EX-2.12Share Purchase Agreement.htmAPPENDIX 2.1 Appendix
CONFIDENTIAL EXECUTION VERSION
SHARE PURCHASE AGREEMENT
TELEFONO DIGITAL LTDA.,
DIGITAL TELEPHONE, INC.
July 30, 2018
Article I DEFINITION
Article II PURCHASE AND SALE OF SHARES
sale contract of sale
purchase price adjustment
restraint at source
Article III REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED ENTITIES
Organization; power and authority; capital structure
no conflict; approval
Operation in normal business operations
employee benefit plans
Real and personal property
labor and employment issues
Contracts and Obligations
According to the laws; Allow
Related Party Transactions
books and records
AML and Sanctions and Export Compliance
anti-corruption laws; Certain Regulatory Matters
Article IV REPRESENTATIONS AND WARRANTIES OF THE SELLER
Organization; power and authority
no conflict; approval
ARTICLE V BUYER REPRESENTATIONS AND WARRANTIES
Organization; power and authority; capital structure
no conflict; approval
Article VI AGREEMENTS
books and records
Use the seller group name
Certain Intercompany Matters
no competition; No request
Conduct trades before closing
Article VII DAMAGES; SOLUTIONS
Compensation Procedures – Claims by Third Parties
Compensation Process - Other Claims
Handling Compensation Payments
Final Determination of Claims; Pay
Process of damage insurance policy
Article VIII GENERAL PROVISIONS
waiver of disputes; business meetings
Fees and Costs
Choice of Law/Consent to Venue
JURY VERDICT WAIVER
No deal until it works
execution and delivery
No additional representation
Appendix A – Example of a Balance at the Estimated Closing Date
Exhibit B – Final Working Capital Example
Exhibit C - Transition Services Agreement
Exhibit D – Liability Insurance Policy
SHARE PURCHASE AGREEMENT
BeSHARE PURCHASE AGREEMENT(be "agreement
") dated 30 July 2018 between Telefónica Digital Ltd., a limited company incorporated under the laws of England and Wales and registered number 07884976 (the "Salesperson
")), Telefónica Digital, Inc., a Delaware company (the "Pursue
’), and Nexmo Inc., a Delaware company („buyer
"). For purposes of this Agreement, capitalized terms not otherwise defined herein have the meanings set forth inArticle I
WHILE, the Vendor owns all issued and outstanding shares of the Company’s share capital (the “Behave
WHILE, the buyer has agreed to buy from the seller and the seller has agreed to sell the shares to the buyer on the terms of this agreement.
NOW, THEREFOREIn view of the foregoing premises and the representations, warranties, covenants and understandings set forth below, and for other good and valuable consideration, the receipt and reasonableness of which are hereby acknowledged, the parties agree as follows:
Section 1.1The definition
. In this Agreement, the following terms have the meanings specified or referred to in this AgreementSection 1.1
, the meaning of which is equally applicable to the singular and plural forms.
„Accounting Principles“means, in accordance with applicable law and GAAP in effect at the closing date, using and applying the same accounting principles, practices, procedures, policies and methods (having consistent classifications, judgments, choices, inclusions, exclusions and valuation methods). used by the Company in preparing the interim financial statements and the sample balance sheet with expected closing date included thereinAnhang A
; to the extent that these accounting principles, practices, procedures, principles and methods and GAAP are inconsistent, the accounting principles, practices, procedures, principles and methods used in the preparation of the model interim financial statements and balance sheet as of the date of expected completion are established InAnhang A
must control; provided that the accounting policies are (i) based on facts and circumstances existing at the closing date and (ii) follow the terms defined in this Agreement.
„Acquired Companies' means together the Company and the Company's subsidiaries.
„action” means any action, hearing, suit, arbitration, investigation, notice of infringement, proceeding, litigation, subpoena, subpoena, investigation or investigation, whether civil, criminal, administrative or governmental, whether under statute or in equity.
„Affiliate” means, in relation to a person, any other person who controls, is controlled by, or is under common control with, directly or indirectly through one or more intermediaries.
„Money laundering laws" means laws and regulations related to the financing of terrorism or money laundering, including the Unite and Strengthen America by Providing the Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (also known as the "Act PATRIOT") (Title III of Pub L . 107-56) and The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”) (31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959) or foreign laws related to the financing of terrorism or money laundering as may apply to any of the acquired companies.
„working day” means any day other than Saturday, Sunday or any other day on which domestic banks in New York, New York, United States or Madrid, Spain are entitled or required by law to remain closed.
„Important Buyer Representations“means collectively the representations and warranties set forth inSection 5.1
(Organization; power and authority; capital structure) andSection 5.4
„buyer countermeans Deloitte LLP.
„split transaction" means the following transactions completed by the Acquired Companies prior to the date of this document: (a) the sale of assets designated by the Vendor related to the Vendor Group's business called "Novum" under this account signed in June Device sales stops 15th, 2018; (b) the sale of shares representing all outstanding shares in the Israeli company Telefónica Digital Ltd. pursuant to a certain share transfer agreement entered into on June 26, 2018; (c) the assignment of the Jajah Marks to one or more members of the sales group pursuant to a specified instrument of assignment signed on May 15, 2018; (d) the transfer of certain machine-to-machine contracts to the Sales Group pursuant to the assignment agreements entered into on May 1, 2018; (e) the relocation of certain global sales group employees based in the Silicon Valley office to Telefónica USA, Inc.; and (f) the assignment of certain support contracts and the lease relating to the Silicon Valley office to one or more members of the sales group.
„Cash and cash equivalents"means (a) money held in deposit accounts, including money market accounts, (b) money subject to checks but not yet paid (only to the extent that the relevant amount is not included in the accounts receivable) and excluding any checks written , but have not yet been cleared or redeemed, (c) earmarked cash from the Acquired Businesses consisting of collateral deposits related to the office leases, (d) ongoing electronic funds transfers to the Acquired Businesses (only to the extent that the physical amount is not included in accounts receivable) and excluding ongoing electronic funds transfers by acquirees, and (e) cash equivalents (including marketable securities) held by acquirees as at close of business on Closing Date and calculated in accordance with GAAP.
„Payment Deadline Date' has the meaning specified inSection 2.5(b)
„ultimate working capital“means: (a) the current assets of the acquiree less (b) the current liabilities of the acquiree, each as of the close of business on the Closing Date, each calculated in accordance with the GAAP and the example set forth inAnhang
„Code' means the Internal Revenue Code of 1986, as amended.
„Engagement” means in relation to a person (a) any option, warrant, convertible security, exchangeable security, subscription right, conversion right, exchange right or other arrangement which may oblige that person to issue their shares or sell an equity interest to you in another person have; (b) any other security convertible, exchangeable or exercisable or representing a right to subscribe for an interest in the capital of that person; (c) first refusal rights provided for by law in relation to that person's equity interests or first refusal rights granted pursuant to that person's governmental documents or any agreement to which that person is a party or granted to that person in respect of that person's equity interests are binding; and (d) any stock appreciation right, phantom stock, profit sharing or other similar right in respect of that person.
„corporate business” means the Acquired Companies' business as currently conducted, including the design, development, manufacturing, distribution, sale, marketing, licensing, supply and delivery of the Company's offerings.
„Basic representations of the company“means collectively the representations and warranties set forth inSection 3.1
(organization; power and authority; capital structure),Section 3.2
(without intermediaries),Section 4.1
(organization; power and authority),Section 4.3
(property) andSection 4.4
„corporate debt” means the total indebtedness of the acquired companies to close operations as of the closing date.
„Company intellectual property rights” means all Intellectual Property Rights owned, used, maintained for use or practiced by any Acquired Entity, including all Intellectual Property Rights acquired in connection with (or incorporated into any Enterprise Offering by, any of the Acquired Entities or otherwise used, held for use, or practiced in connection therewith.
„corporate offers“means any product or service offered, licensed, provided, sold, distributed or made available by any Acquired Company and any product or service designed or developed (or already designed or developed) by any Acquired Company become companies. Company, including all previous versions and releases, together with all related documentation, materials or information.
„enterprise software” means all Software owned or developed by or for any of the Acquired Companies.
„subsidiaries of the company' collectively means TokBox, Inc., a California company, and TokBox Australia Pty Limited, a company incorporated under the laws of Australia.
„enterprise technology” means any technology owned, used, maintained for use, or practiced by any of the Acquired Companies, including any technology incorporated or otherwise used, maintained for use, or practiced in connection with (or the incorporation of) any of the acquired companies is planned). used in or otherwise, retained for use, or performed in connection with) a Company Offering.
„Company Transaction Fees” means expenses not paid immediately prior to closing in connection with the transactions contemplated herein for which an acquiree is or may be liable, including (i) half the cost of the liability insurance premium, (ii) all Transaction bonuses, change from control or similar payment obligations of the acquired companies due or payable in connection with the transactions contemplated herein, but excluding such Double Trigger Acceleration Bonuses (if any such bonus is terminated as a result of the termination of the Buyer's or an Affiliate is payable). of the purchaser (including acquired entities) after closing), together with any related salary payments or other taxes, and (iii) half of the obligations of the entities acquired under the 2018 LTIP, together with any salary payments or other due taxes related to it.
„poisoning' means any 'backdoor', 'inactive device', 'time bomb', 'Trojan horse', 'virus', 'corrupted', 'worm', 'malware', 'spyware' or 'trackware' (as such terms are used in as commonly understood in the software industry) or any other code designed to or has any of the following functions: (i) interrupt, disable, impair, or otherwise prevent the operation of, or access to, any computer enable it to operate on any tablet, handheld computer or other device, or (ii) damage or destroy data or files without the user's consent.
„Contract“ means any contractual agreement, promise, compromise or agreement of any kind, written or oral, intended in all cases to be legally binding.
„check” means, in relation to any person, possessing, directly or indirectly, the power to direct or determine the conduct and policies of that person, whether through ownership of voting securities or otherwise. The terms "controlled by," "common control with," and "controller" have related meanings.
„License with copyleft" means any technology license that provides as a condition to the use, modification, or distribution of such Licensed Technology that such Licensed Technology or any other technology be incorporated therein, derived from, based upon, linked to, or otherwise used or distributed with such Licensed Technology may be licensed, distributed, or otherwise made available: (i) in any non-binary or non-object code form (e.g., in source code form); (ii) under terms permitting redistribution, reverse engineering or creation of derivative works or other modifications, or (iii) without a royalty. "Copyleft Licenses" include the GNU General Public License, GNU Library General Public License, GNU Lesser General Public License, Affero General Public License, Mozilla Public License, Development and Distribution License Common, Eclipse Public License and all Creative Commons “Share-Alike” licenses.
„Copyright ©” means copyright, mask work rights and similar or equivalent rights in relation to copyrighted works and mask works and all records of and interest in the foregoing (including moral and economic rights, regardless of the designation).
„current assets” means, with respect to the Acquired Businesses, accounts receivable (net of bad debts), inventory and prepayments (but excluding (a) that portion of any prepayments for which Buyer does not receive a profit after closing, (b) deferred tax credits, (c) accounts receivable to affiliates, officers, employees, directors or shareholders of the acquired companies and their respective affiliates and (d) cash and cash equivalents), each calculated in accordance with the accounting policies and the inAnhang
„current liabilities” means, with respect to the acquired companies, trade payables, tax accruals and expenses (but excluding (a) payables to any of the acquired companies, (b) deferred tax liabilities, (c) Company transaction costs, and (d) indebtedness, if any of the acquired companies), each calculated in accordance with the accounting principles and the inAnhang
„databases"means databases and other compilations and collections of data or information.
„Dollar" Ö "p.s“ means the legal tender of the United States.
„Domain Namen' means domain names, Uniform Resource Locators and other names and locators associated with the Internet.
„charging” means a lien (statutory or otherwise), lien, mortgage, deed of trust, security interest, lien, claim, easement, encroachment, right of common property, equity right, option, right of way, a Right of first refusal or the like, other similar encumbrances or restrictions of any kind, including limitations on the use, voting, transfer, receipt of income, or exercise of any other property.
„holdings“means (a) in relation to a corporation, all of the shares and all associated obligations, (b) in relation to a partnership, limited liability company, trust or similar person, all of the shares, stock and other equity interests or other equity interests or interests in any limited liability company, including any economic interest or profits, and all obligations therein, and (c) in relation to any other person, any other equity interest in that person.
„Erisameans the Employee Retirement Income Security Act 1974.
„ERISA-Partnermeans any entity that is deemed to be the sole employer of Company under ERISA Section 4001(b) or is part of the same “controlled group” as Company, as defined in ERISA Section 302(d)(3).
„FCPA Government Agency“ means (i) any governmental agency, (ii) any public international organization (such as the World Bank, the European Union, the United Nations).
educational, scientific and cultural organization or World Intellectual Property Organization), (iii) any agency, department, bureau, department or other political sub-division of any government, corporation or organization referred to in paragraphs (i) or (ii) above ), (iv) any company, business, corporation or other entity owned or controlled by any government, entity or organization described in clauses (i), (ii) or (iii) above is, or (v) a political party.
„FCPA Government Official” means (i) any employee, officer, employee, or agent, or person acting in an official capacity for or on behalf of any FCPA governmental agency, (ii) any employee of a political party or candidate for political office, or ( iii) any company, corporation, corporation or other entity owned or controlled by any of the persons described in clauses (i) or (ii) above.
„Abroad Benefit Plan” means any benefit plan maintained by an acquired company, primarily with respect to current employees, contractors or directors of the acquired company who are located outside the United States, except for compensation plans or arrangements maintained by a governmental agency or must be maintained or contributed by this law.
„PCGA“Means accounting principles generally accepted in the United States, uniformly applied by the Company and in effect as of the date of the financial statements to which they relate.
„government documents“means (a) in the case of a person who is a company, its articles of incorporation or incorporation and its articles of association, ordinances or similar regulatory instrument required by the laws of its jurisdiction of its incorporation or organization; (b) in the case of a person who is a company, its articles of incorporation or instrument of membership, incorporation or association and its instrument of membership (in each case limited liability, limited liability, general or other); (c) in the case of a person who is a limited liability company, its certificate of incorporation or incorporation or organization and its certificate of incorporation or limited liability company incorporation; and (d) in the case of a person who is not a member of a corporation, partnership (limited, general or otherwise), limited liability company or individual, the administrative arrangements of which are required by law or provided for by your jurisdiction of organization
„government agency" means the government of the United States of America or of any other country and of a state, province, commonwealth, territory, possession, county, city or other subdivision thereof or any similar body, agency, department, ministry or any other body exercising an executive function, legislative, judicial, regulatory or administrative authority or function of or relating to government, including in all cases any authority or other quasi-governmental body established to perform such function, or a arbitrator, court or arbitral tribunal.
„official order“means any order, writ, judgment, injunction, decree, regulation, determination or judgment made by or with any governmental authority.
„debt"means, without duplication and excluding any obligation or liability constituting a current liability or taken into account in the calculation of the closing working capital, and excluding any intercompany debt between the acquired entities, (a) all obligations of the acquired entities to money lend, (b) all obligations of the acquirer
Entities represented by bonds, debentures, debentures or similar instruments or on which interest payments are customarily made, (c) all obligations of the entities acquired under conditional sale agreements or other retention of title agreements relating to the property acquired (except customary reserves or retentions of title arising from contracts with suppliers entered into in the ordinary course of business), (d) any obligations of the acquiree that were issued or assumed as a deferred purchase price for the goods or services acquired and which would appear as long-term liabilities a Balance Sheet in accordance with GAAP, (e) all liabilities to third parties that are secured by a lien on or payable out of the proceeds (or for which the holder of such liabilities has an existing right, conditional or otherwise, to be secured). the production of assets owned by the acquired companies, whether or not they have assumed the obligations guaranteed by them; provided that, for the purposes hereof, the amount of such indebtedness is limited to the amount of such indebtedness available to the acquiree, (f) all obligations of the acquiree in respect of collateral in respect of the indebtedness of any other person, ( g) GAAP attributable debt related to capital leases and synthetic lease obligations (excluding rent and other real estate lease payments); (h) the acquiree's obligations under issued letters of credit or bank acceptances created for the acquiree's account, but only to the extent that they are redeemed, (i) the assigned principal amount outstanding in an asset securitization program, including but not limited to promissory notes or receivables under the loan financing program, (j) all cash obligations arising in In connection with a future, there arise capital transactions that are treated as cash debts of the borrower under GAAP, and (k) the debts of an unincorporated corporation or joint venture in which one of the acquirers is a general partner or joint venture, to the extent such debt a resource for these are Acquires. For the purposes of this Agreement, "Indebtedness" means the indebtedness of the Company on a consolidated basis including, for the avoidance of doubt, all indebtedness of all of the Company's subsidiaries. For clarification, LTIP and Business Transaction Fees are not included in the definition of “Debt”.
„Liability insurance premium” means an amount equal to all costs and expenses in connection with the liability insurance, including the premiums due and payable throughout the term of the liability insurance, as set out in the liability insurance, plus all underwriting fees, brokerage fees and other fees and expenses in connection with the liability insurance .
„compensated person” means any person claiming damages underArticle VII
„person who compensates' means the person making indemnification pursuant toArticle VII
„Intellectual Property License” means any license or sublicense, agreement, non-representation, permission, consent, release, waiver or other agreement that confers rights or immunities under or in relation to any intellectual property right or technology.
„Intellectual Property Law” means all technology and/or industrial property rights (worldwide, whether statutory, common law or otherwise), including (i) patents; (ii) copyright; (iii) other rights relating to the Software, including registrations of such rights and requests for registration of such rights; (iv) industrial design rights and registrations of such rights; and
Requests for registration of these rights; (v) rights in relation to the Trademarks and all Trademark registrations and Trademark registration applications; (vi) rights in relation to domain names, including domain name registrations; (vii) rights relating to domain name proprietary information, including rights to restrict any person's use or disclosure of the proprietary information; (viii) rights in relation to the Databases, including registrations of such rights and requests for registration of such rights; (ix) publicity and privacy rights, including all rights relating to the use of an individual's name, signature, likeness, likeness, photograph, voice, identity, personality, and biographical and personal information and materials; (x) renewals, reissues, cancellations, revisions, continuations, continuations in part, or extensions of the foregoing; and (xi) any rights equivalent or similar to any of the foregoing.
„willful fraud” means a lawsuit under the Delaware common law for fraud brought against a party to this Agreement on the basis of that party's representation in this Agreement;offered
that at the time such statement was made, (i) such statement was inaccurate, (ii) such party had actual (and not implied or implied) knowledge of the inaccuracy of such statement, (iii) such party intended misrepresent any other party, and (iv) the other party has acted in accordance with such misrepresentation and suffered or has suffered financial or other harm as a result of such reliance.
„interim balance sheet date“ means June 30, 2018.
„interim financial statements“ means the unaudited financial statements of the Acquired Entities, consisting of the Company's consolidated balance sheet as at the interim balance sheet date and the Company's corresponding unaudited consolidated income statement and cash flow statement for the interim period then ended, each prepared by management.
„IRS“ means the United States Internal Revenue Service.
„IT-Systeme” means all computer systems, servers, network equipment and other computer hardware owned, leased or licensed by any of the Acquired Companies and otherwise used in the conduct of Company business.
„Discover brands' refers to the VoIP brands listed inAnhang 1.1(a)
„buyer insight" Ö "buyer insight' or any other similar qualification of knowledge means actual knowledge of an officer of Buyer.
„knowledge of the seller" Ö "knowledge of the seller” or any other similar qualification of knowledge means (a) the actual knowledge of John Scott Lomond, Craig Wallace and Badri Rajasekar, or (b) the knowledge which any of the above would acquire as a result of reasonable inquiry and is regarded as such include all written communications received from any of the foregoing in relation to the matter in question.
„With the” means any law, statute, code, executive order, license requirement, ordinance and any rule or regulation of any governing body, including any governmental regulation having the force of law in any such jurisdiction.
