Form 8-K - Current report

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): October 30, 2023

CHEWY, INC.

(Exact Name of Registrant as Specified in Its Charter)

Delaware	001-38936	90-1020167
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

7700 West Sunrise Boulevard Plantation, Florida		33322
(Address of Principal Executive Offices)		(Zip Code)

(786) 320-7111

(Registrant’s Telephone Number, Including Area Code)

N/A

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:


☐			Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐			Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐			Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐			Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

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


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Class A Common Stock, par value $0.01 per share	CHWY	New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry into a Material Definitive Agreement

Agreement and Plan of Merger

On October 30, 2023, Chewy, Inc. (“Chewy” or the “Company”) entered into certain transactions (the “Transactions”) with affiliates of BC Partners LLP (“BC Partners”) in order to restructure such affiliates’ ownership interests in the Company concurrently with the closing of a separate transaction entered into by BC Partners involving its existing investment in PetSmart LLC, a Delaware limited liability company. As a result of the Transactions, all of the shares of Class B common stock of the Company (the “Class B Common Stock”) previously held indirectly by Argos Intermediate Holdco I Inc. (“Argos Holdings”), a Delaware corporation controlled by affiliates of BC Partners, are now held indirectly by another entity controlled by affiliates of BC Partners. The Transactions, which were approved by a special committee (the “Special Committee”) comprised of disinterested members of the Board of Directors of the Company (the “Board”) who are independent of BC Partners, did not result in any change in the aggregate amount, voting power or economic value of the shares of capital stock of the Company held or beneficially owned by BC Partners. The Transactions also did not result in any other change in the outstanding capital stock of the Company.

The Transactions were effected pursuant to an Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 30, 2023, by and among the Company, Chewy Kentucky Holding, LLC, a Delaware limited liability company and wholly owned subsidiary of the Company (“Merger Sub”), Buddy Chester Sub Parent Holdco, Inc., a Delaware Corporation (“Buddy Holdco”), and, solely for the purposes of certain articles identified therein, Buddy Chester Sub LLC (“Buddy Chester”), a Delaware limited liability company controlled by affiliates of BC Partners. Capitalized terms used but not defined in this Item 1.01 have the meanings ascribed to them in the Merger Agreement.

The Transactions are intended to qualify as a “reorganization” within the meaning of Section 368(a) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), and the Merger Agreement is intended to constitute a “plan of reorganization” within the meaning of the Code, each for U.S. federal income tax purposes.

The Transactions closed on October 30, 2023 (the “Closing Date”) substantially concurrently with the execution and delivery of the Merger Agreement (the “Closing”). Upon the terms and conditions described in the Merger Agreement, on the Closing Date, Buddy Holdco was merged with and into Merger Sub, with Merger Sub surviving the merger as a wholly owned subsidiary of the Company (the “Merger”). Immediately following the Merger, affiliates of BC Partners held the same number of shares of Class B Common Stock as of immediately prior to the Merger.

At the time of the Merger, Buddy Holdco held the equity interests of Chewy Pharmacy KY, LLC, a Delaware limited liability company, which became an indirect wholly owned subsidiary of the Company as a result of the Merger. At the Closing, Buddy Holdco also paid to the Company an amount of cash to cover (i) certain obligations following the Closing to pay taxes of Buddy Holdco or its predecessors, as filed, that were inherited by the Company as a result of the Merger, and (ii) transaction expenses of the Company incurred in connection with the Merger and the Transactions. In the event that such taxes payable (a) exceed the amount of cash paid by Buddy Holdco with respect to such taxes, Buddy Chester will pay to the Company any additional amount needed to pay such taxes, or (b) are lower than the amount of cash paid by Buddy Holdco with respect to such taxes, the Company will pay such difference to Buddy Chester, in each case when the relevant tax returns are filed.

The Special Committee formed by the Board to consider the Transactions was fully empowered to, among other things, review and evaluate the Transactions and any alternatives to the Transactions, hire and receive advice from independent advisors, negotiate the Merger Agreement and other definitive agreements in connection therewith and recommend actions to the Board with respect to the Transactions. The delegation to the Special Committee provided that the Board would not approve the Transactions without the prior favorable recommendation of the Special Committee. The Special Committee retained independent financial, legal, tax and accounting advisors to assist the Special Committee in its mandate. LionTree Advisors LLC and Cleary Gottlieb Steen & Hamilton LLP acted as financial advisor and legal counsel, respectively, to the Special Committee.

Following receipt of a unanimous approval and recommendation of the Special Committee, the Board (i) determined that the Transactions and the related agreements are advisable and fair to, and in the best interests of, the Company and its shareholders (other than Buddy Chester and its affiliates), and (ii) approved the execution, delivery and performance of the Merger Agreement and the related agreements and the consummation of the Transactions.

The Merger Agreement requires Buddy Chester to, on the terms and subject to the conditions set forth in the Merger Agreement, indemnify the Company for (i) certain tax liabilities (if any), including those attributable to Buddy Holdco or its subsidiaries for pre-Closing periods, any breaches of or inaccuracies in any representation or warranties in the Merger Agreement by Buddy Holdco, or the Merger or certain pre-Closing restructuring transactions (collectively, the “Specified Tax Liabilities”), and (ii) certain contingent liabilities (if any), including those arising prior to the Closing in respect of Buddy Holdco or its subsidiaries, or attributable to any breach by Buddy Holdco or Buddy Chester of the representations and warranties in the Merger Agreement other than those related to the Specified Tax Liabilities (collectively, the “Indemnified Contingent Liabilities”). At Closing, Buddy Chester caused to be placed into escrow a number of Class B Common Stock to secure Buddy Chester’s potential indemnification obligations (if any) under the Merger Agreement, subject to certain adjustments. In addition to the escrow arrangement, Buddy Chester is required to retain and keep available a number of shares of Class B Common Stock following the Closing, in connection with Buddy Chester’s potential indemnification obligations (if any) under the Merger Agreement.

The Merger Agreement contains customary representations and warranties made by the Company, Merger Sub, Buddy Holdco and Buddy Chester, including representations and warranties concerning organization, capitalization and ownership interests, subsidiaries, authorizations and consents, litigation and compliance with laws and tax matters, among other representations and warranties. The Merger Agreement contains additional customary covenants made by the Company, Merger Sub, Buddy Holdco and Buddy Chester.

The foregoing summary descriptions of the Merger Agreement and the Transactions do not purport to be complete and are subject to and qualified in their entirety by reference to the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and the terms of which are incorporated herein by reference. The representations and warranties of the parties contained in the Merger Agreement (i) have been made solely for the benefit of the parties to the Merger Agreement, (ii) have been made only for purposes of the Merger Agreement, (iii) have been qualified by confidential disclosures made to BC Partners in connection with the Merger Agreement, (iv) are subject to materiality qualifications contained in the Merger Agreement, which may differ from what may be viewed as material by investors, (v) were made only as of the date of the Merger Agreement or such other date as is specified in the Merger Agreement and (vi) have been included in the Merger Agreement for the purpose of allocating risk among the parties to the Merger Agreement rather than establishing matters as facts.

Amended and Restated Investor Rights Agreement

Contemporaneously with the execution and delivery of the Merger Agreement, the Company and the BC Partners-affiliated stockholders named therein (the “BCP Stockholder Parties”) entered into an Amended and Restated Investor Rights Agreement (the “A&R Investor Rights Agreement”), which amends and restates in its entirety that certain Investor Rights Agreement, dated as of June 13, 2019, by and among the Company and the stockholders identified therein (the “Investor Rights Agreement”). As outlined below, the A&R Investor Rights Agreement contains changes to the governing arrangements between BC Partners and the Company.

Director Nomination Rights

The A&R Investor Rights Agreement accelerates the schedule by which the number of nominees for the Board selected by the BCP Stockholder Parties will be reduced as the ownership of Class A common stock of the Company (the “Class A Common Stock”) and Class B Common Stock (collectively with the Class A Common Stock, the “Common Stock”) by such stockholders decreases, to more closely align such nomination rights with the economic ownership of such stockholders. Following the date that such stockholders no longer hold an aggregate of over 50% of the outstanding shares of Common Stock, the number of directors that the stockholders have the right to select decreases as follows, based on the total shares of Common Stock beneficially owned by such stockholders as a percentage of the aggregate outstanding shares of Common Stock:

●

6 directors, if such ownership is less than or equal to 50% but at least 40%;

●

5 directors, if such ownership is less than 40% but at least 30%;

●

4 directors, if such ownership is less than 30% but at least 20%;

●

3 directors, if such ownership is less than 20% but at least 10%;

●

2 directors, if such ownership is less than 10% but at least 5%; and

●

0 directors, if such ownership is less than 5%.

Standstill

The A&R Investor Rights Agreement provides that for so long as the BCP Stockholder Parties collectively beneficially own at least 20% of the total voting power of the outstanding shares of Common Stock, such stockholders and their controlled affiliates are subject to customary standstill commitments, including that such persons are prohibited from acquiring shares of Class A Common Stock (or securities convertible into or exchangeable for, or the value of which is determined with reference to, such shares) (other than acquisitions of less than 1% of the total voting power of the outstanding Common Stock (so long as such acquisition would not result in the BC Stockholder Parties beneficially owning in excess of 82% of the outstanding number of voting securities of the Company)), making proposals concerning acquisitions of such securities, or entering into any discussions or negotiations related to the foregoing or otherwise forming or joining a “group” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended), in each case, without the prior written consent and approval of an independent and disinterested committee of the Board.

Change of Control Transactions

The A&R Investor Rights Agreement provides that for so long as the BCP Stockholder Parties collectively beneficially own at least 50% of the total voting power of the outstanding shares of Common Stock, such stockholders and their controlled affiliates shall not, without the prior written consent of an independent and disinterested committee of the Board, offer, seek or propose, or enter into any agreement with respect to certain change of control transactions (including take-private transactions) unless such transaction is approved by an independent and disinterested committee of the Board and a majority of the holders of shares of Class A Common Stock not affiliated with such stockholders and their affiliates.

Additionally and for so long as the BCP Stockholder Parties collectively beneficially own at least 50% of the total voting power of the outstanding shares of Common Stock, such stockholders and their controlled affiliates shall not, without the prior written consent of an independent and disinterested committee of the Board, receive any consideration for such stockholders’ or their controlled affiliates’ shares of Class B Common Stock with respect to certain change of control transactions unless such transactions provide for equal treatment for the Class A Common Stock and Class B Common Stock, including the same per share consideration (in type and amount), and equal right to participate for all holders of Class A Common Stock and Class B Common Stock based on their pro rata ownership of the Common Stock (and with respect to the Class B Common Stock, on an as-converted basis into Class A Common Stock).

Transfer Restrictions

The A&R Investor Rights Agreement provides that the BCP Stockholder Parties will not transfer (i) more than one-third of the total shares of Common Stock held as of the Closing prior to the date that is six months following the Closing, or (ii) more than two-thirds of the total shares of Common Stock held as of the Closing prior to the date that is 12 months following the Closing.

Class B Common Stock Conversion

The A&R Investor Rights Agreement also provides for the gradual elimination of the Company’s dual class share structure. The BCP Stockholder Parties are required to convert the shares of Class B Common Stock held by such stockholders into shares of Class A Common Stock over a five year period following the Closing Date as follows:

●

on the 1st anniversary of the Closing, any shares of Class B Common Stock held in excess of 85% of the total outstanding shares of Class B Common Stock on the Closing Date will be converted;

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on the 2nd anniversary of the Closing, any shares of Class B Common Stock held in excess of 70% of the total outstanding shares of Class B Common Stock on the Closing Date will be converted;

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on the 3rd anniversary of the Closing, any shares of Class B Common Stock held in excess of 50% of the total outstanding shares of Class B Common Stock on the Closing Date will be converted;

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on the 4th anniversary of the Closing, any shares of Class B Common Stock held in excess of 30% of the total outstanding shares of Class B Common Stock on the Closing Date will be converted; and

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on the 5th anniversary of the Closing, any remaining shares of Class B Common Stock held will be converted.

The foregoing summary descriptions of the A&R Investor Rights Agreement do not purport to be complete and are subject to and qualified in their entirety by reference to the A&R Investor Rights Agreement, a copy of which is attached hereto as Exhibit 10.1 and the terms of which are incorporated herein by reference.

Recommendation of the Special Committee and Reasons for the Transactions

As described above, following its review of the Transactions and alternatives thereto, the Special Committee unanimously (i) determined that the Merger, the Merger Agreement, the A&R Investor Rights Agreement and the transactions contemplated thereby are advisable and fair to, and in the best interests of, the Company and its stockholders (other than Buddy Chester and its affiliates) and (ii) recommended that the Merger be approved by the Board and the Merger Agreement and the A&R Investor Rights Agreement be approved and adopted by the Board.

In reaching its determination and recommendation, the Special Committee considered a number of benefits that the Transactions provide for the Company and its stockholders (other than Buddy Chester and its affiliates). These include, among other factors, the following (not necessarily in the order of relative importance):

●

that the Transactions establish a timeline for elimination of the Company’s dual class structure and an acceleration of the transition to a board of majority independent directors;

●

that affiliates of BC Partners would commit, for so long as they collectively beneficially own at least 50% of the total voting power of the outstanding shares of Common Stock, to share the “control premium” in any change of control transaction involving the Company with the Company’s other stockholders; and

●

that affiliates of BC Partners would agree to certain “standstill” and transfer restrictions for the benefit of Chewy and its other stockholders.

In reaching its determination and recommendation, the Special Committee also considered a variety of risks and potential negative factors, particularly that, as a result of the Transactions, Chewy would succeed to tax and other contingent liabilities of Buddy Holdco. In this regard, the Special Committee also considered the specific protections under the Merger Agreement that were negotiated to offset or hold Chewy harmless from such liabilities, including: (i) the cash that would be delivered to Chewy to satisfy known tax liabilities and transaction expenses; (ii) in the event that such taxes payable exceed the amount of cash paid by Buddy Holdco to Chewy, Buddy Chester is required to pay to Chewy any additional amount needed to pay such taxes when the relevant tax returns are filed; and (iii) the indemnification and escrow provisions described above and further outlined in the Merger Agreement.

After taking into account all of the factors set forth above, the Special Committee concluded that the potential benefits to the Company and its stockholders (other than Buddy Chester and its affiliates) as a result of the Transactions outweigh the potentially negative factors associated therewith. The foregoing discussion of the information and factors considered by the Special Committee is not meant to be exhaustive but includes the material factors considered by the Special Committee. In view of the factors considered and their complexity, the Special Committee did not find it practicable to and did not attempt to quantify or assign any relative or specific weight to the various factors. Rather, the Special Committee based its recommendation on the totality of the information presented to and considered by it, including the discussions with, and questioning of, senior management of the Company and representatives of its financial, legal, accounting and tax advisors.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.


Exhibit No.		Description
2.1		Agreement and Plan of Merger, dated as of October 30, 2023, by and among Chewy, Inc., Chewy Kentucky Holding, LLC, Buddy Chester Sub Parent Holdco, Inc. and, solely for the purposes of certain articles identified therein, Buddy Chester Sub LLC.*
10.1		Amended and Restated Investor Rights Agreement, dated as of October 30, 2023, by and among Chewy, Inc. and certain holders identified therein.
104		The cover page from this Current Report on Form 8-K, formatted in Inline XBRL.

*Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally to the SEC a copy of any omitted schedule upon request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

		CHEWY, INC.

Date: October 30, 2023	By:	/s/ Elliot Basner
		Elliot Basner
		Interim General Counsel and Secretary

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

CHEWY, INC.,

CHEWY KENTUCKY HOLDING, LLC,

BUDDY CHESTER SUB PARENT HOLDCO, INC.

and

solely for the purposes of ‎Article II, ‎Article III, ‎Article IV, ‎Article VI, ‎Article VII and
‎Article VIII, Buddy Chester Sub LLC

Dated as of October 30, 2023

TABLE OF CONTENTS

Page

Article I DEFINITIONS AND CONSTRUCTION	3
Section 1.1 Certain Definitions	3
Section 1.2 Terms Generally	14
Article II THE MERGER	15
Section 2.1 The Merger	15
Section 2.2 Organizational Documents	16
Section 2.3 Effective Time	16
Section 2.4 Closing	16
Section 2.5 Directors and Officers of the Surviving Company	16
Section 2.6 Effect on Common Stock	16
Section 2.7 Closing Deliveries	17
Section 2.8 Further Assurances	18
Section 2.9 Withholding	18
Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY	19
Section 3.1 Organization; Standing and Power	19
Section 3.2 Capitalization	19
Section 3.3 Subsidiaries	20
Section 3.4 Authorization	20
Section 3.5 Consents and Approvals; No Violations	21
Section 3.6 Litigation	22
Section 3.7 Compliance with Applicable Laws	22
Section 3.8 Tax Matters	22
Section 3.9 No Undisclosed Liabilities	24
Section 3.10 Ownership in Parent	24
Section 3.11 Brokers and Other Advisors	24
Section 3.12 Operations of the Company	25
Section 3.13 Investigation by the Company; Limitation on Warranties	25
Article IV REPRESENTATIONS AND WARRANTIES OF COMPANY PARENT	25
Section 4.1 Organization; Standing and Power	25
Section 4.2 Authorization	25
Section 4.3 Ownership in Company	26
Section 4.4 Consents and Approvals; No Violations	26
Section 4.5 Investment Decision	27
Section 4.6 Litigation	27
Section 4.7 Brokers and Other Advisors	27
Section 4.8 Available Cash	27

Article V REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB	27
Section 5.1 Organization; Standing and Power	27
Section 5.2 Capitalization	28
Section 5.3 Authorization	29
Section 5.4 Consents and Approvals; No Violations	30
Section 5.5 Litigation	31
Section 5.6 Compliance with Applicable Laws	31
Section 5.7 Tax Matters	31
Section 5.8 Brokers and Other Advisors	32
Section 5.9 Opinion of Financial Advisor	32
Section 5.10 Investigation by Parent; Limitation on Warranties	32
Section 5.11 Ownership of Company Common Stock; Anti-takeover	32
Section 5.12 Operations of Merger Sub	32
Section 5.13 Section 16 Matters	32
Article VI COVENANTS	33
Section 6.1 Tax Matters	33
Section 6.2 Public Announcements	35
Section 6.3 Expenses	36
Section 6.4 Defense of Litigation	36
Section 6.5 Obligations of Merger Sub	36
Section 6.6 Waiver of Conflicts Regarding Representation	36
Section 6.7 Tax Matters Agreement	38
Section 6.8 Deferred Intercompany Gain Tax	38
Section 6.9 Intercompany Balances	38
Article VII INDEMNIFICATION	39
Section 7.1 Indemnification by Company Parent	38
Section 7.2 Survival and Notice of Claims	42
Section 7.3 Remedies	43
Section 7.4 Third Party Claims	43
Section 7.5 Tax Contests	44
Section 7.6 Indemnification Information Rights	45
Article VIII MISCELLANEOUS	45
Section 8.1 Effectiveness of Representations, Warranties and Agreements	45
Section 8.2 Notices	45
Section 8.3 Entire Agreement; No Third-Party Beneficiaries	47
Section 8.4 Assignment	47
Section 8.5 Amendment and Supplements	47
Section 8.6 Headings	47
Section 8.7 Waiver	47

Section 8.8 Counterparts	47
Section 8.9 Applicable Law	47
Section 8.10 Jurisdiction	48
Section 8.11 Waiver of Jury Trial	48
Section 8.12 Joint Participation in Drafting this Agreement	48
Section 8.13 Enforcement of this Agreement	49
Section 8.14 Limited Liability	49
Section 8.15 Severability	49
Section 8.16 Incorporation of Exhibits	49
Section 8.17 No Joint Venture	49
Section 8.18 No Recourse	50

iii

Exhibit A – Form of Merger Certificate

Exhibit B – Form of Surviving Company Certificate of Formation

Exhibit C – Form of Limited Liability Company Agreement

Exhibit D – Reorganization Deck

Schedule A – Retained Shares

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of October 30, 2023, by and among Chewy, Inc., a Delaware corporation (“Parent”), Chewy Kentucky Holding, LLC, a single member Delaware limited liability company and wholly owned subsidiary of Parent (“Merger Sub”), Buddy Chester Sub Parent Holdco, Inc., a Delaware corporation (the “Company”), and, solely for the purposes of ‎Article II, ‎Article III, ‎Article IV, ‎Article VI, ‎Article VII and ‎Article VIII, Buddy Chester Sub LLC, a Delaware limited liability company (“Company Parent”) (each of Parent, Merger Sub, the Company and (to the extent applicable) Company Parent, a “Party” and, collectively, the “Parties”).

RECITALS

WHEREAS, the Parties intend that the Company shall merge with and into Merger Sub (the “Merger”), on the terms and subject to the conditions of this Agreement and in accordance with Section 264(a) of the General Corporation Law of the State of Delaware (“DGCL”) and Section 18-209(b) of the Delaware Limited Liability Company Act (the “LLC Act”), with Merger Sub surviving the Merger as the Surviving Company;

WHEREAS, Company Parent has undertaken the Pre-Closing Reorganization in connection with the Bobcat Transaction;

WHEREAS, contemporaneously with the execution and delivery of this Agreement, Parent, Company Parent and certain other parties named therein will enter into the Amended and Restated Investor Rights Agreement;

WHEREAS, contemporaneously with the execution and delivery of this Agreement, Parent will enter into the MTA Termination Agreement and Pharmacy Letter Agreement, in each case, with the parties respectively named therein, which agreements shall take effect upon the Closing;

WHEREAS, Company Parent is the direct holder of 100% of the Company Common Stock;

WHEREAS, the Company owns 311,188,356 shares of Parent Class B Common Stock, representing all of the outstanding shares of Parent Class B Common Stock;

WHEREAS, the Board of Directors of Parent (the “Parent Board”) has established a special committee thereof consisting only of independent and disinterested directors (the “Special Committee”) to, among other things, consider and negotiate the Transaction Documents, and the transactions contemplated hereby and thereby;

WHEREAS, the Special Committee has unanimously (i) determined that the Transaction Documents and the transactions contemplated hereby and thereby, are advisable and fair to, and in the best interests of, Parent and the Parent Stockholders (other than the Company, Company Parent and their Affiliates) and (ii) resolved to recommend that the Parent Board approve and declare advisable the Transaction Documents and the transactions contemplated hereby and thereby;

WHEREAS, the Parent Board, upon the unanimous approval and recommendation of the Special Committee, has (i) determined that the Transaction Documents and the transactions contemplated hereby and thereby are advisable and fair to, and in the best interests of, Parent and the Parent Stockholders (other than the Company, Company Parent and their Affiliates), and (ii) approved and declared advisable the Transaction Documents and the transactions contemplated hereby and thereby;

WHEREAS, the Company Board has unanimously (i) determined that the Transaction Documents and the transactions contemplated hereby and thereby are advisable and fair to, and in the best interests of, the Company and Company Parent, (ii) approved and declared advisable the Transaction Documents and the transactions contemplated hereby and thereby, (iii) directed that this Agreement be submitted to Company Parent for adoption, and (iv) resolved to recommend that Company Parent approve and adopt this Agreement;

WHEREAS, immediately following the execution of this Agreement, Company Parent is delivering a written consent constituting the Company Parent Approval;

WHEREAS, the sole member of Merger Sub has (i) determined that this Agreement and the transactions contemplated hereby are advisable and fair to, and in the best interests of, Merger Sub and its sole member, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby and (iii) taken all action as is necessary or advisable to cause Merger Sub to authorize the Merger in accordance with Merger Sub’s governing documents and Section 18-209(b) of the LLC Act;

WHEREAS, Argos Holdings GP, LLC, in its capacity as general partner of Company Parent, has (i) determined that this Agreement and the transactions contemplated hereby are advisable and fair to, and in the best interests of, Company Parent and (ii) approved and declared advisable this Agreement and the transactions contemplated hereby; and

WHEREAS, for U.S. federal income tax purposes, it is intended that (a) the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”) (the “Intended Tax Treatment”), and (b) this Agreement will constitute a “plan of reorganization” within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations.

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto agree as follows:

Article I

DEFINITIONS AND CONSTRUCTION

Section 1.1 Certain Definitions. As used in this Agreement, the following terms will have the following meanings unless the context otherwise requires:

“15 Day VWAP” means the volume weighted average price of Parent Class A Common Stock for the fifteen trading days immediately prior to the date of measurement, as obtained from Bloomberg L.P. using the “Bloomberg definition” for calculation of “all day VWAP.”

“Accrued Taxes” means the amount equal to (without duplication) (A) an amount needed to pay the Bobcat Transaction Tax Amount, plus (B) any accrued and unpaid Taxes of the Company and its Subsidiaries for any Pre-Closing Tax Period (or portion thereof) minus (C) any Tax asset (before giving effect to the Merger) that is currently available to offset any such Tax liability with respect to the Pre-Closing Tax Period (including any refund or receivable with respect to any Tax of the Company and its Subsidiaries for any Pre-Closing Tax Period (or any credit in lieu thereof), net operating losses, any overpayments of Tax or estimated Tax) with respect to any Pre-Closing Tax Period. In determining the amount of the Accrued Taxes, such amount shall: (I) except as otherwise provided in this definition, be calculated in accordance with the past custom and practices of the Company and its Subsidiaries in preparing their income Tax Returns (including reporting positions, jurisdictions, elections, and accounting and valuation methods), (II) exclude any Taxes that result from an action taken, or election made, by Parent or any of its Affiliates (including the Company or any of its Subsidiaries) after the Closing that is outside of the ordinary course of business, (III) exclude any contingent Taxes or liabilities for accruals or reserves established or required to be established under GAAP methodologies with respect to contingent Taxes or with respect to uncertain Tax positions, and (IV) exclude all deferred Tax liabilities and assets established or required to be established.

“Action” means any claim, audit, action, suit, proceeding, arbitration, mediation or investigation by or before any Governmental Authority or otherwise.

“Affiliate” means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person. For purposes of this Agreement, (a) unless otherwise specified, (i) prior to the Effective Time, neither Parent nor any of its Subsidiaries will be deemed to be Affiliates of the Company or any of the Company’s Affiliates (including Company Parent) under the foregoing definition, and vice versa and (ii) from and after the Closing, neither Parent nor any of its Subsidiaries will be deemed to be Affiliates of Company Parent or any of Company Parent’s Affiliates or any of the Company’s Affiliates (other than, after the Effective Time, the Company and its Subsidiaries) under the foregoing definition, and vice versa and (b) no portfolio companies that are affiliated with Affiliates of the Company or Company Parent, which portfolio companies may otherwise be deemed to be “under common control with” Company Parent, the Company or Parent, including Bobcat and its Subsidiaries, will be deemed to be Affiliates of Company Parent, the Company or Parent.

