International Game Technology 6K IGT's Gaming and Digital Business and Everi to Be Acquired Simultaneously by Apollo Funds in All-Cash Transaction | IGT 26 Jul 24

Exhibit 10.1

SEPARATION AND SALE AGREEMENT

by and among

INTERNATIONAL GAME TECHNOLOGY PlC,

IGNITE ROTATE LLC,

EVERI HOLDINGS INC.

and

VOYAGER PARENT, LLC

Dated as of July 26, 2024

TABLE OF CONTENTS

Article I THE SEPARATION

1.1	Restructuring; Transfer of Assets; Assumption of Liabilities	2
1.2	Contract Consents; Treatment of Shared Contracts	4
1.3	Intercompany Liabilities	5
1.4	Transfers of Assets or Assumptions of Liabilities Not Effected at or Prior to the Equity Sale Closing Time; Transfers or Assumptions Deemed Effective as of the Equity Sale Closing Time	6
1.5	Bank Accounts	9
1.6	Permits	10
1.7	Separation Documents	11
1.8	Transaction Documents	11
1.9	Further Assurances	11
1.10	Credit Support Instruments	12
1.11	Disclaimer of Representations and Warranties	16
1.12	Restrictive Covenants	17
1.13	Certain Resignations	19
1.14	Removal of Tangible Retained Assets	19
1.15	Stand-Up Plan and Day-One Readiness	20
1.16	Cash Management.	24
1.17	Guarantee	25
1.18	Additional Separation Covenants	25
1.19	Obligations for Certain Equity Awards	27
1.20	Certain Matters	27

Article II PURCHASE AND SALE

2.1	Purchase and Sale	27
2.2	Cash Payment	27
2.3	Adjustment for Spinco	28
2.4	Payments and Computations	32
2.5	FIRPTA	32

Article III RELEASE AND INDEMNIFICATION

3.1	Release of Pre-Closing Claims	33
3.2	Indemnification by Remainco	37
3.3	Indemnification by Spinco Group, Merger Partner Group and Buyer Group	37
3.4	Procedures for Indemnification	38
3.5	Cooperation	40
3.6	Indemnification Payments	41
3.7	Additional Indemnification Provisions	41
3.8	Additional Matters; Survival of Indemnities	42
3.9	Mitigation	43
3.10	Exclusive Remedies	43
3.11	Third Party Actions	43

Article IV PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE

4.1	Preservation of Corporate Records	44
4.2	Financial Statements and Accounting	45
4.3	Provision of Corporate Records	46
4.4	Witness Cooperation	49
4.5	Reimbursement	50
4.6	Confidentiality	50
4.7	Counsel; Privileges; Legal Material	51
4.8	Ownership of Information	54
4.9	Other Agreements	54
4.10	Insurance Matters	54
4.11	International Game Technology PLC Marks	56

Article V MISCELLANEOUS

5.1	Entire Agreement; Counterparts; Exchanges by Facsimile	57
5.2	Transaction Documents; Precedence of Agreements	57
5.3	Survival	58
5.4	Fees and Expenses	58
5.5	Notices	58
5.6	Waiver	60
5.7	Assignment	60
5.8	Termination	61
5.9	Amendment	61
5.10	Group Members	61
5.11	Third-Party-Beneficiaries	61
5.12	Exhibits and Schedules	61
5.13	Governing Laws	61
5.14	Submission to Jurisdiction	62
5.15	Waiver of Jury Trial	62
5.16	Specific Performance	63
5.17	Severability	63
5.18	No Double Recovery	63
5.19	Tax Treatment of Payments	63
5.20	Payment Terms	63
5.21	Construction	64
5.22	Disclosure	64
5.23	Post-Closing Transfers by Buyer	65

Exhibits

Exhibit A	—	Certain Definitions
Exhibit B	—	Employee Matters Agreement
Exhibit C	—	Form of Ghostbusters Sublicensing Agreement
Exhibit D	—	[Reserved]
Exhibit E	—	Form of Intellectual Property License Agreement

Exhibit F	—	Form of Intercompany Account Termination Agreement
Exhibit G	—	Form of Jumanji Sublicensing Agreement
Exhibit H	—	Real Estate Matters Agreement
Exhibit I	—	Form of Rhode Island VLT JV Interest Management Contract
Exhibit J	—	Form of Rhode Island VLT System Subcontract
Exhibit K	—	Separation Plan
Exhibit L	—	Form of Software License and Support Agreement in favor of Remainco Group
Exhibit M	—	Form of Software License and Support Agreement in favor of Spinco Group
Exhibit N	—	Tax Matters Agreement
Exhibit O	—	Form of Transition Services Agreement
Exhibit P	—	Form of Vanna White Sublicensing Agreement
Exhibit Q	—	Form of Wheel of Fortune Sublicensing Agreement
Exhibit R	—	Form of Whitney Houston Sublicensing Agreement

iii

SEPARATION AND SALE AGREEMENT

This SEPARATION AND SALE AGREEMENT (this “Agreement”) is entered into as of July 26, 2024, by and among: (a) INTERNATIONAL GAME TECHNOLOGY PlC, a public limited company incorporated under the laws of England and Wales (“Remainco”); (b) IGNITE ROTATE LLC, a Delaware limited liability company and a direct wholly owned Subsidiary of Remainco (“Spinco”); (c) EVERI HOLDINGS INC., a Delaware corporation (“Merger Partner”); and (d) VOYAGER PARENT, LLC, a Delaware limited liability company (“Buyer”); (each a “Party” and together, the “Parties”). Certain capitalized terms used in this Agreement are defined in Exhibit A.

RECITALS

WHEREAS, Remainco is engaged, directly and indirectly, in the Spinco Business;

Whereas, on the terms and subject to the conditions set forth in this Agreement, Remainco will effectuate the Separation, including the Spinco Contribution;

Whereas, following the Separation, Remainco desires to sell to Buyer, and Buyer desires to purchase from Remainco, all of Remainco’s right, title and interest in and to the Spinco Units upon the terms and subject to the conditions set forth herein;

WHEREAS, concurrently with the execution of this Agreement, Remainco, Spinco, Buyer, Voyager Merger Sub, Inc., a Delaware corporation and a direct wholly owned Subsidiary of Buyer (“Buyer Sub”), and Merger Partner have entered into the Agreement and Plan of Merger, dated as of the date hereof (as it may be amended, modified or supplemented from time to time, the “Merger Agreement”);

Whereas, the Parties contemplate that, pursuant to the Merger Agreement and immediately following the consummation of the sale of the Spinco Units to Buyer, at the Merger Effective Time, Buyer Sub shall be merged (the “Merger”) with and into Merger Partner, with Merger Partner surviving the Merger as a wholly owned direct Subsidiary of Buyer; and

Whereas, the Parties desire to set forth the principal arrangements among them regarding the foregoing transactions and to make certain covenants and agreements specified in this Agreement in connection therewith and to prescribe certain conditions relating thereto.

Now, Therefore, in consideration of the foregoing and the covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties agree as follows:

Article I

THE SEPARATION

1.1           Restructuring; Transfer of Assets; Assumption of Liabilities.

(a)            Prior to the Equity Sale Closing Time, Remainco and Spinco shall complete the Separation, including by taking the actions referred to in Sections 1.1(b) and 1.1(c), in accordance with the Separation Plan and the terms of this Agreement. Without limiting the generality of Remainco’s other obligations in this Agreement, pursuant to the Separation Plan, Remainco shall cause Spinco, immediately following the Separation and prior to the Equity Sale Closing Time, to own (directly or through another wholly owned Subsidiary of Spinco), free and clear of any Encumbrances (other than Encumbrances (i) that are not material, (ii) under the Financing, (iii) under applicable securities Laws or (iv) under any indebtedness for borrowed money or other Indebtedness of any member of the Remainco Group that may be outstanding as of the Equity Sale Closing Time but which indebtedness (and related Encumbrances) is terminated and released (at no cost to Spinco) as of the Equity Sale Closing Time), all of the Equity Interests in the members of the Spinco Group listed on Schedule 1.1(a) and not, unless Buyer shall otherwise agree in writing (whose agreement shall not be unreasonably withheld, conditioned or delayed), to have any other Subsidiaries. Section 1.4 shall not be deemed to excuse Remainco’s performance of its obligations pursuant to the preceding sentence. Remainco and Spinco shall use reasonable best efforts to cause the Separation to be capable of being completed by the date on which all of the conditions set forth in the Merger Agreement are expected to be satisfied, other than (1) the conditions set forth in Sections 8.4 and 9.4 thereof and (2) those conditions that by their nature are to be satisfied at the Closing.

(b)            Prior to the Equity Sale Closing Time (it being understood that some Transfers may occur following the Equity Sale Closing Time in accordance with Section 1.2 or Section 1.4), in connection with the Separation, Remainco shall, and shall cause the applicable Asset Transferors to, as applicable, transfer, contribute, distribute, assign or convey or cause to be transferred, contributed, distributed, assigned or conveyed (“Transfer”) to (i) the respective Remainco Asset Transferees, all of the applicable Asset Transferor’s right, title and interest in and to the Remainco Retained Assets (to the extent not then already owned by a Remainco Asset Transferee, in which case such Remainco Retained Assets will continue to be owned by such Remainco Asset Transferee) and (ii) the respective Spinco Asset Transferees, all of its and the applicable Asset Transferors’ right, title and interest in and to the Spinco Assets (to the extent not then already owned by a Spinco Asset Transferee, in which case such Spinco Assets will continue to be owned by such Spinco Asset Transferee); and Remainco and Spinco, as applicable, shall cause the Remainco Asset Transferees and the Spinco Asset Transferees, as applicable, to accept from Remainco and the applicable members of the Remainco Group, and Spinco and the applicable members of the Spinco Group, as applicable, all of Remainco’s and the other members of the Remainco Group’s and Spinco’s and the other members of the Spinco Group’s, as applicable, respective direct or indirect rights, title and interest in and to the applicable Assets allocated to each of them.

(c)            Except as otherwise specifically set forth in any of the Transaction Documents, from and after the Equity Sale Closing Time, (i) Remainco shall, or shall cause a member of the Remainco Group to, accept, assume (or to the extent already a Liability of the Remainco Group, retain) and perform, discharge and fulfill, in accordance with their respective terms (“Assume”), all of the Remainco Retained Liabilities and (ii) Spinco shall, or shall cause a member of the Spinco Group to, Assume all of the Spinco Liabilities (or to the extent already a Liability of the Spinco Group, retain), in each case, regardless of (A) when or where such Liabilities arose or arise, (B) whether the facts upon which they are based occurred prior to, at or subsequent to the Equity Sale Closing Time, (C) where or against whom such Liabilities are asserted or determined (provided that nothing contained in this Agreement shall preclude, restrict or otherwise inhibit any member of the Remainco Group or any member of the Spinco Group, as applicable, from asserting any defenses available with respect to the Entity that incurred or holds such Liability against any Person other than against a Remainco Indemnified Party, in the case of a Spinco Liability, or against a Buyer Group Indemnified Party, in the case of a Remainco Retained Liability), (D) whether arising from or alleged to arise from negligence, gross negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the Remainco Group or any member of the Spinco Group, as the case may be, or any of their past or present respective directors, officers, employees, agents, Subsidiaries or Affiliates (it being understood that this provision shall not limit any Party’s rights or remedies in the case of Fraud) and (E) which Entity is named in any Action associated with any Liability.

(d)            It is understood and agreed that certain of the Remainco Retained Assets, Remainco Retained Liabilities, Spinco Assets and Spinco Liabilities, as applicable, may already be retained by members of the Remainco Group or members of the Spinco Group, as applicable, as of the Equity Sale Closing Time and, as a result, in such cases, (i) no additional Transfers or Assumptions, as applicable, by any member of the Remainco Group or any member of the Spinco Group, as applicable, shall be deemed to have occurred with respect thereto pursuant to this Agreement and (ii) such Assets and Liabilities shall be included in the category of Remainco Retained Assets, Remainco Retained Liabilities, Spinco Assets or Spinco Liabilities, as applicable. Each Party agrees that, as of the Equity Sale Closing Time, Spinco and Remainco, as applicable, shall be deemed to have acquired complete and sole beneficial ownership over all of their respective Assets, together with all rights, powers and privileges incident thereto (subject to Section 1.2 and Section 1.5(a)), and shall be deemed to have Assumed (or retained Liability for), as applicable in accordance with the terms of this Agreement, all of the Liabilities and all duties, obligations and responsibilities incident thereto, which such Party is entitled to acquire or required to assume pursuant to the terms of this Agreement.

(e)            As part of the Separation, Remainco will effect the Spinco Contribution prior to the Equity Sale Closing Time.

1.2           Contract Consents; Treatment of Shared Contracts.

(a)            Without limiting the generality of the obligations set forth in Sections 1.1(a) and 1.1(b), prior to the Equity Sale Closing Time, Remainco, Spinco, Merger Partner and Buyer shall use reasonable best efforts to obtain any Consents that may be required from Third Parties under Contracts (including Shared Contracts), including from Governmental Authorities, in connection with effecting the Separation, the Equity Sale, the Spinco Contribution and the Merger (“Required Third Party Consents”). Notwithstanding anything to the contrary contained in this Agreement, the provisions of the Merger Agreement shall control with respect to the Parties’ rights and obligations relating to obtaining Governmental Approvals required to consummate the Contemplated Transactions. Notwithstanding anything to the contrary contained in this Agreement, but subject to the immediately foregoing sentence and except as contemplated by Section 1.10, (A) no member of the Remainco Group, no member of the Spinco Group, no member of the Merger Partner Group and no member of the Buyer Group shall be required to compensate any Third Party, commence or participate in any Action or offer or grant any accommodation (financial or otherwise or to remain secondarily liable or contingently liable for any Spinco Liability, in the case of any member of the Remainco Group, or any Remainco Retained Liability, in the case of any member of the Spinco Group) to any Third Party to obtain any such Required Third Party Consents or otherwise in connection with any actions or obligations under this Section 1.2 or the Transaction Documents (including in respect of Shared Contracts) and (B) no member of the Merger Partner Group and no member of the Spinco Group shall take any of the foregoing actions without the consent of Buyer. If Remainco and Buyer mutually agree to pay a monetary consent fee to a Third Party to obtain a Required Third Party Consent from such Third Party, then Buyer and Remainco shall each pay, or cause to be paid, fifty percent (50%) of such consent fee. If Merger Partner and Buyer mutually agree to pay a monetary consent fee to a Third Party to obtain a Required Third Party Consent from such Third Party, then Buyer shall pay, or cause to be paid (including causing Merger Partner to pay at, and conditioned upon, the Merger), such consent fee. Notwithstanding anything to the contrary contained in any of the Transaction Documents, no representation, warranty, covenant or agreement of any member of the Remainco Group, any member of the Spinco Group, any member of the Merger Partner Group or any member of the Buyer Group contained in any of the Transaction Documents shall be deemed breached and no condition contained in the Merger Agreement shall be deemed not satisfied, based solely on the failure to obtain a Required Third Party Consent; provided that the foregoing shall not be deemed a waiver of any efforts required by the Parties under any of the Transaction Documents to obtain any Required Third Party Consent.

(b)            Each Shared Contract shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, at or after the Equity Sale Closing Time, so that a member of the Remainco Group or a member of the Spinco Group, as of the Equity Sale Closing Time, shall be entitled to the rights and benefits, and shall Assume the related portion of any Liabilities, inuring to the Remainco Retained Business and Spinco Business, as applicable; provided that:

 (i)            in no event shall any member of the Remainco Group or any member of the Spinco Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended without Consent of the counterparty to effect an assignment or other transfer) by its terms (including any terms imposing Consent requirements or conditions on an assignment or amendment where such Consents or conditions have not been obtained or fulfilled, subject to Section 1.4); and

 (ii)           if any Shared Contract cannot be so partially assigned by its terms or otherwise, cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, to the extent not prohibited by applicable Law, (A) at the reasonable request of the member of the Remainco Group or the member of the Spinco Group (or, after the Equity Sale Closing Time, Buyer on behalf of such member of the Spinco Group) to which the benefit of such Shared Contract inures in part, Remainco or Spinco, as applicable, for which such Shared Contract is, as applicable, a Remainco Retained Asset or Spinco Asset shall, and shall cause each of the members of its Group to, for a period ending on the date which is five (5) years following the Closing Date, take such other reasonable and permissible actions to cause such member of the Spinco Group or the Remainco Group, as the case may be, to receive the benefit of that portion of each Shared Contract that relates to the Spinco Business or the Remainco Retained Business, as the case may be (in each case, to the extent so related) as if such Shared Contract had been assigned (or amended to allow such assignment) to a member of the applicable Group pursuant to this Section 1.2 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement) as if such Liabilities had been Assumed by a member of the applicable Group pursuant to this Section 1.2; and (B) the Party to which the benefit of such Shared Contract inures in part shall use reasonable best efforts to enter into a separate Contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 1.2(b) (the foregoing actions described in subsections (A) and (B) of this Section 1.2(b)(ii), “Shared Contracts Alternative Arrangements”).

(c)            Remainco and Spinco shall, and shall cause the other members of its Group to, (i) treat for applicable Tax purposes the portion of each Shared Contract inuring to the Remainco Retained Business and the Spinco Business, respectively, as Assets owned by, or Liabilities of, as applicable, such Party as of the Equity Sale Closing Time and (ii) neither report nor take any position on a Tax Return inconsistent with such treatment (unless, in each case, required by applicable Law at a “more likely than not” level of confidence). Any Party taking such an inconsistent position shall use commercially reasonable efforts to provide prompt notice to the other Party after taking such an inconsistent position on a Tax Return.

1.3           Intercompany Liabilities. Except for the intercompany accounts and Contracts identified in Schedule 1.3 and except for any Transaction Documents, Remainco shall, and shall cause the other members of the Remainco Group to, take such actions, including making such payments as may be necessary, so that prior to the Equity Sale Closing Time, the members of the Spinco Group, on the one hand, and the members of the Remainco Group, on the other hand, shall settle, discharge, offset, pay or repay, and otherwise terminate in full, all intercompany Liabilities, accounts and Contracts, in each case with no further Liability. Except for any services provided pursuant to the Transition Services Agreement and any other applicable Transaction Documents, as of and following the Equity Sale Closing Time, (a) the members of the Remainco Group shall have no further obligation to provide any ancillary or corporate shared services to the members of the Spinco Group and (b) the members of the Spinco Group shall have no further obligation to provide any ancillary or corporate shared services to the members of the Remainco Group.

1.4           Transfers of Assets or Assumptions of Liabilities Not Effected at or Prior to the Equity Sale Closing Time; Transfers or Assumptions Deemed Effective as of the Equity Sale Closing Time.

(a)            To the extent that any Transfer or Assumption contemplated by this Article I shall not have been consummated at or prior to the Equity Sale Closing Time (other than because such Asset is a Non-Transferable Asset or such Liability is a Non-Transferable liability), the Parties shall, subject to the terms and conditions of this Agreement (including the limitations regarding to obligation to make any concessions to obtain any Required Third Party Consents or any Permits and the obligations in Section 1.10) and the other Transaction Documents, use reasonable best efforts to effect such Transfers and Assumptions as promptly as reasonably practicable following the Equity Sale Closing Time. Notwithstanding anything to the contrary contained in this Agreement, this Agreement shall not require, and no Separation Document shall constitute, an agreement to Transfer or Assume any Spinco Asset, any Remainco Retained Asset, any Spinco Liability or any Remainco Retained Liability, as applicable, or any claim or right or benefit arising thereunder or resulting therefrom if an attempted Transfer or Assumption thereof (without the Consent of a Third Party) would violate, constitute a default under or breach of any Contract or violate any applicable Law (each such Spinco Asset, Remainco Retained Asset or claim or right or benefit arising thereunder or resulting therefrom, a “Non-Transferable Asset” and each such Spinco Liability, Remainco Retained Liability or claim or right or benefit arising thereunder or resulting therefrom, a “Non-Transferable Liability”), without first obtaining all such necessary Consents of such Third Parties, and this Agreement and the applicable Separation Document shall not be deemed to constitute a Transfer or Assumption thereof and the applicable provisions of this Section 1.4 shall apply in regard to all such Non-Transferable Assets and all such Non-Transferable Liabilities.

(b)            Notwithstanding anything to the contrary contained in this Agreement or any Separation Document, to the extent permitted by applicable Laws and Contracts, if any applicable approval, consent or waiver to the Transfer or the Assumption of any Non-Transferable Asset or any Non-Transferable Liability that would otherwise be considered a Spinco Asset or a Spinco Liability, as applicable, cannot be obtained prior to the Equity Sale Closing Time, Remainco shall, at Spinco’s cost and expense, cause the applicable member of the Remainco Group to hold such Non-Transferable Asset or such Non-Transferable Liability, as of and from the Equity Sale Closing Time, in trust for Spinco or the designated member of the Spinco Group and the covenants and Liabilities thereunder shall be performed by Spinco or the designated member of the Spinco Group (and Spinco shall cause the other members of the Spinco Group to do so) in the applicable member of the Remainco Group’s name and all benefits and Liabilities existing thereunder shall be for Spinco or the designated member of the Spinco Group. The applicable member of the Remainco Group holding such Non-Transferable Asset or such Non-Transferable Liability in trust for Spinco or the designated member of the Spinco Group shall treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Assets and Liabilities in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by Spinco or the designated member of the Spinco Group to which such Assets are to be Transferred or by which such Liabilities are to be Assumed to place Spinco or such designated member of the Spinco Group, insofar as reasonably possible and to the extent permitted by applicable Law, in the same position as if such Asset had been Transferred or Liabilities Assumed as contemplated by this Agreement. To the extent permitted by applicable Laws and Contracts, from and after the Equity Sale Closing Time, Remainco shall take (or cause the applicable member of the Remainco Group to take), at Spinco’s cost and expense, such commercially reasonable actions in its name or otherwise as Spinco may reasonably request so as to provide the applicable member of the Spinco Group with the benefits of such Non-Transferable Assets and the burdens of such Non-Transferable Liabilities, to effect the collection of money or other consideration that becomes due and payable under such Non-Transferable Assets and such Non-Transferable Liabilities and to enforce for the benefit of the Spinco Group, and at the expense of the Spinco Group, any and all rights against a Third Party arising under such Non-Transferable Asset and such Non-Transferable Liability (“Third-Party Rights”), and Remainco shall (or shall cause the applicable member of the Remainco Group to) promptly pay, or cause to be paid, to Spinco or the designated member of the Spinco Group all money or other consideration received by the applicable member of the Remainco Group with respect to all such Non-Transferable Assets and such Non-Transferable Liabilities net of any withholding or deduction required under applicable Laws with respect to such payment; provided that Remainco shall use commercially reasonable efforts to provide written notice to the applicable payee prior to making any such withholding or deduction and reasonably cooperate with the applicable payee to reduce or eliminate any such withholding or deduction. For applicable Tax purposes, Remainco shall treat any Non-Transferable Asset described in this Section 1.4(b) as owned by the applicable member of the Spinco Group unless otherwise required by applicable Law (at a “more likely than not” level of confidence). Remainco shall use commercially reasonable efforts to provide prompt notice to Spinco after taking a position on a Tax Return inconsistent with such treatment.

(c)            Notwithstanding anything to the contrary contained in this Agreement or any Separation Document, to the extent permitted by applicable Laws and Contracts, in the event that any applicable approval, consent or waiver to the Transfer or the Assumption of any Non-Transferable Asset or any Non-Transferable Liability that would otherwise be considered a Remainco Retained Asset or a Remainco Retained Liability, as applicable, cannot be obtained prior to the Equity Sale Closing Time, Spinco shall, at Remainco’s cost and expense, cause the applicable member of the Spinco Group to hold such Non-Transferable Asset or such Non-Transferable Liability, as of and from the Equity Sale Closing Time, in trust for Remainco or the designated member of the Remainco Group and the covenants and Liabilities thereunder shall be performed by Remainco or the designated member of the Remainco Group (and Remainco shall cause the other members of the Remainco Group to do so) in the applicable member of the Spinco Group’s name and all benefits and Liabilities existing thereunder shall be for Remainco or the designated member of the Remainco Group. The applicable member of the Spinco Group holding such Non-Transferable Asset or such Non-Transferable Liability in trust for Remainco or the designated member of the Remainco Group shall treat, insofar as reasonably possible and to the extent permitted by applicable Law, such Assets and Liabilities in the ordinary course of business in accordance with past practice and take such other actions as may be reasonably requested by the Remainco or the designated member of the Remainco Group to which such Assets are to be Transferred or by which such Liabilities are to be Assumed to place Remainco or such designated member of the Remainco Group, insofar as reasonably possible and to the extent permitted by applicable Law, in the same position as if such Asset and Liability had been Transferred or Assumed as contemplated by this Agreement. To the extent permitted by applicable Laws and Contracts, from and after the Equity Sale Closing Time, Spinco shall take (or cause the applicable member of the Spinco Group to take), at Remainco’s cost and expense, such commercially reasonable actions in its name or otherwise as Remainco may reasonably request so as to provide Remainco or the designated member of the Remainco Group with the benefits of such Non-Transferable Assets and the burdens of such Non-Transferable Liabilities, to effect the collection of money or other consideration that becomes due and payable under such Non-Transferable Assets and such Non-Transferable Liabilities and to enforce for the benefit of Remainco or the designated member of the Remainco Group, and at the expense of Remainco, any and all Third Party Rights, and Spinco shall (or shall cause the applicable member of the Spinco Group to) promptly pay, or cause to be paid, to Remainco or the designated member of the Remainco Group all money or other consideration received by the applicable member of the Spinco Group with respect to all such Non-Transferable Assets and such Non-Transferable Liabilities net of any withholding or deduction required under applicable Laws with respect to such payment; provided that Spinco shall use commercially reasonable efforts to provide advance written notice to the applicable payee prior to making any such withholding or deduction and reasonably cooperate with the applicable payee to reduce or eliminate any such withholding or deduction. For applicable Tax purposes, Spinco shall treat any Non-Transferable Asset described in this Section 1.4(c) as owned by Remainco unless otherwise required by applicable Law (at a “more likely than not” level of confidence). Spinco shall use commercially reasonable efforts to provide prompt written notice to Remainco after taking a position on a Tax Return inconsistent with such treatment.

(d)            If, after the Equity Sale Closing Time and subject to Section 1.4, Spinco or Remainco becomes aware that any of the Spinco Assets have not been Transferred to a member of the Spinco Group or that any of the Remainco Retained Assets have not been retained by or Transferred to a member of the Remainco Group (other than to a member of the Spinco Group), it will promptly notify the other Party and the Parties will cooperate in good faith to as promptly as reasonably practicable Transfer by assignment or by license or as the Parties shall otherwise mutually agree, the relevant Asset to the appropriate member of the applicable Group at the expense of the Party who would have been responsible for the related expenses if such Asset had been Transferred at the Equity Sale Closing Time.

(e)            For the period of five (5) years following the Closing Date, Remainco and Spinco shall reasonably assist the other in obtaining the necessary approvals, consents and waivers to effect the Transfer or Assumption of any Non-Transferable Asset and any Non-Transferable Liability to a member of the Spinco Group, on the one hand, or Remainco or the designated member of its Group, on the other hand; provided that, except as contemplated by Section 1.10, no member of the Remainco Group and no member of the Spinco Group shall be required to compensate any Third Party, commence or participate in any litigation, or offer or grant any accommodation (financial or otherwise) to any Third Party to obtain any such consent, approval or waiver. If and when such necessary approvals, consents and waivers are obtained after the Equity Sale Closing Time to effect the Transfer or Assumption of any Spinco Asset, any Remainco Retained Asset, any Spinco Liability or any Remainco Retained Liability that had constituted a Non-Transferable Asset or a Non-Transferable Liability, as applicable, such Transfer or Assumption shall be reasonably promptly effected in accordance with the terms of this Agreement, for no additional consideration, after which such Spinco Asset, such Remainco Retained Asset, such Spinco Liability or such Remainco Retained Liability, as the case may be, shall no longer be subject to this Section 1.4 as a Non-Transferable Asset or a Non-Transferable Liability, as applicable. Spinco shall bear all out of pocket costs and expenses incurred by the Parties in connection with their efforts to transfer to a member of the Spinco Group any Spinco Assets that are Non-Transferrable Assets and any Spinco Liabilities that are Non-Transferrable Liabilities in accordance with this Section 1.4; provided that Spinco shall not be responsible for any consent, settlement or similar fees or amounts that any member of the Remainco Group pays to any Third Party to obtain a consent for such Transfer or Assumption. Remainco shall bear all out of pocket costs and expenses incurred by the Parties in connection with their efforts to transfer to a member of the Remainco Group any Remainco Retained Assets that are Non-Transferrable Assets and any Remainco Retained Liabilities that are Non-Transferrable Liabilities in accordance with this Section 1.4; provided that Remainco shall not be responsible for any consent, settlement or similar fees or amounts that any member of the Spinco Group pays to any Third Party to obtain a consent for such Transfer or Assumption. If Remainco and Buyer mutually agree to pay a monetary consent fee to a Third Party to obtain a Required Third Party Consent from such Third Party, then Buyer and Remainco shall each pay, or cause to be paid, fifty percent (50%) of such consent fee. If, on or before the last day of the five (5) year period following the Closing Date, Buyer or Remainco provides notice to Remainco or Buyer, as applicable, of any such Asset or Liability that is unable to be Transferred to or Assumed by any member of the Spinco Group or any member of the Remainco Group, as applicable, as of the end of such period (and no member of the Buyer Group or no member of the Remainco Group, as applicable, has materially breached any of its obligations set forth in Section 1.4 with respect to such Asset or Liability), the Parties’ obligations under this Section 1.4(e), solely with respect to such identified Asset or Liability, shall continue (i) with respect to each such Asset or Liability other than a Contract, until that Asset is no longer usable or such Liability is no longer outstanding, and (ii) with respect to each such Asset or Liability that is a Contract, until that Contract expires or terminates in accordance with its terms (as in effect at the Equity Sale Closing Time).

1.5          Bank Accounts.

(a)            Remainco and Spinco shall use reasonable best efforts to take, or cause the other members of their respective Groups to take, prior to the Equity Sale Closing Time (or as soon as possible thereafter), all actions necessary to amend all Contracts governing each bank and brokerage account (including lock boxes) owned by any member of the Spinco Group (collectively, the “Spinco Accounts”), so that such Spinco Accounts, if currently linked (whether by automatic withdrawal, automatic deposit or any other authorization to transfer funds from or to) to any bank or brokerage account (or lock box) owned by Remainco or any other member of the Remainco Group (collectively, the “Remainco Accounts”) are de-linked from such Remainco Accounts.