„LTIP“ stands for TokBox USA Long Term Incentive Cash Plan 2015-2019.
„The ground” means trademarks, service marks, logos and design marks, trade dress, trade names, fictitious and other trade names and trade names, together with all goodwill associated with the foregoing.
„chew jobs' means masking work, layouts, topography and other design features related to integrated circuits.
„significant adverse effect“means any event, occurrence, fact, condition or change which, individually or collectively, is materially adverse to (a) the business, results of operations, financial condition or assets of the Acquired Companies or (b) the ability of the Seller to carry out the transactions contemplated herein complete on time;offered,Howeverthat “Material Disruption” does not include any event, occurrence, fact, condition or change that is attributable to or is attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the sectors in which the incorporated companies operate; (iii) changes in financial or securities markets generally; (iv) acts of war (whether declared or not), armed hostilities or terrorism, or the escalation or escalation of any of the foregoing; (v) any changes in accounting standards, including GAAP; (vi) any act permitted by prior written consent or waiver performed and delivered by Buyer, except pursuant to or in connection withSection 3.3
; (vii) any natural or man-made disaster or act of God; and (viii) any breach by the Acquired Companies of any forecast, budget or estimate of revenue or earnings for any period ending after the date of this Agreement (provided that the facts and circumstances giving rise to such breach are taken into account may be used in determining whether a material adverse effect has occurred (except to the extent that such facts or circumstances are excluded from consideration by any preceding clause of this clause)); Isoffered,Advance paymentthat any incident, event, fact, condition or change referred to in clauses (i) to (iv) and (vii) immediately above must be taken into account in determining whether a Relevant Adverse Effect has occurred or is likely to occur to the extent such event, event, fact, condition or change will have a disproportionate effect on the acquired companies compared to other participants in the industries in which the acquired companies conduct their respective businesses.
„Non-negotiated supplier contract“ means an agreement that satisfies all of the following conditions: (i) such agreement grants the acquired companies a non-exclusive license to download or use non-customized, generally commercially available software or a non-exclusive right to access and use the functionality use the Hosted Software or Software as a Service (and does not include any other intellectual property license); (ii) this Agreement is a non-negotiable "wrapper" or "click" or similar agreement; (iii) such Agreement imposes no relevant continuing obligation or grant of any right or immunity on the part of the Acquired Entities surviving any termination or expiration of this Agreement (except with respect to obligations or rights of confidentiality with respect to derivative works of the licensed products). (iv) the Software is not included in, integrated with, embedded in, linked to, combined with, or distributed with any Enterprise Software or Offering; (v) this Agreement does not oblige the Acquired Entities to pay any license fee, subscription fee, service fee or any other amount, except for a one-time license fee of not more than fifty thousand dollars (US$50,000) or any subscription or ongoing service
Fees may not exceed thirty thousand dollars ($30,000) per year and (vi) such agreement is not a license for Open Source Software.
„software book" means any software licensed, provided, or distributed under an open-source license (including a copyleft license), including a license conforming to the open-source definition (as published by the Open Source Initiative) or the Free - Software definition (as published) corresponds to by the Free Software Foundation) or a substantially similar license.
„OFAC' means the Office of Foreign Assets Control of the US Treasury Department.
„OFAC sanctioned countries' means any country or territory subject to comprehensive US sanctions, currently Cuba, Iran, North Korea, Syria and the Crimean region of Ukraine.
„office rent” means collectively the WeWork Membership Agreement between TokBox, Inc. -501 Second Street, LLC, TokBox, Inc. and Telefónica Europe, PLC dated October 24, 2013 as amended September 1, 2015 and September 12, 2015 April 2018.
„Normal business degree' means, in relation to the Acquired Companies, the normal course of their respective businesses in accordance with past practice.
„Patent” means patents and patent applications, utility models and utility model applications, inventor certificates and inventor certificate applications, and invention disclosure statements.
„Allow“means all authorizations, licenses, franchises, permits, authorisations, registrations, certificates, modifications, releases, consents, waivers, exemptions, decisions, other measures and similar rights obtained or required to be obtained by any governmental authority.
„Persona“ means any individual, corporation, partnership, limited liability company, joint venture, association, corporation, trust, unincorporated organization or governing body.
Deals or a current, potential, or former customer, employee, or supplier of a person. Personal data includes information in any format, including printed, electronic and other formats.
„Forbidden Person“ means (i) a person appointed by the U.S. Government pursuant to 31 C.F.R. Chapter V or any other law administered by OFAC or on OFAC's List of Specially Designated Nationals and Blocked Persons (“SDN
"); (ii) the government of, or resident of, any OFAC-sanctioned country; or (iii) any person acting or intending to act, directly or indirectly, on behalf of or owned or controlled by any person referred to in sub-paragraph (i) or (ii) above.
„owner information“ means information and materials not generally known to the public, including trade secrets and other confidential and proprietary information.
„Intellectual property rights of the incorporated company” means (i) all issued patents, pending patent applications, trademark registrations, trademark applications, copyright registrations, copyright registrations, and proprietary domain name registrations filed or requested by or on behalf of any Acquired Company, and (ii) all other purchase orders, registrations, records and Submissions made by or on behalf of any Acquired Company (or otherwise authorized by or on behalf of any Acquired Company) with respect to the Company's intellectual property rights.
„Representative“ means, in relation to any person, its directors, officers, managers, employees, consultants, financial advisers, legal advisers and auditors.
„restricted area“ means the countries listed inAnhang 1.1(b)
„restricted shopsmeans a company that competes directly with the Acquired Companies' business by providing commercial companies access to a proprietary video-centric WebRTC platform via API and SDK connections.
„sanctions" means any trade sanction or economic embargo imposed or enforced by the United States Government (including OFAC), the United Nations Security Council, the European Union, Her Majesty's Department of the Treasury or any other applicable sanctions authority.
„Sanctions and Export Laws“ means all laws relating to sanctions and the export and re-export of goods, services, software or technology.
„seller counter” means PricewaterhouseCoopers.
„group of sellers“ means Telefónica, S.A. and its direct and indirect subsidiaries, excluding the acquired companies.
„Office in Silicon Valleymeans the office space leased by the Sales Group at 101 Jefferson Drive, Menlo Park, CA.
„Software” means all (i) computer programs, including all software implementations of algorithms, models and methods, whether in source code or object code, (ii) databases, (iii) descriptions, flowcharts and other products used to design, plan, organize and develop the above mentioned screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons and (iv) the documentation, including user manuals and other training materials related to the above.
„Customer agreements in standard form“ means non-exclusive grants of intellectual property licenses to customers of the Acquired Businesses, made in the ordinary course of business, (i) copies of which standard form Customer Agreements were made available to Buyer prior to the date of this document, and (ii) that they don't have to appearSection 3.12
„subsidiary"a person" means any corporation with more than 50% of the outstanding voting rights, or any partnership, limited liability company, joint venture or other legal entity with more than 50% of the total equity interest held directly or indirectly by that person.
„Ziel Working Capital“ means $0.
„tax returns“means any report, statement, election, explanation, request for reimbursement, statement of information or other document or file (including any program or attachment thereto and any amendment thereto) required or submitted to any governmental authority or withheld or required by any person in the related to taxes.
„Steer“means all federal, state, local or foreign net income, alternative or additional minimum income, gross receipts, gross receipts, sales, use, ad valorem, transfer, franchise, utilities, licenses, withholding, payroll, employment, excise, compensation, stamp, occupancy , premium, property, windfall, reversal, unclaimed property, duties or other taxes, levies, charges, liens or other assessments in the form of taxes of any kind imposed by any governmental authority together with any additional interest, penalties, penalties or amounts payable or taxes in connection with any such tax, levy, charge, duty or other assessment of a tax nature.
„Technology” means each and every one of the following: (i) Technology, formulas, algorithms, procedures, processes, methods, techniques, ideas, know-how, creations, inventions, discoveries and improvements (patentable or not and whether or not based on practice ); (ii) engineering, technical, manufacturing, product, marketing, service, commercial, financial, supplier, personnel and other information and materials; (iii) customer lists, customer records and contact information, customer correspondence and customer purchase history; (iv) specifications, projects, industrial designs, models, devices, prototypes, circuit diagrams and development tools; (v) copyrighted works; (vi) databases; (vii) mask work; (viii) trademarks; (ix) domain names; and (x) tangible embodiments of the foregoing in any form or medium, whether or not expressly set forth in this definition.
„Transaction Documents' means this Agreement and the Transitional Services Agreement.
„Transitional Services Agreement” means a contract for Transition Services as is hereby attachedAppendix C
to be entered into between TokBox, Inc. and Seller's applicable Affiliate.
„Unit' means any trade union, works council or labor organization.
„works of authorship” means software, websites, content, images, logos, graphics, text, photographs, works of art, audiovisual works, sound recordings, graphics, drawings, reports, analyses, writings and other copyrighted works and subject matter protected by copyright of the author .
Terms Defined Elsewhere. The following terms are defined elsewhere in this Agreement as indicated below:
“People Indemnified by Buyer”
“Buyer 401(k) Plan”
"Conclusion of Working Capital Statement"
"Company Debt Payment Schedule"
“Corporate Transaction Cost Plan”
"Values in Controversy"
“Estimated Cash and Cash Equivalents”
"Estimated Working Capital at Closing"
"Estimated Working Capital Account"
"Estimated Corporate Debt"
“Estimated Business Transaction Costs”
"Final Cash and Cash Equivalents"
„Final Closing Working Capital“
"Final Debts of Society"
"FinaleCompany Transaction Fees
“Notification of Compensation”
"Self Employed Accountant"
"France of Compensation"
"Invention Transfer Agreement"
"Leasing" oder "Leasing"
"Agreement on Related Parties"
“Seller Group Brands”
“Seller Group Trade Names”
“Seller Indemnified Person”
"401(k) Seller Plan"
"Statement of Objections"
"Third Party Claim"
. For purposes of this Agreement, (a) the words "include," "contains," and "including" shall be deemed followed by the words "without limitation," (b) the word "or" shall not be exclusive, (c) the words "here", "here", "hereby", "below" and "below" refer to this Agreement as a whole and (d) the symbol "$" and the word "dollar" refer to United States Dollars. Unless the context otherwise requires, references in this document to: (i) Articles, Sections, Appendices and Appendices mean Articles and Sections and Appendices and Appendices
to this Agreement; (ii) to any agreement, instrument, plan or other document means such agreement, instrument, plan or other document as amended, supplemented and amended from time to time, by waiver or consent to the extent required by the Provisions permitted hereby and by this Agreement; and (iii) a Law means such law as amended and includes any successor law and any regulation made pursuant thereto. The definitions contained in this Agreement apply to the singular and plural forms of such terms and the masculine, feminine and neuter genders of such terms. The facilities and exhibits referred to herein are to be construed with and constitute an integral part of this Agreement to the same extent as they are literally set forth herein. The table of contents, article titles and section headings are included for convenience only and are not to be considered a part of this Agreement or affect its meaning or interpretation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against a party making an instrument or causing the making of an instrument. The dollar amounts or thresholds set forth herein should not be used as a yardstick for determining what is or is not “material” or a “material adverse impact” (or words of similar import) under this Agreement.
PURCHASE AND SALE OF SHARES
Section 2.1sale contract of sale
. Subject to the terms set forth herein, at closing the Buyer is buying from the Seller and the Seller is selling to the Buyer all of the Seller's right, title and interest in the Shares, free from all encumbrances except as may be imposed by applicable values. Laws, for consideration in accordance withSection 2.2
Section 2.2purchase price
. The total cash purchase price to be paid by the buyer to the seller for the Shares at closing is $35,000,000, subject to adjustment pursuant toSection 2.5
(Ö "purchase price
. Subject to receipt of Owner's consent and the terms set forth herein, the consummation of the transactions contemplated by this Agreement (the "closure
’) will be held at 10:00 a.m. at the offices of Goodwin Procter LLP, 3 Embarcadero Center, San Francisco, CA 94111 (or remotely via an exchange of signatures). referred to here as "Deadline
.” The deal is deemed effective as of 12:01 p.m. local time on August 1, 2018.
Section 2.4close deliveries
. Subject to the conditions set out in this document:
(a) Upon conclusion of the Contract, Seller shall deliver or cause to be delivered to Buyer:
(i) a Share certificate evidencing the Shares, duly endorsed and accompanied by duly signed power of attorney or other instrument of transfer bearing all tax stamps required for the transfer of Shares;
(ii) written resignations, effective upon closing, of each director of the Acquired Companies;
(iii) any of the deliveries contemplated bySection 2.5(a)
(iv) Corporate certification pursuant to Sections 1.1445-2(c)(3) and 1.897-2(h) of the Treasury Regulations, dated the Closing Date and signed by an officer of the Company, certifying that the Shares are not "United State Real Estate Interest" within the meaning of Code Section 897(c)(1) and evidence satisfactory to the buyer that the entity has notified the IRS in accordance with the provisions of Section 1897- of the Treasury Regulations 2(h)(two);
(v) a non-objection certificate (or equivalent) from each of the Acquired Companies issued by the Secretary of State or similar governing body of the jurisdiction in accordance with applicable laws in which each of the Acquired Companies is organized;
(vi) a certificate from the Seller's secretary or assistant secretary (or equivalent officer) certifying that true and complete copies of all resolutions of the Seller's board of directors affecting the execution, delivery and execution of this Agreement and the documents of the transaction have been accepted authorize to which Seller is a party, and the consummation of the transactions contemplated and contemplated herein, and that all such resolutions are in full force and effect and all resolutions made in connection with those contemplated herein transactions and are taken in the middle of them; Is
(vii) duly executed copies of all transaction documents in which Seller is a party and other documents or instruments reasonably requested by Buyer and reasonably necessary to enter into and effect the transactions contemplated by this Agreement.
(b) At Closing, the Company and the Seller will cause the Company and its affiliates to deliver or cause to be delivered to the Buyer:
(i) a certificate from the Secretary or Deputy Secretary (or equivalent officer) of the Company certifying that true and complete copies of all resolutions adopted by the Board of Directors of the Company authorizing the execution, delivery and execution of this Agreement and the Transaction Documents, which the Company is involved and the consummation of the transactions contemplated and contemplated herein and that all such resolutions shall be in full force and effect and all resolutions made in connection with those of and contemplated by it drawn transactions are taken; Is
(ii) duly executed copies of all transaction documents in which the Company or a subsidiary of the Company is a party and any other document or instrument reasonably requested by the Buyer and reasonably necessary to enter into and perform the transactions contemplated by this Agreement.
(c) The Buyer:
(i) on completion deliver or cause to be delivered to Seller:
(A) Proof of Purchaser's purchase of an insurance policy (the "liability insurance
") on the attached form asAppendix D
(B) payment on the Closing Date by electronic transfer of immediately available funds to the account specified by Seller in Schedule A; Is
(C) duly executed copies of all transaction documents to which Buyer is a party;
(ii) pay or cause to be paid on behalf of the seller or the purchased companies:
(A) upon closing (or, if a later due date applies in relation to the relevant Company Transaction Fee, on such later date), Company Transaction Fees by electronic funds transfer, immediately available in the amounts and beneficiaries set out in the Table of Transaction costs of the company are listed. Buyer must provide proof of payment on the Closing Date for payments due on that date and within two (2) business days of payment for payments due after the Closing Date; Is
(B) upon closing, the Company's estimated indebtedness by electronic transfer of funds readily available in securities and to creditors and other debt holders specified in the Company's debt payment schedule.
Section 2.5purchase price adjustment
(a) At least two (2) Business Days prior to Closing, Seller must prepare and deliver to Buyer a statement setting forth its calculation of payment on the Closing Date, together with:
(i) a statement of your good faith estimate of any outstanding debts of the Company (the "Estimated corporate debt
’), which states the amount of the entity’s debt that is required to be repaid to each creditor or other creditor of the debt at closing (the “Company debt repayment schedule
) together with letters of payment from each creditor and other creditors identified in the Company's debt payment schedule, which letters of payment must state the amount of the Company's debts owed to that creditor or other holder, if such amount is paid to that creditor or another holder on the Closing Date, the creditor or other holder, as the case may be, will release any liens it has with respect to the acquired businesses and their respective assets);
(ii) a list of your good faith estimate of any unpaid Transaction Fees of the Company (the "Estimated business transaction costs
’) and its beneficiaries (the ‘Corporate transaction fees table
(iii) your reasonably detailed good faith estimated working capital at closing (the “Estimated working capital at close
”), the statement of which must include an estimated consolidated balance sheet of the incorporated companies as at close of business on the Closing Date prepared in accordance with accounting principles (without the transactions contemplated herein taking effect) and a calculation of the final value of capital work (or "Estimated working capital statement at close
(iv) your good faith estimate of the Company's cash and cash equivalents (the "Cash and Estimated Cash Equivalents
(v) a certificate from the Company's Chief Financial Officer that the estimated working capital statement has been prepared in accordance with accounting principles.
(b) At closing, the purchase price will be adjusted as follows:
(i) or (1) any increase in the amount by which the estimated working capital (determined pursuant toSection 2.5(a)
) is greater than Target Working Capital, or (2) a reduction in the amount, if any, by which Estimated Closing Working Capital is less than Target Working Capital;
(ii) an increase in the amount equivalent to the Company's cash and cash equivalents;
(iii) a reduction in an amount equal to the Company's unpaid debts, if any; Is
(iv) a reduction in the amount of the Company's unpaid Transaction Fees.
The net value after making the above adjustments is the “Payment Deadline Date
Section 2.6Post-closing adjustment
. Within forty-five (45) days of the Closing Date, Buyer shall prepare and transmit to Seller a statement (the “closing sentence
”), which (A) must include its calculation of closing working capital, together with a consolidated balance sheet of the acquired entities as at close of business on the Closing Date prepared in accordance with accounting principles (excluding the effectiveness of transactions) considered herein in "Final Closing Working Capital
"), (B) its calculation of the company's default debt (the "ultimate liability of the company
"), (C) Your calculation of unpaid business transaction fees (the "Company's final transaction costs.
"), (D) your calculation of cash and cash equivalents ("Definitive Cash and Cash Equivalents
’), and (E) a certification from the buyer’s chief financial officer that the working capital at the final accounts has been prepared in accordance with accounting principles.
(A)review and verification
. Seller shall have forty-five (45) days (the “reporting period
’) to review the final statement. During the Review Period, Seller and Seller's accountants will have full access to the books and records, personnel and working documents of the Purchased Entities prepared by Buyer and/or Buyer's accountants as far as government declarations and historical financial information ( to the extent Buyer owns or controls) in connection with the Closing Statement that Seller may reasonably require to review the Closing Statement and, if applicable, prepare a Closing Statement of Objectionsas long assuch access must be granted in a manner that does not interfere with the normal course of business of the acquirer or the acquired businesses.
. On or before the last day of the Review Period, Seller may contest the Closing Statement by providing Buyer with a written statement setting forth in reasonable detail Seller's objections, identifying each disputed issue or amount and the basis for Seller's non-compliance therewith will the "Statement of Objections
"). If Seller fails to submit the Notice of Complaints prior to the expiry of the Review Period, the Closing Statement and Post-closing Adjustment, which may be reflected in the Closing Statement, shall be deemed to have been accepted by Seller. If Seller submits the Statement of Objections prior to the expiration of the Review Period, Buyer and Seller will negotiate in good faith to resolve such objections within thirty (30) days of delivery of the Statement of Objections (the “dissolution period
’), and if so decided within the Closing Period, the Post Closing Adjustment and Closing Statement, as amended, as previously agreed in writing between Buyer and Seller, shall be final and binding.