“Agreement” has the meaning specified in the preamble.

“Amended and Restated Investor Rights Agreement” means the Amended and Restated Investor Rights Agreement, dated as of the date hereof, by and among Parent and the other persons set forth on the signature pages thereto.

“beneficial owner”, “beneficial ownership”, “beneficially owns” and “owns beneficially” have the meaning given such terms in Rule 13d-3 under the Exchange Act and a Person’s beneficial ownership of capital stock or other equity security which is then entitled to vote generally in the election of directors shall be calculated in accordance with the provisions of such Rule; provided, however, that, for purposes of determining beneficial ownership, a Person shall be deemed to be the beneficial owner of any Equity which may be acquired by such Person (disregarding any legal impediments to such beneficial ownership), whether within sixty (60) days or thereafter, upon the conversion, exchange or exercise of any warrants, options, rights or other securities issued by a Person.

“Bobcat” means Argos Holdings LLC.

“Bobcat Transaction” means the “Closing,” as defined in the Bobcat Transaction Agreement.

“Bobcat Transaction Agreement” means the Agreement and Plan of Merger, dated as of July 24, 2023, by and among Bobcat, Benji Acquireco, Inc., Benji Buyer Merger Sub LLC, and Argos Intermediate Holdco III LLC.

“Bobcat Transaction Tax Amount” means $1,815,948,461.44.

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

“Cashed Out Contingent Liability Losses Shares” has the meaning specified in ‎Section 7.1(e)(ii).

“Cashed Out Contingent Liability Losses Shares Value” means the aggregate amount of any cash deposited into the Escrow Account in respect of Cashed Out Contingent Liability Losses Shares.

“Cashed Out Specified Tax Losses Shares” has the meaning specified in ‎Section 7.1(e)(ii).

“Cashed Out Specified Tax Losses Shares Value” means the aggregate amount of any cash deposited into the Escrow Account in respect of Cashed Out Specified Tax Losses Shares

“Chewy Pharmacy” means Chewy Pharmacy KY, LLC.

“Cleary” means Cleary Gottlieb Steen & Hamilton LLP.

“Closing” has the meaning specified in ‎Section 2.4.

“Closing Cash Balance” means $1,937,093,765.13.

“Closing Date” has the meaning specified in ‎Section 2.4.

“Code” has the meaning specified in the recitals.

“Collective Agreements” means the Governance Instruments and the Transaction Documents.

“Company” has the meaning specified in the preamble.

“Company Board” means the board of directors of the Company.

“Company Bylaws” means the Bylaws of the Company, as in effect on the date hereof.

“Company Charter” means the Certificate of Incorporation of the Company, as in effect on the date hereof.

“Company Common Stock” means the common stock, par value $0.01 per share, of the Company.

“Company Disclosure Letter” means the disclosure letter delivered by the Company to Parent concurrently with the execution of this Agreement.

“Company Owned Parent Shares” has the meaning specified in ‎Section 3.10(a).

“Company Parent” has the meaning specified in the preamble.

“Company Parent Approval” means the approval and adoption of this Agreement by Company Parent as sole stockholder of the Company.

“Company Parent Bank Account” has the meaning specified in ‎Section 4.8.

“Company Parent Disclosure Letter” means the disclosure letter delivered by Company Parent to Parent concurrently with the execution of this Agreement.

“Company Parent Owned Shares” has the meaning specified in ‎Section 4.3(a).

“Company Reorganization Tax Opinion” means the opinion of Company Tax Counsel, subject to customary assumptions and limitations, to the effect that the Intended Tax Treatment will apply to the Merger.

“Company Reorganization Tax Opinion Representation Letter” means the representation letter executed by the Company, and dated and effective as of the date hereof, delivered to Company Tax Counsel as a condition to, and in connection with, the issuance of the Company Reorganization Tax Opinion.

“Company Subsidiaries” has the meaning specified in ‎Section 3.3(a).

“Company Tax Counsel” means Kirkland & Ellis.

“Contingent Liabilities Losses Period” has the meaning specified in ‎Section 7.2(a).

“Contingent Liability Loss” means, to the extent incurred by Parent or any of its Subsidiaries, losses, Liabilities, obligations, assessments, awards, fines, penalties, claims, costs, damages and expenses, in each case to the extent arising out of, resulting from or incurred in connection with the Indemnified Contingent Liabilities.

“Contingent Liability Losses Shares” means a number of shares of Parent Class B Common Stock, rounded to the nearest whole share, as of any measurement time, equal to (a) (i) $50,000,000 minus (ii) the Transferred Contingent Liability Losses Shares Value minus (iii) the Cashed Out Contingent Liability Losses Shares Value divided by (b) the greater of the (x) 15 Day VWAP and (y) $13.00.

“Contingent Liability Losses Retained Shares Amount” means, as of any Escrow Measurement Date, a number of shares of Parent Class B Common Stock equal to (1) (a) (i) $50,000,000 minus (ii) the Transferred Contingent Liability Losses Shares Value minus (iii) the Cashed Out Contingent Liability Losses Shares Value divided by (b) $13.00 minus (2) the number of shares of Parent Class B Common Stock held as Escrow Shares in respect of Contingent Liability Losses as of such Escrow Measurement Date.

“Contract” means any legally binding written or oral binding contract, agreement, instrument, commitment or undertaking (including leases, licenses, mortgages, indentures, insurance policies, notes, guarantees, sublicenses, subcontracts and purchase orders).

“control” (including the terms “controlled,” “controlled by” and “under common control with”) means the possession, directly or indirectly or as trustee or executor, including through one or more intermediaries, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of securities or partnership or other ownership interests, as trustee or executor, by contract or credit arrangement or otherwise.

“Controlling Company” has the meaning specified in ‎Section 7.5(b)(i).

“Convertible Securities” means, with respect to any Person, (a) any securities that are convertible into or exercisable or exchangeable for any shares of any class or series of equity securities of such Person, whether upon conversion, exercise, or exchange, pursuant to antidilution provisions of such securities or otherwise (other than, for purposes of this Agreement, the Parent Class B Common Stock), and (b) any subscriptions, options, rights, warrants or calls (or any similar securities) or agreements or arrangements of any character, in each case to acquire equity securities of such Person.

“COVID-19 Deferred Taxes” means any payroll, social security, unemployment or other similar Taxes of the Company or its Subsidiaries attributable to payments, events or transactions occurring prior to the Closing Date that have been deferred until after the Closing Date pursuant to any Pandemic Response Law and which remain unpaid as of the Closing Date.

“COVID-19 Pandemic” means the SARS-Cov2 or COVID-19 pandemic, including any future resurgence or evolutions or mutations thereof.

“Deferred Intercompany Gain Tax” shall mean the federal and state income Tax payable if the deferred intercompany gain attributable to a distribution of certain Parent Equity to Buddy Holdings Corp. is not excluded from income, which amount is the Deferred Intercompany Gain Tax Amount.

“Deferred Intercompany Gain Tax Amount” means $59,713,297.

“Delaware Courts” has the meaning specified in ‎Section 8.10.

“DGCL” has the meaning specified in the recitals.

“Disposal Costs” means the reasonable, documented, out-of-pocket costs and expenses (including reasonable underwriters’ discount or similar cost) of Parent to obtain cash (from disposition of Contingent Liability Losses Shares, Specified Tax Losses Shares and/or Retained Shares, as applicable) as necessary to pay any amounts owed in respect of Indemnifiable Losses; provided, that any discount or other costs and expenses incurred by Parent in connection with engaging an underwriter, broker-dealer or similar intermediary in connection with the sale of Parent Class A Common Stock (whether to the public or otherwise) shall only be deemed reasonable to the extent such underwriter, broker-dealer or similar intermediary is approved by Company Parent; provided, further, that such approval shall not be unreasonably withheld, conditioned or delayed.

“Effective Time” has the meaning specified in ‎Section 2.3.

“Encumbrance” means any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, charge, title retention device, restriction, covenant, title defect, assignment, adverse claim, restriction, license, encumbrance, option, right of first refusal or first offer, preemptive right, security interest or restriction of any kind or 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, use, exercise or transfer of any other attribute of ownership of any asset, but other than restrictions under applicable securities Laws).

“Equity” means any and all shares of capital stock of the applicable Person and Convertible Securities of such Person.

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

“Escrow Agent” means the Escrow Agent as defined in the Escrow Agreement.

“Escrow Agreement” means the escrow agreement entered into on the date hereof, for the escrow of the Escrow Shares pursuant to the terms of this Agreement.

“Escrow Measurement Date” has the meaning set forth in ‎Section 7.1(e)(i).

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

“Exchange Act” means the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder.

“Existing Investor Rights Agreement” means the Investor Rights Agreement, dated as of June 13, 2019, by and among Parent and the other persons set forth on the signature pages thereto.

“GAAP” means United States generally accepted accounting principles.

“Governance Instruments” means the Company Charter, Company Bylaws, Parent Charter, Parent Bylaws and Existing Investor Rights Agreement.

“Governmental Authority” means any supranational, national, federal, state, county, local or municipal government, or other political subdivision thereof, or any court, tribunal or arbitral body and any entity exercising executive, legislative, judicial, regulatory, taxing, administrative, prosecutorial or arbitral functions of or pertaining to government, domestic or foreign; provided, that, such term shall not include any stock exchange or listing company unless otherwise provided.

“Group” has the meaning ascribed to such term in Section 13(d)(3) of the Exchange Act.

“Indemnifiable Losses” means the Specified Tax Losses and the Contingent Liability Losses.

“Indemnified Contingent Liabilities” means (a) any Liabilities arising (i) prior to the Closing in respect of the Company and its Subsidiaries, (ii) at or prior to the Closing in respect of the Bobcat Transaction and (iii) to the fullest extent permitted by applicable Law, at any time in respect of any Action brought by a Third Party against Parent, the Special Committee or any of the members of the Special Committee arising out of this Agreement, the Transaction Documents, or any of the transactions and matters contemplated hereby or thereby, including the Pre-Closing Reorganization (including any out-of-pocket, reasonable and documented costs, fees and expenses (including reasonable and documented legal fees and expenses)), (b) the matters set forth in Section 1.1(a) of the Company Disclosure Letter and (c) any Liabilities (other than Taxes) attributable to any breach by Company Parent or the Company of any representation, warranty or covenant hereunder; provided that, for the avoidance of doubt, Indemnified Contingent Liabilities shall not include any Taxes that constitute Specified Tax Losses or are included in the calculation of Accrued Taxes.

“Intended Tax Treatment” has the meaning specified in the recitals.

“Intercompany Balances” has the meaning set forth in ‎Section 6.9.

“Kirkland & Ellis” means Kirkland & Ellis LLP.

“Law” means all international, foreign, federal, state, provincial, local or municipal laws, statutes, ordinances, codes, regulations, rules, common law or other similar requirements enacted, adopted, promulgated or applied by any Governmental Authority, and all Orders.

“Letter of Transmittal” means a letter of transmittal in an agreed form delivered by Company Parent to Parent prior to the Effective Time.

“Liabilities” means debts, liabilities, commitments and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, known or unknown, asserted or unasserted, liquidated or unliquidated, where arising in the past, present or future, and including those arising under any Law, Action or Order and those arising under any Contract.

“LionTree” means LionTree LLC.

“LLC Act” has the meaning specified in the recitals.

“Loss Tax Benefit” has the meaning specified in ‎Section 7.1(c)(i).

“Merger” has the meaning specified in the recitals.

“Merger Certificate” means the certificate of merger with respect to the Merger containing the provisions required by, and executed in accordance with, Section 264 of the DGCL and Section 18-209(b) of the LLC Act (and as authorized by Merger Sub in accordance with Merger Sub’s governing documents and Section 264 of the DGCL and Section 18-209(b) of the LLC Act), the form of which is attached hereto as Exhibit A.

“Merger Consideration” has the meaning specified in ‎Section 2.6(a)(i).

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

“Morris Nichols” means Morris, Nichols, Arsht & Tunnell LLP.

“MTA Termination Agreement” means the Termination Agreement, dated as of the date hereof, by and between Parent and PetSmart LLC.

“Non-Controlling Company” has the meaning specified in ‎Section 7.5(b)(ii).

“NYSE” means the New York Stock Exchange.

“Order” means any judgment, decision, determination, ruling, stipulation, restriction, order, writ, award, preliminary or permanent injunction or decree of any Governmental Authority.

“Pandemic Response Laws” means the CARES Act (Pub. L. 116-136 (2020)) and any similar Law providing for the deferral of Taxes in response to the COVID-19 Pandemic and associated economic downturn.

“Parent” has the meaning specified in the preamble.

“Parent Board” has the meaning specified in the recitals.

“Parent Bylaws” means the Bylaws of Parent, as in effect on the date hereof.

“Parent Charter” means the Amended and Restated Certificate of Incorporation of Parent, effective as of June 18, 2019, as in effect on the date hereof.

“Parent Class A Common Stock” means the Class A common stock, par value $0.01 per share, of Parent.

“Parent Class B Common Stock” means the Class B common stock, par value $0.01 per share, of Parent.

“Parent Common Stock” means shares of Parent Class A Common Stock and Parent Class B Common Stock.

“Parent Disclosure Letter” means the disclosure letter delivered by Parent to the Company concurrently with the execution of this Agreement.

“Parent Equity Awards” means the Parent Stock Options and the Parent RSUs.

“Parent Preferred Stock” means the preferred stock, par value $0.01 per share, of Parent.

“Parent Reorganization Tax Opinion Representation Letter” means the representation letter executed by Parent, and dated and effective as of the date hereof, delivered to Company Tax Counsel as a condition to, and in connection with, the issuance of the Company Reorganization Tax Opinion.

“Parent RSUs” means restricted stock units, whether time-based or performance-based, with respect to shares of Parent Common Stock.

“Parent Stock Option” means a stock option to purchase shares of Parent Common Stock.

“Parent Stockholder” means a holder of Parent Common Stock.

“Parties” has the meaning specified in the preamble.

“Party” has the meaning specified in the preamble.

“Permitted Encumbrances” means: (a) statutory Encumbrances for current Taxes or other payments that are not yet due and payable, (b) Encumbrances for Taxes being contested in good faith and by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (c) Encumbrances in favor of vendors, mechanics, carriers, workmen, warehousemen, repairmen, materialmen or similar Encumbrances arising under applicable Law in the ordinary course of business, which would not materially impair the use, operation or value of the asset subject thereto, (d) valid non-exclusive licenses to intellectual property in the ordinary course of business consistent with past practice, (e) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or similar programs mandated by applicable Law, (f) with respect to any licensed or leased asset or property, the rights of any lessor, lessee, licensor or licensee under the applicable lease or license in effect as of the date of this Agreement, (g) defects, imperfections or irregularities in title, easements, covenants, restrictions and rights of way and other similar Encumbrances, or other liens of record, zoning, building and other similar codes and restrictions, with respect to real property, in each case, that do not adversely affect in any material respect the current use of the applicable property owned, leased, used or held for use, (h) with respect to any securities, any transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities Law or restrictions under organizational documents of the issuer of such securities and (i) Encumbrances set forth in any Collective Agreement.

“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivisions thereof or any Group comprised of two (2) or more of the foregoing.

“Pharmacy Letter Agreement” means the Pharmacy Letter Agreement, dated as of the date hereof, by and between Parent, Chewy Pharmacy and PetSmart LLC.

“Post-Closing Representation” has the meaning specified in ‎Section 6.6(a).

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

“Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date and for any Straddle Period the portion of such Straddle Period up to and including the Closing Date.

“Privileged Information” shall mean any and all Protected Information regardless of whether shared with, by, or among any Represented Person or their respective Affiliates (or any of their respective Representatives), that was created prior to the Closing and would ordinarily be protected by the attorney-client privilege or similar protections (including attorney work-product protections), as to which the Company, prior to the Closing, had any rights whatsoever, either by itself or in conjunction with another Person.

“Protected Information” shall mean any and all (i) documents, information, or other materials (including analyses, memoranda, spreadsheets and drafts of any of the foregoing) whether written (in physical form or electronic media) or oral (including any written notes derived therefrom) created prior to Closing by or for the benefit of any Represented Persons and/or any of their respective Affiliates or Representatives, and (ii) communications prior to Closing, whether written (in physical form or electronic media) or oral (including any written notes derived therefrom) that occur with, between or among any of the following: any Represented Persons, any of their respective Affiliates or any of their respective Representatives (including, for the avoidance of doubt, strictly internal communications), in the case of each of clause (i) or (ii), to the extent actually (or reasonably deemed to be) in the possession or control of the Company on or prior to the Closing, including any of the foregoing relating to this Agreement, the Transaction Documents or any of the transactions and matters contemplated hereby or thereby (including the Pre-Closing Reorganization). Notwithstanding anything to the contrary, for purposes of this definition, Bobcat and its Subsidiaries shall be deemed to be Affiliates of Company, Company Parent and their Affiliates.

“Reorganization Deck” means the “Project Bobcat Proposed Transaction Steps Deck”, dated October 27, 2023, by Kirkland & Ellis and attached hereto as Exhibit D.

“Representatives” means, with respect to any Person, its financial advisors, legal counsel, financing sources, accountants, insurers or other advisors, agents or representatives, including its officers and directors.

“Represented Persons” has the meaning specified in ‎Section 6.6(a).

“Retained Shares” has the meaning set forth in ‎Section 7.1(e)(i).

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933, and the rules and regulations promulgated thereunder.

“Seller Earn-Out” means “Earnout Payment Agreement” as defined in the Bobcat Transaction Agreement.

“Senior Management” means, (a) with respect to Parent, Stacy Bowman, and (b) with respect to the Company, Michael Chang and Mathieu Bigand.

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator or, if such rate is unavailable, such other rate as may be selected in Parent’s reasonable discretion.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“Special Committee” has the meaning specified in the recitals.

“Specified Tax Loss” means, without duplication, to the extent incurred by Parent or any of its Subsidiaries, (a) any Taxes (i) of the Company or its Subsidiaries for any Pre-Closing Tax Period; (ii) attributable to any breach by the Company or its Subsidiaries of any representation or covenant hereunder; (iii) attributable to the Pre-Closing Reorganization or the Merger; and (iv) that are COVID-19 Deferred Taxes, except, in each case of the forgoing clauses (i) through (iv), (A) to the extent such Taxes are attributable to (1) the pre-Closing operations or activities of Parent or any of its Subsidiaries (before giving effect to the Merger); (2) any breach by Parent or any of its Subsidiaries (after giving effect to the Merger) of any representation or covenant hereunder; (3) any action or transaction outside of the ordinary course of business taken by Parent or any of its Subsidiaries (after giving effect to the Merger) (i) on the Closing Date after the Closing or (ii) to the extent such action or transaction is inconsistent with the Intended Tax Treatment, or (4) any election made after the Closing that has a retroactive effect to any Pre-Closing Tax Period or (B) any Taxes included in the calculation of Accrued Taxes and (b) costs or expenses associated with amending, modifying, or otherwise preparing tax returns in the event that the transactions contemplated by this Agreement are treated as a reverse acquisition within the meaning of Treasury Regulations section 1.1502-75(d)(3). For the avoidance of doubt, the establishment or changes in any liabilities for accruals or reserves established or required to be established under GAAP methodologies that do not result in an actual cash payment with respect to contingent Taxes or with respect to uncertain Tax positions shall not constitute a Specified Tax Loss.

“Specified Tax Losses Period” has the meaning specified in ‎Section 7.2(a).

“Specified Tax Losses Shares” means a number of shares of Parent Common Stock, rounded to the nearest whole share, as of any measurement time, equal to (a)(i) $196,000,000 minus (ii) the Transferred Specified Tax Losses Shares Value minus (iii) the Cashed Out Specified Tax Losses Shares Value divided by (b) the greater of the (x) 15 Day VWAP and (y) $13.00.

“Specified Tax Losses Retained Shares Amount” means, as of any Escrow Measurement Date, a number of shares of Parent Common Stock equal to (1) (a) (i) $196,000,000 minus (ii) the Transferred Specified Tax Losses Shares Value minus (iii) the Cashed Out Specified Tax Losses Shares Value divided by (b) $13.00 minus (2) the number of shares of Parent Common Stock held as Escrow Shares in respect of Specified Tax Losses as of such Escrow Measurement Date.

“Straddle Period” means any taxable period beginning on or prior to and ending after the Closing Date.

“Subsidiary” means, with respect to any Person, any corporation, general or limited partnership, limited liability company, joint venture or other entity (a) that is consolidated with such Person for purposes of financial reporting under GAAP or (b) in which such Person (i) owns, directly or indirectly, more than fifty percent (50%) of the voting power represented by the outstanding voting securities or more than fifty percent (50%) of the equity securities, profits interest or capital interest, (ii) is entitled to elect at least one-half of the board of directors or similar governing body or (iii) in the case of a limited partnership or limited liability company, is a general partner or managing member and has the power to direct the policies, management and affairs of such entity, respectively; provided, that, for purposes of this Agreement, unless otherwise specified, subject to ‎Section 1.2(b), neither Parent nor any of its Subsidiaries will be deemed to be a Subsidiary of the Company or a Subsidiary of any of the Company’s Subsidiaries, whether or not they otherwise would be a Subsidiary of the Company or any of the Company’s Subsidiaries under the foregoing definition.

“Surviving Company” has the meaning specified in ‎Section 2.1(a).

“Tax” or “Taxes” means (a) any and all federal, state, local and non-U.S. taxes and other assessments, governmental charges, duties, fees, levies and Liabilities in the nature of a tax, including taxes based upon or measured by gross receipts, income, profits, sales, use, occupation, value added, ad valorem, transfer, conveyance, license, registration, social security, stamp, taxes based upon or measured by capital stock, capital gains, franchise, withholding, payroll, recapture, employment, excise and property taxes and (b) all interest, fines, penalties and additions imposed with respect to such amounts in clause (a).

“Tax Authority” means, with respect to any Tax, the governmental entity or political subdivision thereof that imposes such Tax and the agency (if any) charged with the collection of such Tax for such entity or subdivision.

“Tax Contest” means an audit, assessment, review, examination, or any other administrative or judicial proceeding with the purpose or effect of determining or assessing Taxes.

“Tax Cost” has the meaning specified in ‎Section 7.1(c)(ii).

“Tax Matters Agreement” means the Tax Matters Agreement by and between Argos Intermediate Holdco I Inc., Bobcat and Parent, dated as of June 13, 2019.

“Tax Receivable Agreement” means the “Tax Receivable Agreement” as defined in the Bobcat Transaction Agreement.

“Tax Return” means a report, return, certificate, form or similar statement or document, including any amendment thereof or any attachment thereto, filed with or required to be filed with a Governmental Authority in connection with the determination, assessment or collection of any Tax, including an information return, claim for refund, amended return or declaration of estimated Tax.

“Third Party” means any Person, including as defined in Section 13(d) of the Exchange Act, other than the Company, Parent, Company Parent or any of their respective Affiliates.

“TMA Termination Letter Agreement” means the Termination of Tax Matters Agreement letter, dated as of the date hereof, by and between Argos Intermediate Holdco I Inc., Parent and PetSmart LLC.

“Transaction Documents” means this Agreement, the MTA Termination Agreement, the Pharmacy Letter Agreement, the Amended and Restated Investor Rights Agreement and the TMA Termination Letter Agreement.

“Transaction Expense Amount” means $1,877,380,468.13.

“Transferred Contingent Liability Losses Shares Value” means, as of any measurement time, (i) the amount of cash transferred to Parent pursuant to ‎Section 7.1(e)(iii) in respect of Contingent Liability Losses plus (ii) the aggregate value of Parent Class A Common Stock transferred to Parent pursuant to ‎Section 7.1(e)(iii) in respect of Contingent Liability Losses, which value is measured, for the avoidance of doubt, as set forth in ‎Section 7.1(e)(iii).

“Transferred Specified Tax Losses Shares Value” means, as of any measurement time, (i) the amount of cash transferred to Parent pursuant to ‎Section 7.1(e)(iii) in respect of Specified Tax Losses plus the aggregate value of Parent Class A Common Stock transferred to Parent pursuant to ‎Section 7.1(e)(iii) in respect of Specified Tax Losses, which value is measured, for the avoidance of doubt, as set forth in ‎Section 7.1(e)(iii).

“Treasury Regulations” means the regulations promulgated under the Code in effect on the date hereof and the corresponding sections of any regulations subsequently issued that amend or supersede such regulations.

“Voting Company Debt” has the meaning specified in ‎Section 3.2(c).

“Voting Parent Debt” has the meaning specified in ‎Section 5.2(c).

Section 1.2 Terms Generally.

(a) The definitions in ‎Section 1.1 will apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” will be deemed to be followed by the phrase “without limitation”. The term “ordinary course of business” shall mean “ordinary course of business consistent with past practice.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “herein”, “hereof” and “hereunder” and words of similar import refer to this Agreement (including the Exhibits and Schedules) in its entirety and not to any part hereof unless the context otherwise requires. As used herein, the term “to the knowledge of the Company” or “the Company is aware” or any similar term relating to the Company’s knowledge or awareness means the actual knowledge of any of the Senior Management of the Company, and the term “to the knowledge of Parent” or “Parent is aware” any similar term relating to Parent’s knowledge or awareness means the actual knowledge of any of the Senior Management of Parent. All references herein to Articles, Sections, Exhibits and Schedules will be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context otherwise requires. Unless the context otherwise requires, any references to any Law are to such Law as amended and supplemented from time to time (and includes any successor provisions). Any reference in this Agreement to a “day” or “number of days” (without the explicit qualification of “business”) will be interpreted as a reference to a calendar day or number of calendar days, as the case may be. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice will be deferred until, or may be taken or given on, the next Business Day. As used herein, and unless the context otherwise requires, the phrase “made available” and words of similar import mean that the relevant documents, instruments or materials were (A) (x) with respect to information to be made available to Parent, posted and made available to Parent on the Company due diligence data site or otherwise delivered to or made available to Cleary, and (y) with respect to information to be made available to the Company, posted or made available to the Company on the Parent due diligence data site or delivered to or made available to Kirkland & Ellis, as applicable, in each case, at least two (2) Business Days prior to the date hereof (other than as to those materials which are required to be delivered on the date hereof) or (B) filed or furnished to the SEC (and publicly available) at least one (1) Business Day prior to the date hereof.

