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$PTC
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8-K
Nov 5, 4:44 PM ET
PTC INC. 8-K
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Contents
130
Article IDEFINITIONS
Section 1.1. Definitions. As used herein, the following terms have the meanings set forth below:
Section 1.2. Other Defined Terms. In addition, the following terms shall have the meanings ascribed to them in the corresponding section of this Agreement:
Article IIPURCHASE AND SALE; CLOSING
Section 2.1. Purchase and Sale. Subject to the terms and conditions of this Agreement, on the Closing Date and at the Closing, Seller shall, and shall cause the other Seller Entities to, sell, assign, transfer and convey to Purchaser, and Purchaser shall purchase, acquire and accept from Seller and the other Seller Entities, all of the Seller Entities’ right, title and interest as of the Closing in the Purchased Assets, free and clear of all Liens other than Permitted Liens.
Section 2.2. Purchase Price. In consideration for the Purchased Assets and the other obligations of Seller pursuant to this Agreement, at the Closing, Purchaser shall: (a) pay, or cause to be paid, to Seller or its designee an aggregate of Six Hundred Million Dollars ($600,000,000) in cash (the “Base Purchase Price” XE "Base Purchase Price” \t “2.2” ), as adjusted in accordance with Section 2.9, which amount shall be paid by Purchaser in full; and (b) assume the Assumed Liabilities. Notwithstanding anything to the contrary in this Agreement, Seller will be treated as acting as an agent of each applicable Seller Entity with respect to such Seller Entity’s receipt of cash consideration payable to such Seller Entity with respect to the Purchased Assets acquired from such Seller Entity pursuant to this Agreement and, for U.S. federal and applicable state and local income (and to the extent applicable, non-U.S.) Tax purposes, Purchaser (or its applicable Affiliate) will be treated as having paid the application amount of cash consideration to such Seller Entity in exchange for the applicable portion of the Purchased Assets acquired from such Seller Entity; provided, that the purchase price allocable to (i) Parametric Technology (Shanghai) Software Co. Ltd. (“China Seller”) shall be paid directly to China Seller and shall be determined in accordance with the applicable Foreign Acquisition Agreement, (ii) the Purchased Assets in India shall be paid directly to the India Sellers by the applicable Purchaser Foreign Transfer Subsidiaries and shall be determined in accordance with the India Foreign Acquisition Agreement and (iii) Parametric Technology SA (“French Seller”) shall be determined in accordance with the applicable Foreign Acquisition Agreement and paid directly to French Seller.
Section 2.3. Closing Date. The closing of the Transaction, other than the portions of the Transaction to be consummated pursuant to a Deferred Closing (the “Closing” XE "Closing” \t “2.3” ) shall take place at 9:00 a.m. Eastern Time remotely by exchange of documents and signatures (or their electronic counterparts), in each case, on the second (2nd) Business Day following the date on which the last of the conditions set forth in Article VII (other than those conditions that are to be satisfied by action taken at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) have been satisfied (or, to the extent permitted, waived by the party or parties entitled to the benefits thereof) or at such other place, time and date as may be agreed among Seller and Purchaser; provided that notwithstanding the satisfaction or waiver of the conditions set forth in Article VII, unless otherwise agreed by Purchaser and Seller, the parties shall not be required to effect the Closing prior to February 1, 2026; provided that, at Seller’s or Purchaser’s request (each in their sole discretion), the parties shall delay the Closing until the next applicable day that is the last day or the last Business Day of a calendar month so long as (a) the Closing would have otherwise occurred on or after the 15th day of such calendar month and (b) such Closing would not be consummated past the Outside Date. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date.” Purchaser and Seller agree that the effective time of the transactions contemplated by this Agreement shall be 11:59 p.m. local time
in each applicable jurisdiction on the Closing Date (the “Effective Time” XE "Effective Time” \t “2.3” ).
Section 2.4. Purchased Assets. Subject to the terms and conditions of this Agreement, on the Closing Date and at the Closing, Seller shall, and shall cause the other Seller Entities to, sell, assign, transfer and convey to Purchaser, free and clear of all Liens other than Permitted Liens, and Purchaser shall purchase, acquire and accept from the Seller Entities, all of the Seller Entities’ right, title and interest as of the Closing in the following, as they exist at the time of the Closing (the “Purchased Assets” XE "Purchased Assets” \t “2.4” ), in exchange for the Closing Purchase Price, as adjusted in accordance with Section 2.9:
Section 2.5. Excluded Assets. Notwithstanding anything to the contrary contained herein, Purchaser expressly understands and agrees that the following assets and properties of the Seller and its Affiliates (the “Excluded Assets” XE "Excluded Assets” \t “2.5” ) shall be retained by Seller and its Affiliates, and shall be excluded from the Purchased Assets, notwithstanding any other provision of this Agreement:
Section 2.6. Assumed Liabilities. Subject to the terms and conditions of this Agreement, at the Closing, Purchaser shall assume and hereby agrees to promptly pay, discharge or perform in full all of the Liabilities of Seller and its Affiliates related to or arising out of the Purchased Assets or the Business, in each case, other than the Retained Liabilities (the “Assumed Liabilities” XE "Assumed Liabilities” \t “2.6” ), in each case, whether accruing prior to, on or after the Closing, including the following:
Section 2.7. Retained Liabilities. The Seller Entities shall retain, and Purchaser shall not assume, the following Liabilities of the Seller Entities (the “Retained Liabilities” XE "Retained Liabilities” \t “2.7” ):
Section 2.8. Closing Deliveries.
Section 2.9. Adjustment to Base Purchase Price.
Section 2.10. Purchase Price Allocation for Tax Purposes.
Section 2.11. Non-Assignment; Shared Contracts; Consents.
Section 2.12. Foreign Acquisition Agreements.
Section 2.13. Withholding. Purchaser and any other applicable withholding agent will be entitled to deduct and withhold from any amounts payable pursuant to or as contemplated by this Agreement or any other Transaction Document any withholding Taxes or other amounts required under the Code or any applicable Law to be deducted and withheld. If Purchaser or any other applicable withholding agent determines that it is required to make any such deduction or withholding (other than any withholding resulting from Seller’s failure to deliver any documentation required under Section 2.8(b)(ix) or Section 2.8(b)(x)), such Person (i) with respect to withholding arising under U.S. federal, state or local Law, shall and (ii) with respect to withholding arising under non-U.S. Law, shall use reasonable best efforts to, in each case, notify Seller no later than ten (10) days before such deduction or withholding is made. The parties agree to use commercially reasonable efforts to minimize or eliminate any such deduction or withholding as permitted by applicable Law, including through the provision of forms. To the extent that any such amounts are so deducted or withheld, such amounts will be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made, and such amounts shall be promptly paid over to the appropriate Taxing Authority in accordance with applicable Law.
Section 2.14. Contingent Consideration.
Article IIIREPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.1. Organization, Standing and Power. Each of the Seller Entities is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Each of the Seller Entities is qualified or otherwise authorized to do business under the Laws of every other jurisdiction in which such qualification or authorization is necessary under applicable Law and has all necessary organizational power and authority to carry on the Business as presently conducted, except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect or would not reasonably be expected to materially impair or materially delay the ability of Seller to (x) perform its obligations under this Agreement or (y) consummate the Transaction and the other transactions contemplated hereby.