. If Seller and Buyer are unable to reach an agreement on all of the issues set out in the Statement of Objections before the end of the Resolution Period, the remaining amounts in dispute ("disputed amounts
’) will be submitted for resolution by Ernst & Young or, if Ernst & Young is prevented, Buyer and Seller shall jointly appoint a nationally recognised, impartial firm of independent auditors other than Seller’s auditors or Buyer’s auditors ( the "Independent Accountant
) who, as experts and not as arbitrators, will only resolve the disputed amounts and make the necessary adjustments to the Post-Closing Adjustment and Closing Term, if necessary. The auditor decides only on the specific issues disputed by the parties and his decision on each disputed amount must fall within the range of values assigned to each of these issues in the final statement or statement of objections.
(4)Independent Auditors' Fees
. The auditor's fees and expenses will be borne by both the seller and the buyer based on the percentage earned by the actual amount disputed but not awarded by either the seller or the buyer. to the added value actually denied by seller and buyer.
(v)Established by an independent auditor
. The Auditor will be appointed as soon as reasonably practicable within thirty (30) days (or such other time as the parties may agree in writing) after its engagement and its settlement of the disputed amounts and its adjustments to the Statement and/or the Post-Closing Adjustment is final, binding and not contestable by the parties.
. Ö "Post-closing adjustment
' should be calculated as follows:
(i) Any amount by which the final cash and cash equivalents exceed the estimated cash and cash equivalents constitutes an increase in the purchase price.
(ii) Any amount by which the Estimated Cash and Cash Equivalents exceeds the Final Cash and Cash Equivalents is a reduction in the Purchase Price.
(iii) Any amount by which the Company's Final Indebtedness exceeds the Company's Estimated Indebtedness is a reduction in the Purchase Price.
(iv) Any amount by which the Company's Estimated Indebtedness exceeds the Company's Ultimate Indebtedness is an increase in the Purchase Price.
(v) Any amount by which the Company's Final Transaction Fees exceed the Company's Estimated Transaction Fees is a reduction in the Purchase Price.
(vi) Any amount by which the Company's Estimated Transaction Fees exceed the Company's Final Transaction Fees is an increase in the Purchase Price.
(vii) Any amount by which the Working Capital at Closing exceeds the Estimated Working Capital at Closing is an increase in the Purchase Price.
(viii) Any amount by which the Estimated Working Capital at Closing exceeds the Working Capital at Closing will be a reduction in the Final Purchase Price.
(C)Post-completion adjustment payments
. If the post-closing adjustment is a positive number of $75,000 or more, the buyer will pay the seller an amount equal to the post-closing adjustment. If the post-closing adjustment is a negative number of $75,000 or more, the seller must pay the buyer an amount equal to the post-closing adjustment. Except as otherwise provided herein, any post-closing payment (A) shall be due (x) within five (5) business days of acceptance of the relevant Closing Statement or agreement between Seller and Buyer during the relevant Closing Statement resolution or (and ) if at disputed securities, then within five (5) business days of the resolution described inSection 2.6(a)(v)
above; and (B) paid by electronic transfer of readily available funds to the account designated by Buyer or Seller, as the case may be.
(D)Adjustments for Tax Purposes
. Any payment made pursuant to thisSection 2.6
will be treated by the parties as an adjustment to the purchase price for tax purposes, unless otherwise required by applicable law.
Section 2.7transfer taxes
. All transfers, sales, use, value added, excise, stock transfer, stamp, registration, registration and all similar taxes (including any applicable interest or penalty) (collectively “transfer taxes
) due in connection with the transactions contemplated by this Agreement will be borne by the party legally obligated to pay the tax in accordance with applicable law.
Section 2.8restraint at source
. Buyer and Company shall have the right to deduct and withhold (or cause to be deducted and withheld) from any payment made under this Agreement any amount that they determine to be deducted and withheld in accordance with the Code or any applicable governmental regulation should become foreign. tax law. To the extent that any amounts are deducted, withheld and paid to the appropriate tax authority, for all purposes of this Agreement, such amounts shall be treated as if they had been paid to the person in respect of whom such deduction and withholding was made. The parties will cooperate in good faith to minimize withholding taxes.
REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED ENTITIES
As an inducement to Buyer to enter into this Agreement and to complete the transactions contemplated herein, Seller represents and warrants to Buyer that the statements contained in this Agreement have been madeArticle III
, together with the information contained in the Disclosure Plan, are true and correct as of this date:
Section 3.1Organization; power and authority; capital structure
(a) The corporation is duly incorporated and organized and in good standing and in good standing under the laws of the State of Delaware. The Company has full corporate power and authority to execute and deliver this Agreement and the other transactional documents in which it is a party, to perform its obligations here and there and to complete the transactions contemplated herein.Section 3.1(a)
of the Disclosure Plan sets out each jurisdiction in which the company is authorized or qualified to operate, and the company is in each jurisdiction where the character or kind of property it owns or leases is properly qualified and in good standing Your jobs require such a qualification unless the lack of qualification or good reputation has not had and is unlikely to have a material adverse effect. The Company has full corporate power and authority to own or lease and operate its real estate and assets that it now owns, operates or leases and to continue its business as it has and currently does. The copy of the Company's Articles of Incorporation provided to Buyer is accurate and complete and in full force and effect and the Company does not breach any provision thereof.
(b) Company's performance and delivery of this Agreement and any other transactional documents in which Company is an interested party, Company's performance of its obligations here and there and Company's completion of any transactions hereby contemplated and which have been duly authorized by all necessary acts on the part of the company.
(c) This Agreement has been duly executed and delivered by Company and, subject to proper authorization, execution and delivery by each of the other parties, constitutes Company's legal, valid and binding obligation, enforceable against Company in accordance with its Terms. , unless such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by general principles of equity (whether or not enforcement is in a judicial proceeding or sought in fairness). If each of the other Transaction Documents in which the Company is or will be a party has been duly signed and delivered by the Company (assuming proper approval, execution and delivery by each of the other parties), the Transaction Document constitutes the legal, valid document and binding obligation of the Company, which is enforceable against the Company under its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar law affecting the rights of creditors generally and by general principles of equity (Regardless of whether enforcement is sought in court or in equity).
(d) The authorized share capital of the Company is incorporated inSection 3.1(d)
the dissemination agenda. The Shares represent all issued and outstanding shares of the Company's share capital and will be registered by the Vendor as described inSection 3.1(d)
the dissemination agenda. The shares are duly authorized and validly issued, fully paid up and of no value and are the registered and beneficial ownership of the seller, free from all encumbrances except those imposed by applicable federal and state securities laws and this Agreement. With the exception of the shares, there are no issued, reserved for issue or outstanding shares of the common stock or other interest in the capital of the company. Upon completion of the transactions contemplated by this Agreement, the Purchaser will obtain title to the Shares free of all liens except as required by applicable securities laws. The Shares have been issued in accordance with the applicable laws. None of the Shares have been issued in breach of any agreement or obligation of which the Vendor or the Company is a party or subject, or in breach of any right of preemption or similar right of any person. There are no outstanding obligations of any kind in relation to the company. The Company has no outstanding or authorized rights to stock appreciation rights, phantom shares, profit sharing or similar rights. There are no voting rights agreements, voting funds, shareholders' agreements, revocable or irrevocable powers of attorney or other agreements or understandings relating to the voting or transfer of Shares. The Company has no outstanding contractual obligations to repurchase, redeem or otherwise acquire any equity interests in the Company.
of the Disclosure Addendum establishes the names of the Company's direct and indirect subsidiaries, the jurisdictions in which each subsidiary is organized and their ownership interests. Each subsidiary of the Company is duly incorporated, organized and legally existing and in good standing in accordance with the laws of the jurisdiction of its incorporation.Section 3.2(a)
of the Disclosure Plan establishes each jurisdiction in which each subsidiary of the Company is licensed or qualified to conduct business and each subsidiary of the Company is duly qualified to conduct business and in each jurisdiction in which the character of its owned or leased or which nature of its activities requires such a qualification, unless the lack of qualification or its presence does not have or is unlikely to have a material adverse effect. Each subsidiary of the Company has full corporate power and authority to own or lease and operate its properties and assets that it now owns, operates or leases and to continue its business as it currently does. The Company has provided the Buyer with accurate and complete copies of the government documents of each Company subsidiary and each government document is accurate and complete and in full force and effect and no Company subsidiary is in breach of any of its terms. .
(b) The Company shall keep all outstanding equity interests of the Company's subsidiaries free and clear of any liens other than those imposed by applicable federal and state securities laws and this Agreement. All issued and outstanding shares of the Company's subsidiaries have been duly authorized and validly issued, fully paid and are not subject to valuation. There are no outstanding obligations of any kind in relation to any subsidiary of the Company. Each subsidiary of the Company has no outstanding or authorized stock appreciation rights, phantom shares, profit sharing rights or similar rights. There are no voting rights agreements, voting funds, stockholder agreements, revocable or irrevocable powers of attorney or other agreements or arrangements in force relating to the voting or transfer of any equity interest of the Company's subsidiaries. The Company has no outstanding contractual obligations to repurchase, redeem or otherwise acquire any equity interests in the Company.
(c) The Company has no subsidiary other than TokBox, Inc. and TokBox Australia Pty Limited.
Section 3.3no conflict; approval
(a) Except as provided inSection 3.3(a)
of the Disclosure Program, the Company's execution and delivery of this Agreement and the other transaction documents in which the Company is a party and the Acquired Companies' execution of the transactions contemplated herein, which are therefore subject to the terms hereof and the same, you will ( i) not (i) breach, conflict with, or cause a default (whether by termination, lapse of time, or both), create a right of termination, or require notification or approval under any material involving an acquired company or to which the assets of an acquired company are attached; (ii) conflict with or result in a violation of any provision of any governmental document of an acquired company; (iii) violate, result in, or constitute a violation of any provision of any law or governmental order (whether upon notice, after a period of notice, or both), or any restriction imposed by any applicable governmental authority on an Acquirer Company, (iv) except as provided inSection 3.3(a)
of the Disclosure Plan, requires the approval, notification, authorization or other action of a disputing party, results in a breach or breach of, constitutes a breach or an event which, with or without notice or lapse of time, would constitute a breach, would lead to acceleration or would create the right of either party to expedite, terminate, modify or cancel any material agreement in which any Acquired entity is a party or by which an Acquired entity is bound or by which either party is bound by their respective property and its assets are subject to any material license affecting the property, assets or business of the acquired companies; or (v) create or impose any lien other than a permitted lien on property or assets of the Acquired Entities, except in the case of clauses (ii) and (iii) for such conflicts, breaches or breaches which did not have a material adverse effect and probably won't have either.
(b) Except as provided inSection 3.3(b)
of the Disclosure Plan, no notice, declaration, or filing with, or consent or approval of, any governmental authority is required by or relating to the Acquired Entities in connection with the Company's performance and delivery of this Agreement and the other Transaction Documents, the Company being a party, or the consummation of the transactions contemplated herein by the Company and therefore in accordance with the terms of these and the same.
Section 3.4financial statements
(a) Complete copies of the following financial statements of the acquired companies are attachedSection 3.4(a)
of the Disclosure Plan (collectively, the “financial statements
(i) Unaudited financial statements of the acquired companies, comprising the Company's consolidated balance sheet for the year ended December 31, 2017 and the Company's associated unaudited consolidated income statement for the year ended; Is
(ii) The Interim Financial Statements.
(b) The financial statements are based on the books and records of the acquired companies and fairly present, in all material respects, the consolidated financial position and results of operations of the acquired companies for the dates and periods they cover, subject to normal conditions. and the recurring year-end restatements and lack of footnotes in the case of such unaudited financial statements. The financial statements have been prepared in accordance with GAAP, which have been applied consistently throughout the periods concerned, subject, in the case of the interim financial statements, to normal and recurring year-end restatements (the effect of which would not be materially adverse). lack of degrees
(c) The acquired companies have established and maintain a system of "internal controls over financial reporting" sufficient to provide reasonable assurance (i) as to the reliability of the financial information of the acquired companies and the preparation of financial statements for external purposes in accordance with GAAP, (ii) that the revenues and expenses of the acquired companies will be realized, in all material respects, in accordance with the approval of the management of the acquired companies, and (iii) in connection with the prevention or timely recognition of the acquisition, use or disposal of the Assets of the acquiree that can reasonably be expected to have a material effect on the financial statements of the acquiree.
(d) None of the Acquired Businesses has received any claim, allegation, allegation or claim relating to the Acquired Businesses' accounting practices, procedures, methods or methods, and to the Seller's knowledge there have been no claims relating to the preparation of the Financial statements of the acquired companies, including any claim, allegation, allegation or allegation that any of the acquired companies engaged in questionable accounting practices in connection with the preparation of those financial statements.
(e) The Acquired Businesses have no liabilities, obligations or undertakings of any kind, stated or not, known or unknown, absolute or contingent, accrued or not accrued, due or not due or otherwise ("Passive
”), except for (i) those reflected or reserved in the balance sheet of the interim financial statements, (ii) those incurred in the ordinary course of business after the interim balance sheet date and which are not, individually or in aggregate, of material value, (iii ) those disclosed in the Disclosure Plan, (iv) those arising under the enforceable portion of a contract to which an acquiree is party and which do not arise out of a breach or breach thereof, and (v) transaction costs of the Company payable at closing.
Section 3.5Operation in normal business operations
. Except as provided inSection 3.5
of the Informational Notes from the preliminary balance sheet date to the present date, other than in the ordinary course of business, there have been no related to the acquired companies:
(a) an event, occurrence or development which, individually or collectively, has had or could reasonably be expected to have a material adverse effect;
(b) amendment of government documents;
(c) divide, combine or reclassify shares of their respective shares;
(d) issue, sell or otherwise dispose of or create a lien on any of their respective equity interests or grant of any options, warrants, profit-sharing agreements or other rights to purchase or obtain (including at the time of conversion, exchange or exercise) any of their respective principal interests;
(e) change in any financial reporting method, accounting policy, or accounting practice of the acquiree, except as disclosed in the notes to the financial statements;
(f) change in internal accounting controls or procedures;
(g) material change in the acquiree's cash management practices and its policies, practices and procedures related to debt collection, provisioning for bad debts, accumulation of receivables, inventory control, prepayment of expenses, the payment of trade accounts payable, accrual of other expenses, deferral of collections or acceptance of customer deposits;
(h) enter into any contract that constitutes a material contract;
(i) concurrence, assumption or guarantee of any obligation other than current unsecured obligations and obligations arising in the ordinary course of business;
(j) transfer, assignment, sale or other disposition of assets shown or reflected in the interim financial statements other than in the ordinary course of business;
(k) purchase, license, sale, lease, assignment or other disposition or transfer, or any agreement or other agreement to purchase, license, sell, assign or otherwise dispose of or transfer any assets (including intellectual property rights of the companies). property and other intangible assets), property or goodwill, except for the nonexclusive sale or licensing of its products or services to its customers in the ordinary course of business;
(l) abandonment or expiration or failure to fully maintain and enforce any intellectual property rights of the company, or failure to take or maintain reasonable steps to protect the confidentiality or value of any trade secret contained in the intellectual property rights of the company Company;
(m) property damage, destruction or loss (whether covered by insurance or not) of your property;
(n) any investment in or loan to any other person;
(o) expedite, terminate, materially modify or cancel any material agreement;
(p) any capital expenditure greater than fifty thousand dollars ($50,000) individually or one hundred thousand dollars ($100,000) in aggregate;
(q) the imposition of any lien on any property (other than a permitted lien), tangible or intangible property (other than a permitted lien) or equity interests of any of the acquired businesses;
(r) (i) granting any bonus, monetary or otherwise, or increases in salary, wages, severance payments, pensions or other compensation or benefits in connection with any current or former employee, officer, director, independent contractor of the Acquired Companies or consultants, except as provided for in a written agreement or required by applicable law or in the ordinary course of business, (ii) change the terms of employment or status of any employee or termination of any employee for which the total cost and expense exceeds one hundred thousand dollars (US$100,000) or ( iii) actions to expedite the acquisition or payment of compensation or benefits to current or former employees, officers, directors, independent contractors or consultants;
(s) hire or promote employees outside of the normal course of business;
(t) acceptance, modification or termination of: (i) employment, termination, retention or other arrangements with current or former employees, officers, directors, independent contractors or consultants, (ii) benefit plans, or (iii ) collective bargaining or other agreements with a trade union, either in writing or orally;
(u) any loan to (or forgiveness of a loan to) or the completion of any other transaction with any of their respective shareholders or current or former directors, officers and employees;
(v) entry into a new line of business or cessation or discontinuation of existing lines of business;
(w) adopt any proposed merger, consolidation, reorganization, liquidation or dissolution or file a declaration of bankruptcy under any provision of federal, state or foreign bankruptcy law or consent to the filing of a bankruptcy declaration against you under any similar law;
(x) buy, lease or otherwise acquire the right to own, use or lease real property or assets in excess of fifty thousand dollars (US$50,000) individually (in the case of a lease per year) or one hundred thousand acquire dollars ($100,000) in aggregate (if leased, for the entire term of the lease, with no option terms), excluding purchases of inventory, equipment, or consumables in the ordinary course of business;
(y) acquired by merger or consolidation with, or through the purchase of, a substantial portion of the assets or equity of any company or any person or division thereof, or otherwise;
(z) Actions taken by or on behalf of the Acquired Entities to make, change or reverse a tax election, amend, file or revise a previously filed income tax return, settle or commit any claim, notice, audit report, assessment or other proceeding relating to taxes, agreeing to an extension or waiver of the statute of limitations on a claim or tax assessment, making a change (or requesting a tax authority to change it) your accounting agreements, entering into or terminating a contract with a tax authority, an assignment, participation, exemption - enter into or enter into any similar arrangement (other than a loan or other business arrangement, the primary purpose of which is not related to taxes), grant a power of attorney in respect of taxes, or take a position on any income tax return, take action, omit action, or enter into any other transaction that result in an increase in the tax liability or a reduction in taxable assets of the acquired company or buyer in relation to a post-tax period. ;
(aa) commencement, settlement or offer or proposal to commence or settle (i) any lawsuit with or against the Acquired Businesses, (ii) any lawsuit with Seller involving or against the Acquired Businesses, or (iii) any lawsuit related to Proposed Transactions Here; either
(bb) any agreement to do any of the foregoing or any act or omission resulting from any of the foregoing.
(a) Except as provided inSection 3.6(a)
of the Disclosure Plan, no lawsuits are pending or, to Seller's knowledge, threatened in writing (a) against or by the Acquired Businesses or their respective property or assets (or by or against Seller or any of Seller's affiliates). Vendors and affiliated with Acquired Companies); or (b) order or delay against or for the Purchased Entities, Seller or any affiliate of Seller contesting or attempting to prevent any transaction contemplated by this Agreement.
(b) Except as provided inSection 3.6(b)
of the disclosure notes, there are no pending governmental orders or unfulfilled judgments, sanctions or arbitral awards against the acquired companies or their respective properties or assets. The acquired companies comply with the terms of every government regulation set out inSection 3.6(b)
the dissemination agenda. To the best of Seller's knowledge and belief, no event or circumstance has occurred which could reasonably be expected (with or without notice or passage of time) to result in a breach of any governmental order.
(A)Tax returns, taxes and tax audits
(i) Each of the Acquired Businesses (A) has duly completed and timely filed all applicable income tax returns required to be filed, and all such income tax returns are true, accurate and complete in all respects, and (B) paid in a timely manner all of material taxes owed to him (whether or not reported on tax returns). The unpaid taxes of acquired companies did not exceed the reserve for tax liabilities in the month covered by the last balance included in the financial statements (except for any reserve for deferred taxes created to reflect the temporary differences between the accounting result and the tax ) as disclosed in this balance sheet (and not in its notes) and does not exceed this time-adjusted reserve as at the closing date, in accordance with the acquired companies' historical customs and practices in filing their tax returns. The Company has provided the Buyer with accurate and complete copies of all federal, state and foreign receipts and other relevant tax returns, investigative reports and deficiency statements assessed or accepted by any of the Acquired Businesses, filed or received in all remaining financial years. open after the applicable limitation periods.