(b) References to “the Company” in the phrase “the Company and its Subsidiaries, taken as a whole”, including for the purposes of ‎Article III, will be deemed to include the Company’s equity interest in Parent through the Company’s ownership of shares of Parent Common Stock and the related value to the Company thereof.

(c) For the avoidance of doubt, the phrase “Parent and its Subsidiaries” will be deemed to include Merger Sub prior to the Effective Time and, following the Effective Time, the Surviving Company.

Article II

THE MERGER

Section 2.1 The Merger.

(a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, the LLC Act, the authorization of the Merger by Merger Sub in accordance with Merger Sub’s governing documents and the Merger Certificate, at the Effective Time, the Company shall be merged with and into Merger Sub and the separate corporate existence of the Company shall thereupon cease. Merger Sub shall continue as the surviving company in the Merger (sometimes hereinafter referred to as the “Surviving Company”), and the separate corporate existence of Merger Sub with all its properties, rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger. At the Effective Time, the effect of the Merger shall be as provided in the authorization of the Merger by Merger Sub in accordance with Merger Sub’s governing documents, this Agreement, the Merger Certificate and the applicable provisions of the DGCL and the LLC Act. Without limiting the generality of the foregoing, and subject thereto and to the terms of this Agreement (including ‎Section 2.6(a)(i) hereof), at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Company, and all Liabilities and duties of the Company and Merger Sub shall become the Liabilities and duties of the Surviving Company.

Section 2.2 Organizational Documents.

(a) At the Effective Time, the certificate of formation of Merger Sub, as in effect immediately prior to the Effective Time and as set forth on Exhibit B, shall be the certificate of formation of the Surviving Company, until thereafter amended in accordance with applicable Law and the applicable provisions of the Surviving Company’s certificate of formation and limited liability company agreement.

(b) At the Effective Time, the limited liability company agreement of Merger Sub, as in effect immediately prior to the Effective Time and as set forth on Exhibit C, shall be the limited liability company agreement of the Surviving Company, until thereafter amended in accordance with applicable Law and the applicable provisions of the Surviving Company’s certificate of formation and limited liability company agreement.

Section 2.3 Effective Time. Subject to the provisions of this Agreement, as soon as practicable on the Closing Date, Merger Sub shall file the Merger Certificate, together with any required related certificates, filings or recordings, with the Secretary of State of the State of Delaware, in such form as required by, and executed in accordance with, the relevant provisions of the DGCL and the LLC Act. The Merger shall become effective upon the filing of the Merger Certificate with the Secretary of State of the State of Delaware or at such later date and time as the Company and Parent may agree upon and as is set forth in such Merger Certificate (such time, the “Effective Time”).

Section 2.4 Closing. The closing of the Merger (the “Closing”) shall occur on the date hereof (the “Closing Date”), substantially concurrently with the execution and delivery of this Agreement. The Closing shall take place remotely via electronic delivery of duly signed documents.

Section 2.5 Directors and Officers of the Surviving Company. Subject to applicable Law, the Parties shall take all requisite action so that from and after the Effective Time, the managers of Merger Sub immediately prior to the Effective Time shall be the managers of the Surviving Company, and the officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Company, in each case, until their respective successors are duly elected and qualified, or their earlier death, resignation, or removal.

Section 2.6 Effect on Common Stock.

(a) At the Effective Time, by virtue of the Merger and without any action on the part of Company Parent, any of the Parties, or any other Person:

(i) Conversion of Company Common Stock. By virtue of the Merger, and in accordance with the DGCL, the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time shall, and Parent shall take all necessary steps to ensure that such shares shall, automatically, and without any election on the part of Company Parent, be converted into, in the aggregate with respect to all such shares of Company Common Stock, the right to receive 311,188,356 shares of Parent Class B Common Stock (such shares of Parent Class B Common Stock, the “Merger Consideration”). From and after the Effective Time, all shares of Company Common Stock that were outstanding immediately prior to the Effective Time shall cease to be outstanding and shall cease to exist, and Company Parent shall thereafter cease to have any rights with respect to such shares of Company Common Stock, except the rights set forth herein. Parent shall take all necessary steps to ensure that, by virtue of the Merger, and in accordance with the DGCL, the Company Owned Parent Shares shall be received and owned by Company Parent or its designee, in satisfaction of the conversion pursuant to this ‎Section 2.6(a)(i).

(ii) Company Common Stock. Each share of Company Common Stock held by the Company as treasury stock immediately prior to the Effective Time shall be cancelled and shall cease to exist, and no securities of Parent or other consideration shall be delivered in exchange therefor.

(iii) Merger Sub Membership Interests. At the Effective Time, each membership interest of Merger Sub issued and outstanding immediately prior to the Effective Time shall remain outstanding as a membership interest of the Surviving Company.

Section 2.7 Closing Deliveries.

(a) Merger Consideration; Escrow Shares. Company Parent has delivered the Letter of Transmittal to Parent and the Escrow Agreement to Parent and the Escrow Agent, in each case to be held in escrow pending the Effective Time. At the Effective Time, (i) the Letter of Transmittal and the Escrow Agreement shall be released from escrow, (ii) consistent with ‎Section 2.6(a), Parent shall update its stock ledger to reflect ownership of the Merger Consideration by Company Parent or its designee, and Company Parent or its designee, as applicable, shall own the Company Owned Parent Shares free and clear of all Encumbrances other than any Encumbrances (A) created by any of the Transaction Documents, (B) arising under the Parent Charter or Parent Bylaws or applicable securities Laws or (C) created by or at the direction of Company Parent or any of its Affiliates, (iii) Parent shall pay to the Company Parent, by wire transfer of immediately available funds to the bank account(s) designated by the Company Parent in writing to Parent prior to the Closing Date, the amount equal to the unpaid dividends and other distributions, if any, in respect the Company Owned Parent Shares, with a record date prior to the Effective Time and (iv) Company Parent shall take all action necessary to deposit with the Escrow Agent a number of shares of Parent Class B Common Stock equal to the sum of the initial Specified Tax Losses Shares and the initial Contingent Liability Losses Shares, in each case measured as of the date hereof, to be held in an escrow account to be established under the Escrow Agreement (the “Escrow Account”, and the shares held in such Escrow Account, the “Escrow Shares”).

(b) Closing Cash Balance. At (but in no event before) the Effective Time, Company shall pay to Parent, as a funding convenience, by wire transfer of immediately available funds to the bank account(s) designated by Parent in writing to Company prior to the Closing Date, an amount equal to the Closing Cash Balance. For the avoidance of doubt, each of Company Parent and Parent acknowledges that, as a result of the Merger, Merger Sub becomes the legal owner of the Closing Cash Balance prior to the Closing Cash Balance being paid to Parent.

(c) No Further Ownership Rights. The Merger Consideration (and any other payments) paid in accordance with the terms of this ‎Article II in respect of shares of Company Common Stock converted pursuant to ‎Section 2.6 shall be deemed to have been paid in full satisfaction of all rights pertaining to such shares. After the Effective Time there shall be no further registration of transfers on the transfer books of the Surviving Company of shares of Company Common Stock that were outstanding immediately prior to the Effective Time.

(d) Other Closing Deliveries. At the Closing, Company Parent shall deliver to Parent the following: (i) a copy of the Company Reorganization Tax Opinion, in form and substance reasonably satisfactory to Parent; and (ii) documentation necessary to provide Parent with access to, title to and control of any bank accounts of Chewy Pharmacy as of the Effective Time.

Section 2.8 Further Assurances. If, at any time after the Effective Time, the Company, Parent or Company Parent reasonably believes or is advised that any further instruments, deeds, assignments or assurances are reasonably necessary or desirable to consummate the transactions contemplated by the Transaction Documents or to carry out the purposes and intent of the Transaction Documents, then the Company, Parent, or the Surviving Company, as applicable, and their respective officers and directors shall execute and deliver all such proper deeds, assignments, instruments and assurances and do all other things reasonably necessary or desirable to consummate such contemplated transactions and to carry out the purposes and intent of the Transaction Documents.

Section 2.9 Withholding. Notwithstanding any other provision of this Agreement, each Party and any of its Affiliates shall be entitled to deduct and withhold (or cause to be deducted or withheld) from any consideration payable or otherwise deliverable pursuant to this Agreement such amounts as are required to be deducted or withheld therefrom under any provision of the U.S. federal, state, local or non-U.S. Tax Law, and such Party may request from the Person to whom such payment is required to be made pursuant to this Agreement any necessary Tax forms, including Form W-9 or the appropriate series of Form W-8, as applicable, or any similar information required to determine whether any such deduction or withholding is required. To the extent such amounts are so deducted or withheld and timely paid to the appropriate Governmental Authority, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. In the event that any Party or its Affiliate determines that withholding from the Merger Consideration is required under applicable Tax Law, such Person will use reasonable best efforts to notify the Person to whom such payment is required to be made pursuant to this Agreement in writing at least five (5) Business Days prior to the Closing Date and provide such Person with an opportunity to provide any form or documentation or take such other steps in order to avoid or mitigate any such withholding.

Article III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as set forth in the corresponding section of the Company Disclosure Letter (it being agreed that disclosure of any item in any section of the Company Disclosure Letter shall be deemed disclosed with respect to any other section but only to the extent the relevance of a disclosure or statement therein to a section of this ‎Article III is reasonably apparent on its face), Company Parent and the Company each represent and warrant to Parent as follows:

Section 3.1 Organization; Standing and Power. The Company (i) is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware, (ii) has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as currently conducted and (iii) is duly qualified or licensed to do business as a foreign corporation, and is in good standing (with respect to jurisdictions which recognize such concept), in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except in the cases of clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents. The Company has made available to Parent, prior to the date hereof, a true, complete and correct copy of the Company Charter and the Company Bylaws in effect as of the date of this Agreement.

Section 3.2 Capitalization.

(a) The authorized capital stock of the Company consists of one hundred (100) shares of Company Common Stock, par value $0.01 per share. No other shares of capital stock of, or other equity or voting interests in, the Company are authorized.

(b) (i) one hundred (100) shares of Company Common Stock are issued and outstanding, (ii) no shares of Company Common Stock are held in treasury by the Company or any of its Subsidiaries, and (iii) no other shares of Company Common Stock or other equity interests in the Company are issued, reserved for issuance or outstanding. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and non-assessable and were issued in compliance with applicable securities Laws. There are no preemptive or similar rights granted by the Company or any of its Subsidiaries to any holders of any class of securities of the Company or any of its Subsidiaries.

(c) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with Company Parent or the equityholders of any such Subsidiary on any matter (“Voting Company Debt”).

(d) There are no options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, restricted stock units, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which either of them is bound (i) obligating the Company or any of its Subsidiaries to issue, deliver or sell or cause to be issued, delivered or sold, additional shares of capital stock of, or other equity interests in, or any security convertible into or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company or any of its Subsidiaries or any Voting Company Debt, (ii) obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, Contract, arrangement or undertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of Company Common Stock, or other equity interests in the Company or any of its Subsidiaries. There are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries. There are no proxies, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or is bound with respect to the voting of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries.

Section 3.3 Subsidiaries

(a) As of immediately prior to the Effective Time, the Company has no Subsidiaries other than as set forth on ‎Section 3.3(a) of the Company Disclosure Letter (the “Company Subsidiaries”). Each Company Subsidiary (i) is a limited liability company duly organized, validly existing and in good standing under the Laws of Delaware, (ii) has all power and authority to own, lease and operate its properties and assets and to carry on its business as currently conducted and (iii) is duly qualified or licensed to do business and is in good standing in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except, in each case, as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents.

(b) All of the Equity of each Company Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and were issued in compliance with applicable securities Laws. As of immediately prior to the Effective Time, all of the outstanding equity interests in each Company Subsidiary are owned by the Company, free and clear of any Encumbrances, other than Encumbrances under the organizational documents of such Company Subsidiary as provided to Parent prior to the date hereof and under applicable securities Laws.

Section 3.4 Authorization.

(a) The Company has all requisite corporate power and authority to execute and deliver the Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder and, subject to the Company Parent Approval, to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of the Transaction Documents to which the Company is a party and the consummation by the Company of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of the Company, and no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated hereby and thereby, other than, with respect to the Merger, the Company Parent Approval. This Agreement has been duly and validly executed and delivered by the Company and, assuming the due execution and delivery by the other Parties, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at equity or law).

(b) The Company Board has unanimously (i) determined that the Transaction Documents and the transactions contemplated hereby and thereby are advisable and fair to, and in the best interests of, the Company and Company Parent, (ii) approved and declared advisable the Transaction Documents and the transactions contemplated hereby and thereby, (iii) directed that this Agreement be submitted to Company Parent for adoption, and (iv) resolved to recommend that Company Parent approve and adopt this Agreement.

Section 3.5 Consents and Approvals; No Violations.

(a) The execution, delivery and performance by the Company of the Transaction Documents and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not require any filing or registration with, notification to, or authorization, permit, license, declaration, Order, consent or approval of any Governmental Authority by the Company other than (i) the filing with the SEC of such reports under the Exchange Act as may be required in connection with the Transaction Documents and the transactions contemplated hereby and thereby, (ii) such clearances, consents, approvals, Orders, licenses, authorizations, registrations, declarations, permits, filings and notifications as may be required under applicable U.S. federal and state or foreign securities Laws, (iii) the filing of the Merger Certificate or other documents as required by the DGCL and the LLC Act or (iv) any other filings, registrations, notifications, authorizations, permits, licenses, declarations, Orders, consents or approvals the absence of which would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents.

(b) The execution, delivery and, subject to the receipt of the Company Parent Approval, performance by the Company of the Transaction Documents and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company Charter or Company Bylaws or similar organizational documents of any of the Company’s Subsidiaries, (ii) conflict with or violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound, (iii) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any benefit under, or result in the triggering of any payments or requirements to purchase or redeem pursuant to, any of the terms, conditions or provisions of any Contract to which the Company or any of its Subsidiaries is a party or by which any property or asset of the Company or any of its Subsidiaries is bound or (iv) result in the creation of an Encumbrance (except for Permitted Encumbrances) on any property or asset of the Company or any of its Subsidiaries, except, with respect to clauses (ii), (iii) and (iv) of this ‎Section 3.5(b) as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents. For purposes of this ‎Section 3.5, the term “Governmental Authority” shall include NYSE.

Section 3.6 Litigation. There are no Actions pending, or to the knowledge of the Company, threatened, against the Company or any of its Subsidiaries or any of the properties or assets of the Company or any of its Subsidiaries, except as would not, individually or in the aggregate, (x) reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents or (y) reasonably be expected to be material.

Section 3.7 Compliance with Applicable Laws.

(a) The Company and each of its Subsidiaries are in compliance with all applicable Laws, except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents.

(b) (i) To the knowledge of the Company, no investigation or review by any Governmental Authority with respect to the Company or any of its Subsidiaries is pending or threatened that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents and (ii) no Governmental Authority has indicated in writing to the Company or any of its Subsidiaries prior to the date hereof of an intention to conduct any such investigation or review.

(d) The Company and its Subsidiaries are not, and at all times have not been, required to register as an “investment company” under the Investment Company Act of 1940.

Section 3.8 Tax Matters. Except as set forth on ‎Section 3.8 of the Company Disclosure Letter:

(a) (1) All income and other material Tax Returns required to be filed (or in which the Company or the Subsidiaries are required to be included) with any Governmental Authority by or on behalf of the Company or any of its Subsidiaries have been timely filed when due (taking into account any extension of time within which to file); (2) all such Tax Returns are true, accurate and complete in all material respects; (3) all income and other material Taxes due and payable by the Company or any of its Subsidiaries (including any Taxes that are required to be collected, deducted or withheld in connection with any amounts paid or owing to, or received or owing from, any employee, creditor, independent contractor or other Third Party) have been withheld and, if applicable, timely paid (or paid on their behalf or collected or withheld and remitted) to the appropriate Governmental Authority; and (4) the Company and its Subsidiaries have complied in all material respects with all Laws regarding the collection, deduction and withholding of Taxes (including information reporting);

(b) No claim has been made by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file a Tax Return of a particular type that the Company or any of its Subsidiaries is or may be subject to Tax, or required to file Tax Returns, of such type in that jurisdiction, other than any such claims that have been fully resolved;

(c) There are no Encumbrances on any of the assets of the Company or any of its Subsidiaries that arose in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);

(d) (i) No written claim has been received by, and no audit, action, or proceeding is in progress or has been threatened in writing against, the Company or any of its Subsidiaries in respect of any income or other material Tax that has not been fully settled or otherwise resolved, and (ii) all deficiencies, assessments or proposed adjustments asserted against the Company or any of its Subsidiaries for any material amounts of Tax by any Governmental Authority have been paid or fully and finally settled;

(e) No waiver or extension of any statute of limitations in respect of Taxes or any extension of the period for assessment or collection of any Tax or deficiency is currently in effect (and no request for any such waiver or consent is pending) for the Company or any of its Subsidiaries (without giving effect to the Pre-Closing Reorganization);

(f) Neither the Company nor or any of its Subsidiaries has participated in a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of the Treasury Regulations;

(g) During the two-year period ending on the date of this Agreement, neither the Company nor or any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying or intended to qualify for tax-free treatment under Section 355(a) of the Code;

(h) Neither the Company nor any of its Subsidiaries (i) has any liability for any material Tax of any Person other than the Company or any of its Subsidiaries or Parent or any of its Subsidiaries under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. law), as transferee or successor, or by contract (other than agreements whose principal purpose is not related to tax), or (ii) has been a member of an affiliated group filing consolidated income Tax Returns (except for the group of which the Company or any of its Subsidiaries (or any predecessor thereof) is or was the common parent) for federal, state or non-U.S. Tax purposes;

(i) Neither the Company nor any of its Subsidiaries knows of any fact, agreement, plan or other circumstance that would be reasonably expected to prevent or preclude the private letter ruling issued to Argos Intermediate Holdco I, Inc., a Delaware corporation (as such ruling may be amended, supplemented or otherwise modified), from applying to the Merger; and

(j) Neither the Company nor or any of its Subsidiaries knows of any fact, agreement, plan or other circumstance that would reasonably be expected to prevent or preclude the Merger from qualifying for the Intended Tax Treatment.

Section 3.9 No Undisclosed Liabilities. Neither the Company nor or any of its Subsidiaries has any Liabilities except (a) as set forth in ‎Section 3.9 of the Company Disclosure Letter and (b) obligations of performance under the Transaction Documents.

Section 3.10 Ownership in Parent.

(a) As of immediately prior to the Effective Time, the Company owns 311,188,356 shares of Parent Class B Common Stock (such shares of Parent Class B Stock collectively, the “Company Owned Parent Shares”). As of immediately prior to the Effective Time, all of the Company Owned Parent Shares are owned free and clear of any and all Encumbrances other than any Permitted Encumbrances described in clause (h) or (i) of the definition thereof, or as set forth on ‎Section 3.10 of the Company Disclosure Letter. Except for the Company Owned Parent Shares, the Company does not beneficially own any shares of Parent Common Stock or any options or other rights to purchase or receive Parent Common Stock.

(b) Each Affiliate of Company Parent that has previously owned any Parent Class A Common Stock or Parent Class B Common Stock, in each case owned by the Company as of the date hereof, was solvent at the time of any distribution of such Parent Class A Common Stock or Parent Class B Common Stock to any other entity, and (a) was able to pay its debts as they became due, (b) owned property that had a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all contingent liabilities) and (c) had adequate capital to carry on its businesses. In connection with the transactions contemplated by this Agreement and in all prior restructurings and transfers of the Parent Class A Common Stock and Parent Class B Common Stock, (i) no transfer of Parent Class A Common Stock and Parent Class B Common Stock is being or was made and no obligation is being or was incurred with the intent to hinder, delay or defraud either present or future creditors of the Company, Company Parent or any of their respective Affiliates and (ii) the Company has not incurred, and does not plan to incur, debts beyond its ability to pay as they become absolute and matured. All prior distributions or transfers of the Parent Class A Common Stock or Parent Class B Common Stock owned by the Company as of the Effective Time (including those transfers related to the restructuring of Company Parent and its Affiliates in connection with prior financing transactions and the Pre-Closing Reorganization), have complied in all respects with applicable Laws, including Laws related to solvency or creditors’ rights. To the knowledge of Company Parent, no Person has or will have any claim for fraudulent conveyance or any other similar claim under law or equity related to any prior distribution or transfer of the Parent Class A Common Stock or Parent Class B Common Stock that is held by the Company as of the date hereof.

Section 3.11 Brokers and Other Advisors. No Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission payable by the Company or its Affiliates in connection with the Transaction Documents or the transactions contemplated hereby and thereby based upon arrangements made by or on behalf of the Company or any of its Affiliates.

Section 3.12 Operations of the Company. The Company has been formed solely for the purpose of engaging in the Pre-Closing Reorganization and the Merger and, from the date of its formation, the Company has not engaged in any activities or incurred any liabilities or obligations other than other than in connection with the Transaction Documents and the transactions contemplated hereby and thereby (including the Pre-Closing Reorganization).

Section 3.13 Investigation by the Company; Limitation on Warranties. The Company has conducted its own independent review and analysis of the business, operations, assets, Liabilities, results of operations and financial condition of Parent and Merger Sub and acknowledges that the Company has been provided access to personnel, properties, premises and records of Parent and Merger Sub for such purposes. In entering into this Agreement, the Company acknowledges that it has not been induced by and has not relied, and expressly disclaims any reliance, upon any representations, warranties or statements, whether express or implied, made by Parent or Merger Sub or any of their respective directors, officers, stockholders, employees, affiliates, agents, advisors or representatives that are not expressly set forth in this Agreement, whether or not such representations, warranties or statements were made in writing or orally.

Article IV

REPRESENTATIONS AND WARRANTIES OF COMPANY PARENT

Except as set forth in the corresponding section of the Company Parent Disclosure Letter (it being agreed that disclosure of any item in any section of the Company Parent Disclosure Letter shall be deemed disclosed with respect to any other section but only to the extent the relevance of a disclosure or statement therein to a section of this ‎Article IV is reasonably apparent on its face), Company Parent represents and warrants to Parent as follows:

Section 4.1 Organization; Standing and Power. Company Parent (i) is a limited partnership duly organized, validly existing and in good standing under the Laws of the State of Delaware, (ii) has all requisite partnership power and authority to own, lease and operate its properties and to carry on its business as currently conducted and (iii) is duly qualified or licensed to do business, and is in good standing (with respect to jurisdictions which recognize such concept), in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except in the cases of clauses (ii) and (iii) as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents. Company Parent has made available to Parent, prior to the date hereof, a true, complete and correct copy of the Company Parent’s existing certificate of limited partnership and limited partnership agreement in effect as of the date of this Agreement.

Section 4.2 Authorization. Company Parent has all requisite partnership power and authority to execute and deliver the Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of the Transaction Documents to which Company Parent is a party and the consummation by Company Parent of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary action on the part of Company Parent, and no other proceedings on the part of Company Parent are necessary to authorize the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated hereby and thereby. This Agreement has been duly and validly executed and delivered by Company Parent and, assuming the due execution and delivery by the Company, Parent and Merger Sub, constitutes the valid and binding obligation of Company Parent, enforceable against Company Parent in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at equity or law).

Section 4.3 Ownership in Company.

(a) As of immediately prior to the Effective Time, Company Parent holds directly 10 shares of Company Common Stock (the “Company Parent Owned Shares”).

(b) As of immediately prior to the Effective Time, Company Parent has good title to the Company Parent Owned Shares, free and clear of all Encumbrances (other than any Permitted Encumbrances described in clause (h) or (i) of the definition thereof). As of immediately prior to the Effective Time, the Company Parent Owned Shares constitute all of the issued and outstanding Equity of the Company. As of immediately prior to the Effective Time, such Company Parent Owned Shares are free and clear of any Encumbrances (other than any Permitted Encumbrances described in clause (h) or (i) of the definition thereof).

Section 4.4 Consents and Approvals; No Violations.

(a) The execution, delivery and performance by Company Parent of the Transaction Documents and the consummation by Company Parent of the transactions contemplated hereby and thereby do not and will not require any filing or registration with, notification to, or authorization, permit, license, declaration, Order, consent or approval of any Governmental Authority by Company Parent other than (i) the filing with the SEC of such reports under the Exchange Act as may be required in connection with the Transaction Documents and the transactions contemplated hereby and thereby, (ii) such clearances, consents, approvals, Orders, licenses, authorizations, registrations, declarations, permits, filings and notifications as may be required under applicable U.S. federal and state or foreign securities Laws, (iii) the filing of the Merger Certificate or other documents as required by the DGCL and LLC Act or (iv) any other filings, registrations, notifications, authorizations, permits, licenses, declarations, Orders, consents or approvals the absence of which would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents.

(b) The execution, delivery and performance by Company Parent of the Transaction Documents and the consummation by Company Parent of the transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the limited partnership agreement of Company Parent, (ii) conflict with or violate any Law applicable to Company Parent or by which any property or asset of Company Parent is bound, (iii) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any benefit under, or result in the triggering of any payments or requirements to purchase or redeem pursuant to, any of the terms, conditions or provisions of any Contract to which Company Parent is a party or by which any property or asset of Company Parent is bound or (iv) result in the creation of an Encumbrance (except for Permitted Encumbrances) on any property or asset of Company Parent, except, with respect to clauses (ii), (iii) and (iv) of this ‎Section 4.4(b) as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents. For purposes of this ‎Section 4.4, the term “Governmental Authority” shall include NYSE.

Section 4.5 Investment Decision. Company Parent will be receiving the Merger Consideration for investment and not with a view toward or for the sale in connection with any distribution thereof, or with any present intention of distributing or selling such Merger Consideration. Company Parent acknowledges that the Merger Consideration has not been registered under the Securities Act or any other federal, state, foreign or local securities Law, and agrees that such Merger Consideration may not be sold, transferred, offered for sale, pledged, distributed, hypothecated or otherwise disposed of without registration under the Securities Act, except pursuant to an exemption from such registration available under the Securities Act, and in compliance with any other federal, state, foreign or local securities Law, in each case, to the extent applicable.