Section 3.2. Authority; Execution and Delivery; Enforceability. Each of the Seller Entities has all necessary power and authority to execute and deliver this Agreement and the other Transaction Documents to which it is or will be a party and to consummate the Transaction and the other transactions contemplated hereby and thereby. The execution and delivery by such Seller Entity of this Agreement and the other Transaction Documents to which it is or will be a party and the consummation by it of the Transaction and the other transactions contemplated hereby and thereby are within its organizational powers and have been duly authorized by all necessary corporate or other action of such Seller Entity. Seller has duly executed and delivered this Agreement, and the other Transaction Documents to which each Seller Entity is or will be a party will be duly executed and delivered by such Seller Entity and assuming due authorization, execution and delivery by the other parties thereto, this Agreement and the other Transaction Documents to which such Seller Entity is or will be a party will constitute the valid and binding obligation of such Seller Entity, in each case, enforceable against such Seller Entity in accordance with its terms, subject to the effect of any Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally and subject, as to enforceability, to the effect of general
principles of equity (regardless of whether such enforceability is considered in a Proceeding in equity or at Law) (the “Enforceability Exceptions” XE "Enforceability Exceptions” \t “3.2” ).
Section 3.3. No Conflicts; Consents.
Section 3.4. Proceedings. There are no, and for the past three (3) years there has not been, any Proceedings or Judgments relating to or affecting the Business pending or, to the Knowledge of Seller, threatened in writing, against the Seller Entities, in each case, except as (a) would not reasonably be expected to be, individually or in the aggregate, material to the Business, taken as a whole or (b) would not reasonably be expected to materially impair or materially delay the ability of Seller to (i) perform its obligations under this Agreement or (ii) consummate the Transaction and the other transactions contemplated hereby. Neither Seller, nor any of its Affiliates, is, and for the past three (3) years has not been, a party to any settlements that impose any obligations or restrictions on the Purchased Assets or the Business that, individually or in the
aggregate, would be material to the Business, taken as a whole. None of the Purchased Assets or the Business is subject to any Judgment, not has Seller or any of its Affiliates been served with or received notice of any investigation or audit from any Governmental Entity with respect to the Business, in each case, other than those that would not reasonably be expected to be, individually or in the aggregate, material to the Business, taken as a whole.
Section 3.5. Business Financial Information; Absence of Undisclosed Liabilities.
Section 3.6. Absence of Changes or Events.
Section 3.7. Title; Sufficiency of Assets.
Section 3.8. Intellectual Property; IT Assets.
Section 3.9. Data Privacy and Security.
Section 3.10. Real Property. Seller has made available to Purchaser complete and correct copies of the Transferred Leases. The Seller Entities have valid title to the leasehold estate (as lessee) in all Transferred Leased Property as lessee or sublessee, in each case free and clear of all Liens (other than Permitted Liens), except, in each case, as would not reasonably be expected to be, individually or in the aggregate, material to the Business, taken as a whole. (i) All leases and subleases for the Transferred Leased Property under which any of the Seller Entities is a lessee or sublessee are in full force and effect and are enforceable in accordance with their respective terms, subject to the Enforceability Exceptions, (ii) no written notices of default under any such lease or sublease have been sent or received by any of the Seller Entities within the one (1)-year period prior to the date of this Agreement, and (iii) none of the Seller Entities have subleased, licensed or otherwise granted any third party the right to use or occupy any Transferred Leased Property or any portion thereof, except, in each case of the foregoing clauses (i) through (iii), as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect. There are no pending or, to Seller’s Knowledge, threatened in writing appropriation, condemnation, eminent domain or like Proceedings relating to the Transferred Leased Property, except for such Proceedings that would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect. None of the Transferred Leased Property has suffered any material damage or other casualty which has not heretofore been repaired and restored in all material respects, except for damage that would not have a Business Material Adverse Effect.
Section 3.11. Contracts.
Section 3.12. Compliance with Applicable Laws; Permits.
Section 3.13. Environmental Matters. Except for such matters that would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, (a) the Seller Entities are in compliance with all applicable Environmental Laws with respect to the Business, (b) the Seller Entities hold and are in compliance with all Permits required pursuant to Environmental Laws for the operation of the Business as presently conducted by the Seller Entities, and (c) as of the date of this Agreement, there are no Proceedings pending or, to the Knowledge of Seller, threatened in writing against the Seller Entities alleging a violation of, or liability under, any Environmental Laws with respect to the Business.
Section 3.14. Taxes. (a) All material Tax Returns required to be filed with respect to the Purchased Assets, the Assumed Liabilities and the Business have been filed and all such Tax Returns are accurate and complete in all material respects; (b) all material amounts of Taxes relating to the Purchased Assets or the Business (whether or not shown to be due on such Tax Returns) that are due and payable have been paid; (c) there are no Liens for Taxes upon any of the Purchased Assets (other than Permitted Liens described in clause (a) of the definition thereof); (d) Seller is not currently the beneficiary of any extension of time within which to file any Tax Return with respect to the Purchased Assets (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business consistent with past practice); (e) all material amounts of Taxes required to have been withheld with respect to the Purchased Assets or the Business in connection with any amounts paid or owing to any employee, service provider, creditor or other Person have been withheld and paid to the appropriate governmental authority when due; (f) since January 1, 2024, the Seller has not amended any accounting principles, policies or practices, changed any non-Income Tax election or amended or modified any material Tax Return, entered into any closing agreement that would be binding on the Purchaser following the Closing, settled any claim or assessment with respect to a material amount of Taxes, or requested or consented to any extension or waiver of the limitation periods applicable to any claim or assessment with respect to Taxes that would be binding on the Purchaser following the Closing, in each case, with respect to the Purchased Assets or the Business; (g) no written claim has been received from any Taxing Authority in any jurisdiction where the Seller does not file Tax Returns with respect to the Purchased Assets or the Business that Seller is, or may be, subject to Tax by that jurisdiction or is required to file Tax Returns in that jurisdiction with respect to the Purchased Assets or the Business, which claim has not been fully settled or withdrawn; (h) there are no pending audits,
examinations, assessments, suits, claims, investigations, or other proceedings by any Taxing Authority with respect to the Purchased Assets or the Business; (i) to the extent relating to the Purchased Assets, the Seller Entities are in compliance in all material respects with applicable Laws pertaining to escheat and unclaimed property obligations; (j) no Non-U.S. Asset Seller Entity, is transferring in the transactions contemplated by this Agreement any “United States real property interest” within the meaning of Section 897 of the Code; and (k) none of Seller or any of its Affiliates is party to any contract relating to Tax sharing or Tax allocation affecting the Purchased Assets, the Business or the Seller that would bind, obligate or restrict the Purchaser or its Affiliates, other than agreements entered into in the ordinary course of business the primary purpose of which was not Taxes.
Section 3.15. Employees and Employee Benefit Plans; Labor Relations.
Section 3.16. Intercompany Arrangements. Except for (i) any Contracts that are neither material in amount in relation to the Business nor necessary for Purchaser to conduct the Business in all material respects as it is conducted following the Closing, (ii) the Transaction Documents and the Contracts contemplated thereby and (iii) any Contracts to be terminated at or prior to the Closing, Section 3.16 of the Seller Disclosure Schedules lists all Contracts existing as of the date hereof solely between or among Seller or its Affiliates with respect to the conduct of the Business
or by which the Purchased Assets are bound. As of the date hereof, except as disclosed in the filings of Seller or its Affiliates with the United States Securities and Exchange Commission (the “SEC XE "SEC" \t "3.16" ”), in the past three (3) years, no event has occurred and no relationship exists with respect to the Business that would be required to be disclosed under Item 404 of Regulation S-K promulgated by SEC.
