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$EXOD
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8-K
Exodus Movement, Inc. · Nov 24, 4:08 PM ET
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Exodus Movement, Inc. 8-K
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Contents
121
Article IDEFINITIONS
Section 1.1 Certain Defined Terms. For purposes of this Agreement:
Section 1.2 Table of Definitions. The following terms have the meanings set forth in the Sections referenced below:
Article IIPurchase and Sale of Shares
Section 2.1 Purchase and Sale.
Section 2.2 Closing.
Section 2.3 Payment for Shares; Closing Payments.
Section 2.4 Certain Deliveries.
Section 2.5 Closing Estimates and Consideration Schedule.
Section 2.6 Post-Closing Adjustment of Consideration.
Section 2.7 Withholding Rights. Notwithstanding anything to the contrary in this Agreement, each of Buyer and the Escrow Agent shall be entitled to deduct and withhold from any consideration deliverable or otherwise payable to any Person pursuant to this Agreement or in connection with the consummation of the transactions contemplated hereby, such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of applicable Law. Any amounts so deducted or withheld shall be treated for all purposes of this Agreement as having been paid to the applicable Person in respect to which such deduction and withholding was made. Other than with respect to withholding that is attributable to any failure of the Company to deliver the forms described in Section 7.2(f) at or prior to the Closing, the applicable payor shall use commercially reasonable efforts to provide the applicable payee with reasonable
advance notice of such payor’s intention to withhold and reasonably cooperate (in a timely manner) to minimize any such deduction or withholding to the extent permitted by applicable Tax Law.
Section 2.8 Reallocation of Forfeited Retention Bonus Amounts. Promptly following any forfeiture of any portion of a Retention Bonus Recipient’s Post-Closing Payment in accordance with the terms of such Retention Bonus Recipient’s applicable Retention Bonus Agreement (excluding, for the avoidance of doubt, any amount forfeited or paid to Buyer in satisfaction of any indemnity obligations pursuant to Article VIII), Buyer shall, in its sole discretion after reasonable consultation with the Company, reallocate the forfeited amount to one or more of the remaining Retention Bonus Recipients who then remain eligible to be paid all of such Retention Bonus Recipient’s Post-Closing Payment in accordance with the terms of such Retention Bonus Recipient’s applicable Retention Bonus Agreement; provided, that (a) the aggregate Retention Bonuses (including the employer portion of any employment or payroll Taxes thereon) shall not be increased as a result of any such reallocation, (b) any such reallocation shall be effected in compliance with applicable Law and the terms of the Retention Bonus Agreements, and (c) the employer portion of any employment or payroll Taxes in respect of any such reallocation shall be correspondingly adjusted. Following any such reallocation, the applicable Post-Closing Payment of the affected Retention Bonus Recipient(s) shall be deemed automatically adjusted for all purposes of this Agreement and the Ancillary Agreements.
Article IIIREPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Organization and Qualification.
Section 3.2 Authority.
Section 3.3 No Conflict; Required Filings and Consents.
Section 3.4 Capitalization.
Section 3.5 Equity Interests. Except for the Subsidiaries listed on Schedule 3.4(a)(ii) of the Disclosure Schedules, neither the Company nor any of its Subsidiaries directly or indirectly owns any equity, partnership, membership or similar interest in, or any interest convertible into, exercisable for the purchase of or exchangeable for any such equity, partnership, membership or similar interest in any Person. The Company is not under any current or prospective obligation to form or participate in, provide funds to, make any loan, capital contribution or other investment in, or assume any liability or obligation of, any Person.
Section 3.6 Financial Statements; No Undisclosed Liabilities.
Section 3.7 Absence of Certain Changes or Events. From the date of the applicable Balance Sheet: (a) except for undertaking the Transactions and the Pre-Closing Transaction Steps, the Company and its Subsidiaries have conducted their businesses in the ordinary course; (b) neither the Company nor any of its Subsidiaries has suffered any material loss, damage, destruction or other casualty affecting any of its material properties or assets, whether or not covered by insurance; (c) there has not been any Company Material Adverse Effect; and (d) except as set forth on Schedule 3.7 of the Disclosure Schedules, neither the Company nor any of its Subsidiaries has taken any action that, if taken after the date of this Agreement, would constitute a material breach of any of the covenants set forth in Section 6.1.
Section 3.8 Compliance with Law; Permits.
Section 3.9 Safeguarding. (i) Neither the Company nor any of its Subsidiaries have, at any time in the three (3) years prior to the date of this Agreement, engaged in any activity in violation in any material respects of applicable Laws relating to the safeguarding of customer funds, and (ii) the Company and its Subsidiaries are in compliance in all material respects with applicable Laws relating to the safeguarding of customer funds. The Company and its Subsidiaries have in place policies, systems, controls and procedures designed to prevent it from violating any applicable Laws relating to the safeguarding of customer funds.
