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8-K
Feb 2, 7:57 AM ET
HAIN CELESTIAL GROUP INC 8-K
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Contents
131
ARTICLE IPurchase and Sale
SECTION 1.01. Purchase and Sale. Upon the terms and subject to the conditions of this Agreement, Seller agrees to, and agrees to cause the Asset Selling Subsidiaries to, sell, transfer, assign and deliver to Purchaser (and/or one or more of its designated affiliates), and Purchaser (and/or its applicable designated affiliate) agrees to purchase, acquire and accept from Seller and the Asset Selling Subsidiaries, free and clear of any and all Liens other than Permitted Liens, all of Seller’s and the Asset Selling Subsidiaries’ right, title and interest in, to and under the Transferred Assets for (i) the payment to Seller, to be received on behalf of itself and the Asset Selling Subsidiaries, of an aggregate purchase price of One Hundred Fifteen Million Dollars ($115,000,000) (the “Purchase Price”), payable as set forth in Section 2.02(b) and subject to adjustment as set
forth in Section 2.03, and (ii) the assumption of the Assumed Liabilities by Purchaser (and/or its applicable designated affiliates). The purchase and sale of the Transferred Assets and the assumption of the Assumed Liabilities are collectively referred to in this Agreement as the “Acquisition”.
SECTION 1.02. Transferred Assets and Excluded Assets. (a) The term “Transferred Assets” means all of Seller’s and the Asset Selling Subsidiaries’ right, title and interest in, to and under the assets listed below as of the Closing (other than as otherwise provided in this Section 1.02(a)):
SECTION 1.03. Consents to Certain Assignments. (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to transfer or assign, directly or indirectly, any Transferred Contract or Transferred Permit if an attempted direct or indirect transfer or assignment thereof, without the consent, approval or authorization (“Consent”) of the counterparty thereto or issuing Governmental Entity thereof (as applicable), would constitute a breach, default, violation or other contravention of the rights of such counterparty or Governmental Entity, would be ineffective with respect to any such Transferred Contract or Transferred Permit or would in any way adversely affect the rights of any member of Seller Group or any of their respective affiliates or, upon transfer, Purchaser or any of its affiliates, under such Transferred Contract or Transferred Permit. If any direct or indirect transfer or assignment by any member of Seller Group to Purchaser or any of its affiliates of, or any direct or indirect acquisition or assumption by Purchaser or any of its affiliates of, any Transferred Contract or Transferred Permit requires the Consent of a counterparty or issuing Governmental Entity (as applicable), then such transfer, assignment, acquisition or assumption shall be made subject to such Consent being obtained. Purchaser agrees that following Closing, no member of Seller Group nor any of their respective affiliates shall have any liability whatsoever to Purchaser or any of its respective affiliates arising out of or relating to the failure to obtain any such Consent that may be required in connection with the transactions contemplated by this Agreement or because of any circumstances resulting therefrom. Purchaser further agrees that no representation, warranty or covenant of Seller herein shall be breached or deemed breached, and except as expressly set forth in or required by Section 7.02, no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such Consent, (ii) any circumstances resulting therefrom or (iii) any claim, suit, action, proceeding, litigation or arbitration or investigation commenced or threatened by or on behalf of any person arising out of or relating to the failure to obtain any such Consent or any circumstances resulting therefrom.
SECTION 1.04. Assumption of Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable designated affiliate) shall assume, effective as of the Closing, and shall pay, perform and discharge when due thereafter, the following (and only the following) Liabilities of Seller and the Asset Selling Subsidiaries (collectively, the “Assumed Liabilities”):
ARTICLE IIClosing and Post-Closing Purchase Price Adjustment
SECTION 2.01. Closing. The closing of the Acquisition (the “Closing”) shall take place at the offices of Cravath, Swaine & Moore LLP, Two Manhattan West, New York, New York 10001, at 10:00 a.m., New York City time, on February 28, 2026, or, if the satisfaction (or, to the extent permitted by applicable Law, written waiver by the party entitled to the benefit thereof) of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions at such time) has not occurred by such date, on the second (2nd) business day following the satisfaction or waiver of such conditions, or at such other place, time and date as may be agreed by Seller and Purchaser. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. The Closing shall be deemed to be effective as of 12:01 a.m., New York City time, on the Closing Date (the “Effective Time”).
SECTION 2.02. Transactions To Be Effected at the Closing. At the Closing:
SECTION 2.03. Post-Closing Purchase Price Adjustment. (a) As soon as practicable following the Closing, but in no event later than ninety (90) days after the Closing Date, Purchaser shall deliver to Seller a written statement (the “Closing Inventory Statement”), setting forth its good faith calculation of the Transferred Inventory as of 12:01 a.m. on the Closing Date (“Closing Inventory”), which shall be determined in accordance with the Accounting Principles and will be calculated including only the line items set forth on the illustrative calculation of Closing Inventory in Exhibit B.
SECTION 2.04. Purchaser’s Recording and Similar Responsibilities. Purchaser shall be responsible for (a) recording the assignments of any Trademarks included in the Transferred Intellectual Property assigned pursuant to Section 2.02(a)(ii) following the Closing and (b) bearing all fees, duties and other costs (other than Transfer Taxes, which are governed by Section 10.02) payable in connection with (i) the transfer of such Transferred Assets and (ii) the recording and registration of title to the Transferred Assets, as and when required by applicable Law or local custom, in the name of Purchaser.
SECTION 2.05. Withholding. Notwithstanding anything in this Agreement to the contrary, Seller, Purchaser and their respective affiliates shall be entitled to deduct and withhold from any amount otherwise payable pursuant to this Agreement such amounts as Seller, Purchaser or their respective affiliates are required to deduct and withhold from such payment under applicable Tax Law; provided that, (a) the payor shall provide the payee with written notice of its (or its affiliate’s) intention to deduct or withhold and with reasonable details regarding the provision of Law that requires withholding and of the amounts to be deducted or withheld promptly after determining such deduction or withholding is required and, in any event, at least five (5) business days prior to the anticipated time of any payment subject to withholding and (b) provide the person in respect of which such deduction or withholding is intended to be made with a reasonable opportunity to deliver, or cause to be delivered, such forms, certificates or other evidence as would eliminate or reduce any such required deduction or withholding. The withholding party shall reasonably cooperate, and shall cause its affiliates to reasonably cooperate, in order to reduce or eliminate any amounts that would be required to be deducted and withheld on payments made pursuant to this Agreement. The withholding party shall deliver an original or certified copy of the return reporting such payment or other evidence of the remittance of the withheld Taxes as is reasonably satisfactory to the other party. To the extent that amounts are deducted or withheld in accordance with this Section 2.05 and paid to the appropriate Governmental Entity, such amounts will be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction or withholding was made. Notwithstanding anything in this Agreement to the contrary, if Purchaser is not a resident, for Tax purposes, of the same jurisdiction as the Seller or Asset Selling Subsidiary from which such Transferred Asset is purchased (a “Resident Jurisdiction”), Purchaser shall use commercially reasonable efforts to assign or transfer its rights to buy any Transferred Asset to an affiliate that is a resident, for Tax purposes, of a Resident Jurisdiction. If, as a result of Purchaser failing to make such a transfer or assignment, any amounts payable pursuant to this Agreement are subject to deduction or withholding (or increased deduction or withholding), then the Purchaser shall pay such additional amounts as necessary so that the total amount received by the Seller is equal to the amount that it would have received if such a transfer or assignment had been made. Notwithstanding the foregoing, to the knowledge of the parties as of the date hereof, absent a change in Law after the date of this Agreement, neither Purchaser nor any of its affiliates is aware of any obligation to withhold any amount from the payment of the Purchase Price (i) for U.S. Tax purposes, so long as Seller provides to Purchaser a duly executed W-9 reflecting the inapplicability of backup withholding or (ii) for Canadian Tax purposes.
