Exhibit 2.1

Execution Version

SEC EXHIBIT NOTICE: Certain schedules and similar attachments to this Agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K and, to the extent applicable, certain confidential information has been omitted or redacted pursuant to Item 601(b)(2)(ii) of Regulation S-K. The omitted or redacted information is not material and, if confidential, is customarily and actually treated as private or confidential. Omitted or redacted information is identified by brackets or other notation, as applicable. The Company agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted schedule or similar attachment upon request.

AGREEMENT AND PLAN OF MERGER

by and among

FLOWER ACQUIRECO, LLC,

as Parent,

FLOWER MERGER SUB, INC.,

as Merger Sub,

and

THE MARYGOLD COMPANIES, INC.,

as the Company

Dated as of September 25, 2026

TABLE OF CONTENTS

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of September 25, 2026 (the “Agreement Date”), by and among Flower AcquireCo, LLC, a Delaware limited liability company (“Parent”), Flower Merger Sub, Inc., a Nevada corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and The Marygold Companies, Inc., a Nevada corporation (the “Company”). Each of Parent, Merger Sub and the Company are sometimes hereinafter referred to as a “Party.” All capitalized terms that are used but not defined elsewhere in this Agreement shall have the respective meanings given to them in Article I.

RECITALS

WHEREAS, Parent desires to acquire the Company upon the terms and subject to the conditions set forth in this Agreement;

WHEREAS, the board of directors of the Company (the “Company Board”) has delegated authority to the Audit Committee of the Company Board, which consists only of independent and disinterested directors of the Company (the “Special Committee”), to, among other things, consider, review, evaluate and negotiate a potential acquisition of, or other non-ordinary course strategic transaction involving, the Company and make a recommendation to the Company Board as to whether the Company should enter into any such transaction;

WHEREAS, prior to the Agreement Date, the Special Committee has unanimously: (i) determined that this Agreement and the Transactions (as defined below), including the merger of Merger Sub with and into the Company, with the Company surviving such merger (the “Merger”), upon the terms and conditions set forth in this Agreement and the applicable provisions of Chapters 78 and 92A of the Nevada Revised Statutes (as amended from time to time, the “NRS”), are advisable, fair to and in the interests of the Company, (ii) recommended that the Company Board (a) adopt, approve and declare advisable this Agreement and the Transactions, including the Merger, and (b) determine that this Agreement and the Transactions, including the Merger, are advisable, fair to and in the interests of the Company, and (iii) recommended that, subject to Company Board approval, the Company Board submit this Agreement to the Company Stockholders for their approval by written consent in lieu of a meeting and recommend that the Company Stockholders approve this Agreement in accordance with NRS 78.320;

WHEREAS, prior to the Agreement Date, the Company Board, acting upon the recommendation of the Special Committee, has unanimously: (i) determined that this Agreement and the Transactions, including the Merger, are advisable, fair to, and in the interests of, the Company, (ii) adopted, approved and declared advisable this Agreement and the Transactions, including the Merger, (iii) approved and declared advisable the execution and delivery by the Company of this Agreement, the performance by the Company of the covenants and agreements contained herein and the consummation of the Transactions, including the Merger, upon the terms and subject to the conditions contained herein, (iv) directed that this Agreement be submitted to the Company Stockholders for their approval by written consent in lieu of a meeting, and (v) recommended that the Company Stockholders approve this Agreement in accordance with NRS 78.320;

WHEREAS, each of the board of managers of Parent and the board of directors of Merger Sub has respectively (i) declared it advisable to enter into this Agreement, and (ii) approved the execution and delivery by Parent and Merger Sub, respectively, of this Agreement, the performance of their respective covenants and other obligations hereunder, and the consummation of the Merger upon the terms and subject to the conditions set forth herein;

WHEREAS, concurrently with the execution and delivery of this Agreement, the Company Stockholders set forth on Schedule I (the “Supporting Stockholders”), which Supporting Stockholders beneficially own approximately 74.53% of the voting power of the Company’s stockholders, have each entered into voting and support agreements with Parent (each, a “Voting and Support Agreement”), dated as of the Agreement Date;

WHEREAS, concurrently with the execution and delivery of this Agreement and as a condition for the Company’s willingness to enter into this Agreement, Parent has delivered executed copies of the Equity Commitment Letters to the Company;

WHEREAS, within one Business Day following the execution and delivery of this Agreement, the Supporting Stockholders shall execute and deliver the Stockholder Consent approving this Agreement and the Transactions, including the Merger; and

WHEREAS, Parent, Merger Sub and the Company desire to (i) make certain representations, warranties, covenants and agreements in connection with this Agreement and the Merger; and (ii) prescribe certain conditions with respect to the consummation of the Merger.

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Parent, Merger Sub and the Company agree as follows:

Article I
DEFINITIONS & INTERPRETATIONS

1.1 Certain Definitions.

For all purposes of and pursuant to this Agreement, the following capitalized terms have the following respective meanings:

1.2 Additional Definitions.

The following capitalized terms have the respective meanings given to them in the respective Sections of this Agreement set forth opposite each of the capitalized terms below:

1.3 Certain Interpretations.

Article II
THE MERGER

2.1 The Merger.

Upon the terms and subject to the conditions set forth in this Agreement and the applicable provisions of the NRS, on the Closing Date at the Effective Time, (a) Merger Sub will be merged with and into the Company; (b) the separate corporate existence of Merger Sub will thereupon cease; and (c) the Company will continue as the surviving corporation of the Merger. The Company, as the surviving corporation of the Merger, is sometimes referred to herein as the “Surviving Corporation.”

2.2 The Effective Time.

Upon the terms and subject to the conditions set forth in this Agreement, on the Closing Date, Parent, Merger Sub and the Company will cause the Merger to be consummated pursuant to the NRS by filing articles of merger (the “Articles of Merger”) with the Nevada Secretary of State in accordance with the applicable provisions of the NRS and the applicable requirements of the Nevada Secretary of State (the time of such filing and acceptance by the Nevada Secretary of State, or such later effective date and time permitted under the NRS as may be agreed in writing by Parent, Merger Sub and the Company and specified in the Articles of Merger, being referred to herein as the “Effective Time”).