(ii) No deficiency of Taxes has been threatened, claimed, proposed or assessed in writing or to the best of Seller's knowledge against any of the Acquired Companies or any of their respective directors, officers or agents in their capacity as such.
(iii) None of the Acquired Businesses has received written notice or, to the best of Seller's knowledge, any non-written notice (A) from the IRS or any other governmental agency (including any sales or use tax agency) indicating an intention to obtain a initiate an audit or other review, (B) request information about tax matters, or (C) report a violation or proposed adjustment of a tax amount. No income tax return of any of the acquired companies will be audited by the IRS or any other governmental agency, and all previous audits (if any) have been fully completed and completed to the satisfaction of the appropriate governmental agency conducting such audit and all taxes. as determined by the audit owed by one of the acquired companies, has been paid in full to the appropriate government agency. There has never been any assertion by a governing body in any jurisdiction in which an acquiree fails to file a particular type of tax return or pay a particular type of tax that such acquiree is or will be required to file such a tax return could . Tax or pay such taxes in that jurisdiction.
(iv) There will be no tax on the equity of the acquired companies, except for charges related to current taxes that are not due or payable or that are contested in good faith and for which appropriate reserves exist under GAAP. There is no effective waiver by any of the Acquired Companies of any tax statute of limitations, and no Acquired Company has consented to an extension of the deadline for filing an income tax return that has not since been filed. None of the acquired companies has consented to an extension of the period during which any tax may be or may be imposed by a governmental agency, the extension of which is still in effect.
(v) None of the Acquired Businesses shall be required to include any items of income or exclude any deductions from taxable income for any tax period (or any part thereof) ending after the Closing Date as a result of: (A) the application of Section 481 or Section 263A of the Code (or an equivalent or similar provision of state, local or foreign tax law) relating to any transaction, event or accounting policy applied prior to the closing, (B) any "closing agreement" as described in Section 7121 of the Code (or an equivalent or similar determination of state, local or foreign tax law) performed on or before the Closing Date; (C) any "intercompany transaction" or "trading account excess loss" (within the meaning of Treasury Sections 1.1502-13 and 1502-19 Regulations) (or any equivalent or similar provision of state, local or foreign tax law) occurring or arising in connection with any transaction on or before the Closing Date, (D) any sale quota, pending transaction or other transaction occurring on or before the Closing Date, (E) any prepaid amounts received on or before the Closing Date, or (F ) any decisions made pursuant to Section 108(i) of the Code prior to Closing.
. Each of the Acquired Businesses has complied with all laws relating to the payment, collection and withholding of taxes (including the withholding of taxes pursuant to Sections 1441, 1442, 1445 and 1446 of the Code or any equivalent or similar state, local or federal statute). foreign taxes) and, within the time and manner required by law, will be withheld from employees' wages and other amounts payable to third parties and paid to the appropriate governmental authority, any amounts necessary to obtain exemption from compliance with any law ( including the Federal Insurance Contributions Act, Medicare, the Federal Unemployment Tax Act and applicable state and foreign income and payroll tax deduction laws), including federal, state, local and foreign, and has all tax returns timely filed or provided in accordance with the Withholding Tax Act.
(C)Special tax situation and equalization obligations
(i) No Acquired Company is party to or bound by any tax exemption, tax apportionment or tax apportionment agreement, except for agreements entered into in the ordinary course of business and the primary purpose of which is not related to tax.
(ii) None of the Acquired Companies is now or has ever been a member of any consolidated, combined, unit or aggregate group of which the Company was not the ultimate parent. None of the Acquired Companies will be liable for the taxes of any person (other than another Acquired Company) under Section 1.1502-6 of the Treasury Regulations (or any equivalent or similar provision of state, local or foreign tax law) as assignee or successor, by contract or otherwise.
(iii) None of the Acquired Entities has ever formed a “Distributor” or a “Controlled Entity” in connection with a stock distribution qualifying in whole or in part for exempt treatment under Section 355 of the Code (or the opposite of Section 356 of the Code with respect to Section 355 of the Code).
(iv) None of the Acquired Businesses is or has been a party to any transaction or contract that conflicts with the transfer pricing tax rules of any Relevant Jurisdiction. All applicable transfer pricing rules have been complied with and all documentation required by all relevant transfer pricing laws has been prepared in a timely manner.
(v) None of the Acquired Businesses is or was a party to any joint venture, partnership or other arrangement or contract that would be likely to be treated as a partnership for federal income tax purposes. Pursuant to Section ###-###-####-3 of the Treasury Regulations, no election to be classified as a company has ever been submitted in respect of any of the Acquired Companies.
(vi) None of the affiliated companies will be the beneficiary of any tax exemption or exemption.
(vii) None of the Acquired Companies will have a permanent establishment (for the purposes of any applicable tax treaty) in any country other than the country in which it is incorporated. None of the acquired companies operates or conducts business through subsidiaries in any country other than the country in which it is incorporated.
(viii) None of the Acquired Entities has applied for or received a resolution from any tax authority or entered into any formation agreement or other arrangement with any tax authority.
(d) No amount payable to any person as a result of or in connection with the consummation of any transaction contemplated herein shall be designated as an "Excess Parachute Payment" (as defined in Section 280G(b)(1) of the Code). There is no benefits plan or other arrangement under which any Acquired Business is obligated to compensate an employee of such Acquired Business or other service provider of such Acquired Business for excise taxes paid under Section 409A or 4999 of the Code.
Section 3.8employee benefit plans
of the Disclosure Plan sets forth any material plan, program, policy, practice, contract, or other arrangement that provides for compensation, time off, acquisition acceleration, change of control payment, severance pay, deferred compensation, profit sharing, bonus or other incentive, incentive, stock or stock-related bonuses, insurance coverage, vacation or other paid benefits, disability benefits, death benefits, hospitalization benefits, retirement benefits, post-retirement or retiree benefits, fringe or other employee benefits or compensation of any kind, whether or not subject to ERISA, whether written, funded or unfunded, including any "employee benefit plan" within the meaning of Section 3(3) of ERISA that is sponsored by, endorsed by, contributed to, or required by ERISA is sponsored, endorsed or contributed to any of the Acquired Companies or an ERISA Affiliate for the benefit of, or in respect of, any employee or former employee, independent contractor or director of any of the Acquired Companies or has or may have an ERISA Affiliate have a liability (theperformance plans
"). None of the Acquired companies or any of their affiliates intends or undertakes to create or enter into any new benefit plan or to modify or terminate any benefit plan (other than to conform such benefit plan to the requirements of any law, each previously notified to Buyer in writing or otherwise). otherwise required by this Agreement). Except as provided inSection 3.8(a)
of the Disclosure Plan, none of the Benefit Plans provide post-employment health or life insurance benefits to participants or beneficiaries of a participant, except as required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (or similar legislation). .
(b) The Company has provided the Buyer with: (i) accurate and complete copies of each benefit plan, including any amendments and any associated trust documents, (ii) the most recent annual report (5500 series of forms and any annexes and accompanying statements), if any , required by ERISA or the Code in connection with each benefit plan, (iii) the most recent summary description of the plan, together with summaries of the changes, if any, required by ERISA in relation to each benefit plan, (iv) all written contracts associated with each benefit plan, including administration service contracts and group insurance contracts, (v) any non-routine correspondence with or from an agency related to a benefit plan, and (vi) any insurance policies issued by the Acquired Companies or any of their Affiliates related to the Trustee Liability Insurance will be maintained, covering the trustees of each benefit plan.
(c) None of the Acquired Entities or any of their ERISA affiliates maintained, established, sponsored, participated in, or contributed to: (i) a Title IV retirement plan of ERISA, (ii) a “Multiple Employer Plan.” " as defined in Section (3)(37) of ERISA, (iii) a "multi-employer plan" as defined in Section 413(c) of the Code, (iv) a plan that meets the minimum funding standards under Section 412 of the Code is subject to the Code or Section 302 of ERISA, (v) a “Multi-Employer Wellness Arrangement” within the meaning of Section 3(40) of ERISA, (vi) a wellness plan funded within the meaning of Section 419 of the Code, or (vii) a plan maintained in connection with a fund described in Section 501(c)(9) of the Code.
(d) Each benefit plan has been established, administered and maintained in all material respects in accordance with applicable laws, including ERISA and the Code. Any benefit plan claimed to qualify under Section 401(a) of the Code has received a favorable finding or letter of opinion from the IRS regarding its eligibility, or may rely on a letter of opinion from the IRS with respect to a prototype plan accepted in accordance with the requirements for such trust or time remaining to apply to the IRS for a determination of the qualifying status of such benefit plan for any period during which such benefit plan would not be covered by an IRS determination and no event or omission occurred to Seller's knowledge that would cause such benefit plan to do so that a benefit plan loses this eligibility.
(e) No “prohibited transaction” within the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA and not otherwise exempted in Section 408 of ERISA has occurred or reasonably to be expected in connection with any benefit of the Scheme. No action pending or threatened to Seller's knowledge (other than routine benefit claims) against any Benefit Plan or any Benefit Plan assets. Each benefit plan may be modified, terminated or discontinued after completion in accordance with its terms without liability to the purchaser, an acquired company or an ERISA affiliate (other than general administration costs). No lawsuit is pending or, to Seller's knowledge, threatened by the IRS, US Department of Labor or any other governmental agency relating to any benefit plan. None of the acquired companies or any ERISA affiliate have incurred penalties or taxes in connection with a benefit plan under Section 502(i) of ERISA or Sections 4975 through 4980 of the Code. No benefit plans are subject to redemption fees or service fees upon termination, other than the normal and reasonable administration fees associated with termination of benefit plans.
(f) Each foreign benefit plan and related fund shall operate and be operated in substantial accordance with the laws of the foreign country concerned, its terms and the terms of any collective bargaining agreement, collective bargaining agreement or works council agreement. Any foreign benefit plan that is required to be registered or approved by a governmental agency under the laws of the foreign country has been registered or approved. Any foreign benefit plan that is intended to qualify for special tax treatment meets all of the requirements for such treatment.
(g) Except as expressly provided for in this Agreement or set forth inSection 3.8(g)
of the Disclosure Plan, neither the Company's execution and delivery of this Agreement nor the consummation of any transactions contemplated herein will result in (i) any payment to an employee of an Acquired Company, (ii) any increase in any benefits otherwise payable under any Plan, or (iii) result in an acceleration of the timing of payment or vesting of such benefits under this Plan.
Section 3.9Real and personal property
(a) No acquired company owns or has ever owned real estate.
of the Disclosure Plan contains a list of all agreements under which any of the Acquired Entities leases, subleases or otherwise occupies or uses real property, and any amendments thereto (each, “Set
' and together the 'Locations
’) (such underlying interest in property, with all easements and other rights in respect of such property, which ‘Rented real estate
"). Seller has provided or made available to Buyer true, complete and accurate copies of each Rental Agreement.
(c) In relation to each Rental Property:
(i) the relevant acquiree has a valid and enforceable lease interest in the leased property under any relevant lease agreement free and clear of any lien other than permitted liens;
(ii) each listed lease has been duly approved and executed by the relevant acquired company;
(iii) none of the Acquired Entities is a sub-tenant or has transferred a rental deposit for any element of the Leased Property; Is
(iv) Neither the acquiree nor, to Seller's knowledge, any other party to a lease is in material default under any lease.
(d) Except as provided inSection 3.9(d)
of the Disclosure Plan or as expressly disclosed in the Interim Financial Statements, the Acquired Entities will own all assets and property, property and equipment disclosed in the Interim Financial Statements or acquired after the date of the Interim Financial Statements, free from all encumbrances, except for the following (collectively referred to as "allowable liens
”) (i) charges disclosed in the interim financial statements, (ii) charges for taxes, fees, assessments or other governmental levies that are not past due or remain due without penalty or are contested in good faith (and for which , in in each case when appropriate reserves have been established in accordance with GAAP), (iii) liens on carriers, warehouses, mechanics, lessors, materialists, tradesmen or other similar liens arising in the ordinary course of business, (iv) liens consisting of required warranties or deposits in the in the ordinary course of business in connection with workers' compensation, unemployment insurance and other social security laws or to protect the liability of insurers, (v) liens on real estate or tangible assets acquired or held by the businesses acquired in the ordinary course of business, as security for the entered into or debts assumed to finance (or refinance) all or part of the cost of such real estate or tangible assets, (vi) mortgages on real estate or tangible assets to secure lease obligations, (vii) ) any interest or interest of a lessor or sublessor, as landlord or sub-lessor, under a lease of real estate or tangible property and a Precautionary Uniform Commercial Code financial statement filed under a lease of real estate or tangible property, (viii) liens defects of registration or title that are immaterial and exist only with respect to such real or tangible assets, values or dimensions and which do not materially diminish the value or materially impair or be impaired by the actual use of the assets in question for them, and (ix) no - Exclusive Intellectual Licenses Property for customers of the acquired companies that represent customer agreements in standard format.
(e) The leased property represents all interests of the acquired companies in real estate currently used in connection with the respective businesses of the acquired companies.
Section 3.10labor and employment issues
(a) Except as provided inSection 3.10(a)
of the Disclosure Plan, each acquired business will comply in all material respects with all employment and labor practices laws applicable to it, including all laws relating to labor relations, fair employment practices, discriminatory employment, harassment, retaliation, reasonable accommodation, rights of persons with disabilities, or benefits, Immigration, including the Immigration Control and Reform Act, wages, hours, overtime compensation, wage statements, gender pay, racial and ethnic origin, work on days off, child labor, hiring, promotion and termination of workers, classification of workers (including proper classification of workers as independent contractors), working conditions, meals and breaks, privacy, health and safety, workers' compensation, vacation, unemployment insurance, equal opportunity and bargaining.
of the Disclosure Plan includes a true, accurate, and complete list of all employees, independent contractors, and other non-employee service providers currently performing services for each acquired entity, along with information identifying whether the individual is an employee, consultant, or independent contractor and, to the extent applicable, (i) title, (ii) place, (iii) date of employment or employment of each person, (iv) full-time or part-time classification, (v) exempt or non-exempt classification, (vi) weekly working hours classification ( for salaried employees and part-time employees), (vii) base salary and bonus; (viii) Bonus Eligibility; (ix) vacation quota, (x) accumulated but unused sick leave and vacation time or paid time off (expressed as number of days and dollar value of those days), (xi) primary place of employment or place of employment, (xii) type of visa (if applicable), and (xiii) whether that person is on holiday (and the nature of that holiday and the expected date of return).
(c) In the last three (3) years, no threats or industrial disputes have been instituted or, to the Seller's knowledge, made or initiated by any person or governmental entity or arbitrator in connection with the employment of any current or former candidate, employee, consultant, volunteer or intern. or independent contractor of an acquired business, including claims alleging unlawful harassment, employment discrimination (including discrimination based on gender, gender, gender identity, gender expression, race, citizenship, disability, medical condition, pregnancy, religion, religious affiliation, national origin, age, genetic information, family medical history, veteran status, sexual orientation, ancestry, whistleblower or other characteristic protected by law), unfair labor practices, unpaid wages, illegal wage or immigration practices, termination Unjustified or illegal tax withholding practices related to Acquired Businesses (or their agents).
(d) To the best of Seller's knowledge, none of the Acquired Companies' employees are bound by any competition, solicitation, non-disclosure, confidentiality, employment, consulting or similar agreement inconsistent with the Acquired Companies' dealings. . No acquired company has received written notice alleging that there has been a breach of such contracts.
(e) In the past three (3) years, no Acquired Business has experienced “collective redundancies” or “plant closures” as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, as amended (“TO WARN
'), or engaged in any comparable conduct under any applicable state or foreign law or took any other action that would result in, or require action in respect of, a violation of WARN or any comparable state or foreign law, and none such Action will be taken without notifying the buyer.
(f) No Acquired Company is party to or otherwise bound by any collective bargaining or other agreement with any union. In the past three (3) years, no acquired business has been the subject of, nor is pending or to the knowledge of the Vendors of any lawsuit, petition or representative proceeding intended to compel, demand or demand negotiations with a union threatened, any significant labor strike, walkout, work stoppage, slowdown or lockout involving an acquired company.
Section 3.11Contracts and Obligations
of the Disclosure Plan, as of this date, lists all of the following agreements in which an acquired entity is a party:
(i) any Acquired Business Agreement involving aggregate consideration in excess of one hundred thousand dollars ($100,000) per year;
(ii) any partnership agreement or joint venture agreement under which an acquiree is obligated to make an investment or loan to any person, or which requires the sharing of income, profits, losses, costs or liabilities by an acquiree with any person person includes (other than the company);
(iii) all arrangements with the Acquired Entities' twenty (20) largest customers for revenue generated during the period from January 1, 2018 to May 31, 2018 (each a “material client
(iv) all contracts with the ten (10) main suppliers and service providers of the acquired companies based on payments made during the period from June 1, 2017 to May 31, 2018 relevant to the Company's business and acquired business, respectively (one each "Materiallieferant
(v) any agreement that requires an acquiree to purchase all of its needs for products or services from third parties or that contain “take it or pay” clauses;
(vi) any agreement that provides for: (1) the indemnification by an Acquired Company of any person (other than standard customer agreements and non-negotiated supplier agreements) or (2) the assumption of any tax, environmental or other liability of any person;
(vii) (i) any agreement that contains an obligation on the part of any Acquired Company to indemnify any other person against claims of infringement, misappropriation, abuse, dilution or infringement of any intellectual property or technology right, and (ii) any other agreement to guarantee, approve, accept or approve or any similar obligation in relation to the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or debts of any other person, except in the case of both clauses (d) and (ii)), Customer Contracts standard form and non-negotiated supplier contracts;
(viii) all employment arrangements and independent contractor or consultant contracts (or similar arrangements) that provide for fixed compensation in excess of one hundred and fifty thousand dollars (US$150,000) per year to which the Acquired Businesses are party, excluding such arrangements or terminate employment contracts at no cost or liability to the Accepted Companies and upon notice of up to 60 (sixty) days;
(ix) any collective agreement or agreement with a union to which an acquired company is a party;
(x) any agreement, other than standard form customer agreements and non-negotiated supplier agreements, that (i) authorizes the authorship, invention, creation, conception or other development of technology or intellectual property rights (A ) by any of the Acquired Companies to another person or (B) to any of the Acquired Companies to another person, including, in each of clauses (A) and (B), any joint development by any of the Acquired Companies with another person; (ii) provides for the assignment or other transfer of any ownership interest in technology or intellectual property rights (A) from another person to one of the Acquired Companies, or (B) from one of the Acquired Companies to another person; (iii) includes any grant of any intellectual property license to another person by any of the Acquired Entities; or (iv) involves the grant by any other person of any intellectual property license to any of the Acquired Entities (except, with respect to this Subsection (iv) only, the Open Source Software licenses set forth inSection 3.12(m)
the disclosure agenda);
(xi) any non-disclosure or other agreement relating primarily to the disclosure of proprietary information by any Acquired entity (other than (i) standard customer agreements, (ii) non-negotiated supplier agreements, or (iii) agreements substantially in the form of the non-disclosure agreement regarding the purchased business made available to the buyer prior to the date of this agreement);
(xii) any agreement under which an acquiree (A) grants exclusive rights, non-competition rights, first refusal rights, first deal rights or best customer rights, (B) restricts or is intended to restrict the acquiree's ability to compete in any line of business or with any person or in any geographic area or for any period (other than Standard Customer Agreements) includes (C) “clawback” or similar obligations for a portion of the Acquired Businesses requiring reimbursement or reimbursement of all Fees (other than Standard Customer Agreements ), (D) contain limitations or waivers of fees or other expenses, (E) contain “key person” agreements, promises or notices or termination provisions, or (F) fee-based or grant-based benefit terms (other than standard form client agreements);
(xiii) any agreement which, upon entering into, would provide that Buyer or any of its affiliates (other than Acquired Entities) (i) grant, (ii) ) ) license any Intellectual Property (other than Standard Customer Agreements) or assign or transfer it to any person lien on Company Intellectual Property or (iii) Company Intellectual Property;
(xiv) contracts with related parties;
(xv) all franchise, agency, market research and marketing and advertising consultancy contracts in which the incorporated companies are party;
(xvi) Arrangements for the sale of assets of an acquired company, other than a sale in the ordinary course of business or the disposal or sale of obsolete assets or assets withde minimisthe unrated book;
(xvii) any agreement to acquire the business or assets of another person (whether by merger, sale of shares, sale of assets or otherwise);
(xviii) any enforceable agreement relating to the acquisition by an acquiree of the operations or assets or interests of another person, other than agreements made in the ordinary course of business to acquire goods and services and non-disclosure agreements;
(xix) any arrangement with a governmental entity in which an Acquired Company is an party;
(xx) any arrangement relating to the indebtedness (including guarantees) of the acquired companies, any foreign exchange, commodity or other hedging arrangement, or any leasing transaction of the type that is to be capitalized under GAAP, in each case in which an acquired Company is creditor or debtor;
(xxi) any contracts containing provisions requiring future contingent or non-contingent "receipts" or similar payments to be made by an acquiree;
(xxii) any arrangement that provides for future payments or the expediting or acquisition of payments that are contingent, in whole or in part, upon a change of control over an acquiree; Is
(xxiii) any arrangement under which an acquired company has made any advances or loans to other persons, other than advances made to employees of such acquired company in the ordinary course of business.