ARTICLE IIIRepresentations and Warranties of Seller
SECTION 3.01. Organization and Standing; Power; Capitalization. (a) Each of Seller and the Asset Selling Subsidiaries is duly organized, validly existing
and in good standing (where such concept is recognized in the relevant jurisdiction) under the laws of its jurisdiction of incorporation or formation.
SECTION 3.02. Authority; Execution and Delivery; Enforceability. Seller and each Asset Selling Subsidiary have full corporate power and authority to enter into and execute this Agreement and the Ancillary Agreements to which they are, or are specified to be, a party and to consummate the transactions contemplated to be consummated by them by this Agreement and such Ancillary Agreements. Seller and each Asset Selling Subsidiary have taken all corporate action required to authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements to which they are, or are specified to be, a party and have obtained all necessary approvals from their respective governing bodies authorizing the consummation of the transactions contemplated to be consummated by them by this Agreement and such Ancillary Agreements. Seller has duly executed and delivered this Agreement and on or prior to the Closing, Seller and each Asset Selling Subsidiary will have duly executed and delivered each Ancillary Agreement to which they are, or are specified to be, a party. This Agreement constitutes, and each Ancillary Agreement to which Seller and each Asset Selling Subsidiary are, or are specified to be, a party will upon the Closing constitute, their legal, valid and binding obligation, enforceable against them in accordance with the terms of this Agreement and/or such Ancillary Agreement subject, as to enforcement, to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and to general equitable principles (the “Bankruptcy Exceptions”).
SECTION 3.03. No Conflicts or Violations; No Consents or Approvals Required. The execution, delivery and performance by Seller of this Agreement do not, the execution, delivery and performance by Seller and each Asset Selling Subsidiary of the Ancillary Agreements to which they are, or are specified to be, a party will not, and the consummation of the transactions contemplated to be consummated by them by this Agreement and such Ancillary Agreements will not conflict with or result in any breach of or constitute a default under, result in the creation of any Lien (other than Permitted Liens) upon any of the Transferred Assets, require a Consent or delivery of notice, or result in a breach, right to suspend, terminate or modify, or acceleration of any right or obligation, result in the loss of any benefit to which the Business is entitled, under any provision of (i) the organizational documents of Seller or any Asset Selling Subsidiary, (ii) any material Contract to which Seller or any Asset Selling Subsidiary is a party or bound or (iii) any judgment, order, decree, injunction or arbitration award (“Judgment”) or, to the Knowledge of Seller, any statute, law, ordinance, legally-binding rule, or regulation (“Law”) applicable to Seller or any Asset Selling Subsidiary, other than, in the case of the immediately preceding clauses (ii) and (iii), any such items that would not, individually or in the aggregate, reasonably be expected to be material to the Business or to have a material adverse effect on the ability of Seller to perform its obligations under this Agreement or to consummate the Acquisition or the other transactions contemplated
hereby or by the Ancillary Agreements. No Consent of, or filing or submission with, any Federal, state, local or foreign court, governmental agency, authority, instrumentality or regulatory body or arbitral body (a “Governmental Entity”) is required to be obtained or made by or with respect to Seller or any Asset Selling Subsidiary in connection with the execution, delivery and performance of this Agreement and/or any of the Ancillary Agreements or the consummation of the Acquisition and the transactions contemplated hereby and thereby, other than (A) those that may be required solely by reason of Purchaser’s (as opposed to any third party’s) participation in the Acquisition and the other transactions contemplated hereby and by any of the Ancillary Agreements and (B) those the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to be material to the Business or to have a material adverse effect on the ability of Seller to perform its obligations under this Agreement or to consummate the Acquisition or the other transactions contemplated hereby or by the Ancillary Agreements.
SECTION 3.04. Financial Statements. (a) Section 3.04 of the Seller Disclosure Letter contains copies of (i) the unaudited statements of income of the Business for the fiscal year ended June 30, 2025 and the six-month period ended December 31, 2025, and (ii) the unaudited statement of inventory of the Business as of June 30, 2025 and December 31, 2025 (collectively, the “Financial Statements”). The Financial Statements have been prepared from the books and records of the Seller Group in accordance with the Accounting Principles, applied on a consistent basis for the periods covered thereby. The Financial Statements accurately and fairly present in all material respects the financial position and results of operations of the Business at the dates and for the periods indicated therein, in accordance with the Accounting Principles. Purchaser acknowledges that the Seller Group has not operated the Business as a stand-alone entity and has not prepared stand-alone, GAAP or audited financial statements of the Business.
SECTION 3.05. Transferred Assets. Seller or the applicable Asset Selling Subsidiary has good, valid and marketable title to all material tangible Transferred Assets, free and clear of all mortgages, liens, charges, claims, pledges, security interests, judgments, escrows, options, rights of first refusal or first offer, indentures, equitable interests, transfer restrictions, and any other encumbrances of any kind (collectively, “Liens”), other than Permitted Liens. All tangible personal property owned or leased by Seller that is located at the Leased Property constitutes a Transferred Asset.
SECTION 3.06. Real Property.
SECTION 3.07. Intellectual Property and Data Privacy. (a) Seller or the applicable Asset Selling Subsidiary owns all Transferred Intellectual Property, and owns, or otherwise has a valid license or a right to use, all other material Intellectual Property used in the Business as presently conducted. Section 3.07(a) of the Seller Disclosure Letter sets forth a list, as of the date of this Agreement, of the (i) registered Trademarks and applications for Trademarks, (ii) registered Domain Names and (iii) registered Copyrights and applications for Copyrights included in the Transferred Intellectual Property (the “Registered Transferred Intellectual Property”), together with the registration numbers, the application numbers and the jurisdictions where the Registered Transferred Intellectual Property is registered or where applications have been filed, in each case, as applicable. The Registered Transferred Intellectual Property is subsisting and, to the Knowledge of Seller, is valid and enforceable in all material respects.