2.3 The Closing.

The consummation of the Merger will take place at a closing (the “Closing”) to occur (a) remotely at 9:00 a.m. Eastern Time on the date that is three (3) Business Days after the satisfaction or waiver (to the extent permitted hereunder) of the last to be satisfied or waived of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted hereunder) of such conditions); or (b) such other time, location and date as Parent, Merger Sub and the Company (with the prior consent of the Special Committee) mutually agree in writing. The date on which the Closing actually occurs is referred to as the “Closing Date.”

2.4 Merger Consideration.

The aggregate consideration to be paid by Parent in respect of the Merger shall be the Merger Consideration, subject to the terms of this Article II, which shall be paid in accordance with the terms of this Article II.

2.5 Rollover Shares.

Immediately prior to the Effective Time, Range Capital Holdings, LLC (“Range Capital”) will contribute or otherwise transfer the Rollover Shares to Parent or an Affiliate of Parent in a transaction governed by Section 721 of the Code for U.S. federal income, and any other applicable, tax purposes.

2.6 Effect of the Merger.

At the Effective Time, the effect of the Merger will be as provided in this Agreement and the applicable provisions of the NRS. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all (a) of the property, rights, privileges, powers and franchises of the Company and Merger Sub will vest in the Surviving Corporation; and (b) debts, liabilities and duties of the Company and Merger Sub will become the debts, liabilities and duties of the Surviving Corporation.

2.7 Articles of Incorporation and Bylaws.

2.8 Directors and Officers.

2.9 Effect on Capital Stock.

2.10 Equity Awards.

2.11 Exchange of Certificates.

2.12 No Further Ownership Rights in Company Capital Stock.

From and after the Effective Time, all shares of Company Capital Stock, including the Owned Company Shares and the Rollover Shares, will no longer be outstanding and will automatically be cancelled, retired and cease to exist, each holder of shares of Company Capital Stock (or any Certificate representing Shares or other certificate representing shares of Company Preferred Stock) will cease to have any rights with respect thereto, except the right to receive the consideration per share of Company Capital Stock payable therefor in accordance with Section 2.9(a)(ii). The consideration per share of Company Capital Stock paid in accordance with the terms of this Article II will be deemed to have been paid in full satisfaction of all rights pertaining to such of Company Capital Stock. From and after the Effective Time, there will be no further registration of transfers on the records of the Surviving Corporation of Company Capital Stock that were issued and outstanding immediately prior to the Effective Time, other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they will (subject to compliance with the exchange procedures of Section 2.11(c)) be cancelled and exchanged as provided in this Article II.

2.13 Lost, Stolen or Destroyed Certificates.

In the event that any Certificates have been lost, stolen or destroyed, the Payment Agent will issue in exchange therefor, upon the making of an affidavit of that fact by the holder thereof in form and substance reasonably acceptable to Parent and the Company, the Per Share Price payable in respect thereof pursuant to Section 2.9(a)(ii). Parent or the Payment Agent may, in its discretion and as a condition precedent to the payment of such Per Share Price, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in such amount as it may direct as an indemnity against any claim that may be made against Parent, the Surviving Corporation or the Payment Agent with respect to the Certificates alleged to have been lost, stolen or destroyed. Notwithstanding the immediately preceding sentence in this Section 2.13, Parent and the Company will cause the Payment Agent to provide in advance of the Effective Time, this affidavit, with no requirement for an indemnity bond, to the Supporting Stockholders that are specified by the Company in order to provide the Supporting Stockholders a reasonable opportunity to receive the Per Share Price in accordance with Section 2.9 payable hereunder.

2.14 Company Option and Company RSA Schedule.

At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent a schedule (the “Distribution Schedule”) setting forth, with respect to each Company Option and Company RSA that will be outstanding as of immediately prior to the Effective Time, (i) the name of each Person holding Company Options or Company RSAs and whether such Person is an employee of any Company Group Member, (ii) the number of Shares and class of Shares underlying each Company Option and the number of Shares granted pursuant to the applicable Company RSA, (iii) in respect of any Company Option, the exercise price thereof and (iv) the Merger Consideration to be paid in exchange for each such Company Options and Company RSAs in accordance herewith.

2.15 Required Withholding.

Notwithstanding anything herein to the contrary, each of the Payment Agent, Parent, the Company, the Surviving Corporation, and their Affiliates will be entitled to deduct and withhold from any amounts payable pursuant to this Agreement to any holder or former holder of Shares, Company Options or Company RSAs, or any other applicable Person, such amounts as are required to be deducted or withheld therefrom pursuant to any Tax Laws. To the extent that such amounts are so deducted or withheld and remitted to the applicable Governmental Entity, such amounts will be treated for all purposes of this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. Notwithstanding anything to the contrary, any compensatory amounts payable to any current or former employee of the Company or any of the Company Subsidiaries pursuant to or as contemplated by this Agreement shall be remitted to the applicable payor for payment to the applicable Person through regular payroll procedures, as applicable.

2.16 Necessary Further Actions.

If, at any time prior to the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, then the directors and officers of the Company and Merger Sub as of immediately prior to the Effective Time will take all such lawful and necessary action.

