, grant, pledge, dispose of, transfer or encumber, or authorize the issuance, sale, grant, pledge, disposition, transfer or encumbrance of, any shares of capital stock or other securities of any Acquired Entity, other than shares of Company Common Stock issuable upon the conversion of Company Preferred Stock in accordance with the Company Charter or the exercise of Company Options;

(ix) sell, transfer, lease, sublease or license to any third party, or encumber, any material assets or properties;

(x) sell, transfer, grant any exclusive rights to any third party in, or encumber any IP Rights, or fail to take any action necessary to continue prosecution of pending patent applications and any payments or filings necessary to maintain patents;

(xi) repurchase, redeem or otherwise acquire any shares of its capital stock or any other equity interests or any rights, warrants or options to acquire such shares or interests;

(xii) incur any Indebtedness;

(xiii) adopt or amend any Company Plan (except for any amendment required by applicable Law), increase the compensation or fringe benefits of any director, officer, employee, consultant or other natural person service provider of any Acquired Entity (except in the case of individuals who are not officers of the Company, for increases in base pay in the ordinary course of business that are consistent with past practices or as required by agreements, plans, programs or arrangements in effect on the date of this Agreement and previously made available to Parent), or grant any new equity awards to any director, officer, employee, consultant or other natural person service provider of any Acquired Entity;

(xiv) (1) terminate, materially extend or materially amend any Material Contract, waive, release or assign any material rights or Claims under any Material Contract or (2) enter into any Contract that would be a Material Contract if it had been entered into on or prior to the date of this Agreement (except for any such Contract that would be a  Material Contract solely under Section 3.10(a)(viii) and the terms and conditions of which are similar in all material respects to the terms and conditions of Contracts entered into by the Acquired Entities prior to the date of this Agreement that address the same subject matter as such new Contract);

(xv) change any of its methods of accounting or accounting practices in any material respect, except as may be required by applicable Laws or GAAP;

(xvi) (i) make, change or revoke any material Tax election, (ii) surrender or compromise any right to claim a Tax refund, (iii) settle or compromise any claim, notice, audit, assessment or other proceeding relating to Taxes, (iv) amend any Tax Return, (v) adopt or change any method of Tax accounting, (vi) enter into any agreement affecting any Tax liability or refund or file any request for rulings or special Tax incentives with any Taxing Authority, (vii) enter into any Tax allocation, indemnity or sharing agreement, (viii) extend or waive the statute of limitations period applicable to any Tax or Tax Return, or (ix) consummate any transaction outside the ordinary course of business involving any non-U.S. Subsidiary of the

(xvii) fund any capital expenditure in any calendar quarter which, when added to all other capital expenditures made by the Acquired Entities in such calendar quarter, would exceed by more than 5% the aggregate amount budgeted for capital expenditures in such calendar quarter (as set forth in Section 5.1(b)(xvii) of the Company Disclosure Schedule);

(xviii) settle or compromise any Claim (1) where the settlement or compromise involves injunctive or other equitable relief against any Acquired Entity or (2) if such settlement or compromise would result in any Acquired Entity paying an amount more than $25,000 in excess of the proceeds received or to be received, if any, from any insurance policies or any third-party indemnitor in connection with such settlement or compromise;

(xix) make any loan or advance to, or any investment in (either by purchase of stock or securities, contributions to capital, property transfers or purchase of any property or assets of), any Person, except for advances of business expenses in the ordinary course of business consistent with past practice;

(xx) incur any Lien on any of the properties or assets (whether tangible or intangible) of, or used by, any Acquired Entity, other than Permitted Liens; or

(xxi) enter into a Contract to take any of the actions described in this Section 5.1(b).

(a) For a period of one (1) year following the Closing Date (or, if shorter, during the period of employment with Parent or its Affiliates), Parent shall provide or cause to be provided to each employee of an Acquired Entity as of immediately prior to the Closing (such employees, collectively, the “Continuing Employees”), compensation (including base salary and target cash incentive opportunities but excluding any equity or equity-based compensation) and benefits which are substantially comparable, in the aggregate, to the compensation and benefits provided to the Continuing Employees immediately prior to the Closing Date. Any vacation or paid time off accrued but unused by a Continuing Employee as of immediately prior to the Closing Date will be credited to such Continuing Employee following the Closing Date and will not be subject to

(b) For eligibility and vesting purposes under the employee benefit plans of Parent and its Affiliates that provide benefits to Continuing Employees after the Closing Date (the “Parent Plans”), each Continuing Employee shall be credited with his or her years of service or comparable experience with an Acquired Entity or any Affiliates of an Acquired Entity before the Closing Date to the same extent as such employee was entitled before the Closing Date to credit for such service under any comparable Company Plan, except to the extent such credit would result in a duplication of benefits. For purposes of each Parent Plan providing medical, dental, pharmaceutical or vision benefits to any Continuing Employee, to the extent such Continuing Employee satisfied participation requirements and waiting period requirements under comparable Company Plans, all pre-existing condition exclusions and actively-at-work requirements of such Parent Plan shall be waived for such Continuing Employee and his or her covered dependents, and all eligible expenses incurred by such Continuing Employee and his or her covered dependents under the comparable Company Plans during the portion of the plan year ending on the date of such Continuing Employee’s participation in the corresponding Parent Plan begins shall be taken into account under such Parent Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such Parent Plan subject to all applicable terms and conditions relating to such benefits or amounts.

(c) Prior to the Closing, the Company shall take all actions that may be reasonably necessary or appropriate to cause the Company Plans and Contracts set forth in Section 5.5(c) of the Company Disclosure Schedule to terminate as of the date immediately preceding the Closing Date unless otherwise stated in the Company Disclosure Schedule. All resolutions, notices and other documents issued, adopted or executed in connection with the implementation of this Section 5.5(c) shall be subject to Parent’s prior review and approval, which will not be unreasonably withheld or delayed.