Section 3.10 Litigation. Except as set forth on Schedule 3.10 of the Disclosure Schedules, there is no Action pending or, to the knowledge of the Company, threatened against the Company or any of its Subsidiaries, or any material property or asset of the Company and its Subsidiaries (taken as a whole), or any of the directors or officers of the Company or any of its Subsidiaries in their respective capacities as such, except as would not, individually or in the aggregate, be material to the
Company and its Subsidiaries, taken as a whole. There is no Action pending or, to the knowledge of the Company, threatened seeking to prevent, hinder, modify, delay or challenge the transactions contemplated by this Agreement or the Ancillary Agreements. There is no outstanding order, writ, judgment, injunction, decree, determination or award of, or pending or, to the knowledge of the Company, threatened investigation by, any Governmental Authority relating to the Company, any of its Subsidiaries, any of the material properties or assets of the Company and its Subsidiaries (taken as a whole), any of their respective officers or directors, or the transactions contemplated by this Agreement or the Ancillary Agreements, except as would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole. To the knowledge of the Company, there is no Action by the Company or any of its Subsidiaries pending, or which the Company or any of its Subsidiaries has commenced preparations to initiate, against any other Person.
Section 3.11 Employee Benefit Plans.
Section 3.12 Labor and Employment Matters.
Section 3.13 Title to, Sufficiency and Condition of Assets.
Section 3.14 Real Property.
Section 3.15 Intellectual Property.
Section 3.16 Taxes.
Section 3.17 Environmental Matters. Each of the Company and its Subsidiary (i) has complied in all material respects with all Environmental Laws; (ii) has not received any written notice of any alleged claim, complaint, violation of or liability under any Environmental Law (including any claim or complaint from any employee alleging exposure to Hazardous Materials); (iii) has not disposed of, emitted, discharged, handled, stored, transported, used or released any Hazardous Materials, or arranged for the disposal, discharge, storage or release of any Hazardous Materials; (iv) has not entered into any agreement that may require it to guarantee, reimburse, pledge, defend, hold harmless or indemnify any other party with respect to liabilities arising out of Environmental Laws or the Hazardous Materials related activities of the Company or its Subsidiary; and (v) has delivered to Buyer or made available for inspection by Buyer and its agents, representatives and employees all records in the possession or control of the Company or its Subsidiary concerning the Hazardous Materials activities of the Company or its Subsidiary and all environmental audits and environmental assessments of any facility owned, leased or used at any time by the Company or its Subsidiary conducted at the request of, or otherwise in the possession or control of the Company or its Subsidiary. There are no Hazardous Materials in, on or under any properties owned, leased or used at any time by the Company or its Subsidiary which could give rise to any material liability to the Company or any of its Subsidiaries (taken as a whole) or any material corrective or remedial obligation of the Company or any of its Subsidiaries (taken as a whole) under any Environmental Laws.
Section 3.18 Material Contracts.
Section 3.19 Affiliate Interests and Transactions. No Related Party of the Company or any of its Subsidiaries (other than the Company and its Subsidiaries), Seller or any person who is or will be a party to a Retention Bonus Agreement: (a) owns, directly or indirectly, 5% or more of the equity or other financial or voting interest in any competitor or customer of the Company or any of its Subsidiaries; (b) owns, directly or indirectly, or has any interest in any property (real or personal, tangible or intangible) that the Company or any of its Subsidiaries uses in or pertaining to the business of the Company or any of its Subsidiaries; or (c) has any business dealings or a financial interest in any transaction with the Company or any of its Subsidiaries or involving any assets or property of the Company or any of its Subsidiaries, other than business dealings or transactions conducted in the ordinary course of business at prevailing market prices and on prevailing market terms.
Section 3.20 Insurance. Schedule 3.20 of the Disclosure Schedules sets forth a true and complete list of all casualty, directors and officers liability, general liability, product liability and all other types of insurance policies maintained with respect to the Company or any of its Subsidiaries, together with the carriers and liability limits for each such policy. All such policies are in full force and effect and neither the Company nor any of its Subsidiaries has received written notice of, nor to the knowledge of the Company, is there threatened, any cancellation, termination, reduction of coverage or material premium increases with respect to any such policy. All premiums with respect thereto have been paid to the extent due. No claim is currently pending under any such policy involving an amount in excess of $50,000. Schedule 3.20 of the Disclosure Schedules identifies which insurance policies are “occurrence” or “claims made” and which Person is the policy holder.
Section 3.21 Privacy and Security.
Section 3.22 Customers and Suppliers.
Section 3.23 Bank Accounts and Letters of Credit. Schedule 3.23 of the Disclosure Schedules lists (a) all bank accounts relating to the business and operations of the Company or its Subsidiaries (including the name of the bank or other institution where such account is located), and (b) all outstanding letters of credit issued by financial institutions for the account of the Company or its Subsidiaries (setting forth, in each case, the financial institution issuing such letter of credit, the maximum amount available under such letter of credit, the terms (including the expiration date) of such letter of credit and the party or parties in whose favor such letter of credit was issued). The Company has heretofore delivered to Buyer true, correct and complete copies of each letter of credit described in Schedule 3.23 of the Disclosure Schedules.