Article III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except (i) as set forth in the disclosure schedule that has been prepared by the Company and delivered by the Company to Parent and Merger Sub in connection with the execution and delivery of this Agreement, dated as of the date hereof (the “Disclosure Schedule”) or (ii) as set forth in any Company SEC Reports filed with, or furnished to, the SEC on or after the date that is one year prior to the date hereof and publicly available not less than two Business Days prior to the date hereof (other than disclosures in any “risk factors” or other disclosure statements included therein that are cautionary, predictive or forward looking in nature (other than any factual information contained therein) and including, for the avoidance of doubt, all exhibits thereto), the Company hereby represents and warrants to Parent and Merger Sub, as of the Agreement Date and as of the Closing Date, as follows:

3.1 Organization and Authority; Approval.

3.2 No Violations.

3.3 Capitalization.

3.4 Subsidiaries.

3.5 SEC Filings.

The Company and each other Company Group Member that is required to file or furnish reports with the SEC has filed or otherwise furnished (as applicable) all material forms, reports and documents required to be filed with, or furnished to, the SEC since January 1, 2023 (collectively, the “Company SEC Reports”). In each case as of the date of filing or effectiveness (as applicable), and, in the case of any Company SEC Report that was amended, as of the date of filing of such amendment, the Company SEC Reports complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act or the Investment Company Act, as the case may be, and the rules and regulations promulgated thereunder, each as in effect on the applicable filing, furnishing or effectiveness date, and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, except where any such failure to comply or any such untrue statement or omission would not, individually or in the aggregate, be material.

3.6 Company Financial Statements; Internal Controls.

3.7 No Undisclosed Liabilities.

Except as set forth on Section 3.7 of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liabilities of any kind other than those (i) adequately reflected in or reserved against in the Audited Company Balance Sheet, (ii) to the extent reflected in the Company SEC Reports, (iii) executory obligations pursuant to any contract that exist on the date hereof and are not related to any breach or default under any contract, breach of warranty, tort, infringement, misappropriation or violation of Law by the Company or any Company Group Member or (iv) incurred in the ordinary course of business since June 30, 2025.

3.8 Absence of Certain Changes.

To the knowledge of the Company, since June 30, 2025, (a) each of the Company Group Members has conducted its business in all material respects in the ordinary course consistent with past practice, (b) no event or events have occurred that, individually or in the aggregate, have had or are reasonably likely to have a Company Material Adverse Effect, (c) no Company Group Member has suffered any loss, damage, destruction or other casualty affecting any of its properties or assets, whether or not covered by insurance, except where any such loss, damage, destruction or other casualty would not be or reasonably be expected to be material to the Company Group as a whole, and (d) no Company Group Member has taken any action set forth in Section 5.2 that would require the prior written consent of Parent if such action was taken during the Interim Period.

3.9 Litigation.

To the knowledge of the Company, except as set forth on Section 3.9 of the Disclosure Schedule, there are no (a) proceedings against any Company Group Member or any of their respective properties or assets, or any of their respective directors, managers, officers or employees (or equivalent) with regard to their actions as such, (b) threatened proceedings by any Company Group Member against any third party and (c) Orders threatened to be imposed upon a Company Group Member or any of their respective properties or assets, or any of their respective directors, managers, officers or employees (or equivalent) with regard to their actions as such. There are no settlements or similar agreements that impose any material ongoing obligations or restrictions on any Company Group Member.

3.10 Compliance with Laws.

3.11 Intellectual Property.

3.12 Taxes.

3.13 Related Party Arrangements.

There are no contracts or service arrangements (other than ordinary course employment arrangements not governed by a written contract) between a Company Group Member, on the one hand, and, on the other hand, (a) any other Company Group Member (each, an “Intercompany Arrangement”) or (b) any director, officer, manager, employee, stockholder or Affiliate of a Company Group Member (or a family member or Affiliate of any such Person), including any license fee, intellectual property license or similar arrangement (together with the Intercompany Arrangements, each, a “Related Party Arrangement”). Each Related Party Arrangement that is not an Intercompany Arrangement is on commercially reasonable terms no more favorable to the non-Company Group Member party to such Related Party Arrangement than what a reasonable third party negotiating a similar arrangement on an arms’ length basis would expect. All approvals and disclosures required under applicable Laws and regulations with respect to each Related Party Arrangement have been obtained or made in all material respects.

3.14 Brokers.

No Company Group Member has retained any broker or finder or agreed to pay or made any statement or representation to any Person that would entitle such Person to any broker’s, finder’s or similar fees or commissions in connection with this Agreement and the Transactions.

3.15 Regulatory Documents.

3.16 Compliance with Financial Laws and Regulations.

Where applicable to the business of each USCF Entity, such USCF Entity has policies and procedures and supervisory systems reasonably designed to maintain compliance in all material respects with applicable Law, and other rules, regulations and requirements, including those related to licensing and registration, supervision, trading on material non-public information, market conduct, trade practices, position limits, maintenance of net capital, risk assessment, anti-money laundering, trade sanctions, privacy, cybersecurity, transaction and financial reporting, employee personal trading, transaction documentation, and books and records, except where the failure to have such policies and procedures and supervisory systems would not be or reasonably be expected to be material to the Company Group taken as a whole.

3.17 Takeover Statutes; Dissenter’s Rights.

The Company Board has taken all necessary corporate action (including any required amendment to the Current Bylaws) to render any and all “business combination,” “fair price,” “moratorium,” “control share acquisition” or other similar anti-takeover statute or regulation under the Laws of the State of Nevada, including NRS 78.378 through 78.3793, inclusive, and NRS 78.411 through 78.444, inclusive (collectively, “Takeover Statutes”) inapplicable to the Company, this Agreement and the Transactions, including the Merger. Neither the Articles nor the Current Bylaws contain any provision, and the Company Board has not taken any action by resolution or otherwise, providing that any holder of Company Capital Stock is entitled to dissenter’s rights or any other rights of appraisal, pursuant to the NRS or otherwise, in connection with this Agreement or the Transactions, including the Merger.

3.18 Real Property.

No Company Group Member owns any real property. The Company has made available to Parent copies of all leases, licenses or other occupancy agreements relating to real property currently leased, subleased or licensed by the Company or any of its Subsidiaries (the “Leased Real Property”) and all material amendments or modifications thereof (collectively, the “Lease Agreements”). There are no material disputes with respect to such Leased Real Property, and no Company Group Member is in material breach or material default under any Lease Agreements.