(d) Following the date of this Agreement, the Company and Parent (and their respective Affiliates) shall reasonably cooperate in all matters reasonably necessary to effect this Section 5.5, including (i) exchanging information and data relating to employee benefits and employee benefit plan coverages (except to the extent prohibited by applicable Law) and (ii) making any and all required communications with employees of the Company.

(e) Except to the extent otherwise provided in Section 5.5(c), nothing in this Section 5.5 shall be treated as an amendment of, an undertaking to amend or terminate, or a limitation on the ability of Parent or its Affiliates to amend or terminate any employee benefit plan (including any Company Plan). Nothing in this Agreement shall require Parent, the Surviving Corporation or the Company to continue to employ the services of any particular individual following the Closing Date. No provision of this Agreement shall create any third-party beneficiary rights in any employee or any other natural person service provider of any Acquired Entity or any beneficiary or dependents thereof with respect to the compensation, terms and conditions of employment and benefits that may be provided.

(a) From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to fulfill and honor in all respects the obligations of each Acquired Entity pursuant to any indemnification provision and any exculpation provision set forth in the Organizational Documents of any Acquired Entity as in effect on the date of this Agreement or in any indemnification agreement by and between the Company and its employees, officers or directors and listed on Section 5.7 of the Company Disclosure Schedule. Parent shall not permit any such indemnification or exculpation provision to be amended, repealed or otherwise modified after the Effective Time in any manner that would adversely affect the rights of the Indemnified Parties thereunder, unless any such amendment, repeal or modification is required by applicable Law.

(b) At or prior to the Effective Time, the Company shall be permitted to obtain a prepaid “tail” policy that provides the Indemnified Parties with directors’ and officers’ liability insurance for a period ending no earlier than the sixth (6th) anniversary of the Closing

(c) The Indemnified Parties (as defined in Section 5.7(d)) are intended to be third-party beneficiaries of this Section 5.7, with full rights of enforcement as if a party thereto.

(d) For purposes of this Agreement, each Person who is or was an officer or director of an Acquired Entity at or at any time prior to the Effective Time shall be deemed to be an “Indemnified Party.”

(a) Prior to the Effective Time, the Company shall take or cause to be taken any and all actions necessary under all Company Options and the Company Equity Plan to cause the Company Options to be treated as set forth in this Section 5.9.

(b) All Company Options that are outstanding and not vested and exercisable as of five (5) days before the anticipated Closing Date shall become fully vested and exercisable as of such time, subject to the consummation of the Merger.  Prior to the anticipated Closing Date, the Company shall notify all holders of Company Options (whether or not described in the preceding sentence) that Company Options shall be subject to the treatment described in this Section 5.9.

(c) Each Company Option that is outstanding immediately prior to the Effective Time shall be canceled and terminated as of the Effective Time and converted into the right of the Company Optionholder thereof to receive the following (collectively, the “Company Option Merger Consideration”):

(i) the amount equal to the product of (1) the difference of (A) the Per-Share Portion of the Estimated Common Stock Closing Consideration, minus (B) the applicable exercise price per share of Company Common Stock issuable under such Company Option, multiplied by (2) the number of shares of Company Common Stock issuable under such Company Option, in each case, in cash and without interest and payable as set forth in Section 5.9(d) (the aggregate amount payable under this Section 5.9(c)(i),  the “Aggregate Company Option Closing Amount”);

(ii) a contingent right to receive an amount equal to the product of (1) the Per-Share Portion of the aggregate amount of the funds held in the Indemnification Escrow Account, if any, that is released to the Company Stockholders and the Surviving Corporation or its designee pursuant to Section 8.7(c), multiplied by (2) the number of shares of Company Common Stock issuable under such Company Option, in each case, in cash and without interest and payable as set forth in Section 8.7(c) and the Escrow Agreement;

(iii) a contingent right to receive an amount equal to the product of (1) the Per-Share Portion of the portion of the aggregate amount of the funds held in the Representative Expense Fund, if any, that is released to the Company Stockholders and the Surviving Corporation or its designee pursuant to Section 10.5, multiplied by (2) the number of shares of Company Common Stock issuable under such Company Option, in each case, in cash and without interest and payable as set forth in Section 10.5; and

(iv) a contingent right to receive an amount equal to the product of (1) the Per-Share Portion of any Earnout Payments, multiplied by (2) the number of shares of Company Common Stock issuable under such Company Option, in each case, in cash and without interest and payable as set forth in Section 5.11 and Exhibit D.

(d) At the Closing and immediately following the Effective Time, Parent shall pay or cause to be paid to the Surviving Corporation an amount equal to the Aggregate Company Option Closing Amount by wire transfer of immediately available funds to the account of the Surviving Corporation identified in the Payment Statement. Subject to Section 5.9(e), all payments of the applicable portion of the Aggregate Company Option Closing Amount to each Company Optionholder shall be made (without interest) by the Surviving Corporation to such Company Optionholder no later than the next regularly scheduled payroll date but in no event shall the Surviving Corporation be required to make such payments sooner than three (3) Business Days after the Closing Date.

(e) Unless earlier mailed or delivered by the Company, as soon as reasonably practicable after the Effective Time, and in any event no later than five (5) Business Days after the Closing Date, Parent or the Surviving Corporation shall mail or deliver, or cause to be mailed or delivered, to each Company Optionholder a surrender form, substantially in the form of Exhibit F (each, a “Company Optionholder Surrender Form”). A Company Optionholder shall not be entitled to receive any specified cash amount or any contingent right under Section 5.9(c) until such Company Optionholder has delivered to Parent a duly executed and fully completed Company Optionholder Surrender Form. Upon delivery to Parent by a Company Optionholder of a duly executed and fully completed Company Optionholder Surrender Form, such Company Optionholder shall be entitled to receive (i) the specified cash amounts into which the Company Options formerly held by such Company Optionholder were converted under Section 5.9(c)(i), and Parent shall cause to be paid such specified cash amounts to such Company Optionholder in accordance with Section 5.9(d),  and (ii) any contingent right into which any such Company Options were converted under Sections 5.9(c)(ii)–(iii);  provided,  however, that, for the avoidance of doubt, no Company Optionholder shall be entitled to receive any cash amount contemplated by the contingent rights set forth in Sections 5.9(b)(ii)–(iii) until such cash amounts are otherwise payable in accordance with, and which cash amounts are subject to