Section 4.6 Litigation. There are no Actions pending, or to the knowledge of Company Parent, threatened, against Company Parent or any of the properties or assets of Company Parent, except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents.

Section 4.7 Brokers and Other Advisors. No Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission payable by Company Parent or its Affiliates in connection with the Transaction Documents or the transactions contemplated hereby and thereby based upon arrangements made by or on behalf of the Company Parent or any of its Affiliates.

Section 4.8 Available Cash. As of immediately prior to the Effective Time, Company Parent and its Subsidiaries have a net available cash balance in the amount of the Closing Cash Balance located in the Company Parent’s deposit account with Wells Fargo Bank, N.A. (the “Company Parent Bank Account”).

Article V

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Except as set forth in the corresponding section of the Parent Disclosure Letter (it being agreed that disclosure of any item in any section of the Parent Disclosure Letter shall be deemed disclosed with respect to any other section but only to the extent the relevance of a disclosure or statement therein to a section of this ‎Article V is reasonably apparent on its face), Parent and Merger Sub represent and warrant to the Company as follows:

Section 5.1 Organization; Standing and Power. (a) Parent is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware, (b) Merger Sub is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware, (c) each of Parent and Merger Sub has all requisite corporate or other power and authority to own, lease and operate its properties and to carry on its business as currently conducted and (d) each of Parent and Merger Sub is duly qualified or licensed to do business and is in good standing (with respect to jurisdictions which recognize such concept), in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except in the cases of clauses (c) and (d) as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents. Parent has made available to the Company, prior to the date hereof, true, complete and correct copies of the organizational documents of each of Parent and Merger Sub in effect as of the date of this Agreement.

Section 5.2 Capitalization.

(a) The authorized capital stock of Parent consists of (i) 1,500,000,000 shares of Parent Class A Common Stock, par value $0.01 per share, (ii) 395,000,000 shares of Parent Class B Common Stock, par value $0.01 per share and (iii) 5,000,000 shares of Parent Preferred Stock, par value $0.01 per share, issuable in series. No other shares of capital stock of, or other equity or voting interests in, Parent are authorized.

(b) As of the close of business on October 27, 2023, (i) 119,950,022 shares of Parent Class A Common Stock were issued and outstanding, (ii) 311,188,356 shares of Parent Class B Common Stock were issued and outstanding, (iii) no shares of Parent Preferred Stock were issued and outstanding, (iv) no shares of Parent Common Stock were held in treasury by Parent or owned by its Subsidiaries and no shares of Parent Class B Common Stock were held in treasury by Parent or owned by its Subsidiaries, (v) 28,155,415 shares of Parent Class A Common Stock and no shares of Parent Class B Common Stock, in each case, were reserved for issuance pursuant to Parent’s equity incentive plans, (vi) 16,725,186 shares of Parent Class A Common Stock and no shares of Parent Class B Common Stock, in each case, were underlying outstanding share-settled Parent RSUs, (vii) no shares of Parent Class A Common Stock and no shares of Parent Class B Common Stock, in each case, were reserved for issuance upon the exercise of outstanding unexercised Parent Stock Options and (viii) no other shares of capital stock of, or other equity interests in, Parent were issued, reserved for issuance or outstanding. From the close of business on October 19, 2023 through the date of this Agreement, there have been no issuances of (I) any Parent Common Stock, Parent Preferred Stock or any other Equity in Parent other than issuances of shares of Parent Class A Common Stock pursuant to the exercise, vesting or settlement, as applicable, of Parent Equity Awards outstanding as of the close of business on October 19, 2023 in accordance with the terms of such Parent Equity Awards or (II) any Parent Equity Awards or any other equity or equity-based awards. All of the outstanding shares of capital stock of Parent have been duly authorized and validly issued, and are fully paid and non-assessable and were issued in compliance with applicable securities Laws. There are no preemptive or similar rights granted by Parent to any holders of any class of securities of Parent.

(c) Parent does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with Parent Stockholders on any matter (“Voting Parent Debt”).

(d) Except pursuant to any Collective Agreement or as listed on ‎Section 5.2(d) of the Parent Disclosure Letter, other than Parent Equity Awards, there are not, as of the date of this Agreement, any options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, restricted stock units, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which Parent is a party or by which Parent is bound (i) obligating Parent to issue, deliver or sell or cause to be issued, delivered or sold, additional shares of capital stock of, or other equity interests in, or any security convertible into or exercisable for or exchangeable into any capital stock of, or other equity interest in, Parent or any Voting Parent Debt, (ii) obligating Parent to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, Contract, arrangement or undertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of capital stock of, or other equity interests in, Parent. Except pursuant to any Collective Agreement, there are no outstanding contractual obligations of Parent to repurchase, redeem or otherwise acquire any shares of capital stock of Parent. Except pursuant to any Collective Agreement, there are no proxies, voting trusts or other agreements or understandings to which Parent is a party or is bound with respect to the voting of the capital stock of, or other equity interests in, Parent.

(e) The authorized capital interests of Merger Sub consist solely of membership interests, all of which are held directly by Parent. All of the outstanding membership interests of Merger Sub have been duly authorized and validly issued.

(f) The shares of Parent Common Stock to be delivered by Company Parent, or a wholly owned Subsidiary of Company Parent, at Company Parent’s direction, in satisfaction of Company Parent’s right to receive the Merger Consideration, have been duly authorized and, when delivered in accordance with the terms of this Agreement, will have been validly issued, fully paid and non-assessable and not subject to any preemptive or other similar right.

Section 5.3 Authorization.

(a) Each of Parent and Merger Sub has all requisite corporate power and authority to execute and deliver the Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of the Transaction Documents to which any of Parent and Merger Sub is a party and the consummation by Parent and Merger Sub of the transactions contemplated hereby and thereby, have been duly and validly authorized by all necessary corporate or other action on the part of Parent and Merger Sub, and no other proceedings on the part of Parent and Merger Sub are necessary to authorize the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated hereby and thereby other than the approval of the adoption of this Agreement by the sole member of Merger Sub. Merger Sub has taken or will take all action as is necessary or advisable to authorize the Merger in accordance with Merger Sub’s governing documents and Section 264(a) of the DGCL and Section 18-209(b) of the LLC Act, and such authorization is and shall be the only limited liability company authorization of Merger Sub necessary to authorize the Merger. This Agreement has been duly and validly executed and delivered by Parent and Merger Sub and, assuming the due execution and delivery by the Company, constitutes the valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at equity or law).

(b) The Special Committee has unanimously (i) determined that the Merger, the Transaction Documents, and the transactions contemplated hereby and thereby, are advisable and fair to, and in the best interests of, Parent and the Parent Stockholders (other than the Company, Company Parent and their Affiliates) and (ii) resolved to recommend that the Parent Board approve and declare advisable the Merger, the Transaction Documents and the transactions contemplated hereby and thereby.

(c) The Parent Board, upon the unanimous recommendation of the Special Committee, has (i) determined that the Merger, the Transaction Documents and the transactions contemplated hereby and thereby, are advisable and fair to, and in the best interests of, Parent and the Parent Stockholders (other than the Company, Company Parent and their Affiliates) and (ii) approved and declared advisable the Merger, the Transaction Documents and the transactions contemplated hereby and thereby.

(d) The sole member of Merger Sub has (i) determined that the Merger, this Agreement and the transactions contemplated hereby are advisable and fair to, and in the best interests of, Merger Sub and its sole member, (ii) approved and declared advisable the Merger, this Agreement and the transactions contemplated hereby and (iii) taken all action as is necessary or advisable to cause Merger Sub to authorize the Merger in accordance with Merger Sub’s governing documents and Section 264(a)of the DGCL and Section 18-209(b) of the LLC Act.

Section 5.4 Consents and Approvals; No Violations.

(a) The execution, delivery and performance by Parent and Merger Sub of the Transaction Documents to which it is a party and the consummation by Parent and Merger Sub of the transactions contemplated hereby and thereby do not and will not require any filing or registration with, notification to, or authorization, permit, license, declaration, Order, consent or approval of any Governmental Authority by Parent and Merger Sub other than (i) the filing with the SEC of such reports under the Exchange Act as may be required in connection with the Transaction Documents and the transactions contemplated hereby and thereby, (ii) such clearances, consents, approvals, Orders, licenses, authorizations, registrations, declarations, permits, filings and notifications as may be required under applicable U.S. federal and state or foreign securities Laws or the rules and regulations of NYSE, (iii) the filing of the Merger Certificate or other documents as required by the DGCL and the LLC Act or (iv) any other filings, registrations, notifications, authorizations, permits, licenses, declarations, Orders, consents or approvals the absence of which would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents.

(b) The execution, delivery and performance by Parent and Merger Sub of the Transaction Documents to which it is a party, and the consummation by Parent and Merger Sub of the transactions contemplated hereby and thereby, do not and will not (i) conflict with or violate any provision of the Parent Charter or Parent Bylaws or the certificate of formation or limited liability company agreement of Merger Sub, (ii) conflict with or violate any Law applicable to Parent or Merger Sub or by which any property or asset of Parent or Merger Sub is bound, (iii) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under, result in the loss of any benefit under, or result in the triggering of any payments or requirements to purchase or redeem pursuant to, any of the terms, conditions or provisions of any Contract to which Parent or any of its Subsidiaries is a party or by which any property or asset of Parent or any of its Subsidiaries is bound or (iv) result in the creation of an Encumbrance (except for Permitted Encumbrances) on any property or asset of Parent or Merger Sub, except, with respect to clauses (ii), (iii) and (iv) of this ‎Section 5.4(b) as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents. For purposes of this ‎Section 5.4, the term “Governmental Authority” shall include NYSE.

Section 5.5 Litigation. There are no Actions pending, or to the knowledge of Parent, threatened, against Parent or Merger Sub or the properties or assets of Parent or Merger Sub, which if determined adversely would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents.

Section 5.6 Compliance with Applicable Laws.

(a) Parent and each of its Subsidiaries are in compliance with all applicable Laws, except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents.

(b) (i) To the knowledge of Parent, no investigation or review by any Governmental Authority with respect to Parent or any of its Subsidiaries is pending or threatened that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by the Transaction Documents and (ii) no Governmental Authority has indicated in writing to Parent or any of its Subsidiaries prior to the date hereof of an intention to conduct any such investigation or review.

Section 5.7 Tax Matters.

(a) Merger Sub is disregarded as an entity separate from its owner, Parent, for U.S. federal tax purposes pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii).

(b) Neither Parent nor any of its Subsidiaries knows of any fact, agreement, plan or other circumstance that would reasonably be expected to prevent or preclude the Merger from qualifying for the Intended Tax Treatment.

Section 5.8 Brokers and Other Advisors. No Person (other than LionTree) is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission payable by Parent or its Subsidiaries in connection with the Transaction Documents or the transactions contemplated hereby and thereby based upon arrangements made by or on behalf of Parent or any of its Subsidiaries.

Section 5.9 Opinion of Financial Advisor. The Special Committee has received the opinion of LionTree, financial advisor to the Special Committee, to the effect that, as of the date of such opinion and subject to the assumptions, limitations, qualifications and other matters considered in connection with the preparation thereof as set forth therein, the Merger, Pre-Closing Reorganization and the Amended and Restated Investor Rights Agreement are fair from a financial point of view to the holders of Parent Class A Common Stock (other than Company Parent and its affiliates).

Section 5.10 Investigation by Parent; Limitation on Warranties. Parent has conducted its own independent review and analysis of (a) the business, operations, assets, Liabilities, results of operations and financial condition of the Company and (b) the Bobcat Transaction and acknowledges that Parent has been provided access to personnel, properties, premises and records of the Company, and in respect of the Bobcat Transaction, for such purposes. In entering into this Agreement, except as expressly provided herein, Parent acknowledges that it has not been induced by and has not relied, and expressly disclaims any reliance, upon any representations, warranties or statements, whether express or implied, made by the Company or any of its directors, officers, stockholders, employees, affiliates, agents, advisors or representatives that are not expressly set forth in this Agreement, whether or not such representations, warranties or statements were made in writing or orally.

Section 5.11 Ownership of Company Common Stock; Anti-takeover.

(a) Parent does not beneficially own, and has not beneficially owned, any shares of Company Common Stock, nor any Convertible Securities of the Company. Neither Parent nor any of its Affiliates has taken any action that has, directly or indirectly, caused any “fair price,” “business combination,” “control share acquisition” or other similar anti-takeover statute or regulation in any jurisdiction to apply or purport to apply to the Transaction Documents or the transactions contemplated hereby and thereby.

(b) As of the date hereof, Parent is not party to any “poison pill” rights plan or similar plan or agreement relating to any shares of Parent Common Stock or other Equity of Parent.

Section 5.12 Operations of Merger Sub. Merger Sub has been formed solely for the purpose of engaging in the Merger and, from the date of its formation until the Effective Time, Merger Sub has not and will not have engaged in any activities or incurred any liabilities or obligations other than other than in connection with the Transaction Documents and the transactions contemplated hereby and thereby.

Section 5.13 Section 16 Matters. Parent has taken all such steps required (to the extent permitted under applicable Law) to cause all acquisitions and dispositions of Parent Common Stock resulting from the transactions contemplated by the Transaction Documents by each Person who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent to be exempt under Rule 16b-3 promulgated under the Exchange Act.

Article VI

COVENANTS

Section 6.1 Tax Matters.

(a) Parent, Company Parent, the Company and Merger Sub intend that, for U.S. federal income tax purposes, the Merger shall qualify for the Intended Tax Treatment. Each of Parent, Company Parent, the Company and Merger Sub shall, and shall cause its respective Subsidiaries to, (i) use its reasonable best efforts to cause the Merger to so qualify, (ii) file all Tax Returns consistent with, and take no position inconsistent with (whether in audits, on Tax Returns or otherwise) such treatment, (iii) use its reasonable best efforts to take or cause to be taken any action reasonably necessary to ensure the receipt of the Company Reorganization Tax Opinion (including delivering the Company Reorganization Tax Opinion Representation Letter and Parent Reorganization Tax Opinion Representation Letter, as applicable) and (iv) cooperate with the Company Tax Counsel by providing customary representations as to factual matters on or prior to the Closing Date consistent with transactions of this nature, to the extent applicable.

(b) Parent, Company Parent, the Company and Merger Sub hereby adopt this Agreement as well as any other agreements entered into pursuant to this Agreement as a “plan of reorganization” within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations.

(c) None of Parent, the Company or Merger Sub shall, nor shall they permit their Affiliates to, take any action, and Parent, the Company and Merger Sub shall not, and shall ensure that their Affiliates do not, fail to take any action, which action or failure to act would prevent, preclude or impede the Merger from qualifying (or reasonably would be expected to cause the Merger to fail to qualify) for the Intended Tax Treatment, in each case, except (i) with the prior written consent of Company Parent or (ii) as required pursuant to a judgement by a U.S. Circuit Court of Appeals of competent jurisdiction.

(d) Parent shall not amend any Tax Return of the Company for any taxable year that includes the Closing Date (as defined in the Bobcat Transaction Agreement) of the Bobcat Transaction. Parent shall not waive any statute of limitations or other period for the assessment of any Tax or deficiency related to, attributable to or arising out of any Specified Tax Loss without the prior written consent of Company Parent (which consent shall not be unreasonably withheld, conditioned or delayed).

(e) Tax Return Preparation and Tax Payments.

(i) For U.S. federal income tax purposes, and to the extent permitted by applicable law state and local income tax purposes relating to combined tax groups, the Merger is expected to be treated as an acquisition of the Company consolidated tax group by the Parent consolidated tax group, with the Parent consolidated tax group remaining in existence and the Company consolidated tax group terminating its taxable year.

(ii) Following the Closing Date, Company Parent shall cause to be prepared and filed at its cost (to the extent such costs are not treated as Accrued Taxes or otherwise treated as part of the Transaction Expense Amount), all Tax Returns required by applicable Law to be filed following the Closing Date with respect to the Company or any of its Subsidiaries for any Pre-Closing Tax Period (other than any Tax Return that includes Parent or any of its Subsidiaries) on a timely basis (taking into account any extensions received from the relevant Tax Authorities); including, for the avoidance of doubt, all such Tax Returns related to the Bobcat Transaction and the Pre-Closing Reorganization. Such Tax Returns shall be true, correct and complete in all material respects and accurately set forth all items to the extent required to be reflected or included in such Tax Returns by applicable U.S. federal, state, local or foreign Tax Laws in a manner consistent with the past practices of the Company and its Subsidiaries ( except to the extent otherwise required by applicable Law). Company Parent shall deliver such Tax Returns to Parent for its review and comment at least thirty (30) days prior to the applicable filing deadline and Company Parent shall exercise good faith in determining the incorporation of all reasonable comments provided by Parent with respect thereto. All Taxes indicated as due and payable on such Tax Returns shall be paid or will be paid by the Company as and when required by Law. For the avoidance of doubt, the provisions of this ‎‎Section 6.1(e) shall apply, to the extent relevant, to any amendments to such Tax Returns.

(iii) To the extent there are Taxes of the Company for a Pre-Closing Period that are determined on a consolidated, combined or unitary basis, including Taxes attributable to the Bobcat Transaction or Pre-Closing Reorganization, that are reported on Tax Returns that include Parent, Parent shall prepare and file such Tax Returns. The preparation of, and allocation of costs associated with, such Tax Returns, and the allocation of items reflected on such Tax Returns, shall, in all other respects, be materially consistent with the provisions of, and past practices under, the Tax Matters Agreement, notwithstanding the termination of the Tax Matters Agreement, except as described in the following sentence and to the extent otherwise required by applicable Law. To the extent that any increase in the items reflected on such Tax Returns allocated to Parent is attributable to the Bobcat Transaction or Pre-Closing Reorganization, such increase shall be treated as allocable to the Company for purposes of ‎Section 6.1(e)(iv) below. Company Parent shall reasonably cooperate in the preparation of such Tax Returns (including as necessary through preparation of pro forma Tax Returns relating to the Bobcat Transaction or Pre-Closing Reorganization). Parent shall deliver such Tax Returns to Company Parent for its review and comment at least thirty (30) days prior to the applicable filing deadline, and shall take into account all reasonable comments provided by Company Parent with respect thereto.

(iv) To the extent an amount equal to the sum of the Taxes allocable to the Company pursuant to ‎Section 6.1(e)(ii) and ‎(iii) exceeds an amount equal to the amount of Accrued Taxes treated as part of the Transaction Expense Amount plus any estimated Taxes paid by or on behalf of Company or its Subsidiaries, Company Parent shall pay such excess amounts in cash to Parent (or to the extent necessary reimburse Parent) within five (5) Business Days’ of a determination of the foregoing in connection with the preparation of the relevant Tax Returns. To the extent an amount equal to the amount of Accrued Taxes treated as part of the Transaction Expense Amount plus any estimated Taxes paid by or on behalf of Company or its Subsidiaries exceeds an amount equal to the sum of the Taxes allocable to the Company pursuant to ‎Section 6.1(e)(ii) and ‎(iii), Parent shall pay such excess amounts in cash to Company Parent within five (5) Business Days of a determination of the foregoing in connection with the preparation of the relevant Tax Returns. Each of the Company, Company Parent, and Parent shall treat any payments pursuant to this ‎Section 6.1(e)(iv) as an adjustment to the amount of cash that was initially distributed from the Company to Company Parent prior to the Merger, except as otherwise required by a “determination” within the meaning of Section 1313 of the Code, which determination has become final.

(f) Company Parent and its Affiliates will cooperate fully, as and to the extent reasonably requested by Parent or any of its Affiliates (including, following the Closing, the Company) (or any of their respective successors), in connection with the filing of any Tax Returns, any Tax audits, Tax proceedings or other Tax-related claims. Such cooperation will include providing records and information that are reasonably relevant to any such matters and, making employees available on a mutually convenient basis to provide additional information and explaining any materials provided pursuant to this ‎Section 6.1(e). Company Parent agrees (i) to retain all books and records with respect to Tax matters pertinent to the Company relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by the other, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any Governmental Authority and (ii) to give the other party reasonable written notice prior to transferring, destroying, or discarding any such books and records prior to the expiration of the applicable statute of limitations and, if the other party so requests, allow the other party to take possession of such books and records.

(g) Valuation of Tax Receivable Agreement and Seller Earn-Out; Consistent Treatment. For all applicable tax and accounting purposes (including information reporting or relevant contractual purposes), to the extent permitted by applicable law and accounting standards, as the case may be, Company Parent and its Affiliates shall report the value (or liability, as the case may be) of the Tax Receivable Agreement and Seller Earn-Out consistently, in each case as determined pursuant to the Bobcat Transaction Agreement for purposes of determining the tax consequences of distributing such entitlements to Company Parent following the consummation of the Bobcat Transaction. If any inconsistency is determined to be necessary under applicable accounting standards, commercially reasonable best efforts shall be utilized to minimize any such inconsistency.

Section 6.2 Public Announcements. The Company and Company Parent (for the avoidance of doubt, other than with respect to the Bobcat Transaction), on the one hand, and Parent, on the other hand, shall consult with each other before issuing, and will provide each other the opportunity to review and reasonably comment upon, and use reasonable best efforts to agree on, any press release or other public statements with respect to the transactions contemplated hereby, and shall not issue any such press release or make any such public statement without the prior written consent of the other Party (which shall not be unreasonably withheld, delayed or conditioned), except (i) as either Party, after consultation with outside counsel, may determine is required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or stock market if it has used reasonable best efforts to consult with the other Party prior thereto regarding the timing, scope and content of any such press release or public statement or (ii) where such press release or other public statements are consistent with previous press releases, public disclosures or public statements issued or made in accordance with this Agreement. The Parties agree that the initial press release to be issued with respect to the transactions contemplated hereby shall be in the form agreed to by the Parties. Notwithstanding the foregoing, (a) Company Parent and its Affiliates may, without consultation or consent, make ordinary course disclosure and communication to existing or prospective general or limited partners, equity holders, members, managers and investors of such Person or any Affiliates of such Person, in each case who are subject to customary confidentiality restrictions, and (b) other than in any current report on Form 8-K filed with the SEC in connection with the announcement of the transactions contemplated hereby, nothing in this ‎Section 6.2 shall require Parent to consult with or obtain prior consent of Company Parent with respect to Parent’s periodic or ongoing reports filed with or furnished to the SEC.

Section 6.3 Expenses. Except as otherwise expressly provided herein, all costs and expenses incurred or to be incurred in connection with this Agreement and the transactions contemplated hereby will be paid by the Party (or, in the case of Merger Sub, by Parent) incurring such cost or expense. Parent has delivered to Company Parent a written statement setting forth the Transaction Expense Amount (including specifying the portion of the Transaction Expense Amount paid or payable to each vendor on a vendor-by-vendor basis).

Section 6.4 Defense of Litigation. Company Parent shall promptly (and in any event, within three (3) Business Days) advise Parent, and Parent shall promptly (and in any event, within three (3) Business Days) advise Company Parent, of its receipt of notice, or otherwise becoming aware, of any Action commenced or, to the knowledge of such Party, threatened to be commenced, after the date hereof against such Party or any of its Affiliates (in the case of Parent, including the Company and its Subsidiaries) by any stockholder or Governmental Authority or any other Person relating to this Agreement and the transactions contemplated hereby, and shall keep Parent or Company Parent, as applicable, reasonably informed regarding any such litigation. Company Parent shall give Parent the opportunity to consult with Company Parent regarding, and/or participate in (but not control), the defense or settlement of any such Action and shall consider Parent’s views with respect to such Action, and shall not settle, compromise or enter into any agreement or arrangement, or consent to the entry of, or fail to defend against entry of, any order or judgment, with respect to any such Action without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). Parent shall give Company Parent the opportunity to consult with Parent regarding, and/or participate in (but not control), the defense or settlement of any such Action and shall consider Company Parent’s views with respect to such Action, and shall not settle, compromise or enter into any agreement or arrangement, or consent to the entry of, or fail to defend against entry of, any order or judgment, with respect to any such Action without the prior written consent of Company Parent (such consent not to be unreasonably withheld, conditioned or delayed).

Section 6.5 Obligations of Merger Sub. Parent shall take all actions necessary to cause Merger Sub to perform its obligations under this Agreement.

Section 6.6 Waiver of Conflicts Regarding Representation.

(a) The Parties agree that, notwithstanding any current or prior representation of (1) the Company or any of its Subsidiaries, or any and all of their respective predecessors and successors, or (2) any current or former general or limited partners, members, investors, stockholders, managers, officers, directors, employees, agents, assignees or Representatives of any of the Persons set forth in clause (1), in each case or any of their respective Affiliates (collectively, the “Represented Persons”) by Kirkland & Ellis or Morris Nichols, each of Kirkland & Ellis and Morris Nichols will be allowed to represent any of the Represented Persons or any of their respective affiliates in any matters or disputes that, directly or indirectly, arise out of or relate to (x) the Transaction Documents or any of the transactions and matters contemplated hereby or thereby (including the Pre-Closing Reorganization), (y) any other of the Collective Agreements or the transactions and matters contemplated thereby, or (z) Bobcat or the Bobcat Transaction (any such matter or dispute, a “Post-Closing Representation”). Parent does hereby, and agrees to cause its Affiliates to, (i) agree that each of Kirkland & Ellis and Morris Nichols may each represent (and none of Parent or any of its Affiliates or Representatives will seek to disqualify or otherwise prevent Kirkland & Ellis, Morris Nichols or any such other legal representative from representing) any of the Represented Persons or such affiliates in connection with a Post-Closing Representation and (ii) waive any claim they have or may have that Kirkland & Ellis or Morris Nichols has a conflict of interest or is otherwise prohibited from engaging in a Post-Closing Representation, even if, in any case, the interests of the Represented Persons or such affiliates may be directly adverse to Parent or its Affiliates and even though Kirkland & Ellis or Morris Nichols may have represented the Represented Persons or such Affiliates in a matter substantially related to such dispute, or may be handling ongoing matters for any of the Represented Persons or such affiliates.

(b) Parent acknowledges and agrees, on behalf of itself and its Affiliates, that (i) all Protected Information and all Privileged Information (and, in each case, all rights and privileges related thereto) shall, subject to the terms of this ‎Section 6.6, be excluded from the assets possessed by the Company and its Subsidiaries at and after the Effective Time and shall be controlled and solely owned by Company Parent on behalf of all Represented Persons, and shall not pass to or be claimed by the Surviving Company, Parent or its Affiliates, and (ii) neither Company Parent nor any of its Affiliates or Representatives shall be obligated to provide Parent or any of its Affiliates, or any of their respective Representatives, with access to any Protected Information or any Privileged Information.