(b)            Remainco and Spinco shall use reasonable best efforts to, or cause the other members of their respective Groups to, prior to the Equity Sale Closing Time (or as soon as possible thereafter), amend all Contracts governing each Remainco Account related to the Spinco Business set forth on Schedule 1.5(b) such that such Contracts (and the related Asset) shall be Transferred to any member of the Spinco Group.

(c)            Remainco and Spinco shall use reasonable best efforts to, or cause the other members of their respective Groups to, prior to the Equity Sale Closing Time (or as soon as possible thereafter), amend all Contracts governing each Spinco Account related to the Remainco Retained Business set forth on Schedule 1.5(c) such that such Contracts (and the related Asset) shall be Transferred to Remainco or any other member of the Remainco Group.

(d)            Remainco and Spinco shall use reasonable best efforts to, or cause the other members of their respective Groups to, prior to the Equity Sale Closing Time (or as soon as possible thereafter), amend all Contracts governing the Remainco Accounts so that such Remainco Accounts, if currently linked to any Spinco Account, are de-linked from such Spinco Accounts.

(e)            With respect to any outstanding checks issued by Remainco, Spinco or any of the respective members of its Group prior to the Equity Sale Closing Time, such outstanding checks shall be honored from and after the Closing by the Person or Group owning the account on which the check is drawn, without limiting the ultimate allocation of Liability for such amounts under any of the Transaction Documents.

1.6           Permits. Remainco shall cooperate with Spinco and Remainco shall use reasonable best efforts to finalize or effectuate the Transfer of any Permits to a member of the Spinco Group that is designated as a Spinco Asset and that is not already Transferred to a member of the Spinco Group as of the Closing. Spinco shall cooperate with Remainco and shall use reasonable best efforts to finalize or effectuate the Transfer of any Permits to a member of the Remainco Group that is designated as an Remainco Retained Asset and that is not already Transferred to a member of the Remainco Group as of the Closing Date. If any Permit cannot be Transferred, then until such Permit terminates in accordance with its terms, the Parties shall use their reasonable best efforts to develop and implement arrangements to give to a member of the Spinco Group or a member of the Remainco Group, as applicable, the ability to continue to operate the Spinco Business or the Remainco Retained Business, as applicable, as presently conducted under the terms of any such Permit (the arrangements contemplated by this sentence, “Permits Alternative Arrangements”). Except as otherwise set forth in the Merger Agreement (the provisions of which shall control with respect to the Parties’ agreements regarding and the obtainment of Governmental Approvals and Consents required to consummate the Contemplated Transactions), Remainco and Spinco shall cooperate and use their respective reasonable best efforts to seek and obtain, in accordance with applicable Law, any necessary Governmental Approvals and Consents for the Transfer of all Permits contemplated to be Transferred pursuant to this Article I to the extent permitted by applicable Law. No member of the Remainco Group and no member of the Spinco Group shall be required to compensate any Third Party, commence or participate in any litigation, or offer or grant any accommodation (financial or otherwise) to any Third Party to obtain any Consent necessary to Transfer any Permit and no member of the Spinco Group shall take any of the foregoing actions without the consent of Buyer. If Remainco and Buyer mutually agree to pay a consent fee to obtain a Permit, then Remainco and Buyer shall each pay, or cause to be paid, fifty percent (50%) of such consent fee. The Parties acknowledge that this Section 1.6 does not apply to Permits that are Spinco Assets and are already held by a member of the Spinco Group as of the date hereof. Notwithstanding anything to the contrary contained in this Section 1.6, the provisions of the Merger Agreement shall control with respect to the Parties’ rights and obligations relating to obtaining Governmental Approvals required to consummate the Contemplated Transactions.

1.7          Separation Documents. In connection with, and in furtherance of, the Transfers and the Assumptions contemplated by this Agreement, Remainco and Spinco shall execute or cause to be executed, on or after the date hereof by the appropriate members of the Remainco Group and the appropriate members of the Spinco Group, any Separation Documents reasonably necessary to evidence the valid Transfer to the applicable member of such Party’s Group of all right, title and interest in and to its Transferred Assets and the valid and effective Assumption by the applicable Party of Liabilities it has Assumed, for Transfers and Assumptions to be effected pursuant to applicable Laws, in such forms as are reasonably acceptable to Remainco and Buyer (such acceptance not to be unreasonably withheld, conditioned or delayed), including the Transfer of owned real property by deeds as may be appropriate and in form and substance as required by the jurisdiction in which the owned real property is located. The Separation Documents shall not contain (a) any indemnities that conflict with this Agreement or (b) any representations or warranties, except to the extent required to comply with applicable Laws, and, to the extent that any provision of a Separation Document does conflict with any provision of this Agreement, this Agreement shall govern and control; provided that no such Separation Document shall by its express terms (i) provide that a member of the Spinco Group is Assuming from a member of the Remainco Group Liabilities that are not Spinco Liabilities or (ii) provide that a member of the Remainco Group is Assuming from a member of the Spinco Group Liabilities that are not Remainco Retained Liabilities. Remainco shall (A) deliver to Buyer drafts of any Separation Documents and (B) provide Buyer a reasonable opportunity (and no less than five (5) Business Days) to review such drafts. All Separation Documents shall be prepared, executed and delivered in a manner reasonably approved by Remainco and Buyer (such approval not to be unreasonably withheld, conditioned or delayed). Transfers of capital stock shall be effected by means of executed stock powers and notation on the record books of the Entities involved, or by such other means as may be required in any non-U.S. jurisdiction to Transfer title to equity and, only to the extent required by applicable Law, by notation on public registries.

1.8          Transaction Documents. Concurrently with the execution and delivery of this Agreement, the Parties have executed and delivered the Merger Agreement, Employee Matters Agreement, the Real Estate Matters Agreement and the Tax Matters Agreement. At or prior to the Closing, Remainco, Spinco, Buyer and Merger Partner shall execute and deliver the other Transaction Documents (in each case to the extent to which it is a party), to be effective at the Closing (unless otherwise provided in such Transaction Documents).

1.9           Further Assurances.

(a)            In addition to and without limiting the actions specifically provided for elsewhere in this Agreement, including Section 1.4, and subject to the limitations expressly set forth in this Agreement and the Merger Agreement, the Parties shall cooperate with each other in good faith and (i) use, and shall cause the members of its Group to use, reasonable best efforts at and after the Equity Sale Closing Time, to take the actions contemplated by Article I and (ii) take actions required by the other Transaction Documents (subject to the applicable efforts standard) to consummate the Contemplated Transactions.

(b)            Without limiting the foregoing, at and after the Equity Sale Closing Time and subject to the limitations expressly set forth in this Agreement and the Merger Agreement, including Section 1.4, each Party shall cooperate with the other Parties, and without any further consideration, but at the expense of the requesting Party (except as provided in Section 1.4), from and after the Equity Sale Closing Time, to execute and deliver, or use reasonable best efforts to cause to be executed and delivered, all instruments and to take all such other actions as such Party may reasonably be requested to take by any other Party from time to time, consistent with the terms of the Transaction Documents, to effectuate the provisions and purposes of the Transaction Documents and the Transfers of the applicable Assets and the assignment and Assumption of the applicable Liabilities and the Contemplated Transactions.

(c)            Without limiting the foregoing, in the event that after the Equity Sale Closing Time any Party (or member of such Party’s Group) receives or discovers that it possesses any Assets (including the receipt of payments made pursuant to Contracts and proceeds from accounts receivable with respect to such Asset) to which another Party is entitled pursuant to this Agreement, such Party shall notify in writing the other Party and, upon written request, promptly Transfer, or cause to be Transferred, such Asset to such other Party so entitled thereto (or member of such other Party’s Group as designated by such other Party) at such other Party’s expense. Prior to any such Transfer, such Asset shall be held in accordance with the provisions of Section 1.4.

(d)            After the Equity Sale Closing Time, each Party (or any member of its Group) may receive mail, packages, electronic mail and any other written communications properly belonging to another Party (or any member of its Group). Accordingly, at all times after the Equity Sale Closing Time, each Party is authorized to receive and, if reasonably necessary to identify the proper recipient in accordance with this Section 1.9(d), open all mail, packages, electronic mail and any other written communications received by such Party that belongs to such other Party, and to the extent that they do not relate to the business of the receiving Party, the receiving Party shall promptly deliver such mail, packages, electronic mail or any other written communications (or, in case the same also relates to the business of the receiving Party or another Party, copies thereof) to such other Party as provided for in Section 5.5. The provisions of this Section 1.9(d) are not intended to, and shall not be deemed to, constitute an authorization by any Party to permit any other Party to accept service of process on its behalf and no Party is or shall be deemed to be the agent of any other Party for service of process purposes.

1.10         Credit Support Instruments.

(a)            Spinco and Buyer shall each use reasonable best efforts to procure satisfaction of an Existing Spinco Credit Support Instrument Release Condition with respect to each Existing Spinco Credit Support Instrument at the Equity Sale Closing Time and Remainco and Merger Partner shall use reasonable best efforts to cooperate with Spinco and Buyer to facilitate the same. During the Pre-Closing Period, Remainco shall, as reasonably requested by Buyer, provide Buyer with an updated list of Existing Spinco Credit Support Instruments in the same format as the table set forth in Part (A) of Schedule 1.1(c).

(b)            If an Existing Spinco Credit Support Instrument Release Condition with respect to an Existing Spinco Credit Support Instrument has not been satisfied at the Equity Sale Closing Time, then, from and after the Equity Sale Closing Time, Spinco, Merger Partner, Buyer and any other applicable member(s) of the Buyer Group shall:

 (i)            continue to use reasonable best efforts to satisfy an Existing Spinco Credit Support Instrument Release Condition with respect to such Existing Spinco Credit Support Instrument as soon as possible (but in no event later than the Existing Credit Support Instrument Release Deadline) and Remainco shall continue to use reasonable best efforts to cooperate with Spinco and Buyer to facilitate the same;

 (ii)           use reasonable best efforts to cause the applicable member of the Spinco Group or the applicable member of the Buyer Group to continue to (A) perform the Contracts or Liabilities which are guaranteed or supported by such Existing Spinco Credit Support Instrument and (B) not to renew or extend the term of, increase any Liabilities under or transfer to a Third Party any of the Contracts or other Liabilities which are guaranteed or supported by such Existing Spinco Credit Support Instrument, in each case, until the satisfaction of an Existing Spinco Credit Support Instrument Release Condition with respect to such Existing Spinco Credit Support Instrument;

 (iii)          in accordance with and subject to the provisions of Article III, indemnify and hold harmless each Remainco Indemnified Party against any and all Losses in relation to or arising from any claim against such Remainco Indemnified Party to the extent related to or arising under such Existing Spinco Credit Support Instrument; and

 (iv)         if a member of the Remainco Group is obligated to deposit cash or provide collateral in connection with such Existing Spinco Credit Support Instrument, then, not later than the later of (A) three (3) Business Days after Remainco has notified Buyer of such obligation and (B) one (1) day before the date such member of the Remainco Group must deposit, or cause to be deposited, the required cash in a dedicated blocked account, or provide, or cause to be provided, the required collateral, Buyer shall (i) deposit cash in a Spinco Credit Support Account or (ii) provide a Spinco Backstop Credit Support Instrument, in each case, in an aggregate amount equal to the cash or other collateral amount provided by Remainco.

(c)            With respect to the Existing Spinco Credit Support Instruments identified in the table set forth in Part (A) of Schedule 1.1(c) (as Schedule 1.1(c) may be updated from time to time) (other than those Existing Spinco Credit Support Instruments identified in Schedule 1.10(c) which are the subject of the last sentence of this clause (c)) for which Spinco, Merger Partner, Buyer or any other applicable member(s) of the Buyer Group has not satisfied an Existing Spinco Credit Support Instrument Release Condition as of the Existing Credit Support Instrument Release Deadline (the “Outstanding Existing Spinco Credit Support Instruments”) (and only to the extent a member of the Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group has not already deposited cash or provided collateral pursuant to clause (b)(iv) and without duplication of any such amounts), a member of the Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group shall (at its option) either (i) deposit cash in a blocked account in the name of a member of the Remainco Group designated by Remainco (the “Spinco Credit Support Account”) or (ii) provide a Credit Support Instrument in favor of a member of the Remainco Group designated by Remainco reasonably acceptable to Remainco (the “Spinco Backstop Credit Support Instrument”), in each case, in the aggregate amount of such Outstanding Existing Spinco Credit Support Instruments. If a member of the Remainco Group is obligated to deposit cash or provide collateral in connection with an Outstanding Existing Spinco Credit Support Instrument, then the relevant member of the Remainco Group shall have the right to draw on the funds in the Spinco Credit Support Account or draw or make demand on the Spinco Backstop Credit Support Instrument to satisfy such obligation. Promptly following the satisfaction of an Existing Spinco Credit Support Instrument Release Condition for each Outstanding Existing Spinco Credit Support Instrument, Remainco shall cause an amount of the funds in the Spinco Credit Support Account equal to the amount of such Outstanding Existing Spinco Credit Support Instrument (including any accrued interest or other amounts in respect thereof not otherwise owed to the deposit bank or issuer of the relevant credit support instrument) to be released to the relevant member of the Spinco Group, the relevant member of the Merger Partner Group or the relevant member of the Buyer Group or agree that the amount of the Spinco Backstop Credit Support Instrument shall be reduced by such amount, as applicable. With respect to the Existing Spinco Credit Support Instruments identified in Schedule 1.10(c) for which Buyer has not satisfied an Existing Spinco Credit Support Instrument Release Condition as of the Existing Credit Support Instrument Release Deadline, Buyer shall, or shall cause a member of the Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group to, (i) offer to provide the beneficiary of such Existing Spinco Credit Support Instrument a letter of credit in the amount described opposite such Existing Credit Support Instrument on Schedule 1.10(c) that results in an Existing Spinco Credit Support Instrument Release Condition being satisfied and (ii) if an Existing Spinco Credit Support Instrument Condition has not been satisfied within ten (10) Business Days after the offer made pursuant to clause (i), then unless and until an Existing Spinco Credit Support Instrument Release Condition is satisfied, provide Remainco with a letter of credit in the amount described opposite such Existing Credit Support Instrument on Schedule 1.10(c).

(d)            Remainco shall use reasonable best efforts to procure satisfaction of an Existing Remainco Credit Support Instrument Release Condition with respect to each Existing Remainco Credit Support Instrument at the Equity Sale Closing Time and Spinco shall use reasonable best efforts to cooperate with Remainco to facilitate the same. During the Pre-Closing Period, Remainco shall, as reasonably requested by Buyer, provide Buyer with an updated table identifying Existing Remainco Credit Support Instruments in the same format as the table set forth in Part (B) of Schedule 1.1(c).

(e)            If an Existing Remainco Credit Support Instrument Release Condition with respect to an Existing Remainco Credit Support Instrument has not been satisfied at the Equity Sale Closing Time, then, from and after the Equity Sale Closing Time, Remainco shall:

 (i)            continue to use reasonable best efforts to satisfy an Existing Remainco Credit Support Instrument Release Condition with respect to such Existing Remainco Credit Support Instrument as soon as possible (but in no event later than the Existing Credit Support Instrument Release Deadline) and the members of the Spinco Group, the members of the Merger Partner Group and the members of the Buyer Group shall continue to use reasonable best efforts to cooperate with Remainco to facilitate the same;

 (ii)            use reasonable best efforts to cause the applicable member of the Remainco Group to continue to (A) perform the Contracts or Liabilities which are guaranteed or supported by such Existing Remainco Credit Support Instrument and (B) not to renew or extend the term of, increase any other Liabilities under or transfer to a Third Party any of the Contracts or Liabilities which are guaranteed or supported by such Existing Remainco Credit Support Instrument, in each case, until the satisfaction of an Existing Remainco Credit Support Instrument Release Condition with respect to such Existing Remainco Credit Support Instrument;

 (iii)          in accordance with and subject to the provisions of Article III, indemnify and hold harmless each Buyer Group Indemnified Party against any and all Losses in relation to or arising from any claim against such Buyer Group Indemnified Party to the extent related to or arising under such Existing Remainco Credit Support Instrument; and

 (iv)          if a member of the Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group is obligated to deposit cash or provide collateral in connection with such Existing Remainco Credit Support Instrument, then, not later than the later of (A) three (3) Business Days after Remainco notified Buyer of such obligation and (B) one (1) day before the date such member of the Spinco Group, such member of the Merger Partner Group or such member of the Buyer Group must deposit, or cause to be deposited, the required cash in a dedicated blocked account, or provide, or cause to be provided, the required collateral, Remainco shall (i) deposit cash in a Remainco Credit Support Account or (ii) provide a Remainco Backstop Credit Support Instrument, in each case, in an aggregate amount equal to the cash or other collateral amount provided by such member of the Spinco Group, such member of the Merger Partner Group or such member of the Buyer Group, as applicable.

(f)             With respect to the Existing Remainco Credit Support Instruments for which Remainco has not satisfied an Existing Remainco Credit Support Instrument Release Condition as of the Existing Credit Support Instrument Release Deadline (the “Outstanding Existing Remainco Credit Support Instruments”) (and only to the extent a member of the Remainco Group has not already deposited cash or provided collateral pursuant to clause (e)(iv) and without duplication of any such amounts), a member of the Remainco Group shall (at its option) either (i) deposit cash in a blocked account in the name of the appropriate member of the Spinco Group designated by Buyer (the “Remainco Credit Support Account”), or (ii) provide a Credit Support Instrument in favor of a member of the Spinco Group designated by Buyer reasonably acceptable to Buyer (the “Remainco Backstop Credit Support Instrument”), in each case, in the aggregate amount of such Outstanding Existing Remainco Credit Support Instruments. If a member of the Spinco Group, a member of the Merger Partner Group or a member of the Buyer Group is obligated to deposit cash or provide collateral in connection with an Outstanding Existing Remainco Credit Support Instrument, then the relevant member of the Spinco Group, the relevant member of the Merger Partner Group or the relevant member of the Buyer Group shall have the right to draw on the funds in the Remainco Credit Support Account or draw or make demand on the Remainco Backstop Credit Support Instrument to satisfy such obligation. Promptly following the satisfaction of an Existing Remainco Credit Support Instrument Release Condition for each Outstanding Existing Remainco Credit Support Instrument, the applicable member(s) of the Spinco Group, the applicable member(s) of the Merger Partner Group or the applicable member(s) of the Buyer Group shall cause an amount of the funds in the Remainco Credit Support Account equal to the amount of such Outstanding Existing Remainco Credit Support Instrument (including any accrued interest or other amounts in respect thereof not otherwise owed to the deposit bank or issuer of the relevant credit support instrument) to be released to the relevant member of the Remainco Group or agree that the amount of the Remainco Backstop Credit Support Instrument shall be reduced by such amount, as applicable.

1.11         Disclaimer of Representations and Warranties.

(a)            THE PARTIES (EACH ON BEHALF OF ITSELF AND EACH MEMBER OF ITS GROUP) UNDERSTAND AND AGREE THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, NO PARTY TO THIS AGREEMENT OR TO ANY OTHER TRANSACTION DOCUMENT AND NO MEMBER OF THE REMAINCO GROUP, NO MEMBER OF THE SPINCO GROUP, NO MEMBER OF THE MERGER PARTNER GROUP AND NO MEMBER OF THE BUYER GROUP OTHERWISE, IS REPRESENTING OR WARRANTING IN ANY WAY, AND DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, AS TO THE ASSETS, BUSINESSES OR LIABILITIES CONTRIBUTED, TRANSFERRED OR ASSUMED AS CONTEMPLATED by any transaction document, AS TO ANY CONSENTS OR GOVERNMENTAL APPROVALS REQUIRED IN CONNECTION THEREWITH, AS TO THE VALUE OR FREEDOM FROM ANY SECURITY INTERESTS OR ENCUMBRANCES OF, AS TO NON-INFRINGEMENT, VALIDITY OR ENFORCEABILITY OR ANY OTHER MATTER CONCERNING, ANY ASSETS OR BUSINESS OF SUCH PARTY OR ITS GROUP, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE, OF ANY PARTY OR ITS GROUP, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH IN THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, ALL SUCH ASSETS ARE BEING TRANSFERRED ON AN “AS IS, WHERE IS” BASIS AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST OR OTHER ENCUMBRANCE AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT ANY LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.

(b)            Each Party (on behalf of itself and each member of its Group) further understands and agrees that if the disclaimer of express or implied representations and warranties contained in Section 1.11(a) is held unenforceable or is unavailable for any reason under the Laws of any jurisdiction or if, under the Laws of a jurisdiction, both Remainco or any member of the Remainco Group, on the one hand, and Spinco or any member of the Spinco Group, on the other hand, are jointly or severally liable for any Remainco Retained Liability or any Spinco Liability, respectively, then the Parties intend that, notwithstanding any provision to the contrary under the Laws of such jurisdictions, the provisions of the Transaction Documents (including any disclaimer of representations and warranties, allocation of Liabilities among the Parties and their respective Groups, releases and indemnification of Liabilities) shall prevail for any and all purposes among the Parties and their respective Groups. Notwithstanding anything to the contrary contained in this Agreement, nothing in this Section 1.11 releases any Liability for Fraud.

(c)            Remainco waives compliance by itself and each and every other member of the Remainco Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Remainco Retained Assets to Remainco or any member of the Remainco Group.

(d)           Spinco waives compliance by itself and each and every other member of the Spinco Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Spinco Assets to Spinco or any member of the Spinco Group.

(e)           Buyer waives compliance by itself and each and every other member of the Buyer Group with the requirements and provisions of any “bulk-sale” or “bulk transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Spinco Assets to Spinco or any member of the Spinco Group.

1.12           Restrictive Covenants.

(a)           Remainco Group Non-Compete.

(i)           For the period commencing on the Closing Date and ending on the date which is four (4) years following the Closing Date (the “Restricted Period”), without the prior written consent of Buyer, Remainco agrees not to, directly or indirectly, and not to permit any member of the Remainco Group to, engage in, manage or operate, anywhere in the world, or own an Equity Interest in any Person who engages in, manages or operates anywhere in the world, any Spinco Restricted Business; provided that nothing in this Agreement shall preclude any member of the Remainco Group from:

A.         engaging in, operating or managing (or owning any Equity Interests in any Entity that engages in, operates or manages) any Permitted Business;

B.          acquiring and, after such acquisition, owning any Equity Interest for passive investment purposes only (provided that none of the members of the Remainco Group exercise control of or otherwise manages, operates or engages in the Spinco Restricted Business of such Person) in any Person (or its successor) that is engaged in a Spinco Restricted Business if such Spinco Restricted Business generated less than Sixty Million Dollars ($60,000,000) of such Person’s consolidated annual revenues in the last completed fiscal year of such Person;

C.          owning two percent (2%) or less of the outstanding Equity Interest of any Person whose shares are listed on a stock exchange; provided that such Equity Interests are held for passive investment purposes only and none of the members of the Remainco Group exercise Control of (or otherwise manages, operates or engages in the Spinco Restricted Business of) such Person;

D.         acquiring and, after such acquisition, owning a controlling Equity Interest in any Person or Persons, collectively, (or its or their successor, successors, business or businesses) that are (directly or indirectly through controlled Affiliates) engaged in a Spinco Restricted Business, provided that (1) other than the Entities identified in Schedule 1.12(a)(i)D, the revenue generated from the Spinco Restricted Business of such Person or Persons, collectively, was less than One Hundred Forty Million Dollars ($140,000,000) of such Person’s or Persons’ consolidated annual revenues in the aggregate in the last completed fiscal year of such Person or Persons, collectively, and (2) if the revenue generated from the Spinco Restricted Business of such Person or Persons, collectively, was greater than Sixty Million Dollars ($60,000,000) of such Person’s or Persons’ consolidated annual revenues in the aggregate in the last completed fiscal year of such Person or Persons, collectively (the “$60 Million Revenue Threshold”), then Remainco, within one (1) year after exceeding the $60 Million Revenue Threshold shall enter into a definitive agreement to cause the divestiture of (and within six (6) months after the entry into such definitive agreement divests pursuant thereto (subject to extensions for regulatory approvals)), a sufficient portion of the Spinco Restricted Business of such Person or Persons such that the $60 Million Revenue Threshold is not exceeded;

E.          exercising its rights or performing or complying with its obligations under or as contemplated by any of the Transaction Documents; or

F.          entering into or participating in a joint venture or partnership with any Person engaged in a Spinco Restricted Business if such joint venture or partnership does not engage in a Spinco Restricted Business.

(ii)           The Parties acknowledge that the restrictions contained in this Section 1.12(a) are reasonable in scope and duration. The Parties further acknowledge that the restrictions contained in this Section 1.12(a) are necessary to protect Buyer’s significant interest in the Spinco Restricted Business, including its goodwill. It is the desire and intent of the Parties that the provisions of this Section 1.12(a) be enforced to the fullest extent permissible under applicable Law. If any covenant in this Section 1.12(a) is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a Governmental Authority of competent jurisdiction, the Parties agree that: (1) such determination will not affect the validity or enforceability of (A) the offending term or provision in any other situation or in any other jurisdiction or (B) the remaining terms and provisions of this Section 1.12(a) in any situation in any jurisdiction; (2) the offending term or provision will be reformed rather than voided and the Governmental Authority making such determination will have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 1.12(a) enforceable to the fullest extent permitted by applicable Law; and (3) the restrictive covenants set forth in this Section 1.12(a) will be enforceable as so modified.

(b)           Non-Solicit.

(i)           For a period of two (2) years from the Closing Date, Remainco shall not, and shall cause the other members of the Remainco Group not to, without the prior written consent of Buyer, directly or indirectly, solicit for employment any Spinco Employee or any Merger Partner Protected Person; provided that nothing in this Section 1.12(b) shall prohibit any of the members of the Remainco Group from placing public advertisements or engaging in any other form of general solicitations not directed at such Persons (including the use of an independent employment agency or search firm whose efforts are not specifically directed at Spinco Employees) or from soliciting the services of any such Person whose employment with or engagement by Buyer or any of its Affiliates (including the Spinco Group) has been terminated by Buyer or its applicable Affiliate or who has otherwise ceased to be employed or engaged by Buyer or any of its Affiliates for a period of at least three (3) months prior to the first contact by of the members of the Remainco Group with such Person.

(ii)           For a period of two (2) years from the Closing Date, Buyer shall not, and shall cause its Subsidiaries (including the members of the Spinco Group) not to, without the prior written consent of Remainco, directly or indirectly, solicit for employment any Remainco Protected Person who is employed by any of the members of the Remainco Group as of the Closing; provided that nothing in this Section 1.12(b) shall prohibit Buyer or any of its controlled Affiliates from placing public advertisements or engaging in any other form of general solicitations not directed at such Persons (including the use of an independent employment agency or search firm whose efforts are not specifically directed at such Persons) or from soliciting the services of any such Person whose employment with or engagement by any of the members of the Remainco Group has been terminated by any of the members of the Remainco Group or who has otherwise ceased to be employed or engaged by any of the members of the Remainco Group for a period of at least three (3) months prior to the first contact by Buyer or any of its controlled Affiliates.

1.13           Certain Resignations. At or prior to the Closing Date, Spinco shall cause each employee of any member of the Remainco Group who will not be employed by any member of the Spinco Group after the Closing Date to be removed, effective not later than the Closing Date, from all boards of directors or similar governing bodies of any member of the Spinco Group on which they serve, and from all positions as officers of any member of the Spinco Group in which they serve.

1.14           Removal of Tangible Retained Assets. Except as may otherwise be provided in the Transaction Documents or otherwise agreed to by the Parties, Remainco shall use reasonable best efforts to move or cause to be moved tangible Remainco Retained Assets as soon as reasonably practicable after the Equity Sale Closing Time from the facilities of the members of the Spinco Group, at Remainco’s expense and in a manner so as not to unreasonably interfere with the operations of any member of the Spinco Group and not to cause damage to such facilities, and the members of the Spinco Group shall provide reasonable access to such facilities to effectuate the same.

1.15           Stand-Up Plan and Day-One Readiness.

(a)           As soon as practical following the date hereof, Remainco shall in good faith design a plan (the “Stand-Up Plan”) setting out the projects that, if fully implemented and when combined with (i) the services contemplated to be provided under the Transition Services Agreement as of the date hereof, (ii) the services and assets provided under the other Transaction Documents, (iii) the Spinco Assets contemplated to be owned by the members of the Spinco Group following the Closing and (iv) the assets, properties and capabilities of the Merger Partner Group (to the extent that utilization of such assets, properties and capabilities would not materially impair the Merger Partner Group’s ability to operate consistent with past practice), would reasonably be expected to provide to the Spinco Group the functions identified in clauses (i) through (ix) below (the “Specified Functions”) with a level of operational performance and functionality that is substantially consistent with the operational performance and functionality of the Specified Functions utilized by the Spinco Business as of the date hereof, it being the intent of the Parties that the foregoing taken together will permit the Spinco Group to conduct the Spinco Business in substantially the same manner as the Spinco Business is being conducted as of the date hereof, independent of the Remainco Group (collectively the “Stand-Up Scope”). For purposes hereof, the Specified Functions shall be:

(i)           the IT functions of the members of the Spinco Group (the “IT Separation and Stand-Up”);

(ii)          the accounting, tax, finance (including financial planning and analysis), treasury and internal audit functions of the members of the Spinco Group (the “Accounting Separation”);

(iii)         the legal and compliance functions of the members of the Spinco Group (the “Legal Separation”);

(iv)         the marketing and communications functions of the members of the Spinco Group (the “M&C Separation”); and

(v)          the supply chain, procurement and services functions of the members of the Spinco Group (the “SC&S Separation”);

(vi)         the facilities, environmental health and safety, real estate management and building security functions of the members of the Spinco Group (the “Facilities Separation”);

(vii)        the human resources functions of the members of the Spinco Group (the “HR Separation”); and

(viii)       the corporate public affairs including corporate affairs and government relations functions of the members of the Spinco Group (the “CPA Separation”).