(a) Promptly (and in any event within five (5) hours) after the execution and delivery of this Agreement, the Company shall deliver to Parent a copy of an action by written consent, in form and substance reasonably acceptable to Parent, duly executed by the requisite Company Stockholders, evidencing the Company Stockholder Approval (the “Company Written Consent”). To the extent required by the DGCL, within ten (10) days after the date on which the Company obtains the Company Stockholder Approval, the Company shall prepare and distribute to all Company Stockholders that do not adopt this Agreement pursuant to the Company Written Consent or otherwise in accordance with the DGCL a notice of the adoption of this Agreement by the written consent of the Company Stockholders pursuant to the applicable provisions of the DGCL, and the Company shall take all actions necessary to provide that such notices constitutes the notice to the Company Stockholders required by applicable Law that appraisal rights may be available to the Company Stockholders pursuant to the DGCL. No later than five (5) days prior to circulating such notice, the Company shall provide a copy thereof to Parent and shall consider in good faith Parent’s reasonable comments thereon prior to such distributing such notice to the Company Stockholders.

(b) Prior to the Effective Time, (i) the Company shall take all necessary action to cause each share of Company Preferred Stock then outstanding to be converted into the number of shares of Company Common Stock set forth under the then effective conversion provisions of the Company Charter, and (ii) the Company shall deliver reasonable evidence of such conversions to Parent.

(a) From and after the Closing, at such times as provided in Exhibit D, Parent shall make, or cause to be made, the payments to the Company Stockholders and the Surviving Corporation or its designee set forth in, on and subject to the terms, conditions, contingencies, procedures and definitions set forth in, Exhibit D (the “Earnout Payments”).

(b) The Parties understand and agree that (i) the contingent right to receive any Earnout Payment shall not be represented by any form of certificate or other instrument, is not transferable, except by operation of law, and does not constitute an equity or ownership interest in Parent, the Surviving Corporation or any of their respective Affiliates, (ii) neither the Stockholder Representative nor any Company Securityholder shall have any rights as a holder of the securities of Parent, the Surviving Corporation or any of their respective Affiliates solely as a result of the Company Securityholders’ contingent right to receive any Earnout Payment under this Section 5.11 and (iii) no interest shall be payable with respect to any Earnout Payment.

(c) The Parties acknowledge and agree that, from and after the Closing, Parent shall have sole discretion with regard to all matters relating to the operation of the Company;  provided that neither Parent nor the Surviving Corporation shall take (or omit to take) any action in bad faith for the purpose of avoiding or reducing any Earnout Payment; provided,  further, that subject to the foregoing, neither Parent nor the Surviving Corporation shall have any obligation to operate the Surviving Corporation or its Subsidiaries in order to achieve any Earnout Payment or to maximize the aggregate amount of the Earnout Payments.

(d) Within forty-five (45) days after the payment by Parent of any Earnout Payment to the Company Securityholders, Parent shall provide the Stockholder Representative with an accounting of the payment, for Tax purposes, setting forth the amount of the payment that constitutes interest and the amount of the payment that constitutes principal, computed in accordance with the principles of Section 483 of the Code and the Treasury Regulations promulgated thereunder, which principal shall be treated for income Tax purposes as an adjustment to the Merger Consideration.  Parent and each Company Securityholder shall (i) prepare and timely file all forms and Tax Returns required to be filed in connection with such accounting, (ii) be bound by such accounting for all Tax purposes, (iii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with such accounting and (iv) not take any position, or cause its Affiliates to take any position, inconsistent with such accounting on any Tax Return, in any audit or proceeding before any Taxing Authority, or in any report made for Tax purposes; provided,  however, that notwithstanding anything in this Section 5.11(d) to the contrary, Parent and the Company Securityholders shall be permitted to take a position inconsistent with that set forth in this Section 5.11(d) if required to do so by a final and non-appealable Order of any court of competent jurisdiction.

(e) If, at the time any Earnout Payment is due to be paid to the Company Stockholders or the Surviving Corporation or its designee pursuant to Exhibit D,  Parent has delivered a Claim Notice under Section 8.4(a) with respect to any Specified Indemnification Obligation, Parent shall be entitled to, and shall, withhold and set off against any such Earnout Payment the amount of any indemnifiable Losses to which Parent may be entitled under such Specified Indemnification Obligation;  provided,  however, that, if the amount of indemnifiable Losses to which Parent is entitled with respect to any such Claim Notice, as finally determined pursuant to Section 8.4, is less than the amount withheld from any Earnout Payment with respect thereto pursuant to this Section 5.11(e), then Parent shall promptly pay an aggregate amount equal to such difference to the (i) the Company Stockholders, pro rata in accordance with their respective Pro Rata Share, and (ii) with respect to Company Optionholders, the Surviving Corporation or its designee for further distribution to the Company Optionholders through payroll, pro rata in accordance with their respective Pro Rata Share.

(a) Stockholder Approval. The Company shall have obtained the Company Stockholder Approval.

(b) Legal Restraints. No Law, whether preliminary, temporary or permanent, shall be in effect that prevents, makes illegal or prohibits, and no Claim by any Governmental Entity shall be pending that seeks to prevent, make illegal or prohibit, the consummation of the Merger (any such Law or Claim, a “Legal Restraint”).

(a) Representations and Warranties.

(i) Each representation and warranty of the Company made in Section 3.3,  Section 3.4 and Section 3.7(b) shall be accurate in all respects as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except to the extent any such representation or warranty speaks as of the date of this Agreement or any other specific date, in which case such representation or warranty shall have been accurate in all respects as of such date).