SECTION 3.08. Contracts. (a) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Business, (i) each Transferred Contract is valid, binding and in full force and effect and is enforceable by Seller or the applicable Asset Selling Subsidiary party thereto in accordance with their terms, subject, as to enforcement, to the Bankruptcy Exceptions; (ii) Seller or the applicable Asset Selling Subsidiary has performed all obligations required to be performed by it under all Transferred Contracts to which it is a party, and is not (with or without the lapse of time or the giving of notice, or both) in breach or default, in any material respect, under any Transferred Contract to which it is a party; (iii) to the Knowledge of Seller, no other party to any Transferred Contract is (with or without the lapse of time or the giving of notice, or both), in breach or default in any respect thereunder; (iv) no party to any Transferred Contract has exercised any termination or modification rights with respect thereto, and no party to any Transferred Contract or other person has notified any member of Seller Group in writing of its intention to do so; (v) there are no pending, unresolved, or, to the Knowledge of Seller, threatened disputes, under any Transferred Contract or with any Business Customer, Business Supplier, Co-Manufacturer or Warehousing Provider in respect of the Business; and (vi) to the Knowledge of Seller, no Business Customer, Business Supplier, Co-Manufacturer or Warehousing Provider has any intent to cancel or terminate or significantly reduce its relationship with any member of Seller Group.
SECTION 3.09. Permits. The Transferred Permits constitute all of the material Permits (a) Seller or the applicable Asset Selling Subsidiary possesses with respect to the Business and (b) which are required to conduct the Business. Each Transferred Permit is, in all material respects, validly held by Seller or the applicable Asset
Selling Subsidiary, and, to the Knowledge of Seller, Seller or the applicable Asset Selling Subsidiary is in compliance, in all material respects, with the terms and conditions thereof. Since January 1, 2023, Seller or the applicable Asset Selling Subsidiary has not received written notice of any Proceeding seeking to revoke or modify any material Transferred Permits.
SECTION 3.10. Taxes.
SECTION 3.11. Proceedings. (a) Section 3.11(a) of the Seller Disclosure Letter sets forth a list of each pending, and to the Knowledge of Seller, threatened Proceeding against or by a member of Seller Group that arises out of, relates to, is in respect of, the Transferred Assets, the Assumed Liabilities or the operation or conduct of the Business involving a claim in excess of $100,000, and (b) Section 3.11(b) of the Seller Disclosure Letter sets forth a list of all Proceedings of the nature described in clause (a) immediately above that have been concluded or settled since January 1, 2023. No member of Seller Group is a party or subject to or in default under any Judgment applicable to the Business, the Transferred Assets or the Assumed Liabilities.
SECTION 3.12. Business Employee Benefit Plans; Employment Matters. (a) Section 3.12(a) of the Seller Disclosure Letter sets forth a list, as of the date of this Agreement, of each material Business Employee Benefit Plan. With respect to each material Business Employee Benefit Plan, Seller has made available to Purchaser copies of the plan document and any amendments thereto or a written summary of its material terms.
SECTION 3.13. Absence of Certain Changes. (a) Since June 30, 2025 to the date of this Agreement, there has not been a Business Material Adverse Effect.
SECTION 3.14. Compliance with Applicable Law. (a) Seller and the Asset Selling Subsidiaries conduct (and have conducted during the previous three years) the Business in compliance, in all material respects, with all applicable Law, and (b) since January 1, 2023, no member of the Seller Group has received from any Governmental Entity any written notification of any material noncompliance of any Judgment, Order, Law or Permit with respect to the Business.
SECTION 3.15. Product Recalls; Product Compliance. (a) The Products comply with, and, since January 1, 2023, have complied with, in all material respects, the applicable provisions of the Federal Food, Drug, and Cosmetic Act and the applicable regulations, as amended (and similar Canadian Laws), and requirements adopted by the U.S. Food and Drug Administration (the “FDA”) thereunder, the applicable statutes, regulations and requirements of the U.S. Department of Agriculture (the “USDA”), the applicable statutes, regulations and requirements of the U.S. Federal Trade Commission (the “FTC” and, collectively with the FDA, the USDA and any other Governmental Entity, including any Canadian Governmental Entity, responsible for regulating food and dietary products, the “Product Authorities”), and any applicable Law or requirements and guidance established by any Governmental Entity responsible for regulating such products (collectively, “Product Laws”).
SECTION 3.16. Sufficiency of Transferred Assets. The Transferred Assets, together with the services to be provided to Purchaser pursuant to the Transition Services Agreement, (a) constitute all of the material assets owned by Seller and the Asset Selling Subsidiaries that are used in or held for use in, and that are otherwise necessary for, the operation and conduct of the Business in the ordinary course of business during the twelve (12) months prior to the Effective Time and (b) are sufficient in all material respects to permit Purchaser to conduct the Business in the ordinary course of business in the same manner conducted by Seller during the twelve (12) months prior to the Effective Time. To the Knowledge of Seller, the tangible personal property included in the Transferred Assets is, in all material respects, in good operating condition and repair (reasonable wear and tear excepted).
SECTION 3.17. Inventory. Section 3.17 of the Seller Disclosure Letter sets forth an accurate and complete list of the Inventory of the Business as of December 31, 2025. (i) All Transferred Inventory is owned by Seller or the applicable Asset Selling Subsidiary free and clear of all Liens other than Permitted Liens, and no Transferred Inventory is held on a consignment basis, (ii) the Transferred Inventory has been acquired and maintained at levels in the ordinary course of business consistent with past practice, (iii) substantially all of the Transferred Inventory is usable or saleable in the ordinary course of business consistent with past practice, except for aged, obsolete, damaged or defective items that have been written off or written down to fair market value or for which adequate reserves have been established, (iv) the quantity of the Transferred Inventory is reasonable in the present circumstances of the Business and (v) all Transferred Inventory, other than Inventory on order or in transit to be delivered to the Leased Property, is located at the Leased Property or the Service Provider Facilities.
SECTION 3.18. Brokers or Finders. No agent, broker, investment banker or other firm or person is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee in connection with the Acquisition and the other transactions contemplated hereby and by the Ancillary Agreements based upon arrangements made by or on behalf of Seller, except Goldman Sachs & Co. LLC, whose fees and expenses will be paid by Seller or a member of the Seller Group, on behalf of Seller.
SECTION 3.19. Transactions with Affiliates. None of the Transferred Contracts are Contracts between Seller or any Asset Selling Subsidiary, on the one hand, and any other member of the Seller Group (or any officer, director or manager of Seller or any other member of the Seller Group (each a “Related Party”)), on the other hand, and none of the Assumed Liabilities constitute liabilities or obligations of Seller or any Asset Selling Subsidiary to another member of the Seller Group.
ARTICLE IVRepresentations and Warranties of Purchaser
SECTION 4.01. Organization and Standing; Power. Purchaser is duly organized, validly existing and in good standing (where such concept is recognized in the relevant jurisdiction) under the laws of its jurisdiction or incorporation or formation. Purchaser has full corporate power and authority to enable it to own, lease or otherwise hold its properties and assets and to conduct its business as presently conducted by it, except where the failure to be so organized, existing or in good standing or to have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of Purchaser to perform its obligations under this Agreement or to consummate the Acquisition or the other transactions contemplated hereby and by the Ancillary Agreements (a “Purchaser Material Adverse Effect”). Purchaser is duly qualified or licensed to do business as a foreign corporation and is in good standing (where such concept is recognized in the relevant jurisdiction) in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification, licensing or good standing necessary, except where the failure to be so qualified or licensed or the failure to be in good standing would not, individually or in the aggregate, reasonably be expected to have a Purchaser Material Adverse Effect.