Section 3.17. Brokers. No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Transaction and the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller or any of its Affiliates and for which Purchaser would be liable, other than any payment or reimbursement that constitutes a Transaction Expense or Retained Liability.
Section 3.18. Insurance. Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, (x) all material insurance programs (excluding Benefit Plans) owned or held by Seller or its Affiliates, which cover the Business are in full force and effect and are valid and enforceable and (y) all validly invoiced premiums due thereunder have been paid when due. During the three (3)-year period immediately prior to the date of this Agreement, neither Seller nor any of its Affiliates has received notice (i) of cancellation or termination of any such insurance program other than in connection with normal renewals of any such insurance programs or (ii) that there has been any material claim pending under any insurance program as to which coverage has been questioned, denied or disputed by the underwriters of such insurance program or as to which any insurer has made any reservation of rights or refused to cover all or a portion of such claims. There are no material outstanding claims related to the Business under any such insurance program or material default with respect to the provisions in any such program.
Section 3.19. Anti-Bribery; OFAC. For the five (5)-year period preceding the date of this Agreement:
Section 3.20. Material Customers; Material Suppliers.
Section 3.21. Government Contracts.
Section 3.22. No Other Representations or Warranties. Seller acknowledges that (a) none of Purchaser nor any of its Affiliates has made any representation or warranty, expressed or implied, as to Purchaser or any of its Affiliates, their financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding Purchaser or any of its Affiliates furnished or made available to Seller and its Affiliates and Representatives, except as expressly set forth in this Agreement, any other Transaction Document or in any certificate delivered hereunder or thereunder, and (b) Seller has not relied on any representation or warranty from Purchaser or any of its Affiliates in determining to enter into this Agreement, except as expressly set forth in this Agreement, any other Transaction Documents or in any certificate delivered hereunder or thereunder.
Article IVREPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 4.1. Organization, Standing and Power. Purchaser is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is organized. Purchaser is qualified or otherwise authorized to do business and is in good standing under the Laws of every other jurisdiction in which such qualification or authorization is necessary under applicable Law and has all necessary organizational power and authority to carry on its business as presently conducted, except as would not, or would not reasonably be expected to, individually or in the aggregate, prevent, materially impair or materially delay the ability of Purchaser to (a) perform its obligations under this Agreement or any other Transaction Document or (b) consummate the Transaction and the other transactions contemplated hereby or under any other Transaction Document (each of clause (a) and clause (b), a “Purchaser Material Adverse Effect” XE "Purchaser Material Adverse Effect” \t “4.1” ).
Section 4.2. Authority; Execution and Delivery; Enforceability. Purchaser has all necessary power and authority to execute and deliver this Agreement and the other Transaction Documents to which it is or will be a party and to consummate the Transaction and the other transactions contemplated hereby and thereby. The execution and delivery by Purchaser of this Agreement and the other Transaction Documents to which it is or will be a party and the consummation by Purchaser of the Transaction and the other transactions contemplated hereby and thereby have been duly authorized by all necessary corporate or other action of Purchaser. Purchaser has duly executed and delivered this Agreement, and will duly execute and deliver the other Transaction Documents to which it is or will be a party and, assuming due authorization, execution and delivery by Seller and its Affiliates party thereto, this Agreement and the other Transaction Documents to which Purchaser is or will be a party will constitute its valid and binding obligation, enforceable against it in accordance with its terms, subject to the Enforceability Exceptions.
Section 4.3. No Conflicts; Consents. The execution and delivery by Purchaser of this Agreement and the other Transaction Documents to which it is or will be a party does not and will not, and the consummation of the Transaction and the other transactions contemplated hereby and thereby and compliance by Purchaser with the terms hereof and thereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of Purchaser or any of its Subsidiaries under, any provision of (a) the certificate of incorporation, bylaws or equivalent governing documents of Purchaser or any of its Subsidiaries, (b) any Judgment or Law applicable to Purchaser or its Subsidiaries, or the properties or assets of Purchaser or its Subsidiaries or (c) any material Contract to which Purchaser or its Subsidiaries is party or the properties or assets of Purchaser or its Subsidiaries are bound, except, in the case of clause (c), for any such items that would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. No Approval of, or filing or registration with or notification to, any Governmental Entity is required to be obtained or made by or with respect to Purchaser or its Subsidiaries in connection with the execution, delivery and performance of this Agreement other Transaction Documents or the consummation of the Transaction and the other transactions contemplated hereby and thereby, other than in respect of the HSR Act, the Antitrust Laws, FDI Laws of the jurisdictions set forth on Section 4.3 of the Purchaser Disclosure Schedules and the Permits from Governmental Entities required to effectuate the transfer of the Business portion of certain Government Contracts.
Section 4.4. Financial Ability to Perform.
Section 4.5. Proceedings.
Section 4.6. Brokers. No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Transaction and the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser or its Affiliates and for which Seller or any of its Affiliates would be liable.
Section 4.7. Investigation. Purchaser has such knowledge and experience in financial and business matters, and is capable of evaluating the merits and risks of the Transaction and the other transactions contemplated by this Agreement. Purchaser confirms that Seller has made available to Purchaser and its Affiliates and Representatives the opportunity to ask questions of the officers and management of Seller and the Business, as well as access to documents, information and records of or with respect to the Purchased Assets, the Assumed Liabilities and the Business and to acquire additional information about the business and financial condition of the Business, and Purchaser confirms that it has made an independent investigation, analysis and evaluation of the Purchased Assets, the Assumed Liabilities and the Business to its satisfaction. Purchaser agrees that, at the Closing, it shall accept the Purchased Assets and Assumed Liabilities based upon its own inspection, examination and determination with respect thereto as to all matters, and without reliance upon any express or implied representations or warranties of any nature, whether in writing, orally or otherwise, made by or on behalf of or imputed to any Seller, any of its Affiliates or any other Person, except as expressly set forth in this Agreement, any other Transaction Document or in any certificate delivered hereunder or thereunder.
Section 4.8. Solvency. On the Closing Date, immediately after giving effect to the consummation of the transactions contemplated by this Agreement (including the payment of the Closing Purchase Price and all related fees and expenses) and assuming the accuracy in all material respects of the representations and warranties contained in Article III, Purchaser and its Subsidiaries (on a consolidated basis) will be Solvent as of the Closing Date and immediately after the consummation of the transactions contemplated by this Agreement. For purposes of this Agreement, “Solvent” XE "Solvent” \t “4.8” means that, with respect to any Person, as of any date of determination, (a) the amount by which the “fair saleable value” of the assets of such Person will, as of such date, exceed the sum of (i) the value of all “liabilities of such Person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable Laws governing determinations of the insolvency of debtors, and (ii) the amount that will be required to pay the probable liabilities of such Person, as of such date, on its existing debts (including contingent and other liabilities) as such debts become absolute and mature, (b) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged following such date and (c) such Person will be able to pay its liabilities, as of such date, including contingent and other liabilities, as they mature.
Section 4.9. No Foreign Person. Purchaser is not, and Purchaser will not be, at or immediately following the consummation of the Closing, directly or indirectly, owned or controlled by a “foreign” Person for purposes of reviews of transactions conducted by the Committee on Foreign Investment in the United States under the Defense Production Act of 1950, as amended and codified at 50 U.S.C. Section 4565 and as implemented by regulations at 31 C.F.R. Part 800; or (ii) “foreign interest(s)” as defined in the National Industrial Security Operating Manual (“NISPOM”), such that any “foreign interest(s),” directly or indirectly, will have the power, whether or not exercised, through contractual arrangements or other means, to direct or decide matters affecting the management or operations of Purchaser.