(ii) Each representation and warranty of the Company made in this Agreement (other than the representations and warranties set forth in Section 3.3,  Section 3.4 and Section 3.7(b)) shall be accurate in all respects (read, for purposes of this Section 6.2(a)(ii) only, without any qualifier as to materiality,  “material” or “Material Adverse Effect”) as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except to the extent any such representation or warranty speaks as of the date of this Agreement or any other specific date, in which case such representation or warranty shall have been accurate in all respects as of such date), except that any inaccuracies in such representations and warranties will be disregarded for purposes of this Section 6.2(a)(ii) if such inaccuracies, individually or in the aggregate, have not resulted in and would not result in (1) a Material Adverse Effect or (2) a material adverse effect on the ability of the Company to comply with its obligations under this Agreement.

(b) Performance of Covenants of the Company. The Company shall have performed or complied in all material respects with each covenant or agreement required to be performed or complied with by it under this Agreement at or prior to the Closing.

(c) Officers’ Certificate. Parent shall have received a certificate, dated as of the Closing Date and duly executed by an executive officer of the Company, certifying as to the matters set forth in Section 6.2(a) and Section 6.2(b).

(d) Third-Party Consents. The Company shall have (i) obtained Consents to the consummation of the transactions contemplated by this Agreement pursuant to the Contracts set forth in Section 6.2(d) of the Company Disclosure Schedule (the “Required Contractual Consents”) and (ii)

(e) Management Offer Letters. Each of the Management Offer Letters shall be in full force and effect.

(a) Representations and Warranties. The representations and warranties of Parent and Merger Sub contained in this Agreement shall be accurate in all respects (read, for purposes of this Section 6.3(a) only, without any qualifier as to materiality or “material”) as of the date of this Agreement and as of the Closing Date as if made as of the Closing Date (except to the extent any such representation or warranty speaks as of the date of this Agreement or any other specific date, in which case such representation or warranty shall have been accurate in all respects as of such date), except that any inaccuracies in such representations and warranties will be disregarded for purposes of this Section 6.3(a) if such inaccuracies, individually or in the aggregate, have not resulted in and would not result in a material adverse effect on the ability of Parent or Merger Sub to comply with its obligations under this Agreement.

(b) Performance of Obligations of Parent and Merger Sub. Each of Parent and Merger Sub shall have performed or complied with in all material respects each covenant or agreement required to be performed or complied with by it under this Agreement at or prior to the Closing.

(c) Officers’ Certificate. The Company shall have received a certificate dated as of the Closing Date and duly executed by an executive officer of Parent certifying as to the matters set forth in Section 6.3(a) and Section 6.3(b).

(a) Termination by Mutual Consent. The Company and Parent shall have the right to terminate this Agreement at any time prior to the Effective Time by mutual written consent.

(b) Termination by Either the Company or Parent. Each of the Company and Parent shall have the right to terminate this Agreement at any time prior to the Effective Time, if:

(i) the Closing shall not have been consummated prior to 5:00 p.m. Tulsa, Oklahoma time on July 21, 2017 (the “End Date”); or

(ii) a Legal Restraint is in effect that has become final and nonappealable.

(c) Termination by Parent.

(i) Parent shall have the right to terminate this Agreement prior to the Effective Time if the Company breaches or fails to perform any of its covenants or agreements contained in this Agreement, or if any of the representations or warranties of the Company contained in this Agreement fails to be accurate, which breach or failure (1) would give rise to the failure of a condition set forth in Section 6.1,  Section 6.2(a) or Section 6.2(b), as applicable, and (2) is not reasonably capable of being cured by the Company by the End Date or, if reasonably capable of being cured by the End Date, is not cured by the Company within thirty (30) days after receiving written notice from Parent of such breach or failure.

(ii) Parent shall have the right to terminate this Agreement if the Company does not deliver the Company Written Consent to Parent in accordance with Section 5.10 by the date that is one (1) Business Day after the date of this Agreement; provided,  however, that Parent shall not be permitted to terminate this Agreement under this Section 7.1(c)(ii) after the Company delivers the Company Written Consent to Parent.

(d) Termination by the Company. The Company shall have the right to terminate this Agreement prior to the Effective Time if Parent or Merger Sub breaches or fails to perform any of its covenants or agreements contained in this Agreement, or if any of the representations or warranties of the Parent or Merger Sub contained in this Agreement fails to be accurate, which breach or failure (i) would give rise to the failure of a condition set forth in Section 6.1,  Section 6.3(a) or Section 6.3(b), as applicable, and (i) is not reasonably capable of being cured by Parent or Merger Sub by the End Date or, if reasonably capable of being cured by the End Date, is not cured by Parent or Merger Sub within thirty (30) days after receiving written notice from the Company of such breach or failure.

(a) In the event that this Agreement is terminated pursuant to Section 7.1, this Agreement shall be of no force or effect, without any liability or obligation on the part of any Party (or any stockholder or Representative thereof), whether arising before or after such termination, based on, arising out of or relating to this Agreement or the negotiation, execution, performance or subject matter hereof (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity);  provided,  however, (i) that this Section 7.2, Section 10.2 and Article XI shall survive the termination of this Agreement and shall remain in full force and effect and (ii) this Section 7.2(a) shall not relieve any Party of any liability for fraud or any willful and material breach of this Agreement occurring prior to any such termination.

(b) This Agreement may be terminated only pursuant to Section 7.1.  In order to terminate this Agreement under Section 7.1, the Party desiring to terminate this Agreement shall give written notice of such termination to the other Parties in accordance with Section 11.8, specifying the provision of this Agreement pursuant to which such termination is effected.

(a) From and after the Closing, subject to the other provisions of this Article VIII, the Company Securityholders, severally and not jointly and, subject to Section 8.7(d),  pro rata in accordance with each such Company Securityholder’s Pro Rata Share, shall indemnify Parent for, and defend and hold Parent harmless from and against, any and all Losses actually suffered, paid or incurred by Parent, the Surviving Corporation, the Subsidiaries of Parent and the Company and their respective officers, directors, agents, attorneys and employees as a result of or related to:

(i) any breach of any of the representations and warranties of the Company set forth in this Agreement;

(ii) any breach of any covenant or agreement of the Company set forth in this Agreement;

(iii) (1) any error in the Payment Schedule or (2) any Claim made by a Company Securityholder against Parent, Merger Sub, the Surviving Corporation or any Acquired Entity (or any director or officer thereof) in connection with this Agreement or the Other Transaction Agreements or the transactions contemplated by this Agreement or the Other Transaction Agreements, except for any Claim for indemnification pursuant to Section 8.2(b); and

(iv) any Pre-Closing Tax Obligation, any Unpaid Company Expenses in excess of the Estimated Unpaid Company Expenses and 50% of any Transfer Taxes.