(b)           The Stand-Up Plan will also provide for:

(i)           the separation of the Spinco IT Assets, the Spinco Owned Intellectual Property, the Spinco Owned Technology and the Spinco Owned Software of the members of the Spinco Group from the systems of the members of the Remainco Group so that such assets can be used in the operation of the Spinco Business following the Closing Date (“Systems Separation”);

(ii)           (A) the extraction, configuration and movement of Information relating to the Spinco Business and other information, data and databases constituting Spinco Assets from the IT Assets, Intellectual Property, Technology or Software of the members of the Remainco Group or other Assets, Technology and Software agreed upon in writing by Remainco and Buyer in good faith, and (B) the extraction, configuration and movement of Information relating to the Remainco Retained Business and other information constituting Remainco Retained Assets from the IT Assets, Intellectual Property, Technology or Software of the members of the Spinco Group so that such assets can be used in the operation of the Spinco Business following the Closing Date (collectively, the “Data Migration”);

(iii)          the preparation (including training of employees) of the members of the Remainco Group and the members of the Spinco Group for the Systems Separation, the Data Migration and the IT Separation and Stand-Up, Accounting Separation, the Legal Separation, the M&C Separation, the SC&S Separation, the Facilities Separation, the HR Separation and the CPA Separation; and

(iv)         the preparation of the members of the Remainco Group and the members of the Spinco Group to provide and receive the Services under the Transitions Services Agreement (including any employees responsible for providing or receiving the Services).

For the avoidance of doubt, (A) the Stand-Up Plan shall be developed assuming that (1) the Contemplated Transactions (including the Transfer of the Spinco Assets and the Separation) will have occurred, (2) all applicable consents, approvals and authorizations of any member of the Remainco Group or any member of the Spinco Group under any Contracts, Intellectual Property, Laws and Permits will have been received, including relating to the matters set forth in Section 2.5(a) or Section 2.5(b) of the Remainco Disclosure Letter or as contemplated by Section 2.5 of the Merger Agreement, and (3) the Spinco Employees will be employed by a member of the Buyer Group following the Closing, (B) this Section 1.15 shall not be deemed to create any obligations of Remainco with respect to any of the foregoing in clauses (B)(1) through (B)(3) other than to the extent such obligations are expressly set forth in the Transaction Documents (other than this Section 1.15), (C) the Stand-Up Plan shall be developed assuming that (1) all employees of the Merger Partner Group on or about the date hereof will be employed by a member of the Buyer Group following the Closing, (2) all applicable consents, approvals and authorizations of any member of the Merger Partner Group under any Contracts, Intellectual Property, Laws and Permits will have been received, including relating to the matters set forth in Section 3.5(a) or Section 3.5(b) of the Merger Partner Disclosure Letter or as contemplated by Section 3.5 of the Merger Agreement and (3) the Merger Partner will have complied with Section 5.3 of the Merger Agreement, and (D) Remainco shall have no obligations with respect to any of the foregoing in clauses (C)(1) through (C)(3). Buyer acknowledges and agrees that Remainco will develop the Stand-Up Plan on the timelines set forth herein based upon information available during the Development Period and will, from time to time prior to the Closing, modify the Stand-Up Plan as necessary to take into account changes that occur which would materially impact the implementation of the Stand-Up Plan. The Stand-Up Plan will include milestones and Remainco’s good faith estimated timeframes for the completion of the Stand-Up, contain a reasonable level of detail and provide for testing with respect to the System Separation, the Data Migration and the Accounting Separation to validate the functionality thereof.

(c)           Remainco shall use reasonable best efforts to complete the design and development the Stand-Up Plan on or prior to the date that is ninety (90) days after the date hereof (the “Development Period”) and provide to Buyer and Merger Partner prior to the end of the Development Period the Stand-Up Plan. In connection with the foregoing and Remainco’s obligations to design the Stand-Up Plan pursuant to Section 1.15(a), Remainco shall consult in good faith with Buyer and Merger Partner with respect to the development of such Stand-Up Plan during the Development Period (and consider in good faith any suggestions thereto as reasonably requested by Buyer and Merger Partner (which consultation process may be undertaken through the Transition Coordination Group), in each case, subject to applicable Law, including applicable Gaming Law. With respect to any components of or projects contemplated by the Stand-Up Plan (without limiting the obligation to develop a Stand-Up Plan that is consistent with the Stand-Up Scope), Remainco shall, subject to applicable Law (including Gaming Law), consult in good faith with Buyer with respect to any modifications or supplements to the Stand-Up Plan (which consultation process may be undertaken through the Transition Coordination Group), and incorporate any modifications or supplements to such components or projects that are reasonably requested by Buyer into the Stand-Up Plan to the extent such modifications or supplements are customarily undertaken in the separation or stand-up component of transactions similar to the Contemplated Transactions but different from the manner in which the Stand-Up Plan contemplated such components or projects would be implemented (“Requested Modifications”). In no event shall the Requested Modifications include any cybersecurity testing, remediation or similar activities. Notwithstanding anything herein to the contrary, (i) Remainco shall not be required to undertake any Requested Modification that, together with all other Requested Modifications, would result in the Remainco Group incurring aggregate costs, expenses or liabilities in excess of Fifteen Million Dollars ($15,000,000) and (ii) prior to Closing, the Stand-Up Plan shall not allocate any out-of-pocket costs, expenses or liabilities to any member of the Merger Partner Group without the prior written consent of Merger Partner (which may be withheld in its sole discretion).

(d)           The Parties acknowledge and agree that Remainco shall (i) take the lead in designing, supervising and implementing the matters set forth in the Stand-Up Plan in consultation with Merger Partner and Buyer and (ii) pay for the procurement and installation of the assets contemplated by the Stand-Up Plan to be obtained prior to the Closing by the Spinco Business, the implementation of the components of and projects contemplated by the Stand-Up Plan to be implemented prior to the Closing and testing to validate the functionality and operational performance of the aspects of the components of the Stand-Up Plan (the foregoing (i) and (ii), the “Stand-Up”). Remainco shall, subject to applicable Law, including applicable Gaming Law, (i) provide regular updates to Buyer and Merger Partner, as reasonably requested by Buyer and Merger Partner, with respect to the progress in effecting the Stand-Up, including any potential risks or issues to achieving the relevant objectives, and (ii) together with Merger Partner and Buyer, form a group comprised of Representatives of management-level employees of Remainco and Merger Partner and Representatives of Buyer (the “Transition Coordination Group”) that is directed to meet at least weekly to discuss the Stand-Up (including the status thereof), as well as transition and integration planning matters. Remainco and Merger Partner shall, subject to applicable Law, including applicable Gaming Law, upon reasonable advance notice (x) afford Representatives of Buyer designated by Buyer (the “Buyer Observers”) reasonable access during normal business hours to Representatives of Remainco and Merger Partner (including management-level and technical employees) who are assisting with the Stand-Up and transition and integration workstreams (the “Transition Team Members”) as reasonably requested by Buyer and (y) use commercially reasonable efforts to cause the Transition Team Members to, to the extent reasonably requested by the Buyer Observers, consult with the Buyer Observers during normal business hours regarding the ongoing Stand-Up processes and transition and integration workstreams on which such Transition Team Members are working, in each case, subject to the limitations and qualifications set forth in Section 5.1 (Access and Investigation) of the Merger Agreement.

(e)           Merger Partner shall reasonably cooperate and reasonably assist Remainco in connection with the Stand-Up as reasonably requested by Remainco or Buyer, including taking actions to prepare for the Services (as defined in the Transition Services Agreement).

(f)           Merger Partner and Remainco shall use reasonable best efforts to implement the tasks contemplated to be implemented by such Party by the Stand-Up Plan in accordance with the time periods set forth in the Stand-Up Plan in all material respects, and Remainco shall, and shall cause members the Remainco Group and the Spinco Group to, subject to the terms of the Transaction Documents, use reasonable best efforts to complete the Stand-Up prior to the Closing (it being understood and agreed that the members of the Remainco Group and the members of the Spinco Group shall not be required to complete any portion of the Stand-Up Plan that is contingent on any action of a member of the Merger Partner Group that has not been completed as contemplated by the Stand-Up Plan). Remainco shall grant access to Buyer from time to time prior to the Closing in accordance with Section 5.1 (Access and Investigation) of the Merger Agreement and this Section 1.15 to permit Buyer and its Representatives to monitor the completion of the Stand-Up, including the functioning of systems contained in the Systems Separation, and the Data Migration, the preparedness of employees to provide or receive the Services and the preparedness of any third party vendors to provide the Services. Subject to the terms of this Agreement (including the last sentence of Section 1.15(c) and the first sentence of this Section 1.15(f)), if one or more of the components of or projects contemplated by the Stand-Up Plan have not been completed (such projects that have not been completed, the “Required Post-Closing Projects”), Remainco shall continue to be obligated to complete such Required Post-Closing Projects following the Closing, and shall continue to bear the costs as described in Section 1.15(d) and Section 1.15(h) in connection therewith and if any additional transition services not contemplated by the Transition Services Agreement as of the date hereof are required to be provided to the Spinco Group as a result of such failure to complete a Required Post-Closing Project prior to the Closing, Remainco shall bear all out-of-pocket costs of set-up and exit by the Remainco Group and the Spinco Group of such additional Services to the extent such costs are incremental to any costs that would have been incurred absent such failure (but, for the avoidance of doubt, not the services fees payable under the Transition Services Agreement for such Services). For the avoidance of doubt, without limiting Remainco’s obligations to complete the Required Post-Closing Projects following the Closing, no member of the Buyer Group and no member of the Merger Partner Group shall be entitled to make any indemnification claims or seek damages from any member of the Remainco Group as a result of the fact that the Stand-Up is not completed prior to the Closing (and, notwithstanding that such obligations are commenced or completed after the Closing, they should be considered pre-closing covenants of the members of the Remainco Group).

(g)           Without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed), prior to the Equity Sale Closing Time, Remainco, Spinco and Merger Partner shall not, and shall cause the other members of the respective Groups not to, enter into any Shared Contracts Alternative Arrangements or any Permits Alternative Arrangements.

(h)           Remainco shall pay (i) all fees and out of pocket expenses incurred by any member of the Remainco Group (including any member of the Spinco Group) of Representatives of the members of the Remainco Group (including any member of the Spinco Group) engaged to assist with or facilitate the Stand-Up prior to the Closing (as well as fees and expenses following the Closing for such Representatives engaged by members of the Remainco Group to complete any Required Post-Closing Projects), (ii) any one-time license fees and one time set-up fees for software to be obtained pursuant to the Systems Separation plan portion of the Stand-Up Plan to be obtained by any member of the Spinco Group, including the license fees set forth on Schedule 1.15(h), (iii) any recruitment, onboarding or similar one time fees incurred in connection with hiring any personnel necessary during the pre-Closing period to establish the Specified Functions for the Spinco Group on the terms set forth herein (as well as any reasonable recruitment, onboarding or similar one time fees incurred following the Closing in connection with completing any Required Post-Closing Projects), and (iv) any other fees and out of pocket expenses specifically identified as being borne by the Remainco Group in the Stand-Up Plan.

(i)           Notwithstanding anything set forth here, the Stand-Up is not intended to modify the allocation of risk between the members of the Remainco Group, on the one hand, and Buyer on the other hand, contemplated by the Transaction Documents, including, for example, the allocation of Spinco Assets or Remainco Retained Assets (including requiring Remainco to acquire assets that are currently used by the Spinco Business but constitute Remainco Retained Assets, other than the assets that are part of a Specified Function that are contemplated by the Stand-Up Plan to be acquired for the Spinco Business prior to the Closing), the condition of the assets or any damage thereto, whether any Contract consent is obtained or whether any Service is to be performed under the Transition Services Agreement, which matters shall be governed by the other applicable provisions of the Transaction Documents.

1.16           Cash Management. From the date hereof until immediately prior to the Equity Sale Closing Time, subject to Section 2.3, the members of the Remainco Group shall be entitled to use, retain or otherwise dispose of all cash and cash equivalents related to the Spinco Business in accordance with Remainco’s cash management system or otherwise dividend or distribute cash and cash equivalents from the Spinco Group, it being understood that all cash and cash equivalents comprising the Spinco Closing Cash Amount shall be retained by members of the Spinco Group as a Spinco Asset; provided that no member of the Remainco Group shall distribute or otherwise remove for its benefit cash or cash equivalents from any member of the Spinco Group to the extent such distribution or removal would reduce the Spinco Closing Cash Amount below the Spinco Minimum Cash Amount as of the Equity Sale Closing Time.

1.17           Guarantee.

(a)           Following the Equity Sale Closing Time, Buyer unconditionally, absolutely and irrevocably guarantees to Remainco the prompt payment, in full, when due, of any payment obligations of each member of the Spinco Group under the Transaction Documents which pursuant to their terms arise at or after the Closing Time with respect to obligations to be performed after the Closing and the prompt performance, when due, of all other obligations of each member of the Spinco Group under the Transaction Documents which pursuant to their terms arise at or after the Closing with respect to obligations to be performed after the Equity Sale Closing Time. The obligations of the Buyer to Remainco under this Section 1.17 are referred to as the “Buyer Guaranteed Obligations”. The Buyer Guaranteed Obligations are absolute and unconditional, irrespective of, and Buyer expressly waives any defense to its obligations under this Section 1.17, any circumstance whatsoever which might otherwise constitute a legal or equitable defense available to, or discharge of, a surety or a guarantor, including any right to require or claim that Remainco seek recovery directly from any member of the Spinco Group with respect to the Buyer Guaranteed Obligations, except for a defense that is available to, or may be asserted by, a member of the Spinco Group.

(b)           Following the Equity Sale Closing Time, Remainco unconditionally, absolutely and irrevocably guarantees to Buyer the prompt payment, in full, when due, of any payment obligations of each member of the Remainco Group under the Transaction Documents which pursuant to their terms arise at or after the Closing Time with respect to obligations to be performed after the Closing and the prompt performance, when due, of all other obligations of each member of the Remainco Group under the Transaction Documents which pursuant to their terms arise at or after the Closing with respect to obligations to be performed after the Equity Sale Closing Time. The obligations of the Buyer to Remainco under this Section 1.17 are referred to as the “Remainco Guaranteed Obligations”. The Remainco Guaranteed Obligations are absolute and unconditional, irrespective of, and Buyer expressly waives any defense to its obligations under this Section 1.17, any circumstance whatsoever which might otherwise constitute a legal or equitable defense available to, or discharge of, a surety or a guarantor, including any right to require or claim that Remainco seek recovery directly from any member of the Spinco Group with respect to the Remainco Guaranteed Obligations, except for a defense that is available to, or may be asserted by, a member of the Spinco Group.

(c)           Merger Partner, Buyer and Remainco shall cause the members of such Party’s Group to perform all actions, agreements and obligations contemplated to be performed by any member of such Party’s Group in accordance with the Transaction Documents, including prompt payment, in full, when due, of any payment obligations under the Transaction Documents.

1.18           Additional Separation Covenants.

(a)           Spinco and Merger Partner shall use reasonable best efforts to provide all reasonable cooperation requested by Remainco with respect to effecting the Separation, including the Separation Plan. Spinco and Merger Partner shall, and shall cause the other members of their respective Groups to, reasonably cooperate with Remainco’s efforts with respect to the Separation (including any actions to be taken to prepare for the Services (as defined in the Transition Services Agreement). Remainco, Spinco and Merger Partner shall, and shall cause the other members of their respective Groups, to reasonably consult with Buyer with respect to the Separation, including the Separation Plan.

(b)           Spinco, Merger Partner and Buyer acknowledge that they shall not receive any Excluded Services (as defined in the Transition Services Agreement) and shall be responsible for being prepared as of the Equity Sale Closing Time to provide the Excluded Services to the Spinco Business.

(c)           From the date hereof until the Equity Sale Closing Time, the Parties shall cooperate in good faith to do the following:

(i)           Determine whether Spinco or Remainco requires any additional transition services not contemplated by the Transition Services Agreement that would qualify as Omitted Services under Section 1.2 of the Transition Services Agreement; provided that, for purposes of this Section 1.18(c) the “Lookback Period” referred to in the Transition Services Agreement shall be defined as the twelve (12) month period immediately preceding the date hereof through the Equity Sale Closing Time. If, prior to the Equity Sale Closing Time, the Parties determine there are any such services, then the Parties shall take the actions that would be required to be taken under Section 1.2 of the Transition Services Agreement if it were then in effect to add such service as a “Service” from Remainco to Spinco or from Spinco to Remainco, as applicable, under the Transition Service Agreement.

(ii)           To the extent required by applicable Law, including Privacy Laws (as defined in the Transition Services Agreement), negotiate in good faith to enter into a business associate agreement or a data protection agreement between or among Remainco, Merger Partner and Buyer (as appropriate), in form and substance reasonably satisfactory to such Parties, in respect of the Services provided under the Transition Services Agreement.

(d)           Promptly following the date hereof, Remainco, Merger Partner and Buyer shall cooperate in good faith (i) to develop a plan to seek to obtain any Required Third Party Consents, (ii) oversee the implementation and execution of such plan and (iii) develop a plan to mitigate the effects of not obtaining any Required Third Party Consent. Such plans shall be subject in all respects to the applicable provisions of the Transaction Documents, including Sections 1.2 and 1.4 of this Agreement (unless otherwise agreed upon in writing by Remainco, Merger Partner and Buyer). Notwithstanding anything to the contrary contained in this Agreement, the provisions of the Merger Agreement shall control with respect to the Parties’ rights and obligations relating to obtaining Governmental Approvals required to consummate the Contemplated Transactions.

(e)           The Parties agree that, at the request of the Buyer within 60 days after the date hereof, the Parties will discuss in good faith and use commercially reasonable efforts to amend the Separation Plan and the Transaction Documents to permit Buyer to directly acquire from International Game Technology the Equity Interests of IGT Canada Solutions ULC at the Closing; provided, that no Party shall be required to amend the Separation Plan or the Transaction Documents or take any other any actions pursuant to this Section 1.18(e) that (i) are not conditioned on the closing of the Equity Sale or (ii) that such Party determines in good faith would adversely affect such Party or any member of its Group.

(f)            The Parties agree that, following the date hereof, Remainco and Buyer will discuss in good faith an agreement with respect to certain payment services to be entered into by and between US Gaming Opco and US Lottery Opco (the “Pay Services Agreement”) and use commercially reasonable efforts to cause the Pay Services Agreement to entered into effective as of the Closing on terms to be mutually agreed between Remainco and Buyer.

1.19           Obligations for Certain Equity Awards. On the Closing Date immediately following the Closing, Remainco shall wire, or cause to be wired, in immediately available funds to the account designated in writing by Buyer, an amount equal to one hundred percent (100%) of the aggregate amount necessary to pay the Pre-2024 Buyer Cash Awards (for the avoidance of doubt, including the aggregate amount to be paid in respect of such Pre-2024 Buyer Cash Awards following the Closing but not with respect to any equity awards which become vested and will settle in connection with the Closing) payable to Spinco Employees who become Spinco Transferred Employees at the Closing Time (such amount paid, the “Upfront Cash Award Payment”). Nothing set forth in this Section 1.19 is intended to limit the rights and obligations of the Parties with respect to the treatment of the Pre-2024 Buyer Cash Awards, including with respect to the dispute mechanism set forth in Section 3.2(b) of the Employee Matters Agreement.

1.20           Certain Matters. Remainco and Buyer agree as set forth on Schedule 1.20.

Article II

PURCHASE AND SALE

2.1           Purchase and Sale. On the terms and subject to the conditions set forth in this Agreement and the Merger Agreement, at the Closing and immediately prior to the consummation of the Merger, Buyer shall purchase and acquire from Remainco, and Remainco shall sell, transfer, convey and deliver to Buyer, all of the Spinco Units, free and clear of all Encumbrances (other than Encumbrances (i) arising under the Securities Act and applicable state securities laws or (ii) created or incurred by, or at the written direction of, Buyer) (the “Equity Sale”).

2.2           Cash Payment. At the Closing, Buyer shall deliver or cause to be delivered to Remainco an aggregate amount in cash equal to the Estimated Purchase Price, by wire transfer of immediately available funds to the account or accounts designated in writing by Remainco at least three (3) Business Days prior to the Closing Date.

2.3           Adjustment for Spinco.

(a)           Spinco Estimated Closing Statement. No later than ten (10) Business Days prior to the anticipated Closing Date, Remainco shall deliver to Buyer a statement (the “Spinco Estimated Closing Statement”), in the same format as the Spinco Reference Closing Statement, setting forth Remainco’s good faith estimate of the Purchase Price (the “Estimated Purchase Price”) and the Spinco Adjustment Amount (the “Spinco Estimated Adjustment Amount”) based on good faith estimates of (i) the Spinco Closing Net Working Capital (such estimate, the “Spinco Estimated Closing Net Working Capital”); (ii) the Spinco Closing Cash Amount (such estimate, the “Spinco Estimated Closing Cash Amount”); and (iii) the Spinco Closing Indebtedness Amount (such estimate, the “Spinco Estimated Closing Indebtedness Amount”). Remainco shall prepare the Spinco Estimated Closing Statement and the components thereof in accordance with the Spinco Transaction Accounting Principles. The Spinco Estimated Closing Statement, the Spinco Adjustment Amount, the Spinco Initial Post-Closing Statement, the Spinco Estimated Closing Net Working Capital, the Spinco Estimated Closing Cash Amount, the Spinco Estimated Closing Indebtedness Amount, the Spinco Estimated Adjustment Amount, the Spinco Final Adjustment Amount, the Spinco Final Closing Net Working Capital, the Spinco Final Closing Cash Amount, the Spinco Final Closing Indebtedness Amount and the components, determinations and calculations thereof shall be prepared in good faith in accordance with the Spinco Transaction Accounting Principles and in the same format of the Spinco Reference Closing Statement. Remainco shall give Buyer and its Representatives reasonable access to the books and records, accounting and finance personnel and auditors of Remainco to facilitate Buyer’s review of the Spinco Estimated Closing Statement and the components thereof and shall consider any comments to the Spinco Estimated Closing Statement and the components thereof made by Buyer. To the extent that Remainco and Buyer agree to any changes to the Spinco Estimated Closing Statement and the components thereof, Remainco shall revise the Spinco Estimated Closing Statement and the components thereof to reflect such changes. None of (A) the delivery or review of the Spinco Estimated Closing Statement and the components thereof or (B) any changes thereto prior to the Closing shall be deemed to limit any rights of Buyer to object to the Spinco Initial Post-Closing Statement or otherwise limit any of the rights of Buyer under any of the Transaction Documents.

(b)           Delivery of Spinco Initial Post-Closing Statement. No later than sixty (60) days after the Closing Date, Remainco shall deliver to Buyer a statement (the “Spinco Initial Post-Closing Statement”) in the same format as the Spinco Reference Closing Statement, setting forth Remainco’s calculation of the Spinco Closing Net Working Capital, the Spinco Closing Cash Amount and the Spinco Closing Indebtedness Amount and, based thereon, the Spinco Adjustment Amount and the Purchase Price. Remainco shall prepare the Spinco Initial Post-Closing Statement in good faith and in accordance with the Spinco Transaction Accounting Principles. If Remainco does not deliver to Buyer the Spinco Initial Post-Closing Statement within sixty (60) days after the Closing Date, then Buyer may elect in writing (i) to prepare and present the Spinco Initial Post-Closing Statement to Remainco within an additional sixty (60) days or (ii) for the Spinco Estimated Closing Statement to become final and binding on Remainco and Buyer as the Spinco Final Post-Closing Statement. If Buyer elects to prepare the Spinco Initial Post-Closing Statement, then all subsequent references in this Section 2.3 to Remainco and Buyer, respectively, shall be read as references to Buyer and Remainco, respectively. To facilitate such preparation, Remainco shall, and shall cause the other members of the Remainco Group, to provide Buyer and its Representatives with full access to the employees of the members of the Remainco Group (including the Chief Financial Officer and the Chief Accounting Officer (or equivalent) of Remainco) and to all documentation, books, records and other information of the members of the Remainco Group as Buyer or any of its Representatives may reasonably request (including work papers relating to the Spinco Initial Post-Closing Statement); provided that such access does not unreasonably interfere with the conduct of the business of the Remainco Group. Each Party acknowledges that the sole purpose of the process set forth in this Section 2.3 is to determine the Final Purchase Price, the Spinco Final Adjustment Amount, the Spinco Final Closing Net Working Capital, the Spinco Final Closing Cash Amount and the Spinco Final Closing Indebtedness Amount and such process is not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies in a manner inconsistent with the Spinco Transaction Accounting Principles.

(c)           Review of Spinco Initial Post-Closing Statement. Buyer shall have sixty (60) days after the date on which it receives the Spinco Initial Post-Closing Statement to review the Spinco Initial Post-Closing Statement and the calculations set forth therein (the “Spinco Adjustment Review Period”). To facilitate such review, Remainco shall, and shall cause the other members of the Remainco Group, to provide Buyer and its Representatives with full access to the employees of the members of the Remainco Group (including the Chief Financial Officer and the Chief Accounting Officer (or equivalent) of Remainco) and to all documentation, books, records and other information of the members of the Remainco Group as Buyer or any of its Representatives may reasonably request (including work papers relating to the Spinco Initial Post-Closing Statement); provided that such access does not unreasonably interfere with the conduct of the business of the Remainco Group. If Buyer does not deliver a Spinco Adjustment Dispute Notice to Remainco with respect to any item in the Spinco Initial Post-Closing Statement on or prior to the last day of the Spinco Adjustment Review Period, then the amounts and calculations with respect to such items as set forth in the Spinco Initial Post-Closing Statement shall be deemed accepted by Buyer, whereupon the amounts and calculations of such items shall be final and binding on Remainco and Buyer.

(d)           Dispute Notice. If Buyer disagrees with the Spinco Initial Post-Closing Statement (including any amount or calculation set forth therein) in any respect and on any basis, Buyer may, on or prior to the last day of the Spinco Adjustment Review Period, deliver a notice to Remainco setting forth, in reasonable detail, each disputed item or amount and the basis for Buyer’s disagreement therewith (the “Spinco Adjustment Dispute Notice”). The Spinco Adjustment Dispute Notice shall set forth, with respect to each disputed item, Buyer’s position as to the correct amount or calculation that should have been included in the Spinco Initial Post-Closing Statement. The time period within which Buyer must deliver any Spinco Adjustment Dispute Notice shall be extended in the case of any undue delay by Remainco in providing Buyer access to its books and records, the personnel of, and work papers prepared by, Remainco and its Affiliates to the extent they relate to the preparation of the Spinco Initial Post-Closing Statement and such historical financial information, for each day that Remainco delays in providing Spinco such access.

(e)           Consultation. For the period of thirty (30) days beginning on the date on which Remainco receives a Spinco Adjustment Dispute Notice (the “Spinco Adjustment Consultation Period”), if applicable, Remainco and Buyer shall endeavor in good faith to resolve by mutual agreement all matters identified in the Spinco Adjustment Dispute Notice.

(f)           Independent Accounting Firm. In the event Remainco and Buyer are unable to resolve by mutual agreement any matter identified in the Spinco Adjustment Dispute Notice on or before the date on which the Spinco Adjustment Consultation Period ends, Remainco or Buyer may engage an independent, nationally-recognized certified public accounting firm in the United States mutually acceptable to Remainco and Buyer (the “Independent Accounting Firm”) to make a determination with respect to all of such matters in dispute in its capacity as an expert and not as an arbitrator. If Remainco and Buyer are unable to agree upon an Independent Accounting Firm within ten (10) Business Days after the end of Spinco Adjustment Consultation Period, then within an additional ten (10) Business Days, Remainco and Buyer shall each select one such firm and those two firms shall select a third such firm, in which event the “Independent Accounting Firm” shall be such third firm. The fees and expenses of the Independent Accounting Firm shall be borne by Remainco, on the one hand, and Buyer, on the other hand, proportionately based on the determination by the Independent Accounting Firm of the matters submitted to it pursuant to Section 2.3(g). The calculation of such proportionate payments shall be based on the relative position of the determination of the Independent Accounting Firm in comparison to the positions submitted to it pursuant to this Section 2.3(f). All other fees and expenses incurred by Remainco or Buyer in connection with the preparation or review of the Spinco Initial Post-Closing Statement or the Spinco Adjustment Dispute Notice shall be borne by the Party incurring such fees and expenses.

(g)           Dispute Resolution Procedure. Remainco and Buyer shall direct the Independent Accounting Firm to render a determination within sixty (60) days after its retention, and shall, and shall cause their respective Representatives to, cooperate with the Independent Accounting Firm during its engagement in connection with this Agreement. Each Party shall promptly (and in any event within ten (10) Business Days) after the Independent Accounting Firm’s engagement, submit to the Independent Accounting Firm its calculations of the disputed items or amounts identified in the Spinco Adjustment Dispute Notice and information, arguments and support for their respective positions, and shall concurrently deliver a copy of such materials to the other Party. Each Party shall then be given an opportunity to supplement the information, arguments and support included in its initial submission with one additional submission to respond to any arguments or positions taken by the other Party in such other Party’s initial submission, which supplemental information shall be submitted to the Independent Accounting Firm (with a copy thereof to the other Party) within five (5) Business Days after the first date on which Remainco and Buyer have submitted their respective initial submissions to the Independent Accounting Firm. The Independent Accounting Firm shall thereafter be permitted to request additional or clarifying information from the Parties, and the Parties shall cooperate and shall cause their Representatives to cooperate with such requests of the Independent Accounting Firm. The Independent Accounting Firm shall determine, based solely on the materials so presented by the Parties and upon information received in response to such requests for additional or clarifying information and not by independent review, only those issues in dispute specifically set forth in the Spinco Adjustment Dispute Notice and shall render a written report to Remainco and Buyer (the “Spinco Adjustment Report”) in which the Independent Accounting Firm shall, after considering all matters set forth in the Spinco Adjustment Dispute Notice, make a final determination, binding on the Parties, of the appropriate amount of each of the line items in the Spinco Initial Post-Closing Statement as to which Remainco and Buyer disagree as identified in the Spinco Adjustment Dispute Notice. During the review by the Independent Accounting Firm, Remainco, Buyer and their respective accountants shall each make available to the Independent Accounting Firm interviews with such individuals, and such information, books and records and work papers, as may be reasonably required by the Independent Accounting Firm to fulfill its obligations under this Section 2.3 and preparing and rendering the Spinco Adjustment Report; provided that the accountants of Remainco and Buyer shall not be obligated to make any work papers available to the Independent Accounting Firm except in accordance with such accountants’ normal disclosure procedures and then only after the Independent Accounting Firm has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants.