Section 4.10. Competing Business; Competitive Transactions; Ownership. Purchaser hereby makes the Competing Business Representation to Seller.
Section 4.11. No Other Representations or Warranties. Purchaser acknowledges that (a) none of Seller, the Seller Entities, any of their respective Affiliates or any other Person has made any representation or warranty, expressed or implied, as to the Purchased Assets, the Assumed Liabilities, the Business, their financial condition, results of operations, future operating or financial results, estimates, projections, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, plans or prospects) or the accuracy or completeness of any information regarding the Purchased Assets, the Assumed Liabilities or the Business furnished or made available to Purchaser and its Affiliates and Representatives, except as expressly set forth in this Agreement, any Transaction Document or any certificate delivered hereunder or thereunder, (b) Purchaser has not relied on any representation or warranty from Seller, the Seller Entities, any of their respective Affiliates or any other Person in determining to enter into this Agreement, except as expressly set forth in this Agreement, any Transaction Document or any certificate delivered hereunder or thereunder, and (c) none of Seller, the Seller Entities, any of their respective Affiliates or any other Person shall have or be subject to any Liability to Purchaser or any of its Affiliates or Representatives resulting from the distribution to Purchaser or its Affiliates or Representatives of, or Purchaser’s or its Affiliates’ or Representatives’ use of, any such information, including any information, documents or material made available to Purchaser or its Affiliates or Representatives in any “data rooms,” management presentations or in any other form in expectation of or negotiation of this Agreement, the Transaction and the other transactions contemplated hereby. Purchaser acknowledges that, should the Closing occur, Purchaser shall acquire the Purchased Assets and the Business and assume the Assumed Liabilities, in each case, without any representation or warranty as to merchantability or fitness thereof for any particular purpose or any other express or implied representation or warranty, in an “as is” condition and on a “where is” basis, except as otherwise expressly set forth in this Agreement, any other Transaction Document or any certificate delivered hereunder or thereunder. ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, NOT SET FORTH IN THIS AGREEMENT, ANY TRANSACTION DOCUMENT AND ANY CERTIFICATE DELIVERED HEREUNDER OR THEREUNDER IS HEREBY EXPRESSLY DISCLAIMED BY PURCHASER. Notwithstanding the foregoing, the Purchaser retains all of its rights and remedies with respect to claims based on Fraud.
Article VCOVENANTS
Section 5.1. Efforts.
Section 5.2. Covenants Relating to Conduct of Business.
Section 5.3. Confidentiality. Purchaser and Seller acknowledge that the information being provided to Purchaser in connection with the Transaction and the other transactions contemplated hereby is subject to the terms of that certain confidentiality agreement between TPG Global, LLC and Seller, dated as of June 18, 2025 (the “Confidentiality Agreement” XE "Confidentiality Agreement” \t “5.3” ), the terms of which are incorporated herein by reference in their entirety and shall survive the Closing in accordance with its terms; provided, that actions taken by the parties hereto to the extent necessary in order to comply with their respective obligations under Section 5.1 shall not be deemed to be in violation of this Section 5.3 or the Confidentiality Agreement; provided further, that the foregoing shall not affect Section 5.1(b) to the extent that Section 5.1(b) specifies that it is subject to this Section 5.3 or the Confidentiality Agreement. Effective upon, and only upon, the Closing, the Confidentiality Agreement shall
terminate with respect to information relating solely to the Business (including the Purchased Assets and Assumed Liabilities); provided further, that Purchaser acknowledges that its obligations of confidentiality, non-disclosure and use with respect to any and all other information concerning Seller or any of its Affiliates (other than solely with respect to the Business (including the Purchased Assets and Assumed Liabilities)) shall continue to remain subject to the terms and conditions of the Confidentiality Agreement, any termination of the Confidentiality Agreement that has or would otherwise occur notwithstanding. From and after the Closing until the third (3rd) anniversary of the Closing Date, Seller shall, and shall cause its Affiliates to, unless required to disclose by judicial or administrative process or applicable Law or the applicable requirements of any Governmental Entity (including the federal securities laws, rules and regulations of any national securities exchange) or requested to disclose (by court order, deposition, interrogatory questions, request for information or documents, subpoena, civil investigative demand, regulatory demand or similar process), hold in confidence all non-public and confidential information exclusively concerning the Business or the Purchased Assets (the “Confidential Information” XE "Confidential Information” \t “5.3” ); provided, that for purposes of this Agreement, “Confidential Information” shall not include any information to the extent such information (i) is in the public domain other than directly as a result of a disclosure by Seller or its Affiliates in violation of their confidentiality obligations of this Section 5.3 or any other duty of confidentiality owed to the Business, (ii) was acquired after the Closing by Seller or any of its Affiliates from sources other than those related to its prior ownership of the Business (other than as a result of a violation of a duty of confidentiality owed to the Business), or (iii) is generated independently by Seller or any of its Affiliates without reference to or use of any non-public and confidential information concerning the Business (including the Purchased Assets and Assumed Liabilities). The obligation of Seller and its Affiliates to hold any such Confidential Information in confidence shall be satisfied if they exercise the same care with respect to such information as they would take to preserve the confidentiality of their own similar information. The parties shall take all further actions and execute all further documents as reasonably necessary to comply with all Privacy Requirements in connection with performing under this Agreement and the Transaction Documents and consummating the transactions herein and therein.
Section 5.4. Access to Information.
Section 5.5. Publicity. The initial press release with respect to the Transaction shall be a joint press release and has been agreed upon by Seller and Purchaser. Other than such joint press release, no party to this Agreement nor any Affiliate or Representative of such party shall issue or cause the publication of any press release or public announcement in respect of this Agreement, the Transaction or the other transactions contemplated by this Agreement without the prior written consent of the other party hereto (which consent shall not be unreasonably withheld, conditioned or delayed), except as may be required by Law or stock exchange rules. Notwithstanding this Section 5.5, Purchaser may disclose the status of the Transaction and the terms of this Agreement in the ordinary course to its Affiliates and/or their respective members, limited partners, potential investors, employees, consultants, advisors, or representatives, in each case in accordance with their ordinary course marketing, fund-raising, and investor reporting activities; provided that such Persons are subject to confidentiality obligations not materially less restrictive than those set forth in this Agreement (or, in the case of potential investors, are subject to customary confidentiality obligations).
Section 5.6. Employee Matters.
Section 5.7. Financial Obligations.
Section 5.8. Intellectual Property Matters.
Section 5.9. Insurance.
Section 5.10. Litigation Support.
Section 5.11. Payments.
Section 5.12. Reserved.
Section 5.13. Non-Solicitation of Employees; Non-Competition.
Section 5.14. Misallocated Assets. If, following the Closing, any right, property or asset not included in the Purchased Assets is found to have been transferred to Purchaser or any of its Affiliates in error, either directly or indirectly, Purchaser shall promptly transfer, or shall cause its Affiliates to transfer, at no additional cost, such right, property or asset (and any related Liability) to Seller or any of its Affiliates as indicated by Seller (and the provisions of Section 2.11(c) shall apply mutatis mutandis to such transfer). If, following the Closing, any right, property or asset included in the Purchased Assets and that should have been transferred at the Closing is found to have been retained by Seller or any of its Affiliates in error, either directly or indirectly, Seller shall promptly transfer, or shall cause its Affiliates to transfer, at no additional cost, such right, property or asset (and any related Liability) to Purchaser or an Affiliate as indicated by Purchaser (and the provisions of Section 2.11(c) shall apply mutatis mutandis to such transfer).