3.19 Employee Benefit Matters.

3.20 Labor Matters.

3.21 Material Contracts.

Section 3.21 of the Disclosure Schedule sets forth a true and complete list, as of the Agreement Date, of each Contract to which any Company Group Member is a party or by which any Company Group Member or any of its properties or assets is bound that constitutes a material Contract (each, a “Material Contract”). Each Material Contract is valid and binding on the Company (or each such Subsidiary of the Company party thereto), and to the knowledge of the Company, each other party thereto and is in full force and effect, other than any Material Contract that by their terms have expired or been terminated since the date hereof, and neither the Company nor any of its Subsidiaries party thereto, nor, to the knowledge of the Company, any other party thereto, is in breach of, or default under, any such Material Contract, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default thereunder by the Company or any of its Subsidiaries, or, to the knowledge of the Company, any other party thereto, except for such failures to be in full force and effect and such breaches and defaults that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has not waived any rights under any Material Contract, the waiver of which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, since the date of the Audited Company Balance Sheet, the Company Group has not received any written notice from or on behalf of any counterparty to any Material Contract stating that such counterparty intends to terminate or not renew such Material Contract.

3.22 Exclusivity of Representations and Warranties; Investigation

Article IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

Except as set forth in the disclosure schedule delivered by Parent and Merger Sub to the Company on the date hereof (the “Parent and Merger Sub Disclosure Schedule”), which expressly identifies the Section (or, if applicable, subsection) to which such exception relates (it being understood and hereby agreed that any disclosure in such disclosure schedule relating to one Section or subsection shall also apply to any other Sections and subsections if and to the extent that it is reasonably apparent on the face of such disclosure (without reference to the underlying documents referenced therein) that such disclosure also relates to such other Sections or subsections), Parent and Merger Sub hereby represent and warrant to the Company as follows:

4.1 Organization and Authority; Approval.

Each of Parent and Merger Sub is duly organized, validly existing and in good standing pursuant to the Laws of its jurisdiction of organization. Each of Parent and Merger Sub has all requisite limited liability company or corporate, as applicable, power and authority to enter into and perform its obligations under this Agreement and to consummate the Transactions, including the Merger. Each of Parent and Merger Sub has duly and validly authorized this Agreement by all limited liability company or corporate, as applicable, action necessary in order to execute, deliver and perform its obligations hereunder and to consummate the Transactions. There are no votes, consents or approvals of any equityholder, manager, member or director of Parent or Merger Sub or their respective Affiliates required in connection with Parent’s or Merger Sub’s execution, delivery, or performance of this Agreement that have not been obtained as of the date hereof, other than the approval of this Agreement by the sole stockholder of Merger Sub, which will be obtained promptly following the execution and delivery of this Agreement. This Agreement has been duly executed and delivered by each of Parent and Merger Sub and constitutes a legal, valid and binding obligation of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, subject to the Enforceability Limitations.

4.2 Governmental Filings; No Violations.

4.3 Litigation.

There are no civil, criminal or administrative actions, suits, claims, hearings, arbitrations, investigations or other proceedings pending or threatened against Parent or Merger Sub that seek to enjoin or would have or reasonably be expected to have the effect of preventing, making illegal, or otherwise interfering with, the execution, delivery and performance of this Agreement and the consummation and effectiveness of the Transactions.

4.4 No Parent Vote or Approval Required.

No vote or consent of the holders of any equity or voting interest in Parent is necessary to approve this Agreement and the Merger. The vote or consent of Parent, as the sole stockholder of Merger Sub, is the only vote or consent of the capital stock of, or other equity interest in, Merger Sub necessary to approve this Agreement and the Merger.

4.5 Operations of Parent and Merger Sub.

Each of Parent and Merger Sub has been formed solely for the purpose of engaging in the Merger, and, prior to the Effective Time, neither Parent nor Merger Sub will have engaged in any other business activities and will have incurred no liabilities or obligations other than as contemplated by the Equity Commitment Letters or any agreements or arrangements entered into in connection with the Equity Financing and this Agreement. Parent owns beneficially and of record all of the outstanding capital stock, and other equity and voting interest in, Merger Sub free and clear of all Liens.

4.6 Financial Capability.

4.7 Solvency.

Upon consummation of the Transactions, assuming (i) the accuracy of the representations and warranties set forth in Article III and (ii) that, immediately prior to the Closing, the Company Group is solvent, neither Parent nor Merger Sub will (a) be insolvent or left with unreasonably small capital, (b) have incurred debts beyond its ability to pay such debts as they mature or (c) have liabilities in excess of the reasonable market value of its assets.

4.8 Brokers.

Neither Parent, Merger Sub nor any of their respective Affiliates has retained any broker or finder or agreed to pay or made any statement or representation to any Person that would entitle such Person to any broker’s, finder’s or similar fees or commissions from any Company Group Member in connection with this Agreement and the Transactions.

4.9 Exclusivity of Representations and Warranties; Investigation.

Article V
INTERIM OPERATIONS

5.1 Affirmative Obligations.

Except as required by applicable Law, the actions described in Schedule III (the “Permitted Actions”), actions expressly required under this Agreement, or with the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time (the “Interim Period”), the Company shall and shall cause each other Company Group Member to (i) operate its business in all material respects in the ordinary course of business consistent with past practice (the “Ordinary Course”); (ii) pay its debts and Taxes when due and (iii) use commercially reasonable efforts to keep available the services of its current employees and service providers and preserve intact its business, assets, relationships and goodwill with customers, suppliers, licensors, licensees, distributors and other Persons with which it has significant business relationships. For the avoidance of doubt, no action taken by the Company or any other Company Group Member with respect to matters explicitly permitted by an exception to Section 5.2 shall be deemed a breach of this Section 5.1.

5.2 Forbearance Covenants of the Company.

Except (i) for the Permitted Actions, (ii) as required by applicable Law or expressly required by this Agreement, or (iii) with the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), during the Interim Period, the Company shall not, and shall cause each other Company Group Member not to, directly or indirectly, take any of the following actions:

Nothing contained in this Section 5.2 shall give Parent, directly or indirectly, the right to control or direct the operations of the Company Group prior to the Effective Time.