Section 3.24 Brokers. Except for D.A. Davidson & Co. (“Company Advisor” XE " QUOTE 0X201C “Company Advisor QUOTE 0X201D ”" \t “Section 3.24" ), the fees and expenses of which will constitute Transaction Expenses and be paid by Buyer at Closing, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Company or any of its Subsidiaries. The Company has furnished to Buyer a complete and correct copy of all agreements between the Company and Company Advisor pursuant to which such firm would be entitled to any payment relating to the transactions contemplated hereby.
Section 3.25 Compliance with Sanctions, Trade Laws, Anti-Corruption Laws and Anti-Money Laundering Laws. Except as set forth on Schedule 3.25 of the Disclosure Schedules:
Section 3.26 Acquisition Agreements. No party to any Acquisition Agreement (including the Company or any of its Subsidiaries) has made or, to the knowledge of the Company, threatened any claim, demand, notice of breach, set‑off or indemnification under or in connection with any Acquisition Agreement. There are no amounts owed or that may become payable by Buyer or its Affiliates (including, after the Closing, the Company and its Subsidiaries) under any Acquisition Agreement. All obligations required to be performed by the Company or any of its Subsidiaries under each Acquisition Agreement on or prior to the date hereof have been duly performed in all material respects (other than where the performance thereof has been waived in accordance with the terms of such Acquisition Agreement and this Agreement). To the knowledge of the Company, there are no facts or circumstances that would reasonably be expected to give rise to any such claim, demand, notice of breach, set‑off or indemnification under any Acquisition Agreement.
Section 3.27 Artificial Intelligence.
Section 3.28 No Other Representations and Warranties. Except for the Specified Seller Representations, Seller, the Company and their respective Affiliates and Representatives expressly disclaim and make no, and shall not be deemed to have made any, representation, warranty, statement or disclosure of any kind (whether express or implied, written or oral) to Buyer or any of their Affiliates or Representatives.
Article IVREPRESENTATIONS AND WARRANTIES OF SELLER
Section 4.1 Authority. Seller has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the other Ancillary Agreements to which Seller is or will be a party and to consummate the transactions contemplated hereunder and thereunder. This Agreement has been, and upon their execution each of the Ancillary Agreements to which Seller will be a party will have been, duly executed and delivered by Seller and, assuming due execution and delivery by each of the other parties hereto and thereto, this Agreement constitutes, and upon their execution each of the Ancillary Agreements to which Seller will be a party, will constitute, the legal,
valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms except as limited by the Bankruptcy and Equity Exceptions.
Section 4.2 Title to Shares. Seller is the record and beneficial owner of all of the Shares, free and clear of all Encumbrances or any other restrictions on transfer other than restrictions on transfer arising under applicable federal and state securities Laws. Seller has all requisite power and authority to sell, transfer, assign and deliver the Shares as provided herein, and at the Closing, Seller shall transfer to Buyer good and marketable title to the Shares, free and clear of all Encumbrances or any other restrictions on transfer other than restrictions on transfer arising under applicable federal and state securities Laws. Other than this Agreement, the Shares are not subject to any voting trust agreement or any other Contract restricting or otherwise relating to the voting, dividend rights or disposition of such Shares.
Section 4.3 No Conflict; Governmental Authorization.
Section 4.4 Brokers. Except for Company Advisor, the fees and expenses of which will constitute Transaction Expenses and be paid at Closing, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions
contemplated hereby or any of the Pre-Closing Transaction Steps based upon arrangements made by Seller or for which Buyer and its Subsidiaries (including the Company and its Subsidiaries) could have any liability or obligation following the Closing.
Section 4.5 No Other Representations and Warranties. Except for the representations and warranties made by Seller that are expressly set forth in this Article IV, Seller, the Company and their respective Affiliates and Representatives expressly disclaim and make no, and shall not be deemed to have made any, representation, warranty, statement or disclosure of any kind (whether express or implied, written or oral) to Buyer or any of their Affiliates or Representatives. Buyer, on behalf of itself and its Affiliates and Representatives, acknowledges and agrees that (i) except for the representations and warranties made by the Company that are expressly set forth in this Article IV, none of Seller or the Company, nor any of their respective Affiliates or Representatives, has made, or is making, any representation, warranty, statement or disclosure of any kind (whether express or implied, written or oral) with respect to any of the Company, its Subsidiaries or their respective businesses, operations, condition (financial or otherwise), pro forma financial information, cost estimates, financial or other projections, forecasts, estimates, budgets, plans or any other forward-looking statements of the Company or its Subsidiaries with respect to any other information, documents or other materials (including any due diligence or other materials contained in the virtual data room established in connection with this Agreement or reviewed by Buyer or any of its Affiliates or Representatives) or management presentations provided to Buyer or any of its Affiliates or Representatives and (ii) any such other representations or warranties are expressly disclaimed by the Company and Seller, and none of Buyer nor any Person on its behalf is entitled to rely on, or has relied on or is relying on, any such representation or warranty, if made.