(h)           Spinco Adjustment Report. The Spinco Adjustment Report shall set forth, in reasonable detail, the Independent Accounting Firm’s determination with respect to each of the disputed items or amounts specified in the Spinco Adjustment Dispute Notice, and the revisions, if any, to be made to the Spinco Initial Post-Closing Statement, together with supporting calculations. In resolving any disputed item, the Independent Accounting Firm (i) shall be bound by the principles underlying this Section 2.3 and the terms of this Agreement, (ii) shall limit its review to matters specifically set forth in the Spinco Adjustment Dispute Notice and shall resolve such matters in its capacity as an expert and not as an arbitrator, (iii) shall not make any determination as to whether the Spinco Transaction Accounting Principles were followed (unless a dispute as to such matter was expressly included in the Spinco Adjustment Dispute Notice) and (iv) shall not assign a value to any item higher than the highest value for such item claimed by Remainco or Buyer or less than the lowest value for such item claimed by Remainco or Buyer as set forth in the Spinco Adjustment Dispute Notice or the Spinco Initial Post-Closing Statement. The Spinco Adjustment Report, absent fraud, shall be final and binding upon Remainco and Buyer. The Independent Accounting Firm shall not have the authority to resolve issues relating to (A) breaches of representations, warranties, covenants or agreements, or (B) other claims that are not within the scope of the disputed matters specifically set forth in the Spinco Adjustment Dispute Notice.

(i)           Final Amounts. The Spinco Closing Net Working Capital, the Spinco Closing Cash Amount, the Spinco Closing Indebtedness Amount and the Spinco Adjustment Amount and, based thereon, the Purchase Price, that are final and binding on the Parties, as determined through agreement of the Parties or through the action of the Independent Accounting Firm pursuant to this Section 2.3 are referred to in this Agreement, respectively, as the “Spinco Final Closing Net Working Capital,” the “Spinco Final Closing Cash Amount,” the “Spinco Final Closing Indebtedness Amount” , the “Spinco Final Adjustment Amount” and the “Final Purchase Price”.

(j)           Final Purchase Price.

(i)            If the Final Purchase Price is (x) greater than the Estimated Purchase Price, the amount of such excess is referred to as the “Spinco Excess Amount,” or (y) less than the Estimated Purchase Price, the amount of such shortfall is referred to as the “Spinco Shortfall Amount.”

(ii)           No later than five (5) Business Days after the determination of the Final Purchase Price, a payment by wire transfer in respect thereof shall be made as follows:

A.           if the calculation in Section 2.3(j)(i) results in a Spinco Excess Amount, then the Spinco Excess Amount shall be paid by Buyer to a bank account designated in writing by Remainco; and

B.           if the calculation in Section 2.3(j)(i) results in a Spinco Shortfall Amount, then the Spinco Shortfall Amount shall be paid by Remainco to a bank account designated in writing by Buyer.

Any payment pursuant to this Section 2.3 (i) shall be made in accordance with this Agreement and (ii) shall be made in immediately available funds in United States dollars by wire transfer to a bank account designated in writing by the Party entitled to receive the payment.

2.4           Payments and Computations. Each Party shall make each payment due under this Agreement to the other Party as early as practicable on the day when due. All payments shall be paid by wire transfer in immediately available funds to the account or accounts designated in advance by the Party receiving such payment and shall be free and clear of any deduction or withholding for Taxes except as required by Law; provided that the Party making such payment shall provide notice to the other Party prior to making any such deduction or withholding and use reasonable best efforts to reduce or eliminate the amount of Taxes required to be deducted or withheld. Whenever any payment under this Agreement shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of, and payment of, interest.

2.5           FIRPTA. On or prior to the Closing Date, Remainco shall cause Gaming Holdco to provide to Buyer (a) a certificate of Gaming Holdco in accordance with Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3) certifying that Gaming Holdco is not, and has not been during the applicable period ending on the Closing Date, a “United States real property holding corporation” for purposes of Sections 897 and 1445 of the Code and (b) notification to the IRS described in Treasury Regulations Section 1.897-2(h)(2) regarding delivery of the certificate referred to in the preceding clause (a).

Article III

RELEASE AND INDEMNIFICATION

3.1           Release of Pre-Closing Claims.

(a)           Except as provided in Section 3.1(b), Section 3.1(c) or Section 3.1(d):

(i)           Remainco, for itself and each other member of the Remainco Group (other than any member of the Spinco Group), as of the Equity Sale Closing Time and, to the extent permitted by Law, all Persons who at any time prior to the Equity Sale Closing Time were directors, officers, agents or employees of any member of the Remainco Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns (collectively, the “Remainco Releasing Parties”), does release and forever discharge each member of the Spinco Group and all Persons who at any time prior to the Equity Sale Closing Time were equityholders, partners, directors, officers, agents or employees of any member of the Spinco Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns (collectively, the “Spinco Released Parties”), from any and all Liabilities, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, in each case, to the extent existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed at or before the Equity Sale Closing Time, including in connection with the Separation, the Equity Sale and any of the Contemplated Transactions (such Liabilities, the “Remainco Released Liabilities”), and in any event shall not, and shall cause the other members of its Group not to, bring any Action against any Spinco Released Party with respect to any Remainco Released Liabilities; provided that nothing in this Section 3.1(a)(i) shall relieve any Person released in this Section 3.1(a)(i) who, after the Equity Sale Closing Time, is a director, officer or employee of any member of the Spinco Group and is no longer a director, officer or employee of any member of the Remainco Group from Liabilities to the Spinco Group or the Buyer Group arising out of, relating to or resulting from his or her service as a director, officer or employee of any member of the Spinco Group after the Equity Sale Closing Time. Notwithstanding the foregoing, (A) nothing in this Agreement shall be deemed to limit Remainco or any member of the Remainco Group from commencing any Actions against (1) any member of the Spinco Group or any Spinco Group officer, director, agent or employee, or his or her respective heirs, executors, administrators, successors and assigns with regard to matters arising from, or relating to, theft of Remainco’s Intellectual Property or know-how or (2) any Spinco Group officer, director, agent or employee, or his or her respective heirs, executors, administrators, successors and assigns with regard to matters arising from, or relating to fraudulent or intentional criminal acts by any such officers, directors, agents or employees and (B) nothing in this Agreement shall be deemed to release any current or former employee of the Spinco Group from any Liability to the extent that such Liability relates to, arises out of or results from intentional misconduct by such individual.

(ii)           Buyer (solely in its capacity as an equityholder of the members of the Spinco Group) and Spinco, for itself and each other member of its Group as of the Equity Sale Closing Time and, to the extent permitted by Law, all Persons who at any time prior to the Equity Sale Closing Time were directors, officers, agents or employees of any member of the Spinco Group or Buyer (solely in its capacity as an equityholder of members of the Spinco Group) (in each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns (collectively, the “Buyer Releasing Parties”), does release and forever discharge each member of the Remainco Group and all Persons who at any time prior to the Equity Sale Closing Time were equityholders, partners, directors, officers, agents or employees of any member of the Remainco Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns (collectively, the “Remainco Released Parties”), from any and all Liabilities, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, in each case, to the extent existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed at or before the Equity Sale Closing Time, including in connection with the Separation, the Equity Sale and the Contemplated Transactions (such Liabilities, the “Spinco Released Liabilities”), and in any event shall not, and shall cause the other members of its Group not to, bring any Action against any Remainco Released Party with respect to any Spinco Released Liabilities. Notwithstanding the foregoing, (A) nothing in this Agreement shall be deemed to limit any member of the Spinco Group from commencing any Actions against any Remainco Group officer, director, agent or employee, or any of their respective heirs, executors, administrators, successors and assigns with regard to matters arising from, or relating to, (1) theft of Spinco’s Intellectual Property or know-how or (2) fraudulent or intentional criminal acts by any such officers, directors, agents or employees and (B) nothing in this Agreement shall be deemed to release any current or former employee of the Remainco Group from any Liability to the extent that such Liability relates to, arises out of or results from intentional misconduct by such individual.

(b)           Nothing contained in this Agreement, including Section 1.3, Section 1.4 or Section 3.1(a), shall impair or otherwise affect any right of any Party and, as applicable, a member of such Party’s Group, as well as their respective successors and assigns, pursuant to or contemplated by, or ability to enforce, any of the Transaction Documents or to recover for any breach or violation of any of the terms of any of the Transaction Documents that are to be performed after, or survive, the Equity Sale Closing Time.

(c)           Nothing contained in Section 3.1(a)(i) shall be deemed to be a release by a Remainco Releasing Party of any Person (including any Spinco Released Party) from any of the following and none of the following shall constitute Remainco Released Liabilities:

(i)           any Liability Assumed or Transferred by or allocated to a member of the Spinco Group or a member of the Buyer Group pursuant to or as contemplated by, or any other Liability of any member of the Spinco Group or any member of the Buyer Group under, any of the Transaction Documents, including any Spinco Liability;

(ii)          any Liability provided for in, or resulting from, any Contract (A) that is entered into after the Equity Sale Closing Time between any Remainco Releasing Party, on the one hand, and any Spinco Released Party, on the other hand; or (B) between any Remainco Releasing Party, on the one hand, and any Spinco Released Party, on the other hand, that, as contemplated by Section 1.3, is not terminated as of the Equity Sale Closing Time in accordance with any of the Transaction Documents or is expressly contemplated by any of the Transaction Documents to survive the Equity Sale Closing Time;

(iii)         (A) any Liability that a member of the Buyer Group (or any Spinco Released Party) may have with respect to indemnification pursuant to this Agreement or (B) any obligations with respect to indemnification or allocation of Liability under any of the Transaction Documents, which Liability shall be governed by the provisions of this Agreement and, in particular, this Article III and, if applicable, the appropriate provisions of the other Transaction Documents;

(iv)         any Liability the release of which would result in a release of any Person other than the Spinco Released Parties released in Section 3.1(a)(i); provided that Remainco agrees not to bring any Action or permit any other member of the Remainco Group to bring any Action against a Spinco Released Party released in Section 3.1(a)(i) with respect to such Liability; and

(v)          the obligation of the members of the Buyer Group to consummate the Contemplated Transactions and to perform their respective obligations under any of the Transaction Documents.

(d)           Nothing contained in Section 3.1(a)(ii) shall be deemed to be a release by a Buyer Releasing Party of any Person (including any Remainco Released Party) from any of the following and none of the following shall constitute Spinco Released Liabilities:

(i)           any Liability Assumed or Transferred by or allocated to a member of the Remainco Group pursuant to or as contemplated by, or any other Liability of any member of the Remainco Group under, any of the Transaction Documents, including any Remainco Retained Liability;

(ii)           any Liability provided for in, or resulting from, any Contract (A) that is entered into after the Equity Sale Closing Time between any Buyer Releasing Party, on the one hand, and any Remainco Released Party, on the other hand or (B) between any Buyer Releasing Party, on the one hand, and any Remainco Released Party, on the other hand that, as contemplated by Section 1.3, is not terminated as of the Equity Sale Closing Time in accordance with any of the Transaction Documents or is expressly contemplated by any of the Transaction Documents to survive the Equity Sale Closing Time;

(iii)          (A) any Liability that the Remainco Group (or any Remainco Released Party) may have with respect to indemnification pursuant to this Agreement or (B) any obligations with respect to indemnification or allocation of Liability under any of the Transaction Documents, which Liability shall be governed by the provisions of this Agreement and, in particular, this Article III and, if applicable, the appropriate provisions of the other Transaction Documents;

(iv)         any Liability the release of which would result in a release of any Person other than the Remainco Released Parties released in Section 3.1(a)(ii); provided that Spinco and Buyer agree not to bring any Action or permit any other member of the Buyer Group to bring any Action against a Spinco Released Party released in Section 3.1(a)(ii) with respect to such Liability; and

(v)          the obligation of the members of the Remainco Group to consummate the Contemplated Transactions and to perform their respective obligations under any of the Transaction Documents.

(e)           From and after the Equity Sale Closing Time, (i) Remainco shall not, and shall not permit any member of the Remainco Group to, make any claim for offset, or commence any Action, including any claim of indemnification, against any Spinco Released Party released pursuant to Section 3.1(a)(i), with respect to any Liabilities released pursuant to Section 3.1(a)(i) and (ii) Buyer shall not, and shall not permit any member of the Buyer Group to, make any claim for offset, or commence any Action, including any claim of indemnification, against any Remainco Released Party released pursuant to Section 3.1(a)(ii), with respect to any Liabilities released pursuant to Section 3.1(a)(ii). This Section 3.1(e) shall not restrict the ability of any Remainco Releasing Party or any Buyer Releasing Party, as the case may be, from bringing any claims in respect of Liabilities that were not released under Section 3.1(a)(i) or Section 3.1(a)(ii), as the case may be (including any claims in respect of any Liabilities that Section 3.1(c) or Section 3.1(d), as the case may be, specified as not being Remainco Released Liabilities or Spinco Released Liabilities, as the case may be).

(f)            From and after the Equity Sale Closing Time, (i) if any Remainco Releasing Party initiates any Action with respect to claims released by Section 3.1(a)(i) against any Spinco Released Party, Remainco shall be responsible for the fees and expenses of counsel to the members of the Buyer Group and the members of the Spinco Group in defending against such Action, and the Buyer Group and the Spinco Group shall be indemnified by the Remainco Group for all Liabilities incurred in connection with such Action in accordance with the provisions set forth in this Article III and (ii) if any Buyer Releasing Party initiates any Action with respect to claims released by Section 3.1(a)(ii) against any Remainco Released Party, the members of the Buyer Group shall be responsible for the fees and expenses of counsel to the members of the Remainco Group in defending against such Action, and the Remainco Group shall be indemnified by the members of the Spinco Group and the members of the Buyer Group for all Liabilities incurred in connection with such Action in accordance with the provisions set forth in this Article III. This Section 3.1(f) shall not restrict the ability of any Remainco Releasing Party or any Buyer Releasing Party, as the case may be, from bringing any claims in respect of Liabilities that were not released under Section 3.1(a)(i) or Section 3.1(a)(ii), as the case may be (including any claims in respect of any Liabilities that Section 3.1(c) or Section 3.1(d), as the case may be, specified as not being Remainco Released Liabilities or Spinco Released Liabilities, as the case may be).

(g)           The release in this Section 3.1 includes a release of any rights and benefits with respect to such Liabilities that each Party and each member of such Party’s Group, and its successors and assigns, now has or in the future may have conferred upon them by virtue of any statute or common law principle which provides that a general release does not extend to claims which a Party does not know or suspect to exist in its favor at the time of executing the release, if knowledge of such claims would have materially affected such Party’s settlement with the obligor. In this connection, each Party acknowledges that it is aware that factual matters now unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and further agrees that this release has been negotiated and agreed upon in light of that awareness and each such Party nevertheless intends to release the Persons described in Section 3.1(a) from the Liabilities described in Section 3.1(a).

3.2           Indemnification by Remainco. In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of any of the Transaction Documents, from and after the Equity Sale Closing Time, each member of the Remainco Group (excluding, for the avoidance of doubt, any member of the Spinco Group) shall, on a joint and several basis, indemnify, defend and hold harmless each member of the Buyer Group and its Affiliates, including the Merger Partner Group (the “Buyer Group Indemnified Parties”) to the fullest extent permitted by Law from and against any and all Losses of the Buyer Group Indemnified Parties to the extent relating to, arising out of, by reason of or otherwise in connection with (a) the Remainco Retained Liabilities, including the failure of any member of the Remainco Group or any other Person to pay, perform or otherwise discharge any Remainco Retained Liability in accordance with its respective terms, whether arising prior to, at or after the Equity Sale Closing Time; (b) any Non-Transferable Liabilities that would otherwise be considered Remainco Retained Liabilities (whether such Liabilities arose prior to, at or after the Equity Sale Closing Time); (c) any Remainco Retained Asset or any Remainco Retained Liability, whether arising prior to, at or after the Equity Sale Closing Time; (d) any breach after the Equity Sale Closing Time by any member of the Remainco Group of any covenant or agreement in any of the Transaction Documents that is to be performed following the Equity Sale Closing Time unless such Transaction Document expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made under and subject to such Transaction Document (it being understood and agreed that if a Transaction Document contains any limitations on types or amount of Losses or Liabilities that are recoverable in respect of the subject matter of such Transaction Document whether by indemnification, Action or otherwise (or provides that the remedies provided under such Transaction Document are the exclusive remedy for the subject matter under such Transaction Document), such limitations and the exclusive remedy provisions shall be applicable and shall control any and all claims for indemnification or claims for breach or otherwise made under this Agreement or any other Transaction Document); (e) any amendments, modifications or supplementations to the Separation Plan made by Remainco prior to the Equity Sale Closing Time that were not consented to by Buyer and (i) adversely affected the members of the Buyer Group, taken as a whole, and (ii) resulted in Losses of the members of the Buyer Group, taken as a whole, that were greater than One Million Dollars ($1,000,000) and would not have occurred if such amendments, modifications or supplements had not been given; (f) any Existing Remainco Credit Support Instrument; and (g) Remainco’s ownership, use or operation of any Spinco Former Business during the time such Spinco Former Business was owned by a member of the Remainco Group.

3.3           Indemnification by Spinco Group, Merger Partner Group and Buyer Group. In addition to any other provisions of this Agreement requiring indemnification and except as otherwise specifically set forth in any provision of any of the Transaction Documents, from and after the Equity Sale Closing Time, each member of the Spinco Group, each member of the Merger Partner Group and each member of the Buyer Group shall, on a joint and several basis, indemnify, defend and hold harmless each member of the Remainco Group and its Affiliates (the “Remainco Indemnified Parties”) to the fullest extent permitted by Law from and against any and all Losses of the Remainco Indemnified Parties to the extent relating to, arising out of, by reason of or otherwise in connection with (a) the Spinco Liabilities, including the failure of any member of the Spinco Group or any other Person to pay, perform or otherwise discharge any Spinco Liability in accordance with its respective terms, whether arising prior to, at or after the Equity Sale Closing Time; (b) any Non-Transferable Liabilities that would otherwise be considered Spinco Liabilities (whether such Liabilities arose prior to, at or after the Equity Sale Closing Time); (c) any Existing Spinco Credit Support Instrument; (d) any Spinco Asset or any Spinco Liability, whether arising prior to, at or after the Equity Sale Closing Time; (e) any breach after the Equity Sale Closing Time by any member of the Spinco Group, any member of the Merger Partner Group or any member of the Buyer Group of any covenant or agreement in any of the Transaction Documents that is to be performed following the Equity Sale Closing Time unless such Transaction Document expressly provides for separate indemnification therein, in which case any such indemnification claims shall be made under and subject to such Transaction Document (it being understood and agreed that if a Transaction Document contains any limitations on types or amount of Losses or Liabilities that are recoverable in respect of the subject matter of such Transaction Document whether by indemnification, Action or otherwise (or provides that the remedies provided under such Transaction Document are the exclusive remedy for the subject matter under such Transaction Document), such limitations and the exclusive remedy provisions shall be applicable and control any and all claims for indemnification or claims breach or otherwise made under this Agreement or any other Transaction Document).

3.4           Procedures for Indemnification.

(a)           A Person who may be entitled to be indemnified and held harmless under Section 3.2 or Section 3.3 (the “Indemnified Party”), shall promptly notify (but in any event within thirty (30) days) the Party that is potentially liable therefor (the “Indemnifying Party”) in writing of any pending or threatened claim, investigation, proceeding or demand by a Third Party that the Indemnified Party has determined has given or could reasonably give rise to such a right under this Agreement (including a pending or threatened claim or demand asserted by a Third Party against the Indemnified Party, such claim being a “Third-Party Claim”), describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim or demand and, if applicable, the specific provision of this Agreement that the Indemnified Party alleges to be breached (or the category of indemnification into which the Loss fits); provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article III except to the extent the Indemnifying Party is prejudiced by such failure. Following delivery of a notice of a Third-Party Claim, the Indemnified Party shall deliver to the Indemnifying Party, promptly (and in any event within ten (10) Business Days) after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to such Third-Party Claim; provided that the failure to deliver such notices and documents shall not release the Indemnifying Party from any of its obligations except to the extent the Indemnifying Party shall have been prejudiced as a result of such failure.

(b)           Following receipt of a notice of a Third-Party Claim from an Indemnified Party pursuant to Section 3.4(a), the Indemnifying Party may assume the defense and control of such Third-Party Claim by delivery of written notice to the Indemnified Party, and if it does not assume the defense of such Third-Party Claim, to participate in the defense of any Third-Party Claim in accordance with the terms of Section 3.5 at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, that is reasonably acceptable to the Indemnified Party, within thirty (30) days of receipt of an indemnification notice of from such Indemnified Party; provided that the Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third-Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party to the extent (i) in the reasonable judgment of the Indemnified Party, after consultation with outside counsel, there exists a conflict of interest between the Indemnifying Party and the applicable Indemnified Party in the defense of such Third-Party Claim by the Indemnifying Party, (ii) the Third-Party Claim is a criminal proceeding, action, indictment, allegation or investigation against the Indemnified Party or (iii) the Third-Party Claim seeks injunctive or other non-monetary relief that, if granted, would reasonably be expected to have a material and adverse effect on the Indemnified Party’s business.

(c)           The Indemnified Party may take any actions reasonably necessary to defend such Third-Party Claim prior to the time that it receives a notice from the Indemnifying Party as contemplated by Section 3.4(b). If the Indemnifying Party assumes the defense of any Third-Party Claim, the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third-Party Claim with its own counsel and at its own expense, and the Indemnifying Party shall not be liable to the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof (it being understood and agreed that even if the Indemnified Party participates in the defense of such a Third-Party Claim, the Indemnifying Party shall control the defense and all decisions with respect thereto). Remainco or Spinco, as the case may be, shall, and shall use their reasonable best efforts to, and to cause their Affiliates and Representatives to, cooperate fully with the Indemnifying Party in the defense of any Third-Party Claim. Without limiting the generality of the foregoing, from and after the delivery of a notice of a claim for indemnification, at the reasonable request of the Indemnifying Party, each Indemnified Party shall grant the Indemnifying Party and its Representatives reasonable access, during normal business hours, to the books, records, personnel and properties of the Indemnified Party to the extent reasonably related to such claim, at no cost to the Indemnifying Party (other than for reasonable out-of-pocket expenses of the Indemnified Parties). To the extent permitted by Law, the Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third-Party Claim, without the consent of any Indemnified Party; provided that (i) such settlement provides only for the payment of monetary damages (and does not impose any injunctive relief or otherwise impose any conditions or restrictions on the applicable Indemnified Party), (ii) the Indemnifying Party pays or causes to be paid all amounts arising out of such settlement or judgment concurrently with the effectiveness of such settlement (subject to the limitations in this Agreement), (iii) the Indemnifying Party obtains, as a condition of any settlement or other resolution, a complete and unconditional release of each Indemnified Party from any and all liability with respect to such Third-Party Claim and (iv) does not involve any admission by the Indemnified Party of any wrongdoing or violation of Law.

(d)           No Indemnifying Party shall have any liability under this Article III for any Losses arising out of or in connection with any Third-Party Claim that is settled or compromised by an Indemnified Party without the prior consent of such Indemnifying Party (such consent not to be unreasonably withheld, conditioned or delayed).

(e)           If an Indemnified Party wishes to make a claim under this Article III that does not involve a Third-Party Claim, the Indemnified Party shall give written notice to the Indemnifying Party setting forth (i) a reasonably detailed description of the claim, (ii) a good faith estimate of the amount of the claim (to the extent ascertainable) and (iii) the specific provision of this Agreement that the Indemnified Party alleges to be breached (or other category of indemnification into which the Loss fits), and such notice shall be accompanied by copies of all documentation available to the Indemnified Party that may be necessary or appropriate for the purposes of enabling the Indemnifying Party to be informed and to take any and all appropriate decisions and actions with respect to the matter and Loss that is the subject of the claim; provided that the failure to provide such notice on a timely basis shall not release the Indemnifying Party from any of its obligations under this Article III except to the extent the Indemnifying Party is actually prejudiced by such failure. Reasonable and documented out-of-pocket expenses incurred by current or former Representatives of a Party or another member of such Party’s Group (but in no event any compensation expenses of current employees of a Party or another member of a Party’s Group) in connection with another Party’s access to them shall be reimbursed by such other Party promptly following such other Party’s receipt of an invoice specifying in reasonable detail the expenses incurred.

3.5           Cooperation.

(a)           Following the Equity Sale Closing Time, each Party shall, and shall cause the other members of its Group to, use commercially reasonable efforts to (i) provide any other Party, the members of its Group and its and their Representatives with access reasonably necessary to Pursue the Remainco Retained Liabilities or the Spinco Liabilities (as applicable), at normal business hours and upon reasonable notice, to the books and records (including electronic and archived documents) and facilities of the members of such Party’s Group and to current and former Representatives of the members of such Party’s Group, including in connection with testimony in litigation and factual investigation, and (ii) upon written request from the other Party (including on behalf of any member of its Group), (A) generally provide support, and make the Representatives of the members of its Group (current and future and, to the extent practicable, former and taking into account the work schedules and other commitments of the aforementioned Persons) available to provide assistance and expertise at such times and in such places as reasonably necessary, to Pursue the Remainco Retained Liabilities or the Spinco Liabilities, as applicable, to the extent that the requesting Party believes any such Persons may reasonably be useful or required in connection with the Pursuit of the Remainco Retained Liabilities or the Spinco Liabilities, as applicable, and (B) reasonably promptly select a person or persons to provide the requested assistance after conferring in good faith to determine which person or persons should provide such assistance, and shall use reasonable best efforts to make such person or persons available; provided that, in the case of each of clauses (i) and (ii), (1) each Party only shall be required to provide such access and make the current and former Representatives of it and the members of its Group available to the extent and in such manner as does not unreasonably interfere with the ongoing operations of the members of such Group, and (2) each Party may withhold access from other Party to the extent that such Party is aware that (x) it or any of the members of its Group is subject to the terms of a confidentiality agreement with a Third Party or another Contract that restricts such access; provided that such Party shall, and shall cause the other members of its Group to, use commercially reasonable efforts to obtain the required consent of such Third Party to provide such access, (y) providing such access would result in a loss of attorney-client or other legal privilege; provided that each Party shall, and shall cause the other members of its Group to, use commercially reasonable efforts to allow such access (or access to a portion thereof) in a manner that does not result in a loss of such privilege, or (z) providing such access would violate any Law; provided that each Party shall, and shall cause the other members of its Group to, use commercially reasonable efforts to provide such access in a manner that does not violate such Law. Notwithstanding the foregoing, each Party shall, and shall cause the other members of its Group, to use commercially reasonable efforts to make any employee or other Person under its control available to testify at a trial or evidentiary hearing at the request of the other Party.

(b)           Subject to the limitations on confidentiality and privilege set forth in the Transaction Documents and subject to applicable Law, from the Closing Date until the date which is six (6) years following the Closing Date, with respect to any material Action by a Governmental Authority against any member of the Remainco Group (i) where it is known the facts giving rise to such Action occurred prior to the Equity Sale Closing Time and (ii) such Action would reasonably be expected to adversely impact the Spinco Business or the Spinco Group (taken as a whole) in a manner that is different from other participants in the industries in which the Spinco Business operates, Remainco, shall promptly provide notice to Spinco of such Action and to the extent doing so does not unreasonably interfere with the business or operations of Remainco, consider in good faith if any suggestions Spinco has with respect to such Action.

(c)           Subject to the limitations on confidentiality and privilege set forth in the Transaction Documents and subject to applicable Law, from the Closing Date until the date which is six (6) years following the Closing Date, with respect to any material Action by a Governmental Authority against any member of the Spinco Group (i) where it is known the facts giving rise to such Action occurred prior to the Equity Sale Closing Time and (ii) such Action would reasonably be expected to adversely impact the Remainco Retained Business or the Remainco Group (taken as a whole) in a manner that is different from other participants in the industries in which the Remainco Retained Business operates, Spinco shall promptly provide notice to Remainco of such Action and to the extent doing so does not unreasonably interfere with the business or operations of Spinco, consider in good faith if any suggestions Remainco has with respect to such Action.

3.6           Indemnification Payments. In the event a claim for indemnification under this Article III shall have been finally determined, the amount of such final determination shall be paid to the Indemnified Party on demand in immediately available funds. An indemnification claim, and the liability for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of this Article III when the Parties to such indemnification claim have so determined by mutual agreement or, if disputed, when a final non-appealable Governmental Approval shall have been entered.

3.7           Additional Indemnification Provisions.

(a)           All Losses shall be (i) net of any Tax Benefit and (ii) net of any Eligible Insurance Proceeds.

(b)           In any case where an Indemnified Party recovers from a third Person any amount with respect to any Loss paid by the Indemnifying Party pursuant to this Article III, such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting therefrom the amount of reasonable costs incurred by it in procuring such recovery, which costs shall not exceed the amount so recovered), but not in excess of the sum of (i) any amount previously paid by the Indemnifying Party to or on behalf of the Indemnified Party with respect to such claim and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim arising out of such Loss.

(c)           If any portion of Losses to be paid by the Indemnifying Party pursuant to this Article III could be recovered from a Third Party not affiliated with the relevant Indemnified Party based on the underlying claim or demand asserted against such Indemnifying Party, then the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party and, upon the request of the Indemnifying Party, shall use commercially reasonable efforts to collect the maximum amount recoverable from such Third Party, in which event the Indemnifying Party shall reimburse the Indemnified Party for all reasonable costs and expenses incurred in connection with such collection (which costs and expenses of collection shall not exceed the amount recoverable from such Third Party); provided that the Indemnifying Party shall have no obligation to litigate against such Third Party to recover any portion of its Losses. If any portion of Losses actually paid by the Indemnifying Party pursuant to this Article III could have been recovered from a Third Party not affiliated with the relevant Indemnified Party based on the underlying claim or demand asserted against such Indemnifying Party, then the Indemnified Party shall transfer, to the extent transferable, such of its rights to proceed against such Third Party as are necessary to permit the Indemnifying Party to recover from such Third Party any amount actually paid by the Indemnifying Party pursuant to this Article III.

(d)           If any portion of Losses to be paid by the Indemnifying Party pursuant to this Article III may be covered, in whole or in part, by third-party insurance coverage, the Indemnified Party shall promptly give written notice thereof to the Indemnifying Party. The Indemnified Party shall use commercially reasonable efforts to collect the maximum amount of insurance proceeds thereunder, and all such proceeds actually collected with respect to any Loss (net of (i) the amount of reasonable costs incurred by the Indemnified Party or any of its Affiliates in collecting such proceeds and (ii) the present value of any increased costs incurred by such Indemnified Party or any of its Affiliates as a result of such Loss, including any retroactive or prospective premium adjustments resulting from such Loss) shall be considered “Eligible Insurance Proceeds”. Notwithstanding anything to the contrary contained in this Agreement, except as provided in Section 4.10, no Remainco Indemnified Party shall be required to seek to recover any Losses relating to or arising under any Spinco Liabilities from any Insurance Policies.