SECTION 4.02. Authority; Execution and Delivery; Enforceability. Purchaser has full corporate power and authority to execute this Agreement and the Ancillary Agreements to which it is, or is specified to be, a party and to perform its obligations under this Agreement and to consummate the Acquisition and the other transactions contemplated hereby and by the Ancillary Agreements. Purchaser has taken all corporate action required to authorize the execution and delivery of this Agreement and the Ancillary Agreements to which it is, or is specified to be, a party and to authorize the consummation of the Acquisition and the other transactions contemplated hereby and by the Ancillary Agreements. Purchaser has duly executed and delivered this Agreement and on or prior to the Closing will have duly executed and delivered each Ancillary Agreement to which it is, or is specified to be, a party, and this Agreement constitutes, and each Ancillary Agreement to which it is, or is specified to be, a party will after the Closing constitute, its legal, valid and binding obligation, enforceable against it in accordance with the terms of this Agreement or such Ancillary Agreement subject, as to enforcement, to the Bankruptcy Exceptions. No vote of holders of any class or series of capital stock of Purchaser is required in connection with the execution, delivery and performance by Purchaser, as applicable, of this Agreement or any Ancillary Agreement to which it is, or is specified to be, a party and the consummation by Purchaser of the Acquisition and the other transactions contemplated hereby and by the Ancillary Agreements.
SECTION 4.03. No Conflicts or Violations; No Consents or Approvals Required. The execution and delivery by Purchaser of this Agreement do not, the execution and delivery by Purchaser of the Ancillary Agreements to which it is, or is
specified to be, a party will not and the performance by Purchaser of this Agreement and the Ancillary Agreements to which it is, or is specified to be, a party and the consummation of the Acquisition and the other transactions contemplated hereby and by the Ancillary Agreements, will not conflict with, or result in any breach of or constitute a default under, or result in the creation of any Lien upon any of the properties or assets of Purchaser or any of its affiliates under, any provision of (i) the organizational documents of Purchaser or any of its affiliates, (ii) any Contract to which Purchaser or any of its affiliates is a party or by which any of their respective properties or assets is bound or (iii) any Judgment or applicable Law applicable to Purchaser or any of its affiliates or any of their respective properties or assets, other than, in the case of the immediately preceding clauses (ii) and (iii), any such items that would not, individually or in the aggregate, reasonably be expected to have a Purchaser Material Adverse Effect. No Consent of, or filing or submission with, any Governmental Entity is required to be obtained or made by or with respect to Purchaser or any of its affiliates in connection with the execution, delivery and performance of this Agreement or the consummation of the Acquisition or the other transactions contemplated hereby and by the Ancillary Agreements, other than (A) those that may be required solely by reason of Seller’s (as opposed to any third party’s) participation in the Acquisition or the other transactions contemplated hereby and by the Ancillary Agreements and (B) those the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to have a Purchaser Material Adverse Effect.
SECTION 4.04. Proceedings. There are not any (a) outstanding Judgments against Purchaser or any of its affiliates, (b) Proceedings pending or, to the knowledge of Purchaser, threatened against Purchaser or any of its affiliates or (c) investigations by any Governmental Entity that are pending or, to the knowledge of Purchaser, threatened against Purchaser or any of its affiliates that, in any such case, would, individually or in the aggregate, reasonably be expected to have a Purchaser Material Adverse Effect.
SECTION 4.05. Sufficiency of Funds. Purchaser has on the date of this Agreement, and will have on the Closing Date, available funds sufficient to satisfy all of Purchaser’s obligations under this Agreement (including the obligations under Article II), to pay any other amounts required to be paid by Purchaser in connection with the consummation of the Acquisition and pay all related fees and expenses on the Closing Date.
SECTION 4.06. Solvency. Assuming (a) satisfaction of the conditions to Purchaser’s obligation to consummate the Acquisition, (b) the accuracy of the representations and warranties of Seller contained in this Agreement, and (c) compliance by Seller and its affiliates with all of the covenants and other obligations hereunder, immediately after giving effect to the Acquisition, the payment of the Purchase Price and all amounts required to be paid by Purchaser hereunder in connection with the consummation of the Acquisition and all related fees and expenses of Purchaser, Purchaser, together with its respective subsidiaries, on a consolidated basis taken as a whole, will be Solvent as of Closing and immediately after the completion of the Closing. For the purposes of this Agreement, the term “Solvent”, when used with respect to any person and its subsidiaries, on a consolidated basis, means that, as of any date of determination, (i) the
amount of the “fair saleable value” of the assets of such person and its subsidiaries, on a consolidated basis, will, as of such date, exceed (A) the value of all “liabilities of such person and its subsidiaries, on a consolidated basis, including contingent and other liabilities”, as of such date, as such quoted terms are generally determined in accordance with applicable Law governing determinations of the insolvency of debtors, and (B) the amount that will be required to pay the probable liabilities of such person and its subsidiaries, on a consolidated basis, as of such date, on their existing debts (including contingent and other liabilities) as such debts become absolute and mature, (ii) such person and its subsidiaries, on a consolidated basis, will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which they are engaged or proposed to be engaged following such date, and (iii) such person and its subsidiaries, on a consolidated basis, will be able to pay their liabilities, including contingent and other liabilities, as they mature. For purposes of this definition, “not have an unreasonably small amount of capital for the operation of the businesses in which they are engaged or proposed to be engaged” and “able to pay their liabilities, including contingent and other liabilities, as they mature” means that such person and its subsidiaries, on a consolidated basis, will be able to generate enough cash from operations, asset dispositions or refinancing, or a combination thereof, to meet their obligations as they become due.
SECTION 4.07. Brokers or Finders. No agent, broker, investment banker or other firm or person is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee in connection with the Acquisition and the other transactions contemplated hereby and by the Ancillary Agreements based upon arrangements made by or on behalf of Purchaser, except Canaccord Genuity LLC, whose fees and expenses will be paid by Purchaser.
SECTION 4.08. No Additional Representations; No Reliance.
ARTICLE VCovenants
SECTION 5.01. Covenants Relating to Conduct of the Business. (a) Except in respect of matters (i) required by applicable Law, Judgment or a Governmental Entity, (ii) set forth in Section 5.01(a) of the Seller Disclosure Letter, (iii) consented to by Purchaser in writing (which consent shall not be unreasonably withheld, conditioned or delayed), (iv) specifically addressed in Section 5.01(b) or (v) otherwise permitted, contemplated or required by the terms of this Agreement or any Ancillary Agreement, from the date of this Agreement to the earlier of Closing and the termination of this Agreement pursuant to Section 8.01, Seller shall, and shall cause each other member of Seller Group to use commercially reasonable efforts to, (A) subject to the restrictions and exceptions set forth in Section 5.01(b) or elsewhere in this Agreement, conduct the Business in all material respects in the ordinary course, and (B) preserve intact and maintain the Business (including the Transferred Assets), the goodwill of the Business and the Business relationships with customers, suppliers, landlords, distributors, co-manufacturers and other business relationships that are material to the Business; provided that no action by any member of Seller Group with respect to matters specifically addressed by Section 5.01(b) shall be deemed a breach of this Section 5.01(a) unless such action would constitute a breach of Section 5.01(b).