Article VREPRESENTATIONS AND WARRANTIES OF BUYER
Section 5.1 Organization. Buyer (a) is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation and has full corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted and (b) is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties and assets occupied, owned, leased or operated by it or the nature of its business makes such qualification or licensing necessary, except for any such failures to be so qualified or licensed and in good standing that, individually or in the aggregate, have not had and would not reasonably be expected to have a Buyer Material Adverse Effect.
Section 5.2 Authority. Buyer has full corporate power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it will be a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Buyer of this Agreement and each of the Ancillary Agreements to which it will be a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of Buyer. No other corporate proceedings on the part of Buyer are necessary to authorize this Agreement
or any Ancillary Agreement or to consummate the transactions contemplated hereby or thereby. This Agreement has been, and upon their execution each of the Ancillary Agreements to which Buyer will be a party will have been, duly executed and delivered by Buyer, and, assuming due execution and delivery by each of the other parties hereto and thereto, this Agreement constitutes, and upon their execution each of the Ancillary Agreements to which Buyer will be a party will constitute, the legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms except as limited by the Bankruptcy and Equity Exceptions.
Section 5.3 No Conflict; Required Filings and Consents.
Section 5.4 Sufficiency of Funds. Buyer has available to it as of the date hereof, and will have available to it at the Closing, funds (which, for purposes of calculating funds available includes Virtual Currency held or owned by Buyer, calculated at its fair market value as of the relevant date) sufficient to enable Buyer to satisfy all of its obligations under this Agreement and the Ancillary Agreements, including payment of the Closing Date Consideration and any adjustments thereto contemplated by Section 2.6, and any fees and expenses of or payable by Buyer or any of its Affiliates, as and when contemplated by this Agreement or any Ancillary Agreement. In no event shall the receipt or availability of any funds or financing by Buyer or any Affiliate of Buyer or any other
financing or other transactions be a condition to any of Buyer’s obligations under, or contemplated by, this Agreement.
Section 5.5 Brokers. Except for Perella Weinberg Partners, the fees of which will be paid by Buyer, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of Buyer.
Section 5.6 Litigation. As of the Agreement Date, there is no Action that challenges, or that may have the effect of preventing, delaying, making illegal or otherwise interfering with, the Closing or any of the other transactions contemplated by this Agreement.
Section 5.7 No Other Representations and Warranties. Except for the representations and warranties made by Buyer that are expressly set forth in this Article V, Buyer and its Affiliates and Representatives expressly disclaim and make no, and shall not be deemed to have made any, representation, warranty, statement or disclosure of any kind (whether express or implied) to Seller, the Company or any of their respective Affiliates or Representatives.
Article VICOVENANTS
Section 6.1 Conduct of Business Prior to the Closing. Between the date of this Agreement and the Closing Date, except (1) if Buyer shall otherwise consent in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), (2) as expressly required by this Agreement (including the Pre-Closing Transaction Steps), applicable Law, or to comply with the express terms and conditions of any Acquisition Agreement or (3) as set forth on Schedule 6.1 of the Disclosure Schedules, the Company and its Subsidiaries shall, and Seller shall cause (A) the Company and its Subsidiaries (other than TigSiPay) to, and (B) take reasonable best efforts to cause TigSiPay to, conduct their respective businesses in the ordinary course of business and shall use commercially reasonable efforts to: (i) preserve substantially intact the business organization and assets of the Company and its Subsidiaries; (ii) keep available the services of the current officers and employees of the Company and its Subsidiaries; (iii) preserve the relationships of the Company and its Subsidiaries with customers, suppliers and other persons with which the Company or any of its Subsidiaries has significant business relations; and (iv) keep and maintain the assets and properties of the Company and its Subsidiaries in good repair and normal operating condition, wear and tear excepted. By way of amplification and not limitation, between the date of this Agreement and the Closing Date, neither the Company nor any of its Subsidiaries shall do, or propose to do, and Seller shall cause the Company and its Subsidiaries not to do, directly or indirectly, any of the following without the prior written consent of Buyer (not to be unreasonably withheld, and other than in respect of clause (y) which may be given or withheld in Buyer’s sole discretion) except (A) as required by Law, (B) as expressly required by this Agreement (including the Pre-Closing Transaction Steps) or to comply with the express terms and conditions of any Acquisition Agreement or (C) as set forth on Schedule 6.1 of Disclosure Schedules:
Section 6.2 Access to Information. From the date hereof through the Closing Date, the Company and its Subsidiaries shall afford Buyer and its Representatives reasonable access, during normal business hours and upon reasonable advance notice (including for inspection and copying) to the Representatives, properties, offices, plants and other facilities, books and records of the Company and each of its Subsidiaries, and shall furnish Buyer with such financial, operating and other data and information as Buyer may reasonably request, as may be required for Buyer to perform its obligations under this Agreement (including for purposes of reviewing the Estimated Closing Statement and the Consideration Schedule). Notwithstanding anything to the contrary contained herein or otherwise, neither the Company nor its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would reasonably be expected to (a) based on the advice of counsel, jeopardize the attorney-client privilege or other legal privilege or (b) contravene any applicable Law (provided, that, in each case, the Company shall use commercially reasonable efforts to provide such information, to the greatest extent practicable, in a manner that does not result in the loss of such privilege or contravention of Law, including by implementing appropriate redactions or otherwise disclosing such information in a manner that preserves such privilege or compliance with Law).