(e)           The aggregate liability of the members of the Remainco Group in the aggregate under Section 3.2(g) shall not exceed One Hundred Fifty Million Dollars ($150,000,000) (the “Cap”) and in no event shall any member of the Remainco Group (individually or collectively) be required to indemnify, defend or hold harmless any of the Buyer Group Indemnified Parties under Section 3.2(g) for any amounts in the aggregate in excess of the Cap.

(f)           The obligation of the members of the Remainco Group to indemnify, defend or hold harmless any Buyer Group Indemnified Party pursuant to Section 3.2(g) shall automatically terminate on the date that is two (2) years following the Closing Date.

3.8           Additional Matters; Survival of Indemnities. The rights and obligations of each Party and their Indemnified Parties under this Article III shall survive (a) Transfer by any Party or a member of its Group of any Assets or businesses or the assignment by it of any Liabilities and (b) any merger, consolidation, business combination, restructuring, recapitalization, reorganization or similar transaction involving any Party or any a member of its Group. No Indemnified Party shall be entitled to payment and indemnification more than once with respect to the same matters (including to the extent taken into account as a dollar amount in the determination of the Spinco Final Adjustment Amount).

3.9           Mitigation. Each Party shall, and shall cause its Affiliates and Representatives to, take commercially reasonable steps to mitigate their respective Losses upon and after becoming aware of any fact, event, circumstance or condition that has given rise to, or would reasonably be expected to give rise to, any Losses that are indemnifiable in this Agreement.

3.10           Exclusive Remedies From and after the Equity Sale Closing Time, recovery pursuant to this Article III shall constitute the Parties’ sole and exclusive remedy for any and all Losses or liabilities relating to or arising from any of the Transaction Documents and the Contemplated Transactions, and each Party waives and releases, to the fullest extent permitted by applicable Law, any and all other rights, remedies, claims and causes of action (including rights of contributions, if any), whether in contract, tort or otherwise, known or unknown, foreseen or unforeseen, which exist or may arise in the future, arising under or based upon any federal, state, local or foreign Law that any Party may have against the other Party with respect to any breach of any of the Transaction Documents; provided that the foregoing shall not deny (a) any Party specific performance when any such remedy is otherwise available under this Agreement as provided in Section 5.4 or as provided under any of the other Transaction Documents, (b) to the extent required by applicable Law, a Party’s right to exercise all of their rights and seek all damages available to them under Law in the event of claims or causes of action arising from Fraud; or (c) any Party or its Affiliates any remedies expressly provided for under any of the other Transaction Documents, and the foregoing shall not interfere with or impede the resolution of disputes pursuant to Section 2.3 or in any way limit Buyer’s rights under the R&W Insurance Policy.

3.11           Third Party Actions.

(a)           Buyer acknowledges and agrees that the list of Actions described on Schedule 3.11(a) arise out of the Spinco Business and that the members of the Buyer Group shall be responsible for such Actions from and after the Closing (and any Losses and Liabilities arising therefrom, including with respect to any facts relating thereto that arose prior to the Closing) and that no member of the Buyer Group is entitled to any indemnification or contribution from Remainco or any of its Affiliates relating to such Actions.

(b)           Remainco acknowledges and agrees that the list of Actions described on Schedule 3.11(b) arise out of the Remainco Retained Business and that the members of the Remainco Group shall be responsible for such Actions from and after the Closing (and any Losses and Liabilities arising therefrom, including with respect to any facts relating thereto that arose prior to the Closing) and that no member of the Remainco Group is entitled to any indemnification or contribution from any member of the Buyer Group relating to such Actions.

(c)           The Actions set forth on Schedule 3.11(a) are not all of the Actions that constitute Spinco Liabilities and the Actions set forth on Schedule 3.11(b) are not all of the Actions that constitute Remainco Retained Liabilities.

Article IV

PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE

4.1           Preservation of Corporate Records.

(a)           Except to the extent otherwise contemplated by any of the Transaction Documents, a Party providing records or access to Information to another Party under this Article IV shall be entitled to receive from the Party receiving such records or access to information, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other out-of-pocket expenses (which shall include the costs of any discovery vendor but shall not include the costs of salaries and benefits of employees of such Party or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing), as are reasonably and actually incurred in providing such records or access to Information.

(b)           From and after the Equity Sale Closing Time, except as otherwise required or agreed upon in writing, or as otherwise provided in any of the Transaction Documents, with regard to any Information referenced in Section 4.3, each Party shall use reasonable best efforts, at such Party’s sole cost and expense, to retain, until the latest of, as applicable, (i) the date on which such Information is no longer required to be retained pursuant to the applicable record retention policy of Remainco or such other member of the Remainco Group, respectively, as in effect immediately prior to the Closing, including pursuant to any “litigation hold” issued by Remainco or other such member of the Remainco Group prior to the Closing, (ii) the concluding date of any period as may be required by any applicable Law, (iii) the concluding date of any retention obligation for such Information that relates to a pending or threatened Action which is known to the members of such Party’s Group, as applicable, in possession of such Information, and (iv) the concluding date of any period during which the destruction of such Information would reasonably be expected to interfere with a pending or threatened investigation by a Governmental Authority which is known to the members of such Party’s Group, as applicable, in possession of such Information; provided that with respect to any pending or threatened Action arising after the Closing, clause (iii) of this sentence applies only to the extent that whichever member of the applicable Party or its Group, as applicable, is in possession of such Information has been notified in writing pursuant to a “litigation hold” by the other Party of the relevant pending or threatened Action. Each Party agrees that from and after the Closing, upon written request from the other Party that certain Information relating to the Spinco Business, the Remainco Retained Business or the transactions contemplated by this Agreement be retained, the Parties shall use reasonable best efforts to preserve and not to destroy or dispose of such Information without the consent of the requesting Party (reasonable best efforts shall include issuing a “litigation hold”).

(c)           The Parties intend that any transfer between Remainco and Spinco (including between their attorneys, Representatives and agents) of Information that is subject to the protections of the attorney-client or attorney work product privileges shall not operate as a waiver of any potentially applicable privilege and shall be completed in accordance with Section 4.7.

4.2           Financial Statements and Accounting.

(a)           The members of the Remainco Group and the members of the Buyer Group shall provide the following reasonable assistance and, subject to Section 4.6, reasonable access to its properties, records, other Information and personnel set forth in this Section 4.2, from the Closing until the fourth (4^th) anniversary of the Closing Date (the “Applicable Period”) (i) in connection with the preparation and review or audit of such Party’s quarterly and annual financial statements, and the timely filing of such financial statements and the audit of such Party’s internal controls over financial reporting and management’s assessment thereof and management’s assessment of such Party’s disclosure controls and procedures, if required, and (ii) to the extent reasonably necessary to respond (and for the limited purpose of responding) to any written request or official comment from a Governmental Authority, such as in connection with responding to a comment letter from the SEC. Without limiting the foregoing, during the Applicable Period, each Party agrees as follows:

(b)           Except to the extent otherwise contemplated by the Transaction Documents and subject to Section 4.6 and Section 4.7, (i) Remainco and Buyer shall authorize and request their respective auditors to make reasonably available to the other Party’s auditors (the “Other Party’s Auditors”) both the personnel who performed or are performing the annual audits of such audited Party (each Party with respect to its own audit, the “Audited Party”) and work papers related to the annual audits of such Audited Party (subject to the execution of any reasonable and customary access letters that such Audited Party’s auditors may require in connection with the review of such work papers by such Other Party’s Auditors), in all cases within a reasonable time prior to such Audited Party’s auditors’ opinion date, so that the Other Party’s Auditors are able to perform the procedures they reasonably consider necessary to take responsibility for the work of the Audited Party’s auditors as it relates to their auditors’ report on such other Party’s financial statements, and, if applicable, within sufficient time to enable such other Party to meet its timetable for the filing of its annual financial statements with the SEC and (ii) until all governmental audits are complete, the members of the Buyer Group and the members of the Remainco Group shall provide reasonable access during normal business hours for the other Group’s internal auditors, counsel and other designated Representatives for matters relating to such audits, including to (A) the premises of the members of the Buyer Group or the members of the Remainco Group, as applicable, and all Information (and duplicating rights) within the knowledge, possession or control of a member of the Buyer Group or a member of the Remainco Group, as applicable, with respect to the Spinco Business and (B) the officers and employees of the members of the Buyer Group or the members of the Remainco Group, as applicable, with respect to the Spinco Business, so that Buyer and Remainco may conduct reasonable audits relating to the financial statements in relation to the Spinco Business.

(c)           Without limitation of Section 4.6, nothing in this Article IV shall require any Party to violate any agreement with any Third Party regarding the confidentiality of confidential and proprietary Information relating to that Third Party or its business; provided that in the event that a Party is required under this Section 4.2 to disclose any such Information, such Party shall use reasonable best efforts to seek to obtain such Third Party’s written consent to the disclosure of such Information.

(d)           Each Party acknowledges that Information provided under this Section 4.2 may constitute material, non-public Information, and trading in the securities of a Party (or the securities of its Affiliates, the members of its Group or partners) while in possession of such material, non-public material Information may constitute a violation of the U.S. federal securities Laws.

4.3           Provision of Corporate Records. Other than in circumstances in which indemnification is sought pursuant to Article III (in which event the provisions of such Article III shall govern) and subject to appropriate restrictions for privileged information or Confidential Information in Section 4.6 and Section 4.7:

(a)           After the Closing, and subject to compliance with the terms of the Transaction Documents, upon the prior written reasonable request by, and at the expense of, Buyer for specific and identified Information:

(i)           that (A) relates to Spinco or the Spinco Business, as the case may be, prior to the Equity Sale Closing Time or (B) is necessary for any member of the Buyer Group to comply with the terms of, or otherwise perform under, any of the Transaction Documents to which any member of the Remainco Group and such member of the Buyer Group are parties, Remainco shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Buyer has a reasonable need for such originals) in the possession or control of the Remainco Group, but only to the extent such items so relate and are not already in the possession or control of a member of the Buyer Group; provided that, to the extent any originals are delivered to the member of the Buyer Group pursuant to any of the Transaction Documents, such member of the Buyer Group shall, at its own expense, return them to Remainco within a reasonable time after the need to retain such originals has ceased; provided, further, that such obligation to provide any requested Information shall terminate and be of no further force and effect on the date that is the later of (1) the sixth (6^th) anniversary of the Closing Date and (2) three (3) months after the earlier termination or expiration of the Transaction Document to which the Information relates; provided, further, that, if any such access or the provision of any such Information would violate any Law or would reasonably be expected to result in the waiver of any attorney-client privilege, rights under the work product doctrine or other applicable privilege, Remainco shall not be obligated to provide such Information requested by Buyer; provided that Remainco shall, and shall cause the other members of the Remainco Group to, use commercially reasonable efforts to allow such access (or access to a portion thereof) in a manner that does not result in a loss of such privilege; provided, further, that, if Remainco reasonably determines that any such provision of Information could be commercially detrimental in any material respect, require any consent from a Third Party (which cannot be reasonably obtained), or violate any Contract, the Parties shall, and shall cause each other member of their respective Groups to, take all reasonable best measures to permit compliance with such obligations in a manner that avoids any such harm or consequence; or

(ii)           that (A) is required by Buyer with regard to reasonable compliance with reporting, disclosure, filing or other Laws imposed on any member of the Buyer Group (including under applicable securities Laws) by a Governmental Authority having jurisdiction over such member of the Buyer Group, or (B) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Remainco shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Buyer has a reasonable need for such originals) in the possession or control of the Remainco Group, but only to the extent such items so relate and are not already in the possession or control of a member of the Buyer Group; provided that, to the extent any originals are delivered to a member of the Buyer Group pursuant to any of the Transaction Documents, such member of the Buyer Group shall, at its own expense, return them to Remainco within a reasonable time after the need to retain such originals has ceased; provided, further, that, in the event that any such access or the provision of any such Information would violate any Law or would reasonably be expected to result in the waiver of any attorney-client privilege, rights under the work product doctrine or other applicable privilege, Remainco shall not be obligated to provide such Information requested by Buyer; provided that Remainco shall, and shall cause the other members of the Remainco Group to, use commercially reasonable efforts to allow such access (or access to a portion thereof) in a manner that does not result in a loss of such privilege; provided, further, that if Remainco reasonably determines that any such provision of Information could be commercially detrimental in any material respect, require any consent from a Third Party (which cannot be reasonably obtained), or violate any Contract, the Parties shall, and shall cause each other member of their respective Groups to, take all reasonable best measures to permit compliance with such obligations in a manner that avoids any such harm or consequence.

(b)           After the Closing, and subject to compliance with the terms of the Transaction Documents, upon the prior written reasonable request by, and at the expense of, Remainco for specific and identified Information:

(i)           that (A) relates to Remainco or the Remainco Retained Business, as the case may be, prior to the Equity Sale Closing Time or (B) is necessary for any member of the Remainco Group to comply with the terms of, or otherwise perform under, any of the Transaction Documents to which such member of the Remainco Group and any member of the Buyer Group are parties, the applicable member of the Buyer Group shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Remainco has a reasonable need for such originals) in the possession or control of a member of the Buyer Group, but only to the extent such items so relate and are not already in the possession or control of a member of the Remainco Group; provided that, to the extent any originals are delivered to the member of the Remainco Group pursuant to any of the Transaction Documents, such member of the Remainco Group shall, at its own expense, return them to Buyer within a reasonable time after the need to retain such originals has ceased; provided, further, that such obligation to provide any requested Information shall terminate and be of no further force and effect on the date that is the later of (1) the sixth (6^th) anniversary of the Closing Date and (2) three (3) months after the earlier termination or expiration of the Transaction Document to which the Information relates; provided, further, that to the extent that any such access or the provision of any such Information would violate any Law or would reasonably be expected to result in the waiver of any attorney-client privilege, rights under the work product doctrine or other applicable privilege, Buyer shall not be obligated to provide such Information requested by Remainco; provided that Buyer shall, and shall cause the other members of the Buyer Group to, use commercially reasonable efforts to allow such access (or access to a portion thereof) in a manner that does not result in a loss of such privilege; provided, further, that if Buyer reasonably determines that any such provision of Information could be commercially detrimental in any material respect, require any consent from a Third Party (which cannot be reasonably obtained), or violate any Contract, the Parties shall, and shall cause each other member of their respective Groups to, take all reasonable best measures to permit compliance with such obligations in a manner that avoids any such harm or consequence; or

(ii)           that (A) is required by Remainco with regard to reasonable compliance with reporting, disclosure, filing or other Laws imposed on any member of the Remainco Group (including under applicable securities Laws) by a Governmental Authority having jurisdiction over such member of the Remainco Group, or (B) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Buyer shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Remainco has a reasonable need for such originals) in the possession or control of a member of the Buyer Group, but only to the extent such items so relate and are not already in the possession or control of Remainco; provided that, to the extent any originals are delivered to Remainco pursuant to any of the Transaction Documents, Remainco shall, at its own expense, return them to Buyer within a reasonable time after the need to retain such originals has ceased; provided, further, that if any such access or the provision of any such Information would violate any Law or would reasonably be expected to result in the waiver of any attorney-client privilege, rights under the work product doctrine or other applicable privilege, Buyer shall not be obligated to provide such Information requested by Remainco; provided that Buyer shall, and shall cause the other members of the Buyer Group to, use commercially reasonable efforts to allow such access (or access to a portion thereof) in a manner that does not result in a loss of such privilege; provided, further, that if Buyer reasonably determines that any such provision of Information could be commercially detrimental in any material respect, require any consent from a Third Party (which cannot be reasonably obtained), or violate any Contract, the Parties shall, and shall cause each other member of their respective Groups to, take all reasonable best measures to permit compliance with such obligations in a manner that avoids any such harm or consequence.

(c)           From and after the Closing, each Party shall have the right to request in writing (including on behalf of any member of its Group) that the other Parties make available for inspection any non-privileged books, records or other documents within its control or that it otherwise has the ability to make available, to the extent such books, records or other documents may reasonably be required in connection with any Action or threatened or contemplated Action (including preparation for such Action) in which the members of the Remainco Group or the members of the Buyer Group (with respect to the Spinco Business), as applicable, may from time to time be involved, regardless of whether such Action is a matter with respect to which indemnification may be sought under this Agreement. The requesting Party shall bear all reasonable out-of-pocket costs and expenses actually incurred in connection therewith. Any such disclosure of books, records and documents shall be made subject to Section 4.6.

(d)           Subject to the conditions and limitations in this Article IV, upon reasonable prior notice, the Parties agree to make their respective personnel reasonably available during regular business hours to discuss any Information exchanged pursuant to this Section 4.3. Remainco, Merger Partner and Buyer shall inform their and their Groups’ respective officers, employees, agents, consultants, advisors, authorized accountants, counsel and other designated Representatives who have or have access to the other Party’s Confidential Information or other Information provided this Article IV of their obligation to hold such Information confidential in accordance with the provisions of this Agreement.

(e)           Any Information provided by or made available by or on behalf of any Party (or any other member of any Group pursuant to this Article IV) shall be on an “as is” basis and no Party (or any member of any Group) is making any representation or warranty with respect to such Information or the completeness thereof.

4.4           Witness Cooperation. At all times from and after the Closing, each Party shall have the right to request in writing (including on behalf of any member of its Group) that the other Party make available for consultation or witness purposes, its (or its applicable member of its Group’s) directors, officers, employees, consultants, agents or other Representatives (current and future and to the extent reasonably possible former and taking into account the work schedules and other commitments of the aforementioned Persons) who have expertise or knowledge with respect to the other Party’s (or its Group’s) Actions or business or products or matters in litigation or alternative dispute resolution to the extent that the requesting Party believes any such persons may reasonably be useful or required in connection with any Action or any legal, administrative, internal investigation or other proceedings in which the requesting Party (or its Group) may from time to time be involved. Upon such request, the affected Party shall reasonably promptly select a person or persons to provide the requested assistance after conferring in good faith to determine which person or persons should provide such assistance, and shall use reasonable best efforts to make such person or persons available. A Party providing a consultant or witness to the other Party (or its Group) under this Section 4.4 shall be entitled to receive from the Party receiving such consulting or witness services, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other reasonable and documented out-of-pocket expenses actually incurred (which shall not include the costs of salaries and benefits of employees who are witnesses or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service as witnesses), as may be reasonably incurred and properly paid under applicable Laws. Further, any applicable privilege or immunity shall be protected and shared only in accordance with Section 4.7.

4.5           Reimbursement. Except to the extent otherwise contemplated by any of the Transaction Documents, a Party (or a member of its Group) providing Information or access to Information to the other Party (or a member of its Group) under this Article IV shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other reasonable and documented out-of-pocket expenses (which shall not include the costs of salaries and benefits of employees of such Party (or its Group) or any pro rata portion of overhead or other costs of employing such employees which would have been incurred by such employees’ employer regardless of the employees’ service with respect to the foregoing), as may be reasonably and actually incurred in providing such Information or access to such Information.

4.6           Confidentiality.

(a)           The terms of the Confidentiality Agreements are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing, at which time the confidentiality obligations under the Confidentiality Agreements shall terminate; provided that remedies with respect to breaches of such Confidentiality Agreements that occurred prior to the Closing shall survive the Closing. If for any reason the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreements shall continue in full force and effect in accordance with their respective terms.

(b)           From and after the Closing, except as otherwise provided in the Transaction Documents, Remainco and Buyer shall hold, and shall cause their respective members of their Group and their and their Group’s respective Representatives to hold, in strict confidence (and not to disclose or release or, except as otherwise permitted by any of the Transaction Documents, use, including for any ongoing or future commercial purpose, without the prior written consent of the Party to whom the Confidential Information relates (which may be withheld in such Party’s sole and absolute discretion, except where disclosure is required by applicable Law)), any and all Confidential Information to the extent concerning or belonging to the other Party or its Group; provided that each Party may disclose, or may permit disclosure of, Confidential Information (i) to its respective Representatives who have a need to know such Confidential Information for (A) auditing and other non-commercial purposes and are informed of the obligation to hold such Information confidential and with respect to whose failure to comply with such obligations, the applicable Party shall be responsible and (B) providing services to any members of its Group; provided that the Confidential Information so disclosed shall be used only as required to perform such services, (ii) if any Party or any member of its Group is required or compelled to disclose any such Confidential Information by judicial or administrative process or by other Laws or stock exchange rules or is advised by outside counsel in connection with an Action brought by a Governmental Authority that it is advisable to do so, (iii) as required in connection with any legal or other proceeding by one Party (or its Group) against any other Party (or its Group) or with respect to claims by one Party (or its Group) against the other Party (or its Group) brought in an Action, (iv) as necessary in order to permit a Party (or its Group) to prepare and disclose its financial statements in connection with any regulatory filings or (v) as necessary for a Party to enforce its rights or perform its obligations under this Agreement (including pursuant to Section 1.2) or any of the other Transaction Documents. Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made by a Third Party pursuant to clauses (ii), (iii) or (v) above, each Party, as applicable, shall promptly notify in writing (to the extent permissible by Law) the Party to whom the Confidential Information relates of the existence of such request, demand or disclosure requirement and shall provide such affected Party a reasonable opportunity to seek an appropriate protective order or other remedy at such affected Party’s cost and expense, which such Party shall cooperate in obtaining to the extent reasonably practicable. In the event that such appropriate protective order or other remedy is not obtained, the Party which faces the disclosure requirement shall furnish only that portion of the Confidential Information that is required to be disclosed and shall take reasonable best efforts to ensure that confidential treatment is accorded such Confidential Information. Further, as to privileged information nothing in this Section 4.6 replaces or diminishes the Parties’ obligations and limitations set forth in Section 4.7. Each Party shall use the same degree of care to prevent the unauthorized use or disclosure of the other Parties’ Confidential Information by any of its Representatives as it currently uses for its own Confidential Information, but in no event less than a reasonable standard of care.

(c)           Each Party acknowledges that it and the other members of its Group may have in its or their possession confidential or proprietary Information of Third Parties that was received under confidentiality or non-disclosure agreements with such Third Party while such Party and members of its Group were part of the same Group. From and after the Closing, each Party shall comply, and shall cause the other members of its Group to comply, and shall cause its and their respective Representatives to comply, with all terms and conditions of any such third-party agreements entered into prior to the Equity Sale Closing Time, with respect to any confidential and proprietary Information of Third Parties to which it or any other member of its Group has had access.

(d)           Notwithstanding anything to the contrary contained in this Agreement, and without limiting the other terms and conditions of this Agreement, the provisions of this Section 4.6 do not terminate or modify the confidentiality obligations provided for in any Contract between each Party or member of its Group and their respective employees, which shall remain in full force and effect from and after the Equity Sale Closing Time and otherwise subject to the terms and conditions of this Agreement, including the conveyance of rights set forth in this Agreement.

(e)           Notwithstanding any other provision of this Section 4.6, (i) the disclosure and sharing of privileged information shall be governed solely by Section 4.7, and (ii) Information that is subject to any confidentiality provision or other disclosure restriction in any of the Transaction Documents shall be governed by the terms of such Transaction Document.

4.7           Counsel; Privileges; Legal Material.

(a)           In-house lawyers employed by members of the Remainco Group prior to the Equity Sale Closing Time (“Existing Remainco Counsel”) have provided legal services to and jointly represented the members of the Remainco Group (including the members of the Spinco Group). From and after the Equity Sale Closing Time, certain Existing Remainco Counsel shall remain employees of one or more members of the Remainco Group and provide legal services to and represent only the members of the Remainco Group (“Remainco Counsel”), and certain Existing Remainco Counsel shall become employees of one or more members of the Spinco Group and provide legal services to and represent only the Spinco Group (“Spinco Counsel”). From and after the Equity Sale Closing Time, (i) Remainco Counsel shall represent only the Remainco Group; (ii) Spinco Counsel shall represent only the Spinco Group; and (iii) Spinco Counsel and Remainco Counsel shall, subject to rules of professional responsibility respecting obligations to former clients, owe a duty of loyalty and other professional obligations only to their respective clients. The members of the Remainco Group and the members of the Spinco Group have previously been jointly represented by Existing Remainco Counsel in various legal matters of common interest. This joint representation included in its scope all matters prior to the Equity Sale Closing Time in which a Party or another member of its Group was represented by any of Existing Remainco Counsel.

(b)           Each Party acknowledges and agrees that all privileges, immunities or other protections from disclosure which may be asserted under applicable Law, including attorney-client privilege, business strategy privilege, joint defense privilege, common interest privilege, attorney work-product protection and expectation of client confidentiality with respect to any Information concerning general business matters related to the Spinco Business and members of the Spinco Group prior to the Closing (excluding any Information concerning any proposed sale, spin-off or other disposition of the Spinco Business or the Contemplated Transactions or in lieu of any of the foregoing) shall be subject to a joint privilege and protection between the members of the Remainco Group, on the one hand, and the members of the Spinco Group, on the other hand. The members of the Remainco Group and the members of the Spinco Group shall have equal right and obligation to assert such joint privilege and protection, and no such joint privilege or protection may be waived by (i) Remainco without the prior written consent of Spinco or (ii) any member of the Spinco Group without the prior written consent of Remainco.

(c)           Each Party acknowledges and agrees that all attorney-client privilege, attorney work-product protection and expectation of client confidentiality with respect to any Information to the extent it relates to the Remainco Retained Business or which concerns any proposed sale, spin-off or other disposition of the Spinco Business or the Contemplated Transactions, shall be retained and controlled only by Remainco and may be waived only by Remainco. Buyer acknowledges and agrees, on behalf of itself and each member of the Buyer Group, that (i) the foregoing attorney-client privilege, attorney work-product protection and expectation of client confidentiality shall not be controlled, owned, used, waived or claimed by any member of the Buyer Group at any time after the Equity Sale Closing Time; and (ii) in the event of a dispute between any member of the Buyer Group and a Third Party or any other circumstance in which a Third Party requests or demands that any member of the Buyer Group produce privileged materials or attorney work-product of any member of the Remainco Group (including the privileged communications and attorney work-product covered by this Section 4.7), Buyer shall (A) cause such member of the Buyer Group to assert such privilege or protection on behalf of the applicable member of the Remainco Group to prevent disclosure of privileged communications or attorney work-product to such Third Party, at Remainco’s cost, and (B) promptly notify Remainco of the existence of any such request or demand and shall provide Remainco a reasonable opportunity to review the privileged materials or attorney work-product and to assert any rights it may have, under this Section 4.7 or otherwise, to prevent the production or disclosure of such privileged materials or attorney work-product; provided that if Buyer is prohibited by applicable Law from disclosing the existence of such request or demand, Buyer shall provide notice of such related information for which disclosure is not prohibited by applicable Law and use reasonable best efforts to inform Remainco of any related information Buyer reasonably determines is necessary or appropriate for Remainco to be informed of to enable Remainco to review the privileged materials or attorney work-product and to assert its rights, under this Section 4.7 or otherwise, to prevent the production or disclosure of such privileged materials or attorney work-product.

(d)           Each Party agrees that the Contemplated Transactions shall not waive or affect any applicable privileges, including the attorney-client privilege, the attorney work product doctrine, the common interest privilege and the joint-client/joint representation privilege. No Party may waive any privilege that could be asserted under any applicable Law and in which the other Party has joint privilege in accordance with the terms of this Section 4.7, without the prior written consent of the other Party. If any dispute arises between Remainco and Buyer, or any members of their respective Groups, regarding whether joint privilege should be waived, each Party (i) shall negotiate with the other Party in good faith and (ii) in furtherance and not in limitation of Section 4.7(b), shall endeavor to minimize any prejudice to the rights of the other Party and (iii) not unreasonably withhold consent to any request for waiver by the other Party. Each Party shall be permitted to withhold its consent to the waiver of a privilege for the purpose of protecting its own legitimate interests.

(e)           Notwithstanding Section 4.7(b), the Parties acknowledge and agree that, as between the Remainco Group and the Spinco Group (as constituted as of immediately before the Closing) Sidley Austin LLP, White & Case LLP, Wachtell, Lipton, Rosen & Katz LLP and Existing Remainco Counsel (together, “Counsel”) represented, for times prior to the Closing, only Remainco and not any member of the Spinco Group. Notwithstanding Section 4.7(b), the Parties acknowledge and agree that (i) any advice given by or communications with Counsel prior to the Closing shall not be subject to any joint privilege and shall be owned solely by Remainco, (ii) any advice given by or communications with Counsel (to the extent such advice or communications relate to any proposed sale, spin-off or other disposition of the Spinco Business or the Contemplated Transactions prior to the Closing) shall not be subject to any joint privilege and shall be owned solely by Remainco, and (iii) no member of the Spinco Group (as of immediately before the Closing) has the status of a client of Counsel as a result of advice given by or communications with Counsel prior to the Closing, for conflict of interest or any other purposes. Remainco and Buyer (for itself and on behalf of each member of Buyer Group) agree that, in the event that any Action, or any other matter in which the interests of Remainco, its Affiliates or its direct or indirect equityholders, on the one hand, and a member of the Buyer Group, on the other hand, are adverse, arises after the Closing between the Buyer Group, on the one hand, and Remainco, its Affiliates or its direct or indirect equityholders, on the other hand, in connection with the Contemplated Transactions, Counsels may represent Remainco, its Affiliates or its direct or indirect equityholders in such dispute, even though the interests of Remainco, its Affiliates or its direct or indirect equityholders may be directly adverse to one or more members of the Buyer Group.

(f)           In furtherance of the Parties’ agreement under this Section 4.7, Remainco and Buyer shall, and shall cause applicable members of their respective Groups to, maintain their respective separate and joint privileges, including by executing joint defense and common interest agreements where necessary or useful for this purpose.

(g)           The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of Remainco and Buyer set forth in this Section 4.7 and in Section 4.6 to maintain the confidentiality of privileged information and to assert and maintain all applicable privileges. Each Party agrees that their respective rights to any access to Information, witnesses and other Persons, the furnishing of notices and documents and other cooperative efforts between the Parties contemplated by this Agreement and the transfer of privileged Information between the Parties and members of their respective Groups pursuant to this Agreement, shall not be deemed a waiver of any privilege that has been or may be asserted under this Agreement or otherwise.