(b) Any of the contracts set out in theSection 3.11(a)
of the Disclosure Plan (the “material contracts
) is the valid and binding legal obligation of the Acquired Company, enforceable against it under its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights of affecting creditors generally and by general principles of equity (regardless of whether an application is made in court or in equity). Except as expressly stated inSection 3.11(b)
of the Disclosure Plan, each Master Agreement is in full force and effect, and the applicable Acquired Business is not, and to the best of Seller's knowledge, no other party to this Agreement has committed a material breach as a result of this Agreement. To the best of Seller's knowledge and belief, no event or circumstance has occurred which, upon notice or passage of time, or both, would reasonably be expected to constitute, or result in the termination of, an event of default under any material contract or could reasonably be expected to expedite or cause or permit other adverse changes in rights or obligations or the loss of a material advantage. Complete and accurate copies of all material agreements (including any amendments, supplements, supplements and waivers) have been provided to Buyer.
Section 3.12Intellectual property
of the Disclosure Plan provides a true, complete and accurate list of all (i) registered company intellectual property rights and (ii) unregistered trademarks owned by each of the acquired companies and relevant to the company's business. For each item of intellectual property rights of the incorporated company,Section 3.12(a)
the Disclosure Listing lists (A) the registered owner for that item and, if different, the legal owner and beneficial owner of that item, (B) the jurisdiction in which that item is issued, registered or pending, (C) the issuance , registration or application date and the number of this element, and (D) for each domain name registration, the corresponding domain name registrar, the name of the registrant and the expiry date of the registration.
(b) All necessary fees and registrations relating to the incorporated company's intellectual property rights have been filed with the appropriate governmental agency and domain name registrars in a timely manner to maintain the intellectual property rights of this incorporated company in force and effect. Except as revealed inSection 3.12(b)
of the Disclosure Plan, there are no renewals, annual fees, payments, fees, responses to official acts, or other filings required and due with respect to the Intellectual Property Rights of the incorporated entity within one hundred and twenty (120) days of the current date. No broadcast or registration received and no application for intellectual property rights submitted by any acquiree has been cancelled, abandoned, lost or not renewed unless such acquiree has made a reasonable business judgment decision to cancel, surrender, or terminate the expiration terminate or not renew the issuance, registration or order.
(c) The Acquired Companies will be the sole and exclusive owners of all right, title and interest in (i) all Intellectual Property Rights of the Registered Company and (ii) all other Intellectual Property Rights of the Company and Company Technology owned or purportedly owned must be owned or assigned to one of the Acquired Companies (clauses (i) and (ii) together the “intellectual property companies
’), free from all loads (except for the permissible loads described inSection 3.9(d)
(i)-(iv). All intellectual property rights of Company and Company Technology that are not Company intellectual property (“licensed IP
’) are duly and validly licensed to the Acquired Entities pursuant to: (A) Intellectual Property Licenses contained in the Agreements set forth inSection 3.11(a)(x)
of the Disclosure Plan (and each such agreement is a valid agreement enforceable under its terms (subject to bankruptcy, insolvency, reorganization, moratorium or other applicable law relating to or affecting the rights and remedies of creditors generally)), (B ) Open source software listed inSection 3.12(m)
of the Disclosure Program; or (C) non-negotiated supplier agreements made available to Buyer. The Acquired Entities have (and will continue to have, immediately after Closing) valid and continuing rights (subject to the terms of these Agreements) to use, sell, license and otherwise exploit all Licensed IPs as they are currently in use. sold, licensed and otherwise operated by the acquired companies.
(d) All Intellectual Property of the Company is freely transferable and assignable or may be extended to the Buyer without restriction and without payment of any kind to the Vendor Group or any other person.
(e) The Company's Intellectual Property and Licensed Intellectual Property constitute all necessary and sufficient intellectual property rights and technology to enable the Acquired Companies to continue in all material respects the Company's business as it is currently operated. The records contained in the incorporated company intellectual property rights and, to the best of Seller's knowledge, the records contained in the incorporated company intellectual property rights licensed solely to the purchased companies are valid and enforceable.
(f) None of the Intellectual Property Rights of the incorporated entity has been or is subject to interference, reference, review (including ex parte review, inter-party review, inter-party review, post-grant review or covered business method review ( CBM )), cancellation or objection proceedings.
of the Disclosure Plan provides a true and accurate listing of all intellectual property licenses expressly granted under patents (i) by another person to one of the Acquired Companies and (ii) by one of the Acquired Companies to another person.
(h) Neither the conduct of any Company business nor any Company Offering (including the use, performance, offering, licensing, delivery, sale, distribution or other exploitation of any Company Offering) of the Company) (i) has committed or violated any infringement , misused , whether (or as a result of misappropriation), dilution, unauthorized use or disclosure or otherwise infringing upon any third party's intellectual property rights, (ii) if performed in the same manner after completion, will not infringe, abuse or dilute , use or disclose without permission or otherwise violate any intellectual property rights of Seller Group or any third party; (iii) has contributed to, contributes to or give rise to an infringement, misappropriation or other infringement of the intellectual property rights of any third party, (iv) if carried out in a similar manner after the conclusion, will not result in an infringement, misappropriation or inappropriate or to an infringement or misappropriation contributes to or otherwise violates any intellectual property rights of the Sales Group or third parties; or (v) constitute or constitute unfair competition or business practices under the laws of any Relevant Jurisdiction (and if conducted in the same manner post-closing, will not constitute).
(i) None of the Acquired Companies received any communication from any person (i) alleging infringement, misappropriation, abuse, dilution, infringement or unauthorized use or disclosure of any intellectual property rights or technology or unfair competition, (ii) an invitation to any of the Acquired Companies to obtain a license under any intellectual property right or to determine the applicability of any intellectual property right to any offering of the Company or the conduct of Company business or (iii) the ownership, use, validity or enforceability of Company intellectual property rights or technology nor is there, to Seller's knowledge, any basis for any person to assert any claim, invitation or objection under sub-paragraphs (i) through (iii) above.
(j) To the best of Seller's knowledge, no person will infringe, misappropriate, abuse, dilute or violate Company intellectual property rights, Company technology owned or exclusively licensed by any of the Acquired Companies, or Company Offering. None of the Acquired Companies has asserted any written or unwritten claim against any person alleging infringement, misappropriation, misappropriation, dilution or infringement of the Company's intellectual property rights, Company technology owned or exclusively licensed by any of the Acquired Companies, or the offering of the company claims.
(k) Each of the Acquired Companies has taken commercially reasonable steps to protect all of the Acquired Companies' proprietary information and any proprietary information of others owned, controlled or accessed by the Acquired Companies . , with respect to which each of the companies included is bound to confidentiality. No disclosure of this proprietary information has been authorized or actually given to any person except in accordance with a written confidentiality agreement limiting the disclosure and use of this proprietary information. Each current and former employee and consultant of any of the Acquired Companies who was involved in the creation, invention, creation, conception or other development of a Company's technology has entered into a written Invention Assignment and Non-Disclosure Agreement with such Company which will effectively and effectively be transferred to such Acquired Company transfers all intellectual property rights and technology created, invented, created, conceived or otherwise developed by such employee or consultant in connection with his employment or involvement with such acquired company (a "Invention Transfer Agreement
’) on a form provided to Buyer prior to that date. No current or former employee or consultant of any Acquired Company (i) has removed any technology (or intellectual property rights in or to any technology) authored, invented, created, conceived or otherwise developed prior to his employment or involvement in such technology in his or her invention assignment pursuant to that person's invention assignment agreement, (ii) to the best of Seller's knowledge, has not affirmatively stated in such invention assignment agreement that he or she existed prior to employment or interest in such acquired business, or (iii) for any of the acquired companies or, to the best of Seller's knowledge, any other person, property or other exclusive intellectual property rights of such employee or consultant. Copyrighted, invented, created, conceived or otherwise developed by such employee or consultant in connection with his employment or involvement with such acquired business.
of the Disclosure Addendum contains a true and accurate listing of all third-party software (excluding the open-source software listed inSection 3.12(m)
of the Disclosure Plan) that is (i) embedded or embedded or packaged in Company software, or (ii) excluding software licensed under non-negotiated supplier agreements otherwise used by any of the Acquired Entities in the Business Company (and z each Item to be included in sublists (i) or (ii), the name of the licensor or owner of the software, and the agreement under which the software is licensed). Except as provided inSection 3.12(l)
of the Disclosure Plan to any person other than employees, consultants and contractors of the Acquired Companies who have committed in writing to the confidentiality of such source code or related materials. None of the Acquired Companies is a party to any Source Code Retention Agreement or other agreement (or party to any agreement that requires any Acquired Company to enter into a Source Code Retention Agreement or any other agreement) that requires escrow of any Source Code . or related materials for enterprise software.
of the Disclosure Addendum contains a list (in the format desired by Buyer) of all Open Source Software that is or was included, incorporated or integrated, linked, combined or distributed with or used in the delivery or delivery of any Enterprise Software or Enterprise Offering. Each of the acquired companies has complied with and is in all material respects in compliance with all license requirements applicable to all elements of the open source software that are published in or required to be disclosed inSection 3.12(m)
the dissemination agenda.
(n) No Open Source Software is or has been included, integrated or incorporated, linked, combined or distributed or used in any delivery or delivery of any Enterprise Software or Enterprise Offering, in any event accompanying Enterprise Software. grants the company a copyright license or which requests or intends to request that one of the acquired companies grant a license for intellectual property relating to its patents.
(o) The Company Software and Company Offerings will be free from defects in materials or errors or errors in programming, design or documentation. None of the Company's software or offerings constitute or contain any contaminants. Except in accordance with applicable Company privacy laws and policies, neither Company Software nor Company Offerings may (i) send a User's information to another person without User's consent, (ii) record a User's actions without User's knowledge, or (iii) use a user's Internet connection, without the user's knowledge, to collect or transmit information about that user or that user's behavior.
(p) No government funds or institutions of universities, colleges, other educational institutions or research centers have been used in the development of any of the Company's intellectual property, nor have any government agencies or universities, colleges, other educational institutions or research centers owned, claimed or owned any intellectual property of the Company, been used, have any other right in or to (including a license to any intellectual property) or have the opportunity to acquire any right in or to any intellectual property of the Company.
(q) The consummation of the transactions contemplated by this Agreement will not result in any loss or impairment of any of the Acquired Companies' rights to own, use, exercise or otherwise exploit the Company's intellectual property rights or information technology. Neither the execution, delivery and performance of this Agreement or any Transaction Document, nor the consummation of any transactions contemplated by this Agreement, will result in any Transaction Document pursuant to any agreement to which any of the Acquired Entities is a party or otherwise related in any manner (or with the intent to to cause to do so) the transfer or grant by any of the Acquired Companies or the Acquirer or any of its affiliates of any stock interest or license in any Intellectual Property relating to any Intellectual Property of the Company to any person of the Company's proprietary rights or technology or of the Company's intellectual property rights or technology Buyer or one of its affiliates.
(r) IT systems are adequate and sufficient (including in terms of working conditions and capacity) to conduct the Company's business. Each of the Acquired Companies (i) has taken reasonable steps to safeguard and maintain the performance, security and integrity of the IT systems (and any software, information or data stored on an IT system), and (ii) keeps adequate documentation on all systems, their operation and their care and maintenance. During the two-year period prior to the date of this announcement (A) there were no failures related to any IT system that had a material impact on the operations of any of the Acquired Businesses and (B) to the best of the Seller's knowledge and belief, there were no failures there is no unauthorized access to or use of any IT system (or any software, information or data stored on an IT system). As of and after Closing, the Acquired Entities will have and be able to exercise the same rights (ownership, license or otherwise) in relation to the IT systems that the Acquired Entities would have and be able to exercise if this Agreement, the Acquisition Documents, the Confirmation of the Company and others have agreements, documents and instruments to be executed and delivered after the date of this Agreement have not been executed and the transactions contemplated by this Agreement, no transaction document have taken place without payment of any additional amount or separate consideration of ongoing Fees, royalties or payments that the acquired companies would otherwise have had to pay.
(t) Since September 1, 2014, the Acquired Companies have at all times implemented and maintained a comprehensive security plan that implements and monitors commercially reasonable administrative, technical and physical safeguards to ensure that personal data, intellectual property, the value of which is derived is not public known, or other confidential or sensitive information (collectively, "Protected Information" owned or controlled by the Acquired Companies, which is protected from loss, damage, unauthorized access, use, unauthorized alteration or other misuse (such plans, collectively the "security practices
Section 3.13According to the laws; Allow
(a) Except as provided inSection 3.13(a)
of the Disclosure Plan, the acquired companies have complied and are complying in all material respects with all laws applicable to them or their businesses, property or assets. The Acquired Companies (i) have not received written notice from any governmental authority regarding an alleged violation of applicable law by the Acquired Companies, or (ii) have made or been the subject of a government order with respect to the Acquired Companies their respective properties or goods or have received written requests for information, notice, reminders, inquiries, complaints or demands from any governmental authority in connection with the foregoing. To the best of Seller's knowledge and belief, none of the Sellers, employees, consultants or agents of the Acquired Businesses, in their respective capacity, have been charged, notified in writing or notified that he or she is under investigation or have been served by any government with respect to violations of applicable law, except as set forth inSection 3.13(a)
the dissemination agenda. Notwithstanding the foregoing, the representations and warranties contained herein applySection 3.13(a)
does not apply to matters falling underSection 3.7
(employee benefit plans),Section 3.10
(Labor and employment matters) orSection 3.14
of the Disclosure Plan provides a true and complete list of all licenses held by any of the Acquired Companies in connection with conducting the business and operations of the Acquired Companies, including the names of the licenses and their respective issuance and expiration dates. All licenses required for the operations of the acquired companies have been obtained by them, except where failure to obtain such licenses has not had, and is not expected to have, a material adverse effect, and all such licenses are valid and in full Scope in force and effect and effect, and the Acquired Companies will comply in all material respects with those approvals. All fees and charges associated with these permits have been paid in full as of the date of this publication. Neither the Acquired Companies nor the Seller have received written notice of any actual or alleged breach of this permit, and no action is pending or known to Seller in writing to be revoked, suspended, refused, rescinded, terminated , withdraw or restrict permission.
Section 3.14environmental issues
. Except as provided inSection 3.14
of the Disclosure Program: (a) each acquired entity complies and complies in all material respects with all environmental laws (as defined below) applicable to its operation and use of the leased property, (b) there was no release (as defined below). ) or the threatened release of hazardous materials by an acquired business on the leased property that requires reporting, investigation or remediation by the acquired business under an environmental law, (c) except for those matters no longer pending, has no acquired business has received a written request for information, notice, warning letter, regulatory inquiry, or written complaint or claim under any environmental law, or has been the subject of any governmental or civil enforcement action relating to any environmental law, and (d) does not already own any property required by the Acquired Businesses are operated or leased, are listed or, to the best of Seller's knowledge, have been proposed for inclusion on the National Priorities List or CERCLIS or any comparable foreign, state or local list. For these purposesSection 3.14
, (UE) "environmental laws
“means all Laws relating to the protection of soil, surface water, groundwater, land, flowing sediment, surface or subsurface strata, and ambient air and biota, living or in force at the present time; "dangerous goods
” means any pollutant, toxic substance, hazardous waste, hazardous material, hazardous substance, oil or oil-containing product as defined or enumerated in any Environmental Law; Is "release
“any release, discharge, discharge, injection, spill, leak, pump, discharge, emission, escape or discharge of a hazardous material into soil, surface water, groundwater, flowing sludge, surface or subsurface strata and ambient air and biota living in or on such media . The representations and warranties contained herein
constitute Seller's sole representations and warranties with respect to environmental matters.
of the Disclosure Plan contains a list of insurance policies maintained by or for the benefit of the Acquired Entities (the “insurance policies
"). Each insurance policy is in full force as of that date and all premiums have been paid in full. To date, no cancellation, premium increase, change of cover or cancellation has been received in respect of any insurance policy. The insurance policies do not provide for retrospective premium adjustments or other liability based on the experience of the acquired companies. Except as provided inSection 3.15
of the Disclosure Plan, no claims relating to the Acquired Businesses' business are pending under any insurance policy for which coverage has been questioned, denied, contested or reserved. The Acquired Businesses are not in default or have otherwise failed to comply in any material respect with any provision contained in an insurance policy. The insurance policies are sufficient to comply with all applicable laws and contracts to which the acquired companies are party or by which they are bound.
Section 3.16Related Party Transactions
. Except for (a) employment contracts entered into with employees in the ordinary course of business, (b) participation by employees in equity incentive plans, or (c) as described inSection 3.16
As of the Disclosure Plan, there is no contract, relationship or other arrangement, arrangement or transaction involving an Acquired Company, on the one hand, and the Seller, any shareholder of the Seller, any affiliate of the Seller (other than the Acquired Companies) or any director or director or members of the immediate family of such persons, or any entity in which such persons directly or indirectly own a substantial voting interest, a customer or supplier, otherwise (any "Related Party Agreement
Section 3.17no runners
. Except as provided inSection 3.17
As a result of the Disclosure Program, no acquiree has entered into any contract, agreement or arrangement with any person that would result in an acquiree paying finder's, brokerage, investment banking or brokerage fees or other similar payments in connection with the contemplated transactions through this agreement.
Section 3.18books and records
. The log books and records of the acquired companies, all of which are being made available to the buyer, are complete and accurate in all material respects. The minute books of the acquired companies contain substantially accurate and complete records of all meetings and actions conducted with the written approval of the shareholders, board of directors and all board committees of the acquired companies and no written meetings or actions. Consent was obtained from any stockholder, director or committee for which minutes were not prepared and included in such minute books. Upon completion, all of these books and records will be in the Company's possession.
Section 3.19wealth condition
. Except as provided inSection 3.19(a)
of the Disclosure Plan, the buildings, factories, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property of the acquired companies are structurally sound, in good working and repaired condition and fit for the use for which they are intended, and none of such buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles or other items of tangible personal property require maintenance or repair other than ordinary and routine maintenance and repair. Except as provided inSection 3.19(b)
of the Disclosure Plan, the Acquired Entities will have title or rights to the use of any property, plant and equipment used by the Acquired Entities in continuing the Acquired Entities' businesses as they are currently operated. Except as provided inSection 3.19(c)
of the Disclosure Plan, none of Seller's Affiliates own, own or control any right, property or assets necessary to continue the business of the Acquired Companies as it is currently operated.