Section 6.3 Exclusivity. The Company agrees that between the date of this Agreement and the earlier of the Closing and the termination of this Agreement, the Company shall not, and shall take all necessary actions to ensure that none of the Company, its Subsidiaries, and any of their respective Affiliates and Representatives shall not, directly or indirectly: (a) solicit, initiate, consider, encourage or accept any proposal or offer than constitutes an Acquisition Proposal or (b) participate in any discussions, conversations, negotiations or other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way, assist or participate in, facilitate or encourage the submission of, any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal. The Company immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing. The Company shall notify Buyer promptly, but in any event within 48 hours, orally or in writing if any such Acquisition Proposal, or any inquiry or other contact with any Person with respect thereto, is made. Any such notice to Buyer shall indicate in reasonable detail the identity of the Person making such Acquisition Proposal, inquiry
or other contact and the terms and conditions of such Acquisition Proposal, inquiry or other contact. For purposes of this Agreement, “Acquisition Proposal” XE " QUOTE 0X201C “Acquisition Proposal QUOTE 0X201D ”" \t “Section 6.3" means any offer or proposal for, or any indication of interest in, any of the following (other than the Closing or the Pre-Closing Transaction Steps): (i) any direct or indirect acquisition or purchase of all or any portion of the capital stock or other equity or ownership interest of the Company or any of its Subsidiaries or assets of the Company or any of its Subsidiaries (other than inventory to be sold in the ordinary course of business), (ii) any merger, consolidation or other business combination relating to the Company or any of its Subsidiaries or (iii) any recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Company or any of its Subsidiaries. Following the execution and delivery of this Agreement, the Company shall cease any ongoing discussion regarding any Acquisition Proposal with any Person other than Buyer, its Affiliates or any of their respective Representatives and request such Person to return or destroy any confidential information provided by the Company.
Section 6.4 Press Releases and Announcements. The parties hereto will, and will cause each of their Affiliates to, and will direct each of their respective Representatives to, not issue, or cause the publication of, any public release or announcement concerning the transactions contemplated by this Agreement without the prior written consent of both Buyer and Seller (such consent shall not be unreasonably withheld, conditioned or delayed). The parties will publicly announce this Agreement and the transactions contemplated hereby at (a) a mutually agreed upon time following the execution hereof, and (b) pursuant to a mutually agreed upon press release prepared jointly through consultation by the parties prior to such time. Notwithstanding the foregoing, the foregoing shall not restrict or prohibit any of the parties hereto from making any release or announcement required by applicable Law or the rules or regulations of any securities exchange (in which case, the party hereto required to make the release or announcement shall allow the other party hereto reasonable time (which shall be no less than 48 hours) to comment on or seek a protective order with respect to such release or announcement in advance of such issuance). Each party hereto shall be responsible for any breach of this Section 6.4 by one or more of its Affiliates.
Section 6.5 Confidentiality. Each of the parties shall hold, and shall cause its Representatives to hold, in confidence all documents and information furnished to it by or on behalf of any other party to this Agreement in connection with the transactions contemplated hereby pursuant to the terms of the Mutual Confidentiality and Nondisclosure Agreement, dated February 12, 2025, between Buyer and the Company (the “Confidentiality Agreement” XE " QUOTE 0X201C “Confidentiality Agreement QUOTE 0X201D ”" \t “Section 6.5" ), which shall continue in full force and effect until the Closing. If for any reason this Agreement is terminated prior to the Closing, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms.
Section 6.6 Regulatory Approvals; Consents.
Section 6.7 Tax Matters.
Section 6.8 Employee Obligations.
Section 6.9 D&O Tail Policy.
Section 6.10 Notice and Disclosure of Certain Events. From the date hereof until the Closing, the Company shall promptly notify Buyer in writing of (a) any change, development or event, the existence, occurrence or taking of which (i) has had, or would reasonably be expected to have, a Company Material Adverse Effect or (ii) has resulted in, or would reasonably be expected to result in, the failure of any of the conditions set forth in Section 7.1 or Section 7.2 to be satisfied, (b) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement, (c) any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement or (d) any Action commenced or threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries that relates to the consummation of the transactions contemplated by this Agreement.