4.8           Ownership of Information. Any Information owned by a member of a Party’s Group as provided to a requesting Party pursuant to this Article IV shall be deemed to remain the property of such providing member. Unless expressly set forth in this Agreement, nothing contained in this Agreement shall be construed as granting a license or other rights to any Party with respect to any such Information, whether by implication, estoppel or otherwise.

4.9           Other Agreements. The rights and obligations granted under this Article IV are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of Information set forth in any of the Transaction Documents.

4.10           Insurance Matters.

(a)           Remainco shall use reasonable best efforts to cause the Spinco Business to continue to be an insured under the Remainco Insurance Policies until the Closing. From and after the Equity Sale Closing Time no member of the Remainco Group shall have any obligation to maintain any Insurance Policies for the benefit of any of the members of the Spinco Group, other than as set forth in Section 4.10(d).

(b)           After the Closing, Buyer shall be responsible for securing customary Insurance Policies for the members of the Buyer Group for any claim asserted against, or any occurrence, claim, loss, injury or damage incurred by, any member of the Buyer Group, whether arising out of occurrences or matters taking place before or after the Equity Sale Closing Time, related to or arising out of the Spinco Business and the operation thereof by the members of the Spinco Group (“Spinco Insurance Policies”).

(c)           From and after the Closing, for any claim asserted against, or any loss, injury or damage incurred by, any member of the Spinco Group related to or arising out of the Spinco Business arising out of any occurrence or matter that took place during any period ending at or prior to the Closing, each member of the Buyer Group may pursue a claim for coverage under any Remainco Insurance Policies under which any member of the Spinco Group is insured to the extent permitted under the applicable Remainco Insurance Policy (“Spinco Post-Closing Claims”); provided that (i) no member of the Remainco Group is making any representation or warranty regarding the coverage under the Remainco Insurance Policies, (ii) any premiums, deductibles, retentions or similar self-insured obligations under the Remainco Insurance Policies to the extent arising from any Spinco Post-Closing Claims shall be borne by a member of the Buyer Group, (iii) if the Spinco Post-Closing Claim is covered under a Spinco Insurance Policy or an Insurance Policy of a member of the Buyer Group, then a member of the Buyer Group shall also make a claim under the applicable Spinco Insurance Policy or the applicable Insurance Policy of a member of the Buyer Group, (iv) Spinco shall provide Remainco a copy of the initial notice of such Spinco Post-Closing Claim under a Remainco Insurance Policy promptly following submission to the applicable insurer and thereafter promptly provide reasonable details of all substantive communications from and to such insurer with respect to such Spinco Post-Closing Claim. In addition, to the extent any member of the Buyer Group requests, Remainco shall (or shall cause the applicable other member of the Remainco Group to) submit in its name a Spinco Post-Closing Claim on behalf of the applicable member of the Spinco Group if, in consultation with Buyer making such request, Remainco reasonably determines that such claim may be covered under a Remainco Insurance Policy. In either such event, the applicable member of the Remainco Group, on the one hand, and the applicable members of the Buyer Group, on the other hand, shall reasonably cooperate with one another and Remainco shall not, and shall not permit the applicable member of the Remainco Group, to settle or compromise any such Spinco Post-Closing Claim without the prior written consent of Buyer. Buyer shall reimburse the applicable member of the Remainco Group for any reasonable cost or expenses incurred by it in such submission of a claim. In no event shall Remainco be obligated to initiate coverage litigation with respect to a Spinco Post-Closing Claim, other than any such litigation of which Buyer agrees to bear the cost and expense. The Parties shall reasonably cooperate with respect to insurance coverage litigation for a Spinco Post-Closing Claim. If a Spinco Post-Closing Claim relates to the same occurrence for which a member of Remainco Group is seeking coverage and the limit under the applicable Remainco Insurance Policy is not sufficient to fund all covered claims of the members of the Spinco Group and the members of Remainco Group, amounts due under such Remainco Insurance Policy shall be paid to the applicable members of the Remainco Group and the applicable members of the Spinco Group in proportion to the amounts which otherwise would be due were the limits of liability infinite.

(d)           Nothing in this Section 4.10 shall prevent any member of the Remainco Group from accessing, eroding, exhausting or otherwise taking any action in connection with a Remainco Insurance Policy; provided that Remainco shall not amend, commute or cancel any Remainco Insurance Policy in a manner that would adversely impact the rights of any member of the Spinco Group under this Section 4.10. Notwithstanding anything to the contrary contained in this Agreement, if there is a Spinco Post-Closing Claim under an applicable Remainco Insurance Policy that has an aggregate limit, the members of the Spinco Group shall not be entitled to any recovery from such Remainco Insurance Policy in an amount in excess of thirty percent (30%) of the applicable aggregate policy limit.

(e)           From and after the Closing, each Party shall be financially responsible for Self-Insurance obligations applicable to claims for which the Party bears responsibility for the underlying claim, including the Spinco Post-Closing Claims.

(f)           Nothing in this Section 4.10 shall require any Party to violate any applicable Law or require any member of the Remainco Group to breach any terms of any of the Remainco Insurance Policies and nothing in this Section 4.10 shall be construed to alter or limit in any way the indemnity obligations of the Parties, including those in any of the Transaction Documents.

4.11           International Game Technology PLC Marks

(a)           Transitional Trademark License. Effective as of the Equity Sale Closing Time, the members of the Spinco Group grant to the members of the Remainco Group for twelve (12) months after the Closing Date (the “Transition Period”) a worldwide, royalty-free, non-transferable, non-exclusive, irrevocable license to use the International Game Technology PLC Marks in connection with the continued operation of the Remainco Retained Business in a manner consistent with the use of the International Game Technology PLC Marks in the Remainco Retained Business prior to the Closing Date by the members of the Remainco Group. Each member of the Remainco Group may sublicense the rights granted in this Section 4.11 to its authorized distributors, vendors, subcontractors and resellers in connection with the continued operation of the Remainco Retained Business during the Transition Period. Any and all goodwill arising from the members of the Remainco Group’s or its sublicensees’ use of the International Game Technology PLC Marks shall inure solely to the benefit of the Spinco Group. To the extent cessation of use of particular uses of the International Game Technology PLC Marks by the end of the Transition Period would require the members of the Remainco Group to incur material cost or effort, Remainco and Spinco shall negotiate and set forth in writing an appropriate extension of the Transition Period solely for such uses, which extension shall last until such members of the Remainco Group are able to cease such uses of the International Game Technology PLC Marks in the ordinary course of business; provided that the members of the Remainco Group shall promptly remove and cease use of the International Game Technology PLC Marks upon the expiration of the Transition Period. The members of the Remainco Group shall have no obligation to remove the International Game Technology PLC Marks from items no longer in its possession or control.

(b)           Quality Control. Remainco shall use reasonable best efforts to monitor the use of the International Game Technology PLC Marks by the members of the Remainco Group to ensure that the members of the Remainco Group use the International Game Technology PLC Marks only in a form and manner consistent with, and in connection with goods and services of a level of quality equal to or greater than the quality of goods and services offered in connection with, the use of the International Game Technology PLC Marks by the members of the Remainco Group prior to the Closing Date. Remainco shall, and shall cause the other members of the Remainco Group to, cooperate in good faith with Spinco’s quality control efforts under this Section 4.11(b).

(c)           Other Uses. Nothing in this Section 4.11 shall limit the members of the Remainco Group’s use of the International Game Technology PLC Marks after the Transition Period, provided that such uses do not constitute traditional trademark uses as brands to indicate the origin of the branded goods and services as being Remainco and to distinguish Remainco Group’s goods and services from the goods and services of other entities in the marketplace; accordingly, the permitted uses under this Section 4.11(c) consist of the following: (i) non-trademark uses by the members of the Remainco Group for their internal business purposes, records and other historical or archived documents containing or referencing the International Game Technology PLC Marks, (ii) non-trademark uses permitted as trademark fair use or not constituting infringement, misappropriation or dilution of the International Game Technology PLC Marks including uses that would not cause confusion as to the origin or sponsorship of a good or service, or (iii) non-trademark uses to the extent required under applicable Law.

(d)            Change of Names of Remainco Group Members. As promptly as possible after the Closing Date (but in no event later than the date which is sixty (60) days following the Closing Date), Remainco shall cause all actions necessary to change the name of each other member of the Remainco Group with the Secretary of State (or equivalent) in each jurisdiction where its name is registered to remove any reference to, and use of, “International Game Technology ” or “IGT”.

Article V

MISCELLANEOUS

5.1            Entire Agreement; Counterparts; Exchanges by Facsimile. The Transaction Documents and the Confidentiality Agreements and the Mutual Termination Agreement, dated as of the date hereof, by and among Remainco, Merger Partner and DE AGOSTINI S.P.A., a società per azioni organized under the laws of Italy (the “Mutual Termination Agreement”), including the exhibits and schedules thereto shall constitute the entire agreement and shall supersede all prior agreements and understandings, both written and oral, between or among any of the Parties with respect to the subject matter hereof and thereof, including the Existing Agreements. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or electronic transmission shall be sufficient to bind the Parties to the terms and conditions of this Agreement. Notwithstanding anything herein or in any of the other Transaction Documents (including the Mutual Termination Agreement) to the contrary, each of Remainco and Merger Partner acknowledge and agree that, Remainco shall be responsible for 73% and Merger Partner shall be responsible for 27% of any Prior Commitment Letter Fees, if any, as and when they become due and payable.

5.2            Transaction Documents; Precedence of Agreements. Except as expressly set forth in this Agreement, this Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by any of the other Transaction Documents. In furtherance thereof, except as otherwise specifically set forth in this Agreement, the Merger Agreement or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement, and, therefore, Assets or Liabilities related to Taxes and Tax Returns (including any Tax Items, Tax Attributes or rights to receive any Refunds) shall not be treated as Assets or Liabilities under this Agreement. In furtherance thereof, except (i) as otherwise specifically set forth in this Agreement, the Merger Agreement or in the Employee Matters Agreement, the rights and obligations of the Parties with respect to Spinco Employees, Spinco Former Employees and Remainco Employees shall be governed by the Employee Matters Agreement and (ii) as otherwise specifically set forth in this Agreement, the Merger Agreement or the Employee Matters Agreement, the rights and obligations of the Parties with respect to all (A) Benefit Arrangements, (B) compensatory arrangements for service providers, and (C) matters relating to the employment, engagement or termination of any individual, in each case, shall be governed by the Employee Matters Agreements, and, therefore all (1) rights, assets or liabilities related to Benefit Arrangements, (2) rights, assets or liabilities related to compensatory arrangements, and (3) all rights, assets or liabilities related to employment-related matters, in each case, shall not be treated as Assets or Liabilities under this Agreement. In the event and to the extent that there shall be a conflict between (a) this Agreement and the provisions of any of the other Transaction Documents, such Transaction Document shall control (except with respect to any Separation Document, in which case this Agreement shall control) and (b) this Agreement and any agreement which is not a Transaction Document, this Agreement shall control unless specifically stated otherwise in such agreement. The Separation Documents are intended to be ministerial in nature and only to effect the transactions contemplated by this Agreement with respect to the applicable local jurisdiction and shall not expand or modify the rights and obligations of the Parties under any of the Transaction Documents that are not Separation Documents; provided that any right to indemnification or recovery under this Agreement is complementary to any right of indemnification or recovery under any other Transaction Document (it being understood and agreed that if a Transaction Document contains any limitations on types or amount of Losses or Liabilities that are recoverable in respect of the subject matter of such Transaction Document whether by indemnification, Action or otherwise (or provides that the remedies provided under such Transaction Document are the exclusive remedy for the subject matter under such Transaction Document), such limitations and the exclusive remedy provisions shall be applicable and control any and all such claims for indemnification, claims for breach or otherwise made under this Agreement or any of the other Transaction Documents).

5.3            Survival. The covenants and agreements that by their terms apply or are to be performed in whole or in part after the Closing Date pursuant to any of the Transaction Documents shall survive the Closing and remain in effect for the period provided in such covenants and agreements, if any, or if later, until fully performed. The covenants and agreements to be performed at or prior to the Closing shall terminate as of the Closing and after the Closing no claims shall be made or continued against a Party for any breach thereof discovered after the Closing.

5.4            Fees and Expenses. Except as otherwise provided in any of the Transaction Documents other than the Merger Agreement, all fees and expenses shall be borne by the Parties as contemplated by Section 10.3 (Fees and Expenses) of the Merger Agreement.

5.5            Notices. All notices, requests, consents, claims, demands and other communications under any of the Transaction Documents shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by email with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 5.5):

if to Merger Partner (prior to the Closing):

Everi Holdings Inc.

7250 South Tenaya Way, Suite 10

Attention: Randy L. Taylor, President and CEO; Kate Lowenhar-Fisher,

EVP and Chief Legal Officer – General Counsel

Email: legalnotices@everi.com

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

Pillsbury Winthrop Shaw Pittman LLP
11682 El Camino Real
Suite 200
San Diego, CA 92130 USA
Attention: Christian A. Salaman
E-mail: [*]

and

Pillsbury Winthrop Shaw Pittman LLP
725 South Figueroa Street

36^th Floor

Los Angeles, CA 90017
Attention: Drew Simon-Rooke

E-mail:      [*]

if to Remainco or (prior to the Closing) Spinco:

International Game Technology PLC

c/o IGT Global Solutions Corporation

IGT Center

10 Memorial Boulevard

Providence, RI 02903-1125

Attention: General Counsel

Email: legalnotices@igt.com

Ignite Rotate LLC

c/o IGT Global Solutions Corporation

Attention: General Counsel

Email: legalnotices@igt.com

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

Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: Paul Choi, Scott Williams and Brent M. Steele
Email: [*], [*] and [*]

if to Buyer (prior to and after the Closing) or (after the Closing) Merger Partner or Spinco:

Voyager Parent, LLC
c/o Apollo Management X, L.P.

9 West 57th Street, 42nd Floor

New York New York 10019

Attention:		Daniel Cohen, Partner
		James Elworth, General Counsel, Private Equity
Email:		[] []

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

Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019-6064

Attention:		Ross A. Fieldston
		Ian M. Hazlett
Email:		[] []

A copy of any notice from one Party to another Party prior to the Closing shall be provided to all of the other Parties in accordance with the notice procedures set forth in this Section 5.5.

5.6            Waiver. The provisions of this Agreement (including this Section 5.6) were specifically bargained for by the Parties and were taken into account by the Parties in arriving at the terms and conditions of this Agreement and the transactions contemplated in this Agreement. Any term or provision of this Agreement may be waived, or the time for its performance may be extended, in writing at any time signed by the Party or Parties entitled to the benefit thereof. Any such waiver shall be validly and sufficiently authorized for the purposes of this Agreement if, as to a Party, it is authorized in writing by an authorized Representative of such Party. The failure of a Party to enforce at any time any provision of this Agreement shall not be construed to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any part of this Agreement or the right of a Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any preceding or subsequent breach.

5.7            Assignment. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors and permitted assigns; provided that neither this Agreement nor any Party’s rights or obligations under this Agreement may be assigned or delegated by such Party without the prior written consent of the other Parties, except that a Party may assign any of its rights under any of the Transaction Documents: (a) as collateral security to a creditor, (b) to one of its Affiliates (provided that no Party may assign the Merger Agreement pursuant to this clause (b) until after the Closing) or (c)(i) to the acquirer of all or substantially all of the assets of such Party, (ii) in the case of the Transaction Documents other than the Merger Agreement, to the acquirer of any members of such Party’s Group or any lines of business of such Party, or (iii) in connection with any merger or consolidation involving such Party; provided that in each case, no such assignment shall relieve such Party of any of its liabilities or obligations under this Agreement. Any attempted assignment or delegation of this Agreement or any of such rights or obligations by any Party in violation of this Agreement without the prior written consent of the other Parties shall be void and of no effect.

5.8            Termination. This Agreement shall terminate without further action at any time before the Equity Sale Closing Time upon termination of the Merger Agreement. If so terminated, no Party shall have any Liability of any kind to any other Party or any other Person on account of this Agreement, except as provided in the Merger Agreement.

5.9            Amendment. No provision of any of the Transaction Documents may be amended, supplemented or modified except by a written instrument signed by all the parties to such agreement. No consent from any Indemnified Party under Article III (other than the Parties) shall be required in order to amend this Agreement.

5.10          Group Members. Each Party shall cause to be performed, all actions, agreements and obligations set forth in any of the Transaction Documents to be performed by any member of its Group.

5.11          Third-Party-Beneficiaries. Except (a) as provided in Article III relating to Indemnified Parties and for the release under Section 3.1 of any Person provided therein, and (b) as specifically provided in any of the Transaction Documents, this Agreement is solely for the benefit of the Parties and nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the Parties) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

5.12          Exhibits and Schedules. The Exhibits and Schedules shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim in this Agreement. Nothing in the Exhibits or Schedules constitutes an admission of any liability or obligation of any member of the Remainco Group or any member of the Spinco Group or any of their respective Affiliates to any Third Party, nor, with respect to any Third Party, an admission against the interests of any member of the Remainco Group or any member of the Spinco Group or any of their respective Affiliates. The inclusion of any item or liability or category of item or liability on any Exhibit or Schedule is made solely for purposes of allocating potential liabilities among the Parties and shall not be deemed as or construed to be an admission that any such liability exists.

5.13          Governing Laws. This Agreement, and the formation, termination or validity of any part of this Agreement and all Actions (whether based in tort, contract or otherwise) arising out of or relating to the Transaction Documents, the Contemplated Transactions, the formation, breach, termination or validity of the Transaction Documents, the actions of any Party or any of their respective Affiliates in the negotiation, administration, performance or enforcement of the Transaction Documents, shall in all respects be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would result in the application of the Laws of any jurisdiction other than the State of Delaware.

5.14          Submission to Jurisdiction.

(a)            Each Party irrevocably and unconditionally submits for itself and its property in any Action (whether based in tort, contract or otherwise) arising out of or relating to the Transaction Documents, the Contemplated Transactions, the formation, breach, termination or validity of the Transaction Documents, the actions of the Parties or any of their respective Affiliates in the negotiation, administration, performance or enforcement of the Transaction Documents or the recognition and enforcement of any judgment with respect to the Transaction Documents, to the exclusive jurisdiction of the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such Action, the United States District Court for the District of Delaware, or in the event (but only in the event) that such United States District Court also does not have subject matter jurisdiction over such Action, any Delaware State court sitting in New Castle County, and appellate courts having jurisdiction of appeals from any of the foregoing.

(b)            Any such Action may and shall be brought in such courts and the Parties irrevocably and unconditionally waive any objection that it may now or hereafter have to the venue or jurisdiction of any such Action in any such court or that such Action was brought in an inconvenient court and shall not plead or claim the same.

(c)            Service of process in any Action may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Party at its address as provided in Section 5.5.

(d)            Nothing in any of the Transaction Documents shall affect the right to effect service of process in any other manner permitted by the Laws of the State of Delaware.

5.15          Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO the Contemplated Transactions, OR ITS PERFORMANCE UNDER OR THE ENFORCEMENT OF ANY OF THE TRANSACTION DOCUMENTS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THE TRANSACTION DOCUMENTS AND THE CONTEMPLATED TRANSACTIONS, AMONG OTHER THINGS, THE MUTUAL WAIVER IN THIS SECTION 5.15. EACH PARTY AGREES THAT ANY OF THE PARTIES MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY, AND BARGAINED-FOR AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION WHATSOEVER BETWEEN THEM RELATING TO ANY OF THE TRANSACTION DOCUMENTS OR ANY OF THE CONTEMPLATED TRANSACTION.

5.16          Specific Performance. Section 11.14 of the Merger Agreement (Specific Performance) is incorporated by reference to this Agreement and shall apply as if fully set forth in this Agreement, mutatis mutandis.

5.17          Severability. Any term or provision of this Agreement (or part thereof) that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the offending term or provision (or part thereof) in any other situation or in any other jurisdiction. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement (or part thereof) is invalid or unenforceable, each Party agrees that the court making such determination shall have the power to limit such term or provision (or part thereof), to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision (or part thereof), and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, each Party agrees to replace such invalid or unenforceable term or provision (or part thereof) with a valid and enforceable term or provision that shall achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.

5.18          No Double Recovery. Nothing in this Agreement is intended to confer to or impose upon any Party a duplicative recovery with respect to any matter arising out of the same facts and circumstances (including with respect to any recoveries that may arise out of Article III).

5.19          Tax Treatment of Payments. Each Party agrees that any payment made by a Party to another Party pursuant to Schedule 1.20, Section 2.3(j), Section 3.2, or Section 3.3 of this Agreement shall be treated for applicable Tax purposes, to the extent permitted by applicable Law at a “more likely than not” level of confidence, as an adjustment to the Purchase Price.

5.20          Payment Terms.

(a)            Except as set forth in Article II or Article III or as otherwise expressly provided to the contrary in any of the Transaction Documents, any amount to be paid or reimbursed by a Party (or a member of such Party’s Group), on the one hand, to the other Party (or a member of such Party’s Group), on the other hand, under this Agreement shall be paid or reimbursed hereunder within thirty (30) days after presentation of an invoice or a written demand therefor and setting forth, or accompanied by, reasonable documentation or other reasonable explanation supporting such amount.

(b)            Without the written consent of the Party receiving any payment under this Agreement specifying otherwise, all payments to be made by Remainco, Merger Partner (after the Closing), Spinco or Buyer under this Agreement shall be made in U.S. dollars. Except as expressly provided in this Agreement, any amount which is not expressed in U.S. dollars shall be converted into U.S. dollars by using the exchange rate published on Bloomberg at 5:00 p.m. Central Time two (2) days prior to the relevant date or in The Wall Street Journal on such date if not so published on Bloomberg. Except as expressly provided in this Agreement, in the event that any indemnification payment required to be made hereunder or under any Transaction Document may be denominated in a currency other than U.S. dollars, the amount of such payment shall be converted into U.S. Dollars on the date in which notice of the claim is given to the Indemnifying Party.

5.21          Construction. Interpretation of the Transaction Documents (except as specifically provided in any such agreement, in which case such specified rules of construction shall govern with respect to such agreement) shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to Articles, Sections, paragraphs, Exhibits and Schedules are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement or the applicable Transaction Document unless otherwise specified; (c) references to “$” shall mean United States dollars; (d) the word “including” and words of similar import when used in the Transaction Documents shall mean “including without limiting the generality of the foregoing,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) the table of contents, articles, titles and headings contained in the Transaction Documents are for reference purposes only and shall not affect in any way the meaning or interpretation of the Transaction Documents; (g) the Transaction Documents shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted; (h) unless the context otherwise requires, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (i) all terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein; (j) any agreement or instrument defined or referred to in this Agreement or any agreement or instrument that is referred to in this Agreement means such agreement or instrument as from time to time amended, modified or supplemented, including by waiver or consent, and references to all attachments thereto and instruments incorporated therein; (k) any statute or regulation referred to in this Agreement means such statute or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of any statute, includes any rules and regulations promulgated under such statute), and references to any section of any statute or regulation include any successor to such section; (l) all time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the date on which the period commences and including the date on which the period ends and by extending the period to the first succeeding Business Day if the last day of the period is not a Business Day; (m) references to any Person include such Person’s predecessors or successors, whether by merger, consolidation, amalgamation, reorganization or otherwise; (n) references to any Contract (including this Agreement) or organizational document are to the Contract or organizational document as amended, modified, supplemented or replaced from time to time, unless otherwise stated, and (o) in calculations described as “the difference between (x) and (y)”, if (x) is greater than (y), then such difference shall be a positive number, and if (y) is greater than (x), then such difference shall be a negative number.

5.22          Disclosure. Section 6.4 of the Merger Agreement (Disclosure) is incorporated by reference to this Agreement and shall apply as if fully set forth in this Agreement, mutatis mutandis.

5.23            Post-Closing Transfers by Buyer. If, following the Equity Sale Closing Time, Remainco or Buyer transfers, or causes to be transferred, all or substantially all of its assets of to any other Person that is not party to this Agreement, such Person shall be subject to all the obligations and liabilities under this Agreement, including Section 1.17, as if such Person were Remainco or Buyer, as applicable.

[Signature page follows]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

	INTERNATIONAL GAME TECHNOLOGY PLC

	By:	/s/ Vincent L. Sadusky
	Name:	Vincent L. Sadusky
	Title:	Chief Executive Officer

	IGNITE ROTATE LLC

	By:	/s/Massimiliano Chiara
	Name:	Massimiliano Chiara
	Title:	Executive Vice President and Chief Financial Officer

[Signature Page to Separation and Sale Agreement]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.

	EVERI HOLDINGS INC.

	By:	/s/ Randy L. Taylor
	Name:	Randy L. Taylor
	Title:	Chief Executive Officer

[Signature Page to Separation and Sale Agreement]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day and year first above written.


	VOYAGER PARENT, LLC

	By:	/s/ Daniel Cohen
	Name:	Daniel Cohen
	Title:	Vice President, Secretary and Treasurer

[Signature Page to Separation and Sale Agreement]

Exhibit A

CERTAIN DEFINITIONS

For purposes of this Agreement (including this Exhibit A):

“$60 Million Revenue Threshold” shall have the meaning set forth in Section 1.12(a)(i)D.

“Accounting Separation” shall have the meaning set forth in Section 1.15(a)(ii)

“Accrued Income Taxes” means, without duplication, an amount equal to the aggregate amount of any accrued and unpaid income Taxes (including as a result of Section 965 of the Code and any applicable election to defer the payment of Taxes due under Section 965 of the Code) of the members of the Spinco Group for any taxable period that ends on or before the Closing Date; provided that for purposes of computing Accrued Income Taxes, Liability shall (a) be determined on a basis consistent with Past Practice in the jurisdictions where the members of the Spinco Group file Tax Returns, (b) exclude deferred Tax assets and deferred Tax liabilities, (c) take into account any overpayments of Taxes (and any applicable prepayments or estimated payments of income Taxes) for any taxable period, (d) be determined as of the end of the Closing Date, (e) exclude any contingent Taxes or any accruals or reserves established or required to be established under GAAP with respect to contingent or uncertain Tax positions and (f) in the case of income Taxes imposed on a member of the Spinco Group that are payable with respect to a taxable period beginning on or before and ending after the Closing Date, be determined in accordance with Section 1.02(b) of the Tax Matters Agreement.

“Action” means any claim, action, suit, litigation, arbitration or proceeding by or before any Governmental Authority.

“Affiliate” shall have the meaning set forth in the Merger Agreement.

“Agreement” shall have the meaning set forth in the Preamble.

“Applicable Period” shall have the meaning set forth in Section 4.2.

“Asset Transferors” means the Entities transferring Assets or Liabilities to Spinco or Remainco, as the case may be, or a member of their respective Group to consummate the Contemplated Transactions.

“Asset” and “Assets” means all rights, title and ownership interests (including Intellectual Property) in and to all properties, claims, Contracts, businesses or assets (including goodwill), wherever located (including in the possession of vendors or other Third Parties or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible or intangible, whether accrued, contingent or otherwise, in each case, whether or not recorded or reflected on the books and records or financial statements of any Entity.

“Assume” shall have the meaning set forth in Section 1.1(c)(i); and the terms “Assumed” and “Assumption” shall have their correlative meanings.

Exhibit A-1

“Audited Party” shall have the meaning set forth in Section 4.2(b)(i).

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in the City of New York, New York or London, England, are required by Law to be closed.

“Buyer” shall have the meaning set forth in the Preamble.

“Buyer Group” means Buyer and each Entity that is or becomes a Subsidiary of Buyer (which shall (a) include, from and after the Closing, each member of the Merger Partner Group and each member of the Spinco Group, and (b) exclude, prior to the Closing, each member of the Merger Partner Group and each member of the Spinco Group).

“Buyer Group Indemnified Parties” shall have the meaning set forth in Section 3.2.

“Buyer Observers” shall have the meaning set forth in Section 1.15(d).

“Buyer Releasing Parties” shall have the meaning set forth in Section 3.1(a)(ii).

“Buyer Sub” shall have the meaning set forth in the Recitals.

“Cap” shall have the meaning set forth in Section 3.7(e).

“Closing” shall have the meaning set forth in the Merger Agreement.

“Closing Date” shall have the meaning set forth in the Merger Agreement.

“Code” shall have the meaning set forth in the Tax Matters Agreement.

“Confidential Information” means all information and materials (including trade secrets, software programs, Intellectual Property, data files, source code, computer chips, system designs and product designs, whether or not marked as confidential, whether furnished before or after the date hereof, whether oral, written or electronic, and regardless of the manner in which it is furnished, together with any notes, reports, summaries, analyses, compilations, forecasts, studies, interpretations, memoranda or other materials) (a) with respect to Buyer, Merger Partner and Spinco (and members of their respective Groups), that relate to Buyer, Merger Partner, the members of the Buyer Group, the members of the Spinco Group, the Spinco Business, any Spinco Assets or any Spinco Liabilities or that was acquired by Remainco or any member of its Group after the Equity Sale Closing Time pursuant to Article IV or otherwise in accordance with any of the Transaction Documents and (b) with respect to Remainco (and any member of its Group), that relate to the Remainco Group, the Remainco Retained Business, any Remainco Retained Assets or any Remainco Retained Liabilities or that was acquired by Buyer (or any member of the Buyer Group) after the Equity Sale Closing Time pursuant to Article IV or otherwise in accordance with any of the Transaction Documents; except for any information or materials that (i) is or becomes generally available to the public other than as a result of disclosure by another Party, any members of its Group or any of its or their Representatives and (ii) is required or requested by applicable Law, Governmental Order or a Governmental Authority to be disclosed after prior notice has been given to the other Party (to the extent such prior notice is permitted to be given under applicable Law); provided that the disclosing Party, to the extent reasonably requested by the other Party, shall cooperate with such other Party in seeking an appropriate order or other remedy protecting such information from disclosure at the cost and expense of such other Party, (iii) is reasonably necessary to be disclosed in connection with any Action or (iv) was or becomes available to such Party on a non-confidential basis and from a source (other than a Party to this Agreement or any Affiliate or Representative of such Party) that is not bound by a confidentiality agreement with respect to such information. It is understood that, with respect to the confidentiality obligations of the members of the Remainco Group, on the one hand, and the confidentiality obligations of Spinco and the Spinco Group, on the other hand, information or materials known to one Group as a result of the association of such Groups prior to the Equity Sale Closing Time shall be deemed to have been furnished on a confidential basis and that the Group as to which such information pertains shall be deemed to have been the disclosing Party for purposes of this definition, and the Group to which such Information becomes known shall be deemed to be the receiving Party for purposes of this definition.