5.3 No Solicitation.

5.4 Funds Dissolution.

The Parties acknowledge that certain Terminated Funds are expected to be liquidated and terminated as soon as practicable following the Agreement Date, but that completion of all such liquidations and terminations prior to the Closing may not be practicable given the regulatory and operational steps required.

5.5 Required Regulatory Approvals and Consents.

5.6 Financing Cooperation.

Article VI
ADDITIONAL COVENANTS

6.1 Required Action and Forbearance; Efforts.

6.2 Conduct of Business by Parent.

6.3 Divestiture of UK Subsidiaries. The Company shall have taken commercially reasonable efforts to consummate the sale, transfer or other disposition of all of the outstanding Equity Securities of each of Marygold & Co. (UK) Limited, Marygold & Co. Limited f/k/a Tiger Financial, and Step-By-Step Financial Planners Limited (each a “UK Subsidiary” and collectively, the “UK Subsidiaries”) to one or more Persons that are not Company Group Members, such that, as of the Closing, (i) neither the Company nor any Company Group Member owns, directly or indirectly, any Equity Securities or other ownership interest in any UK Subsidiary and (ii) no UK Subsidiary constitutes a Company Subsidiary.

6.4 Delivery of Stockholder Consent.

6.5 Required SEC Filings.

6.6 Access.

During the Interim Period, subject to applicable Law and the Confidentiality Agreement, the Company shall, and shall cause each other Company Group Member to, afford Parent and its Representatives reasonable access, during normal business hours and upon reasonable advance notice, to the properties, books and records, Contracts, personnel and other information concerning the business, properties and personnel of the Company Group as Parent may reasonably request; provided, that such access shall be conducted in a manner that does not unreasonably interfere with the business or operations of the Company Group. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any other Company Group Member shall be required to provide access to, or disclose, any information if such access or disclosure would, in the reasonable judgment of the Company, (i) violate applicable Law or any Order or (ii) result in the loss or waiver of any attorney-client, work product or other applicable legal privilege or protection; provided further, that, in each such case, the Company shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in which the foregoing restrictions would not apply, including by entering into a customary joint defense or common interest agreement or providing information in a redacted form, as applicable. Without the prior written consent of the Company, Parent and its Representatives shall not contact any customer, supplier, vendor, employee or other material business relation of the Company Group regarding the Transactions. All information obtained pursuant to this Section 6.6 shall be subject to the Confidentiality Agreement. Nothing in this Section 6.6 shall give Parent, directly or indirectly, the right to control or direct the operations of the Company Group prior to the Effective Time. For the avoidance of doubt, nothing in this Section 6.6 shall limit or otherwise modify the rights of Parent, Merger Sub or their respective Representatives, or the obligations of the Company or any Company Group Member, under Section 6.5.

6.7 Section 16(b) Exemption.

During the Interim Period, the Company shall cause the Company Board, or a committee thereof composed solely of at least two directors who qualify as “Non-Employee Directors” under Rule 16b-3, to approve in advance each specific disposition of equity securities of the Company (including any derivative securities) by each director or executive officer of the Company subject to Section 16(a) of the Exchange Act that is effected in connection with the Merger, in each case to the extent necessary to qualify such disposition for the exemption provided by Rule 16b-3. Any such approval shall identify the specific transaction or the terms and conditions thereof fixed in advance, and the Company shall maintain appropriate records of such approval.

6.8 Directors’ and Officers’ Exculpation, Indemnification and Insurance.

6.9 Obligations of Merger Sub.

Parent will take all action necessary to cause Merger Sub and the Surviving Corporation to perform their respective obligations pursuant to this Agreement and to consummate the Merger upon the terms and subject to the conditions set forth in this Agreement. Parent and Merger Sub will be jointly and severally liable for the failure by either of them to perform and discharge any of their respective covenants, agreements and obligations pursuant to this Agreement.

6.10 Public Statements and Disclosure.

6.11 Transaction Litigation.

At all times during the Interim Period, the Company will provide Parent with prompt written notice of all Transaction Litigation (including by providing copies of all documents and pleadings with respect thereto) and keep Parent reasonably informed with respect to the status thereof. The Company will (a) give Parent the opportunity to participate (at Parent’s expense) in the defense, settlement or prosecution of any Transaction Litigation; and (b) consult with Parent with respect to the defense, settlement and prosecution of any Transaction Litigation. The Company may not compromise, settle or come to an arrangement regarding, or agree to compromise, settle or come to an arrangement regarding, any Transaction Litigation unless Parent has consented thereto in writing (which consent shall not be unreasonably withheld, delayed or conditioned). For purposes of this Section 6.11, “participate” means that Parent will be kept apprised of proposed strategy and other significant decisions with respect to the Transaction Litigation by the Company (to the extent that the attorney-client, work product, or any other privilege, doctrine or protection between the Company and its counsel is not undermined), and Parent will be provided an opportunity to review, and the Company will provide Parent with an opportunity to review, and Parent may offer comments or suggestions with respect to all filings or written responses to be made by the Company with respect to such Transaction Litigation (and the Company shall give good-faith consideration to any such comments or suggestions) but will not be afforded any decision-making power or other authority over such Transaction Litigation except for the settlement or compromise consent set forth above.

6.12 Stock Exchange Delisting; Deregistration.

The Company and the Company Board will use their reasonable best efforts to maintain, and neither the Company nor the Company Board will cause or permit the interruption or termination of, the listing of the Shares on the Stock Exchange prior to the Effective Time. Prior to the Effective Time, the Company will cooperate with Parent and use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, proper or advisable on its part pursuant to applicable Law and the rules and regulations of the Stock Exchange to cause (a) the delisting of the Company Common Stock from the Stock Exchange as promptly as practicable after the Effective Time, and (b) the deregistration of the Company Common Stock pursuant to the Exchange Act as promptly as practicable after such delisting.