Section 6.11 Financials. The Company shall use reasonable best efforts prior to the Closing to (a) prepare or cause to be prepared, and deliver to Buyer the historical financial information required
to be filed by Buyer (including on Form 8-K) relating to the Company to comply with the rules and regulations of the SEC, including (i) preparation of pro forma financial statements that comply with the rules and regulations of the SEC (including the requirements of Regulation S-X), and (ii) provision of information reasonably requested by Buyer that is in Company’s possession or is prepared by Company in the ordinary course of business, including financial information for periods subsequent to those delivered under Section 3.6 and prior to the Closing Date, and (b) provide and make reasonably available, upon reasonable notice and during regular business hours, the appropriate employees of Company and its Subsidiaries to discuss the materials prepared and delivered pursuant to this Section 6.11; provided, however, that neither the Company nor its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would reasonably be expected to (i) based on the advice of counsel, jeopardize the attorney-client privilege or other legal privilege or (ii) contravene any applicable Law (provided that, in each case, the Company shall use commercially reasonable efforts to provide such information in a manner that does not result in the loss of such privilege or contravention of Law, including by implementing appropriate redactions or otherwise disclosing such information in a manner that preserves such privilege or compliance with Law). Notwithstanding anything herein to the contrary, in connection with the foregoing, as promptly as practicable following the date of this Agreement (and, in any event, within ten (10) Business Days), the Company shall (and Seller shall cause the Company to) engage a third-party auditor designated by Buyer to complete such audit, and Buyer shall promptly reimburse the Company, following the Company’s written request, for the reasonable and documented out-of-pocket expenses of such auditor incurred in connection with preparing such financial statements required by this Section 6.11.
Section 6.12 Termination of Related Party Contracts. Except as set forth on Section 6.12 of the Disclosure Schedules, prior to the Closing (but subject to the Closing), Seller and the Company shall cause the Related Party Contracts (including, for purposes of this Section 6.12, any Contract or other obligation entered into after the date of this Agreement that would have been a Related Party Contract if entered into prior to the date of this Agreement) to terminate without any further liability to or obligation on the part of the Company or any of its Affiliates (including, from and after the Closing, Buyer).
Section 6.13 Pre-Closing Transactions.
Article VII CONDITIONS TO CLOSING
Section 7.1 Conditions to Mutual Obligations. The respective obligations of each party hereto to consummate the Closing are subject to the satisfaction or, where permissible, written waiver by Buyer and Seller, at or prior to the Closing, of each of the following conditions:
Section 7.2 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the Closing are also subject to the satisfaction or written waiver by Buyer, at or prior to the Closing, of each of the following conditions:
Section 7.3 Conditions to Obligations of Seller. The obligations of Seller to consummate the Closing are also subject to the satisfaction or written waiver by Seller, at or prior to the Closing, of each of the following conditions:
Article VIIIINDEMNIFICATION
Section 8.1 Survival. The parties, intending to modify any applicable statute of limitations, agree that:
Section 8.2 Indemnification by Seller and Retention Bonus Recipients. From and after the Closing, Seller and the Retention Bonus Recipients shall severally (and not jointly and severally) and in proportion to their respective Pro Rata Share, save, defend, indemnify and hold harmless Buyer, the Company and their Affiliates, and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of foregoing for, any and all losses, damages (other than punitive damages except to the extent payable to a third-party), liabilities, deficiencies, claims, interest, awards, judgments, penalties, costs and out-of-pocket expenses (including out-of-pocket attorneys’ fees, costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses” XE " QUOTE 0X201C “Losses QUOTE 0X201D ”" \t “Section 8.2" ), asserted against, incurred, sustained or suffered by any of the foregoing to the extent as a result of, arising out of or relating to:
Section 8.3 Indemnification by Seller. From and after the Closing, Seller shall save, defend, indemnify and hold harmless Buyer, the Company and their Affiliates, and the respective Representatives, successors and assigns of each of the foregoing from and against, and shall compensate and reimburse each of foregoing for, any and all Losses asserted against, incurred, sustained or suffered by any of the foregoing to the extent as a result of, arising out of or relating to:
Section 8.4 Procedures; Satisfaction of Indemnifiable Losses.
Section 8.5 Limits on Indemnification. Notwithstanding anything to the contrary contained in this Agreement:
Section 8.6 Exclusive Remedy. Notwithstanding anything contained in this Agreement to the contrary, from and after the Closing, the rights provided in this Article VIII shall constitute the sole and exclusive remedy with respect to any Losses suffered in respect of any breach of any representation, warranty, covenant or agreement set forth in this Agreement or any certificate or instrument delivered by the Company pursuant to Section 7.2(d) or Section 7.2(f) this Agreement, except for (a) claims for Fraud, (b) actions for specific performance, injunctive relief or other equitable relief pursuant to Section 10.12 (c) matters to be resolved pursuant to the dispute resolution provisions set forth in Section 2.6 or (d) any claim brought pursuant to any Ancillary Agreement.
Section 8.7 Indemnification Escrow Accounts.
Section 8.8 Indemnification Tax Matters.