(c) For the avoidance of doubt, none of Parent, the Surviving Company or their respective Affiliates will have any rights or access to any Protected Information or any Privileged Information, wherever maintained. Further, none of Parent, the Surviving Company or their respective Affiliates will have any rights or access to any Privileged Information in the files of Kirkland & Ellis, Morris Nichols or any such other legal representative referred to in this ‎Section 6.6.

(d) This ‎Section 6.6 will be irrevocable, and no term of this ‎Section 6.6 may be amended, waived or modified in respect of any Protected Information or any Privileged Information without the prior written consent of Company Parent, on behalf of the Represented Persons. Any such amendment, waiver or modification of this ‎Section 6.6 as to which no such consent is obtained shall be null and void. This ‎Section 6.6 is for the benefit of the applicable Represented Persons and their respective affiliates, each of which is an intended third-party beneficiary of this ‎Section 6.6 and will be entitled to enforce this ‎Section 6.6 against the Parties hereto in such capacity.

(e) For the avoidance of doubt, references to Affiliates of Parent shall include the Surviving Company following the Effective Time.

Section 6.7 Tax Matters Agreement. Without prejudice to the provisions of ‎Article VI, the Parties agree that the Tax Matters Agreement shall be terminated immediately prior to the Effective Time pursuant to the TMA Termination Letter Agreement.

Section 6.8 Deferred Intercompany Gain Tax.

(a) If, at any time following Closing, Parent or any subsidiary thereof receives a Tax refund in respect of all or any portion of the Deferred Intercompany Gain Tax Amount, for any reason (such amounts, the “Refunded Amounts”), Parent shall remit Refunded Amounts to Company Parent (or its designee) by wire transfer of immediately available funds within ten (10) Business Days of receipt of such Refunded Amounts. Parent shall, at Company Parent’s expense, seek to obtain Refunded Amounts at the reasonable request of Company Parent, including in the event a DIG Ruling is received.

(b) If a private letter ruling is obtained providing that the taxable income that would otherwise give rise to the Deferred Intercompany Gain Tax Amount may be excluded from taxable income (a “DIG Ruling”) prior to paying all or a portion of the Deferred Intercompany Gain Tax Amount to an applicable taxing authority, Parent shall remit such portion of the Deferred Intercompany Gain Tax Amount to Company Parent (or its designee) by wire transfer of immediately available funds within ten (10) Business Days of receipt of such DIG Ruling.

(c) Parent shall cooperate in good faith with Company Parent to obtain a DIG Ruling; provided, that Company Parent shall bear any associated expenses and Company Parent’s advisors shall be primarily responsible for preparing materials for and otherwise pursuing the DIG Ruling.

Section 6.9 Intercompany Balances. The Parties agree and acknowledge that any and all intercompany receivables, payables, loans and balances between the Company and Chewy Pharmacy, on the one hand, and Company Parent or any of its other Affiliates (which, for the avoidance of doubt, shall include Bobcat, PetSmart LLC or any of their respective affiliates or related entities), on the other hand (collectively, the “Intercompany Balances”), as of immediately prior to the Closing shall be satisfied and/or settled in full by means of a cash payment, dividend, capital contribution, a combination of the foregoing, or otherwise cancelled and terminated or extinguished. In the event that, following the Closing, the Parties discover or determine that any such Intercompany Balance was not properly settled prior to such time, the Parties and each of their respective Affiliates (which, for the avoidance of doubt, shall include Bobcat, PetSmart LLC or any of their respective affiliates or related entities) shall take all actions necessary to settle and extinguish such Intercompany Balance, retroactive to prior to Closing, without any expense to any Party or any of their respective Affiliates.

Article VII

INDEMNIFICATION

Section 7.1 Indemnification by Company Parent.

(a) General Principles.

(i) Company Parent shall indemnify Parent for:

(1) Any Specified Tax Losses, and

(2) Any Contingent Liability Losses.

(ii) Notwithstanding anything herein to the contrary, Parent shall not have the right to be indemnified for any Indemnifiable Losses to the extent they are in the nature of consequential, indirect or incidental damages, diminution in value damages, lost profits or punitive, special or exemplary damages (except to the extent any such damages are paid to a Third Party in connection with a Third Party claim or awarded by a Governmental Authority). With respect to any Indemnifiable Losses arising from a breach of or inaccuracy in any representation or warranty in ‎Article III or ‎Article IV, any qualification as to materiality or any similar qualification contained in any such representation or warranty shall be disregarded for purposes of determining whether a breach of representation or warranty has occurred and for purposes of calculating the amount of Indemnifiable Losses related thereto. Any Indemnifiable Losses for which Parent is entitled to indemnification under this ‎Article VII shall be determined without duplication of recovery.

(b) Maximum Recovery.

(i) Notwithstanding anything in this Agreement to the contrary, Company Parent’s aggregate liability for indemnification in respect of Specified Tax Losses shall not exceed the lesser of (A) the amount represented by the Specified Tax Losses Shares (plus the Transferred Specified Tax Losses Shares Value and the Cashed Out Specified Tax Losses Shares Value) and (B) $196,000,000.

(ii) Notwithstanding anything in this Agreement to the contrary, Company Parent’s aggregate liability for indemnification in respect of Contingent Liability Losses shall not exceed the lesser of (A) the amount represented by the Contingent Liability Losses Shares (plus the Transferred Contingent Liability Losses Shares Value and the Cashed Out Contingent Liability Losses Shares Value) and (B) $50,000,000.

(iii) For the avoidance of doubt, the amount of any payment obligations of Company Parent pursuant to ‎Section 6.1(e) will not be included in any calculation of Company Parent’s aggregate liability for indemnification pursuant to ‎Section 7.1(b)(i) and ‎Section 7.1(b)(ii).

(i) reduced if and to the extent that Parent and/or its Affiliates receives any “Loss Tax Benefit”, which for purposes hereof shall mean the cash net Tax savings or benefits actually realized by Parent and/or its Affiliates prior to and including in the taxable year that the applicable Indemnifiable Loss is incurred or in the subsequent three (3) years that are attributable to sustaining such Indemnifiable Losses (determined on a “with and without” basis) (which for the avoidance of doubt includes any Tax savings or benefits attributable to the carryback of an Indemnifiable Loss to a prior taxable year);

(ii) increased to take into account any “Tax Cost”, which for purposes hereof shall mean any Taxes actually incurred by Parent and/or its Affiliates in the taxable year that the indemnity is paid or in the subsequent three (3) years that are attributable to the receipt or accrual of the payment under the indemnity provisions of this Agreement related to such Indemnifiable Loss (determined on a “with and without” basis); and

(iii) reduced if and to the extent that Parent and/or its Affiliates have actually received reimbursement for such Indemnifiable Losses from any Third Party (including under any Third Party insurance policy) (net of the amount of any out-of-pocket costs and expenses incurred to recover such reimbursement, including any deductibles or retroactive premiums or increased insurance premiums as a result thereof).

(d) Subsequent Receipt or Payment. If Company Parent compensates Parent or any of its Affiliates for Indemnifiable Losses hereunder and Parent or any of its Affiliates subsequently actually receives (i) a Loss Tax Benefit in the taxable year in which the applicable Indemnifiable Loss is incurred or in the subsequent three (3) years or (ii) reimbursement, in whole or in part, for such Indemnifiable Losses from any Third Party (including under any Third Party insurance policy), Parent will promptly repay to Company Parent the lesser of:

(1) the amount of such Loss Tax Benefit or the amount recovered in respect of such Indemnifiable Losses from such Third Party (including under such Third Party insurance policy), as the case may be, less any out-of-pocket costs and expenses incurred by Parent or any of its Affiliates in recovering the same; or

(ii) the amount paid by Company Parent in excess of such Indemnifiable Losses after the application of ‎Section 7.1(c).

(e) Other. Until the indemnification obligations of Company Parent hereunder have expired in accordance with ‎Section 7.2(a) (including any extension of the survival period in accordance with Section 9.2(a) due to a claim pending final resolution), Company Parent agrees not to sell, assign, transfer, grant any Encumbrance on or otherwise dispose of (i) the Retained Shares and any Escrow Shares from time to time held in the Escrow Account to any Person or (ii) any Parent Class A Common Stock or any Parent Class B Common Stock to any of its Affiliates under common control unless such Affiliate under common control agrees, in customary form reasonably acceptable to Parent, to be bound by the provisions of this Agreement (including the provisions in this ‎Article VII) and the Escrow Agreement.

(i) Until the indemnification obligations of Company Parent hereunder have expired in accordance with ‎Section 7.2(a) (including any extension of the survival period in accordance with Section 9.2(a) due to a claim pending final resolution), Company Parent agrees that it shall retain and keep available an amount of Parent Class B Common Stock corresponding to the Specified Tax Losses Retained Shares Amount and/or Contingent Liability Losses Retained Shares Amount (the “Retained Shares”), and the amount of Retained Shares shall be indicated on Schedule A, as updated from time to time. No more than five (5) Business Days after any payment of any indemnification claim under this ‎Article VII or any release of shares and deposit of cash pursuant to ‎Section 7.1(e)(ii)) (each, an “Escrow Measurement Date”), Company Parent shall recalculate the Specified Tax Losses Retained Shares Amount and the Contingent Liability Losses Retained Shares Amount after giving effect to such payment or release of shares. For clarity, (x) the appropriate number of Retained Shares in respect of the Specified Tax Losses Retained Shares Amount, if any and (y) the appropriate number of Retained Shares in respect of the Contingent Liability Losses Retained Shares Amount, if any, shall be re-determined on each Escrow Measurement Date, and, to the extent that the number of Retained Shares determined as of any Escrow Measurement Date in respect of either the Specified Tax Losses Retained Shares Amount or the Contingent Liability Losses Retained Shares Amount, as applicable, is lower than such number determined as of the immediately preceding Escrow Measurement Date, such excess number of shares of Parent Class B Common Stock shall no longer be Retained Shares subject to the immediately preceding sentence. Following each re-determination of the Specified Tax Losses Retained Shares Amount, the Contingent Liability Losses Retained Shares Amount and the Retained Shares, Company Parent shall promptly (and in any event within five (5) Business Days of each Escrow Measurement Date) deliver, or cause to be delivered, to Parent an updated Schedule A, which shall replace and supersede any prior Schedule A for all purposes hereunder. If no such updated Schedule A is delivered to Parent within ten (10) Business Days of an Escrow Measurement Date, Parent shall be entitled to update Schedule A with its calculations of the Specified Tax Losses Retained Shares Amount, the Contingent Liability Losses Retained Shares Amount and the Retained Shares.

(ii) Company Parent shall have the right, and the Escrow Agreement shall provide Company Parent the right, at any time and from time to time following the date hereof, to cause the release of shares of Parent Class B Common Stock held in the Escrow Account in respect of Contingent Liability Losses or Specified Tax Losses, as the case may be, from the Escrow Account to Company Parent by Company Parent or its designee depositing cash in an amount (per share of Parent Class B Common Stock to be so released) equal to the greater of (A) $50.00 and (B) the 15 Day VWAP measured as of the applicable release date. Any shares of Parent Class B Common Stock released pursuant to this ‎Section 7.1(e)(ii) shall no longer be Escrow Shares or otherwise subject to this ‎Article VII. Any such released shares that were held in the Escrow Account in respect of Contingent Liability Losses shall be referred to herein as “Cashed Out Contingent Liability Losses Shares” and any such released shares that were held in the Escrow Account in respect of Specified Tax Losses shall be referred to herein as “Cashed Out Specified Tax Losses Shares”. The Parties shall (as applicable) deliver joint instructions to the Escrow Agent providing for any such release contemplated by this ‎Section 7.1(e)(ii). Any cash deposited into the Escrow Account pursuant to this ‎Section 7.1(e)(ii) shall be invested, pursuant to the terms of the Escrow Agreement, in money market funds or short-term treasury securities, or, if mutually agreed by Company Parent and Parent, other high-quality debt investments.

(iii) The Parties acknowledge and agree that, without limiting Company Parent’s obligations under this Agreement, any claims for indemnification pursuant to this ‎Article VII may be satisfied by Company Parent, in its sole discretion, by (1) causing the Escrow Agent and/or Company Parent (or an Affiliate thereof, as applicable), as applicable, to transfer to Parent an amount of Parent Class A Common Stock, free and clear of all Encumbrances, other than Encumbrances on transfer imposed under applicable securities Laws, valued for this purpose by applying the 15 Day VWAP as of the earlier of (x) the date on which Company Parent has agreed with Parent on the amount of such indemnifiable claim and (y) the date (if any) on which such claim is finally resolved in favor of Parent, which amount of Parent Class A Common Stock, in the case of this clause (1), shall be increased by the amount necessary to satisfy Disposal Costs, (2) causing the Escrow Agent and/or Company Parent (or an Affiliate thereof, as applicable) (as applicable) to transfer an amount, in cash, equal to such indemnifiable claim (as finally determined pursuant to the terms hereof) or (3) any combination of clause (1) and (2), as determined by Company Parent. Notwithstanding the foregoing or anything to the contrary contained herein or in any of the other Transaction Documents, in the event that any claim made in accordance with the terms hereof by Parent prior to the end of the Specified Tax Losses Period or Contingent Liabilities Losses Period, as applicable, has not been finally resolved as of such date, Company Parent shall not distribute or otherwise transfer or dispose of, and shall continue to maintain for the purpose of satisfying any such unresolved claims for Indemnifiable Losses (if and to the extent finally resolved in favor of Parent), such number of shares of Parent Class A Common Stock that are Escrow Shares equal to the quotient (rounded to the nearest whole share) obtained by dividing the aggregate amount of all such unresolved claims for Indemnifiable Losses by the 15 Day VWAP as of the end of the Specified Tax Losses Period or Contingent Liabilities Losses Period, as applicable.

(iv) If at any time following the execution of this Agreement, any change in outstanding Parent Common Stock shall occur by reason of any reclassification, recapitalization, stock split or combination, split-up, exchange or readjustment of shares or any stock dividend thereon with a record date, payment date or ex-dividend date during such period, or any similar extraordinary transaction or event (including any merger, consolidation, share exchange, business combination or similar transaction as a result of which Parent Common Stock will be converted or exchanged), the references to Parent Common Stock and any other similarly dependent items, as the case may be, shall be appropriately and equitably adjusted to provide Company Parent, the Parent Stockholders and the Parties the same economic effect as contemplated by this Agreement prior to such event. The references to Parent Class B Common Stock or Parent Common Stock in this ‎Section 7.1 shall apply equally to Parent Class A Common Stock that become Escrow Shares or Retained Shares, whether by conversion or otherwise.

Section 7.2 Survival and Notice of Claims.

(a) (i) Any claims with respect to Specified Tax Losses shall survive until the earlier of (A) sixty (60) days following the expiration of the statute of limitations on assessment of the applicable Specified Tax Loss or (B) the date on which a Tax Contest relating to a Specified Tax Loss or a U.S. federal income Tax Return to which such Specified Tax Loss relates is settled, closed or otherwise resolved (including through the issuance of a final closing letter by the relevant Taxing Authority) (the “Specified Tax Losses Period”) and (ii) any claims with respect to Contingent Liability Losses shall survive until four (4) years after the Closing Date (the “Contingent Liabilities Losses Period”); provided that, any claim made by Parent within the time period set forth in this ‎Section 7.2(a), and otherwise in accordance with this ‎Article VII, shall survive until such claim is finally resolved; provided, further, that any claim that may be subject to both clauses (i) and (ii) above will survive until the longest survival period under clauses (i) and (ii) of this ‎Section 7.2(a).

(b) Parent shall use commercially reasonable efforts to give Company Parent notice of any matter that Parent has determined has given or could reasonably be expected to give rise to a right of indemnification under this Agreement within forty-five (45) days of such determination. The failure to provide such notice within the specified time period shall not relieve Company Parent of any obligation in respect of the claim except to the extent that Company Parent shall have been actually and materially prejudiced thereby.

(c) To the extent feasible, any payment for indemnification hereunder shall be paid prior to any requirement for Parent to pay such amounts to a Third Party. In the event that there are any Indemnifiable Losses, as determined in accordance with this Article IX, and Parent is required to pay any such amounts to any Governmental Authority or other Third Party in advance of any indemnification payment made by Company Parent hereunder, such Indemnifiable Losses will include an amount of accrued interest at SOFR for the time period between Parent’s payment of such Indemnifiable Losses and payment by Company Parent under this ‎Article VII.

Section 7.3 Remedies. Subject to ‎Section 8.13, the Parties acknowledge and agree that following the Closing, other than in respect of any obligations set forth in ‎Section 6.1(e) and actual common law fraud (with scienter and not constructive fraud) under Delaware law, the indemnification provisions of this ‎Article VII for the benefit of Parent (which, for clarity, are not for the benefit of and shall not in any event be enforceable by any of Parent’s Affiliates or Representatives or any other Person) will be the sole and exclusive remedy of Parent or any of its Affiliates or Representatives or any other Person for any claims or causes of action that may be based upon, arise out of or relate to this Agreement, the other Transaction Documents, or any of the transactions contemplated hereby or thereby, or the negotiation, execution or performance of this Agreement or the Transaction Documents.

Section 7.4 Third Party Claims. If any claim is made by a Third Party that, if sustained, would give rise to indemnification under ‎Section 7.1 (other than claims for Specified Tax Losses which shall be governed solely by ‎Section 7.5), Parent will promptly notify Company Parent in accordance with, and subject to, ‎Section 7.2(b). Except pursuant to the penultimate sentence of this ‎Section 7.4, Company Parent shall have the right upon written notice to Parent, within twenty (20) days after receipt from Parent of the applicable ‎Section 7.2(b) notice, to conduct and control at its expense and through counsel of its own choosing that is reasonably satisfactory to Parent the defense against such Third Party claim. In the event that Company Parent elects to conduct the defense of such Third Party claim, Parent will reasonably cooperate with Company Parent as may be reasonably requested by Company Parent, and Parent shall have the right at its own expense to participate in the defense of such Third Party claim assisted by counsel of its own choosing. Without the prior written consent of Parent, Company Parent will not enter into any settlement or compromise of any Third Party claim, unless such settlement or compromise would (i) include a complete and unconditional release of each of Parent and any of its applicable Affiliates from all liabilities or obligations with respect thereto, (ii) not impose any liabilities or obligation (including any equitable remedies) on Parent or any of its Affiliates other than financial obligations for which Parent is fully indemnified hereunder and (iii) not involve a finding, statement or admission of any fault, culpability, failure to act or wrongdoing on the part of the Parent or any of its Affiliates. Company Parent shall not be entitled to control, and Parent shall be entitled to have control over (at Parent’s expense, but subject to Parent’s rights to indemnification hereunder), the defense of such Third Party claim, upon notice to Company Parent, in the event (x) such Third Party claim relates to or arises in connection with any criminal Proceeding, action, indictment, allegation or investigation, (y) Company Parent shall not have timely elected to assume control over such defense in accordance with this ‎Section 7.4, or (z) of a Proceeding to which Company Parent is also a party and, based upon the written advise of outside counsel, an actual legal conflict exists as a result of Company Parent’s control over such defense; provided, that Company Parent may elect to participate in such defense or settlement at any time at its own expense.

Section 7.5 Tax Contests.

(a) Notice. Parent shall provide prompt notice to Company Parent of any written communication from a Tax Authority regarding any pending or threatened Tax Contest of which it becomes aware related to any Specified Tax Losses. Such notice shall include copies of any written communication from such Tax Authority in respect of such matter and contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail. If Parent has knowledge of an asserted Tax liability with respect to a Specified Tax Loss and fails to give Company Parent prompt notice, and such failure to give prompt notice results in a material monetary detriment to Company Parent, then any amount which Company Parent is otherwise required to pay Parent pursuant to this Agreement shall be reduced by the amount of such detriment. No voluntary extension of any statute of limitations for any Tax period with respect to which a Specified Tax Loss may arise may be granted without the prior written consent of Company Parent (which consent shall not be unreasonably withheld, conditioned or delayed).

(b) Control of Tax Contests.

(i) Tax Contests shall be controlled and administered by (x) Company Parent if such Tax Contest is primarily related to any Specified Tax Losses and (y) by Parent if such Tax Contest includes any Specified Tax Losses but primarily relates to Taxes for which Parent may not be indemnified under this Agreement (in each case, the “Controlling Company”). Each applicable Controlling Company shall bear the costs and expenses incurred with respect to a Tax Contest (which, in the case of any Tax Contest primarily related to any Specified Tax Losses, shall include the reasonable costs and expenses incurred by Parent with respect to a Tax Contest).

(ii) The Controlling Company must obtain the prior written consent of the other non-controlling Company (the “Non-Controlling Company”) prior to contesting, litigating, compromising or settling any Tax Contest related to an adjustment for Specified Tax Losses (which consent shall not be unreasonably withheld, conditioned or delayed). Unless waived by the Parties in writing, in connection with any potential adjustment for a Specified Tax Loss in a Tax Contest for which the Non-Controlling Company may reasonably be expected to become liable: (i) the Controlling Company shall keep the Non-Controlling Company informed in a timely manner of all actions taken or proposed to be taken by the Controlling Company with respect to such potential adjustment in such Tax Contest; (ii) the Controlling Company shall provide the Non-Controlling Company copies of any written materials relating to such potential adjustment in such Tax Contest received from any Tax Authority; (iii) the Controlling Company shall timely provide the Non-Controlling Company with copies of any correspondence or filings submitted to any Tax Authority or judicial authority in connection with such potential adjustment in such Tax Contest; (iv) the Controlling Company shall consult with the Non-Controlling Company (including, without limitation, regarding the use of outside advisors to assist with the Tax Contest) and offer the Non-Controlling Company a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such potential adjustment in such Tax Contest; and (v) the Controlling Company shall defend such Tax Contest diligently and in good faith.

(iii) Unless waived by the Parties in writing, the Controlling Company shall provide the Non-Controlling Company with written notice reasonably in advance of, and the Non-Controlling Company shall have the right to attend, any formally scheduled meetings with Tax Authorities or hearings or proceedings before any judicial authorities in connection with any potential adjustment in a Tax Contest pursuant to which the Non-Controlling Company may reasonably be expected to become liable.

Section 7.6 Indemnification Information Rights. On and after the Closing Date, at Company Parent’s reasonable request and upon reasonable prior notice, Parent shall allow, and shall procure that its Subsidiaries allow, Company Parent, its Affiliates and their Representatives to reasonably investigate the matter or circumstance alleged to give rise to any claim for indemnification hereunder, and Parent shall give, and shall procure that its Subsidiaries give, all such reasonably necessary information and assistance, including reasonable access to premises and personnel of Parent and its Subsidiaries, and the right to reasonably examine and copy or photograph any assets, accounts, documents and records of Parent and its Subsidiaries, in each case as Company Parent, its Affiliates or their Representatives may reasonably request in connection with such investigation. Notwithstanding the foregoing, the access provided pursuant to this ‎Section 7.6 shall be conducted in such a manner so as not to interfere unreasonably with the operation of the business of Parent and its Subsidiaries, and nothing in this ‎Section 7.6 shall require Parent or any of its Subsidiaries to disclose or provide access to any information to Company Parent that would reasonably be likely to (x) cause a loss of privilege to Parent or any of its Subsidiaries or (y) constitute a violation of applicable Law or Contract, subject, in the case of clauses (x) and (y), to Parent using reasonable efforts to, and cooperating with Company Parent in, developing and implementing reasonable alternative arrangements to provide Company Parent, its Affiliates and their Representatives with the full benefit of this ‎Section 7.6 without causing, creating or constituting any such loss, breach, burden, interference or violation, as applicable. Notwithstanding the foregoing, if the Parties are in an adversarial relationship in any legal proceeding, the furnishing of information, documents or records in accordance with this ‎Section 7.6 shall be subject to any applicable rules relating to discovery.

Article VIII

MISCELLANEOUS

Section 8.1 Effectiveness of Representations, Warranties and Agreements. Except as set forth in the next sentence, the respective representations, warranties, covenants and agreements of the Parties contained herein or in any certificate delivered pursuant hereto prior to or at the Closing will terminate at the Effective Time. The terms of ‎Article I, ‎Section 2.6, ‎Section 2.7, ‎Section 2.8, ‎Section 6.1, ‎Section 6.8, ‎Article VII and this ‎Article VIII, as well as the covenants and other agreements set forth in this Agreement that by their terms apply, or that are to be performed, in whole or in part, after the Effective Time, shall survive the consummation of the Merger; any representations or warranties of Company Parent or the Company shall survive for the period set forth in ‎Section 7.2(a).

Section 8.2 Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given (a) on the date of delivery if delivered personally or sent via facsimile or e-mail or (b) on the first (1st) Business Day following the date of dispatch if sent by a nationally recognized overnight courier (providing proof of delivery), in each case to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):

if to Parent, Merger Sub or the Surviving Company, to:

Chewy, Inc.

7700 West Sunrise Boulevard

Plantation, FL 33322

Attention:

General Counsel

Email:

generalcounsel@chewy.com

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

Cleary Gottlieb Steen & Hamilton LLP

One Liberty Plaza

New York, NY 10006

Attention:

Paul J Shim

Kyle A. Harris

Email:

pshim@cgsh.com

kaharris@cgsh.com

if to the Company or Company Parent, to:

c/o BC Partners Advisors L.P.

650 Madison Avenue, 23rd Floor

New York, NY 10022

Attention: Michael Chang

Email: Michael.Chang@bcpartners.com

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

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

	Attention:	Peter Martelli, P.C.
		Edward J. Lee, P.C.
	Email:	peter.martelli@kirkland.com
		edward.lee@kirkland.com

Section 8.3 Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the documents and the instruments referred to herein) and the other Transaction Documents constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral (except the Collective Agreements), among the parties with respect to the subject matter hereof and no Party is relying on, and expressly disclaims reliance on, any other oral or written representation, agreement or understanding and no Party makes any express or implied representation or warranty in connection with the transactions contemplated by this Agreement, in each case other than as set forth in this Agreement. This Agreement is not intended to and shall not confer upon any Person other than the Parties any rights or remedies except (a) for the provisions of ‎Article II and (b) as provided in ‎Section 6.6.

Section 8.4 Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of Law or otherwise by any of the Parties hereto without the prior written consent of the other Parties.