Exhibit A-2

“Confidentiality Agreements” shall have the meaning set forth in the Merger Agreement.

“Consent” means any approval, consent, ratification, permission, waiver or authorization (including any Governmental Approval).

“Contemplated Transactions” shall have the meaning set forth in the Merger Agreement.

“Contract” means any legally binding written or oral agreement, subcontract, lease, sublease, license, sublicense, indenture, commitment, sales and purchase order, and other legally binding instrument or written arrangement or understanding of any kind.

“Counsel” shall have the meaning set forth in Section 4.7(e).

“Credit Support Instrument” means a letter of credit, guarantee, bank guarantee or surety bond, or indemnity provided in connection with the issuance of any letter of credit, bank guarantee or surety bond.

“Data Migration” shall have the meaning set forth in Section 1.15(b)(ii).

“Delta” shall have the meaning set forth in the Merger Agreement.

“Development Period” shall have the meaning set forth in Section 1.15(b).

“Eligible Insurance Proceeds” shall have the meaning set forth in Section 3.7(d).

“Employee Matters Agreement” means the Employee Matters Agreement, dated as of the date hereof, by and among Remainco, Spinco, Merger Partner and Buyer and attached hereto as Exhibit B.

“Encumbrance” means any lien, pledge, hypothecation, charge, mortgage, deed of trust, easement, encroachment, imperfection of title, title exception, title defect, right of possession, lease, tenancy license, security interest, encumbrance, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

Exhibit A-3

“Entity” means any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm, society or other enterprise, association, organization or entity.

“Environmental Law” shall have the meaning set forth in the Merger Agreement.

“Environmental Permit” shall have the meaning set forth in the Merger Agreement.

“Equity Interests” means, with respect to any Person, (a) any capital stock, voting securities, limited liability company interests, partnership units or other equity of such Person, (b) any security convertible into or exercisable or exchangeable for any security described in clause (a) or (c) any right to acquire any security described in the foregoing clause (a) or clause (b).

“Equity Sale” shall have the meaning set forth in the Section 2.1.

“Equity Sale Closing Time” shall have the meaning set forth in the Merger Agreement.

“Estimated Purchase Price” shall have the meaning set forth in Section 2.3(a).

“Existing Agreements” shall have the meaning set forth in the Merger Agreement.

“Existing Credit Support Instrument Release Deadline” means the date which is three (3) months following the Closing Date.

“Existing Remainco Counsel” shall have the meaning set forth in Section 4.7(a).

“Existing Remainco Credit Support Instrument Release Condition” means, with respect to any Existing Remainco Credit Support Instrument, (a) each applicable member of the Spinco Group has been fully, unconditionally and irrevocably released in writing from all Liabilities related to or arising under such Existing Remainco Credit Support Instrument or (b) such Existing Remainco Credit Support Instrument has been terminated to the extent of such Liabilities or is of no further force or effect.

“Existing Remainco Credit Support Instruments” means the Credit Support Instruments with respect to which any member of the Spinco Group has any Liabilities to the extent relating to any of the Remainco Retained Liabilities, including those identified in the table set forth in Part (B) of Schedule 1.1(c).

“Existing Spinco Credit Support Instrument Release Condition” means, with respect to any Existing Spinco Credit Support Instrument, (a) each applicable member of the Remainco Group has been fully, unconditionally and irrevocably released in writing from all Liabilities relating to or arising under such Existing Spinco Credit Support Instrument or (b) such Existing Spinco Credit Support Instrument has been terminated to the extent of such Liabilities or is of no further force or effect.

Exhibit A-4

“Existing Spinco Credit Support Instruments” means the Credit Support Instruments with respect to which any member of the Remainco Group has any Liabilities to the extent relating to any of the Spinco Liabilities, including those identified in Part (A) Schedule 1.1(c).

“Facilities Separation” shall have the meaning set forth in Section 1.15(a)(vi).

“Final Purchase Price” shall have the meaning set forth in Section 2.3(i).

“Financing” shall have the meaning set forth in the Merger Agreement.

“Former Business” means any Entity, division, business unit or business (in each case, including any assets and liabilities comprising the same) that has been sold, conveyed, assigned, transferred or otherwise disposed of or divested (in whole or in part) to a Person that is not a member of the Spinco Group or the Remainco Group or the operations, activities or production of which has been discontinued, abandoned, completed or otherwise terminated (in whole or in part), in each case, prior to the Equity Sale Closing Time.

“Fraud” means, with respect to a Party, common law fraud of a representation or warranty in the Merger Agreement or any of the other Transaction Documents executed as of the date hereof and any certificate delivered pursuant to Section 7.6, Section 8.6 or Section 9.6 of the Merger Agreement involving an actual and intentional misrepresentation made by such Party with actual knowledge of its falsity and made for the purpose of inducing the other Parties to act, and upon which the other Parties justifiably relies with resulting Losses. Fraud shall not include any claim for equitable fraud, constructive fraud, promissory fraud, unfair dealings fraud, fraud by reckless or negligent misrepresentation or any tort based on negligence or recklessness.

“GAAP” shall have the meaning set forth in the Merger Agreement.

“Gaming Authority” shall have the meaning set forth in the Merger Agreement.

“Gaming Holdco” means International Game Technology, a Nevada corporation.

“Ghostbusters Sublicensing Agreement” means the Ghostbusters Sublicensing Agreement to be entered into by and between US Lottery Opco and US Gaming Opco, substantially in the form attached hereto as Exhibit C.

“Governmental Approval” shall have the meaning set forth in the Merger Agreement.

“Governmental Authority” means any United States or non-United States federal, state or local or any supra-national, political subdivision, governmental, legislative, regulatory or administrative authority, instrumentality, agency, body or commission, self-regulatory authority or any court, tribunal, or judicial or arbitral body, including any Gaming Authority.

“Governmental Order” means any legally binding and enforceable order, writ, judgment, injunction or decree, entered by or with any Governmental Authority.

Exhibit A-5

“Group” means (a) with respect to Remainco, the Remainco Group, (b) with respect to Spinco, the Spinco Group, (c) with respect to Merger Partner, the Merger Partner Group and (d) with respect to Buyer, the Buyer Group.

“GINA” shall have the meaning set forth in the definition of “Remainco Books and Records”.

“Hazardous Materials” has the meaning set forth in the Merger Agreement.

“HR Separation” shall have the meaning set forth in Section 1.15(a)(vii).

“Indebtedness” of any Person means, without duplication, (a) indebtedness for borrowed money or indebtedness issued or incurred in substitution or exchange for indebtedness for borrowed money; (b) indebtedness evidenced by any bond, debenture or note; (c) reimbursement or indemnification obligations with respect to letters of credit, performance bond, surety bonds or other similar instruments, but solely to the extent drawn; (d) net obligations under any interest rate, commodity or currency swap, cap, collar or futures Contract or other interest rate, commodity or currency hedging arrangement, in each case, net of any amounts payable to terminate such arrangement and to convert a net asset position into cash; (e) accrued and unpaid interest; (f) any guaranty by such Person of any indebtedness of any Third Party described in clauses (a) through (e) (without duplication of any such guaranteed indebtedness amounts; (g) Liability for Accrued Income Taxes; (h) finance leases; (i) any earnouts or deferred payments in connection with any acquisitions calculated as the maximum amount payable under or pursuant to such obligation; (j) any declared but unpaid dividends or amounts owed to any members of the Remainco Group or its Affiliates (other than any members of the Spinco Group) to the extent not settled, discharged, offset, paid or repaid or terminated in full as set forth in Section 1.3 of the Agreement. (k) prepayment premiums, penalties, make-whole payments or obligations or other similar costs, fees or expenses incurred in connection with the prepayment, repayment, redemption, payoff, amendment, modification or supplement of the items described in the foregoing clauses (a) through (f).

“Independent Accounting Firm” shall have the meaning set forth in Section 2.3(f).

“Indemnified Party” shall have the meaning set forth in Section 3.4(a).

“Indemnifying Party” shall have the meaning set forth in Section 3.4(a).

“Information” means information, content, and data in written, oral, electronic, computerized, digital or other tangible or intangible media, including (a) books and records, whether accounting, corporate, legal or otherwise; ledgers, studies, reports, surveys, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, and marketing plans; information about customers (including prospects), vendors, partners, and other Third Parties, including names and contact information; employee files and information; technical information relating to the design, operation, testing, test results, development, and manufacture of any Party’s or its Group’s product or facilities (including product or facility specifications and documentation); engineering, design, and manufacturing drawings, diagrams, layouts, maps and illustrations; formulations and material specifications; laboratory studies and benchmark tests; quality assurance policies, procedures and specifications; evaluation and/validation studies; process control and shop-floor control strategies, logic or algorithms; databases; product costs, margins and pricing; product marketing studies and strategies; all other methodologies, procedures, techniques and know-how related to research, engineering, development and manufacturing; information security records (e.g., incident reports, audit logs, etc.); and (b) financial and business information, including earnings reports and forecasts, macro-economic reports and forecasts, cost information (including supplier records and lists), sales and pricing data, business plans, market evaluations, surveys, credit-related information, and other such information as may be needed for reasonable compliance with reporting, disclosure, filing or other requirements, including under applicable securities Laws or regulations of securities exchanges.

Exhibit A-6

“Insurance Policies” means all insurance Contracts of any kind (including claim administration Contracts, but excluding insurance Contracts funding benefits under any benefit plan arrangement), including primary, excess and umbrella policies, commercial general liability policies, fiduciary liability, directors’ and officers’ liability, automobile, property and casualty, workers’ compensation and employee dishonesty insurance policies and bonds (excluding Self-Insurance).

“Insurance Proceeds” means those monies (a) received by an insured from an insurance carrier, (b) paid by an insurance carrier on behalf of the insured or (c) received (including by way of setoff) from any third Person in the nature of insurance, contribution or indemnification with respect to any Liability; in any such case net of any applicable premium adjustments (including reserves and retrospectively-rated premium adjustments) and net of any costs or expenses, including Taxes, incurred in connection with the receipt thereof but excluding proceeds or payments from Self-Insurance.

“Intellectual Property” means collectively, any of the following that may exist or be created or recognized under the Laws of any Governmental Authority: (a) patents and patent applications (including any and all provisionals, divisionals, continuations, continuations-in-part and reissues thereof), (b) trademarks, trade names, trade dress, logos, service marks and domain names (including registrations and applications therefor) and any goodwill associated therewith, and all extensions and renewals of any of the foregoing (“Trademarks”), (c) copyrights, (including registrations and applications therefor), (d) trade secrets, confidential financial information, customer lists and know-how, and (e) other intellectual property and related proprietary rights, interests, and protections (including all rights to sue and recover and retain damages, costs, and attorneys’ fees for past, present, and future infringement and any other rights relating to any of the foregoing). Except for the underlying copyright in Software, Intellectual Property shall not include any Software.

“Intellectual Property License Agreement” means the Intellectual Property License Agreement to be entered into by and between Remainco and Spinco, substantially in the form attached hereto as Exhibit E.

“Intercompany Account Termination Agreement” means the Agreement Regarding Intercompany Accounts and Contracts to be entered into among the Spinco Group, on the one hand, and the Remainco Group, on the other hand, in connection with the Separation, substantially in the form attached hereto as Exhibit F.

Exhibit A-7

“International Game Technology PLC Marks” shall mean all Trademarks consisting of or incorporating the Trademarks disclosed on Schedule 1.1(v).

“IT Assets” means all elements of information technology and systems, including computer systems and servers, telecommunications equipment, internet protocol (IP) addresses, data rights, networks and platforms, peripherals, related technology items and accompanying documentation, reference materials, resource and training materials.

“Jumanji Sublicensing Agreement” means the Jumanji Sublicensing Agreement to be entered into by and between US Lottery Opco and US Gaming Opco, substantially in the form attached hereto as Exhibit G.

“Law” means any United States or non-United States federal, state, local or territorial law, treaty, convention, code, statute, ordinance, directive, rule, regulation, agency requirement, Governmental Order or other requirement or rule of law.

“Legal Separation” shall have the meaning set forth in Section 1.15(a)(iii).

“Liabilities” means any and all debts, liabilities, expenses, commitments or obligations, whether direct or indirect, accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable, disputed or undisputed, joint or several, secured or unsecured, liquidated or unliquidated, whenever (including in the past, present or future) and however arising (including out of any contract or tort based on negligence or strict liability) and whether or not the same would be required by GAAP to be reflected in any financial statements or disclosed in the notes thereto.

“Losses” means any and all losses, costs, charges, settlement payments, awards, judgments, fines, penalties, damages, expenses (including reasonable attorneys’, actuaries’, accountants’ and other professionals’ fees, disbursements and expenses), liabilities, claims or deficiencies of any kind; provided that Losses shall not include indirect, incidental, punitive, exemplary, treble, diminution in value, losses based on any multiple, special or consequential damages (including lost profits), except to the extent actually awarded in connection with a Third-Party Claim.

“M&C Separation” shall have the meaning set forth in Section 1.15(a)(iv).

“Merger” shall have the meaning set forth in the Recitals.

“Merger Agreement” shall have the meaning set forth in the Recitals.

“Merger Effective Time” shall have the meaning set forth in the Merger Agreement.

“Merger Partner” shall have the meaning set forth in the Preamble.

“Merger Partner Board” shall have the meaning set forth in the Merger Agreement.

“Merger Partner Group” means Merger Partner and each Entity that is or becomes a Subsidiary of Merger Partner.

Exhibit A-8

“Merger Partner Protected Person” means any employee of any member of the Merger Partner Group as of the Equity Sale Closing Time who (a) is involved in software development for the Merger Partner Group (not including Spinco Employees), including software architects, developers and engineers, (b) develops games (e.g., game developers, mathematicians, graphic designers and sound designers) for the Merger Partner Group (not including Spinco Employees), (c) who supervises the development of games for the business of the Merger Partner (not including Spinco Employees), (d) provides services under the Transition Services Agreement or (e) is an executive officer of any member of the Merger Partner Group, and in the case of each of clauses (a) through (e) is a person with whom the members of the Remainco Group came into contact with in connection with the evaluation, negotiation, execution or consummation of the Contemplated Transactions prior to the Closing.

“New Debt” means the Indebtedness incurred by the members of the Spinco Group pursuant to the Financing.

“Non-Transferable Asset” shall have the meaning set forth in Section 1.4(a).

“Non-Transferable Liability” shall have the meaning set forth in Section 1.4(a).

“Other Party’s Auditors” shall have the meaning set forth in Section 4.2(b).

“Outstanding Existing Remainco Credit Support Instruments” shall have the meaning set forth in Section 1.10(f).

“Outstanding Existing Spinco Credit Support Instruments” shall have the meaning set forth in Section 1.10(c).

“Party” shall have the respective meanings set forth in the Preamble.

“Past Practice” shall have the meaning set forth in the Tax Matters Agreement.

“Permit” shall have the meaning set forth in the Merger Agreement.

“Person” means any natural person, Entity or Governmental Authority.

“Permits Alternative Arrangements” shall have the meaning set forth in Section 1.6.

“Permitted Business” means (a) the Remainco Retained Business, (b) any business-to-consumer business that provides product, services, applications or solutions directly to natural persons, including with respect to sports betting, gaming machines or digital betting, or (c) any business-to-business/government business that provides products, services, applications or solutions competing with the products, services, applications or solutions of the Spinco Restricted Business to lotteries or Governmental Authorities for or with respect to lotteries, excluding, in each of clauses (a) and (c), the provision of video lottery terminal (VLT) cabinets, games, systems and software or other Spinco Restricted Business products or services to casinos (unless the casino is owned and operated by a lottery or a Governmental Authority for a lottery and such products or services are ancillary to the products or services Remainco provides to such lottery or Governmental Authority).

Exhibit A-9

“Post-Closing Remainco Group Member” shall have the meaning set forth in the Merger Agreement.

“Pre-2024 Buyer Cash Awards” shall have the meaning set forth in the Employee Matters Agreement.

“Pre-Closing Period” shall have the meaning set forth in the Merger Agreement.

“Prepaid Royalty Amount” means, as of the Equity Sale Closing Time, the amount of prepaid royalty payments pursuant to the Sony License Agreement that have been made after the date hereof and prior to the Closing Date reduced for any amortization between January 1, 2025 and the Closing (pro rata based on the number of days between the January 1, 2025 and the Closing and calculated based on amortization of $33,500,000 per annum).

“Prepaid Royalty Adjustment” means, the product of (a) the Prepaid Royalty Amount and (b) ninety-five percent (95%).

“Prior Commitment Letter” means the executed commitment letter, including (a) all exhibits, schedules, annexes, joinders and amendments to such agreements; (b) any associated fee letters, (c) any associated engagement letters and (d) any associated side letters, in each case, by and among Merger Partner (or any other member of the Merger Partner Group, if applicable) or Spinco (or any other member of the Spinco Group, if applicable) and the financing sources party thereto, pursuant to which, among other things, such financing sources had committed to provide Merger Partner (or any other member of the Merger Partner Group, if applicable) or Spinco (or any other member of the Spinco Group, if applicable) with financing in the amount set forth therein (the “Prior Financing”) for purposes of financing the previously contemplated transactions among the Merger Partner Group, the Spinco Group and the Remainco Group which have been terminated concurrently with the execution and delivery of this Agreement.

“Purchase Price” means the amount equal to the sum of (a) Four Billion Fifty Million Dollars ($4,050,000,000) and (b) the Spinco Adjustment Amount.

“Pursue” means the discharge, prosecution, appeal, negotiation, resolution, settlement, compromise or other pursuit or defense of any claims with respect to the Remainco Retained Liabilities or the Spinco Liabilities, as applicable, in whole or in part, including by litigation, arbitration, alternative dispute resolution, negotiation, settlement or compromise.

“R&W Insurance Policy” shall have the meaning set forth in the Merger Agreement.

“Real Estate Matters Agreement” means the Real Estate Matters Agreement, dated as of the date hereof, by and among Remainco, Spinco, Merger Partner and Buyer, and attached hereto as Exhibit H.

“Refund” shall have the meaning set forth in the Tax Matters Agreement.

“Release” shall have the meaning set forth in the Merger Agreement.

“Remainco” shall have the meaning set forth in the Preamble.

“Remainco Accounts” shall have the meaning set forth in Section 1.5(a).

Exhibit A-10

“Remainco Asset Transferee” means any Entity that is or shall be a member of the Remainco Group to which Remainco Retained Assets shall be or have been transferred, directly or indirectly, at or prior to the Equity Sale Closing Time by an Asset Transferor (or which assets are already held by such Entity) in order to consummate the Contemplated Transactions.

“Remainco Backstop Credit Support Instrument” shall have the meaning set forth in Section 1.10(f).

“Remainco Books and Records” means (a) minute books, equity interest records, consents and other similar records of the Remainco Group; (b) books and records relating to the Remainco Retained Assets or the Remainco Retained Liabilities (including any books and records and privileged information relating to any cause of action (including counterclaims) and defenses against Third Parties relating to any Remainco Asset or any Remainco Retained Liability); (c) books and records (including personnel and employment records) that any of the members of Remainco Group is required by Law to retain or prohibited by Law from delivering to Spinco (copies of which shall be made available to Spinco at Spinco’s sole expense upon Spinco’s reasonable request to the extent permitted by Law and solely with respect to the Spinco Business); (d) any financial records (including general ledgers) or Remainco Records; (e) any books and records, reports, internal drafts, opinions, valuations, correspondence or other materials prepared or received by any member of the Remainco Group or its or their respective Representatives irrespective of whether they remain in the possession of a member of the Spinco Group after the Closing Date and whether privileged or non-privileged, in connection with a potential sale of the Spinco Business or the Spinco Group; (f) all confidentiality or non-disclosure agreements with prospective purchasers of the Spinco Business or the Spinco Group or any portion thereof and all bids, letters of intent and expressions of interest received from Third Parties with respect thereto; (g) any consolidated regulatory filings made by Remainco or any of its Affiliates and any related correspondence with Governmental Authorities unless the information contained therein relates primarily to the Spinco Group or the Spinco Business; (h) personnel and employment records for all employees and former employees of any member of the Remainco Group who are not Spinco Employees, and any other email, files, data and information with respect to the employees of Remainco or any of its Affiliates; (i) any medical information regarding any current or former employee, consultant or contractor of Remainco or any of its Affiliates, including any “genetic information” within the meaning of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), any individual’s family medical history (except as otherwise permitted by GINA and the Family and Medical Leave Act), the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, or genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services; (j) copies of any books and records which Remainco reasonably determines are necessary to enable Remainco or any of its Affiliates to prepare or file Tax Returns (with the originals to be transferred to Spinco if such books and records are otherwise Spinco Assets and with each Party’s access to the other Party’s Tax book and records otherwise governed by the Tax Matters Agreement); (k) all privileged materials, documents and records that are not primarily related to the Spinco Business and (l) any information, books or records older than January 1, 2020.

Exhibit A-11

“Remainco Counsel” shall have the meaning set forth in Section 4.7(a).

“Remainco Credit Support Account” shall have the meaning set forth in Section 1.10(f).

“Remainco’s Form 20-F” means Remainco’s Report on Form 20-F for the year ended December 31, 2023.

“Remainco Group” means (a) with respect to any period prior to the Equity Sale Closing Time, Remainco and each of its Subsidiaries (including the members of the Spinco Group) and (b) with respect to any period following the Equity Sale Closing Time, Remainco, each of its Subsidiaries (excluding the members of the Spinco Group) and each other Entity that becomes a Subsidiary of Remainco.

“Remainco Indemnified Parties” have the meaning set forth in Section 3.3 and shall not include the Buyer Group Indemnified Parties.

“Remainco Insurance Policies” means Insurance Policies of any member of the Remainco Group in effect prior to the Equity Sale Closing Time.

“Remainco Protected Person” means any employee of any member of the Remainco Group as of the Equity Sale Closing Time who (a) (i) is involved in software development for the Remainco Group or the Remainco Retained Business, including software architects, developers and engineers, (ii) develops games (e.g., game developers, mathematicians, graphic designers and sound designers) for the Remainco Retained Business or any member of the Remainco Group, or (iii) who supervises the development of games for the Remainco Retained Business or any member of the Remainco Group; (b) provides services under the Transition Services Agreement; or (c) is an executive officer of any member of the Remainco Group.

“Remainco Released Liabilities” shall have the meaning set forth in Section 3.1(a)(i).

“Remainco Released Parties” shall have the meaning set forth in Section 3.1(a)(ii).

“Remainco Releasing Parties” shall have the meaning set forth in Section 3.1(a)(i).

“Remainco Retained Assets” means the following Assets of the members of the Remainco Group as of immediately prior to the Equity Sale Closing Time, excluding, in each case, the Spinco Assets:

(i)            other than Spinco Restricted Cash, all cash, cash equivalents, marketable securities, checks, drafts and deposits, except the Spinco Closing Cash Amount;

(ii)            except for the Spinco Properties, the Spinco Leases, the Spinco Assigned Properties, and the interest of the applicable member of the Spinco Group in any properties that are partially subleased or sublicensed by a member of the Spinco Group from a member of the Remainco Group pursuant to Article V of the Real Estate Matters Agreement, all of the right, title and interest of the members of the Remainco Group in owned and leased real property, including all such right, title and interest under each real property lease pursuant to which any of them leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, including all improvements, fixtures and appurtenances thereto and rights in respect thereof;

Exhibit A-12

(iii)           all rights to any Trademark that is not Spinco Owned Intellectual Property, together with any Contracts granting rights to use the same and any Intellectual Property to the extent incorporating any of the same and any and all goodwill, registrations and applications relating thereto that is not a Spinco Owned Intellectual Property;

(iv)           any Intellectual Property (including Remainco Retained Intellectual Property and Software) that is not Spinco Owned Software and Spinco Owned Intellectual Property, together with any Contracts granting rights to use the same;

(v)            all Software that is not Spinco Owned Software and the Spinco Owned Intellectual Property related thereto;

(vi)           all Contracts (and all rights thereunder) that are not Spinco Contracts, including the Contracts listed on Schedule 1.1(d);

(vii)          the Remainco Insurance Policies and any benefits, proceeds or premium refunds payable or paid thereunder or with respect thereto (it being understood that the members of the Spinco Group have certain contractual rights and limitations as set forth in Section 4.10);

(viii)         any Remainco Books and Records; provided that Spinco shall be entitled to a copy of certain Remainco Books and Records as provided in Section 4.3;

(ix)            all Permits other than the Spinco Permits;

(x)            except for causes of action and defenses primarily relating to the Spinco Business, all causes of action (including counterclaims) and defenses against Third Parties relating to any Remainco Retained Asset or any Remainco Retained Liability;

(xi)           the assets, rights and properties set forth on Schedule 1.1(e);

(xii)          except as set forth in the Transition Services Agreement or primarily related to the Spinco Business, all rights to receive, and all rights with respect to the delivery of, enterprise-wide services of the type provided prior to the date hereof to the Spinco Business by any member of the Remainco Group (other than the members of Spinco Group), including assets used or held for use by members of the Remainco Group in connection with such corporate-level services;

(xiii)          other than Equity Interests of the members of the Spinco Group, any other Equity Interests of any Entity;

(xiv)          other than the Spinco Owned Intellectual Property and the Spinco Owned Software, any assets, properties, rights, Contracts and claims of the members of the Remainco Group that are not Spinco Assets;

Exhibit A-13

(xv)          the bank accounts of the Post-Closing Remainco Group Members;

(xvi)         any and all assets that are expressly contemplated by any of the Transaction Documents as Assets to be retained by, or Transferred to, Remainco or any other member of the Remainco Group; and

(xvii)         except for those Assets expressly identified as Spinco Assets in clauses (i) through (xx) of the definition of “Spinco Assets,” any other assets, properties, rights, Contracts and claims of the members of the Remainco Group or the Remainco Retained Business, including as described on Schedule 1.1(f).

For the avoidance of doubt, the members of the Remainco Group immediately prior to the Equity Sale Closing Time include the members of the Spinco Group.

“Remainco Retained Business” means as conducted and existed at any time prior to or as of the Equity Sale Closing Time, any and all businesses and operations of the Remainco Group other than the Spinco Business, including the Global Lottery business segment of Remainco, which as of December 31, 2023 was described in Remainco’s Form 20-F to include (a) the design, development, manufacturing, sale, leasing, operating, delivery, installation and marketing of lottery (including iLottery) games and products (both physical games and products (including draw-based games (including Keno) and instant ticket games) and digital games and products (including eInstants, eDraw and iKeno games)), solutions and services by the Remainco Group, (b) consulting services provided by the Remainco Group to Persons with respect to lottery products and games, and lottery solutions and services and (c) the design, development and provision of payment products and services and related functionality to customers of the businesses described in clauses (a) and (b).

“Remainco Retained Intellectual Property and Software” means the Intellectual Property and Software that is not Spinco Intellectual Property and is not Spinco Software, including the Intellectual Property set forth on Schedule 1.1(w).

“Remainco Retained Liabilities” means the following Liabilities of the members of the Remainco Group, irrespective of whether the same shall arise prior to, on or following the Equity Sale Closing Time:

(i)            all Liabilities of the Remainco Group to the extent such Liabilities are not Spinco Liabilities, or arise out of the ownership, operation, use or conduct of the Remainco Retained Assets or Remainco Retained Business following the Equity Sale Closing Time;

(ii)            any Indebtedness of the members of the Remainco Group that is outstanding immediately prior to the Equity Sale Closing Time, including Indebtedness between any member of the Remainco Group, on the one hand, and any member of the Spinco Group, on the other hand (other than (A) the New Debt, (B) Spinco Indebtedness to the extent included in the calculation of the Spinco Adjustment Amount, (C) Indebtedness or Liabilities of any member of the Spinco Group that is not considered Spinco Indebtedness because of clauses (i) through (viii) of the definition of Spinco Indebtedness and (D) Indebtedness solely between or among any members of the Spinco Group);

Exhibit A-14

(iii)           (A) all out-of-pocket costs, fees and expenses of the members of the Remainco Group incurred prior to the Equity Sale Closing Time in connection with the negotiation, preparation and execution of the Transaction Documents and the consummation of the Contemplated Transactions or relating to exploring, discussing or negotiating the sale or separation of the Spinco Business or any other portion of the Remainco Retained Business, including all financial advisors’ fees, accountants’ fees, brokers’ fees, attorneys’ fees, investment banker fees and all other fees and expenses of professional service firms, service providers, agents and representatives that have not been paid as of the Equity Sale Closing Time and are payable by any member of the Spinco Group (except, in each case, to the extent expressly provided for in the Transaction Documents) and it being understood that (I) Remainco shall not be responsible for any consent, settlement or similar fees or amounts that Spinco or any of its Affiliates pays to obtain any Consents or Governmental Approvals in connection with the Transfer of any Assets to members of the Spinco Group or the Assumption of any Liabilities by any members of the Spinco Group) and (II) nothing set forth in this subsection (iii)(A) is intended to modify the allocation of risk between the members of the Remainco Group, on the one hand, and Buyer on the other hand, contemplated by the Transaction Documents (B) except for Liabilities under any Contracts entered into in connection with the Financing, any Liabilities under any engagement letters or Contracts entered into by any member of the Remainco Group with any financial advisors prior to the Equity Sale Closing Time in connection with the negotiation, preparation and execution of the Transaction Documents or relating to exploring, discussing or negotiating the sale or separation of the Spinco Business, (C) any change of control, exit, success, sale, retention, transaction or similar bonuses, payments, benefits or compensatory amounts pursuant to any Contract entered into prior to the Closing with any member of the Remainco Group, in each case payable to Spinco Employees solely as a result of the consummation of the Closing and the Merger (whether payable in connection with, at or following the Closing and the Merger), including as set forth on Schedule 1.1(iii)(C), and (D) other than as set forth on Schedule 1.1(iii)(D), any Liabilities relating to or arising out of the Prior Financing or the Prior Commitment Letter or the termination thereof (the “Prior Commitment Letter Fees”); provided that, any Liabilities (including fees, costs and expenses) relating to the Financing shall not be Remainco Retained Liabilities.