Article IXTermination
Section 9.1 Termination. This Agreement may be terminated at any time prior to the Closing:
Section 9.2 Effect of Termination. In the event of the termination of this Agreement in accordance with Section 9.1, this Agreement shall thereafter become void and have no further force and effect, and no party hereto shall thereafter have any liability or obligation to the other parties hereto or their respective Affiliates, except (a) the provisions of Section 6.4 (Press Releases and Announcements), Section 6.5 (Confidentiality), Section 6.11 (solely with respect to Buyer’s obligation to reimburse the Company for fees and expenses), this Section 9.2 (Effect of Termination) and Article X (General Provisions) (and any related definitional provisions set forth in Section 1.1), shall survive such termination in accordance with their respective terms and conditions and remain valid and binding obligations of the parties hereto in accordance with their respective terms and conditions, (b) that nothing herein shall relieve a party from liability for any Willful Breach of this Agreement; provided, however, that the sole and exclusive remedies of Seller and the Company (including, for this purpose, any Person making any claim by or through Seller or the Company) in the event of any Willful Breach of this Agreement or Fraud by Buyer or any of its Subsidiaries shall be (i) the
Company’s right, if applicable, to retain any amounts drawn under the Delayed Draw Term Facility Loan (together with any interest thereon) in accordance with the terms and conditions of the Delayed Draw Term Facility Loan, (ii) the rights of Seller, if applicable, to retain any amounts drawn under the Stockholder Loan in accordance with the terms and conditions of the Stockholder Loan, (iii) Seller and or the Company’s rights under Section 10.12, and (iv) the Company’s rights to reimbursement with respect to the payment of fees and expenses in accordance with Section 6.11 and (c) the Confidentiality Agreement shall survive any termination of this Agreement in accordance with its terms and conditions.
Article XGENERAL PROVISIONS
Section 10.1 Fees and Expenses. Except (i) the filing fees associated with making the Regulatory Filings pursuant to the last sentence of Section 6.6(a), (ii) the Transfer Taxes contemplated to be borne by Buyer or Seller, as applicable, pursuant to Section 6.6(b), and (iii) Buyer’s obligation to reimburse the Company for certain out-of-pocket fees and expenses in connection with the performance of Company’s obligations pursuant to Section 6.11, all fees and expenses incurred in connection with or related to this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby shall be paid by the party incurring such fees or expenses, whether or not such transactions are consummated; provided, that if the transactions contemplated hereby are consummated, Transaction Expenses shall be borne and paid as provided in this Agreement.
Section 10.2 Amendment and Modification. This Agreement may be amended, modified or supplemented by the parties by action taken or authorized by their respective Boards of Directors at any time prior to the Closing (notwithstanding any stockholder approval). This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment hereto, signed on behalf of each of the Company, Seller and Buyer.
Section 10.3 Extension. At any time prior to the Closing, the parties, by action taken or authorized by their respective Boards of Directors, may, to the extent permitted by applicable Law, agree to extend the time for the performance of any of the obligations or other acts of the parties. Any agreement on the part of a party to any such extension shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party.
Section 10.4 Waiver. At any time prior to the Closing, the parties may, by action taken or authorized by their respective Boards of Directors, to the extent permitted by applicable Law, (a) waive any inaccuracies in the representations and warranties of the other parties contained in this Agreement or any document delivered pursuant hereto or (b) subject to applicable Law, waive compliance with any of the agreements or conditions of the other parties contained herein. Any agreement on the part of a party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such party. No failure or delay of any party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.
Section 10.5 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery, if delivered personally or if by e‑mail (if without an automated rejection of delivery), (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on confirmed receipt following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
Section 10.6 Interpretation. When a reference is made in this Agreement to a Section, Article, Exhibit or Schedule such reference shall be to a Section, Article, Exhibit or Schedule of this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement or in any Exhibit or Schedule are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All words used in this Agreement will be construed to be of such gender or number as the circumstances require. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth herein. The word “including” and words of similar import when used in this Agreement will mean “including, without limitation,” unless otherwise specified. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to the Agreement as a whole and not to any particular provision in this Agreement. The term “or” is not exclusive. The word “will” shall be construed to have the same meaning and effect as the word “shall.” References to days mean calendar days unless otherwise specified. The phrase “to the extent” means “the degree by which” and not “if.” The words “either,” “or,” “neither,” “nor,” and “any” are not exclusive. References in this Agreement to “in the ordinary course of business” mean “in the ordinary course of business consistent with past practices”; and, with respect to any business, assets or entity of a Specified Business acquired by the Company or any of its Subsidiaries (whether contemporaneously with the entry into this Agreement or following the date of this Agreement), such references shall be construed by reference to the ordinary course of the Specified Businesses (as applicable) immediately prior to such acquisition, taking into account only changes that are consistent with maintaining ordinary‑course operations and are reasonable in light of such prior practices and the nature of the business. References to documents being “provided,” “made available,” “delivered” or “furnished” shall mean that any such document was posted in the electronic data room maintained and administered by the Company and hosted on Firmex in connection with the transactions contemplated hereby as of 1:00 pm Eastern Time on November 15, 2025. If any action under this Agreement is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter. Notwithstanding anything to the contrary in this Agreement, each representation and warranty set forth in this Agreement and the Ancillary Agreements is given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached,
and whether such other representation or warranty is more general or more specific, narrower or broader or otherwise, will not affect the incorrectness or breach of such particular representation or warranty.