6.13 Additional Agreements.

If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation with full title to all properties, assets, rights, approvals, immunities and franchises of either of the Company or Merger Sub, then the proper officers and directors of each Party will use their reasonable best efforts to take such action.

6.14 Parent Vote.

Immediately following the execution and delivery of this Agreement, Parent, in its capacity as the sole stockholder of Merger Sub, will execute and deliver to Merger Sub and the Company a written consent approving this Agreement in accordance with the NRS.

6.15 No Control of the Other Party’s Business.

The Parties acknowledge and agree that the restrictions set forth in this Agreement are not intended to give Parent or Merger Sub, on the one hand, or the Company, on the other hand, directly or indirectly, the right to control or direct the business or operations of the other at any time prior to the Effective Time. Prior to the Effective Time, each of Parent and the Company will exercise, consistent with the terms, conditions and restrictions of this Agreement, complete control and supervision over their own business and operations.

6.16 Anti-Takeover Laws.

Each of Parent and the Company and the Company Board (and any committee empowered to take such action, including the Special Committee) will (a) take all actions within their power to ensure that no Takeover Statute is or becomes applicable to this Agreement or the Transactions; and (b) if any Takeover Statute becomes applicable to this Agreement, or the Transactions, take all action within their power to ensure that the Merger may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger.

6.17 No Employment Discussions.

Except as approved by the Special Committee, at all times after the Agreement Date until the Stockholder Consent has been delivered, Parent and Merger Sub will not, and will not permit any of their Subsidiaries or controlled Affiliates to authorize, make or enter into, or commit or agree to enter into, any formal or informal arrangements, agreements or other understandings with any executive officer of the Company (i) regarding any continuing employment or consulting relationship with the Surviving Corporation from and after the Effective Time; (ii) pursuant to which any such individual would be entitled to receive consideration of a different amount or nature than the Per Share Price in respect of such holder’s shares of Company Common Stock; or (iii) pursuant to which such individual would agree to provide, directly or indirectly, equity investment to Parent, Merger Sub or the Company to finance any portion of the Merger.

6.18 Section 15(f) Board Composition.

6.19 Transfer Restrictions.

The Company agrees, with respect to each Supporting Stockholder, that if any such Supporting Stockholder attempts to Transfer (as defined in the Voting and Support Agreements), vote or provide any other person with the authority to vote any shares of the capital stock of the Company owned by such Supporting Stockholder other than in compliance with the Voting and Support Agreements, the Company shall not, to the extent a holder of record, (a) permit any such Transfer on the Company’s books and records, (b) issue a new certificate representing any of the shares of such capital stock or permit any book entries for any such Transfer with respect to any such shares of such capital stock that are in uncertificated form or (c) record such vote.

6.20 Termination of Voting Agreement.

That certain Voting Agreement, dated as of January 27, 2015, by and between The Nicholas and Melinda Gerber Living Trust and The Schoenberger Family Trust, shall have been terminated in its entirety and shall be of no further force or effect prior to the Closing, and the Company shall deliver to Parent evidence of such termination in form and substance reasonably satisfactory to Parent.

6.21 MGUS Liabilities.

Prior to the Closing, the Company shall, and shall use commercially reasonable efforts to cause MGUS to use commercially reasonable efforts (a) fully pay, satisfy, settle, discharge or otherwise resolve all Liabilities of MGUS, including all Liabilities arising out of or relating to outstanding invoices from current or former vendors, in each case on terms reasonably satisfactory to Parent, or (b) with respect to any such Liabilities that have not been so paid, settled, discharged or otherwise resolved prior to the Closing, retain cash or cash equivalents in an amount reasonably sufficient to satisfy such Liabilities; provided, that neither the Company nor MGUS shall compromise, settle or otherwise resolve any such Liability prior to the Closing without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed).

6.22 Bylaws

Prior to the Effective Time, the Company shall take all actions necessary or appropriate to cause the Amended and Restated Bylaws to be duly adopted and approved, effective as of the Effective Time. The Company shall not amend, modify, supplement or waive any provision of the Current Bylaws prior to the Effective Time without the prior written consent of Parent.

Article VII
CONDITIONS TO THE MERGER

7.1 Conditions to Each Party’s Obligations to Effect the Merger.

The respective obligations of Parent, Merger Sub and the Company to consummate the Merger are subject to the satisfaction or waiver (where permissible pursuant to applicable Law) prior to the Effective Time of each of the following conditions:

7.2 Conditions to the Obligations of Parent and Merger Sub to Effect the Merger.

The obligations of Parent and Merger Sub to consummate the Merger will be subject to the satisfaction or waiver (where permissible pursuant to applicable Law) prior to the Effective Time of each of the following conditions, any of which may be waived exclusively by Parent:

7.3 Conditions to the Company’s Obligations to Effect the Merger.

The obligation of the Company to consummate the Transactions, including the Merger, is also subject to the satisfaction or waiver by the Company at or prior to the Effective Time of the following conditions:

Article VIII
TERMINATION, AMENDMENT AND WAIVER

8.1 Termination.

This Agreement may be validly terminated, and the Transactions may be abandoned, at any time prior to the Effective Time only as follows (it being understood and agreed that this Agreement may not be terminated for any other reason or on any other basis):

8.2 Manner and Notice of Termination; Effect of Termination.

8.3 Fees and Expenses.

8.4 Amendment.

Subject to applicable Law and subject to the other provisions of this Agreement, this Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of each of the Parties, except that in the event that the Company has received the Requisite Stockholder Approval, no amendment may be made to this Agreement that requires the approval of the Company Stockholders pursuant to the NRS without such approval.

8.5 Extension; Waiver.

At any time and from time to time prior to the Effective Time, any Party may, to the extent legally allowed and except as otherwise set forth herein, (a) extend the time for the performance of any of the obligations or other acts of the other Parties, as applicable; (b) waive any inaccuracies in the representations and warranties made to such Party contained herein or in any document delivered pursuant hereto; and (c) subject to the requirements of applicable Law, waive compliance with any of the agreements or conditions for the benefit of such Party contained herein. Any agreement on the part of a Party to any such extension or waiver will be valid only if set forth in an instrument in writing signed by such Party. Any delay in exercising any right pursuant to this Agreement will not constitute a waiver of such right.