Section 3.20get accounts
. The accounts receivable and accounts receivable arising after their date and up to the closing disclosed in the interim financial statements (a) result from bona fide transactions entered into by the acquired entities in connection with the provision of services in the ordinary course of business, and ( b) represent only valid and undeniable claims of the Acquired Entities and shall not be subject to any claim for damages or any other defense or counterclaim other than ordinary cash discounts accrued in the ordinary course of business. The provision for bad debts recorded in the interim financial statements or, in respect of interim financial statements, in the accounting records of the acquired companies was determined in accordance with GAAP and applied consistently, subject to the normal financial statements. End. Adjustments and omissions of information normally given in footnotes.
Section 3.21AML and Sanctions and Export Compliance
(a) None of the Purchased Companies or their respective officers, directors or employees, or to the best of Seller's knowledge any representative of any of the Purchased Companies is a Prohibited Person.
(b) None of the Acquired Companies is party to any contract or tender, nor has it conducted any business, directly or indirectly, involving (i) an OFAC-sanctioned country or (ii) a Prohibited Person in the past five (5) years .
(c) Each of the Acquired Companies (i) complies in all material respects with all applicable anti-money laundering laws and sanctions and export laws, and (ii) has implemented and maintains policies and procedures designed to ensure compliance with all applicable anti-money laundering laws and promote sanctions. Money Laundering Laws and Sanctions. -Money Laundering Laws -Money Laundering Laws and Sanctions and Export Laws.
(d) There is no pending lawsuit or investigation known to Seller to be brought against any of the Acquired Businesses, nor has any governmental subpoena been imposed (or threatened, to Seller's knowledge) upon the Company. Companies that have been acquired by or before a governmental authority and are pending voluntarily disclosure to a governmental authority in each case with respect to an alleged violation of any money laundering law or any sanctions and export law.
Section 3.22anti-corruption laws; Certain Regulatory Matters
(a) None of the Acquired Companies or their respective officers, directors or employees, or to the best of Seller's knowledge, any vendor or agent of the Acquired Companies within the last five (5) years or (i) violated any anti-corruption laws or (ii) unlawfully offered , pays, promises or authorizes the payment of monies, or offers, gives, promises or authorizes the delivery of anything of value, including cash, checks, money orders, tangible items gifts and intangibles, favors, entertainment and travel services, and expenses in excess of what is reasonable and usual and of little value are:
(i) to an FCPA government official, either directly or through another person, for the purpose of: (A) influencing any action or decision of an FCPA government official in his or her official capacity; (B) cause an FCPA government official to do or refrain from doing any act that violates his or her legal obligations; (C) gain an improper advantage; (D) inducing any FCPA government official to influence or influence any act or decision of an FCPA government official, or (E) assisting an agent in obtaining or maintaining business for or with any person or business to any person to direct
(ii) to any person in circumstances where any of the Acquired Companies or their respective officers, directors, employees or suppliers knew or had reason to believe that such monies or anything of value would be offered, given or promised, in whole or in part, directly or indirectly to an FCPA government official; either
(iii) to any person in a manner that constitutes or has the purpose or effect of a public or commercial bribe, or the acceptance or condoning of extortion, bribery or any other illegal or improper means of obtaining business or improper advantage.
(b) None of the Acquired Companies, or their respective officers, directors or employees, or, to the best of Seller's knowledge, any supplier or agent of the Acquired Companies, (i) (A) conducted or initiated an internal investigation, or (B) any voluntary, direct or involuntary disclosure to any governmental entity responsible for the application of anti-corruption laws, in each case with respect to alleged acts or omissions arising out of or in connection with a violation of any anti-corruption law; or (ii) notices, requests or subpoenas from governmental organizations received alleging non-compliance with an anti-corruption law.
Section 3.23key relationships.
of the Disclosure Addendum determines (i) each Relevant Customer; and (ii) the amount of consideration paid by each of those relevant customers during the twelve (12) months ended May 31, 2018Section 3.23(a)
of the Disclosure Schedule, as of the date of this Agreement, none of the Acquired Entities has received written notice from a Relevant Customer that such Relevant Client has ceased or intends to cease use of the Company's respective Services, terminated or materially reduced or adversely modified its relationship with an Acquired Entity ( regardless of whether it is payment, price or otherwise).
the Disclosure Plan determines (i) each material provider; and (ii) the volume of purchases from each material supplier during the twelve (12) months ended May 31, 2018. Except as provided inSection 3.23(b)
Subject to the Disclosure Schedule, as of the date of this Agreement, none of the Acquired Entities has received written notice that any of their respective material suppliers has ceased or intends to supply any goods or services to an Acquired Entity or will otherwise terminate or materially reduce its relationship with an Acquired Entity.
REPRESENTATIONS AND WARRANTIES OF SELLER
As an inducement to Buyer to enter into this Agreement and to complete the transactions contemplated herein, Seller represents and warrants to Buyer that the statements contained in this Agreement have been madeArticle IV
, together with the information contained in the Disclosure Plan, are true and correct as of this date:
Section 4.1Organization; power and authority
. The seller is duly incorporated and organized and is in good standing under the laws of England and Wales. Seller has full corporate power and authority to execute and deliver this Agreement and the other transactional documents in which it is a party and to perform its obligations here and there. The performance and delivery of this Contract and the other transactional documents of which it is a part, the performance by Seller of its obligations here and there, and the completion of the transactions contemplated herein have therefore been duly authorized by Seller. This Agreement has been duly executed and delivered by Seller and, subject to proper authorization, performance and delivery by each of the other parties, constitute valid, binding legal obligations of Seller, enforceable on their terms against Seller to the extent such enforceability by bankruptcy , bankruptcy, reorganization, moratorium or similar laws affecting creditors' rights generally and may be limited by general principles of equity (whether enforcement is sought in judicial proceeding or in equity). If each of the other transactional documents in which Seller is or will be a party has been duly signed and delivered by Seller (assuming proper approval, execution and delivery by each of the other parties), the transactional document establishes the obligation lawfully, validly and binding on the seller, enforceable against the seller according to its terms, unless such enforceability is prevented by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by the principles of equity capital (regardless of whether enforcement is sought in court or in equity).
Section 4.2no conflict; approval
. The execution, delivery and performance of this Agreement and the other transactional documents to which Seller is a party and the consummation by Seller of the transactions contemplated herein shall not, and therefore shall not: (a) violate or result in a violation of any breach of constitutes or results in a breach or default (whether upon notice, expiration of time, or both) or loss of benefit under any regulation of the Document Vendor's government; (b) violates, conflicts with, or results in or constitutes a violation of any provision of any law or governmental order or restriction imposed by any competent governmental authority (whether by notice, lapse of time, or both). ; (c) require Seller to give any notice, explanation or record, or the consent or approval of any governmental authority or other third party; (d) result in, conflict with, or constitute or result in any breach or breach thereof (whether by notice, lapse of time, or both), expedite any obligation, or create a right to terminate any material contract, Any agreement, permit, license, authorization or other obligation by which Seller is a party or by which Seller or its assets are bound, unless it is reasonably likely to have a material adverse effect on Seller's ability to carry out the transactions contemplated herein; or (e) result in the creation or imposition of a lien on any interest in the property or assets of the acquiree. Seller is not contemplated to seek any consent, approval, permit, governmental order, declaration, filing or notice to any governmental authority in connection with the execution and delivery of this Agreement and other transactional documents in which Seller is a party and the completion of the Transactions herein.
. The seller is the sole registered and beneficial owner of the shares. Seller will have good, valid and unencumbered title to the Shares, free of any liens other than those imposed by applicable federal and state securities laws and this Agreement. Except as provided herein, Seller is not a party and has no obligation to any other person creating or restricting the acquisition or disposal of the Shares.
. Except as revealed inSection 4.4
of the Disclosure Plan, Seller has not entered into any contract, agreement or understanding with any person that would result in Seller being required to make finder, brokerage, investment bank or agent fees or other similar payments in connection with any transaction covered by this Agreement pay.
. There are no claims pending or, to Seller's knowledge, threatened in writing against Seller by or before any governmental authority that (a) contest the validity or enforceability of this Agreement or any transaction document to which Seller is a party, or (b) seek closure prevent, order or otherwise delay any transaction contemplated by this Agreement or any transactional document to which Seller is a party. To the best of Seller's knowledge and belief, no event or circumstance has occurred which could reasonably give rise to or serve as a basis for such a claim. Seller will not be subject to any action of any governing body that may impair or delay Seller's ability to complete any transaction contemplated by this Agreement or any transaction document to which Seller is a party.
BUYER REPRESENTATIONS AND WARRANTIES
As an inducement to Seller to enter into this Agreement and to complete the transactions contemplated herein, Buyer represents and warrants to Seller that the statements contained in this Agreement are satisfiedArticle V
are true and correct as of the date of this document:
Section 5.1Organization; power and authority; capital structure
. Buyer is a duly incorporated and organized company in good standing and in good standing under the laws of its state of incorporation and has all necessary corporate powers and authority to conduct its affairs as now conducted, enter into and perform this Contract and other transactions and documents, at which it is involved and to carry out the transactions contemplated in and by this document. Buyer has full corporate power and authority to execute and deliver this Agreement and the other transactional documents in which it is a party and to perform its obligations here and there. The performance and delivery of this Contract and the other transactional documents in which it is a party, the performance by Buyer of its obligations here and there, and the completion of the transactions contemplated herein have therefore been duly authorized by Buyer. This Agreement has been duly executed and delivered by Buyer and, subject to proper authorization, execution and delivery thereof by each of the other parties, constitutes legal, valid and binding obligations of Buyer, enforceable under its terms against Buyer. , except that such enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity (whether enforcement by judicial proceeding or by equity). can be. If all other transaction documents in which Buyer is or will be a party have been duly signed and delivered by Buyer (assuming proper authorization, execution and delivery by each of the other parties), this Transaction Document constitutes the document that is legally, is valid and binding on Buyer, enforceable against Buyer in accordance with its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors' rights generally and by common principles of equity touch (regardless of whether enforcement is requested). a legal or equitable proceeding).
Section 5.2no conflict; approval
. Buyer's performance, delivery and performance of this Agreement and the other transaction documents in which it is a party and the completion of the transactions contemplated herein shall not: (a) violate or result in any breach or constitute a default or result in have or default (whether upon notice, expiry of time, or both) or loss of benefit pursuant to any provision of Buyer's official documents; (b) violate, conflict with, result in, or constitute a violation of any provision of any law or governmental order or restriction of any governmental entity applicable to Buyer (whether by notice, lapse of time, or both); (c) require Buyer to provide any notice, explanation or record, or the consent or approval of any governmental authority or other third party; or (d) breach or give rise to, conflict with, or constitute or result in any breach or default (whether by notice, lapse of time, or both), expedite any obligation under, or give rise to any right to terminate any material contract, agreement , permits, licenses, permits or other obligations to which Buyer is party or by which Buyer or its assets are bound, unless it is reasonably likely to have a material adverse effect on Buyer's ability to do so for Buyer has to fulfill the transactions considered in this document. Buyer will not seek any consent, approval, permit, governmental order, declaration, filing or notice to any governmental authority in connection with the execution and delivery of this Agreement and other transactional documents in which Buyer is a party and the completion of the Transactions. considered here.
Section 5.3investment status
(a) The purchaser is acquiring the Shares for investment and not with a view to or sale in connection with their distribution in violation of the U.S. Securities Act 1933, as amended (the “securities law
"), or some other law. The Purchaser understands that the Seller has not registered the Shares under the securities statutes or the laws of any other jurisdiction (including the Blue Sky or securities laws of any state of the United States) that the Shares constitute "restricted securities" under the Securities Act and that the Shares constitute an illiquid investment and the purchaser agrees that it will not sell any of the Shares unless the Shares are registered under applicable securities laws or are exempt from registration under applicable securities laws and such sale otherwise complies with all laws of the respective jurisdictions. The purchaser also understands that given the foregoing restrictions on the disposal of Shares, the Purchaser will indefinitely bear the economic risks of its Shareholding.
(b) The buyer is acquiring the Shares for his own account and not for the account of any other person and may not sell the Shares or enter into any other arrangement by which another person is entitled to a beneficial interest in the Shares, unconditionally comply with applicable requirements of applicable law.
(c) Buyer is an “Accredited Investor” (as defined in Rule 501 of the Securities Act).
. Buyer has not entered into any contract, agreement or understanding with any person that would require Buyer to pay any intermediary, broker, investment bank or agent's fees or other similar payments in connection with the transactions contemplated by this Agreement.
. Buyer has sufficient funds to pay the purchase price to Seller under this Agreement.
. No legal action is pending or known to Buyer to be threatened in writing against Buyer by or before any governmental authority that disputes (a) the validity or enforceability of this Agreement or any transaction document to which Buyer is a party, or (b) this seeks to prevent, order or otherwise delay the completion of any transaction contemplated by this Agreement or any transactional document to which Buyer is a party. To the best of Buyer's knowledge, no event or circumstance has occurred which could reasonably be expected to give rise to or provide the basis for a claim. Buyer will not be subject to any action by any governmental entity that impairs or delays Buyer's ability to carry out any transaction contemplated by this Agreement or any transaction document to which Buyer is a party.
Section 5.7liability insurance
. The buyer received a file confirming the commencement of liability insurance and a true, accurate and complete copy thereof was provided to the seller. The said binder has not been altered or modified, no alteration or modification of the binder or liability insurance policy will be contemplated, and the binder has not been withdrawn or terminated in any way. Buyer has paid in full any escrow or other fees due in connection with such binding and Buyer is not aware of any condition that cannot be satisfied. Buyer has no reason to believe that the liability insurance policy evidenced by any such binder will not be in full force and effect once the terms of the binder are satisfied.
. Upon execution of this Agreement, Buyer may issue a press release in the form previously agreed between Buyer and Seller and file such press release with a current report on Form 8-K with the SEC. Except as otherwise required by applicable law or stock exchange requirements (based on reasonable advice), neither Buyer nor Seller nor any of their affiliates will make any other public announcement with respect to this Agreement or the Transaction or make any public statement with respect to this Agreement Documents, the processes considered below and thus the pre-closing strategy of Telefónica S.A. and its affiliates (including Seller) in connection with the Transaction or the financing or investment in any of the Acquired Businesses or otherwise via any means of communication without the other party's prior written consent (whose consent shall not apply). unreasonably withheld or delayed), and the parties shall cooperate as to the timing and content of any such announcement, provided that in each case the party necessary to make the posting or announcement shall use all commercially reasonable efforts to enable the other party to do so in a reasonable time, to comment on any such publication or announcement prior to such broadcast. Notwithstanding anything to the contrary in this contextSection 6.1
, Seller and its agents may make statements or communications to consultants who have a need to know the information contained in such statements or communications without Buyer's consent and to engage counterparties, customers and suppliers of acquired companies who have a need to know the information. contained in such statements or communications, subject to Buyer's prior written consent, which consent shall not be unreasonably delayed, conditional or withheld.
. The terms of the confidentiality agreement dated February 1, 2018 between Vonage Holdings Corp. and Telefónica, S.A. (EITHER "non-disclosure agreement
’) shall remain in effect before and after closing in accordance with its terms. For a period of three (3) years from and after Closing, Seller shall, and will cause its affiliates to, and use commercially reasonable efforts to cause their respective agents to keep, confidential, all written or oral information treat. , about the businesses being purchased, unless Seller can demonstrate that such information (a) is generally available and known to the public through no fault of Seller, any of its affiliates, or their respective agents; (b) lawfully acquired by Seller, any of its affiliates or its respective agents from and subsequent to the closure of sources which, to the best of Seller's knowledge, its affiliates or their respective agents are not prohibited from obtaining such information pursuant to a statutory, contractual or fiduciary obligation; or (c) independently developed by Seller, any of its affiliates or their respective agents without reference to such information relating to the purchased businesses. If Seller or any of its affiliates or their respective agents is compelled to disclose any information by legal or regulatory process or other requirement of applicable law or at the request of any governmental authority, Seller will promptly notify Buyer in writing and disclose only that portion of such information that is provided to Seller in writing by its attorney is required by law to disclose provided that Seller uses commercially reasonable efforts to obtain (at Buyer's expense) an appropriate protective order or other reasonable assurance that such information will be kept confidential. The confidentiality restrictions in thisSection 6.2
and the Non-Disclosure Agreement shall not prevent Seller or its Affiliates from disclosing information about the Purchased Companies (i) to their respective agents and (ii) as reasonably necessary to enforce Seller's rights and remedies under this Agreement or any Transaction .
(a) After Closing, neither Buyer nor any of the Acquired Entities will, at any time prior to 180 days after Closing, take any action that would result in a “dismissal” or “plant closure” as defined in these Terms in WARN, or commit to any Comparable conduct under applicable state or foreign law affecting, in whole or in part, any facility, workplace, operating unit, or employee of a business acquired without full compliance with the requirements of WARN or such applicable state or foreign law.
(b) Prior to Closing, Seller will pay each employee of each acquired business for any Licenses or PTO that each employee has accumulated but not used.
Section 6.4books and records
(a) The Purchaser shall, upon closing, arrange for the Company for (i) the sixth (6)º) Anniversary of the Closing Date or (ii) the retention period required by Buyer's document retention policy, retain all books, records and other documents related to the Acquired Entities' business relating to periods prior to the Closing Date Date make available for review and reproduction by Seller or Seller's agent at Seller's expense during Buyer's and Company's normal business hours upon reasonable request and reasonable notice.
(b) Seller shall, for (i) the sixth (6th) anniversary of the Closing Date or (ii) the retention period required by Seller's document retention policy, keep all books, records and other documents related to the business of the Acquired Businesses relating to periods prior to the Closing Date and will make them available for inspection and reproduction by Buyer or one of Buyer's agents at Buyer's expense during normal business hours.
Section 6.5Using Vendor Group Namemi
(a) Buyer acknowledges that Seller Group has absolute and exclusive ownership of all names, brands, trade names, registered trademarks and service marks containing “Telefónica” in any form (the “Trade names of vendor groups
') and any corporate symbol or logo that somehow contains 'Telefónica' (along with the seller group's trademarks containing 'Vendor Group Brands
"). At and after the Closing, neither the Buyer nor any acquired entity will use, or cause their respective affiliates to disapprove of, the Seller's group mark or any similar mark that is likely to cause confusion in connection with the sale or distribution of any product or service use.
(b) Without limiting the generality of the foregoing:
(i) after Closing, neither Buyer nor any Acquired Entity will use or send any communications (including but not limited to business cards, letterhead, promotional materials, marketing materials, emails, presentations or other communications) branding Seller Group with or to contain customers, suppliers or other third parties;
(ii) promptly, and in any event within ten (10) business days of Closing, Buyer will change its business name to remove Seller's group business names;
(iii) promptly and in any event within thirty (30) days of Closing, Buyer and Acquired Businesses will remove all Seller group marks from all Acquired Businesses buildings, signs and vehicles and all electronic databases, websites and plans, plans, manuals, drawings and other printed or other materials, inventory and the like; Is
(iv) immediately and within thirty (30) days of Closing, the Purchaser and the Acquired Companies will remove all Seller Group marks from the uniforms and nameplates of the Acquired Companies' employees and all other assets and property transferred pursuant to this Agreement and the transactions contemplated herein.
(c) Buyer acknowledges and agrees that Seller Group owns and will own Seller Group's brands and all goodwill associated therewith. This Agreement does not grant Buyer or the Acquired Entities any right to use the Vendor Group Trademarks except as expressly provided in this Agreement. Buyer agrees not to attempt to register Seller's Group Marks or to register the same or similar marks as Seller's Group Marks anywhere in the world. In no event may Buyer or any affiliate of Buyer advertise or represent themselves as a member of the Sellers Group or as an affiliate of the Sellers Group.