Section 8.5 Amendment and Supplements. This Agreement may be amended or supplemented at any time by additional written agreements signed by, or on behalf of the Parties (which must include, in the case of Parent, the approval of the Special Committee), as may mutually be determined by the Parties to be necessary, desirable or expedient to further the purpose of this Agreement or to clarify the intention of the Parties. This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each of the Parties in interest at the time of the amendment and, with respect to ‎Section 6.6, any other Person whose consent is required to effect such amendment.

Section 8.6 Headings. The headings and table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

Section 8.7 Waiver. No provision of this Agreement may be waived except by a written instrument signed by the Party against whom the waiver is to be effective (which must include, in the case of Parent, the approval of the Special Committee). Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party (which must include, in the case of Parent, the approval of the Special Committee). No failure or delay by any Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided herein shall be cumulative and not exclusive of any rights or remedies provided by Law.

Section 8.8 Counterparts. This Agreement may be executed in one (1) or more counterparts, all of which shall be considered one (1) and the same agreement and shall become effective when one (1) or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. The exchange of copies of this Agreement and of signature pages by facsimile or e-mail shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or e-mail shall be deemed to be their original signatures for all purposes.

Section 8.9 Applicable Law. All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to its rules of conflict of Laws.

Section 8.10 Jurisdiction. Each of the Parties hereto (a) irrevocably and unconditionally consents to submit itself to the sole and exclusive personal jurisdiction of the Court of Chancery of the State of Delaware, or, if that court does not have jurisdiction, the Superior Court of the State of Delaware, or, if the subject matter of the action is one over which exclusive jurisdiction is vested in the courts of the United States of America, a federal court sitting in the State of Delaware (collectively, the “Delaware Courts”) in connection with any dispute, claim, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby, (b) waives any objection to the laying of venue of any such litigation in any of the Delaware Courts, (c) agrees not to plead or claim in any such court that such litigation brought therein has been brought in an inconvenient forum and agrees not otherwise to attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave from any such court, and (d) agrees that it will not bring any Action in connection with any dispute, claim, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby, in any court or other tribunal, other than any of the Delaware Courts. All Actions arising out of or relating to this Agreement or the transactions contemplated hereby shall be heard and determined in the Delaware Courts. Each of the Parties hereto hereby irrevocably and unconditionally agrees that service of process in connection with any dispute, claim, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby may be made upon such Party by prepaid certified or registered mail, with a validated proof of mailing receipt constituting evidence of valid service, directed to such Party at the address specified in ‎Section 8.2 hereof. Service made in such manner, to the fullest extent permitted by applicable Law, shall have the same legal force and effect as if served upon such Party personally within the State of Delaware. Nothing herein shall be deemed to limit or prohibit service of process by any other manner as may be permitted by applicable Law.

Section 8.11 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT. 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) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10.11.

Section 8.12 Joint Participation in Drafting this Agreement. The Parties acknowledge and confirm that each of their respective attorneys have participated jointly in the drafting, review and revision of this Agreement and that it has not been written solely by counsel for one Party and that each Party has had the benefit of its independent legal counsel’s advice with respect to the terms and provisions hereof and its rights and obligations hereunder. Each Party hereto, therefore, stipulates and agrees that the rule of construction to the effect that any ambiguities are to be or may be resolved against the drafting Party shall not be employed in the interpretation of this Agreement to favor any Party against another and that no Party shall have the benefit of any legal presumption or the detriment of any burden of proof by reason of any ambiguity or uncertain meaning contained in this Agreement.

Section 8.13 Enforcement of this Agreement. The Parties acknowledge and agree that irreparable damage would occur and that the Parties would not have any adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement (without the obligation to post a bond therefor) and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the State of Delaware, this being in addition to any other remedy to which they are entitled at law or in equity. Notwithstanding anything to the contrary contained herein, any determination by the Parent Board with respect to the enforcement (or non-enforcement) of Parent’s rights hereunder shall be made only with the approval of the Special Committee.

Section 8.14 Limited Liability. Notwithstanding any other provision of this Agreement, no stockholder, member, partner, director, officer, Affiliate, agent or Representative of any Party (other than Parent as the sole member of Merger Sub) will have any Liability for a breach of the covenants, obligations, representations or warranties of Parent, the Company or (to the extent applicable) Company Parent, respectively, hereunder or under any certificate or letter delivered by the Parties, with respect thereto and, to the fullest extent legally permissible, each Party, for itself and its stockholders, members, partners, directors, officers, Affiliates, agents and Representatives, waives and agrees not to seek to assert or enforce any such Liability which any such Person otherwise might have pursuant to applicable Law.

Section 8.15 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect, insofar as the foregoing can be accomplished without materially affecting the economic benefits anticipated by the Parties to this Agreement. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible to the fullest extent permitted by applicable Law in a mutually acceptable manner to the end that the transactions contemplated hereby are fulfilled as originally contemplated to the greatest extent possible.

Section 8.16 Incorporation of Exhibits. The Company Disclosure Letter, the Parent Disclosure Letter and all Exhibits and schedules attached hereto and referred to herein are hereby incorporated herein and made a part hereof for all purposes as if fully set forth herein.

Section 8.17 No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the Parties hereto. No Party is by virtue of this Agreement authorized as an agent, employee or legal Representative of any other Party. No Party shall have the power to control the activities and operations of any other and their status is, and at all times shall continue to be, that of independent contractors with respect to each other. No Party shall have any power or authority to bind or commit any other Party. No Party shall hold itself out as having any authority or relationship in contravention of this ‎Section 8.17.

Section 8.18 No Recourse. This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, the other Transaction Documents, or any of the transactions contemplated hereby or thereby, or the negotiation, execution or performance of this Agreement or the Transaction Documents, may only be made against the entities that are expressly identified as Parties hereto (and only to the extent thereto) and no former, current or future stockholder, member, general or limited partner, manager, director, officer, Affiliate, agent, assignee or Representative of any Party or of any of such Party’s Affiliates shall have any liability for any obligations or liabilities of such Party to this Agreement or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the transactions contemplated hereby or thereby or in respect of any oral representations or agreements made or alleged to be made in connection herewith. Without limiting the rights of Parent against Company Parent or the Company hereunder, in no event shall Parent or any of its Affiliates, and Parent agrees not to and to cause its Affiliates not to, seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any former, current or future stockholder, member, general or limited partner, manager director, officer, Affiliate, assignee agent or Representative of any Party or of any of such Party’s Affiliates, other than the express Parties to this Agreement.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and Plan of Merger as of the date first above written.

CHEWY, INC.

By:	/s/ Stacy Bowman
	Name:	Stacy Bowman
	Title:	Interim Chief Financial Officer and Chief Accounting Officer

CHEWY KENTUCKY HOLDING, LLC
By Its Sole Member: Chewy, Inc.

By:	/s/ Stacy Bowman
	Name:	Stacy Bowman
	Title:	Interim Chief Financial Officer and Chief Accounting Officer

[Signature Page to Agreement and Plan of Merger]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and Plan of Merger as of the date first above written.

	BUDDY CHESTER SUB PARENT HOLDCO, INC.

	By:	/s/ Alan M. Schnaid
		Name: Alan M. Schnaid
		Title: President and Treasurer

[Signature Page to Agreement and Plan of Merger]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement and Plan of Merger as of the date first above written.

Solely for the purposes of Article II, Article III, Article IV, Article VI, Article VII and Article VIII, BUDDY CHESTER SUB LLC

By:	/s/ Alan M. Schnaid
	Name:	Alan M. Schnaid
	Title:	President, Chief Financial Officer and Treasurer

[Signature Page to Agreement and Plan of Merger]

Exhibit 10.1

AMENDED AND RESTATED

INVESTOR RIGHTS AGREEMENT

dated as of

October 30, 2023

by and among

CHEWY, INC.

and

THE OTHER PERSONS SET FORTH ON THE SIGNATURE PAGES HERETO

TABLE OF CONTENTS

Page

Article I DEFINITIONS

Section 1.1	Definitions	1
Article II TRANSFER

Section 2.1	Transfers and Joinders	4
Section 2.2	Binding Effect on Transferees	4
Section 2.3	Additional Purchases	4
Section 2.4	Charter Provisions	5
Article III BOARD REPRESENTATION

Section 3.1	Nominees	5
Section 3.2	Committees	7
Article IV TERMINATION

Section 4.1	Term	7
Section 4.2	Survival	7
Article V REGISTRATION RIGHTS

Section 5.1	Demand Registration	7
Section 5.2	Piggyback Registration	9
Section 5.3	Shelf Registration	11
Section 5.4	Withdrawal Rights	13
Section 5.5	Holdback Agreements	13
Section 5.6	Registration Procedures	14
Section 5.7	Registration Expenses	19
Section 5.8	Request for Information	20
Section 5.9	No Grant of Future Registration Rights	20
Section 5.10	Confidentiality	20
Article VI
ADDITIONAL AGREEMENTS

Section 6.1	Standstill	21
Section 6.2	Change of Control Transactions	22

Section 6.3	Transfer Restrictions	23
Section 6.4	Class B Share Conversions	23
Article VII INDEMNIFICATION

Section 7.1	General Indemnification	24
Section 7.2	Registration Statement Indemnification	25
Section 7.3	Notice	26
Section 7.4	Defense of Actions	26
Section 7.5	Contribution	27
Article VIII MISCELLANEOUS

Section 8.1	Notices	28
Section 8.2	Interpretation	28
Section 8.3	Severability	28
Section 8.4	Counterparts	28
Section 8.5	Adjustments Upon Change of Capitalization	29
Section 8.6	Entire Agreement; No Third Party Beneficiaries	29
Section 8.7	Further Assurances	29
Section 8.8	Governing Law; Equitable Remedies	29
Section 8.9	Consent to Jurisdiction	30
Section 8.10	Amendments; Waivers	30
Section 8.11	Successors and Assigns	30
Section 8.12	Rule 144	31

AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT

This Amended and Restated Investor Rights Agreement (the “Agreement”), is made and entered into as of October 30, 2023, by and among Chewy, Inc., a Delaware corporation (the “Company”), and the Persons (as defined herein) set forth on the signature pages hereto (together with all other Persons who become Company stockholders party hereto in accordance with this Agreement, the “Stockholders”).

WHEREAS, in connection with the Merger Agreement (as defined herein), the Stockholders and the Company desire to address herein certain relationships among themselves.

NOW, THEREFORE, in consideration of the mutual covenants and undertakings contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

Article I

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, the following terms shall have the following meanings:

An “AFFILIATE” of any Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person; provided, however, that (i) portfolio companies in which any Person or any of its Affiliates that is a private equity fund, venture capital fund or similar investment fund, has an investment as part of the overall investment portfolio of such Person or Affiliate, shall not be deemed an Affiliate of such Person, or (ii) the Company, any of its Subsidiaries or any of the Company’s other Controlled Affiliates, in each case, shall not be deemed to be Affiliates of the Stockholders for purposes of Article VI of this Agreement; provided, further, that, notwithstanding the foregoing, the provisions of Article VI of this Agreement shall apply to PetSmart LLC, and it will be deemed an Affiliate for purposes of Article VI, in each case, solely to the extent of the Stockholders’ control as a stockholder of PetSmart LLC.

“BENEFICIAL OWNERSHIP” has the same meaning given to it in Section 13(d) under the Exchange Act, except that a Person will be deemed to have “beneficial ownership” of all securities that Person has the right to acquire, whether the right is exercisable immediately, only after the passage of time or only after the satisfaction of conditions. The terms “BENEFICIALLY OWN” and “BENEFICIAL OWNER” shall have correlative meanings.

“BOARD” means the board of directors of the Company.

“BOARD NOMINATION TERMINATION DATE” means the first date after the date hereof on which the Stockholders cease to hold in the aggregate Common Shares representing at least five percent (5%) of the aggregate outstanding Common Shares.

“BUSINESS DAY” means any day except a Saturday, a Sunday or other day on which the SEC or the banking institutions in New York, New York are authorized or required by law to be closed.

“BY-LAWS” means the by-laws of the Company, as may be amended and/or restated from time to time.

“CERTIFICATE OF INCORPORATION” means the certificate of incorporation of the Company, as may be amended and/or restated from time to time.

“CLASS A SHARES” means shares of the Class A common stock of the Company and any equity securities issued or issuable in exchange for or with respect to such Class A Shares by way of a dividend, split or combination of shares or in connection with a reclassification, recapitalization, merger, consolidation or other reorganization.

“CLASS B SHARES” means shares of the Class B common stock of the Company and any equity securities issued or issuable in exchange for or with respect to such Class B Shares by way of a dividend, split or combination of shares or in connection with a reclassification, recapitalization, merger, consolidation or other reorganization.

“COMMON SHARES” means the Class A Shares and the Class B Shares.

“CONTROL” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of company securities, by contract or otherwise.

A “CONTROLLED AFFILIATE” of any Person means any Affiliate that directly or indirectly, through one or more intermediaries, is Controlled by such Person.

“DEMAND STOCKHOLDER” means any Stockholder which Beneficially Owns, together with its Affiliates, a number of Registrable Securities representing at least five percent (5%) of the aggregate number of Class A Shares issued and outstanding immediately after the consummation of the IPO (calculated, without duplication, on the basis that all issued and outstanding Class B Shares had been converted into Class A Shares).

“EXCHANGE ACT” means the Securities Exchange Act of 1934, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder.

“FILINGS” means annual, quarterly and current reports and other documents filed or furnished by the Company or any Subsidiary of the Company under the Exchange Act; annual reports to stockholders, annual and quarterly statutory statements of the Company or any Subsidiary of the Company; and any registration statements, prospectuses and other documents filed or furnished by the Company or any of its Subsidiaries or Controlled Affiliates under the Securities Act.

“FINRA” means the Financial Industry Regulatory Authority Inc.

“FREE WRITING PROSPECTUS” means a free writing prospectus, as defined in Rule 405 under the Securities Act.

“GOVERNMENTAL ENTITY” means any court, administrative agency, regulatory body, commission or other governmental authority, board, bureau or instrumentality, domestic or foreign and any subdivision thereof.

“IPO” means the initial public offering of Class A Shares pursuant to an effective Registration Statement under the Securities Act.

“ISSUER FREE WRITING PROSPECTUS” means an issuer free writing prospectus, as defined in Rule 433 under the Securities Act.

“MAJORITY STOCKHOLDERS” means Stockholders holding a majority of voting power of the Voting Securities held by the Stockholders.

“MAJORITY TERMINATION DATE” means the first date after the date hereof on which the Stockholders cease to hold in the aggregate Common Shares representing at least a majority of the aggregate outstanding Common Shares .

“MERGER AGREEMENT” means that certain Agreement and Plan of Merger, dated as of October 30, 2023, by and among the Company, Chewy Kentucky Holding, LLC, Buddy Chester Sub Parent Holdco, Inc. and Buddy Chester Sub LLC.

“PERMITTED TRANSFEREE” means, with respect to a Stockholder (a) any other Stockholder, (b) such Stockholder’s Affiliates, (c) any member, stockholder, or general or limited partner of such Stockholder and (d) any other Person approved by the Company in its sole and absolute discretion.

“PERSON” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, Governmental Entity or other entity.

“PIGGYBACK STOCKHOLDER” means any Stockholder that Beneficially Owns Registrable Securities.

“REGISTRABLE AMOUNT” means a number of Registrable Securities representing at least one percent (1%) of the aggregate number of Class A Shares issued and outstanding immediately after the consummation of the IPO (calculated, without duplication, on the basis that all issued and outstanding Class B Shares had been converted into Class A Shares).

“REGISTRABLE SECURITIES” means any Class A Shares. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (x) a registration statement registering such securities under the Securities Act has been declared effective and such securities have been sold or otherwise Transferred by the holder thereof pursuant to such effective registration statement, or (y) such securities are sold in accordance with Rule 144 (or any successor provision) promulgated under the Securities Act. Notwithstanding the foregoing, any Registrable Securities held by any Person that may be sold under Rule 144(b)(1)(i) without limitation under any of the other requirements of Rule 144 (as confirmed by an opinion of the Company’s counsel) shall not be deemed to be Registrable Securities.

“REPRESENTATIVE” means with respect to a particular Person, any director, officer, manager, employee, agent, consultant, advisor, accountant, financial advisor, legal counsel or other representative of that Person.

“SEC” means the United States Securities and Exchange Commission or any similar agency then having jurisdiction to enforce the Securities Act.

“SECURITIES ACT” means the Securities Act of 1933, as amended, supplemented or restated from time to time and any successor to such statute, and the rules and regulations promulgated thereunder.

“SUBSIDIARY” or “SUBSIDIARIES” means, with respect to any Person, as of any date of determination, any other Person as to which such Person owns, directly or indirectly, or otherwise controls, more than 50% of the voting shares or other similar interests or the sole general partner interest or managing member or similar interest of such Person.

“TRANSFER” means, with respect to any securities, to sell, assign, transfer or otherwise dispose of such securities.

“UNDERWRITTEN OFFERING” means a sale of securities of the Company to an underwriter or underwriters for reoffering to the public.

“VOTING SECURITIES” means Class A Shares, Class B Shares and any other securities of the Company entitled to vote generally in the election of directors of the Company.

Article II

TRANSFER

Section 2.1 Transfers and Joinders. If a Stockholder desires to Transfer any Class A Shares or Class B Shares to a Permitted Transferee, such Permitted Transferee shall, if not a Stockholder, as a condition of such Transfer, execute a joinder to this Agreement, in form and substance reasonably acceptable to the Company, in which such Permitted Transferee agrees to be a “Stockholder” for all purposes of this Agreement and which provides that such Permitted Transferee shall be bound by and shall fully comply with the terms of this Agreement.

Section 2.2 Binding Effect on Transferees. Subject to execution of a joinder to this Agreement, in form and substance reasonably acceptable to the Company, pursuant to Section 2.1, such Permitted Transferee shall become a Stockholder hereunder.

Section 2.3 Additional Purchases. Any Registrable Securities or Voting Securities Beneficially Owned by a Stockholder on or after the date of this Agreement shall have the benefit of and be subject to the terms and conditions of this Agreement.

Section 2.4 Charter Provisions. The parties hereto shall use their respective reasonable efforts (including voting or causing to be voted all of the Voting Securities held of record by such party or Beneficially Owned by such party by virtue of having voting power over such Voting Securities) so as to prevent any amendment to the Certificate of Incorporation or By-Laws as in effect as of the date of this Agreement that would (a) add restrictions to the transferability of the Voting Securities by any Stockholder at the time of such an amendment, which restrictions are beyond those then provided for in the Certificate of Incorporation, this Agreement or applicable securities laws or (b) nullify any of the rights of any Stockholder at the time of such amendment, which rights are explicitly provided for in this Agreement, unless, in each such case, such amendment shall have been approved by such Stockholder.

Article III

BOARD REPRESENTATION

Section 3.1 Nominees.

(a) Until the Majority Termination Date, the Company and each Stockholder that holds Voting Securities shall take all reasonable actions within their respective control (including voting or causing to be voted all of the Voting Securities held of record by such Stockholder or Beneficially Owned by such Stockholder by virtue of having voting power over such Voting Securities, and, with respect to the Company, as provided in Sections 3.1(d) and (e)) so as to cause to be elected to the Board, and to cause to continue in office, not more than thirteen (13) directors (or such other number of directors as the Majority Stockholders may agree to in writing), and at any given time a number of directors equal to a majority of the Board shall be individuals designated by the Majority Stockholders.

(b) On and following the Majority Termination Date until the Board Nomination Termination Date, the Company and each Stockholder that holds Voting Securities shall take all reasonable actions within their respective control (including voting or causing to be voted all of the Voting Securities held of record by such Stockholder or Beneficially Owned by such Stockholder by virtue of having voting power over such Voting Securities, and, with respect to the Company, as provided in Sections 3.1(d) and (e)) so as to cause to be elected to the Board, and to cause to continue in office, a number of directors set forth below which shall be individuals designated by the Majority Stockholders.

Common Shares Beneficially Owned by the Stockholders as a percentage of the outstanding Common Shares	Number of directors
Less than or equal to fifty percent (50%) but at least forty percent (40%)	6
Less than forty percent (40%) but at least thirty percent (30%)	5
Less than thirty percent (30%) but at least twenty percent (20%)	4
Less than twenty percent (20%) but at least ten percent (10%)	3
Less than ten percent (10%) but at least five percent (5%)	2

(c) Until the Board Nomination Termination Date, if the Majority Stockholders notify the Company and the other Stockholders of their desire to remove, with or without cause, any director designated by the Majority Stockholders, the Stockholders shall vote or cause to be voted all of the Voting Securities held of record by such Stockholders or Beneficially Owned by such Stockholders by virtue of having voting power over such Voting Securities and take all other reasonable actions within their control to cause the removal of such director.

(d) The Company agrees to include in the slate of nominees recommended by the Board, at all of the Company’s applicable annual or special meetings of stockholders (or written consents) at which directors are to be elected, those persons designated by the Majority Stockholders in accordance with Sections 3.1(a) and (b) and to use its reasonable best efforts to cause the election of each such designee to the Board, including nominating such designees to be elected as directors, in each case subject to applicable law.

(e) In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of any director who is designated by the Majority Stockholders in accordance with Sections 3.1(a) or (b), the Company agrees to take at any time and from time to time all actions necessary to cause the vacancy created thereby to be filled as promptly as practicable by a new designee of the Majority Stockholders. In the event that the size of the Board is not comprised of thirteen (13) directors, the Company agrees to take at any time and from time to time all actions necessary to cause the Board to continue to have the number of the designees of the Majority Stockholders that corresponds, as a percentage of the total number of directors, to the requirements of Sections 3.1(a) and (b) (rounding up to the next whole director) and after the Majority Termination Date, the size of the Board shall not be reduced without the prior approval of a majority of the independent and disinterested directors.

(f) Notwithstanding Section 3.1(e) to the contrary, once the aggregate ownership of Common Shares of the Stockholders falls below an applicable threshold set forth in Section 3.1(b), a number of the directors designated by the Majority Stockholders shall promptly tender their resignation as a director such that the remaining number of directors designated by the Majority Stockholders equals the number of directors the Stockholders are then entitled to appoint under Section 3.1(b), and the Stockholders shall take all reasonable actions within their control to cause the removal of such directors. In the event that a vacancy is created by the resignation or removal of a director under this Section 3.1(f), then the Board may elect to replace such director in accordance with the Certificate of Incorporation and By-laws.

Section 3.2 Committees. For so long as this Agreement is in effect and to the extent requested by the Majority Stockholders, the Company shall take all reasonable actions within its control at any given time so as to cause to be appointed to any committee of the Board a number of directors designated by the Majority Stockholders that is up to the number of directors that is proportionate (rounding up to the next whole director) to the representation that the Majority Stockholders are entitled to designate to the Board under this Agreement, to the extent such directors are permitted to serve on such committees under the applicable rules of the SEC and the New York Stock Exchange or by any other applicable stock exchange. It is understood by the parties hereto that the Majority Stockholders shall not be required to have its directors represented on any committee and any failure to exercise such right in this Section 3.2 in a prior period shall not constitute any waiver of such right in a subsequent period.

Article IV

TERMINATION

Section 4.1 Term. This Agreement and the terms hereof shall terminate, and be of no further force and effect:

(a) upon the mutual consent of all of the parties hereto; and

(b) with respect to a Stockholder and solely with respect to Article V, at such time that such Stockholder together with its Affiliates ceases to Beneficially Own a Registrable Amount.

Section 4.2 Survival. If this Agreement is terminated pursuant to Section 4.1, this Agreement shall become void and of no further force and effect, except for: (i) the provisions set forth in this Section 4.2, Section 5.2 (which shall terminate, and be of no further force and effect, with respect to each Stockholder, at such time as such Stockholder and its Affiliates ceases to Beneficially Own a Registrable Amount), Section 5.7, Article VII, Section 8.8 and Section 8.9; (ii) the rights with respect to the breach of any provision hereof by any party hereto; and (iii) any registration rights vested or obligations accrued as of the date of termination of this Agreement to the extent, in the case of registration rights so vested, if such Stockholder ceases to meet the definition of a Stockholder under this Agreement subsequent to the vesting of such registration rights as a result of action taken by the Company.

Article V

REGISTRATION RIGHTS

Section 5.1 Demand Registration.

(a) At any time on and after the date of this Agreement, any Stockholders that on the date a Demand (as hereinafter defined) is made constitute Demand Stockholders (a “Requesting Stockholder”) shall be entitled to make a written request of the Company (a “Demand”) for registration under the Securities Act of a number of Registrable Securities that equals or is greater than the Registrable Amount (a “Demand Registration”) and thereupon the Company will, subject to the terms of this Agreement, use its reasonable best efforts to effect the registration as promptly as practicable under the Securities Act of:

(i) the Registrable Securities which the Company has been so requested to register by the Requesting Stockholders for disposition in accordance with the intended method of disposition stated in such Demand which may be an Underwritten Offering;

(ii) all other Registrable Securities which the Company has been requested to register pursuant to Section 5.1(b); and

(iii) all Class A Shares which the Company may elect to register in connection with any offering of Registrable Securities, but subject to Section 5.1(f);

all to the extent necessary to permit the disposition (in accordance with the intended methods thereof) of the Registrable Securities and the additional Class A Shares, if any, to be so registered.

(b) A Demand shall specify: (i) the aggregate number of Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known and (iii) the identity of the Requesting Stockholder (or Requesting Stockholders). Within two (2) Business Days after receipt of a Demand, the Company shall give written notice of such Demand to all other Stockholders. Subject to Section 5.1(f), the Company shall include in the Demand Registration covered by such Demand all Registrable Securities with respect to which the Company has received a written request for inclusion therein within five (5) Business Days after the Company’s notice required by this paragraph has been given. Such written request shall comply with the requirements of a Demand as set forth in this Section 5.1(b).

(c) Each Demand Stockholder shall be entitled to an unlimited number of Demand Registrations until such time as such Stockholder Beneficially Owns together with its Affiliates less than a Registrable Amount.

(d) Demand Registrations shall be on such registration form of the SEC for which the Company is eligible as shall be selected by the Requesting Stockholders, including, to the extent permissible, an automatically effective registration statement or an existing effective registration statement filed by the Company with the SEC, and shall be reasonably acceptable to the Company.