Section 10.7 Entire Agreement. This Agreement (including the Exhibits and Schedules hereto), the Ancillary Agreements and the Confidentiality Agreement constitute the entire agreement, and supersede all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings among the parties with respect to the subject matter hereof and thereof. Notwithstanding any oral agreement or course of conduct of the parties or their Representatives to the contrary, no party to this Agreement shall be under any legal obligation to enter into or complete the transactions contemplated hereby unless and until this Agreement shall have been executed and delivered by each of the parties.
Section 10.8 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement, other than (a) the indemnification with respect to an Indemnified Party provided in Article VIII or a Company Indemnified Person provided in Section 6.9, (b) rights of Seller Released Parties and Buyer Released Parties pursuant to Section 10.19 and (c) the rights of the Retention Bonus Recipients as an Indemnifying Party under Article VIII.
Section 10.9 Governing Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware.
Section 10.10 Submission to Jurisdiction. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by any party or its successors or assigns against any other party shall be brought and determined in the Court of Chancery of the State of Delaware or, in the event, but only in the event that the Court of Chancery of the State of Delaware does not have subject matter jurisdiction, the Superior Court of the State of Delaware (Complex Commercial Division) or, if subject matter jurisdiction over the action or proceeding is vested exclusively in the federal courts of the United States of America, the United State District Court for the District of Delaware (the “Chosen Courts” XE " QUOTE 0X201C “Chosen Courts QUOTE 0X201D ”" \t “Section 10.10" ). Each of the parties hereby irrevocably submits to the exclusive jurisdiction of the Chosen Courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the Chosen Courts, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such Chosen Court. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process, and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally
subject to the jurisdiction of the Chosen Courts for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such Chosen Court or from any legal process commenced in such Chosen Courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such Chosen Court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such Chosen Courts. Notwithstanding the foregoing, the parties agree that disputes with respect to the matters referenced in Section 2.6 shall be resolved by the Independent Accounting Firm as provided therein.
Section 10.11 Assignment; Successors. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by any party without the prior written consent of Buyer (in the case of an assignment by Seller or the Company) or Seller (in the case of an assignment by Buyer and its Affiliates, including after the Closing, the Company), and any such assignment without such prior written consent shall be null and void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.
Section 10.12 Enforcement. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of the parties shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Chosen Courts, this being in addition to any other remedy to which such party is entitled at law or in equity. Each of the parties hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief.
Section 10.13 Currency. All references to “dollars” or “$” or “US$” in this Agreement or any Ancillary Agreement refer to United States dollars, which is the currency used for all purposes in this Agreement and any Ancillary Agreement, unless indicated otherwise.
Section 10.14 Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.
Section 10.15 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. NO PARTY SHALL SEEK A JURY TRIAL IN ANY PROCEEDING BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR THE ANCILLARY AGREEMENTS OR THE ADMINISTRATION THEREOF OR ANY OF THE OTHER TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN. NO PARTY HERETO WILL SEEK TO CONSOLIDATE ANY SUCH PROCEEDING IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER PROCEEDING IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EACH PARTY CERTIFIES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH ABOVE IN THIS SECTION 10.15. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 10.15 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
Section 10.16 Counterparts. This Agreement may be executed in two (2) or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party.
Section 10.17 Facsimile or .pdf Signature. This Agreement may be executed by facsimile or .pdf signature and a facsimile or .pdf signature shall constitute an original for all purposes.
Section 10.18 No Presumption Against Drafting Party. Each of Buyer and Seller acknowledges that each party to this Agreement has been represented by legal counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.
Section 10.19 Mutual Release.
Section 10.20 Non-Reliance.
Section 10.21 Attorney-Client Privilege.
Section 10.22 Limited Recourse. This Agreement and the Ancillary Agreements may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the Ancillary Agreements or the transactions contemplated hereby and thereby may only be brought against, the entities that are expressly named as parties hereto or thereto and then only with respect to the specific obligations set forth herein or therein with respect to such party. Each party hereto covenants, agrees and acknowledges that, except to the extent a named party to this Agreement or any Ancillary Agreement (and then only to the extent of the specific obligations undertaken by such named party in this Agreement or such Ancillary Agreement and not otherwise), no recourse under this Agreement or any Ancillary Agreement, any related document or any documents or instruments delivered in connection with this Agreement or any Ancillary Agreement or any related document shall be had against any past, present or future director, officer, employee, incorporator, member, manager, general or limited partner, direct or indirect equity holder, controlling Person, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing and none of such Persons shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one or more of the parties hereto under this Agreement or any Ancillary Agreement (whether for indemnification or otherwise) or of or for any claim based on, arising out of, or related to this Agreement or any Ancillary Agreement or the transactions contemplated hereby and thereby. Nothing set forth in this Section 10.22 shall limit any claim relating to or arising out of any Fraud.
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