Article IX

GENERAL PROVISIONS

9.1 Survival of Representations, Warranties and Covenants.

Other than as set forth in the Voting and Support Agreements (and in such case, solely in respect of the obligations of the Supporting Stockholders), the representations, warranties and covenants of the Company, Parent and Merger Sub contained in this Agreement will terminate at the Effective Time, except that any covenants that by their terms survive the Effective Time will survive the Effective Time in accordance with their respective terms.

9.2 Notices.

All notices and other communications hereunder must be in writing and will be deemed to have been duly delivered and received hereunder (i) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid; (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; or (iii) immediately upon delivery by hand or by email transmission, in each case to the intended recipient as set forth below:

Flower AcquireCo, LLC

c/o Lloyd Harbor Capital Management

44 Main Street

Cold Spring Harbor, NY 11724

Attention: Tim Rotolo

Email: tjr@lloydharborcapital.com

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

Morgan, Lewis & Bockius LLP

2222 Market Street

Philadelphia, PA 19103

Attention: Richard B. Aldridge; Avryl Klich

Email: richard.aldridge@morganlewis.com; avryl.klich@morganlewis.com

and

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

Attention: Adam M. Givertz

Email: agivertz@paulweiss.com

The Marygold Companies, Inc.

120 Calle Iglesia, Unit B

San Clemente, CA 92672

Attention: David Neibert, Chief Operations Officer

Email: dneibert@themarygoldcompanies.com

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

Holland & Hart LLP

9555 Hillwood Drive, 2nd Floor

Las Vegas, Nevada 89134

Attention: Gian Brown

Email: gabrown@hollandhart.com

Any notice received at the addressee’s location, or by email at the addressee’s email address, on any Business Day after 5:00 p.m., addressee’s local time, or on any day that is not a Business Day will be deemed to have been received at 9:00 a.m., addressee’s local time, on the next Business Day. From time to time, any Party may provide notice to the other Parties of a change in its address or email address through a notice given in accordance with this Section 9.2, except that notice of any change to the address, email address or any of the other details specified in or pursuant to this Section 9.2 will not be deemed to have been received until, and will be deemed to have been received upon, the later of the date (A) specified in such notice; or (B) that is five (5) Business Days after such notice would otherwise be deemed to have been received pursuant to this Section 9.2.

9.3 Assignment.

No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Parties, except that Parent and Merger Sub will have the right to assign all or any portion of their respective rights and obligations pursuant to this Agreement (a) to any of their respective Affiliates; or (b) to any debt financing source of Parent or Merger Sub for purposes of creating a security interest herein or otherwise assigning as collateral in respect of such debt financing, it being understood that, in each case, such assignment will not relieve Parent or Merger Sub of any of its obligations hereunder.

9.4 Confidentiality.

Parent, Merger Sub and the Company hereby acknowledge and agree that the Confidentiality Agreement will continue in full force and effect in accordance with its terms. Each of Parent, Merger Sub and their respective Representatives will hold and treat all documents and information concerning the Company Group Members furnished or made available to Parent, Merger Sub or their respective Representatives in connection with the Merger in accordance with the Confidentiality Agreement. By executing this Agreement, each of Parent and Merger Sub agree to be bound by, and to cause their Representatives to be bound by, the terms and conditions of the Confidentiality Agreement as if they were parties thereto.

9.5 Entire Agreement.

This Agreement and the documents and instruments and other agreements among the Parties as contemplated by or referred to herein, including the Confidentiality Agreement, the Disclosure Schedule and the Equity Commitment Letters, constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the Parties and all common law duties with respect to the subject matter hereof; provided that, the Parties acknowledge and agree that the Disclosure Schedule are “facts ascertainable” as that term is used in NRS 92A.200(2) and does not form part of this Agreement but instead operate upon the terms of this Agreement as provided herein. Notwithstanding anything to the contrary in this Agreement, the Confidentiality Agreement will (a) not be superseded; (b) survive any termination of this Agreement; and (c) continue in full force and effect until the earlier to occur of the Effective Time and the date on which the Confidentiality Agreement expires in accordance with its terms or is validly terminated by the parties thereto.

9.6 Third-Party Beneficiaries.

Except as set forth in Section 6.8(a), Section 9.16 and Section 9.17, the Parties agree that their respective representations, warranties and covenants set forth in this Agreement are solely for the benefit of the other Parties in accordance with and subject to the terms of this Agreement. This Agreement is not intended to, and will not, confer upon any other Person any rights or remedies hereunder, except (a) as set forth in or contemplated by Section 6.8(a), Section 9.16 and Section 9.17 and (b) from and after the Effective Time, the rights of the holders of shares of Company Capital Stock to receive the consideration payable in respect of such shares pursuant to Article II. Section 8.3(f) will inure to the benefit of the Parent Related Parties and the Company Related Parties.

9.7 Severability.

In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the Parties. The Parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

9.8 Remedies.

9.9 Governing Law.

This Agreement, the documents, instruments and certificates contemplated or delivered hereunder, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the documents, instruments and certificates contemplated or delivered hereunder, or the negotiation, execution or performance of this Agreement, the documents, instruments and certificates contemplated or delivered hereunder, or the Transactions, shall be governed by the internal Laws of the State of Nevada applicable to agreements made and to be performed entirely within such state, without giving effect to its principles or rules of conflict of Laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the Laws of another jurisdiction; provided that the definition of “Company Material Adverse Effect” in Section 1.1(t) shall be governed by the internal Laws of the State of Delaware, without giving effect to its principles or rules of conflict of Laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the Laws of another jurisdiction.