(a) From and after the Closing, subject to the other provisions of this Article VIII, Parent shall indemnify the Company Securityholders, pro rata in accordance with their respective Pro Rata Share, for, and defend and hold each of them harmless from and against, any and all Losses actually suffered, paid or incurred by the Company Securityholders  and their respective officers, directors, agents, attorneys and employees (excluding  the Company)  as a result of or related to:

(i) any breach of any of the representations and warranties of Parent or Merger Sub set forth in this Agreement; and

(ii) any breach of any covenant or agreement of Parent or Merger Sub set forth in this Agreement.

(a) Except with respect to fraud in connection with this Agreement or the transactions contemplated hereby or any breach of a Fundamental Representation, a Company Tax Representation or a Company IP Representation,  (i) no Indemnifying Party shall have any obligation to indemnify any Indemnified Person pursuant to Section 8.2(a)(i) or Section 8.2(b)(i), as applicable, in respect of Losses that are less than $10,000 for any series of one or more related Claims arising out of the same facts or circumstances, and (ii) any such Losses shall be excluded from any determination of whether any Deductible Amount has been exceeded.

(b) Except with respect to fraud in connection with this Agreement or the transactions contemplated hereby or any breach of a Fundamental Representation, a Company IP Representation or a Company Tax Representation, (i) the Company Securityholders  shall not have any obligation to indemnify under Section 8.2(a)(i) until the aggregate amount of all Losses for which the Company Securityholders are obligated to indemnify pursuant to Section 8.2(a)(i) exceeds $37,500 (the “Deductible Amount”), at which point the Company Securityholders  shall be liable for all such indemnifiable Losses in excess of the Deductible Amount subject to the limitations, caps, terms and conditions set forth herein,  (ii) the Company Securityholders’ aggregate liability under Section 8.2(a)(i) shall not exceed the Indemnification Escrow Amount (the “Cap Amount”),  (iii) Parent shall not have any obligation to indemnify under Section 8.2(b)(i) until the aggregate amount of all Losses for which Parent is obligated to

(c) With respect to any breach of a Company IP Representation, each Company Securityholder’s aggregate liability under Section 8.2(a)(i) (together with all Claims made under Section 8.2(a)(i) and subject to Section 8.7(d))  shall not exceed 20% of the portion of the Merger Consideration received by such Company Securityholder, including any amounts paid to such Company Securityholder out of the Indemnification Escrow Account.

(d) With respect to any breach of a Company Fundamental Representation or a Company Tax Representation, and with respect to Claims under Section 8.2(a)(ii) through (iv),  each Company Securityholder’s aggregate liability under Section 8.2(a)(i) through (iv) (together with all Claims made under Section 8.2(a) and subject to Section 8.7(d))  shall not exceed the portion of the Merger Consideration received by such Company Securityholder, including any amounts paid to such Company Securityholder out of the Indemnification Escrow Account.

(e) A Company Securityholder shall not be responsible and shall have no liability with respect to any Losses to the extent arising out of or resulting from the fraud of another Company Securityholder acting in his capacity as such and not as a Representative of the Company;  provided,  however, a Company Stockholder’s liability for Losses to the extent arising out of or resulting from fraud by such Company Securityholder in his, her or its capacity as such shall not be limited.

(a) As a condition to making an indemnification Claim under Section 8.2, any Person seeking indemnification under Section 8.2 (each, an “Indemnified Person”) shall assert any Claim for indemnification, including any Third-Party Claim, by delivering written notice thereof (a “Claim Notice”) in accordance with Section 11.8 to the Stockholder Representative (if the Company Securityholders are the party from which indemnification is sought pursuant to Section 8.2) or to Parent (if Parent is the party from which indemnification is sought pursuant to Section 8.2) (the Company Securityholders or Parent, as the case may be, the “Indemnifying Party”) prior to the expiration of the applicable survival period set forth in Section 8.1.  Each Claim Notice shall describe in reasonable detail the nature of the Claim, shall reference the provision or provisions of this Agreement under which the Claim is asserted and, if applicable, the applicable sections of this Agreement which are alleged to have been breached by the Indemnifying Party, and attach copies of all material written evidence thereof that the Indemnified Person has received from any Person that is not a Party or a Person Affiliated with a Party (a “Third Party”). The date of delivery of such Claim Notice is referred to herein as the “Claim Date.” If the Indemnifying Party objects to any Claims within such Claim Notice, such objection must be made in writing delivered to the Indemnified Person within thirty (30) days after the Claim Date (the “Objection Notice”). The Indemnified Person and the Indemnifying Party (the Stockholder Representative in the