Section 5.15. Pre-Closing Amendment. At or prior to the Closing, Seller shall take the actions set forth on Section 5.15 of the Seller Disclosure Schedules.
Section 5.16. Financing Assistance.
Section 5.17. Representations and Warranties Insurance. Purchaser may procure a customary buy-side representations and warranties insurance policy relating to this Agreement (the “R&W Insurance Policy” XE "R&W Insurance Policy” \t “5.17” ) prior to the Closing, and if Purchaser procures a R&W Insurance Policy, Purchaser shall be solely responsible for the procurement of, and shall pay all costs and expenses in connection with the procurement of the R&W Insurance Policy. Purchaser shall cause any R&W Insurance Policy at all times to provide that the insurers thereunder may not, and Purchaser and its Affiliates will not amend, waive or otherwise modify the R&W Insurance Policy in any way that would allow the insurer thereunder or any other Person to, subrogate or otherwise make or bring any Proceeding against Seller or any of its Affiliates or any past, present or future director, manager, officer, employee or advisor of any of the foregoing (collectively, the “Seller Parties” XE "Seller Parties” \t “5.17” ) based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, except in the event of Fraud by Seller. Each of the Seller Parties is an express third-party beneficiary of this Section 5.17. For the avoidance of doubt, nothing in this Agreement is intended to, nor shall it have the effect of, limiting or diminishing the Purchaser’s or any other Person’s right to seek or obtain recovery under an R&W Insurance Policy.
Section 5.18. Release.
Section 5.19. Exclusivity. Prior to Closing, neither Seller nor any of its Affiliates shall, or instruct any of their Representatives to, (a) solicit, initiate, knowingly encourage any inquiry, proposal or offer with respect to a Competing Transaction or (b) participate in any discussions or negotiations with any third party regarding, or knowingly furnish to any third party any non-public information in connection with, any Competing Transaction. Seller shall, and shall direct its Representatives to, promptly cease any ongoing discussions with any Person (other than Purchaser and its Representatives) regarding any Competing Transaction.
Section 5.20. Referral Agreement. From the date hereof until the Closing, the parties hereto shall cooperate in good faith to negotiate a referral agreement in a form to be mutually agreed upon by the parties (the “Referral Agreement”), to be entered into as of the Closing; provided, that, if the parties hereto are unable to negotiate and enter into the Referral Agreement as of the Closing, the parties shall continue to cooperate in good faith to negotiate a Referral Agreement for up to three (3) months following the Closing.
Section 5.21. Transition Services Agreement Schedules; Supplemental Transition Services Agreement (s). From the date hereof until the Closing, Purchaser and Seller shall cooperate in good faith to finalize the schedules to the Transition Services Agreement (including identification of, and agreement on, dependent Services (as defined therein) and each applicable Supplemental Transition Services Agreement in any relevant jurisdiction to be entered into in connection with the Transition Services Agreement, in each case, on the basis of the drafts thereof attached to the form of the Transition Services Agreement as of the date hereof (the “Drafts”), taking into account in good faith the state of the negotiations thereof as reflected in such Drafts. The Parties agree that the pricing methodology for the schedules to the Transition Services Agreement shall be based on the Cost Methodology (as defined in the Transition Services Agreement), provided that the pricing methodology for services with respect to which service fees are reflected in the Drafts shall be as set forth in the Drafts. Unless otherwise mutually agreed, any additional services to be reflected in the schedules to the Transition Services Agreement shall be limited to services necessary to operate the Business in substantially the manner in which the Business was operated during the Reference Period (as defined in the Transition Services Agreement) in all material respects, and that were provided by Seller or its Affiliates to the Business during the twelve (12)-month period immediately preceding the Closing.
Section 5.22. Early Renewal Contracts. With respect to any Early Renewal Contract that has ARR with respect to the Business in excess of $100,000, Seller shall use reasonable best efforts to notify Purchaser, to the extent reasonably practical (and if not practical, promptly thereafter), of the renewal thereof prior to effecting such Early Renewal. From time to time upon the written request of the Purchaser, but in no event more than once per month, Seller shall provide Purchaser with a summary, with reasonable supporting details, in all material respects of the net impact on the ARR of the Business resulting from Early Renewal Contracts during the most recent practical period.
Article VICERTAIN TAX MATTERS
Section 6.1. Straddle Periods. In the case of any Straddle Period, (a) Property Taxes allocable to the Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of calendar days during the Straddle Period that are in the Pre-Closing Tax Period and the denominator of which is the number of calendar days in the entire Straddle Period, and (b) Taxes (other than Property Taxes) allocable to the Pre‑Closing Tax Period shall be computed as if such taxable period ended on the Closing Date; provided that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the Pre-Closing Tax Period and the Post-Closing Tax Period in proportion to the number of days in each period.
Section 6.2. Tax Contests.
Section 6.3. Cooperation and Exchange of Information.
Section 6.4. Tax Treatment of Payments. Except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a)(1) of the Code or any similar provision of U.S. state or local or non-U.S. Law), Seller, Purchaser and their respective Affiliates shall treat any and all payments under Section 2.9 and Section 2.14, and any and all payments for indemnification under Article IX as purchase price adjustments for U.S. federal income and applicable state, provincial, local, and non-U.S. tax purposes; provided, however, that any amount that is required for Tax purposes to be treated as imputed interest under Section 483 or any other applicable provision of the Code or any similar provision of U.S. state or local or non-U.S. Law shall be treated accordingly for applicable Tax purposes.
Section 6.5. Tax Actions. From and after the Closing, except as required by applicable Law, without the prior written consent of Seller (such consent not to be unreasonably withheld, conditioned or delayed), Purchaser shall not, and shall not cause or permit any of its Affiliates to, (i) make, change or revoke any Tax election with respect to the Business, Purchased Assets or Assumed Liabilities with respect to the Pre-Closing Tax Periods, (ii) amend or cause to be amended any Tax Return of or with respect to the Business, Purchased Assets or Assumed Liabilities for any Pre-Closing Tax Period, (iii) take any action on the Closing Date after the Closing that is outside the ordinary course of business with respect to the Business, Purchased Assets or Assumed Liabilities and not otherwise contemplated by this Agreement, or (iv) initiate discussions or examinations with Taxing Authorities regarding Taxes of the Business, Purchased
Assets or Assumed Liabilities, or make any voluntary disclosures with respect thereto with respect to Pre-Closing Tax Periods.
Section 6.6. Transfer Taxes.
Article VIICONDITIONS PRECEDENT
Section 7.1. Conditions to Each Party’s Obligations to Close. The respective obligations of Seller and Purchaser to effect the Closing is subject to the satisfaction or waiver at or prior to the Closing of the following conditions:
Section 7.2. Conditions to Obligations of Purchaser to Close. The obligation of Purchaser to effect the Closing is subject to the satisfaction (or waiver by Purchaser) at or prior to the Closing of the following additional conditions:
Section 7.3. Conditions to Obligations of Seller to Close. The obligation of Seller to effect the Closing is subject to the satisfaction (or waiver in writing by Seller) at or prior to the Closing of the following additional conditions:
Article VIIITERMINATION; EFFECT OF TERMINATION
Section 8.1. Termination. Anything to the contrary in this Agreement notwithstanding, this Agreement may be terminated and the Transaction and the other transactions contemplated by this Agreement abandoned at any time prior to the Closing:
Section 8.2. Effect of Termination.
Section 8.3. Notice of Termination. In the event of termination by Seller or Purchaser pursuant to Section 8.1, written notice of such termination shall be given by the terminating party to the other party to this Agreement.