(iv)           all Liabilities of the members of the Remainco Group to the extent arising under or related to the ownership, operation or use by any member of the Remainco Group of any Remainco Retained Asset or the Remainco Retained Business, whether at, before or after the Equity Sale Closing Time;

Exhibit A-15

(v)            all Liabilities to the extent relating to, arising out of or resulting from the ownership, conduct or operation of any business (other than the Spinco Business or any Spinco Former Business) of the members of the Remainco Group (including any Former Business of the Remainco Group that is not a Spinco Former Business), whether prior to, at or after the Equity Sale Closing Time (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee (other than any Liabilities relating to claims brought by or on behalf of any Remainco Employee or Former Remainco Employee, in each case to the extent allocated to a Party under Section 1.2 of the Employee Matters Agreement), agent, distributor or representative (whether or not such act or failure to act is or was within such Person’s authority) of the Spinco Group);

(vi)           any Liabilities for any Actions brought under applicable federal or state securities Laws relating to, arising out of or resulting from information regarding Remainco, the Spinco Group and the Spinco Business in the Proxy Statement with respect to any information relating to Remainco, the Spinco Group and the Spinco Business that was provided prior to the Closing by any distributor or Representative of the Remainco Group or the Spinco Group;

(vii)          all Liabilities to the extent relating to, arising out of or resulting from the allocated portion of any Shared Contract in accordance with Section 1.2 or any other Contract that is assigned to a member of the Remainco Group;

(viii)         all Liabilities under any Contracts between Delta, on one hand, and any member of the Remainco Group, on the other hand, other than the Support Agreement; and

(ix)            all other Liabilities of the members of the Remainco Group that are expressly indicated by any of the Transaction Documents as Liabilities to be retained or Assumed by Remainco or any other member of the Remainco Group.

“Representatives” means of a Person means such Person’s Affiliates and the directors, officers, employees, advisors, agents, equityholders consultants, independent accountants, investment bankers, counsel or other representatives of such Person and of such Person’s Affiliates.

“Required Third Party Consents” shall have the meaning set forth in Section 1.2(a).

“Restricted Period” shall have the meaning set forth in Section 1.12(a)(i).

“Rhode Island VLT JV Interest Management Contract” means the Rhode Island VLT JV Interest Management Contract to be entered into by and between US Lottery Opco and US Gaming Opco, substantially in the form attached hereto as Exhibit I.

Exhibit A-16

“Rhode Island VLT System Subcontract” means the Subcontract to be entered into between US Lottery Opco and US Gaming Opco, substantially in the form attached hereto as Exhibit J.

“SC&S Separation” shall have the meaning set forth in Section 1.15(a)(v).

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” shall have the meaning set forth in the Merger Agreement.

“Self-Insurance” means any portion of risk that is not financially transferred to a Third Party unaffiliated insurance company, and shall include deductibles, self-insured retentions, and captive insurance.

“Separation” means the allocation and Transfer of Assets and Assumption of Liabilities, including by means of (a) the Separation Documents and pursuant to the Separation Plan, resulting in (i) the members of the Spinco Group owning and operating the Spinco Business (through their ownership, acceptance and Assumption of the Spinco Assets and the Spinco Liabilities), and (ii) the members of the Remainco Group continuing to own and operate the Remainco Retained Business (through their ownership, acceptance and Assumption of the Remainco Retained Assets and the Remainco Retained Liabilities), in each case, in accordance with the terms of this Agreement, and (b) the Spinco Contribution. For the avoidance of doubt, “Separation” shall refer solely to the completion of the actions set forth on Sections 1.1(b) and 1.1(c) of this Agreement, together with consummation of the Transfer of Assets and Assumption of Liabilities contemplated by the Employee Matters Agreement, the Real Estate Matters Agreement and the Intellectual Property License Agreement in accordance with the terms thereof, and for the avoidance of doubt, does not include the completion of the actions set forth on the Stand-Up Plan.

“Separation Documents” means the Contracts, instruments and other documents entered into to effect the Separation.

“Separation Plan” means the Separation Plan set forth on Exhibit K, as amended, supplemented or modified from time to time. Notwithstanding anything to the contrary contained in any of the Transaction Documents, following the date hereof but prior to the Closing, Remainco shall be permitted to amend the Separation Plan (and the applicable terms of this Agreement and the Separation Documents) with the prior written consent of Buyer, which shall not be unreasonably withheld, conditioned or delayed; provided that such consent shall not be required for any amendment to the Separation Plan that would not adversely affect the members of the Buyer Group, taken as a whole, in any material manner. Remainco shall be permitted to update any Schedules or Exhibits to this Agreement or the Merger Agreement to give effect to any such amendments.

“Shared Contract” means those Contracts (or categories of Contracts, as applicable) identified on Schedule 1.1(h).

“Shared Contracts Alternative Arrangements” shall have the meaning set forth in Section 1.2(b)(ii).

“Software” shall have the meaning set forth in the Merger Agreement.

“Software License and Support Agreement in favor of Remainco Group” means Technology License and Support Agreement (Spinco to Remainco) to be entered into by and between US Lottery Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit L.

Exhibit A-17

“Software License and Support Agreement in favor of the Spinco Group” means the Technology License and Support Agreement (Remainco to Spinco) to be entered into by and between US Lottery Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit M.

“Sony License Agreement” means that certain Exclusive License Agreement #305517, dated June 1, 2023, between Califon Productions, Inc. and US Gaming Opco.

“Spinco” shall have the meaning set forth in the Preamble.

“Spinco Accounts” shall have the meaning set forth in Section 1.5(a).

“Spinco Adjustment Amount” means the amount (which may be a positive or negative number) equal to the sum of:

(i)            the Spinco Closing Net Working Capital;

(ii)            minus the Spinco Target Net Working Capital;

(iii)           plus the Spinco Closing Cash Amount;

(iv)           minus Spinco Minimum Cash Amount;

(v)            minus the amount of the Spinco Closing Indebtedness Amount.

“Spinco Adjustment Consultation Period” shall have the meaning set forth in Section 2.3(e).

“Spinco Adjustment Dispute Notice” shall have the meaning set forth in Section 2.3(d).

“Spinco Adjustment Report” shall have the meaning set forth in Section 2.3(g).

“Spinco Adjustment Review Period” shall have the meaning set forth in Section 2.3(c).

“Spinco Asset Transferee” means any Entity that is or shall be a member of the Spinco Group to which Spinco Assets shall be or have been transferred, directly or indirectly, at or prior to the Equity Sale Closing Time by an Asset Transferor to consummate Contemplated Transactions.

“Spinco Assets” means all right, title and interest of the members of the Remainco Group to and under the following Assets of the Asset Transferors as of immediately prior to the Equity Sale Closing Time, excluding, in each case, the Remainco Retained Assets:

(i)            (A) any Contract to which any member of the Remainco Group is a party that is primarily related to or primarily used in the Spinco Business or set forth on Schedule 1.1(i) (collectively, the “Spinco Contracts”), including the real estate leases and subleases set forth on Schedule 1.1(i) (the “Spinco Leases”), the Spinco Assigned Properties, the interest of the applicable member of the Spinco Group in any properties that are partially subleased or sublicensed by a member of the Spinco Group from a member of the Remainco Group pursuant to Article V of the Real Estate Matters Agreement, including the Spinco Properties, and (B) the portion of any Shared Contracts assigned to Spinco pursuant to Section 1.2, subject to the rights of Remainco and the obligations of the Parties set forth in Section 1.2 and, in each case, any rights or claims arising thereunder;

Exhibit A-18

(ii)            (A) the offices, manufacturing facilities, warehouse facilities and repair facilities and (B) the leases, subleases, licenses or other Contracts governing the leased real property allocated to a member of the Spinco Group pursuant to the Real Estate Matters Agreement, in each case, subject to the terms and conditions of the Real Estate Matters Agreement;

(iii)           all Permits held by any member of the Remainco Group and primarily related to or primarily used in the Spinco Business, including all Environmental Permits (the “Spinco Permits”);

(iv)           all current assets reflected as current assets in the Spinco Closing Net Working Capital;

(v)            any prepaid expenses, credits, deposits and advance payments, in each case, to the extent primarily related to or primarily used in the Spinco Business;

(vi)           all Spinco Owned Intellectual Property;

(vii)          all Software primarily related to or primarily used in the Spinco Business, including that which is set forth on Schedule 1.1(j) (the “Spinco Owned Software”);

(viii)         all Technology used primarily in the Spinco Business, including that which is set forth on Schedule 1.1(k) (the “Spinco Owned Technology”);

(ix)           all tangible and personal property, including inventory, equipment, furniture, tools, laptop computers and mobile phones that is owned by any member of the Remainco Group and primarily related to or primarily used in the Spinco Business;

(x)            (A) all personnel and employment records of the Spinco Employees and Former Spinco Employee, subject to applicable Laws; and (B) all other books and records, whether in hard copy or computer format, including marketing and advertising materials (including marketing strategies, ongoing and past advertising and marketing campaigns, ongoing and past market research) and customer correspondence, that are owned by any member of the Remainco Group and primarily related to or primarily used in the Spinco Business, subject to the terms of Section 4.4;

Exhibit A-19

(xi)            all IT Assets primarily used in the Spinco Business, all IT Assets allocated to the Spinco Business pursuant to any plan developed by Remainco and Spinco for the Systems Separation in accordance with Section 1.15, including the IT Assets listed (or the general categories of which are listed) on Schedule 1.1(x) (collectively, “Spinco IT Assets”);

(xii)           all rights, interests, causes of action, choses in action, rights to proceeds, judgments, recoveries and all similar rights of or owned by any member of the Remainco Group against Third Parties primarily related to any Spinco Asset or the Spinco Business, including all rights and benefits as an insured, interests, causes of action, choses in action, and rights to Insurance Proceeds under the Remainco Insurance Policies primarily related to any Spinco Asset or the Spinco Business to the extent permitted under the applicable Remainco Insurance Policy, and with respect to Insurance Proceeds to the extent neither Spinco nor Merger Partner has recovered the amounts related to the Insurance Proceeds through the Spinco Adjustment Amount (it being understood that the Remainco Group has certain contractual rights and limitations as set forth in Section 4.10), provided that nothing in this clause xii shall be deemed to constitute an assignment of any or all of such Remainco Insurance Policies;

(xiii)          (A) all assets owned by or held for use by an Asset Transferor and primarily used in the Spinco Business; and (B) all goodwill and other intangibles to the extent related to the Spinco Business and Spinco Owned Intellectual Property;

(xiv)          all Spinco Restricted Cash primarily related to the Spinco Business;

(xv)          all Equity Interests of any Entity listed in Schedule 1.1(n) (provided that such Schedule may be updated in accordance with the procedures to amend the Separation Plan as set forth in this Agreement) or otherwise contemplated to be part of Spinco Group pursuant to the Separation Plan;

(xvi)          the Spinco Closing Cash Amount (to the extent taken into account in the determination of the Spinco Closing Cash Amount in the Spinco Final Adjustment Amount pursuant to Section 2.3(j));

(xvii)        all other Assets that are expressly provided by any of the Transaction Documents as Assets which have been or are to be transferred to or retained by any member of the Spinco Group, including all goodwill and other intangibles in connection with such Assets and the Spinco Business;

(xviii)       all Information primarily related to or primarily used in the Spinco Business;

(xix)          Prepaid Royalty Amounts;

(xx)           all assets set forth on Schedule 1.1(y); and

Exhibit A-20

(xxi)          all other Assets (other than any Assets that are listed in clauses (i) through (xx) of this definition of “Spinco Assets”, each of which are subject to the qualifications in this definition of “Spinco Assets”) that are held by any member of the Remainco Group (including any member of the Spinco Group) immediately prior to the Equity Sale Closing Time that primarily relate to or are primarily used in Spinco Business as conducted immediately prior to the Equity Sale Closing Time.

“Spinco Assigned Properties” shall have the meaning set forth in the Real Estate Matters Agreement.

“Spinco Backstop Credit Support Instrument” shall have the meaning set forth in in Section 1.10(c).

“Spinco Business” means, as conducted and existed at any time prior to or as of the Equity Sale Closing Time, (a) the Global Gaming business of the Remainco Group, which entails (i) the design, development, assembly and provision of cabinets, games, systems and software in regulated land-based gaming markets (including amusement with prize (AWP), interactive video terminal (IVT) and video lottery terminal (VLT) cabinets, games, systems and software) by the Remainco Group, (ii) the provision of game content set forth in the foregoing clause (i) for the creation and distribution by the Remainco Group of social casino content to social casino operators and (iii) the design, development and provision of payment products and services and related functionality to customers of the businesses described in clauses (i) and (ii), which Global Gaming business is currently operated through Remainco’s Global Gaming segment and as of December 31, 2023 was as described in Remainco’s Form 20-F and (b) the PlayDigital business of Remainco, which entails (i) the design and distribution of products by the Remainco Group in certain digital gaming markets under the Remainco Group’s PlayCasino brand, (ii) the design, assembly and distribution of sports betting products and the provision of sports betting technology and management services by the Remainco Group in certain sports betting markets under Remainco Group’s PlaySports brands, and (iii) the provision of market-tested proprietary digital content, advanced game aggregation capabilities, scalable promotional tools, analytics and creative talent by the Remainco Group under the Remainco Group’s iSoftBet brands, which PlayDigital business is currently operated through the Remainco Group’s PlayDigital segment and as of December 31, 2023 was as described in Remainco’s Form 20-F. Any of the foregoing notwithstanding, the Spinco Business does not include the Remainco Retained Business.

“Spinco Closing Cash Amount” means, as of immediately prior to the Equity Sale Closing Time, an amount, calculated on a combined basis in accordance with the Spinco Transaction Accounting Principles and after giving effect to the Separation, equal to the sum of (a) all cash, cash equivalents, marketable securities, checks, drafts and deposits (net of any uncleared checks and drafts written or issued) received by Spinco, (b) all cash, cash equivalents, marketable securities, checks, drafts and deposits included within the Spinco Assets and (c) the Prepaid Royalty Adjustment; provided that the effects of the Contemplated Transactions (other than the contribution to, distribution to or other transfer of cash to the members of the Spinco Group pursuant to the Separation) shall be disregarded for purposes of calculating the Spinco Closing Cash Amount; provided, further, that the Spinco Closing Cash Amount shall not include any proceeds of the New Debt or Spinco Restricted Cash.

Exhibit A-21

“Spinco Closing Indebtedness Amount” means, as of immediately prior to the Equity Sale Closing Time, the amount of the Spinco Indebtedness.

“Spinco Closing Net Working Capital” means, as of immediately prior to the Equity Sale Closing Time, without duplication, an amount equal to the difference between (a) the sum of (i) the combined current assets of the Spinco Group and (ii) the combined current assets included in the Spinco Business and (b) the sum of (i) the combined current liabilities of the Spinco Group and (ii) the combined current liabilities included in the Spinco Business, in each case, calculated in accordance with the Spinco Transaction Accounting Principles and after giving effect to the Separation, excluding any Remainco Retained Assets and any Remainco Retained Liabilities and subject to such adjustments as are set forth in Schedule 1.1(l). For illustrative purposes only, Schedule 1.1(l) includes an example calculation of the Spinco Closing Net Working Capital as though the Equity Sale Closing Time occurred on the Spinco Reference Balance Sheet Date. The Spinco Closing Cash Amount, the Spinco Closing Indebtedness Amount and any restricted cash referred to in clauses (c) and (d) of the definition of Spinco Restricted Cash shall not be included in the Spinco Closing Net Working Capital. To the extent the adjustments included in the example calculation of the Spinco Closing Net Working Capital in Schedule 1.1(l) conflicts with the Spinco Transaction Accounting Principles, the Spinco Transaction Accounting Principles shall prevail.

“Spinco Contract” shall have the meaning set forth in the definition of “Spinco Assets”.

“Spinco Contribution” means the contribution of all of the Equity Interests of Gaming Holdco by Remainco to Spinco.

“Spinco Counsel” shall have the meaning set forth in Section 4.7(a).

“Spinco Credit Support Account” shall have the meaning set forth in in Section 1.10(c).

“Spinco Employees” shall have the meaning set forth in the Employee Matters Agreement.

“Spinco Estimated Adjustment Amount” shall have the meaning set forth in Section 2.3(a).

“Spinco Estimated Closing Cash Amount” shall have the meaning set forth in Section 2.3(a).

“Spinco Estimated Closing Indebtedness Amount” shall have the meaning set forth in Section 2.3(a).

“Spinco Estimated Closing Net Working Capital” shall have the meaning set forth in Section 2.3(a).

“Spinco Estimated Closing Statement” shall have the meaning set forth in Section 2.3(a).

“Spinco Excess Amount” shall have the meaning set forth in Section 2.3(j)(i).

“Spinco Final Adjustment Amount” shall have the meaning set forth in Section 2.3(i).

Exhibit A-22

“Spinco Final Closing Cash Amount” shall have the meaning set forth in Section 2.3(i).

“Spinco Final Closing Indebtedness Amount” shall have the meaning set forth in Section 2.3(i).

“Spinco Final Closing Net Working Capital” shall have the meaning set forth in Section 2.3(i).

“Spinco Former Businesses” means (a) any Former Business that, at the time of sale, conveyance, assignment, transfer, disposition, divestiture (in whole or in part) or discontinuation, abandonment, completion or termination of the operations, activities or production thereof, was operated or managed by, or associated with, the Spinco Business as then conducted; and (b) any predecessor business of the Spinco Group (or Remainco on behalf of the Spinco Group).

“Spinco Former Employee” shall have the meaning set forth in the Employee Matters Agreement.

“Spinco Group” means (a) with respect to any period prior to the Equity Sale Closing Time, Spinco and each of its Subsidiaries (but after giving effect to the Separation) and (b) with respect to any period following the Equity Sale Closing Time, Spinco, each of its Subsidiaries and each other Entity that becomes a Subsidiary of Spinco.

“Spinco Indebtedness” means, as of immediately prior to the Closing, the sum of (a) the Indebtedness of the members of the Spinco Group and (b) the Indebtedness included in the Spinco Liabilities as calculated in accordance with the Spinco Transaction Accounting Principles excluding any Remainco Retained Liabilities and after giving effect to the Separation and the release of any guarantees occurring at or substantially simultaneously with the Closing; provided that the Spinco Indebtedness shall not include any of the Indebtedness relating to the Financing. Notwithstanding anything to the contrary contained in this Agreement, the term “Spinco Indebtedness” shall not include (i) trade payables or other amounts reflected in the Spinco Estimated Closing Net Working Capital or the Spinco Final Closing Net Working Capital, (ii) endorsements of negotiable instruments for collection in the ordinary course of business, (iii) obligations with respect to the unpaid portion of any royalty payments arising out of the Sony License Agreement, (iv) obligations relating to any jackpot Liabilities or obligations relating to Credit Support Instruments (including those Liabilities relating to or arising from Existing Spinco Credit Support Instruments), to the extent the related Credit Support Instruments are undrawn, (v) obligations related to any lease that is accounted for as an operating lease in the Spinco Business Financial Statements, (vi) obligations that are guaranteed, endorsed or assumed by, or subject to a contingent obligation of, any of the members of the Remainco Group (to the extent related to a Remainco Retained Liability), (vii) any other obligations which the Spinco Transaction Accounting Principles provide shall not constitute Indebtedness, in each case, calculated in accordance with the Spinco Transaction Accounting Principles and in the same format set forth on Schedule 1.1(l) or (viii) any Liabilities relating to the Financing, including the New Debt.

“Spinco Insurance Policies” shall have the meaning set forth in Section 4.10(b).

“Spinco Initial Post-Closing Statement” shall have the meaning set forth in Section 2.3(b).

Exhibit A-23

“Spinco IT Assets” shall have the meaning set forth in the definition of “Spinco Assets”.

“Spinco Leases” shall have the meaning set forth in the definition of “Spinco Assets”.

“Spinco Liabilities” means all of the following Liabilities of the members of the Spinco Group, in each case, excluding the Remainco Retained Liabilities irrespective of whether the same shall arise prior to, on or following the Equity Sale Closing Time:

(i)            all Liabilities of the members of the Spinco Group to the extent such Liabilities arise out of the ownership, operation, use or conduct of the Spinco Assets or the Spinco Business following the Equity Sale Closing Time;

(ii)            any and all Liabilities to the extent relating to, arising out of or resulting from the ownership, operation, use or conduct of the Spinco Business or the Spinco Assets or any Spinco Former Business, whether prior to, at or after the Equity Sale Closing Time (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee (other than any Liabilities relating to claims brought by or on behalf of any Spinco Employee or Former Spinco Employee, in each case to the extent allocated to a Party under Section 1.2 of the Employee Matters Agreement), agent, distributor or representative (whether or not such act or failure to act is or was within such Person’s authority) of the Spinco Group) or listed on Schedule 1.1(u);

(iii)           all Liabilities to the extent relating to, arising out of or resulting from the Spinco Contracts, whether arising prior to, on or after the Equity Sale Closing Time or the actions or omissions of Spinco or any of its Affiliates;

(iv)           all Liabilities to the extent reflected on the Spinco Reference Balance Sheet;

(v)            all Liabilities to the extent arising out of or resulting from any claim by a Third Party to the extent relating to the ownership, operation or of the Spinco Business, the Spinco Assets or the other Spinco Liabilities;

(vi)           all Liabilities to the extent relating to, arising out of or resulting from the lease, use or occupancy of the Real Property, in each case, whether arising prior to, on or after the Equity Sale Closing Time;

(vii)          all Liabilities to the extent relating to, arising out of or resulting from in any way to the environment or human health and safety, or arising under Environmental Laws in connection with the ownership or operation of the Spinco Business (including the Spinco Assets), whether arising prior to, on or after the Equity Sale Closing Time, including those related to (A) the Release or threatened Release of a Hazardous Material at, on, under or from any real property (including any off-site migration of Hazardous Materials), (B) any non-compliance with or violation of any Environmental Law, or (C) any disposal, transportation or arrangement for transportation or disposal prior to the Equity Sale Closing Time of any Hazardous Material sent to any Third Party property for treatment, storage, recycling, incineration or disposal;

Exhibit A-24

(viii)         all Liabilities to the extent relating to the Spinco Business arising out of or resulting from litigation, arbitration, administrative, workers’ compensation or other Actions, pending or threatened against the Spinco Business, any Former Spinco Business or the Spinco Assets and all performance obligations under any non-financial settlement obligation to the extent relating to the Spinco Business or the Spinco Assets;

(ix)            (A) Indebtedness solely between or among members of the Spinco Group, (B) the Spinco Indebtedness included in the calculation of the Spinco Adjustment Amount and (C) Liabilities relating to the Financing, including the New Debt; provided that, any Liabilities (including fees, costs and expenses) relating to or arising out of the Prior Financing or the Prior Commitment Letter or the termination thereof shall not be Spinco Liabilities, other than as set forth on Schedule 1.1(iii)(D).

(x)            all Liabilities to the extent relating to, arising out of or resulting from the allocated portion of any Shared Contract in accordance with Section 1.2 or any other Contract that is assigned to a member of the Spinco Group; and

(xi)            all other Liabilities of the members of the Spinco Group that are expressly contemplated by any of the Transaction Documents as Liabilities to be retained or Assumed by any member of the Spinco Group.

“Spinco Minimum Cash Amount” means Seventy-five Million Dollars ($75,000,000).

“Spinco Owned Intellectual Property” means the Intellectual Property owned by an Asset Transferor and conveyed and transferred to a member of the Spinco Group as a Spinco Asset pursuant to the Separation by virtue of such Intellectual Property being (a) primarily used in the Spinco Business or (b) identified on Schedule 1.1(m).

“Spinco Owned Software” shall have the meaning set forth in the definition of “Spinco Assets”.

“Spinco Owned Technology” shall have the meaning set forth in the definition of “Spinco Assets”.

“Spinco Permits” shall have the meaning set forth in the definition of “Spinco Assets”.

“Spinco Post-Closing Claims” shall have the meaning set forth in Section 4.10(c).

“Spinco Properties” shall have the meaning set forth in the Real Estate Matters Agreement.

“Spinco Reference Balance Sheet” shall have the meaning set forth in the Merger Agreement.

“Spinco Reference Balance Sheet Date” shall have the meaning set forth in the Merger Agreement.

Exhibit A-25

“Spinco Reference Closing Statement” means the sample calculation of the Spinco Adjustment Amount, and each component thereof, including the Spinco Closing Net Working Capital, the Spinco Closing Cash Amount and the Spinco Closing Indebtedness Amount, in each case, as of the close of business on the Spinco Reference Balance Sheet Date, which is attached as Schedule 1.1(l) for illustrative purposes only.

“Spinco Released Liabilities” shall have the meaning set forth in Section 3.1(a)(ii).

“Spinco Released Parties” shall have the meaning set forth in Section 3.1(a)(i).

“Spinco Restricted Business” means the design, development, assembly, distribution and provision to the types of customers of the Spinco Business (e.g., casinos, online casinos (real money and social) and, with respect to video lottery, Governmental Authorities) of the types of goods and services provided by the Spinco Business.

“Spinco Restricted Cash” means cash and cash equivalents of the members of the Spinco Group that constitute “restricted cash” under GAAP or that otherwise cannot be freely used without violation of Law or breach of Contract, including: (a) any cash held by any member of the Spinco Group to secure or otherwise provide payment for any outstanding letters of credit obligations of any member of the Spinco Group; (b) security deposits of the members of the Spinco Group in respect of obligations of members of the Spinco Group; (c) jackpot restricted cash and (d) cash set aside to fund deferred purchase price and a contingent earnout related to that certain Share Purchase Agreement dated as of April 8, 2022, by and among Remainco, GStar Tech Limited, Darom Holdings Tech Limited, Jeffrey Marc Elalouf, Nir Sarli Elbaz and Jacques David Elalouf.

“Spinco Shortfall Amount” shall have the meaning set forth in Section 2.3(j)(i).

“Spinco Target Net Working Capital” means Four Hundred Sixty Million Dollars ($460,000,000).

“Spinco Transaction Accounting Principles” means the accounting principles, policies, procedures and methodologies, categorizations, asset recognition bases, definitions, practices and techniques set forth on Schedule 1.1(l).

“Spinco Units” shall have the meaning set forth in the Merger Agreement.

“Stand-Up” shall have the meaning set forth in Section 1.15(a).

“Stand-Up Plan” shall have the meaning set forth in Section 1.15(c).

“Subsidiary” of any Person means any corporation, general or limited partnership, joint venture, limited liability company, limited liability partnership or other Person that is a legal entity, trust or estate of which (or in which) at the time of determination (a) the issued and outstanding capital stock or other equity interests having ordinary voting power to elect a majority of the board of directors (or a majority of another body performing similar functions) of such corporation or other Person (irrespective of whether at the time capital stock or other equity interests of any other class or classes of such corporation or other Person shall or might have voting power upon the occurrence of any contingency), (b) more than fifty percent (50%) of the interest in the capital or profits of such partnership, joint venture or limited liability company or (c) more than fifty percent (50%) of the beneficial interest in such trust or estate, is directly or indirectly owned by such Person; provided that (i) each member of the Spinco Group shall be a Subsidiary of Remainco (and not of Buyer) until the Equity Sale Closing Time and a Subsidiary of Buyer (and not of Remainco) from and after the Equity Sale Closing Time and (ii) neither Remainco nor any of the other members of the Remainco Group shall be considered a Subsidiary of Delta.

Exhibit A-26

“Systems Separation” shall have the meaning set forth in Section 1.15(b)(i).

“Tax” or “Taxes” shall have the meaning set forth in the Tax Matters Agreement.

“Tax Attributes” shall have the meaning set forth in the Tax Matters Agreement.

“Tax Benefit” shall have the meaning set forth in the Tax Matters Agreement.

“Tax Item” shall have the meaning set forth in the Tax Matters Agreement.

“Tax Matters Agreement” means the Tax Matters Agreement by and among Remainco, Spinco and Merger Partner, dated as of the date hereof, and attached hereto as Exhibit N.

“Tax Return” shall have the meaning set forth in the Tax Matters Agreement.

“Technology” shall have the meaning set forth in the Merger Agreement.

“Third Party” shall have the meaning set forth in the Merger Agreement.

“Third-Party Claim” shall have the meaning set forth in Section 3.4(a).

“Third-Party Rights” shall have the meaning set forth in Section 1.4(b).

“Trademarks” shall have the meaning set forth in the definition of “Intellectual Property”.

“Transaction Documents” means this Agreement, the Merger Agreement, the Employee Matters Agreement, the Tax Matters Agreement, the Real Estate Matters Agreement, the Intellectual Property License Agreement, any and all Separation Documents, the Ghostbusters Sublicensing Agreement, the Intercompany Account Termination Agreement, the Jumanji Sublicensing Agreement, the Rhode Island VLT JV Interest Management Contract, the Rhode Island VLT System Subcontract, the Software License and Support Agreement in favor of the Remainco Group, the Software License and Support Agreement in favor of the Spinco Group, the Transition Services Agreement, the Vanna White Sublicensing Agreement, the Wheel of Fortune Sublicensing Agreement, the Whitney Houston Sublicensing Agreement, the Support Agreement, or any other agreements to be entered into by and between any member of the Remainco Group, any member of the Spinco Group, any member of the Merger Partner Group or any member of the Buyer Group at or prior to the Closing in connection with effecting the Separation, the Equity Sale or the Merger.

Exhibit A-27

“Transfer” shall have the meaning set forth in Section 1.1(b); and the term “Transferred” shall have its correlative.

“Transition Coordination Group” shall have the meaning set forth in Section 1.15(d).

“Transition Period” shall have the meaning set forth in Section 4.11(a).

“Transition Team Members” shall have the meaning set forth in Section 1.15(d).

“Transition Services Agreement” means the Transition Services Agreement by and between Spinco and US Lottery Opco, in the form attached hereto as Exhibit O.

“Treasury Regulations” means the regulations promulgated under the Code.

“Upfront Cash Award Payment” shall have the meaning set forth in Section 1.19.

“US Gaming Opco” means IGT, a Nevada corporation.

“US Lottery Opco” means IGT Global Solutions Corporation, a Delaware corporation.

“Vanna White Sublicensing Agreement” means the Vanna White Sublicensing Agreement to be entered into by and between US Lottery Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit P.

“Wheel of Fortune Sublicensing Agreement” means the Wheel of Fortune Sublicensing Agreement to be entered into by and between US Lottery Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit Q.

“Whitney Houston Sublicensing Agreement” means the Whitney Houston Sublicensing Agreement to be entered into by and between US Lottery Opco and US Gaming Opco, in substantially the form attached hereto as Exhibit R.

Exhibit A-28

International Game Technology (IGT) 6-KIGT's Gaming and Digital Business and Everi to Be Acquired Simultaneously by Apollo Funds in All-Cash Transaction