(b) Upon receipt by an Indemnifying Party of a Claim Notice in respect of a Claim brought by a Third Party (a “Third-Party Claim”), the Indemnifying Party shall be entitled to (i) assume and have sole control over the defense and investigation of such Third-Party Claim at its sole cost and expense (subject to the last sentence of this Section 8.4(b)) and with counsel of its own choosing if it gives notice of its intention to do so to the Indemnified Person within thirty (30) days after the delivery of such Claim Notice by the Indemnified Person and (ii) negotiate a settlement or compromise of, or consent to the entry of an Order with respect to, such Claim; provided that, if (1) such settlement, compromise or consent does not include a full and unconditional waiver and release by such Third Party of all applicable Indemnified Persons for all Losses with respect to such Third-Party Claim, (2) such settlement, compromise or consent imposes a Lien on any of the assets of any such Indemnified Person or (3) such settlement, compromise or consent results or would reasonably be expected to result in any restriction or condition that would apply to or affect any such Indemnified Person, or the conduct of any such Indemnified Person’s business, such settlement, compromise or consent shall be permitted only with the prior written consent of such Indemnified Person (whether or not such Indemnified Person is an actual or potential party to such Third-Party Claim), which consent shall not be unreasonably withheld, conditioned or delayed. If the Indemnifying Party elects to assume control of the defense and investigation of any such Third-Party Claim, then the Indemnified Person shall be entitled to participate in (but not control) such defense and investigation with counsel reasonably acceptable to the Indemnifying Party at such Indemnified Person’s sole cost and expense; provided,  however, that, if in the reasonable opinion of counsel to the Indemnified Person, there are legal defenses available to the Indemnified Person that are different from or additional to those available to the Indemnifying Party or there exists a conflict of interest between the Indemnifying Party and the Indemnified Person that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Person in each jurisdiction for which the Indemnified Person determines counsel is required.

(c) Notwithstanding anything to the contrary in Section 8.4(b), the Indemnifying Person shall not be entitled to assume and control the defense or investigation of any Third-Party Claim that (i) seeks an injunction or other equitable relief against an Indemnified Person, (ii) involves an allegation that an Indemnified Person committed a criminal act or (iii) would reasonably be expected to result in Losses to all applicable Indemnified Persons which, taken with other then-existing Losses for which such Indemnifying Party is obligated to provide indemnification under this Article VIII, would exceed the then-remaining limit of liability of such Indemnified Person under Section 8.3. If, within thirty (30) days after delivery by an

(d) Notwithstanding anything in this Section 8.4 to the contrary, Article IX shall govern for purposes of any Third Party Claim that is a Tax Claim.

(a) The amount of any and all Losses of an Indemnified Person that is indemnifiable under this Article VIII shall be determined net of (i) any amounts actually recovered by such Indemnified Person under or pursuant to any insurance policy or any indemnity or reimbursement arrangement or Contract pursuant to which such Indemnified Person has rights to recovery with respect to such Losses and (ii) any Tax benefits actually realized by any Indemnified Person via an actual reduction in cash Taxes payable by such Indemnified Person in connection with and in the same year as such Losses are paid or incurred.

(b) Each Indemnified Person shall use commercially reasonable efforts to mitigate all Losses, to the extent required by applicable Law, after becoming aware of any event which could reasonably be expected to give rise to any Loss that is indemnifiable under this Article VIII.

(a) From and after the Closing, except for fraud in connection with this Agreement or the transactions contemplated hereby, the provisions of this Article VIII, Article IX, the Merger Support Agreement and the Escrow Agreement shall be the sole and exclusive remedy for any Claim (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) that may be based on, arise out of or relate to this Agreement, the negotiation, execution, performance or subject matter of this Agreement, the transactions contemplated by this Agreement or any Losses alleged to be suffered by any Party as a result of the actions or failure to act by any Party in connection with this Agreement or the transactions contemplated by this Agreement.

(b) The Indemnification Escrow Account shall serve as security for the indemnification obligations of the Company Securityholders under Section 8.2(a). The Indemnification Escrow Account (i) shall be the exclusive source of recovery for any indemnification obligation of the Company Securityholders under Section 8.2(a)(i) other than with respect to any breach of any Company Fundamental Representation, Company IP Representation or any Company Tax Representation and (ii) shall be the first but nonexclusive source of recovery for any indemnification obligation of the Company Securityholders under (1) Section 8.2(a)(i) with respect to any breach of any Company Fundamental Representations, Company IP Representations or any Company Tax Representation or (2) Section 8.2(a)(ii), Section 8.2(a)(iii) or Section 8.2(a)(iv) (the indemnification obligations described in the foregoing clauses (1) and (2), the “Specified Indemnification Obligations”), in each case, until such time as no funds remain in the Indemnification Escrow Account;  provided,  however, that, for the avoidance of doubt, to the extent any funds remain in the Indemnification Escrow Account, Parent shall be required to first seek recovery from the Indemnification Escrow Account for any Specified Indemnification Obligation prior to seeking payment directly from the Company Stockholders in accordance with Section 8.7(d) in respect of any such Specified Indemnification Obligation. For the avoidance of doubt, any funds that have been released to Parent from the Indemnification Escrow Account in respect of any indemnification obligation described under the foregoing clause (i) shall be aggregated for purposes of determining whether, as of any particular time, the Company Securityholders have obligations to indemnify under Section 8.2(a)(i) (except with respect to fraud or any breach of a Fundamental Representation, Company IP Representation or a Company Tax Representation) in an amount equal to or less than the Cap Amount or the limitations set forth in Section 8.3(a), as applicable.

(c) Escrow Releases.

(i) Although the specific provisions relating to the release of the funds held in the Indemnification Escrow Account shall be set forth in the Escrow Agreement, the Parties agree that, not later than five (5) Business Days following the date that is

(ii) Although the specific provisions relating to the release of the funds held in the Indemnification Escrow Account shall be set forth in the Escrow Agreement, the Parties agree that, not later than five (5) Business Days following the General Termination Date, the Escrow Agent shall release, by wire transfer of immediately available funds in accordance with the Escrow Agreement, to  (1) the Company Stockholders, pro rata in accordance with their respective Pro Rata Share, and (2) with respect to Company Optionholders, the Surviving Corporation or its designee for further distribution to the Company Optionholders through payroll, pro rata in accordance with their respective Pro Rata Share, an amount equal to (A) all funds then in the Indemnification Escrow Account, if any, minus (ii) the sum of (I) all amounts, if any, that, as of the General Termination Date, represent claimed Losses under then-pending indemnification Claims subject to Claim Notices pursuant to the terms of the Escrow Agreement (“Outstanding Claims”), plus (II) any amount due to Parent from the Indemnification Escrow Account pursuant to indemnification Claims that have been finally resolved in accordance with this Agreement and the Escrow Agreement but which the Escrow Agent has not yet released from the Indemnification Escrow Account to Parent. With respect to any Outstanding Claim, the Parties agree that, subject to the terms and conditions of the Escrow Agreement, the Escrow Agent shall release, by wire transfer