9.10 Consent to Jurisdiction; Attorney Client Privilege Matters.

9.11 WAIVER OF JURY TRIAL.

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY OR LITIGATION THAT MAY ARISE OUT OF OR RELATE TO THIS AGREEMENT, OR THE NEGOTIATION, VALIDITY OR PERFORMANCE OF THIS AGREEMENT, OR THE TRANSACTIONS, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL PROCEEDING (WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS OR THE EQUITY COMMITMENT LETTERS. EACH PARTY ACKNOWLEDGES AND AGREES THAT (i) 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; (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (iii) IT MAKES THIS WAIVER VOLUNTARILY; AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.

9.12 Disclosure Schedule References.

The Parties agree that the disclosure set forth in any particular section or subsection of the Disclosure Schedule and Parent and Merger Sub Disclosure Schedule will be deemed to be an exception to (or, as applicable, a disclosure for purposes of) (a) the representations and warranties (or covenants, as applicable) of the Company that are set forth in the corresponding Section or subsection of this Agreement; and (b) any other representations and warranties (or covenants, as applicable) of the Company that are set forth in this Agreement, but in the case of this clause (b) only if the relevance of that disclosure as an exception to (or a disclosure for purposes of) such other representations and warranties (or covenants, as applicable) is reasonably apparent on the face of such disclosure.

9.13 Counterparts.

This Agreement and any amendments hereto may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Any such counterpart, to the extent delivered by .pdf, .tif, .gif, .jpg or similar attachment to electronic mail or through an electronic signature service (any such delivery, an “Electronic Delivery”), will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party may raise the use of an Electronic Delivery to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of an Electronic Delivery, as a defense to the formation of a contract, and each Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

9.14 No Limitation.

It is the intention of the Parties that, to the extent possible, unless provisions are mutually exclusive and effect cannot be given to both or all such provisions, the representations, warranties, covenants and closing conditions in this Agreement will be construed to be cumulative and that each representation, warranty, covenant and closing condition in this Agreement will be given full, separate and independent effect and nothing set forth in any provision herein will in any way be deemed to limit the scope, applicability or effect of any other provision hereof.

9.15 Disclaimer.

The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole contractual benefit of such Parties. Such representations and warranties may be made as of specific dates, only for purposes of the Agreement and for the benefit of the Parties. Such representations and warranties are subject to important exceptions and limitations agreed upon by the Parties, including being qualified by confidential disclosures, made for the purposes of allocating contractual risk between the parties rather than establishing these matters as facts, and were made subject to a contractual standard of materiality that may differ from the standard generally applicable under federal securities Laws or under other contracts. Any inaccuracies in such representations and warranties are subject to waiver by the Parties in accordance with Section 8.5 without notice or liability to any other Person. Any information concerning the subject matter of such representations and warranties may have changed, and may continue to change, since the Agreement Date, and such subsequent information may or may not be fully reflected in the Company’s public reports. In some instances, the representations and warranties in this Agreement may represent an allocation among the Parties of contractual risks associated with particular matters regardless of the knowledge of any of such parties. Any filing of this Agreement with the SEC or otherwise is only to provide investors with information regarding its terms and conditions and not to provide any other factual information regarding the Company or its business. Consequently, Persons other than the Parties may not rely upon the representations and warranties in this Agreement or any description thereof as characterizations of actual facts or circumstances as of the Agreement Date or as of any other date. The information in this Agreement should be considered together with the Company’s public reports filed with the SEC.

9.16 No Recourse.

Notwithstanding anything to the contrary in this Agreement, in no event will the Company, whether prior to or after termination of this Agreement, seek or obtain, nor will it permit any of its Representatives to seek or obtain, nor will any Person be entitled to seek or obtain, any monetary damages, recovery or award or any other remedy against any Parent Related Party with respect to this Agreement, the Equity Commitment Letters or the transactions contemplated hereby and thereby (including any breach by the Sponsors, Parent or Merger Sub), the termination of this Agreement, the failure to consummate the Transactions or any claims or actions under applicable Laws arising out of any such breach, termination or failure, other than (a) from Parent or Merger Sub to the extent expressly provided for in this Agreement, (b) from each Sponsor to the extent expressly provided for in such Sponsor’s Equity Commitment Letter and (c) pursuant to the Confidentiality Agreement.

9.17 Financing Provisions.

Notwithstanding anything in this Agreement to the contrary, each of Parent and the Company on behalf of itself and each of its Affiliates, solely in respect of any agreement entered into in connection with any Financing that is governed by the Laws of the State of New York: (a) agrees that any Legal Proceeding, whether in law or in equity, whether in contract or in tort or otherwise, involving the Financing Sources, arising out of or relating to, this Agreement, the Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, and any appellate court thereof and each Party irrevocably submits itself and its property with respect to any such proceeding to the exclusive jurisdiction of such court, (b) agrees that any such proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the Laws of another state), (c) agrees not to bring or support or permit any of its Affiliates to bring or support any Proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against the Financing Sources in any way arising out of or relating to, this Agreement, the Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (d) agrees that service of process upon such Party in any such proceeding shall be effective if notice is given in accordance with Section 9.2, (e) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such Legal Proceeding in any such court, (f) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any Legal Proceeding brought against the Financing Sources in any way arising out of or relating to, this Agreement, the Financing, any definitive documentation for the Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that the Financing Sources will not have any liability to any of the Company Group Members or any of their respective Affiliates or Representatives (or their Affiliates’ Representatives) relating to or arising out of this Agreement, the Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder and (h) agrees that the Financing Sources are express third-party beneficiaries of, and may enforce, this Section 9.17 and any of the provisions in this Agreement reflecting the foregoing agreements in this Section 9.17 (and such provisions shall not be amended in any way materially adverse to the Financing Sources without the prior written consent of the Financing Sources). This Section 9.17 shall not affect, alter or amend in any way the covenants and agreements between the Company and Parent, or the obligations of the Company and Parent provided for in this Agreement.

[Signature Pages Follow]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.

[Signature Page to Agreement and Plan of Merger]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.

[Signature Page to Agreement and Plan of Merger]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.

Schedules [Redacted]

[Signature Page to Agreement and Plan of Merger]