SECTION 5.02. Access to Information. Seller shall, and shall cause the other members of Seller Group to, afford to Purchaser and its Representatives reasonable access, upon reasonable prior notice during normal business hours during the period prior to the Closing, to (a) personnel engaged primarily in the conduct of the Business and (b) properties, books, Contracts, commitments and records relating exclusively to the Business (other than the Excluded Assets) (other than any of the foregoing that relate to the negotiation and execution of this Agreement or any Ancillary Agreement or any proposals from other parties relating to any competing or alternative transactions); provided, however, that, in each case, such access does not unreasonably disrupt the normal operations of any member of Seller Group or the Business, provided further, however, that Seller and the other members of Seller Group shall not be obligated to provide such access or information if the applicable company determines, in its reasonable judgment, that doing so would reasonably be expected to (i) result in the disclosure of Trade Secrets or competitively sensitive information to third parties, (ii) violate any applicable Law or Judgment, (iii) breach any duty of confidentiality owed to any person whether such duty arises contractually, statutorily or otherwise, (iv) jeopardize the protection of any attorney-client or attorney work product privilege or similar privilege, (v) be adverse to the interests of any member of Seller Group in any pending or threatened Proceeding or (vi) expose any member of Seller Group to risk of liability for disclosure of Personal Data; provided that, in each case of the immediately preceding clauses (ii), (iii) and (iv), the parties shall reasonably cooperate in seeking an alternative means whereby Purchaser and its Representatives are provided access to such information in a manner that does not violate such applicable Law or Judgment or jeopardize such privilege, protection or confidentiality obligation. Notwithstanding anything to the contrary contained herein, prior to the Closing, none of Purchaser or its Representatives shall have any right to perform invasive or subsurface investigations or sampling of any environmental media or building materials at the properties or facilities of any member of Seller Group. Nothing in this Section 5.02 or elsewhere in this Agreement shall be construed to require Seller or any other member of Seller Group to prepare any reports, analyses, appraisals or opinions
that are not readily available (it being understood that Seller or any other member of Seller Group shall not be required to prepare any financial projections, forecasts or any other prospective or pro forma financial information). During the period prior to the Closing, Seller shall provide Purchaser with monthly financial information and sales reports with respect to the Business reasonably promptly following the end of each calendar month.
SECTION 5.03. Confidentiality. (a) From and after the Closing Date for a period of seven (7) years, Seller shall, and shall cause each other member of Seller Group and its and their respective officers, directors, employees, agents and Representatives to, keep confidential and not disclose to any other person, or use for their own benefit or the benefit of any other person, any Trade Secrets to the extent consisting of the formulas, recipes or specifications for any Product sold as of the Closing.
SECTION 5.04. Efforts to Consummate the Transaction. (a) On the terms and subject to the conditions of this Agreement, including this Section 5.04, each of Purchaser and Seller shall (and shall cause their respective affiliates to) use reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, and in any event, prior to the Outside Date, the Acquisition, including:
SECTION 5.05. Contact with Customers, Suppliers and Employees. Notwithstanding anything to the contrary contained in this Agreement, from the date of this Agreement until the earlier of Closing and any termination of this Agreement in
accordance with Section 8.01, Purchaser and its affiliates shall not, without the prior written consent of Seller (which consent will not be unreasonably withheld, delayed or conditioned), have any contact or discussions concerning the Business, the Transferred Assets, the Assumed Liabilities, and the Acquisition, with any person known by Purchaser or the applicable affiliate to be an employee, supplier, customer, vendor, payor, distributor, regulator, landlord, lessor, or bank creditor (or other lender) of Seller or any other member of Seller Group.
SECTION 5.06. Insurance. Purchaser acknowledges that Purchaser shall not be entitled to coverage under any insurance policies maintained by any member of Seller Group or any of their respective affiliates from and after the Closing.
SECTION 5.07. Non-Competition.
SECTION 5.08. Exclusivity. From the date of this Agreement until the earlier of Closing and any termination of this Agreement in accordance with Section 8.01, Seller shall not, and Seller shall cause each member of the Seller Group and its and their respective Representatives not to, directly or indirectly, solicit, initiate, pursue or encourage any inquiries or proposals from, participate in or enter into any discussion or negotiation with, provide any non-public information to, or enter into any agreement with, any person (other than Purchaser) relating to, the direct or indirect sale of the Business (an “Alternative Transaction”). On the date hereof, Seller shall terminate access for all persons other than Purchaser and its affiliates and Representatives to all virtual data rooms established in connection with the sale process relating to the transactions contemplated hereby (or any such Alternative Transaction) and instruct all such persons to return or destroy all confidential information provided to them by or on behalf of the Seller Group in connection therewith.
SECTION 5.09. Non-Disclosure Agreements; Restrictive Covenant Agreements. (a) Promptly following the date of this Agreement, Seller will deliver notices to each counterparty under the Shore Non-Disclosure Agreements (other than Seller) requesting the return or destruction of all confidential information provided to such counterparty thereunder. From and after the Closing, upon the request and at the direction of Purchaser and at Purchaser’s sole expense, Seller agrees to exercise any rights granted to Seller with respect to the Business under the Shore Non-Disclosure Agreements.
SECTION 5.10. Risk of Loss; Casualty. All risk of loss or damage with respect to the Transferred Assets and the Business shall remain with Seller until the Closing and, assuming the occurrence of the Closing, shall pass to Purchaser effective as of the Closing. If, prior to the Closing, any damage to or loss of any of the Transferred Assets or the Business (including the Leased Property) occurs due to fire, flood, riot, theft, Act of God or other casualty or by reason of condemnation (each, an “Insurable Loss Event”), and the estimated total cost of repair or replacement with respect to such Insurable Loss Event exceeds $500,000 then Seller shall (A) pursue recovery under any occurrence-based Insurance Policies (“Occurrence Based Policies”) with respect to, and make any applicable or potentially applicable insurance coverage under the Occurrence Based Policies available to Purchaser for claims arising out of, any Insurable Loss Event occurring at or prior to the Closing relating to the Transferred Assets or the Business, and (B) pursue recovery under any claims-made Insurance Policies (“Claims Made Policies”) with respect to, and make any applicable or potentially applicable insurance coverage under the Claims Made Policies available to Purchaser for claims made prior to or after the Closing that arise out of, any Insurable Loss Event occurring at or prior to the Closing relating to the Transferred Assets or the Business, and in each case of clauses (A) and (B) above, Seller shall pay to Purchaser the net proceeds received thereunder with respect to such Insurable Loss Event.