(a) Notwithstanding anything to the contrary in this Agreement:

(i) no Company Optionholder shall have any liability or responsibility under Section 8.2(a) with respect to any Specified Indemnification Obligation except to the extent (1) Parent seeks recovery with respect to such Specified Indemnification Obligation from the Indemnification Escrow Account, as contemplated by Section 8.7(b)(ii), or (2) Parent is required under Section 5.11(e) to withhold and set off against any Earnout Payment due to be paid to the Company Securityholders or the Surviving Corporation or its designee pursuant to Exhibit D the amount of any indemnifiable Losses to which Parent may be entitled with respect to such Specified Indemnification Obligation; and

(ii) except to the extent (1) Parent seeks recovery with respect to such Specified Indemnification Obligation from the Indemnification Escrow Account, as contemplated by Section 8.7(b)(ii), or (2) Parent is required under Section 5.11(e) to withhold and set off against any Earnout Payment due to be paid to the Company Securityholders or the Surviving Corporation or its designee pursuant to Exhibit D the amount of any indemnifiable Losses to which Parent may be entitled with respect to such Specified Indemnification Obligation, the Company Stockholders, severally and not jointly and pro rata in accordance with each such Company Stockholder’s Company Stockholder Liability Percentage, shall be liable and responsible for 100% of such Specified Indemnification Obligation (including, for the avoidance of doubt, the portion of such Specified Indemnification Obligation for which the Company Optionholders would have been liable and responsible if Parent had taken any action described in the foregoing clauses (1) or (2)).

(a) The Surviving Corporation shall prepare or cause to be prepared and file or cause to be filed all Tax Returns for the Acquired Entities that are required to be filed after the Closing Date. All Tax Returns of the Acquired Entities that include Pre-Closing Tax

(b) No later than fifteen (15) Business Days prior to the due date for filing of any Tax Return of any Acquired Entity that includes a Pre-Closing Tax Period, the Surviving Corporation shall provide the Stockholder Representative with a draft of such Tax Return. The Stockholder Representative shall have the right to review and provide reasonable comments on such Tax Returns during the ten (10) Business Day period following the receipt of such Tax Returns, which reasonable comments shall be incorporated by the Surviving Corporation and reflected in the applicable Tax Return as long as such comments are consistent with the reporting standard set forth in paragraph (a) above. In the case of any Tax Return of any Acquired Entity that includes the Closing Date, after receiving reasonable documentary evidence from the Surviving Corporation of the portion of the Taxes due and payable that relates to the Pre-Closing Tax Period, at least five (5) days prior to the due date for payment of such Taxes the Company Securityholders  shall pay, or cause to be paid, such amount to Parent. No failure or delay of Parent in providing a Tax Return for the Stockholder Representative’s review and comment shall reduce or otherwise affect the obligations or liabilities of the Company Securityholders pursuant to this Agreement except to the extent the Company Securityholders are actually and materially prejudiced by such failure or delay.

(a) Notwithstanding anything to the contrary in Section 8.4, if, after the Closing Date, a Party entitled to indemnification for Taxes under this Agreement receives notice of any audit, demand, claim, proposed adjustment, assessment, examination or other administrative or court proceeding (a “Tax Claim”) with respect (in whole or in part) to such indemnified Taxes, such Party shall supply a copy of such document to the potentially affected Party within seven (7) days of receipt; provided,  however, that no failure or delay on the part of the Party entitled to indemnification to give such notice shall reduce or otherwise affect the obligations or liabilities of the indemnifying Party pursuant to this Agreement, except to the extent the indemnifying Party is actually and materially prejudiced by such failure or delay. Any information provided or obtained under this paragraph shall be kept confidential, except as may otherwise be necessary in connection with the filing of a Tax Return, refund claims, or any Tax Claim, or as required by applicable Law.

(b) Parent or the Surviving Corporation shall control any Tax Claim of any Acquired Entity or the Surviving Corporation; provided,  however, in the case of a Tax Claim (or any portion thereof) relating to any Pre-Closing Tax Period of any Acquired Entity, (i) the Stockholder Representative may, at the expense of the Company Securityholders, participate in the defense of any such Tax Claim and (ii) Parent or the Surviving Corporation shall not, and shall not allow the Surviving Corporation to, settle or otherwise resolve any such Tax Claim without the prior written consent of the Stockholder Representative (which consent will not be

(a) to execute and deliver any Contract, certificate or other document in connection with this Agreement (with such modifications or changes therein as to which the Stockholder Representative, in its sole discretion, shall have consented) and to agree to such amendments or modifications thereto as the Stockholder Representative, in its sole discretion, determines to be desirable;

(b) to execute and deliver such waivers and consents in connection with this Agreement and any other Contract, certificate or other document in connection with this Agreement and the consummation of the transactions contemplated by this Agreement and thereby as the Stockholder Representative, in its sole discretion, may deem necessary or desirable;

(c) to enforce and protect the rights and interests of the Company Securityholders and to enforce and protect the rights and interests of the Stockholder Representative arising out of or under or in any manner relating to this Agreement and any other Contract, certificate or other document in connection with this Agreement, and to take any and all actions which the Stockholder Representative believes are necessary or appropriate under this Agreement for and on behalf of the Company Securityholders, including asserting or pursuing any Claim against Parent or its Representatives, in each case, to the extent such Claims are permitted under this Agreement, compromising or settling any such Claims, conducting negotiations with Parent and its Representatives regarding such Claims and, in connection therewith, to (1) assert or institute any Claim, (2) investigate, defend, contest or litigate any Claim initiated by a Party, its Affiliates or any other Person, or by any federal, state or local Governmental Entity against the Stockholder Representative, any Company Securityholder, and receive process on behalf of any Company Securityholder in any such Claim or investigation and compromise or settle on such terms as the Stockholder Representative shall determine to be appropriate, and give receipts, releases and discharges with respect to, any such Claim or investigation, (3) file any proofs of debt, claims and petitions as the Stockholder Representative may deem advisable or necessary and (4) file and prosecute appeals from any Order rendered in any such Claim or investigation, it being understood that the Stockholder Representative shall not have any obligation to take any such actions and shall not have any Liability for any failure to take any such actions;