Section 6.6Certain Intercompany Matters
. Except as provided inSection 6.6
of the Disclosure Program and except as expressly provided in this Agreement and the Transition Services Agreement: (a) any services that Seller or its Affiliates (other than the Acquired Companies) perform to the Acquired Companies, (b) any services performed to Seller, or its affiliates (other than the Acquired Companies) by any of the Acquired Companies and (c) all agreements between Seller or its affiliates (other than the Acquired Companies), on the one hand, and any of the Acquired Companies, on the other hand, will in each case be made immediately prior to the Closing terminated without payment or the incurrence of any additional liability or obligation (contingent or otherwise) under the terms hereof effective at Closing. If, after that date, Seller determines that it owns or has any interest in any property principally used by, or related to the business of, the Acquired Companies, Seller will promptly notify Buyer and, at Buyer's request, the property and transfer the contracts . applicable to the acquired company without further consideration.
Section 6.7no competition; No request
(a) For a period of eighteen (18) months from the Closing Date (the “blocking period
’) Seller shall not and will not permit any of its Affiliates to: (i) engage in Restricted Businesses in the Restricted Area; or (ii) has an interest consisting of possession or control of a majority of two outstanding direct voting rights by any person, including as a controlling partner, shareholder, creditor or investor, in any person whose business is derived from the Grupo Restricto consists Négócios na restricted area. For the avoidance of doubt, Restricted Transactions do not include: (i) the provision of services of any kind by Seller or any of its affiliates; provided that such services do not constitute the Restricted Business, to third parties competing in the Restricted Business; (ii) the provision of telecommunications services by Seller or any of its affiliates such as B. Unified communications, contact centers or conferencing, including services that integrate third-party solutions that may operate in restricted business; or (iii) the provision of wholesale telecommunications services by Seller or any of its affiliates such as B. Unified communications, contact centers or conferencing with other telecommunications providers.
(b) During the Restriction Period, Seller shall not, directly or indirectly, hire or recruit any employee of the Acquired Businesses or encourage any employee thereof, such as leaving or terminating such employment, either directly or indirectly on behalf of Seller or any member of Seller's Group, except in response to general demand that is not specifically addressed to that employee;offered,that none of thatSection 6.7(b)
prevent Seller or its Affiliates from hiring any employee (i) who communicates with Seller or its Affiliates on their own initiative, as reasonably evidenced by written records; or (ii) (a) whose employment was terminated by the Acquired Entities or the Purchaser at the time Seller or its Affiliate began discussions with such person, or (b) after ninety (90) days from the date of the Termination of the employment contract by the respective employee.
(c) During the Hold Period, Seller will not solicit or solicit, or attempt to solicit or solicit, existing customers of the Acquired Businesses on the Closing Date with the specific intent of inducing such customers to cease or diminish its business or services. of the acquired companies in the restricted business area.
(d) Seller acknowledges that there has been a breach or threatened breach hereofSection 6.7
would result in irreparable harm to Buyer for which monetary damages would not be an adequate remedy, and agrees that in the event of any breach or threatened breach of such obligations by Seller, Buyer shall be entitled in addition to any other rights and remedies that may exist available in connection with such breach, you are entitled to reasonable relief, including an injunction, restraining order, specific enforcement, and any other remedy that may be available in a court of competent jurisdiction (without the need to post bail) . .
(e) Seller acknowledges that the limitations contained hereinSection 6.7
are reasonable and necessary to protect Buyer's legitimate interests and constitute a significant incentive for Buyer to enter into this Agreement and conduct the transactions contemplated by this Agreement. In the event of an agreement contained thereinSection 6.7
shall never be deemed to be limitations of time, geography, product or service or other limitations permitted by applicable law in any jurisdiction, then any court shall have express authority to vary such agreement and this Agreement shall be deemed to be modified in that jurisdiction maximum time, geographic, Product or service or other restrictions permitted by applicable law. The agreements contained thereinSection 6.7
and each provision of this document is a separate and independent agreement and provision. The invalidity or unenforceability of any agreement or provision as written shall not render any other agreement or provision hereof invalid or unenforceable, and any invalidity or unenforceability in any jurisdiction shall not render such agreement or provision invalid or unenforceable in any other jurisdiction.
Section 6.8get accounts
. In the event that Seller or any of its affiliates recovers all or a portion of any amounts owed to an acquired business after the Closing, such monies will be immediately paid to the Company by electronic transfer of immediately available funds.
. As soon as reasonably practicable after Closing, (a) Buyer will provide any Acquired Company employee who remains an Acquired Company employee or Buyer post Closing with an opportunity to redeem their account balance or funds within the scope of the Defined Contributions Plan to Renew Seller that includes a qualifying cash payment or deferred settlement as defined in Section 401(k) of the Code (the “Seller's 401(k) plan
’), and the buyer will purchase the defined contribution plan maintained by the buyer that includes a cash payment or a qualifying deferred arrangement within the meaning of Section 401(k) of the Code (the ‘Buyer's 401(k) plan
’) to accept any such extension (including earnings up to the date of transfer and promissory notes showing all outstanding credit), in each case in accordance with applicable law and the terms of Buyer’s and Buyer’s 401(k) plan Seller's 401(k) plan, if any. Renewal is elected by such employee in accordance with applicable law and the terms of such plans. Seller will use commercially reasonable efforts to cooperate in the completion of such transfers, including sharing necessary subscriber recordings and involving recording stewards, administrators and other third parties. As of the Closing Date, the Acquired Businesses will no longer be Participating Employers in Seller's 401(k) Plan.
(a) On or before the Closing Date, Seller will obtain written consent (the “consent of the owner
’) by SIC-501 Second Street, LLC for the continuation of this particular office lease – 501 Second Street San Francisco, CA by and between SIC-501 Second Street, LLC, TokBox, Inc. and Telefónica Europe, PLC as guarantor, dated April 24, 2018. October 2013, amended September 1, 2015 and April 12, 2018 according to its terms.
(b) Upon and after Closing, Seller will use commercially reasonable efforts to obtain China Unicom (Hong Kong) Operations Limited's written consent for the continuation of certain TokBox Platform-as-a-Service Agreement by and between TokBox, Inc. and China Unicom (Hong Kong) Operations Limited, dated November 13, 2017, in accordance with its terms.
Section 6.11Conduct trades before closing
. From that date until completion, unless otherwise provided for in this Agreement or otherwise authorized in writing by Buyer (whose consent may not be unreasonably withheld or delayed), Seller and the Acquired Companies will arrange for: (a) the businesses of the Acquired Companies in the ordinary course of business; and (b) use commercially reasonable efforts to maintain intact and maintain the existing organization, business and franchises of the acquired companies and the rights, franchises, goodwill and relationships of their employees, customers, contractors, suppliers and others, maintain business relationships with the acquired companies. From that date through the Closing Date, except with Buyer's written consent (whose consent may not be unreasonably withheld or delayed), Seller will cause or permit the Acquired Entities to take any action necessary to any change, event or condition described inSection 3.5
Section 6.12tax competitions
. If you are notified of an action relating to the Purchased Business' sales and use taxes for which the Seller may be liable under this Agreement (a “tax competition
’) is received by Buyer, any of the Acquired companies or any of their affiliates, Buyer will notify Seller in writing of any such tax dispute, provided that breach of this provision will not affect Buyer’s right to compensation under this. as far as the seller is thereby actually and materially damaged. The buyer has the right to represent the interests of the acquired companies in any tax dispute; provided, however, that (i) Buyer will keep Seller reasonably informed of the progress of any such tax contest, including providing it with all material written materials received from the relevant taxing authority and all material written materials submitted by Buyer to such taxing authority, and (ii) Buyer must consult Seller in good faith before resolving, conciliating and/or deciding any part of any such Tax Dispute and (iii) with respect to any Tax Dispute (or any part thereof ). whose approval may not be withheld, settled or delayed. The Buyer and the Acquired Businesses may not enter into discussions or enter into a voluntary disclosure agreement regarding sales and use taxes for tax periods prior to closing without the prior consent of the Seller. Buyer shall have no obligation to notify, solicit, or obtain Seller's consent, except where Buyer is claiming damages for amounts paid by Buyer under a competition tax or voluntary disclosure agreement.
Section 6.13control devolution
. Seller shall be entitled to any refund or credit in lieu of refunds for income tax paid by TokBox Australia Pty Limited for any tax period (or any part thereof) ending on or before the Closing Date together with in each case any interest paid from the competent authority financial authority in this context. Any refunds to which Seller is entitled and received by Buyer, the Acquired Businesses or their Affiliates after the Closing Date will be paid by Buyer to Seller within five (5) business days of receipt (less any pocket-sized costs). or costs incurred by the buyer or the purchased businesses in connection with such a refund or credit in lieu of a refund). Buyer will cooperate with Seller as reasonably (at Seller's sole expense and expense) to obtain such refunds, including by filing amended tax returns or refund requests; provided, however, Buyer shall have no obligation to contest a determination by any taxing authority that Buyer or the Acquired Businesses are not entitled to such refund or credit in lieu of refund in any administrative or judicial proceeding.
DAMAGE PAYMENT; SOLUTIONS
. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein will survive after closing and will remain in full force and effect until March 31, 2019;offered,However, that the company's key statements, the buyer's key statements and the inSection 3.7
(Taxes) shall apply for the entire duration of any applicable statute of limitations (causing a waiver, reduction or extension thereof) plus sixty (60) days; Is,offered,Advance paymentthat with respect to any claim arising out of willful fraud, tort or willful breach of agreement, all representations, warranties, covenants and understandings of the parties contained herein shall survive the entire term of any applicable statute of limitations (when any waiver, reduction or extension thereof) plus 60 (sixty) days. All representations and agreements of the parties contained herein shall remain in effect indefinitely or for the shorter period specified herein. Notwithstanding the foregoing, any claim submitted prior to the expiration date of the applicable Survival Period shall not be retrospectively barred by the expiration of the applicable representation or warranty, and such claims shall stand until finally resolved;offered,Howeverthat any claim relating to breach of the representations and warranties set forth inSection 3.7
(Taxes) must be declared no later than the sixtieth (60) day after the expiration of the applicable statute of limitations. It is the express intention of the parties that if any of the above surviving periods is shorter or longer than the statute of limitations that would otherwise apply to that matter, then pursuant to this Agreement, the statute of limitations that applies with respect to that matter shall be ineffective within such period .
Section 7.2Damage payment
(a) Subject to the limitations set forth herein, includingSection 7.3
, miSection 7.9
, Seller will hold Buyer, its affiliates (including companies acquired after the Closing) and their respective agents (collectively, “Persons Indemnified by Buyer
’) and pay such Buyer’s Indemnified Persons the amount of any loss, liability, claim, damage, judgment, interest, premium, penalty, fine, cost or expense of any kind (including attorneys’ fees, indemnification costs hereunder and the cost of prosecuting an insurer) , whether or not a third-party claim (collectively, “Damage
’) arising directly or indirectly from or in connection with:
(i) any inaccuracy or breach of any of Seller's representations or warranties contained in this Agreement or in any certificate issued by or on behalf of Seller or the Purchased Entities pursuant to this Agreement, from the date such any representation or warranty has been made (other than any representations and warranties expressly made as of a specific date, the accuracy or non-performance of which will be determined by reference to that specific date);
(ii) any breach or breach of any agreement, agreement or obligation that Seller is required to perform under this Agreement;
(iii) any claim or allegation regarding (A) unpaid debts, (B) Company transaction fees, or (C) brokerage or agent fees or expenses arising out of transactions contemplated by this Agreement by any Person claiming to have been employed by Seller, the Acquired Companies or their respective affiliates;
(iv) the Demerger Transaction and related assets and businesses; Is
(v) sales and use taxes levied by an acquiree in respect of liabilities attributable to any taxable period (or any part thereof) ended on the closing date.
(b) Subject to the limitations set forth herein, includingSection 7.3
, miSection 7.9
, Buyer holds Seller, its affiliates and their respective agents (collectively, “
”), for and pay to Seller's Released Persons the amount of damages arising directly or indirectly out of or in connection with:
(i) any inaccuracy or breach of any representation or warranty made by Buyer contained in this Agreement or in any certificate issued by or on behalf of Buyer pursuant to this Agreement at the time such representation or warranty is made (except for representations and warranties). expressly in relation to a specific date, determined to be inaccurate or non-compliant by reference to that specific date); either
(ii) any breach or breach of any agreement, agreement or obligation to be made by Buyer under this Agreement.
Section 7.3certain restrictions
(a) Except for claims arising out of willful fraud, tort or willful breach of contract, damages for which Seller is liableSection 7.2(a)(i)
shall be satisfied solely by Buyer's recovery under liability insurance and Buyer shall have no recourse against Seller in respect of such damages, whether all such damages are covered by liability insurance or whether liability insurance has expired, been terminated or has expiredofferedthat (i) Seller shall be directly liable to Buyer's indemnified persons for such damages pursuant toSection 7.2(a)(i)
in excess of the deductible up to a maximum of $250,000 (the “Lid
’), and (ii) Seller shall not be liable for any damages pursuant toSection 7.2(a)(i)
unless and until the aggregate value of such damages exceeds $250,000 (the "Damages deductible
“); mimore providedthat Seller shall be directly liable to Buyer's indemnified persons in the event of any inaccuracy or breach of any fundamental corporate statement to the extent that such damages are not covered by the liability insurance policy for any reason other than due to a lack of good faith efforts by Buyer's indemnified persons, to claim damages and comply with its terms (including any excess, excess or denied coverage contained therein) up to an amount equal to the actual purchase price received by Seller under this Agreement.
(b) Notwithstanding anything to the contrary herein, except for damages resulting from willful fraud, criminal activity or willful breach of contract, (i) Seller's entire liability for all damages underSection 7.2(a)
does not exceed the total purchase price actually received by Seller under this Agreement, and (ii) Buyer's total liability for all damages underSection 7.2(b)
shall not exceed the total purchase price actually paid by Buyer under this Agreement.
(c) The parties expressly waive any claim for lost, punitive or indirect profits, depreciation, special, exemplary or similar damages, or any punitive damages based on any kind of multiples, except in each case (i) in the case of diminution of Value to the extent that such depreciation is the probable and reasonably foreseeable result of an enforceable breach of any representation, warranty, covenant or agreement contained herein, (ii) to the extent actually required by any third party (including any government) of an Released Person or (iii) in the case of willful fraud, criminal activity or willful breach of contract.
(d) A indemnified person who is entitled to indemnification from an indemnifying person under thisArticle VII
In respect of any related claim or set of claims, you shall only be entitled to damages for such related claim or set of claims once, notwithstanding that such related claim or set of claims may constitute a breach of two or more representations and/or warranties in this agreement established.
(e) No indemnified person of Buyer shall be entitled to indemnification under this Agreement (i) in respect of any damages to the extent such damages have been taken into account in the calculation of the working capital at the closing, the indebtedness of the company or the corporate transaction, or (ii) for damages in connection with any matter to the extent that any specific liability or caveat in relation to such matter is contained in the interim financial statements.
(f) For the purpose of determining (i) whether there has been a misrepresentation or breach of any representation or warranty and (ii) the amount of damage resulting therefrom, any limitation or exception to any representation or warranty with respect to or otherwise relating to the The terms "material", "materiality", "significant adverse impact", "in all material aspects" or similar qualifications, terms or phrases are disregarded.
(g) Seller makes no representations or warranties as to the amount or availability of any net operating loss, capital loss, transfer tax credit or other tax asset or liability of the Acquired Businesses in any tax period (or any part thereof). starts after closing.
Section 7.4Compensation Procedures – Claims by Third Parties
(a) In the event that an Indemnified Person makes a claim subject to the Indemnification hereunder, the Indemnified Person shall notify the Indemnified Person in writing of such event reasonably promptly and shall state in reasonable detail the factual basis for such claim (to the extent that is known). the Released Person), the specific section of this Agreement upon which the claim is based, an estimate, if possible, of the amount of damage suffered by the Released Person, and whether the claim is based on a claim by a third party (the "Notice of Damages
'), and otherwise provide the indemnifier with all relevant information relevant to the claim and in the possession of the indemnifier. The failure of a indemnified person to report or provide the indemnifier in a timely manner with relevant facts and documents relating to any Third Party Claim (a “Third Party Claim
’) shall not constitute a defense (in whole or in part) against any such party’s claim for damages, except and only to the extent that such breach results in material harm to the indemnifying person. If such event involves a third-party claim (other than an audit, litigation, or other proceeding relating to taxes or tax returns of the Acquired Businesses), the indemnifier may, at its expense (without prejudice to the indemnified individual's right to be wholly at its own expense, be elected by a to engage counsel of its choice) to assume control of the defense, settlement, settlement or settlement of any third-party claim, if the indemnifier gives prior written notice to the indemnifier of its intention 30 (thirty) days after receipt of the indemnification notice;offered
that the indemnified person will not settle or enter into any third party claim without the prior written consent of all indemnified persons (whose consent may not be unreasonably withheld, conditioned or delayed) whose consent is not required if the agreement or undertaking provides for any of the following : a The indemnification or settlement of such indemnified person shall not impose any obligations on the indemnified party other than the financial obligations for which such indemnified person is fully indemnified by the indemnifying person under the terms and limitations set forth in this Agreement. If the indemnifier does not respond to the indemnification notice within this 30 (thirty) day period, it will be deemed to have rejected the relevant third party claim. If the indemnified person does not elect to undertake the defense, settlement, adjustment, or settlement of any third-party claims for which an indemnified person would be entitled to an indemnification hereunder, the indemnified person shall have the right to continue the defense, settlement, adjustment or settlement of third party claims and the indemnified person's expenses may be deemed damages for which the indemnified person is entitled to seek compensationArticle VII
. Without the prior written consent of the indemnified person (whose consent may not be unreasonably withheld), such claim will not be settled, adjusted or compromised, nor will the defense thereto be terminated by the indemnified person.
(b) The parties agree to cooperate fully in connection with the defense, settlement or settlement of any third party claim. Regardless ofSection 7.4
Conversely, neither Seller nor any indemnified person shall unreasonably withhold or delay, settle or commit any third party claim or allow any default or consent to enter into any judgment without Seller's written consent and, in the case of Seller, Buyer, unless the plaintiff and that person grants that other party an unconditional release from any and all liability in connection with the claim of the third party.
Section 7.5Compensation Process - Other Claims
. A claim for indemnification for any matter not involving a third party claim will be made pursuant to an indemnification notice from Buyer to Seller if a Buyer's Releaseee is the Releaseee or from Seller to Buyer if the Seller's Releaseee is the compensated person. The party receiving such indemnification notice may object to such claim by filing a written notice of such objection setting out the basis for the objection in reasonable detail. If the party receiving the indemnification notice does not respond, the relevant claim will be deemed dismissed. Thereafter, the parties must work in good faith to resolve such dispute and may seek any remedy available to that party in connection with such claim, subject to the limitations set forth hereinArticle VII
Section 7.6Handling Compensation Payments
. Any payment made pursuant to the indemnification obligations under this Agreement will be treated as an adjustment to the purchase price for all tax purposes, unless applicable law requires otherwise. Any indemnification payment in respect of an indemnity claim will be made less an amount equal to any liability insurance or other income (other than income under the indemnity insurance policy) made by an indemnified person (or the Company if the Buyer made the claim on behalf of the Company) in relation to such a claim.
Section 7.7Final Determination of Claims; Pay
. Upon a final determination of indemnification by the Released Person, if such final determination is a result of (i) mutual agreement between the Releaser and the Released Person, (ii) an agreement entered into with the consent (if required) of the Released Person, or (iii ) a final judgment of a court of competent jurisdiction from which no further appeal is available, or the time limit for notice of such appeal has expired and no notice has been filed (all “final determination
”), then the amount of damages declared in the Final Determination must be paid by the Releaseee within 10 (ten) business days of the date of the Final Determination, payment of which for damages will be made in cash or by check or email transfer. Bank with immediately available funds.
Section 7.8Exclusive Cure
. Buyer and Seller acknowledge and agree that their sole and exclusive remedy after closing shall be monetary compensation for breach of any representation or warranty, representation or agreement with respect to any claim (other than claims arising out of fraud, intentional or intentional violations of any agreement) relating to the subject matter of this agreement shall comply with the provisions set forth in this agreementArticle VII
, nothing thereSection 7.8
interferes with an Indemnified Person's right to enforce his Indemnification rights hereunder;offered
that nothing in thisSection 7.8
, or any other provision of this Agreement, limits the right of any person to seek and obtain adequate legal protection to which a person is entitled or legal protection arising out of willful fraud, criminal activity, or willful breach of any agreement by any of the The parts.
Section 7.9Process of damage insurance policy
. Notwithstanding anything to the contrary, except for claims arising out of (i) willful fraud, criminal activity, or willful breach of contract and (ii) inaccuracies or breaches of important Company statements, all claims by persons held against Buyer under insurance indemnification are exempt Policy The policy is declared and taken out in accordance with the procedures set out in the Liability Insurance Policy. Any objection by the Supplier under the liability insurance to a claim for compensation made by an indemnified person of the Buyer under the liability insurance, as well as the resolution of any disputes related thereto, will also be carried out in accordance with the procedures set out in the liability insurance. Each Buyer Indemnified Person shall furnish to Seller, concurrent with delivery of the parts required under the Liability Insurance Policy, copies of any claims such indemnified person has made from Buyer under the Liability Insurance Policy.
Section 7.10research effect
. The representations, warranties and agreements of the indemnifying party and the indemnified party's right to remedies related thereto shall not be prejudiced or deemed waived as a result of any investigation made by or on behalf of the indemnified party (including any of its representatives) or the fact that the Released Party or any of its representatives knew or should have known that any such representation or warranty is, was, or could be inaccurate.
. All notices, requests, demands, demands and other communications under this Agreement must be in writing and will be deemed given if delivered in person (with written confirmation), by courier (proof of delivery) or by email. (with delivery confirmation) to the parties at the following addresses (or any other address to a party as specified in a similar notice):
If to the Seller (or to the Company on or before the Closing Date), to:
Restricted digital phone
20 Aire Street, London W1B 5AN
England, United Kingdom)
Attn.: Antonio Martí Ciruelos
with a copy to (which does not constitute notification) to:
Communication round s/n
Attn.: General Counselor
with a copy to (which does not constitute notification) to:
Goodwin Procter LLP
Calle Marshall, 601
Redwood City, CA 94063
Attention: Anthony McCusker
If to the buyer (or entity after the Closing Date), to:
c/o Vonage Holdings Corp.
Main Street 23
Holmdel, New Jersey 07733
Attn: David Pearson, Chief Financial Officer
Randy K. Rutherford, legal counsel
with a copy (which does not constitute notification) to:
Morrison & Förster LLP
250 W. 55ºOf the
New York, New York 10019
ATTENTION: Spencer D. Klein, left.
Section 8.2Disclosure Plan
. Certain information contained in the Schedules to this Agreement (the "Disclosure Plan
") is not intended to create any additional representations or warranties by Seller and should not be construed as such except to the extent expressly provided for in this Agreement and should not be construed as expanding the scope or effect of any such representations . or guarantees. Certain information set forth in the Disclosure Schedule is for informational purposes only and may not be required to be disclosed under this Agreement. The inclusion of an item in any Section of the Disclosure Addendum as an exception to a representation or warranty shall not be construed as an acknowledgment that such information is disclosed in connection with any representation or warranty made by Seller, nor does such information constitute an admission by anyone that such subject matter Represents an item, event, circumstance or event that is material to the seller or an acquiree or constitutes a material adverse effect. No modification, limitation, or waiver of any representation or warranty disclosed in any Schedule shall constitute a modification, limitation, or waiver of any other representation or warranty in this Agreement, except, and only to the extent permitted in view of the foregoing reasonably obvious is any modification, limitation or exception, which is also a modification, limitation or exception to such other representations or warranties. Disclosure of any allegation regarding an alleged breach, breach, or breach of any contractual or other obligation or law is not an admission that such breach, breach, or breach has occurred. Headings and subheadings are included in certain sections of the Disclosure Plan for convenience only and should not be construed as part of or affect the organization or interpretation of such sections of the Disclosure Plan. The information provided in the Disclosure Plan is provided solely for the purpose of disclosure to Buyer under this Agreement. By disclosing this information, neither the Acquired Companies nor the Seller expressly waive and reserve any rights under attorney-client privilege related to this information or any protections afforded under the Work Product Doctrine with respect to the matters disclosed or discussed therein.
Section 8.3binding effect
. Except as expressly stated inArticle VII
, this Agreement shall bind and be for the sole benefit of the parties and their respective successors and permitted assigns, and nothing herein, whether express or implied, is intended to confer on any other person any legal or equitable right, benefit or remedy. of any kind under or arising out of this Agreement.
Section 8.4waiver of disputes; business meetings
(a) Each party acknowledges and agrees that Goodwin Procter LLP (“Buenwin
’) acted as legal counsel to the Acquired Companies and the Seller (together with the Seller’s Affiliates (other than the Acquired Companies), together the “sales parties
’) in connection with the negotiation of this Agreement and the transaction documents and the consummation of the transactions contemplated herein.
(b) Buyer hereby acknowledges and agrees to consent to any acquired business and agree that Goodwin will represent any of the Seller Parties after the Closing, including in relation to any dispute where the interests of the Seller Parties are directly vested in Buyer and its affiliates can contradict. (including acquired companies) and even if Goodwin has represented an acquired company in a matter that is essentially a dispute. The Buyer further agrees and agrees to cause each acquired business to consent to Goodwin's disclosure to the selling parties in connection with any presentation of facts known to Goodwin arising from Goodwin's prior presentation of the acquired businesses .
(c) In connection with the foregoing, Buyer irrevocably waives and agrees that each acquired entity irrevocably waives and asserts any conflicts of interest arising out of or relating to (i) Goodwin's prior representation of the acquired entity and (ii) Goodwin's representation of the Selling Parties before and after Closing, in each case in accordance with the provision of Legal Services.
(d) Buyer further agrees, on its own behalf and, if entered into, on behalf of the Acquired Entities, that all communications in any form or format between Goodwin, an Acquired Entity and/or a Selling Party or any of their respective agents related in any way to the negotiation, documentation and completion of any transaction contemplated by this Agreement or any dispute arising out of this Agreement (collectively, the "business meetings
’) shall be deemed to be retained and owned jointly by the Selling Parties, will be controlled by the Seller on behalf of the Selling Parties and will not be passed on to or claimed by the Buyer or any acquired entity. All commercial communications privileged between attorney and client (the "Privileged business communication
’) remain privileged after closing, and the customer’s privilege and expectation of reliance thereon belong solely to the selling parties, are controlled by the seller on behalf of the selling parties, and do not pass or become to the buyer or any acquired entity claimed by this . .
(e) Notwithstanding the foregoing, in the event of a dispute between Buyer or an Acquired Business, on the one hand, and a third party that is not a party to Seller, on the other hand, Buyer or Acquired Company may exercise customer privilege to demand disclosure of Inside Business Communications to such third party to prevent;offered
that neither the buyer nor the acquired company can waive this privilege without the prior written consent of the seller. If Buyer or an Acquired Business is required by law, by governmental order or otherwise, to access or obtain a copy of all or any portion of the Commercial Communications, Buyer must do so promptly (and in any case within five (5) business days ) notify Seller in writing (including by express reference to this Section) to enable Seller to seek a protection order, and Buyer agrees to use commercially reasonable efforts to assist Seller.
(f) To the extent that files or other materials maintained by Goodwin are owned by its customers, only the selling parties retain such ownership rights and Goodwin has no obligation to disclose or disclose any such files or other materials or commercial communications. . due to an attorney-client relationship between Goodwin and an acquired company.
(g) Buyer agrees that it will not and no Acquired Business will (i) access or use any Commercial Communications, including by verifying electronic data, communications or other information, or attempting to solicit any Selling Party opting out of an attorney-client or other privilege, or otherwise asserting that the buyer or an acquired entity is entitled to waive the attorney-client or other privilege, or (ii) attempting to obtain Goodwin Business Communications . In addition to the foregoing, it shall not be a breach of any provision of this Agreement if an Acquired Company and/or a Selling Party or any of their respective agents takes any action prior to Closing to secure or remove access to the premises of such Acquired Company (or off-site backup or other facilities) of any Commercial Communication, including, but not limited to, separating, encrypting, copying, deleting, deleting, exporting, or taking possession of any Commercial Communication (any act, a "Deletion allowed
"). In the event that despite a good faith attempt by any Seller Party or any of their respective representatives to obtain permitted removal of any Commercial Communication, copy, notice, image or other form or version, or electronic trace of any portion of such Commercial Communication remains accessible or discoverable or retrievable by Buyer (each a "remaining communication
’), Buyer agrees that it will not and that any acquired entity and its agents will not intentionally use any means or attempt to access, retrieve, restore, recreate, dearchive or recreate any remaining communications for any purpose access or view remaining communications.
. Except as expressly permitted by the terms of this Agreement, neither this Agreement nor any of the rights, interests or obligations set forth herein may be assigned by either party without the prior written consent of the other party.
. If any provision of this Agreement or its application to any person or circumstance is held invalid or unenforceable, the remainder of this Agreement and the application of that provision to any other person or circumstance shall not be affected, and for this purpose it is agreed that the provisions of this Agreement are severable. Except as provided inSection 6.7(e)
, upon determination that any provision or other provision (or part thereof) is invalid, illegal or unenforceable, the parties will negotiate in good faith to modify this Agreement to reflect the parties' original intent by mutual consent as far as possible to realize agreement. agreement in an acceptable manner so that the transactions contemplated herein will be carried out to the greatest possible extent as originally contemplated.
Section 8.7Fees and Costs
. Except as expressly provided herein, all costs and expenses, including the fees and expenses of attorneys, financial advisors and auditors, arising in connection with this Agreement and the Transaction Documents and the transactions contemplated herein shall be paid by the party creating such costs and expenses. .
Section 8.8Choice of Law/Consent to Venue
. Any dispute, claim or controversy relating to, arising out of or relating to this Agreement or the negotiation, validity or performance of this Agreement or the transactions contemplated herein shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law rules. Company, Buyer and Seller irrevocably and unconditionally agree to submit to the sole and exclusive jurisdiction of the courts of Delaware (or, if such court declines jurisdiction over a specific matter or matters, a federal district court in the state of Delaware ) ( The "chosen dishes
’) for any dispute, controversy or dispute arising out of or relating to this Agreement, the negotiation, validity or performance of this Agreement, or the transactions contemplated herein (and you agree not to bring any dispute related thereto except before such courts), you hereby waive any objection to the venue of any dispute in the selected courts and agree that you will not plead in any selected court or allege that any such dispute raised there has been tried in an inconvenient venue. Each party agrees (a) to the extent that such party is not subject to service of process in the State of Delaware, to appoint and retain an agent in the State of Delaware as that party's representative for service of process, and (b) such processing service may in this Some may also be sent by registered mail, prepaid, with a validated receipt from the United States Postal Service as proof of valid delivery. Notices provided under (a) or (b) above will have the same legal force and effect as if delivered personally to that party in the State of Delaware.
Section 8.9JURY VERDICT WAIVER
. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY DISPUTES THAT MAY RESULT FROM THIS AGREEMENT OR THE TRANSACTION DOCUMENTS MAY INVOLVE COMPLICATED AND DIFFICULT PROBLEMS, AND THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY TORT OF TORT WITH THIS AGREEMENT DISPUTES ARISING, DIRECTLY OR INDIRECTLY, OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTAINED HEREIN, AND THE FORMATION, BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT OR THE TRANSACTION DOCUMENTS. Each party certifies and acknowledges that (a) no agent or other party has expressly or otherwise represented that such other party would not attempt to enforce the foregoing waiver in the event of a dispute, (b) each party understands and considers the implications of this waiver , (c) each party is voluntarily making this waiver, and (d) each party has been induced to enter into this Agreement by, among other things, each other's waivers and certificationsSection 8.9
. Either party may submit an original or copy of this Agreement to any court as written evidence of the parties' consent to waive their right to a trial by jury.
Section 8.10the change
. This Agreement may be modified by the parties only in a written instrument signed by Buyer and Seller.
. Buyer or Seller may, at any time after the Closing Date, waive, to the maximum extent permitted by law, the performance of any of the agreements contained herein by the other relevant party. Any agreement by either party regarding a waiver will be valid only if set forth in a written document signed on behalf of the party against whom such waiver is being enforced. The waiver by any party of any term or condition of this Agreement shall not be construed as a waiver of any subsequent breach or waiver of the same term or condition by that party, or as a waiver by that party of any other term or condition of this Agreement. Party. No breach of or delay in exercising any right, remedy, power or privilege under this Agreement shall operate or be construed as a waiver thereof; nor does the sole or partial exercise of any right, remedy, power or privilege contained herein preclude any further or subsequent exercise thereof or the exercise of any other right, remedy, power or privilege.
Section 8.12No deal until it works
. Notwithstanding the negotiations between the parties or the exchange of drafts of this Agreement, this Agreement shall not constitute or be deemed to constitute, or be deemed to constitute, any contract, agreement, understanding or understanding between the parties, unless and until this Agreement is executed and delivered became parties .
Section 8.13Mutual writing
. The parties here are experienced and have been represented throughout the transactions contemplated herein by attorneys who have carefully negotiated the terms of this document. Accordingly, the parties do not claim that the presumptions of any law or regulation regarding the interpretation of contracts against the drafter of a particular clause shall apply to this Agreement or any agreement or instrument made in connection therewith, and therefore waive the effects thereof
Section 8.14specific performance
. Each party acknowledges that each party's rights to conduct the transactions contemplated herein are unique and acknowledges and agrees that in the event of a breach of this Agreement by either party, pecuniary damages may be reasonable and the non-breaching party may not be reasonable is remedy. Accordingly, the parties agree that such non-infringing party shall be entitled, in addition to any other rights and remedies available to it at law or in equity, to enforce its rights and obligations of the other party other than through action, judicial proceeding, suit or proceedings damages, but also for any suit, suit, claim, or proceeding for a specific enforcement, injunction, and/or other equitable relief (without posting bond or other guarantee). Each party agrees not to object to the availability of a specific performance-based remedy to prevent or limit breaches of this contract by Seller, on the one hand, and to prevent or limit breaches of this contract by Buyer, on the other hand, the terms and provisions of this Agreement expressly enforce to prevent breach or threat of breach or to enforce the terms and obligations of the parties under this Agreement. Each party irrevocably consents to any action or proceeding in this regardSection 8.14
, yourself and in relation to your property shall generally and unconditionally fall within the personal jurisdiction of the chosen courts and you agree that you shall have no cause of action in relation theretoSection 8.14
before a court other than the chosen court. To this endSection 8.14
, each party agrees to process the service in accordance with the terms ofSection 8.8
. This Agreement and the Transaction Documents, together with Exhibits and Schedules hereto and thereto, and all documents signed by the parties at the same time or pursuant to it, constitute the parties' sole and complete agreement with respect to the subject matter hereof and shall supersede all prior and concurrent agreements. written and oral agreements and understandings between the parties relating to and arising out of the subject matter of this Agreement, other than the Confidentiality Agreement, which will survive the execution of this Agreement and any termination of this Agreement. In the event of any inconsistency between the statements in the text of this Agreement and those in the Transaction Documents, Schedules and Disclosure Schedules (save for an exception expressly set forth as such in the Disclosure Schedule), the statements in the text of this Agreement shall prevail.
(A)Release from Claims
. Seller on behalf of itself and each of its predecessors, affiliates, successors and assigns and, to the extent permitted by law, its respective past, present or future representatives (the “Liberation Party
’) irrevocably, unconditionally and forever to the acquired companies and their respective agents (the ‘released part
) all suits, causes of action, disputes, lawsuits, rights, debts, debts, sums of money, effects, settlements, obligations, costs, expenses, encumbrances, titles, accounts, particulars, agreements, contracts agreements, promises, losses, liabilities, damages, judgements , claims and demands of every kind and kind, whether known or unknown, foreseen or unforeseen, due or not, suspected or not suspected, at law or in equity (collectively "Expectations
) relating to or arising out of the rights or status of the Seller as a direct or indirect shareholder of the Acquired Businesses, except for any claims arising under (a) this Agreement or any Transaction Document to which the Transferee is a party or is a beneficiary; or (b) if such transferor was an employee of one of the Acquired Companies prior to Closing, in connection with compensation and benefits under a benefit plan of one of the Acquired Companies that are due but not paid prior to the Closing Date, or ( c ) Claims for insurance coverage that such person may have as a current or former "insured" (whether specifically named or not) under a public liability insurance policy of any of the Acquired Businesses valid for any period up to and including the Closing Date. The indemnifying party understands that this is a full and final release from any claim that might have been brought against the indemnified parties in any legal or equitable proceeding, except as expressly provided hereinSection 8.16(a)
(B)release of unknown claims
. The releasing party understands that there is a risk that after the execution and delivery of this release (i) such releasing party may suffer harm in any way caused by or related to the matters disclosed hereinSection 8.16
, but which were unknown or unforeseen at the time of entering into this Agreement, (ii) such disclosing party may discover facts or circumstances that are different from, or additional to, the facts or circumstances of which the disclosing party is now aware knows or believes they exist at related to the subject of thisSection 8.16
, and which, if known at the time of signing this Agreement, could have materially influenced the releasing party's decision to grant release under this AgreementSection 8.16
and (iii) the currently known damages may be or become greater than what the ceding party now expects or foresees. The Assigning Party waives any claim that may arise from such other or additional facts or circumstances.
. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Section 8.18execution and delivery
. This Agreement may be executed in one or more copies, all of which shall be deemed to be one and the same contract and shall come into effect when one or more such copies have been signed by each party and served on the other party. E-mail or other electronic transmissions of the other party's signatures on this Agreement are acceptable and binding.
Section 8.19No additional representation
. Buyer acknowledges that (a) none of the Sellers, the Purchased Businesses or any other person makes any representation or warranty, express or implied, with respect to the Purchased Businesses as to the accuracy or completeness of any information relating to the Purchased Businesses provided or made available to Buyer or its agents, or other matters related to the transactions contemplated herein, except as expressly provided in this Agreement, (b) Buyer does not rely on any representations or warranties of Seller, the Purchased Entities or any other person (c) none of the Sellers, Purchased Entities or any other person shall have or be subject to any liability to Buyer or any other person arising out of distribution to Buyer or use by Buyer of any information, document or material which provided to Buyer or its agents or transmitted in any management presentation or otherwise in anticipation of the transactions contemplated herein, and (d) none of the Sellers, Acquired Entities or any other person to Buyer or any other person with respect to any forecast, projections , estimates, plans or budgets of future income, expenses or expenses, future results of operations, cash flows, future cash flows or future financial condition of the acquired companies or future businesses, operations or businesses of the acquired companies;offered
, which is subject to the terms of theArticle VII
clauses (a) and (b) above shall not apply to claims of willful fraud, criminal activity or willful breach of contract.
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IN WITNESS WHEREOF the parties have caused this Share Purchase Agreement to be executed and delivered by their respective duly authorized directors as of the first date set forth above.
SELLER: TELEFÓNICA DIGITAL LTDA.
Von:/s/ Antonio Martin
Name: Antonio Martins
Position: General Manager
COMPANY: TELEFÓNICA DIGITAL, INC.
Von:/s/ Antonio Martin
Name: Antonio Martins
Position: General Manager
BUYER: NEXMO INC.
Name: David Pearson
Title: Vice President