(e) The Company shall not be obligated to effect any Demand Registration (A) within ninety (90) days of a “firm commitment” Underwritten Offering in which all Stockholders were given “piggyback” rights pursuant to Section 5.2 (subject to Section 5.1(f)) and provided that at least 50% of the number of Registrable Securities requested by such Stockholders to be included in such Demand Registration were included or (B) within ninety (90) days of any other Underwritten Offering pursuant to Section 5.3(e). In addition, the Company shall be entitled to postpone (upon written notice to all Stockholders) for a reasonable period of time not to exceed ninety (90) days in succession, the filing or the effectiveness of a registration statement for any Demand Registration (but no more than twice, or for more than one hundred and twenty (120) days in the aggregate, in any period of twelve (12) consecutive months) if the Board determines in good faith and in its reasonable judgment that the filing or effectiveness of the registration statement relating to such Demand Registration would cause the disclosure of material, non-public information that the Company has a bona fide business purpose for preserving as confidential. In the event of a postponement by the Company of the filing or effectiveness of a registration statement for a Demand Registration, the holders of a majority of Registrable Securities held by the Requesting Stockholders shall have the right to withdraw such Demand in accordance with Section 5.4.

(f) The Company shall not include any securities other than Registrable Securities in a Demand Registration, except with the written consent of Stockholders participating in such Demand Registration that hold a majority of the Registrable Securities included in such Demand Registration. If, in connection with a Demand Registration, any managing underwriter (or, if such Demand Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such Demand Registration) advises the Company, in writing, that, in its opinion, the inclusion of all of the securities, including securities of the Company that are not Registrable Securities, sought to be registered in connection with such Demand Registration would adversely affect the marketability of the Registrable Securities sought to be sold pursuant thereto, then the Company shall include in such registration statement only such securities as the Company is advised by such underwriter or investment bank can be sold without such adverse effect as follows and in the following order of priority: (i) first, up to the number of Registrable Securities requested to be included in such Demand Registration by the Stockholders, which, in the opinion of the underwriter can be sold without adversely affecting the marketability of the offering, pro rata among such Stockholders requesting such Demand Registration on the basis of the number of such securities held by such Stockholders and such Stockholders that are Piggyback Sellers (as defined below); (ii) second, securities the Company proposes to sell; and (iii) third, all other securities of the Company duly requested to be included in such registration statement, pro rata on the basis of the number of such other securities requested to be included or such other method determined by the Company.

(g) Any investment bank(s) that will serve as an underwriter with respect to such Demand Registration or, if such Demand Registration is not an Underwritten Offering, any investment bank engaged in connection therewith, shall be selected by the Stockholder participating in such Demand Registration that holds a number of Registrable Securities included in such Demand Registration constituting a plurality of all Registrable Securities included in such Demand Registration.

Section 5.2 Piggyback Registration.

(a) Subject to the terms and conditions hereof, whenever the Company proposes to register any of its equity securities under the Securities Act (other than a registration by the Company (x) on a registration statement on Form S-4 or (y) on a registration statement on Form S-8 (or in any of the cases of (x) or (y) on any successor forms thereto)) (each a “Piggyback Registration”), whether for its own account or for the account of others, the Company shall give each Stockholder that on such date constitutes a Piggyback Stockholder prompt written notice thereof (but not less than five (5) Business Days prior to the filing by the Company with the SEC of any registration statement with respect thereto). Such notice (a “Piggyback Notice”) shall specify, at a minimum, the number of equity securities proposed to be registered, the proposed date of filing of such registration statement with the SEC, the proposed means of distribution, the proposed managing underwriter or underwriters (if any and if known) and a good faith estimate by the Company of the proposed minimum offering price of such equity securities. Upon the written request of any Person that on the date of such Piggyback Notice constitutes a Piggyback Stockholder (any such Persons a “Piggyback Seller”) (which written request shall specify the number of Registrable Securities then presently intended to be disposed of by such Piggyback Seller), given within two (2) Business Days after such Piggyback Notice is received by such Person, the Company, subject to the terms and conditions of this Agreement, shall use its reasonable best efforts to cause all such Registrable Securities held by Piggyback Sellers with respect to which the Company has received such written requests for inclusion to be included in such Piggyback Registration on the same terms and conditions as the Company’s equity securities being sold in such Piggyback Registration.

(b) If, in connection with a Piggyback Registration, any managing underwriter (or, if such Piggyback Registration is not an Underwritten Offering, a nationally recognized investment bank engaged in connection with such registration) advises the Company in writing that, in its opinion, the inclusion of all the equity securities sought to be included in such Piggyback Registration by (i) the Company, (ii) others who have sought to have equity securities of the Company registered in such Piggyback Registration pursuant to rights to demand (other than pursuant to so-called “piggyback” or other incidental or participation registration rights) such registration (such Persons being “Other Demanding Sellers”), (iii) the Piggyback Sellers and (iv) any other proposed sellers of equity securities of the Company (such Persons being “Other Proposed Sellers”), as the case may be, would adversely affect the marketability of the equity securities sought to be sold pursuant thereto, then the Company shall include in the registration statement applicable to such Piggyback Registration only such equity securities as the Company is so advised by such underwriter can be sold without such an effect, as follows and in the following order of priority:

(i) if the Piggyback Registration relates to an offering for the Company’s own account, then (A) first, such number of equity securities to be sold by the Company as the Company, in its reasonable judgment and acting in good faith and in accordance with sound financial practice, shall have determined, (B) second, Registrable Securities of Piggyback Sellers and securities sought to be registered by Other Demanding Sellers (if any), pro rata on the basis of the number of Class A Shares proposed to be sold by such Piggyback Sellers and Other Demanding Sellers and (C) third, other equity securities held by any Other Proposed Sellers; or

(ii) if the Piggyback Registration relates to an offering other than for the Company’s own account, then (A) first, such number of equity securities sought to be registered by each Other Demanding Seller and the Piggyback Sellers pro rata in proportion to the number of Class A Shares sought to be registered by all such Other Demanding Sellers (if any) and Piggyback Sellers and (B) second, other equity securities proposed to be sold by any Other Proposed Sellers or to be sold by the Company as determined by the Company and with such priorities among them as may from time to time be determined or agreed to by the Company.

(c) In connection with any Underwritten Offering under this Section 5.2 for the Company’s account, the Company shall not be required to include a holder’s Registrable Securities in the Underwritten Offering unless such holder accepts the terms of the underwriting as agreed upon between the Company and the underwriters selected by the Company.

(d) If, at any time after giving written notice of its intention to register any of its equity securities as set forth in this Section 5.2 and prior to the time the registration statement filed in connection with such Piggyback Registration is declared effective, the Company shall determine for any reason not to register such equity securities, the Company may, at its election, give written notice of such determination to each Piggyback Stockholder within five (5) Business Days thereof and thereupon shall be relieved of its obligation to register any Registrable Securities in connection with such particular withdrawn or abandoned Piggyback Registration (but not from its obligation to pay the Registration Expenses in connection therewith as provided herein); provided, that Stockholders may continue the registration as a Demand Registration pursuant to the terms of Section 5.1.

Section 5.3 Shelf Registration.

(a) Subject to Section 5.3(e), and further subject to the availability of a Registration Statement on Form S-3 or a successor form, which may be an automatically effective registration statement at any time the Company is eligible (“Form S-3”), to the Company, any Stockholder that Beneficially Owns together with its Affiliates more than a Registrable Amount may by written notice delivered to the Company (the “Shelf Notice”) require the Company to (i) file as promptly as practicable (but no later than 30 days after the date the Shelf Notice is delivered), and to use reasonable best efforts to cause to be declared effective by the SEC at the earliest possible date permitted under the rules and regulations of the SEC (but no later than 60 days after such filing date), a Form S-3 (which, if the Company is eligible, shall be an automatic shelf registration statement (as defined in Rule 405 under the Securities Act)), or (ii) use an existing Form S-3 filed with the SEC, in each case providing for an offering to be made on a continuous basis pursuant to Rule 415 under the Securities Act relating to the offer and sale, from time to time, of the Registrable Securities Beneficially Owned by such Stockholder (or any of its Permitted Transferees who are Stockholders), as the case may be, and any other Persons that at the time of the Shelf Notice meet the definition of a Stockholder who elect to participate therein as provided in Section 5.3(c) (the “Shelf Registration Statement”).

(b) Each Stockholder shall be entitled to require the Company to file an unlimited number of Shelf Registration Statements until such time as such Stockholder Beneficially Owns together with its Affiliates less than a Registrable Amount.

(c) Within five (5) Business Days after receipt of a Shelf Notice pursuant to Section 5.3(a), the Company will deliver written notice thereof to each Piggyback Stockholder. Each Piggyback Stockholder may elect to participate in the Shelf Registration Statement by delivering to the Company a written request to so participate within five (5) Business Days after the Shelf Notice is received by any such Piggyback Stockholder.

(d) Subject to Section 5.3(e), the Company will use reasonable best efforts to keep the Shelf Registration Statement continuously effective until the date on which all Registrable Securities covered by the Shelf Registration Statement have been sold thereunder in accordance with the plan and method of distribution disclosed in the prospectus included in the Shelf Registration Statement, or otherwise (the “Shelf Registration Effectiveness Period”).

(e) Notwithstanding anything to the contrary contained in this Agreement, the Company shall be entitled, from time to time, by providing written notice to the Stockholders who elected to participate in the Shelf Registration Statement, to require such Stockholders to suspend the use of the prospectus for sales of Registrable Securities under the Shelf Registration Statement for a reasonable period of time not to exceed 90 days in succession or 120 days in the aggregate in any 12 month period (a “Suspension Period”) if the Board determines in good faith and in its reasonable judgment that it is required to disclose in the Shelf Registration Statement material, non-public information that the Company has a bona fide business purpose for preserving as confidential. Immediately upon receipt of such notice, the Stockholders covered by the Shelf Registration Statement shall suspend the use of the prospectus until the requisite changes to the prospectus have been made as required below. Any Suspension Period shall terminate at such time as the public disclosure of such information is made. After the expiration of any Suspension Period and without any further request from a Stockholder, the Company shall as promptly as practicable prepare a post-effective amendment or supplement to the Shelf Registration Statement or the prospectus, or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(f) At any time, and from time-to-time, during the Shelf Registration Effectiveness Period (except during a Suspension Period), any Stockholder may notify the Company of its intent to sell Registrable Securities covered by the Shelf Registration Statement (in whole or in part) in an Underwritten Offering (a “Shelf Underwritten Offering”). Such notice shall specify (x) the aggregate number of Registrable Securities requested to be registered in such Shelf Underwritten Offering and (y) the identity of the Stockholder(s) requesting such Shelf Underwritten Offering. Upon receipt by the Company of such notice, the Company shall promptly comply with the applicable provisions of this Agreement, including those provisions of Section 5.6 relating to the Company’s obligation to make filings with the Commission, assist in the preparation and filing with the SEC of prospectus supplements and amendments to the Shelf Registration Statement, participate in “road shows,” agree to customary “lock-up” agreements with respect to the Company’s securities and obtain “comfort” letters, and the Company shall take such other actions as necessary or appropriate to permit the consummation of such Shelf Underwritten Offering as promptly as practicable. In any Shelf Underwritten Offering, the investment bank(s) and managers that will serve as lead or co-managing underwriters with respect to the offering of such Registrable Securities shall be selected by the Stockholders participating in such Shelf Underwritten Offering that hold a majority of the Registrable Securities included in such Shelf Underwritten Offering.

(g) If Stockholders wish to engage in an underwritten block trade off of a Shelf Registration Statement (either through filing an automatic shelf registration statement or through a take-down from an already existing Shelf Registration Statement), then notwithstanding the time periods set forth above, such Stockholders shall notify the Company of the block trade Shelf Underwritten Offering not less than two (2) Business Days prior to the day such offering is to commence. The Company shall promptly notify other Stockholders which hold Registrable Securities of such block trade Shelf Underwritten Offering and such other holders of Registrable Securities must elect whether or not to participate by 11:00 a.m., New York time on the next business day (i.e., one business day prior to the day such offering is to commence) and the Company shall as expeditiously as possible use its reasonable best efforts to facilitate such offering (which may close as early as two business days after the date it commences).

Section 5.4 Withdrawal Rights. Any Stockholder having notified or directed the Company to include any or all of its Registrable Securities in a registration statement under the Securities Act shall have the right to withdraw any such notice or direction with respect to any or all of the Registrable Securities designated by it for registration by giving written notice to such effect to the Company prior to the effective date of such registration statement. In the event of any such withdrawal, the Company shall not include such Registrable Securities in the applicable registration and such Registrable Securities shall continue to be Registrable Securities for all purposes of this Agreement. No such withdrawal shall affect the obligations of the Company with respect to the Registrable Securities not so withdrawn; provided, however, that in the case of a Demand Registration, if such withdrawal shall reduce the number of Registrable Securities sought to be included in such registration below the Registrable Amount, then the Company shall as promptly as practicable give each holder of Registrable Securities sought to be registered notice to such effect and, within ten days following the mailing of such notice, such holder(s) of Registrable Securities still seeking registration shall, by written notice to the Company, elect to register additional Registrable Securities, when taken together with elections to register Registrable Securities by their Permitted Transferees who are Stockholders, to satisfy the Registrable Amount or elect that such registration statement not be filed or, if theretofore filed, be withdrawn. During such ten-day period, the Company shall not file such registration statement if not theretofore filed or, if such registration statement has been theretofore filed, the Company shall not seek, and shall use commercially reasonable efforts to prevent, the effectiveness thereof.

Section 5.5 Holdback Agreements.

(a) In connection with any Underwritten Offering, each Stockholder will enter into any lock-up, holdback or similar agreements requested by the underwriter(s) managing such offering, in each case with such modifications and exceptions as may be approved by the Majority Stockholders. Without limiting the generality of the foregoing, each Stockholder hereby agrees that in connection with any Demand Registration, Shelf Underwritten Offering or Piggyback Registration that is an Underwritten Offering, not to (i) offer, sell, contract to sell, pledge or otherwise dispose of (including sales pursuant to Rule 144), directly or indirectly, any equity securities of the Company (including equity securities of the Company that may be deemed to be owned beneficially by such Stockholder in accordance with the rules and regulations of the SEC) (collectively, “Securities”), or any securities, options or rights convertible into or exchangeable or exercisable for Securities (collectively, “Other Securities”), (ii) enter into a transaction which would have the same effect as described in clause (i) above, (iii) enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic consequences or ownership of any Securities or Other Securities, whether such transaction is to be settled by delivery of such Securities or Other Securities, in cash or otherwise (each of (i), (ii) and (iii) above, a “Sale Transaction”), or (iv) publicly disclose the intention to enter into any Sale Transaction, commencing on the date on which the Company gives notice to the Stockholders that a preliminary prospectus has been circulated for such Underwritten Offering or the “pricing” of such offering and continuing to the date that is 90 days following the date of the final prospectus (such period, or such shorter period as agreed to by the managing underwriters, a “Holdback Period”), in each case with such modifications and exceptions as may be approved by the Majority Stockholders. The Company may impose stop-transfer instructions with respect to any Securities or Other Securities subject to the restrictions set forth in this Section 5.5(a) until the end of such Holdback Period. Notwithstanding the foregoing, no Stockholder (other than officers and directors of the Company) will be subject to the Holdback Period in connection with a block Shelf Underwritten Offering unless such Stockholder was provided notice one day prior to such block Shelf Underwritten Offering and provided the opportunity to participate therein (whether or not such Stockholder elects to participate in such block trade).

(b) The Company (i) will not file any registration statement for a sale or distribution by the Company, one of its Subsidiaries and/or stockholders to the public of Securities or Other Securities pursuant to an offering registered under the Securities Act or cause any such registration statement to become effective, or effect any public sale or distribution of its Securities or Other Securities during any Holdback Period (other than as part of such Underwritten Offering, or a registration on Form S-4 or Form S-8 or any successor or similar form) and (ii) will cause each of its directors and executive officers to agree not to effect any Sale Transaction during any Holdback Period, except as part of such Underwritten Offering (if otherwise permitted), unless approved in writing by the Majority Stockholders and the underwriters managing the Underwritten Offering and to enter into any lock-up, holdback or similar agreements requested by the underwriter(s) managing such offering, in each case with such modifications and exceptions as may be approved by the Majority Stockholders.

Section 5.6 Registration Procedures.

(a) If and whenever the Company is required to use reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 5.1, 5.2 and 5.3 the Company shall as promptly as practicable (in each case, to the extent applicable):

(i) prepare and file with the SEC a registration statement to effect such registration, cause such registration statement to become effective at the earliest possible date permitted under the rules and regulations of the SEC and thereafter use reasonable best efforts to cause such registration statement to remain effective pursuant to the terms of this Agreement; provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the registration statement relating thereto; provided, further that before filing such registration statement or any amendments thereto, the Company will furnish to the counsel selected by the holders of Registrable Securities which are to be included in such registration (“Selling Holders”) copies of all such documents proposed to be filed, which documents will be subject to the review and comment of such counsel (it being understood that counsel to the Selling Holders will conduct its review and provide any comments promptly);

(ii) prepare and file with the SEC such amendments (including post-effective amendments) and supplements to such registration statement and the prospectus used in connection therewith and any Exchange Act reports incorporated by reference therein as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement until the earlier of such time as all of such securities have been disposed of in accordance with the intended methods of disposition by the Selling Holder(s) set forth in such registration statement or (x) in the case of a Demand Registration pursuant to Section 5.1, the expiration of 60 days after such registration statement becomes effective, (y) in the case of a Piggyback Registration pursuant to Section 5.2, the expiration of 60 days after such registration statement becomes effective or (z) in the case of a Shelf Registration pursuant to Section 5.3, the Shelf Registration Effectiveness Period;

(iii) furnish to each Selling Holder and each underwriter, if any, of the securities being sold by such Selling Holder such number of conformed copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and each Free Writing Prospectus utilized in connection therewith and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and any Issuer Free Writing Prospectus and such other documents as such Selling Holder and underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such Selling Holder;

(iv) use reasonable best efforts to register or qualify such Registrable Securities covered by such registration statement under such other securities laws or blue sky laws of such jurisdictions as any Selling Holder and any underwriter of the securities being sold by such Selling Holder shall reasonably request, and take any other action which may be reasonably necessary or advisable to enable such Selling Holder and underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder, except that the Company shall not for any such purpose be required to (A) qualify generally to do business as a foreign corporation in any jurisdiction wherein it would not but for the requirements of this clause (iv) be obligated to be so qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to service of process in any such jurisdiction;

(v) use reasonable best efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if no such securities are so listed, use commercially reasonable efforts to cause such Registrable Securities to be listed on the New York Stock Exchange or the NASDAQ Stock Market;

(vi) use reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the Selling Holder(s) thereof to consummate the disposition of such Registrable Securities;

(vii) obtain for each Selling Holder and any underwriter:

(A) an opinion of counsel for the Company, covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such Selling Holder and/or underwriters, and

(B) a “comfort” letter (or, in the case of any such Person which does not satisfy the conditions for receipt of a “comfort” letter specified in AU Section 634 of the AICPA Professional Standards, an “agreed upon procedures” letter) signed by the independent registered public accountants who have certified the Company’s financial statements included in such registration statement (and, if necessary, any other independent registered public accountant of any Subsidiary of the Company or any business acquired by the Company from which financial statements and financial data are, or are required to be, included in the registration statement);

(viii) promptly make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable such Selling Holder or underwriter to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement promptly; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (viii) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such holder of Registrable Securities requesting such information agrees, and causes each of its Inspectors, to enter into a confidentiality agreement on terms reasonably acceptable to the Company; and provided, further, that each holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;

(ix) promptly notify in writing each Selling Holder and the underwriters, if any, of the following events:

(A) the filing of the registration statement, the prospectus or any prospectus supplement related thereto, any Issuer Free Writing Prospectus or post-effective amendment to the registration statement, and, with respect to the registration statement or any post-effective amendment thereto, when the same has become effective;

(B) any request by the SEC for amendments or supplements to the registration statement or the prospectus or for additional information;

(C) the issuance by the SEC or any of any stop order suspending the effectiveness of the registration statement or the initiation of any proceedings by any Person for that purpose;

(D) when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the registration statement; and

(E) the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any Proceeding for such purpose;

(x) notify each Selling Holder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any Selling Holder, promptly prepare and furnish to such Selling Holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;

(xi) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement;

(xii) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to Selling Holders, as promptly as practicable, an earnings statement of the Company covering the period of at least 12 months, but not more than 18 months, beginning with the first day of the Company’s first full quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;

(xiii) use its reasonable best efforts to assist Stockholders who made a request to the Company to provide for a third party “market maker” for the Class A Shares; provided, however, that the Company shall not be required to serve as such “market maker”;

(xiv) cooperate with any Selling Holder and any underwriters and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), if necessary or appropriate, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Selling Holders may request and keep available and make available to the Company’s transfer agent prior to the effectiveness of such registration statement a supply of such certificates, if necessary or appropriate;

(xv) have appropriate officers of the Company prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, take other actions to obtain ratings for any Registrable Securities (if they are eligible to be rated) and otherwise use its reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;

(xvi) have appropriate officers of the Company, and cause representatives of the Company’s independent registered public accountants, to participate in any due diligence discussions reasonably requested by any Selling Holder or any underwriter;

(xvii) if requested by any underwriter or the Majority Stockholders, agree, and cause the Company and any directors or officers of the Company to agree, to be bound by customary “lock-up” agreements restricting the ability to dispose of Company securities and file or cause the filing of any registration statement under the Securities Act;

(xviii) if requested by any Selling Holders or any underwriter, promptly incorporate in the registration statement or any prospectus, pursuant to a supplement or post-effective amendment, if necessary, such information as such Selling Holders may reasonably request to have included therein, including information relating to the “Plan of Distribution” of the Registrable Securities;

(xix) cooperate and assist in any filings required to be made with the FINRA and in the performance of any due diligence investigation by any underwriter that is required to be undertaken in accordance with the rules and regulations of FINRA;

(xx) otherwise use reasonable best efforts to cooperate as reasonably requested by the Selling Holders and the underwriters in the offering, marketing or selling of the Registrable Securities;

(xxi) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC and all reporting requirements under the rules and regulations of the Exchange Act;

(xxii) cause any officer of the Company to participate fully in the sale process in a manner customary for persons in like positions and consistent with his or her other duties with the Company, including the preparation of the registration statement and the preparation and presentation of any road shows and other investor meetings; and

(xxiii) use reasonable best efforts to take any action requested by the Selling Holders, including any action described in clauses (i) through (xxii) above to prepare for and facilitate any “over-night deal” or other proposed sale of Registrable Securities over a limited timeframe.

The Company may require each Selling Holder and each underwriter, if any, to furnish the Company in writing such information regarding each Selling Holder or underwriter and the distribution of such Registrable Securities as the Company may from time to time reasonably request to complete or amend the information required by such registration statement.

Without limiting any of the foregoing, in the event that the offering of Registrable Securities is to be made by or through an underwriter, the Company shall enter into an underwriting agreement with a managing underwriter or underwriters containing representations, warranties, indemnities and agreements customarily included (but not inconsistent with the covenants and agreements of the Company contained herein) by an issuer of common stock in underwriting agreements with respect to offerings of common stock for the account of, or on behalf of, such issuers. In connection with any offering of Registrable Securities registered pursuant to this Agreement, the Company shall furnish to the underwriter, if any (or, if no underwriter, the Selling Holder), unlegended certificates representing ownership of the Registrable Securities being sold (unless, in the Company’s sole discretion, such Registrable Securities are to be issued in uncertificated form pursuant to the customary arrangements for issuing shares in such form), in such denominations as requested and instruct any transfer agent and registrar of the Registrable Securities to release any stop transfer order with respect thereto.

(b) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.6(a)(ix), such Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable registration statement and prospectus relating thereto until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.6(a)(ix) and, if so directed by the Company, deliver to the Company, at the Company’s expense, all copies, other than permanent file copies, then in such Selling Holder’s possession of the prospectus current at the time of receipt of such notice relating to such Registrable Securities. In the event the Company shall give such notice, any applicable 60 day or two year period during which such registration statement must remain effective pursuant to this Agreement shall be extended by the number of days during the period from the date of giving of a notice regarding the happening of an event of the kind described in Section 5.6(a)(ix) to the date when all such Selling Holders shall receive such a supplemented or amended prospectus and such prospectus shall have been filed with the SEC.

Section 5.7 Registration Expenses. All expenses incident to the Company’s performance of, or compliance with, its obligations under this Agreement including (i) (A) all registration and filing fees, all fees and expenses of compliance with securities and “blue sky” laws, (B) all fees and expenses associated with filings required to be made with FINRA (including, if applicable, the fees and expenses of any “qualified independent underwriter” as such term is defined in NASD Rule 2720 or the equivalent rule incorporated into the FINRA rulebook), (C) all fees and expenses of compliance with securities and “blue sky” laws, (D) all printing (including expenses of printing certificates for the Registrable Securities in a form eligible for deposit with the Depository Trust Company and of printing prospectuses if the printing of prospectuses is requested by a holder of Registrable Securities) and copying expenses, (E) all messenger and delivery expenses, (F) all fees and expenses of the Company’s independent certified public accountants and counsel (including with respect to “comfort” letters, “agreed-on-procedure” letter and opinions), (G) fees and expenses of one counsel to the Stockholders selling in such registration (which firm shall be selected by the Stockholders selling in such registration that hold a majority of the Registrable Securities included in such registration, provided that such counsel is reasonably acceptable to the Company) and (H) except as otherwise provided in this Section 5.7, the fees and expenses (including transfer taxes) of every nationally recognized investment bank engaged in connection with a Demand Registration or a Piggyback Registration that is not an Underwritten Offering (collectively, the “Registration Expenses”) and (ii) any expenses described in clauses (i)(A) through (i)(H) above incurred in connection with the marketing and sale of Registrable Securities shall be borne by the Company, in each case regardless of whether a registration is effected, marketing is commenced or a sale is made. The Company will pay its internal expenses (including all salaries and expenses of its officers and employees performing legal or accounting duties, the expense of any annual audit and the expense of any liability insurance) and the expenses and fees for listing the securities to be registered on each securities exchange and included in each established over-the-counter market on which similar securities issued by the Company are then listed or traded. Each Selling Holder shall pay its portion of all underwriting discounts and commissions and transfer taxes, if any, relating to the sale of such Selling Holder’s Registrable Securities pursuant to any registration.

Section 5.8 Request for Information. Not less than five (5) Business Days (or such shorter period expressly provided herein) before the expected filing date of each registration statement pursuant to this Agreement, the Company shall notify each Stockholder who has timely provided the requisite notice hereunder entitling the Stockholder to register Registrable Securities in such registration statement of the information, documents and instruments from such Stockholder that the Company or any underwriter reasonably requests in connection with such registration statement, including, but not limited to a questionnaire, custody agreement, power of attorney, lock-up letter and underwriting agreement (the “Requested Information”). If the Company has not received, on or before the second day before the expected filing date, the Requested Information from such Stockholder, the Company may file the Registration Statement without including Registrable Securities of such Stockholder. The failure to so include in any registration statement the Registrable Securities of a Stockholder (with regard to that registration statement) shall not in and of itself result in any liability on the part of the Company to such Stockholder.

Section 5.9 No Grant of Future Registration Rights. The Company shall not grant any shelf, demand, piggyback or incidental registration rights that are (a) senior to the rights granted to the Stockholders hereunder to any other Person or (b) more favorable to such other Person in any respect as compared to the rights of the Stockholders under this Agreement without the prior written consent of the Majority Stockholders.

Section 5.10 Confidentiality. Each Stockholder agrees to treat as confidential the receipt of any notice hereunder and the information contained therein, and not to disclose or use the information contained in any such notice (or the existence thereof) without the prior written consent of the Company until such time as the information contained therein is or becomes available to the public generally (other than as a result of disclosure by such Stockholder in breach of the terms of this Agreement).

Article VI

ADDITIONAL AGREEMENTS

Section 6.1 Standstill. Each Stockholder agrees that, for so long as the Stockholders collectively Beneficially Own at least 20% of the total voting power of the outstanding Voting Securities, such Stockholder will not, without the prior written consent and approval of an independent and disinterested committee of the Board, directly or indirectly, and will cause its Controlled Affiliates not to:

(a) acquire, solicit, offer or seek to acquire, agree to acquire or make a proposal to acquire, by purchase or otherwise, either directly or indirectly, any equity securities of the Company, or rights or options to acquire the foregoing, including Class A Shares or direct or indirect rights to acquire any Class A Shares, any securities convertible into or exchangeable for any Class A Shares, or any options or other derivative securities or contracts or instruments payment under which are determined with reference to the price of Class A Shares (but in any case excluding issuances by the Company of Class A Shares or options, warrants or other rights to acquire Class A Shares (or the exercise thereof) to directors designated by the Majority Stockholders as compensation for their membership on the Board);

(b) make any proposal or public statement inconsistent with any of the foregoing;

(c) knowingly advise, knowingly assist, knowingly encourage or knowingly instigate, or direct any Person to do, or enter into any arrangements or agreements with any Person with respect to, any of the foregoing;

(d) take any action that would or would reasonably be expected to require the Company to make a public announcement regarding the events described in this Section 6.1; or

(e) enter into any discussions, negotiations, communications, arrangements or understandings with any third party (including security holders of the Company, but excluding, for the avoidance of doubt, the Stockholders) with respect to any of the foregoing, including, without limitation, forming, joining or in any way participating in a “group” (as defined in Section 13(d)(3) of the Exchange Act) with any third party with respect to the Company or any of its Subsidiaries or any Class A Shares or equity securities of the Company, or otherwise in connection with any of the foregoing;

provided, however, that, subject to Section 6.2, nothing in this Section 6.1 will limit (i) any private proposals made to one or more independent and unaffiliated directors of the Board, the Chief Executive Officer of the Company or the Chairman of the Board (so long as the manner or content of any such communication would not reasonably be expected to require any public disclosure by any Person), (ii) any actions taken by the directors designated by the Majority Stockholders, or the ability of such directors to vote or otherwise exercise his or her legal duties, in each case, in his or her capacity as a member of the Board, (iii) any conversion of Class B Shares into Class A Shares or acquisition of Class A Shares upon conversion of Class B Shares, (iv) any acquisition of Class A Shares in accordance with the Merger Agreement, or (iv) any actions taken at the invitation of an independent and disinterested committee of the Board; provided, further, that, if at any time a Person that is not an Affiliate of the Company or the Stockholders enters into a definitive agreement with the Company or any of its Affiliates to acquire (or publicly offers to acquire in an offer that has been recommended by the Board) more than 50% of the outstanding Voting Securities of the Company, from and after the date thereof, the restrictions set forth in this Section 6.1 shall automatically terminate and cease to be of any effect.

Notwithstanding the foregoing, this Section 6.1 will not prevent or impair the ability of the Stockholders or any of their Affiliates to acquire, or seek or propose to acquire, additional Class A Shares (or any securities convertible into or exchangeable for any such Class A Shares) representing less than 1% of the Voting Securities of the Company (so long as such acquisition would not result in the Stockholders, together with their Controlled Affiliates, beneficially owning Class A Shares and Class B Shares representing in excess of 82% of the outstanding number of Voting Securities of the Company).

Section 6.2 Change of Control Transactions. Each Stockholder agrees that, for so long as the Stockholders collectively Beneficially Own at least 50% of the total voting power of the outstanding Voting Securities, such Stockholder will not, without the prior written consent of an independent and disinterested committee of the Board, directly or indirectly, and will cause its Controlled Affiliates not to:

(a) offer, seek or propose, or enter into any agreement or arrangement with respect to, any Change of Control Transaction with such Stockholder or its Controlled Affiliates, unless such transaction is subject to approval by (i) an independent and disinterested committee of the Board and (ii) holders of at least 50% of the Class A Shares who are not Affiliates of such Stockholder or any of such Stockholder’s Affiliates; or

(b) participate by receiving consideration in exchange for or in respect of such Stockholder’s or its Controlled Affiliate’s Class B Shares in a Change of Control Transaction, unless (i) such Change of Control Transaction provides for the equal treatment for all Class A Shares and Class B Shares, including the same per share consideration (in type and amount) and mix of consideration (in type and amount), or (as applicable) the right to receive (or elect to receive) the same consideration (in type and amount) and mix of consideration (in type and amount), in respect of all Class A Shares and Class B Shares that are subject to such Change of Control Transaction and (ii) all holders of the Class A Shares and Class B Shares shall have the right to participate equally in such Change of Control Transaction based on their pro rata ownership of the Common Shares (and with respect to the Class B Shares, on an as converted basis into Class A Shares).

For purposes of this Section 6.2, “Change of Control Transaction” means (a) any share sale, merger, tender or exchange offer, consolidation, amalgamation, recapitalization or similar transaction between the Company and another Person (other than a Subsidiary of the Company) pursuant to which the stockholders (other than the Stockholders and their Controlled Affiliates) of the Company as of immediately prior to such share sale, merger, tender or exchange offer, consolidation, amalgamation, recapitalization or similar transaction would own, as of immediately after such transaction, less than 50% of the total voting power of all outstanding Voting Securities of the Company (or resulting or surviving entity), excluding any Voting Securities of the Company (or resulting or surviving entity) held by the Stockholders and their Controlled Affiliates, or (b) any sale, lease or other disposition of all or substantially all of the assets of the Company to another Person (other than a Subsidiary of the Company), in each of the foregoing clauses (a) and (b), whether in any single transaction or series of transactions and regardless of the amount of consideration; provided that, notwithstanding the foregoing, “Change of Control Transaction” shall not include any bona fide share exchange, merger, recapitalization or other business combination involving the Company and a Person that is not an Affiliate of the Company or the Stockholders, in which the stockholders of the Company, immediately prior to such transaction, continue to hold, immediately following such transaction (and receive no consideration in the applicable transaction other than) shares of capital stock of the successor or the resulting entity in substantially the same relative proportions and classes as their ownership of the Company’s capital stock immediately prior to such transaction, and the two-class capital structure and pro rata economics of the two classes of capital stock are substantially replicated.

Section 6.3 Transfer Restrictions. The Stockholders agree not to Transfer (a) a number of Lockup Shares in excess of one-third of the aggregate Lockup Shares prior to the end of the First Lockup Period or (b) a number of Lockup Shares in excess of two-thirds of the aggregate Lockup Shares prior to the end of the Second Lockup Period, except, in each case, to any Permitted Transferee. For the avoidance of doubt, the Stockholders will retain all of their rights as stockholders of the Company with respect to their Lockup Shares, including the right to vote their Lockup Shares. For purposes of this Section 6.2, (i) “First Lockup Period” means, with respect to the Lockup Shares, the period beginning on the date hereof and ending on the date that is six (6) months from the date hereof, (ii) “Second Lockup Period” means, with respect to the Lockup Shares, the period beginning on the date that is six (6) months from the date hereof and ending on the date that is twelve (12) months from the date hereof, and (iii) “Lockup Shares” means any Class A Shares or Class B Shares held by the Stockholders on the date hereof.

Section 6.4 Class B Share Conversions. Each Stockholder who holds Class B Shares as of the dates indicated in Sections 6.4(a) through (e) hereof, agrees to convert such Class B Shares into Class A Shares (which may include conversion in accordance with Section IV.II.F.1 of the Certificate of Incorporation or in connection with any sale or other Transfer of Class B Shares or Class A Shares into which such Class B Shares shall convert upon consummation of such sale or Transfer) (and the Company consents to such conversion pursuant to Section IV.II.F.1 of the Certificate of Incorporation) in the following manner:

(a) to the extent the Stockholders hold Class B Shares in excess of 85% of the total number of Class B Shares outstanding on the date hereof (the “Closing Date Class B Shares”) on the first anniversary of the date hereof, such excess must be converted on the first anniversary of the date hereof, with the number of Class B Shares required to be so converted by each Stockholder pursuant to this Section 6.4(a) being determined on a pro rata basis based upon the number of Class B Shares held by each Stockholder on such date relative to the total number of Class B Shares held by all Stockholders on such date;

(b) to the extent the Stockholders hold Class B Shares in excess of 70% of the Closing Date Class B Shares on the second anniversary of the date hereof, such excess must be converted on the second anniversary of the date hereof, with the number of Class B Shares required to be so converted by each Stockholder pursuant to this Section 6.4(b) being determined on a pro rata basis based upon the number of Class B Shares held by each Stockholder on such date relative to the total number of Class B Shares held by all Stockholders on such date;

(c) to the extent the Stockholders hold Class B Shares in excess of 50% of the Closing Date Class B Shares on the third anniversary of the date hereof, such excess must be converted on the third anniversary of the date hereof, with the number of Class B Shares required to be so converted by each Stockholder pursuant to this Section 6.4(c) being determined on a pro rata basis based upon the number of Class B Shares held by each Stockholder on such date relative to the total number of Class B Shares held by all Stockholders on such date;

(d) to the extent the Stockholders hold Class B Shares in excess of 30% of the Closing Date Class B Shares on the fourth anniversary of the date hereof, such excess must be converted on the fourth anniversary of the date hereof, with the number of Class B Shares required to be so converted by each Stockholder pursuant to this Section 6.4(d) being determined on a pro rata basis based upon the number of Class B Shares held by each Stockholder on such date relative to the total number of Class B Shares held by all Stockholders on such date; and

(e) any remaining outstanding Class B Shares must be converted on the fifth anniversary of the date hereof.

Article VII

INDEMNIFICATION

Section 7.1 General Indemnification. The Company agrees to indemnify and hold harmless each Stockholder and its Affiliates and their respective officers, directors, employees, managers, partners and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such Stockholder or such other indemnified Person against any and all losses, claims, damages, liabilities and expenses (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses) (collectively, the “Losses”) incurred by such Stockholder or other indemnified Person before or after the date of this Agreement, in each case, based on, arising out of, resulting from or in connection with any claim, action, cause of action, suit, proceeding or investigation, whether civil, criminal, administrative, investigative or other (collectively, “Actions”) and based on, arising out of, pertaining to or in connection with (i) any untrue statement or alleged untrue statement of a material fact contained in any Filing or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (ii) any Action to which any Stockholder or other indemnified Person is made a party or involved in its capacity as a stockholder or owner of securities of the Company (or in their capacity as an officer, director, employee, manager, partner, agent or controlling person of such Stockholder or other such indemnified party), provided that the foregoing indemnification rights shall not be available to the extent that (A) any such Losses are incurred as a result of such Stockholder’s willful misconduct or gross negligence, (B) any such Losses are incurred as a result of non-compliance by such Stockholder with any laws or regulations applicable to any of them, (C) any such Losses are incurred as a result of non-compliance by such Stockholder with its obligations under this Agreement, (D) subject to the rights of contribution provided for below, to the extent indemnification for any Losses would violate any applicable law, regulation or public policy; or (E) in the case of clause (i) above, other than misstatements or omissions made in reliance on information relating to and furnished by such Stockholder in writing expressly for use in the preparation of such Filing. For purposes of this Section 7.1, none of the circumstances described in the limitations contained in the proviso in the immediately preceding sentence shall be deemed to apply absent a final non-appealable judgment of a court of competent jurisdiction to such effect, in which case to the extent any such limitation is so determined to apply to any Stockholder or such other indemnified Person as to any previously advanced indemnity payments made by the Company under this Section 7.1, then such payments shall be promptly repaid by such Stockholder or such other indemnified Person to the Company. The rights of any Stockholder or such other indemnified Person to indemnification hereunder will be in addition to any other rights any such party may have under any other agreement or instrument referenced above or any other agreement or instrument to which such Stockholder or such other indemnified Person is or becomes a party or is or otherwise becomes a beneficiary or under law or regulation. In the event of any payment of indemnification pursuant to this Section 7.1, so long as any Stockholder or such other indemnified Person is fully indemnified for all Losses, the Company will be subrogated to the extent of such payment to all of the related rights of recovery of the Stockholder or such other indemnified Person to which such payment is made against all other Persons. The indemnity agreement contained in this Section 7.1 shall be applicable whether or not any Action or the facts or transactions giving rise to such Action arose prior to, on or subsequent to the date of this Agreement.

Section 7.2 Registration Statement Indemnification.

(a) The Company agrees to indemnify and hold harmless, to the fullest extent permitted by law, each Selling Holder and officers, directors, employees, managers, members, partners and Affiliates from and against all Losses caused by, resulting from or relating to any untrue statement (or alleged untrue statement) of a material fact contained in any registration statement, any Issuer Free Writing Prospectus, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission (or alleged omission) of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as the same are caused by any information furnished in writing to the Company by such Selling Holder expressly for use therein and except to the extent such Selling Holder or other indemnified Person is indemnified for such Losses pursuant to Section 7.1. In connection with an Underwritten Offering and without limiting any of the Company’s other obligations under this Agreement, the Company shall also indemnify such underwriters, their officers, directors, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such underwriters or such other indemnified Person to the same extent as provided above with respect to the indemnification (and exceptions thereto) of the holders of Registrable Securities being sold. Reimbursements payable pursuant to the indemnification contemplated by this Section 7.2(a) will be made by periodic payments during the course of any investigation or defense, as and when bills are received or expenses incurred.

(b) In connection with any registration statement in which a holder of Registrable Securities is participating, each such Selling Holder will furnish to the Company in writing information regarding such Selling Holder’s ownership of Registrable Securities and its intended method of distribution thereof and, to the extent permitted by law, shall, severally and not jointly, indemnify the Company, its directors, officers, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) the Company or such other indemnified Person against all Losses caused by any untrue statement of material fact contained in the registration statement, Issuer Free Writing Prospectus, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only to the extent that such untrue statement or omission is caused by and contained in such information so furnished in writing by such Selling Holder expressly for use therein; provided, however, that each Selling Holder’s obligation to indemnify the Company hereunder shall, to the extent more than one Selling Holder is subject to the same indemnification obligation, be apportioned between each Selling Holder based upon the net amount received by each Selling Holder from the sale of Registrable Securities, as compared to the total net amount received by all of the Selling Holders of Registrable Securities sold pursuant to such registration statement. Notwithstanding the foregoing, no Selling Holder shall be liable to the Company for amounts in excess of the lesser of (i) such apportionment and (ii) the net amount received by such holder in the offering giving rise to such liability.

Section 7.3 Notice. Any Person entitled to indemnification hereunder shall give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification; provided, however, the failure to give such notice shall not release the indemnifying party from its obligation, except to the extent that the indemnifying party has been materially prejudiced by such failure to provide such notice on a timely basis.

Section 7.4 Defense of Actions. In any case in which any such action is brought against any indemnified party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not (so long as it shall continue to have the right to defend, contest, litigate and settle the matter in question in accordance with this paragraph) be liable to such indemnified party hereunder for any legal or other expense subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation, supervision and monitoring (unless (i) such indemnified party reasonably objects to such assumption on the grounds that there may be defenses available to it which are different from or in addition to the defenses available to such indemnifying party or (ii) the indemnifying party shall have failed within a reasonable period of time to assume such defense and the indemnified party is or is reasonably likely to be prejudiced by such delay, in either event the indemnified party shall be promptly reimbursed by the indemnifying party for the expenses incurred in connection with retaining separate legal counsel). An indemnifying party shall not be liable for any settlement of an Action effected without its consent. The indemnifying party shall lose its right to defend, contest, litigate and settle a matter if it shall fail to diligently contest such matter (except to the extent settled in accordance with the next following sentence). No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened Action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such Action. Any Losses for which an indemnified party is entitled to indemnification or contribution under this Article VII shall be paid by the indemnifying party to the indemnified party as such Losses are incurred. The indemnity and contribution agreements contained in this Article VII shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any indemnified party, the Company, its directors or officers, or any person controlling the Company, and (ii) any termination of this Agreement. The parties hereto shall, and shall cause their respective Subsidiaries or Controlled Affiliates to, cooperate with each other in a reasonable manner with respect to access to unprivileged information and similar matters in connection with any Action. The provisions of this Article VII are for the benefit of, and are intended to create third party beneficiary rights in favor of, each of the indemnified parties referred to herein.

Section 7.5 Contribution. If recovery is not available under the foregoing indemnification provisions for any reason or reasons, any Person who would otherwise be entitled to indemnification by the terms thereof shall nevertheless be entitled to contribution with respect to any Losses with respect to which such Person would be entitled to such indemnification but for such reason or reasons. In determining the amount of contribution to which the respective Persons are entitled, there shall be considered the Persons’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted, the opportunity to correct and prevent any statement or omission, and other equitable considerations appropriate under the circumstances. It is hereby agreed that it would not necessarily be equitable if the amount of such contribution were determined by pro rata or per capita allocation. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. Notwithstanding the foregoing, no Selling Holder or transferee thereof shall be required to make a contribution in excess of the net amount received by such holder from its sale of Registrable Securities in connection with the offering that gave rise to the contribution obligation.

Article VIII

MISCELLANEOUS

Section 8.1 Notices. All notices, requests, consents and other communications hereunder to any party shall be deemed to be sufficient if contained in a written instrument delivered in person or sent by email (provided a copy is thereafter promptly delivered as provided in this Section 8.1) or nationally recognized overnight courier, addressed to such party at the address or facsimile number set forth below or such other address or email address as may hereafter be designated in writing by such party to the other parties:

(a) If to the Company, to:

Chewy, Inc.
7700 West Sunrise Boulevard
Plantation, Florida 33322
Attention: General Counsel
Email: generalcounsel@chewy.com

with a copy to:

Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
Attention: Joshua Korff
Tim Cruickshank
Email: jkorff@kirkland.com
tim.cruickshank@kirkland.com

(b) if to a Stockholder, to:

the address and email address set forth in the records of the Company.

All such notices, requests, consents and other communications shall be deemed to have been given or made if and when received (including by overnight courier) by the parties at the above addresses or sent by email, with confirmation received, to the email addresses specified above (or at such other address or email address for a party as shall be specified by like notice). Any notice delivered by any party hereto to any other party hereto shall also be delivered to each other party hereto simultaneously with delivery to the first party receiving such notice.

Section 8.2 Interpretation. The headings contained in this Agreement are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “included”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.

Section 8.3 Severability. The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or entity or any circumstance, is found to be invalid or unenforceable in any jurisdiction, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

Section 8.4 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall, taken together, be considered one and the same agreement, it being understood that both parties need not sign the same counterpart.

Section 8.5 Adjustments Upon Change of Capitalization. In the event of any change in the outstanding Class A Shares and Class B Shares, as applicable, by reason of dividends, splits, reverse splits, spin-offs, split-ups, recapitalizations, combinations, exchanges of shares and the like, the term “Class A Shares” and “Class B Shares” shall refer to and include the securities received or resulting therefrom, but only to the extent such securities are received in exchange for or in respect of Class A Shares and Class B Shares, as applicable.

Section 8.6 Entire Agreement; No Third Party Beneficiaries. This Agreement (a) constitutes the entire agreement and supersedes all other prior agreements, both written and oral, among the parties with respect to the subject matter hereof and (b) is not intended to confer upon any Person, other than the parties hereto, except as provided in Article VII, any rights or remedies hereunder.

Section 8.7 Further Assurances. Each party shall execute, deliver, acknowledge and file such other documents and take such further actions as may be reasonably requested from time to time by the other party hereto to give effect to and carry out the transactions contemplated herein. Without limiting the generality of the foregoing, each of the Stockholders (i) acknowledges that such Stockholder will prepare and file with the SEC filings under the Exchange Act, including under Section 13(d) of the Exchange Act, relating to its Beneficial Ownership of Voting Securities and (ii) agrees to use its reasonable efforts to assist and cooperate with the other parties in promptly preparing, reviewing and executing any such filings under the Exchange Act, including any amendments thereto.

Section 8.8 Governing Law; Equitable Remedies. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF). The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or was otherwise breached. It is accordingly agreed that the parties hereto shall be entitled to an injunction or injunctions and other equitable remedies to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any of the Selected Courts (as defined below), this being in addition to any other remedy to which they are entitled at law or in equity. Any requirements for the securing or posting of any bond with respect to such remedy are hereby waived by each of the parties hereto. Each party further agrees that, in the event of any action for an injunction or other equitable remedy in respect of such breach or enforcement of specific performance, it will not assert the defense that a remedy at law would be adequate.

Section 8.9 Consent to Jurisdiction. With respect to any suit, action or proceeding (“Proceeding”) arising out of or relating to this Agreement or any transaction contemplated hereby each of the parties hereto hereby irrevocably (i) submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York or the Court of Chancery located in the State of Delaware, County of Newcastle (the “Selected Courts”) and waives any objection to venue being laid in the Selected Courts whether based on the grounds of forum non conveniens or otherwise and hereby agrees not to commence any such Proceeding other than before one of the Selected Courts; provided, however, that a party may commence any Proceeding in a court other than a Selected Court solely for the purpose of enforcing an order or judgment issued by one of the Selected Courts; (ii) consents to service of process in any Proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, or by recognized international express carrier or delivery service, to the Company or Stockholders at their respective addresses referred to in Section 8.1; provided, however, that nothing herein shall affect the right of any party hereto to serve process in any other manner permitted by law; and (iii) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND AGREES THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

Section 8.10 Amendments; Waivers.

(a) No provision of this Agreement may be amended or waived unless such amendment or waiver is in writing and signed, in the case of an amendment, by the parties hereto, or in the case of a waiver, by the party against whom the waiver is to be effective.

(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

Section 8.11 Successors and Assigns. Except as otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and permitted assigns of the parties hereto. No Stockholder may assign any of its rights hereunder to any Person other than a Permitted Transferee. Each Permitted Transferee of any Stockholder shall be subject to all of the terms of this Agreement, and by taking and holding such shares such Person shall be entitled to receive the benefits of and be conclusively deemed to have agreed to be bound by and to comply with all of the terms and provisions of this Agreement; provided, however, no transfer of rights permitted hereunder shall be binding upon or obligate the Company unless and until (i) if required under Section 2.1, the Company shall have received written notice of such transfer and the joinder of the transferee provided for in Section 2.1, and (ii) such transferee can establish Beneficial Ownership or ownership of record of a Registrable Amount (whether individually or together with its Affiliates). Notwithstanding the foregoing, no successor or assignee of the Company shall have any rights granted under this Agreement until such Person shall acknowledge its rights and obligations hereunder by a signed written statement of such Person’s acceptance of such rights and obligations.

Section 8.12 Rule 144.

(a) The Company covenants and agrees that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if it is not required to file such reports, it will, upon the request of any holder of Registrable Securities, make publicly available other information so long as necessary to permit sales in compliance with Rule 144 under the Securities Act), and it will take such further reasonable action, to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rule 144 may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. Upon the reasonable request of any holder of Registrable Securities, the Company will deliver to such holder a written statement as to whether it has complied with such information and filing requirements.

(b) If requested by any Stockholder in connection with any transaction involving any Registrable Securities (including any sale or other transfer of such securities without registration under the Securities Act, any margin loan with respect to such securities and any pledge of such securities), the Company agrees to provide such Stockholder with customary and reasonable assistance to facilitate such transaction, including, without limitation, (i) such action as such Stockholder may reasonably request from time to time to enable such Stockholder to sell Registrable Securities without registration under the Securities Act and (ii) entering into an “issuer’s agreement” in connection with any margin loan with respect to such securities in customary form.

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered, all as of the date first set forth above.

CHEWY, INC.

By:	/s/ Elliot Basner
Name:		Elliot Basner
Title:		Interim General Counsel and Secretary

[Signature Page to Investor Rights Agreement]

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered, all as of the date first set forth above.

BUDDY CHESTER SUB LLC

By:	/s/ Alan M. Schnaid
Name:		Alan M. Schnaid
Title:		President, Chief Financial Officer and Treasurer

[Signature Page to Investor Rights Agreement]

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered, all as of the date first set forth above.

CITRUS INTERMEDIATE TOPCO LLC

By:	/s/ Alan M. Schnaid
Name:		Alan M. Schnaid
Title:		President and Treasurer

[Signature Page to Investor Rights Agreement]

Document and Entity Information	Oct. 30, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Oct. 30, 2023
Entity File Number	001-38936
Entity Registrant Name	Chewy, Inc.
Entity Central Index Key	0001766502
Entity Incorporation, State or Country Code	DE
Entity Tax Identification Number	90-1020167
Entity Address, Address Line One	7700 West Sunrise Boulevard
Entity Address, City or Town	Plantation
Entity Address, State or Province	FL
Entity Address, Postal Zip Code	33322
City Area Code	786
Local Phone Number	320-7111
Title of 12(b) Security	Class A Common Stock, par value $0.01 per share
Trading Symbol	CHWY
Security Exchange Name	NYSE
Entity Emerging Growth Company	false
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false