(d) to refrain from enforcing any right of any Company Securityholder or the Stockholder Representative arising out of or under or in any manner relating to this Agreement or any Contract, certificate or other document in connection with this Agreement; provided,  however, that no such failure to act on the part of the Stockholder Representative,

(e) to make, execute, acknowledge and deliver all such other Contracts, agreements, guarantees, orders, receipts, endorsements, notices, requests, instructions, certificates, stock powers, letters and other writings, and, in general, to do any and all things and to take any and all action that the Stockholder Representative, in its sole and absolute discretion, may consider necessary or proper or convenient in connection with or to carry out the transactions contemplated by this Agreement or any other Contract, certificate or other document in connection with this Agreement.

(a) Except as otherwise provided herein and subject to the provisions of Section 8.7(a), any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred by this Agreement, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.

(b) The Parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that, at any time prior to the earlier of the Effective Time and the termination of this Agreement pursuant to Article VII, the Parties shall be entitled to seek non-monetary damages through an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of terms and provisions of this Agreement, including the right of a Party to cause each other Party to consummate the Merger and the other transactions contemplated by this Agreement, in any court referred to in Section 11.4, without proof of actual damages (and each Party waives any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to which they are entitled at law or in equity. In connection with the foregoing, the Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy for any such breach.

if to Parent or Merger Sub:

Helmerich & Payne, Inc.

1437 S. Boulder Ave., Suite 1400

Tulsa, Oklahoma 74119‑3623

Email: cara.hair@hpinc.com

Attention: Cara Hair, Vice President, General Counsel

and Chief Compliance Officer

with copies (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

1440 New York Avenue, N.W.

Washington, DC 20005

Email: pankaj.sinha@skadden.com

Attention: Pankaj Sinha

if to the Company:

Motive Drilling Technologies, Inc.

1807 Ross Avenue, Suite 250

Dallas, TX 75201

Email: todd.benson@motivedrilling.com

Attention: Todd Benson, Chief Executive Officer

with a copy (which shall not constitute notice) to:

Kastner Huggins Reddien Gravelle LLP

801 West 5th Street, Suite 105

Austin, TX 78703

Email: ekastner@khrg.com

Attention: Evan Kastner

if to the Stockholder Representative:

If prior to July 31, 2017:

Shareholder Representative Services LLC

1614 15th Street, Suite 200

Denver, CO 80202

Attention: Managing Director

Email: deals@srsacquiom.com

Facsimile No.: (303) 623‑0294

Telephone No.: (303) 623‑0294

If on or after July 31, 2017:

Shareholder Representative Services LLC

950 17th Street, Suite 1400

Denver, CO 80202

Attention: Managing Director

Email: deals@srsacquiom.com

Facsimile No.: (303) 623‑0294

Telephone No.: (303) 648‑4085

(a) Definitions. Each capitalized term used in this Agreement has the meaning given to it in Exhibit A.

(b) Time Periods. 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, (i) the date that is the reference date in calculating such period shall be excluded and (ii) if the last day of such period is a not a Business Day, the period in question shall end on the next succeeding Business Day.

(c) Dollars. Unless otherwise specifically indicated, any reference herein to “$” means U.S. dollars.

(d) Gender and Number. Any reference herein to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.

(e) Articles, Sections and Headings. When a reference is made herein to an Article or a Section, such reference shall be to an Article or a Section of this Agreement unless otherwise indicated. The table of contents and headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

(f) Include. Whenever the words “include,” “includes” or “including” are used herein, they shall be deemed to be followed by the words “without limitation.”

(g) Hereof. The words “hereof,” “hereto,” “hereby,” “herein” and “hereunder” and words of similar import when used herein shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

(h) Extent. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”

(i) Contracts; Laws. Any Contract or Law defined or referred to herein means such Contract or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated.

(j) Persons. References to a person are also to its successors and permitted assigns.

(k) Exhibits and Disclosure Schedule. The Exhibits to this Agreement and the Company Disclosure Schedule are incorporated and made a part hereof and are an integral part of this Agreement. Each of the Company and Parent may, at its option, include in the Company Disclosure Schedule, respectively, items that are not material in order to avoid any misunderstanding, and such inclusion, or any references to dollar amounts herein or in the Company Disclosure Schedule, shall not be deemed to be an acknowledgement or representation that such items are material, to establish any standard of materiality or to define further the meaning of such terms for purposes of this Agreement or otherwise. Nothing in the Company Disclosure Schedule is intended to broaden the scope of any representation or warranty contained in the Agreement or to create any covenant. The Company Disclosure Schedule is organized into sections that correspond to the Sections of this Agreement. Any item set forth in any section of the Company Disclosure Schedule that corresponds to a Section of this Agreement shall apply to and qualify only (i) such Section of this Agreement and (ii) any other Section of this Agreement that contains a representation or warranty if such item’s relevance to such other Section is reasonably apparent on its face without further inquiry. Any capitalized term used in any Exhibit or any Disclosure Schedule but not otherwise defined therein shall have the meaning given to such term herein.

(l) Making Available. A document or information shall be deemed to have been “made available” or otherwise delivered to Parent only if, prior to the execution and

delivery of this Agreement, such document or information has been posted to the “Project Spring” Merrill DataSite data room maintained by the Company in connection with the transactions contemplated by this Agreement in a folder thereof to which Parent or its Representatives have downloading and printing access.

HELMERICH & PAYNE, INC.

By:

Name:

Title:

SPRING MERGER SUB, INC.

By:

Name:

Title:

MOTIVE DRILLING TECHNOLOGIES, INC.

By:

Name:

Title:

SHAREHOLDER REPRESENTATIVE

SERVICES LLC, solely in its capacity as

Stockholder Representative

By:

Name:

Title: