●
Earnings Feed
Filings
Companies
Insiders
Pricing
Blog
⌘
K
Login
Start Free
$PLMR
·
8-K
Palomar Holdings, Inc. · Oct 30, 4:15 PM ET
Share
Compare
Palomar Holdings, Inc. 8-K
Loading document...
Share
More
Contents
101
Article I CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. For purposes of this Agreement, capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings set forth below.
Section 1.2 Terms Defined Elsewhere. Each of the following terms has the meaning ascribed to such term in the Article or Section set forth opposite such term:
Article II PURCHASE AND SALE TRANSACTIONS
Section 2.1 Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell, transfer, convey, assign and deliver to Buyer, and Buyer shall purchase from Seller, the Interests, free and clear of all Liens other than Securities Liens.
Section 2.2 Purchase Price. The aggregate consideration (to be delivered in the manner described in Section 2.6(c)(iii)(D)) for the Interests shall be an aggregate amount equal to the Initial Purchase Price. The Initial Purchase Price shall be subject to adjustment after the Closing pursuant to Section 2.4.
Section 2.3 Estimated Closing Statement. At least five (5) Business Days prior to the Closing Date, the Company shall prepare and deliver to Buyer a statement (the “Estimated Closing Statement”) setting forth the Company’s good faith estimate of: (i) Book Value (the “Estimated Book Value”), (ii) the aggregate amount of Indebtedness as of immediately prior to the Closing (the “Estimated Indebtedness”), (iii) the aggregate amount of Transaction Expenses (the “Estimated Transaction Expenses”), and (iv) the resulting calculation of the Initial Purchase Price. The Company and Seller shall consider in good faith any comments provided by Buyer to the Estimated Closing Statement, and the Company and Seller shall (and shall cause their respective Affiliates and representatives to) reasonably cooperate with Buyer, its Affiliates and their respective representatives in connection with their review of the Estimated Statement; provided that, for the avoidance of doubt, no failure by Buyer to object to, or comment on, any item set forth in the Estimated Statement shall prejudice Buyer with respect to any post-Closing adjustments pursuant to Section 2.4 or the resolution thereof.
Section 2.4 Post-Closing Adjustment.
Section 2.5 Closing Transactions. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place by exchange of signature pages by email at 9:00 a.m. Eastern Time on the third Business Day after the conditions set forth in Section 2.6 have been satisfied, or, if permissible, waived by the Party entitled to the benefit of the same (other than those conditions which by their terms are required to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing)(such satisfaction or waiver, the “Closing Conditions Satisfaction”), provided that the Closing Date shall occur on the last day of the calendar month (or in the case whereby the last day of the month occurs on a Saturday or Sunday, the following Monday, or in the case of the last day of the month falling on a federal holiday, the following day) in which the Closing Conditions Satisfaction occurs, or on such other date as the Parties mutually agree (the date upon which the Closing occurs, the “Closing Date”); provided, however, that notwithstanding the satisfaction or waiver Section 2.6, unless otherwise agreed in writing by Buyer, Buyer shall not be required to effect the Closing on or prior to January 1, 2026. The Closing shall be deemed effective for all purposes (i) as of 11:59 p.m. Eastern Time on the Closing Date if the Closing Date is the final day of the calendar month, or (ii) 12:01 a.m. Eastern Time on the Closing Day if the Closing Date is on the first Business Day following the final day of the calendar month, in each case in accordance with this Section 2.5 or on such other date as the Parties mutually agree (the date upon which the Closing occurs, the “Closing Date”).
Section 2.6 Conditions to the Obligations of the Parties.
Section 2.7 Withholding. Buyer, the Company, the Escrow Agent and any other applicable withholding agent (each, a “Withholding Agent”) shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement, such amounts as the Withholding Agent is required to deduct and withhold with respect thereto under the Code or any other provision of applicable Tax Law. To the extent that amounts are so deducted and withheld, (and unless such amounts are not timely remitted to the appropriate Governmental Entity within the statutorily required period), such amounts shall be treated as having been paid to the Person in respect of which such deduction and withholding were made. Buyer shall (other than withholding attributable to Seller’s failure to comply with Section 2.6(b)(iii)(D)) use commercially reasonable efforts to notify Seller of any anticipated withholding with respect to amounts payable to Seller at least five (5) Business Days prior to the date of such withholding and cooperate with the Seller in good faith to minimize the amount of any applicable withholding, including through accepting any relevant forms validly establishing under applicable Law an entitlement to an exemption or reduction of such withholding.
Article III REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY
Section 3.1 Organization; Authority; Enforceability. The Company is duly formed, validly existing, and in good standing (or the equivalent) under the Laws of its jurisdiction of formation. The Company is qualified to do business and is in good standing (or the equivalent) in the jurisdictions in which the conduct of its business or locations of its assets or properties makes such qualification necessary, except where the failure to be so qualified to be in good standing (or the equivalent) would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The Company has the corporate power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is, or as contemplated by this Agreement, to become a party and to consummate the transactions contemplated hereby and thereby. The sole equityholder of the Company has duly approved this Agreement and the transactions contemplated hereby and has duly authorized the execution and delivery of this Agreement and each Ancillary Agreement to which it is, or as contemplated by this Agreement, to become a party. No other corporate proceedings on the part of the Company are necessary to approve and authorize the execution and delivery of this Agreement and each Ancillary Agreement to which it is, or as contemplated by this Agreement, to become a party and the consummation of the transactions contemplated hereby and thereby, and this Agreement and each Ancillary Agreement to which it is, or as contemplated by this Agreement, to become a party shall not violate the Governing Documents of the Company. This Agreement and each Ancillary Agreement has been duly executed and delivered by the Company and constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles.
Section 3.2 Noncontravention. Except as set forth in Schedule 3.2, the execution, delivery and performance by the Company and Seller of this Agreement and each Ancillary Agreement to which they are, or as contemplated by this Agreement, to become a party did not and will not (a) conflict with or result in any breach of any of the material terms, conditions or provisions of, (b) constitute a default under (whether with or without the giving of notice, the passage of time or both), (c) result in a violation of, (d) give any third party the right to terminate, cancel or accelerate, or cause any termination, cancellation or acceleration of, any material right or material obligation under, (e) result in the creation of any Lien upon the Interests under, or (f) other than the filings required pursuant to Section 6.2, require any approval from, or filing with or Permit, consent, or require the giving of any notice to, any Governmental Entity under or pursuant to, the Governing Documents or any Law, order or Material Contract to which the Company is bound or subject, except, with respect to any Law, order or Contract. Except as disclosed on Schedule 3.2(b), neither Seller nor the Company are subject to, or a party to, any Lien, Permit, instrument, Law, Order, or any other restriction of any kind or character, that (a) has had a Material
Adverse Effect, or (b) would reasonably be expected to prevent consummation of the transactions contemplated by this Agreement and the Ancillary Agreements or compliance by the Company, or Seller with the terms, conditions and provisions of this Agreement and the Ancillary Agreements to which the Company or Seller are, as contemplated by this Agreement, to become a party, or the continued operation of the business of the Company upon consummation of the transactions contemplated in this Agreement on the Closing Date on substantially the same basis as historically operated.
Section 3.3 Capitalization.
Section 3.4 Financial Statements.
Section 3.5 No Material Adverse Effect. There has been no Material Adverse Effect since the date of the Latest Balance Sheet.
Section 3.6 Absence of Certain Developments. Except as set forth on Schedule 3.6 or as described in the audited Financial Statements, since the date of the Latest Balance Sheet, other than as required by applicable Laws, the Company has not:
Section 3.7 Real Property.
Section 3.8 Tax Matters.
Section 3.9 Contracts.
Section 3.10 Intellectual Property.
Section 3.11 Litigation. Except as set forth in Schedule 3.11, there is no, and has not in the last three (3) years been any, material Proceeding pending or, to the Knowledge of the Company, threatened before any Governmental Entity against (or otherwise affecting) the Company, or any of their properties or assets, or against any director, officer, employee or equity holder of the Company in his or her capacity as such, and no event has occurred or circumstance exists that would reasonably be expected to give rise to or serve as a basis for any of the foregoing. Seller has delivered to Buyer true, correct and complete copies of each settlement or similar agreement entered into by the Company (i) during the three (3) year period prior to the date of this Agreement or (ii) with respect to which any material obligation of any party thereto is outstanding as of the date of this Agreement. Neither Seller nor the Company, any director, officer, manager, key employee, equity holder of the Company, in his or her capacity as such, nor the Company’s assets, are subject to any material outstanding Order.
Section 3.12 Brokerage. Except for amounts owed to J.P. Morgan, there are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of the Company.
Section 3.13 Labor Matters.
Section 3.14 Employee Benefit Plans.
Section 3.15 Insurance. As of the date hereof, the Company has in place policies of insurance in amounts and scope of coverage as set forth in Schedule 3.15 (collectively, the “Policies”) and each such Policy is in full force and effect and all premiums are currently paid in accordance with the terms of such Policy. Schedule 3.15 also sets forth a list and description of
all claims made by the Company under the Policies (or any other insurance policies which were in effect) within the past three (3) years. With respect to each Policy, Seller has delivered to Buyer a true and complete copy of each such Policy (including all amendments and endorsements thereto). There is no claim by the Company pending under any of such Policies as to which coverage has been questioned, denied, or disputed by the issuers or underwriters of such Policies or bonds of any of the Policies. Current and historical limits of liability under the Policies have not been exhausted and are not impaired. None of the insurers of the Company have issued a reservation of rights letter in the defense of claims. The Company does not have any liability due for any retrospective premium adjustment, audit premium adjustment, experience-based liability or loss sharing cost adjustment under any of the Policies. There have been no gaps in the Company’s insurance coverage. The Company has complied in all material respects with the terms and conditions of all of the Policies. Upon Closing, the Policies will insure the Company and their Employee Benefit Plans, assets, business, operations, employees, officers and directors, as applicable, to the same extent as they insured the Company and their Plans, assets, business, operations, employees, officers and directors as applicable, prior to the Closing. The Policies have been and are of the type and in amounts customary for the business of the Company to insure against the risks to which the Company, its properties and assets are normally exposed in the operation of the business of the Company. During the 12 months immediately prior to the date hereof, the Company has not received any notice threatening termination of, or premium increase with respect to, any of the Policies, and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements will not result in any termination of, or premium increase with respect to, any of the Policies or any inability to assess claims that were incurred prior to Closing under any of the Policies. Since the last renewal date of any Policy, there has not been any material adverse change in the relationship of the Company on the one hand, and its insurers, on the other hand, on the premiums payable pursuant to such Policies.
Section 3.16 Compliance with Laws; Permits; Insurance Regulatory Matters; Investment Assets.
Section 3.17 Environmental Matters. (i) The Company is, and has been for the past six (6) years, in compliance in all material respects with all applicable Environmental Laws; (ii) the Company maintains, and is in compliance in all material respects with, all material permits required by applicable Environmental Laws for the ownership and use of its assets and properties and the conduct of its business as currently operated; (iii) during the three (3) years immediately prior to the date hereof, the Company has not received any written notice regarding any actual or alleged material violation by the Company of, or material Liabilities of the Company under, applicable Environmental Laws, which notice remains unresolved; (iv) Company has not treated, disposed of or released any Hazardous Materials on the Leased Real Property in quantities or in concentrations that require remediation by the Company pursuant to applicable Environmental Laws, where the cost of such remediation would reasonably be expected to result in a material Liability to the Company under Environmental Laws and (v) there are no Proceedings pending against the Company under applicable Environmental Laws which, if adversely determined, would reasonably be expected to result in a material Liability of the Company, and the Company is not
subject to any outstanding Order of any Governmental Entity under applicable Environmental Laws which would reasonably be expected to result in a material Liability to the Company.
Section 3.18 Title to Assets. The Company has good and marketable title to, or, in the case of leased or subleased assets, a valid and binding leasehold interest in, or, in the case of licensed assets, a valid license in, all of its material assets (whether real, personal, tangible or intangible) that are used by the Company, free and clear of all Liens other than Permitted Liens.
Section 3.19 Condition of Assets. All equipment and vehicles listed therein are in good condition and repair, ordinary wear and tear excepted, and are usable in the Ordinary Course of Business, and no defects in any of the foregoing exist which would reasonably be expected to materially impair the business of the Company as currently conducted.
Section 3.20 Affiliate Transactions. Except for employment relationships, the provision of compensation and benefits to employees of the Company, Schedule 3.20 sets forth a list of all arrangements, transactions, services provided to the Company by its Affiliates and by the Company to its Affiliates. Except for employment agreements, the Governing Documents of the Company, or as disclosed in Schedule 3.20, there are no loans, Leases, commitments, guarantees, agreements, Contracts or other transactions or arrangements (oral or written) between the Company, on the one hand, and any Affiliate thereof (other than Affiliates that are members of the Company) or any current or former director, officer, stockholder/equity holder, or employee of the Company or any immediate family member or Affiliate of any of the foregoing, on the other hand. Except as set forth on Schedule 3.20, no Seller officer, director, manager or Affiliate of the Company or any of their respective Affiliates possesses, directly or indirectly, any ownership or pecuniary interest in, or is a trustee, director, manager, officer, Affiliate, or employee of, any Person that is a seller to, or supplier, lessor, lessee, licensor, or competitor of the Company, including any counterparty to any Contract set forth on Schedule 3.9.
Section 3.21 Accounts Receivable. The Accounts Receivable outstanding on the date hereof represent sales actually made or services actually performed or to be performed in the Ordinary Course of Business in bona fide, arms-length transactions completed in accordance with the terms and provisions contained in any documents relating thereto and in compliance with applicable Laws. The Company has not factored or discounted, or agreed to factor or discount, any Accounts Receivable, except as would not be expected to be material to the Company, taken as a whole.
Section 3.22 Data Privacy.
Article IV REPRESENTATIONS AND WARRANTIES OF SELLER
Section 4.1 Organization; Authority; Enforceability. Seller is a limited liability company duly formed, validly existing and in good standing under the Laws of the State of Delaware. Seller is qualified to do business as a foreign entity in each jurisdiction in which the character of its properties, or in which the transaction of its business, makes such qualification necessary, except where the failure to be so qualified and in good standing (or equivalent) would not be reasonably likely to have a material adverse effect on Seller’s ability to consummate the transactions contemplated by this Agreement. Seller has the limited liability company power and
authority to execute and deliver this Agreement and each Ancillary Agreement to which it is, or as contemplated by this Agreement, to become a party and to consummate the transactions contemplated hereby and thereby. No other limited liability company proceedings on the part of Seller are necessary to approve and authorize the execution and delivery of this Agreement and each Ancillary Agreement to which it is, or as contemplated by this Agreement, to become a party and the consummation of the transactions contemplated hereby and thereby. This Agreement and each Ancillary Agreement to which it is, or as contemplated by this Agreement, to become a party has been duly executed and delivered by Seller and constitutes the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles.
Section 4.2 Ownership. Seller holds all of the Interests free and clear of all Liens other than Securities Liens. Except as set forth on Schedule 4.2, Seller is not a party to (a) any option, warrant, purchase right or other Contract or commitment (other than this Agreement) that could require Seller to sell, transfer or otherwise dispose of any of the Interests or (b) any voting trust, proxy, or other Contract or understanding with respect to the voting of the Interests.
Section 4.3 Noncontravention. The consummation of the transactions contemplated hereby by Seller do not (a) conflict with or result in any breach of any of the terms, conditions or provisions of, (b) constitute a default under (whether with or without the giving of notice, the passage of time or both), (c) result in a violation of, (d) give any third party the right to terminate or accelerate, or cause any termination or acceleration of, any material right or obligation under, (e) result in the creation of any Lien upon the Interests under, or (f) other than the filings required pursuant to Section 6.2, require any approval from, or filing with, any Governmental Entity under or pursuant to, the Certificate of Formation or Limited Liability Company Agreement of Seller, or any Law, order or Contract to which Seller is bound or subject.
Section 4.4 Litigation. There is no Proceeding pending before any Governmental Entity, against or affecting Seller or any of its properties or rights with respect to the transactions contemplated hereby.
Section 4.5 Brokerage. Except for amounts owed to J.P. Morgan in connection with the transactions contemplated by this Agreement and other arrangements for which Seller shall be solely responsible or which will be included in the calculation of Estimated Transaction Expenses, there are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of Seller.
Article V REPRESENTATIONS AND WARRANTIES OF BUYER
Section 5.1 Organization; Authority; Enforceability. Buyer is a corporation duly formed under the Laws of the State of Delaware, with the requisite power and authority to enter into this Agreement and to perform its obligations hereunder. The execution, delivery and performance of this Agreement and the other agreements contemplated hereby to be executed and delivered by Buyer and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Buyer and no other proceedings on the part of Buyer are necessary to authorize the execution, delivery or performance of this Agreement or the other agreements contemplated hereby. This Agreement and the other agreements contemplated hereby to be executed and delivered by Buyer constitute valid and binding obligations of Buyer, enforceable against Buyer in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles.
Section 5.2 Brokerage. Except for arrangements for which Buyer shall be solely responsible, there are no claims for brokerage commissions, finders’ fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of Buyer.
Section 5.3 Litigation. There is no Proceeding pending before any Governmental Entity, against or affecting Buyer or any of its properties or rights with respect to the transactions contemplated hereby.
Section 5.4 Solvency. After giving effect to the transactions contemplated by this Agreement, including the receipt of any financing, and any repayment or refinancing of debt, payment of all amounts required to be paid in connection with the consummation of the transactions contemplated hereby, and payment of all related fees and expenses, Buyer and the Company will be Solvent immediately after consummation of the transactions contemplated hereby.
Section 5.5 Noncontravention. The consummation of the transactions contemplated hereby by Buyer do not (a) conflict with or result in any breach of any of the terms, conditions or provisions of, (b) constitute a default under (whether with or without the giving of notice, the passage of time or both), (c) result in a violation of, (d) give any third party the right to terminate or accelerate, or cause any termination or acceleration of, any material right or obligation under, or (e) other than the filings required pursuant to Section 6.2, require any approval from, or filing with, any Governmental Entity under or pursuant to, the Governing Documents of Buyer, or any Law, order or Contract to which Buyer is bound or subject. To the Knowledge of Buyer, no fact or circumstance relating to Buyer or its Affiliates (including their plans for funding the purchase of the Interests or financing or operating the Company after the Closing) or the investors in Buyer or its Affiliates, exists that would render Buyer or its Affiliates, as applicable, unable promptly to obtain any approval, authorization or consent of any Governmental Entity required to be obtained to consummate the transactions contemplated hereby, or prevent or delay the granting of any such approval, authorization or consent.
Section 5.6 Investment Intent.
Section 5.7 Funds. Buyer understands and acknowledges that receipt or availability of funds or financing by Buyer or any of its Affiliates shall not be a condition to Buyer’s obligations hereunder. As of the date hereof and as of the Closing Date, Buyer will have sufficient unrestricted cash on hand or other sources of immediately available funds to enable Buyer to purchase the Interests at the Closing in accordance with the terms and conditions of this Agreement and to make all other necessary payments of fees and expenses in connection with the transactions contemplated hereby, including any adjustment payments to the Initial Purchase Price pursuant to Section 2.4. Buyer represents and warrants that all funds paid to Seller shall not have been derived from, or constitute, either directly or indirectly, the proceeds of any criminal activity under the anti-money laundering Laws of the United States.
Section 5.8 Competing Assets. Except as listed on Schedule 5.8, neither Buyer nor any of its Affiliates hold five percent (5%) or more of the voting securities or non-corporate interests of any entity that directly competes with the Company; as of the date hereof, neither Buyer nor any of its Affiliates have entered into any agreements to acquire five percent (5%) or more of the voting securities or non-corporate interests of any entity that directly competes with the Company, and, as of the date that is twenty-five (25) Business Days following the date hereof, neither Buyer nor any of its Affiliates has agreed to submit the Notification and Report Form under the HSR Act to acquire five percent (5%) or more of the voting securities or non-corporate interest of any entity that directly competes with the Company.
Section 5.9 No Other Representations or Warranties. In entering into this Agreement, Seller and the Company has each relied solely upon the specific representations and warranties expressly made by Buyer in Article V, Seller (for itself and on behalf of the Seller Indemnified Parties and its Affiliates) specifically disclaims that it is relying upon or has relied upon any such other representations or warranties that may have been made by any Person, and acknowledges that the Buyer and its Affiliates hereby specifically disclaim any such other representation or warranty made by any Person. Without limiting the generality of the foregoing, (i) Buyer makes no representation or warranty regarding any third party beneficiary rights and (ii) none of the documents, information or other materials provided to Seller or the Company at any time or in any format by Buyer or any of its Affiliates or representatives constitute legal advice, and Seller waives all rights to assert that it received any legal advice from Buyer or any of its Affiliates, or any of their respective representatives or counsel, or that it had any sort of attorney client relationship with any of such Persons.
Section 5.10 Customers and Suppliers. Neither Buyer nor any of its respective employees, agents, representatives, financing sources or Affiliates has, without the prior written consent of the Company, directly or indirectly contacted any officer, director, employee, shareholder, supplier, distributor, customer or other material business relation of the Company prior to the date hereof for the purposes of discussing one or more members of the Company in connection with the transactions contemplated hereby.
Section 5.11 Compliance with Applicable Laws. Buyer is and has been in compliance with all applicable Laws, except as would not, individually or in the aggregate, reasonably be expected to impair materially the ability of Buyer to consummate any of the transactions contemplated hereby. Buyer has not received any written notice or other written communication from any Governmental Entity regarding any actual or alleged violation of, or failure on the part of Buyer to comply with, any applicable Laws, in each case other than any such item that would not, individually or in the aggregate, reasonably be expected to impair materially the ability of Buyer to consummate any of the transactions contemplated hereby.
Article VI ADDITIONAL AGREEMENTS
Section 6.1 Interim Covenants.
Section 6.2 Antitrust Laws; Insurance Regulatory Applications.
Section 6.3 R&W Insurance Policy.
Section 6.4 No Survival; Exclusive Remedy.
Section 6.5 Certain Tax Matters.
Section 6.6 Press Release. Except as required by applicable Law, any press or other public release or announcement concerning the transactions contemplated hereby shall not be issued without the consent of each of Buyer and Seller, which consent shall not be unreasonably withheld, conditioned or delayed. Except in connection with the procurement of any necessary consents, approvals, Payoff Letters and similar documentation, the Parties shall keep the terms of this Agreement confidential, except to the extent required by applicable Law and except that the Parties may disclose such terms to their respective accountants, legal advisors, equityholders and other representatives as necessary in connection with the ordinary conduct of their respective businesses (so long as such Persons agree to keep the terms of this Agreement confidential).
Section 6.7 Expenses. Except as otherwise expressly provided in this Agreement, each Party shall be liable for and pay all of its own costs and expenses (including attorneys’, accountants’ and investment bankers’ fees and other out-of-pocket expenses) in connection with the negotiation and execution of this Agreement, the performance of such Party’s obligations hereunder and the consummation of the transactions contemplated hereby; provided; however, that
fees, costs and expenses incurred in respect of the financing by Buyer and its Affiliates of the transactions contemplated hereby shall be borne solely by Buyer.
Section 6.8 Further Assurance. Each Party shall execute and deliver such further instruments of conveyance and transfer and take such additional action as reasonably requested by any other Party to effect, consummate, confirm or evidence the transactions contemplated hereby and carry out the purposes of this Agreement.
Section 6.9 Mutual Release. Effective upon the Closing, (i) Seller shall release and discharge Buyer, its Affiliates and the Company and their respective equityholders, officers, directors, managers, employees, agents, partners, members, counsel, accountants, financial advisors, engineers, consultants, other advisors, successors and assigns (each, a “Buyer Released Party”) from any and all obligations and Liabilities to Seller as an equityholder (whether directly or indirectly) of the Company of any kind or nature whatsoever, as to facts, conditions, transactions, events or circumstances prior to the Closing, and Seller shall not seek to recover any amounts in connection therewith from any Buyer Released Party and (ii) Buyer, its Affiliates and the Company shall release and discharge Seller and its Affiliates and their respective equityholders, officers, directors, managers, employees, agents, partners, members, counsel, accountants, financial advisors, engineers, consultants, other advisors, successors and assigns, from any and all obligations and Liabilities of any kind or nature whatsoever, as to facts, conditions, transactions, events or circumstances prior to the Closing, and Buyer shall ensure that the Company shall not seek to recover any amounts in connection therewith from Seller or of its Affiliates and their respective equityholders, officers, directors, managers, employees, agents, partners, members, counsel, accountants, financial advisors, engineers, consultants, other advisors, successors or assigns; provided, that this Section 6.9 shall not affect the rights of Seller, Buyer or the Company under this Agreement or any Ancillary Agreement.
Section 6.10 Directors and Officers.
Section 6.11 Access to Books and Records. For a period of six (6) years immediately following the Closing (except pursuant to the Company’s bone fide record and archive retention policies as in effect prior to the Closing), Buyer and its Affiliates shall (at its or their sole expense) make or cause to be made available to Seller all books, records and documents of the Company (and the assistance of employees responsible for such books, records and documents) during regular business hours as may be reasonably necessary for (a) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (b) preparing reports to Governmental Entities or (c) such other purposes for which access to such documents is determined by such Seller to be reasonably necessary, including preparing and delivering any accounting or other statement provided for under this Agreement, or the determination of any matter relating to the rights and obligations of Seller or any of their Affiliates under this Agreement and any documents referred to herein. Buyer shall (at its sole expense) cause the Company to maintain and preserve all such, books, records and other documents for the greater of (i) six (6) years after the Closing Date and (ii) any applicable statutory or regulatory retention period, as the same may be extended and, in each case, shall offer to transfer such records to Seller, at the end of any such period. Notwithstanding anything herein to the contrary, Buyer shall not be required to provide any access or information to Seller, their Affiliates or any of their respective representatives which Buyer reasonably believes it or, after the Closing, the Company is or are prohibited from providing to Seller, their Affiliates or their respective representatives by reason of applicable Law, which, for the avoidance of doubt, (A) constitutes or allows access to information protected by attorney-client privilege, or which Buyer or the Company is required to keep confidential or (B) could prevent access by reason of a Contract with a third party or which would otherwise expose Buyer, any of its Affiliates (including, after the Closing, the Company) to a material risk of Liability.
Section 6.12 Insurance. Buyer shall be solely responsible from and after the Closing for providing insurance to the Company and its business for events or occurrences occurring after the Closing. Buyer acknowledges that all insurance arrangements maintained by Seller and its Affiliates (other than the Company) for the benefit of the Company and its Affiliates, if any, will be terminated as of the Closing and no further business interruption, property or Liability shall be covered under any such insurance arrangements.
Section 6.13 Employee Matters. During the period beginning on the Closing Date and ending on the first anniversary of the Closing Date, Buyer shall, or shall cause the Company to,
provide each employee of the Company (“Continuing Employees”) with a base annual salary or wage rate that substantially similar to the base annual salary or wage rate that is in effect for such Continuing Employee immediately prior to the Closing Date, bonus and incentive compensation opportunities that are substantially similar to the bonus and incentive compensation opportunities provided to such employees immediately prior to the Closing Date and employee benefits that are comparable in the aggregate to the benefits provided under the Company Employee Benefit Plans. Buyer further agrees that, from and after the Closing Date, Buyer shall, or shall cause the Company to, grant each Continuing Employee with credit for any and all service with the Company (and any predecessor thereof) earned prior to the Closing Date (a) for eligibility and vesting purposes and (b) for purposes of vacation and paid time off accrual and severance benefit determinations under each benefit or compensation plan, program, agreement or arrangement that may be established or maintained by Buyer, the Company or any of its or their Subsidiaries on or after the Closing Date (the “New Plans”). In addition, Buyer hereby agrees that Buyer shall, or shall cause the Company to use commercially reasonable efforts to, (i) cause to be waived all pre-existing condition exclusion and actively-at-work requirements and similar limitations, eligibility waiting periods and evidence of insurability requirements under any New Plans to the extent waived or satisfied by a Continuing Employee under any Company Employee Benefit Plan as of the Closing Date and (ii) cause any deductible, co-insurance and out-of-pocket covered expenses paid on or before the Closing Date by any Continuing Employee (or covered dependent thereof) to be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date under any applicable New Plan in the year of initial participation. Nothing contained herein, express or implied, is intended to confer any rights (including any third-party beneficiary rights), remedies or claims upon any employee of the Company, any Continuing Employee or any other Person, other than the Parties to this Agreement, or shall constitute an amendment to or any other modification of any New Plan or Company Employee Benefit Plan. Notwithstanding anything to the contrary herein, Buyer and the Company shall be solely responsible for any obligations arising under Section 4980B of the Code with respect to all “M&A qualified beneficiaries” as defined in Treasury Regulation Section 54.4980B-9. The Company shall adopt written resolutions of its board of directors terminating the Company Retirement Savings Plan (the “401(k) Plan”) effective as of the day immediately preceding the Closing Date, but contingent on the occurrence of the Closing fully fund all employer contributions (with 1000 hour and last day requirement waived) and terminate its 401(k) plan by proper board action and plan amendments effective no later than the day before the Closing Date, and shall fully fund all employer contributions (with 1000 hour and last day requirement waived). Buyer shall use commercially reasonable effort to establish or make available to Continuing Employees a replacement 401(k) plan effective as of the Closing Date and shall cause such plan to accept rollovers of account balances (including outstanding plan loans) of Continuing Employees from the 401(k) Plan, at the Continuing Employee’s election.
Section 6.14 Investigation by Buyer; No Other Representations; Non-Reliance of Buyer. Buyer has substantial familiarity with the business of the Company and fully understands the risks inherent therewith. Furthermore, Buyer (for itself and on behalf of the Buyer Indemnified Parties and its Affiliates, representatives and financing sources) has conducted an independent investigation, verification, review and analysis of the business, operations, assets, Liabilities, results of operations, financial condition, technology and prospects of the Company and Buyer, its Affiliates and their advisors and representatives have had access to the personnel, properties, premises and records of the Company for such purpose. In entering into this Agreement, Buyer
has relied solely upon the aforementioned investigation, review and analysis and not on any factual representations or opinions of the Company or Seller or any of the Company’s or Seller’s employees, directors, managers, officers, representative of any other Person, and, except for the specific representations and warranties expressly made by the Company and Seller in Article III and Seller in Article IV (in each case, as modified by the Disclosure Schedules) and the representations and warranties in the Ancillary Agreements, Buyer (for itself and on behalf of the Buyer Indemnified Parties and its Affiliates, representatives and financing sources): (a) specifically acknowledges that neither the Company, Seller nor any other Person is making nor has made any representation or warranty, expressed or implied, at law or in equity, in respect of Seller, the Company or the Company’s business, assets, risks and other incidents of the Company, Liabilities, operations, prospects or condition (financial or otherwise), including with respect to merchantability or fitness for any particular purpose of any assets and whether the Company possesses sufficient real property or personal property to operate its business, the nature or extent of any Liabilities, the prospects of the business, the effectiveness or the success of any operations, or the accuracy or completeness of any confidential information memoranda, documents, projections, material or other information (financial or otherwise) regarding the Company furnished to Buyer or its Affiliates or their advisors or representatives or made available to Buyer, its Affiliates or their advisors or representatives in any data rooms, management presentations or in any other form in expectation of, or in connection with, the transactions contemplated hereby, and the Interests are being transferred through the sale of the Interests “as is, where is, with all faults”; (b) specifically disclaims that it is relying upon or has relied upon any such other representations or warranties that may have been made by any Person, and acknowledges that the Company, Seller and its Affiliates hereby specifically disclaim any such other representation or warranty made by any Person; (c) specifically disclaims any obligation or duty by the Company, Seller or any of its Affiliates or any other Person to make any disclosures of fact not required to be disclosed pursuant to the specific representations and warranties set forth in Article III and Article IV and (d) specifically acknowledges Buyer is entering into this Agreement and acquiring the Interests subject only to the specific representations and warranties set forth in Article III and Article IV and in the Ancillary Agreements. Without limiting the generality of the foregoing, (i) neither the Company nor Seller makes any representation or warranty regarding any third party beneficiary rights or other rights which Buyer might claim under any studies, reports, tests or analyses prepared by any third parties for the Company or any of their Affiliates, even if the same were made available for review by Buyer or its Affiliates or representatives and (ii) none of the documents, information or other materials provided to Buyer at any time or in any format by the Company, Seller or any of their Affiliates or representatives constitute legal advice, and Buyer waives all rights to assert that it received any legal advice from the Company, Seller or any of their Affiliates, or any of their respective representatives or counsel, or that it had any sort of attorney‑client relationship with any of such Persons. Seller makes no express or implied representation or warranty hereby or otherwise under this Agreement that the reserves held by or on behalf of the Company or the assets supporting such reserves have been or will be adequate or sufficient for the purposes for which they were established, that the reinsurance recoverables taken into account in determining the amount of such reserves will be collectible or whether such reserves were calculated, established or determined in accordance with any actuarial, statutory or other standard, or concerning any financial statement “line item” or asset, liability or equity amount that would be affected by any of the foregoing.
Section 6.15 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or limited liability company, each Party hereto, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder and that it has no rights of recovery hereunder against, and no recourse hereunder or under any documents, agreements, or instruments delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative or employee of any Party (or any of their successors or permitted assignees), against any former, current, or future general or limited partner, manager, stockholder or member of any Party (or any of their successors or permitted assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, stockholder, manager or member of any of the foregoing, but in each case not including the Parties (each, but excluding for the avoidance of doubt, the Parties, a “Non-Party Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, Contract or otherwise) by or on behalf of such party against the Non-Party Affiliates, by the enforcement of any assessment or by any Proceeding, or by virtue of any statute, regulation or other applicable Law, or otherwise; it being expressly agreed and acknowledged that no personal Liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations of the applicable party under this Agreement or the transactions contemplated hereby, under any documents or instruments delivered contemporaneously herewith, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any claim (whether in tort, Contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation; provided that no party to any Ancillary Agreement shall be deemed a Non-Party Affiliate with respect to such documents to which it is a party. Except to the extent otherwise expressly set forth in, and subject in all cases to the terms and conditions of and limitations herein, this Agreement may only be enforced against, and any claim or cause of action of any kind based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, may only be brought against the entities that are expressly named as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Party Affiliate is expressly intended as a third-party beneficiary of this Section 6.15.
Section 6.16 Termination of Affiliate Agreements. Subject to Section 6.10, prior to or concurrently with the Closing, the Company shall terminate all Contracts between Seller or any of its Affiliates, on the one hand, and the Company, on the other hand, in each case solely to the extent set forth on Schedule 2.6(b)(v)(H) and existing at the Closing without any further liability or obligation of the Company thereunder.
Section 6.17 Section 280G. Prior to the Closing Date, the Company shall use reasonable best efforts to (a) secure from any Person who (i) is a “disqualified individual” (as defined in Section 280G of the Code) and (ii) has a right or potential right to any payments and/or benefits in connection with the transactions contemplated by this Agreement that could be deemed to constitute “parachute payments” pursuant to Section 280G of the Code, a waiver of all or a portion of such Person’s rights to any such payments and/or benefits, such that all remaining payments
and/or benefits applicable to such Person shall not be deemed to be “parachute payments” pursuant to Section 280G of the Code (such waived portion of any payments and/or benefits, “Waived 280G Benefits”), and (b) for all such obtained waivers, submit for approval by the shareholders of the Company entitled to vote on such matters the Waived 280G Benefits, to the extent and in the manner required under Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code. The Buyer shall provide the Company no later than ten (10) days prior to the Closing Date with all information reasonably necessary to determine whether any benefits provided under any agreement negotiated or entered into by or on behalf of the Buyer or any of its Affiliates, when combined with any other payments or benefits, could constitute “parachute payments” pursuant to Section 280G of the Code (including summaries of any such arrangements and calculations as to the value of any such arrangements for purposes of Section 280G of the Code). The Company shall not pay or provide or permit any disqualified individual to retain any of the Waived 280G Benefits, if such Waived 280G Benefits are not approved by the shareholders of the Company as contemplated above. No later than five (5) days before the Closing Date, the Company shall provide to Buyer or its counsel drafts of the consent, waiver, disclosure statement and calculations necessary to effectuate the approval process and shall incorporate all of Buyer’s reasonable comments. Prior to the Closing Date, the Company shall deliver to Buyer evidence that (x) a vote of the Company’s shareholders was obtained in conformance with Section 280G of the Code and the regulations thereunder, or (y) such requisite Company shareholder approval has not been obtained with respect to the Waived 280G Benefits, and, as a consequence, the Waived 280G Benefits have not been and shall not be retained, paid or provided. Notwithstanding anything to the contrary in this Section 6.17, to the extent Buyer has provided misinformation, or Buyer’s omission of information has resulted in misinformation, with respect to any “parachute payments”, there shall be no breach of this Section 6.17 with respect to any payment or benefit provided to any “disqualified individual” with respect to whom such misinformation or omission was provided
Section 6.18 Company IT. Prior to the Closing, the Seller shall, and shall cause the Company to, use their respective reasonable best efforts to (i) transition the Company’s Systems and data to a cloud-based storage platform (the “Cloud Platform”) with a provider and on such other terms as are reasonable approved by Buyer in writing, and (ii) transfer all Company Systems and data to such Cloud Platform and remove such Company Systems and data from any other server or storage system.
Article VII TERMINATION
Section 7.1 Termination. This Agreement may be terminated at any time prior to the Closing only as follows:
Section 7.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 7.1, this Agreement shall immediately become null and void, without any Liability on the part of any Party or any other Person and all rights and obligations of each Party shall cease; provided, that (a) the Confidentiality Agreement and the agreements contained in Section 6.6, Section 6.7, this Section 7.2 and Article VIII of this Agreement survive any termination of this Agreement and remain in full force and effect and (b) no such termination shall (i) relieve any Party from any Liability arising out of or incurred as a result of its willful breach of the terms of this Agreement prior to such termination (which the Parties acknowledge and agree
shall not be limited to reimbursement of expenses or out-of-pocket costs, which shall be deemed in such event to be damages of the non-breaching Party) or (ii) impair the right of any Party hereto to compel specific performance by any other Party of such Party’s obligations under this Agreement.
Article VIII MISCELLANEOUS
Section 8.1 Amendment and Waiver. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Buyer and Seller. No waiver of any provision or condition of this Agreement shall be valid unless the same shall be in writing and signed by the Party against which such waiver is to be enforced. No waiver by any Party of any default, breach of representation or warranty or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any other, prior or subsequent default or breach or affect in any way any rights arising by virtue of any other, prior or subsequent such occurrence.
Section 8.2 Notices. All notices, demands, requests, instructions, claims, consents, waivers and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment), sent by email (with no “bounce back” or similar error message) prior to 5:00 p.m. Eastern Time on a Business Day or delivery by reputable overnight express courier (charges prepaid), or (b) three calendar days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing, notices, demands and communications to the Company, Buyer and Seller shall be sent to the addresses indicated below:
Section 8.3 Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided, that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any Party (including by operation of Law) without the prior written consent of the other Parties; provided further that Buyer may, without the consent of any other Party, assign their rights hereunder (i) to any of its Controlled Affiliates (although no such assignment shall relieve Buyer of its obligations to the other Parties) or (ii) for collateral security purposes to any lender providing financing to Buyer in connection with the consummation of the transactions contemplated hereby.
Section 8.4 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.
Section 8.5 Interpretation. The headings and captions used in this Agreement and the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth in this Agreement. The use of the word “including” herein shall mean “including without limitation.” The words “this Agreement”, “herein”, “hereby”, “hereunder” and “hereof”, and words of similar import, refer to this Agreement as a whole and not to any particular clause or other subdivision thereof unless expressly so limited. The words “this Article”, “this Section”, “this clause”, and words of similar import, refer only to the Article, Section, clause or other subdivision hereof in which such words occur. Pronouns in masculine, feminine or neuter genders shall be construed to include any other gender, and words, terms and titles (including terms defined herein) in the singular form shall be construed to include the plural and vice versa, in each case, unless the context otherwise requires. The word “or” has the inclusive meaning “and/or” and the word “including” (and correlative forms thereof) shall be deemed to be followed by the phrase “without limitation”. References to “written” or “in writing” include in electronic form. The use of the word “Ordinary Course of Business” shall mean, with respect to any Person, any action taken by such Person in the ordinary course of business consistent with past practice. All references to “$”, “U.S. Dollars”, “Dollars” and “dollars” and other monetary figures shall be deemed to refer to United States currency unless otherwise expressly provided herein. All accounting terms used but not defined herein shall have the meanings given to them under the GAAP or SAP, as applicable. Whenever this Agreement refers to a number of days, such number shall refer to calendar days, unless such reference is specifically to “Business Days,” and the terms “year” and “years” mean and refer to calendar years. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is a
non-Business Day, the period in question shall end on the next succeeding Business Day. Unless the context otherwise requires, any reference to (a) any Person shall be deemed to refer to such Person’s successors and permitted assigns, and, in the case of any Governmental Entity, to any Person(s) succeeding to its functions and capacities, (ii) any Law shall be deemed to refer to all rules and regulations promulgated thereunder and (iii) any Contract or Law shall be deemed to refer to such Contract or Law as amended, restated, supplemented or otherwise modified from time (and in the case of any Contract, in accordance with the terms hereof or thereof, as applicable), and in effect at any given time (and in the case of any Law, to any successor provisions). The phrases “delivered”, “provided”, “furnished”, “made available” or words of similar import when used with respect to information or documents means that such information or documents have been physically or electronically delivered to the relevant receiving party (including, in the case of information or documents of Seller or any of its Affiliates (including the Company), posted at least 24 hours prior to the execution and delivery of this Agreement to the Data Room). The Parties and their respective counsel have reviewed, negotiated and adopted this Agreement as the joint agreement and understanding of the Parties, and the language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person.
Section 8.6 Entire Agreement. This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way. The Parties have voluntarily agreed to define their rights, Liabilities and obligations with respect to the transactions contemplated hereby exclusively in Contract pursuant to the express terms and provisions of this Agreement, and the Parties expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with another Person that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction.
Section 8.7 Counterparts; Electronic Delivery. This Agreement and agreements, certificates, instruments and documents entered into in connection herewith may be executed and delivered in one or more counterparts, including email or other digital format, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No Party shall raise the use of email or other digital format to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of email or other digital format as a defense to the formation or enforceability of a Contract and each Party forever waives any such defense.
Section 8.8 Governing Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (i) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (ii) any questions concerning the construction, interpretation, validity and enforceability of this Agreement, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice‑of‑law or conflict‑of‑law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. Each party to this Agreement hereby IRREVOCABLY waives all rights to
trial by jury in any action, suit or Proceeding brought to resolve any dispute between or among any of the parties (whether arising in contract, tort or otherwise) arising out of, connected with, related or incidental to this Agreement, the transactions contemplated hereby and/or the relationships established among the parties hereunder. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES DISTRICT COURT LOCATED IN WILMINGTON, DELAWARE OR DELAWARE CHANCERY COURT LOCATED IN WILMINGTON, DELAWARE (OR IF, BUT ONLY IF, SUCH COURTS DO NOT HAVE SUBJECT MATTER JURISDICTION, ANOTHER STATE COURT SITTING IN THE STATE OF DELAWARE) AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER SUCH ACTIONS OR PROCEEDINGS ARE BASED IN STATUTE, TORT, CONTRACT OR OTHERWISE), SHALL BE LITIGATED IN SUCH COURTS. Nothing in this Section 8.8, however, shall affect the right of any Party to serve legal process in any other manner permitted by Law or at equity. Each Party agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity.
Section 8.9 Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated hereby are unique and recognize and affirm that in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached, money damages would be inadequate (and therefore the non-breaching Party would have no adequate remedy at Law) and the non-breaching Party may be irreparably damaged. Accordingly, each Party agrees that each other Party shall be entitled to seek specific performance, an injunction or other equitable relief (without posting of bond or other security or needing to prove irreparable harm) to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any Proceeding, in addition to any other remedy to which such Person may be entitled.
Section 8.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein expressed or implied shall give or be construed to give any Person, other than the Parties and such permitted assigns, any legal or equitable rights hereunder (other than in respect of the Buyer Indemnified Parties, the Seller Indemnified Parties, the D&O Indemnified Persons and Non-Party Affiliates, each of whom is an express third-party beneficiary hereunder and entitled to enforce certain obligations hereunder).
Section 8.11 Legal Representation. Seller, Buyer and the Company hereby agree, on their own behalf and on behalf of their current and future directors, managers, members, partners, officers, equityholders, employees and Affiliates and each of their successors and assigns (all such parties, the “Waiving Parties”), that Kirkland & Ellis LLP (“K&E”) (or any successor thereto) may represent Seller or any direct or indirect director, manager, member, partner, officer, employee, equityholder or Affiliate thereof, in connection with any dispute, litigation, claim, Proceeding or obligation arising out of or relating to this Agreement, any agreement entered into in connection
herewith or the transactions contemplated hereby (any such representation, the “Post-Closing Representation”) notwithstanding its representation (or any continued representation) of the Company in connection with the transactions contemplated by this Agreement, and each of Buyer and the Company on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto. Buyer and the Company each acknowledge that the foregoing provision applies whether or not K&E provides legal services to the Company after the Closing Date. Each of Buyer and the Company, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among K&E, the Company, Seller and/or any director, officer, manager, member, equityholder, employee or representative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Proceeding arising out of or relating to, this Agreement, any agreement entered into in connection herewith, the transactions contemplated hereby or any matter relating to any of the foregoing, are privileged communications and the attorney-client privilege and the expectation of client confidence belongs solely to Seller and may be exclusively controlled by Seller and shall not pass to or be claimed by Buyer or the Company, and from and after the Closing none of Buyer, the Company or any Person purporting to act on behalf of or through Buyer, the Company or any of the Waiving Parties, will seek to obtain the same by any process except as may be requested by any Governmental Entity or pursuant to applicable civil process or discovery rules. From and after the Closing, each of Buyer and the Company, on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege with respect to any communication among K&E, the Company, Seller and/or any director, officer, manager, member, equityholder, employee or representative of any of the foregoing occurring prior to the Closing in connection with any Post-Closing Representation. Notwithstanding the foregoing, in the event that a dispute arises between Buyer or the Company, on the one hand, and a third party other than Seller, on the other hand, Buyer and the Company may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, that neither Buyer nor the Company may waive such privilege without the prior written consent of Seller.
Section 8.12 Schedules. All Schedules, including the Disclosure Schedules, and Exhibits attached hereto or referred to herein and the recitals to this Agreement are (a) each hereby incorporated in and made a part of this Agreement as if set forth in full herein and (b) qualified in their entirety by reference to specific provisions of this Agreement. Any fact or item disclosed in any Section of the Disclosure Schedules shall be deemed disclosed in each other Section of the Disclosure Schedules to which such fact or item may apply so long as (x) such other Section is referenced by applicable cross-reference or (y) it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such other Section of the Disclosure Schedules. The headings contained in the Schedules (including the Disclosure Schedules) are for convenience of reference only and shall not be deemed to modify or influence the interpretation of the information contained in the Disclosure Schedules or the Agreement. The Disclosure Schedules are not intended to constitute, and shall not be construed as, an admission or indication that any such fact or item is required to be disclosed. The Disclosure Schedules shall not be deemed to expand in any way the scope or effect of any representations, warranties or covenants described in this Agreement. Any fact or item, including the specification of any dollar amount, disclosed in the Disclosure Schedules shall not by reason only of such inclusion be deemed to be material, to establish any standard of materiality or to define further the meaning of such terms for purposes
of the Agreement and matters reflected in the Disclosure Schedules are not necessarily limited to matters required by the Agreement to be reflected herein and may be included solely for information purposes; and no Party shall use the fact of the setting of the amounts or the fact of the inclusion of any item in the Disclosure Schedules in any dispute or controversy between the Parties as to whether any obligation, item or matter not described or included in the Disclosure Schedules is or is not required to be disclosed (including whether the amount or items are required to be disclosed as material or threatened) or is within or outside of the Ordinary Course of Business. No disclosure in the Disclosure Schedules relating to any possible breach or violation of any Contract, Law or order shall be construed as an admission or indication that any such breach or violation exists or has actually occurred. Where only brief particulars of a matter are set out or referred to in the Disclosure Schedules or a reference is made only to a particular part of a disclosed document, full particulars of the matter and the full contents of the document are deemed to be disclosed to the extent such particulars are not material to the disclosure. The information contained in the Disclosure Schedules shall be kept strictly confidential by the Parties and no third party may rely on any information disclosed or set forth therein. Moreover, in disclosing the information in the Disclosure Schedules, Seller expressly does not waive any attorney-client privilege associated with such information or any protection afforded by the work-product doctrine with respect to any of the matters disclosed or discussed therein.
Contents
Share
More
Download PDF