Article IXINDEMNIFICATION
Section 9.1. Survival. None of the representations and warranties, covenants and agreements in this Agreement shall survive the Closing, except for (i) those covenants and agreements contained herein that by their terms apply or are to be performed in whole or in part after the Closing, which shall survive indefinitely or until the latest date permitted by applicable Law, and (ii) this Article IX and Article X (and any corresponding definitions set forth in Article I). This Section 9.1 shall not limit any covenant or agreement of the parties hereto contained in this Agreement that by its terms contemplates performance after the Closing, and shall not extend the applicability of any covenant or agreement of the parties hereto contained in this Agreement that by its terms relates only to a period between the date of this Agreement and the Closing. Notwithstanding the foregoing, subject to Section 10.15, nothing in this Agreement shall limit (a) any party’s rights, remedies or ability to recover any amounts in the case of Fraud or (b) limit or restrict the Purchaser’s recovery against the R&W Insurance Policy, which claims shall not be subject to the survival limitations set forth in this Section 9.1.
Section 9.2. Indemnification by Seller.
Section 9.3. Indemnification by Purchaser. Subject to the provisions of this Article IX), effective as of and after the Closing, Purchaser shall indemnify, defend and hold harmless Seller and its Affiliates, and its and their respective officers, directors, employees, agents, equityholders, successors and assigns (collectively, the “Seller Indemnified Parties” XE "Seller Indemnified Parties” \t “9.3” ), from and against any and all Covered Losses incurred or suffered by any of the Seller Indemnified Parties to the extent arising out of or resulting from (a) any breach of any covenant or agreement of Purchaser contained in this Agreement to be performed by Purchaser following the Closing and (b) any Assumed Liability.
Section 9.4. Procedures.
Section 9.5. Exclusive Remedy and Release. Purchaser and Seller acknowledge and agree that, except for claims for Fraud or as expressly set forth in the other Transaction Documents, following the Closing, (x) the indemnification provisions of Section 9.3 and specific performance of this Agreement pursuant to Section 10.6 shall be the sole and exclusive remedies of Seller and (y) the indemnification provisions of Section 9.2 and specific performance of this Agreement pursuant to Section 10.6 shall be the sole and exclusive remedies of Purchaser with respect to matters specifically set forth therein and the R&W Insurance Policy shall be the sole and exclusive remedies of Purchaser with respect to all other matters (including the breach of any representation or warranty contained herein), in each case of the foregoing clauses (x) and (y), for any Covered Losses and any other losses and Liabilities (including any Covered Losses from claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise and whether predicated on common law, statute, strict liability, the Comprehensive Environmental Response, Compensation and Liability Act or any other Environmental Law, or otherwise) that such party hereto may at any time suffer or incur, or become subject to, as a result of or in connection with this Agreement, the Transaction or the other transactions contemplated by this Agreement, including any breach of any representation or warranty in this Agreement by any party hereto, or any failure by any party hereto to perform or comply with any covenant or agreement that, by its terms, was to have been performed, or complied with, under this Agreement. Without limiting the generality of the foregoing and in furtherance thereof, from and after the Closing, the parties hereto hereby irrevocably waive (i) any right of rescission of this Agreement, and (ii) other than as provided in the foregoing, any claims for breach of contract, warranty, tortious conduct (including
negligence) or otherwise as a result of or in connection with this Agreement, the Transaction or the other transactions contemplated by this Agreement.
Section 9.6. Additional Indemnification Provisions. With respect to each indemnification obligation contained in this Agreement, all Covered Losses shall be net of any third-party insurance or indemnity, contribution or similar proceeds that have actually been recovered or are recoverable by the Indemnified Party in connection with the facts giving rise to the right of indemnification (it being agreed that if third-party insurance or indemnification, contribution or similar proceeds in respect of such facts are actually recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made), and the Indemnified Party shall use, and cause its Affiliates to use, commercially reasonable efforts to seek full recovery under all insurance and indemnity, contribution or similar provisions covering such Covered Loss. Upon making any payment to the Indemnified Party for any indemnification claim pursuant to this Article IX, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any third party insurers and any other third parties with respect to the subject matter underlying such indemnification claim, and the Indemnified Party shall assign any such rights to the Indemnifying Party upon written request of the Indemnifying Party.
Section 9.7. Limitation on Liability. Notwithstanding anything to the contrary contained in this Agreement (including this Article IX) or in any other Transaction Document, (i) neither party shall be liable to the other party or its Affiliates, whether in contract, tort (including negligence and strict liability) or otherwise, at law or in equity, and “Covered Losses” shall not include any amounts, in each case, for (a) any consequential, special, incidental or indirect damages (including lost profits, diminution of value, or damages calculated on multiple of earnings or other metrics approaches), in each case except to the extent reasonably foreseeable or payable to a third party or (b) any punitive damages except to the extent payable to a third party and (ii) in no event shall Seller’s maximum aggregate indemnifiable liability pursuant to Section 9.2(a) and in connection with any breach of any covenant or agreement of Seller contained in any other Transaction Document exceed an amount equal to the Final Purchase Price.
Section 9.8. Mitigation. Each of the parties hereto agrees to use its commercially reasonable efforts to mitigate its respective Covered Losses upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any Covered Losses that are indemnifiable hereunder.
Article XGENERAL PROVISIONS
Section 10.1. Entire Agreement. This Agreement and the other Transaction Documents, and the Schedules and Exhibits hereto and thereto, along with the Seller Disclosure Schedules and Purchaser Disclosure Schedules, constitute the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings relating to such subject matter. Neither party hereto shall be liable
or bound to the other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth herein and therein.
Section 10.2. Assignment. Neither this Agreement nor any of the rights or obligations of the parties hereunder may be assigned in whole or in part (including by operation of law in connection with a merger or consolidation or conversion) by Purchaser or Seller without the prior written consent of Seller (in the case of Purchaser) or Purchaser (in the case of Seller), which may be withheld in the absolute discretion of the party with such consent right, and any attempt to make any such assignment without such consent shall be null and void; provided, however, that (i) Purchaser may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to any Affiliate of Purchaser without the consent of Seller, but must remain liable hereunder, (ii) following the Closing, Seller may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to any Affiliate of Seller without the consent of Purchaser, but must remain liable hereunder, (iii) Seller may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to any entity that acquires all or substantially all of Seller’s assets related to this Agreement, whether by merger, stock purchase, asset purchase or otherwise without the consent of Purchaser (including any entity that acquires all or substantially all of the assets of Seller or any division or business segment of Seller), but, in each case Seller must remain liable hereunder and the applicable assignee must agree in writing to bound by the terms of this Agreement and the Transaction Documents applicable to Seller and any remaining obligations of Seller under this Agreement and the Transaction Documents will be fully assumed by such Person (including by operation of Law, if applicable), (iv) Purchaser may assign, in its sole discretion, any or all of its rights, interests and obligations under this Agreement to any entity that acquires all or substantially all of Purchaser’s assets related to this Agreement, whether by merger, stock purchase, asset purchase or otherwise without the consent of Seller (including any entity that acquires all or substantially all of the assets of Purchaser), but, in each case Purchaser must remain liable hereunder and the applicable assignee must agree in writing to bound by the terms of this Agreement and the Transaction Documents applicable to Purchaser and any remaining obligations of Purchaser under this Agreement and the Transaction Documents will be fully assumed by such Person (including by operation of Law, if applicable), (v) Seller may assign its rights and interests (but not its obligations) under this Agreement to any debt financing sources (or the agents for such debt financing sources) as collateral security without the consent of Purchaser but, in each case, must remain liable hereunder and (vi) Purchaser and its Affiliates may assign their rights and interests (but not their obligations) under this Agreement to any of the Debt Financing Sources (or the agents for the Debt Financing Sources) as collateral security without the consent of Seller, but, in each case, must remain liable hereunder. Notwithstanding the foregoing, Purchaser may not assign any of its rights, interests and obligations under this Agreement without the written consent of Seller to the extent any incremental withholding or other Tax is reasonably expected to be incurred by Seller or any of its Affiliates as a result of such assignment. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, heirs, executors, administrators and permitted assigns.
Section 10.3. Amendments and Waivers. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties hereto. By an instrument in writing, Purchaser, on the one hand, or Seller, on the other hand, may waive compliance by the other with any term or provision of this Agreement that the other party was or is obligated to comply with or perform. The failure or delay of any party to assert any rights or remedies shall
not constitute a waiver of such rights or remedies, nor shall any single or partial exercise thereof preclude any other or further exercise of any other right or remedy hereunder.
Section 10.4. No Third-Party Beneficiaries. Subject to Section 10.13, this Agreement, together with the other Transaction Documents and the Exhibits and Schedules hereto and thereto, are not intended to confer in or on behalf of any Person not a party to this Agreement (and their successors and assigns) any rights, benefits, causes of action or remedies with respect to the subject matter or any provision hereof; provided that (a) the Seller Parties are intended third-party beneficiaries of, and may enforce, Section 5.17, (b) the Released Purchaser Parties and the Released Seller Parties are third-party beneficiaries of, and may enforce, Section 5.18, to the extent applicable to such Released Purchaser Parties or Released Seller Parties, (c) the Related Parties of Seller or Purchaser, as applicable, are intended third-party beneficiaries of, and may enforce, Section 10.15, to the extent applicable to such Related Parties and (d) following the Closing, the Indemnified Parties are intended third-party beneficiaries of, and may enforce, the provisions of Article IX to the extent applicable to such Indemnified Parties.
Section 10.5. Notices. All notices and other communications to be given to any party hereunder shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service, or five (5) days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or when received in the form of an email transmission (receipt confirmation requested and without receipt by the sender of an automated notice of non-delivery), and shall be directed to the address set forth below (or at such other address or email address as such party shall designate by like notice):
Section 10.6. Specific Performance.
Section 10.7. Governing Law and Jurisdiction. Subject to Section 10.13, this Agreement and its enforcement, and any controversy arising out of or relating to the making or performance of this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to Delaware’s principles of conflicts of law. In addition, each of the parties hereto (a) submits to the exclusive personal jurisdiction of the Delaware Court of Chancery, in the event that any dispute (whether in contract, tort or otherwise) arises out of this Agreement or the Transaction or the other transactions contemplated hereby; (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (c) agrees that it will not bring any Proceeding relating to this Agreement or the Transaction or the other transactions contemplated hereby in any court other than the Delaware Court of Chancery; and (d) agrees that it will not seek to assert by way of motion, as a defense or otherwise, that (x) any such Proceeding (i) is brought in an inconvenient forum, (ii) should be transferred or removed to any court other than the above-named court or (iii) should be stayed by reason of the pendency of some other Proceeding in any court other than the above-named court, or (y) this Agreement or the subject matter hereof may not be enforced in or by the above-named court. Each
party hereto agrees that service of process upon such party in any such Proceeding shall be effective if notice is given in accordance with Section 10.5.
Section 10.8. Waiver of Jury Trial. SUBJECT TO SECTION 10.13, EACH PARTY TO THIS AGREEMENT WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, OR ANY OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH (INCLUDING IN CONNECTION WITH THE DEBT FINANCING) OR THE ADMINISTRATION THEREOF OR THE TRANSACTION OR ANY OF THE OTHER TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN. NO PARTY TO THIS AGREEMENT SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY RELATED INSTRUMENTS (INCLUDING IN CONNECTION WITH THE DEBT FINANCING). NO PARTY HERETO WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EACH PARTY TO THIS AGREEMENT CERTIFIES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT OR INSTRUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH ABOVE IN THIS Section 10.8. NO PARTY HERETO HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS Section 10.8 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
Section 10.9. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such a determination, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in a mutually acceptable manner in order that the Transaction and the other transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
Section 10.10. Counterparts. This Agreement may be executed in two (2) or more counterparts, all of which shall be considered an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one (1) or more such counterparts have been signed by each party hereto and delivered (by e-mail or otherwise) to the other party. Signatures to this Agreement transmitted by electronic mail in “portable document format” (“pdf”) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signatures. This Agreement has been executed in the English language. If this Agreement is translated into another language, the English language text shall in any event prevail.
Section 10.11. Expenses. Except as otherwise provided herein, whether or not the Closing takes place, and except as set forth otherwise in this Agreement, all costs and expenses incurred in connection with this Agreement, the Transaction and the other transactions contemplated hereby shall be paid by the party incurring such costs and expenses, including, with respect to the Seller Entities, the Transaction Expenses.
Section 10.12. Interpretation; Absence of Presumption. It is understood and agreed that the specification of any Dollar amount in the representations and warranties or covenants contained in this Agreement or the inclusion of any specific item in the Seller Disclosure Schedules or Purchaser Disclosure Schedules is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material, and no party hereto shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Seller Disclosure Schedules or Purchaser Disclosure Schedules in any dispute or controversy between the parties hereto as to whether any obligation, item or matter not described in this Agreement or included in the Seller Disclosure Schedules or Purchaser Disclosure Schedules is or is not material for purposes of this Agreement. Nothing herein (including the Seller Disclosure Schedules and the Purchaser Disclosure Schedules) shall be deemed an admission by either party hereto or any of its Affiliates, in any Proceeding or Action, that such party or any such Affiliate, or any third party, is or is not in breach or violation of, or in default in, the performance or observance of any term or provisions of any Contract. Notwithstanding any materiality, “Business Material Adverse Effect XE "Business Material Adverse Effect" \t "10.12" ” or “Purchaser Material Adverse Effect XE "Purchaser Material Adverse Effect" \t "10.12" ” qualifications in any of the representations and warranties of Seller or Purchaser in this Agreement, for administrative ease, certain items, information or other matters may be included in the Seller Disclosure Schedules or the Purchaser Disclosure Schedules that are not necessarily limited to items, information or matters required to be disclosed by this Agreement to be reflected in the Seller Disclosure Schedules or Purchaser Disclosure Schedules, as applicable, considered by Seller to be material to the Business or the financial condition or results of operations of the Business or considered by Seller or Purchaser to reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect, as applicable. Such additional matters are set forth for informational purposes and do not necessarily include other matters of a similar nature. Nothing contained in the Seller Disclosure Schedules or the Purchaser Disclosure Schedules is intended to broaden the scope of any representation or warranty contained in this Agreement. The fact that any item, information or other matter has been included, referred to or disclosed in the Seller Disclosure Schedules or the Purchaser Disclosure Schedules (a) shall not be construed to establish, in whole or in part, any standard of the extent disclosure is required (including any standard of materiality), for purposes of such schedules; (b) does not represent a determination by Seller or Purchaser, as applicable, that such item did not arise in the ordinary course of business; and (c) shall not constitute an admission or indication by Seller or Purchaser, as applicable, that such disclosure is required to be made pursuant to any of the representations and warranties contained in this Agreement. For the purposes of this Agreement, (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to
“Dollars XE "Dollars" \t "10.12" ” or “$” shall mean U.S. dollars, and whenever conversion of values to or from any currency other than U.S. Dollars for a particular date or period shall be required, such conversion shall be made using the closing rate provided by Bloomberg as of 10:00 a.m. New York time on the last Business Day of the calendar month prior to the applicable date or dates; (v) the word “including” and words of similar import when used in this Agreement and the Transaction Documents shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” means “and/or”; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) the headings contained in this Agreement and the other Transaction Documents are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement and the other Transaction Documents; (x) Seller and Purchaser have each participated in the negotiation and drafting of this Agreement and the other Transaction Documents and if an ambiguity or question of interpretation should arise, this Agreement and the other Transaction Documents shall be construed as if drafted jointly by the parties hereto or thereto, as applicable, and no presumption or burden of proof shall arise favoring or burdening any party by virtue of the authorship of any of the provisions in this Agreement or the other Transaction Documents and prior drafts of this Agreement or any Transaction Document or the fact that any clauses have been added, deleted or otherwise modified from any prior drafts of this Agreement or any Transaction Document shall not be used as an aide of construction or otherwise constitute evidence of the intent of the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of such prior drafts; (xi) a reference to any Person includes such Person’s successors and permitted assigns; (xii) any reference to “days” means calendar days unless Business Days are expressly specified; (xiii) 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 not a Business Day, the period shall end on the next succeeding Business Day; and (xiv) when reference is made to information that has been “made available,” “provided” or “delivered” to Purchaser or its Representatives, such reference shall only include any information maintained in the “Project Titan VDR” electronic data room hosted by Intralinks and accessible to Purchaser for a period beginning at least forty-eight (48) hours prior to the date hereof through the date hereof.
Section 10.13. Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary, Seller on behalf of itself and its Subsidiaries, hereby: (a) agrees that any Action, whether in Law or in equity, whether in contract or in tort or otherwise, involving the Debt Financing Sources Related Party, arising out of or relating to, this Agreement, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such Action to the exclusive jurisdiction of such court, and such Action (except to the extent relating to the interpretation of any provisions in this Agreement (including any provision in any documentation related to the Debt Financing that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the law of the State of New York)) shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another jurisdiction), (b) agrees not to bring or support any Action of any kind or description, whether in Law or in
equity, whether in contract or in tort or otherwise, against any Debt Financing Sources Related Party in any way arising out of or relating to this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (c) agrees that service of process upon Seller or its Subsidiaries in any such Action shall be effective if notice is given in accordance with Section 10.5, (d) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such Action in any such court, (e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law all rights to trial by jury in any Action brought against the Debt Financing Sources Related Parties in any way arising out of or relating to this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (f) agrees that none of the Debt Financing Sources Related Parties will have any liability to the Seller or any of its Subsidiaries (in each case, other than Purchaser and its Subsidiaries) relating to or arising out of this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in Law or in equity, whether in contract or in tort or otherwise (provided, that, notwithstanding the foregoing, nothing herein shall affect the rights of Purchaser against the Debt Financing Sources Related Parties with respect to the Debt Financing or any of the transactions contemplated hereby or any services thereunder) and (g) agrees that the Debt Financing Sources Related Parties are express third party beneficiaries of, and may enforce, any of the provisions in this Agreement reflecting the foregoing agreements in this Section 10.13 and such provisions and the definition of “Debt Financing Sources” and “Debt Financing Sources Related Parties” (and any other provision of this Agreement to the extent an amendment, supplement, waiver or other modification of such provision would modify the substance of this Section in a manner materially adverse to the Debt Financing Sources) shall not be amended in any way material and adverse to the Debt Financing Sources Related Parties without the prior written consent of the Debt Financing Sources.
Section 10.14. Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege. Purchaser waives and will not assert, and agrees to cause its Subsidiaries to waive and not to assert, any conflict of interest arising out of or relating to the representation, after the Closing, of Seller, any of its Affiliates or any shareholder, officer, employee or director of Seller or any of its Affiliates (any such Person, a “Designated Person” XE "Designated Person” \t “10.14” ) in any matter involving this Agreement, the other Transaction Documents or any other agreements or transactions contemplated hereby or thereby, including in connection with a dispute with Purchaser or its Affiliates (including in respect of any claim for indemnification by Purchaser), by Simpson Thacher & Bartlett or Choate, Hall & Stewart LLP (collectively, “Seller Counsel” XE "Seller Counsel” \t “10.14” and such representation the “Current Representation” XE "Current Representation” \t “10.14” ). Purchaser will not assert, and agrees to cause its Subsidiaries not to assert, any attorney-client or other applicable legal privilege or protection with respect to any communication during the Current Representation between Seller Counsel, on the one hand, and any Designated Person, on the other hand solely regarding this Agreement, the other Transaction Documents or any other agreements or transactions contemplated hereby or thereby, it being the intention of the parties hereto that all such rights to such attorney-client and other applicable legal privilege or protection and to control such attorney-client and other applicable legal privilege or protection shall be retained by Seller and that Seller, and not Purchaser or its Affiliates, shall have the sole right to decide whether or not to waive any attorney-client or other
applicable legal privilege or protection. Accordingly, from and after the Closing, none of Purchaser or its Affiliates shall have the right to use any such communications or to access the files of the Current Representation, all of which shall be and remain the property of Seller and not of Purchaser or its Affiliates, or to internal counsel relating to such engagement. Notwithstanding the foregoing, in the event that a dispute arises between Purchaser, any entities related to the Business or any of their respective Affiliates, on the one hand, and a third party after the Closing, on the other hand, Purchaser may assert, or cause any entities related to the Business to assert, the attorney-client privilege to prevent disclosure of confidential communications by Seller Counsel to such third party.
Section 10.15. Non-Recourse. Notwithstanding anything to the contrary in this Agreement, this Agreement and any other Transaction Document may only be enforced against, and any Action for breach of this Agreement or any other Transaction Document may only be made against, the entities that are expressly identified herein as parties to this Agreement or such other Transaction Document and none of the former, current and future Affiliates, directors, officers, managers, employees, advisors, Representatives, shareholders, members, managers, partners, successors and assigns of any party hereto or any Affiliate thereof or any former, current and future Affiliate, director, officer, manager, employee, advisor, Representative, shareholder, member, manager, partners, successor and assign of any of the foregoing (collectively, “Related Parties” XE "Related Parties” \t “10.15” ) that is not a party hereto or thereto shall have any Liability for any Liabilities of the parties hereto or thereto for any Proceeding (whether in tort, contract or otherwise) for breach of this Agreement, such Transaction Document or in respect of any oral representations made or alleged to be made in connection herewith or therewith, and none of the parties hereto or thereto shall have any rights of recovery in respect hereof against any Related Party that is not a party hereto or thereto and no personal Liability shall attach to any Related Party that is not a party hereto or thereto through any party hereto, thereto or otherwise, whether by or through attempted piercing of the corporate veil, by or through an Action (whether in tort, contract or otherwise) by or on behalf of a party hereto against any Related Party that is not a party hereto or thereto, by the enforcement of any judgment, fine or penalty or by virtue of any statute, regulation or other applicable Law or otherwise. Notwithstanding anything to the contrary in this Section 10.15, nothing in this Section 10.15 shall be deemed to limit an Action for Fraud or any Liabilities of, or claims against, any party to any Transaction Document or serve as a waiver of any right on the part of any party to such Transaction Document to initiate any Action permitted pursuant to, and in accordance with, the specific terms of such Transaction Document.