SECTION 5.11. Payment of Retained Liabilities. On and following the Closing, Seller will discharge, satisfy and perform all of the Retained Liabilities related to any Transferred Assets and/or the Business in full when due and payable (subject to resolution of any good faith dispute in the ordinary course between Seller and the applicable counterparty with respect to the amount due to such counterparty), and in a manner that is not detrimental to the Business or the relationships of the Business. In the event that any material dispute arises with the counterparty to any Retained Liability that (x) arises out of, relates to or is in respect of the ownership or operation by Seller or the Asset Selling Subsidiaries of any Transferred Assets or the Business prior to the Closing and (y) could reasonably be expected to impair or adversely affect the conduct of the Business by Purchaser after Closing or otherwise involves a material business relationship of the Business, Seller shall provide written notice to Purchaser specifying the existence and nature of such dispute and shall reasonably cooperate with Purchaser in the resolution of such dispute, taking into account in good faith the input of Purchaser with respect to the resolution thereof.
ARTICLE VIEmployment Matters
SECTION 6.01. Continuation of Employment; Credited Service. (a) No later than ten (10) days prior to the Employee Leasing End Date, Purchaser shall offer employment, effective as of 12:01 a.m., local time, on the day after the Employee Leasing End Date (the “Transfer Time”), to all Business Employees who are then Leased
Employees (as defined in the Transition Services Agreement) (each such Business Employee, an “Offer Employee”) and who on the Employee Leasing End Date are actively at work (each, an “Active Employee”). For purposes of this Agreement, any such Offer Employee who is not actively at work on the Employee Leasing End Date due to paid time-off, jury duty or bereavement leave in accordance with applicable policies of Seller Group shall be deemed an Active Employee. With respect to each Offer Employee who is not an Active Employee (an “Inactive Employee”), Purchaser shall make an offer of employment to each such Inactive Employee effective as of the date on which such Inactive Employee presents himself or herself to Purchaser for active employment following the Closing to the same extent, if any, as the applicable member of Seller Group would be required to make an offer to such Inactive Employee if such Inactive Employee were an Active Employee on the Closing Date, provided that such Inactive Employee is able to return to work within six (6) months following the Employee Leasing End Date. Each offer of employment required to be made pursuant to this Section 6.01 shall (A) be for a position that is comparable to the type of position held by the applicable Business Employee (or a position that is generally commensurate with the Business Employee’s seniority with the Seller Group), as of immediately prior to the Closing, at a geographic location that is within twenty (20) miles of such Business Employee’s place of work immediately as of immediately prior to the Closing (provided that, for any Business Employee working remotely, such place of work shall be deemed by Purchaser to be such Business Employee’s home and for any Business Employee not working remotely prior to Closing, such place of work may be deemed by Purchaser to be such Business Employee’s home), (B) contain other employment terms that are substantially comparable in the aggregate to the terms of the applicable Business Employee’s employment with the applicable member of Seller Group as of immediately prior to the Closing, (C) for non-U.S. Business Employees, be made on terms sufficient to avoid statutory or common law obligations and (D) otherwise comply with the covenants set forth in this Article VI. Each Offer Employee who accepts Purchaser’s offer of employment made pursuant to this Section 6.01 and becomes an employee of Purchaser pursuant to this Section 6.01 is referred to herein as a “Transferred Employee”. Effective as of the Transfer Time, each Transferred Employee shall cease to be an employee of any member of Seller Group and shall cease to participate in any Business Employee Benefit Plan, except to the extent applicable Law requires otherwise. In the case of any Inactive Employee who becomes a Transferred Employee following the day after the Employee Leasing End Date, all references in this Agreement to the Transfer Time shall be deemed to be references to 12:01 a.m. on the date that such individual becomes a Transferred Employee. Nothing herein shall be construed as a representation, warranty, covenant or guarantee by Seller that some or all of the Business Employees will accept the offer of employment from Purchaser.
SECTION 6.02. Continuation of Benefits. During the period beginning on the Transfer Time and ending on the earlier of (A) the first anniversary of the Closing Date and (B) with respect to any particular Transferred Employee, the date on which such Transferred Employee’s employment with Purchaser terminates, Purchaser shall provide each Transferred Employee with (a) salary or wages (as applicable) and target short-term bonus opportunities that, in each case, are no less favorable to such Transferred Employee than those in effect immediately prior to the Closing Date, (b) target long-term cash incentive opportunities with a grant date value no less than the corresponding target opportunity for such Transferred Employee set forth in the Business Employee Census and with a maximum vesting term of three (3) years and (c) other employee benefits that are substantially comparable in the aggregate to those provided by Seller Group to such Transferred Employee immediately prior to the Closing Date pursuant to the plans set forth on Section 3.12(a) of the Seller Disclosure Letter (excluding for the purposes of comparison defined benefit pension, retiree health or welfare and change in control benefits and equity or equity-based compensation). Effective as of the Closing Date, Seller shall transfer, or shall cause the applicable member of Seller Group to transfer, to Purchaser all personnel records with respect to the Transferred Employees in accordance with applicable Law. For the avoidance of doubt, Seller Group shall not transfer to Purchaser, and Purchaser shall not assume, (x) any Business Employee Benefit Plan or (y) any assets arising out of, relating to, or in respect of, such Business Employee Benefit Plan.
SECTION 6.03. Severance. Notwithstanding anything to the contrary in this Agreement, Purchaser agrees to provide each Transferred Employee whose employment is terminated by Purchaser on or before the first anniversary of the Closing Date with severance benefits that are no less favorable than the severance benefits, if any, that would have been provided by the severance arrangements applicable to such Transferred Employee immediately prior to the Closing, as set forth on Section 6.03 of the Seller Disclosure Letter and taking into account such Transferred Employee’s length of service with Seller Group, as provided in Section 6.01(b) (but excluding, for the avoidance of doubt, a termination of a Transferred Employee’s employment for cause). Seller and Purchaser intend that the Transferred Employees will have continuous and uninterrupted employment immediately before the Transfer Time with the Seller Group and immediately after the Transfer Time with Purchaser. For the avoidance of doubt, during the Employee Leasing Term (as defined in the Transition Services Agreement), Purchaser’s obligations shall be deemed satisfied to the extent that Purchase reimburses Seller amounts related to severance benefits paid by Seller in accordance with the terms of the Transition Services Agreement.
SECTION 6.04. Defined Contribution Plans. (a) Effective as of the Transfer Time, Purchaser shall create or designate a defined contribution pension plan (the “Purchaser DC Plan”) for the benefit of the Transferred Employees who participated in one or more of the defined contribution pension plans maintained by any member of Seller Group that are intended to be qualified under Section 401(a) of the Code immediately prior to the Closing Date (collectively, the “Seller DC Plan” and, such Transferred Employees,
the “DC Employees”). The DC Employees shall be given credit under the Purchaser DC Plan for all service with Seller and its respective affiliates and predecessors as if it were service with and compensation from Purchaser for purposes of determining eligibility and vesting under the Purchaser DC Plan to the same extent such service was recognized under the Seller DC Plan. The Purchaser DC Plan shall be tax-qualified in the same manner as the Seller DC Plan.
SECTION 6.05. Certain Welfare Benefits Matters. (a) No later than the Transfer Time, Purchaser shall, to the extent not yet established, establish or cause to be established, benefit plans that provide life insurance, health care (excluding retiree health care), dental care (excluding retiree dental care), accidental death and dismemberment insurance, disability and, if and to the extent necessary for purposes of Purchaser’s compliance with Section 6.02(b), other group welfare benefits for Transferred Employees (“Purchaser Welfare Plans”). Purchaser shall, and shall cause its affiliates to, use commercially reasonable efforts to (i) waive, or cause to be waived, all limitations as to preexisting conditions, exclusions, actively-at-work requirements and waiting periods with respect to participation and coverage requirements applicable to the Transferred Employees and their eligible dependents under the Purchaser Welfare Plans to the extent waived under the applicable corresponding Business Employee Benefit Plan immediately prior to the Transfer Time and (ii) provide each Transferred Employee and his or her eligible dependents with credit for any co-payments and deductibles paid prior to the Transfer Time in the calendar year in which the Transfer Time occurs for purposes of satisfying any applicable deductible or out-of-pocket requirements under any Purchaser Welfare Plan in which such Transferred Employee participates after the Transfer Time for the plan year during which the Transfer Time occurs.
SECTION 6.06. Accrued Vacation. To the extent that a Transferred Employee is entitled under applicable Law or any policy of Seller Group to be paid for any vacation days accrued or earned but not yet taken by such Transferred Employee as of the Transfer Time, Seller shall discharge the Liability for such vacation days.
SECTION 6.07. Liabilities. Except as set forth in the Transition Services Agreement, Seller shall assume, retain and discharge when due all Liabilities that (a) relate to any Business Employee (or any dependent or beneficiary thereof) who does not become a Transferred Employee (except as provided otherwise in Section 6.07(ii) below); (b) are for severance or other separation benefits (including claims for wrongful dismissal, notice of termination of employment or pay in lieu of notice) for any Business Employee, arising out of, or in respect of the employment or with any member of the Seller Group arising prior to the Closing Date (except as provided otherwise in Section 6.07(ii) below); (c) relate to any Business Employee who does not accept employment with Purchaser and become a Transferred Employee after receiving an offer that complies with Purchaser’s obligations under with Article VI; and (d) any employment-related claims, penalties and assessments in respect of any in respect of any Business Employee that occurred prior to the Closing Date. Purchaser shall assume all Liabilities that (i) relate to any Transferred Employee (or any dependent or beneficiary thereof) and arise on or after the Transfer Time with respect to the Transferred Employee’s employment with Purchaser, (ii) notwithstanding the immediately preceding sentence, are for severance or other separation benefits (including claims for wrongful dismissal, notice of termination of employment or pay in lieu of notice) for any Business Employee and arise out of
Purchaser’s failure to comply with its obligations under this Article VI, or (iii) Purchaser has agreed to assume or honor pursuant to this Article VI and, in each case of the immediately preceding clauses (i) through (iii), no member of Seller Group shall retain any such Liabilities. For the avoidance of doubt, Purchaser shall be responsible for any Liabilities of Purchaser from (A) any Transferred Employee termination of employment by Purchaser on or after the Transfer Time or (B) any Transferred Employee’s resignation from employment with Purchaser on or after the Transfer Time. Notwithstanding anything to the contrary herein, Purchaser shall not assume any Liabilities in respect of bonuses for the Business Employees for Seller’s 2026 fiscal year (and any such Liabilities shall be Retained Liabilities).
SECTION 6.08. Administration; Employee Communications. (a) Following the date of this Agreement, Seller and Purchaser shall reasonably cooperate in all matters reasonably necessary to effect the transactions contemplated by this Article VI, including exchanging information and data relating to workers’ compensation, employee benefits and employee benefit plan coverages, and in obtaining any governmental approvals required hereunder.
SECTION 6.09. Employment Tax Reporting Responsibility. Purchaser, and Seller hereby agree to follow the standard procedure for employment tax withholding as provided in Section 4 of Rev. Proc. 2004-53, I.R.B. 2004-34.
SECTION 6.10. No Third-Party Beneficiaries. Notwithstanding any other provision herein to the contrary and without limiting the generality of Section 12.02, no provision of this Article VI shall (a) be construed to establish, amend or modify any benefit or compensation plan, program, policy, agreement or arrangement, (b) limit the ability of Purchaser or any of its affiliates to amend, modify or terminate any benefit or compensation plan, program, policy, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them or (c) create any third-party beneficiary rights or obligations in any person (including for the avoidance of doubt any Business Employee) other than the parties hereto or any right to employment or continued employment or to a particular term or condition of employment with Purchaser or any of its affiliates.
ARTICLE VIIConditions to Closing
SECTION 7.01. Conditions to Each Party’s Obligations to Effect the Closing. The respective obligations of each party to effect the Closing are subject to the satisfaction (or, to the extent permitted by applicable Law, written waiver) on or prior to the Closing Date of the following conditions:
SECTION 7.02. Conditions to Obligations of Purchaser. The obligations of Purchaser to effect the Closing are further subject to the satisfaction (or, to the extent permitted by applicable Law, written waiver by Purchaser) on or prior to the Closing Date of the following conditions:
SECTION 7.03. Conditions to Obligation of Seller. The obligations of Seller to effect the Closing are further subject to the satisfaction (or, to the extent permitted by applicable Law, written waiver by Seller) on or prior to the Closing Date of the following conditions:
SECTION 7.04. Frustration of Closing Conditions. Neither of Purchaser or Seller may rely on the failure of any condition set forth in this Article VII to be satisfied if such failure was caused by such party’s or such party’s affiliates’ failure to act in good faith or to use its reasonable best efforts to cause the Closing to occur, as required by Section 5.04.
ARTICLE VIIITermination; Effect of Termination
SECTION 8.01. Termination. (a) This Agreement may be terminated at any time prior to the Closing Date:
SECTION 8.02. Effect of Termination. If this Agreement is terminated by either Seller or Purchaser and the transactions contemplated hereby are abandoned as provided in Section 8.01, this Agreement shall become void and of no further force and effect, without any liability or obligation on the part of any party, other than (i) Section 5.03 (relating to confidentiality), Sections 3.18 and 4.07 (relating to finder’s fees and broker’s fees), this Article VIII (relating to termination), Section 11.01 (relating to publicity) and Article XII (relating to miscellaneous matters), and (ii) to the extent that such termination results from (A) willful misconduct or knowing and intentional breach by a party of any covenant or agreement set forth in this Agreement (it being agreed that any failure by Purchaser to consummate the Closing when obligated to do so pursuant to the terms of this Agreement shall be deemed to be a knowing and intentional breach of this Agreement) or (B) Fraud. Nothing in this Section 8.02 shall be deemed to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.
ARTICLE IXIndemnification
SECTION 9.01. Non-Survival of Representations and Warranties. The parties hereto, intending to modify any applicable statute of limitations, agree that except with respect to Fraud, (a) the representations and warranties and (b) the covenants or agreements which require performance prior to Closing (the “Pre-Closing Covenants”), in each case, contained in this Agreement or any Ancillary Agreement or any certificate delivered pursuant hereto or thereto shall terminate effective as of the Closing and shall not survive the Closing for any purpose, and thereafter there shall be no liability on the part of, nor shall any claim be made by, any party or affiliate of any of the parties, with respect to any breach thereof, in each case, except as expressly set forth in this Article IX. In furtherance, not limitation, of the foregoing, the parties hereby agree that except with respect to Fraud, (i) the representations and warranties herein are intended solely to facilitate disclosure and to give effect to the conditions to Closing set forth in Article VII, (ii) the Pre-Closing Covenants are intended solely to give effect to the conditions to Closing
set forth in Article VII, and (iii) from and after the Closing, no party will have any entitlement, remedy or recourse, whether in contract, tort or otherwise, against any other party with respect to any breach of representations and warranties or the Pre-Closing Covenants contained in this Agreement or any certificate delivered pursuant to this Agreement (it being agreed that all such remedies, entitlements and recourse are expressly waived and released to the fullest extent permitted by applicable Law). Nothing herein shall affect the rights of the parties to specific performance or injunctive relief (or other equitable remedies) or to recover any damages with respect to the breach of any covenants or agreements to the extent such covenant or agreement by its terms contemplates performance (or prohibits actions) on or after Closing. Notwithstanding the foregoing or anything expressed or implied herein to the contrary, nothing in this Agreement shall relieve any person from liability arising out of Fraud (or waive, limit, impair or otherwise affect any rights, remedies, entitlements or recourse of the parties with respect to, or in the case of, Fraud), or otherwise effect the rights, liabilities and obligations of the parties as expressly set forth in this Article IX. All covenants and agreements contained in this Agreement that by their terms contemplate performance (or prohibit actions) on or following the Closing or otherwise expressly by their terms survive the Closing will survive the Closing in accordance with their terms, and nothing in this Agreement shall affect the rights, liabilities or obligations of the parties with respect thereto.
SECTION 9.02. R&W Insurance; Exclusive Remedy. The parties acknowledge and agree that Purchaser may obtain R&W Insurance in connection with the Acquisition and the other transactions contemplated hereby and by the Ancillary Agreements. The cost of such R&W Insurance and any fees, costs or deductibles associated therewith shall be borne solely by Purchaser. If obtained, Purchaser’s R&W Insurance shall contain a customary comprehensive waiver of any and all rights of subrogation and contribution the insurer might have against the Business, any member of Seller Group or any of their respective affiliates, other than in the case of Fraud. Seller shall be given at least five (5) business days to review such waiver and comment thereon (with such comments considered in good faith by Purchaser and such insurer) prior to binding any such R&W Insurance. Purchaser shall make a true and complete copy of the R&W Insurance, if any, available to Seller promptly following its effectiveness. Purchaser acknowledges and agrees that, from and after the Closing, the rights provided under the R&W Insurance, if any, shall be the sole and exclusive remedy of Purchaser with respect to any and all claims for a breach of the representations and warranties contained in this Agreement or any certificate delivered pursuant to this Agreement, except in the case of Fraud and except as expressly set forth in this Article IX.
SECTION 9.03. Indemnification of Purchaser. Subject to the other provisions of this Article IX, from and after the Closing, Seller shall indemnify and defend Purchaser and its affiliates and each of their respective officers, directors, partners, managers, employees, agents, successors, assigns and other Representatives (the “Purchaser Indemnitees”) and hold each of them harmless against and reimburse each of them for, any and all Losses incurred, arising out of or in connection with, or paid by any of them as a result of, any of the Retained Liabilities.
SECTION 9.04. Indemnification of Seller. Subject to the other provisions of this Article IX, from and after the Closing, Purchaser shall indemnify and defend Seller, any member of the Seller Group and each of its officers, directors, partners, managers, employees, agents, successors, assigns and other Representatives (the “Seller Indemnitees”) and hold each of them harmless against and reimburse each of them for, any and all Losses incurred, arising out of or in connection with, or paid by any of them as a result of, the Assumed Liabilities.
SECTION 9.05. Other Limitations and Guidelines.
SECTION 9.06. Third Party Claims.
SECTION 9.07. Claims Procedures. Any Losses incurred by a Purchaser Indemnitee shall be satisfied in the following order: (i) in the first instance, the Purchaser Indemnitee shall use commercially reasonable efforts to recover such Losses from the R&W Insurance, if any, to the extent such Losses are reasonably recoverable
under the R&W Insurance, and (ii) in the last instance, only to the extent such Losses have not been recovered under the R&W Insurance, if any, and the Purchaser Indemnitee is entitled to indemnification from Seller pursuant to Section 9.03, the Purchaser Indemnitee may recover directly from Seller in accordance with Section 9.03.
SECTION 9.08. Tax Treatment of Indemnification Claims. For U.S. federal income tax purposes and Canadian Tax purposes, except as otherwise required under applicable Law, payments made in respect of indemnification obligations under this Agreement shall be treated as an adjustment to the consideration for the Transferred Assets.
ARTICLE XTax Matters
SECTION 10.01. Allocation of Taxes in Straddle Period. For purposes of this Agreement, the portion of any Tax with respect to a Straddle Period that is allocable to the Pre-Closing Tax Period will be: (i) in the case of all real, personal, and intangible property Taxes and any other similar Taxes levied on a per diem basis, in each case imposed by reference to a period deemed to be the amount of such Taxes for the entire Straddle Period, multiplied by a fraction, the numerator of which is the number of calendar days of such Straddle Period in the Pre-Closing Tax Period and the denominator of which is the number of calendar days of such Straddle Period, and (ii) in the case of all other Taxes, determined as though the taxable year terminated at the end of the day prior to the Closing Date.
SECTION 10.02. Transfer Taxes. Notwithstanding anything herein to the contrary, all amounts payable under this Agreement are exclusive of Transfer Taxes. All Transfer Taxes shall be paid 50% by Seller and 50% by Purchaser. In addition, the party required by applicable Law shall, at its expense, prepare and timely file any Tax Returns relating to Transfer Taxes. Seller and Purchaser shall reasonably cooperate in timely making all filings, returns, reports and forms as necessary in connection with the payment of Transfer Taxes and to minimize or eliminate any Transfer Taxes, including, but not limited to, by Purchaser providing a purchase exemption certificate, its Transfer Tax registration number, or any other document or information as provided for under applicable Law.
SECTION 10.03. VAT. Notwithstanding anything herein to the contrary, all amounts payable under this Agreement are exclusive of VAT. Purchaser shall be solely liable and responsible for and will pay, if required by applicable Law, all VAT incurred in connection with this Agreement. If a member of the Seller Group is required by applicable Law to collect any VAT from Purchaser or its affiliates in connection with this Agreement, then Purchaser shall pay such VAT to the member of the Seller Group concurrent with the payment of the relevant amount payable pursuant to this Agreement and the member of the Seller Group shall report and remit such VAT to the applicable Governmental Entity. If requested by Purchaser in writing, Seller shall reasonably cooperate with Purchaser to minimize or eliminate, to the extent permissible under applicable Law, the amount of any VAT, provided, for the avoidance of doubt, that such
cooperation is not expected to result in any incremental costs to Seller (except as shall be reimbursed by Purchaser), including any incremental Taxes imposed on Seller or for which Seller may be liable. Seller shall provide Purchaser with all the information required under subsection 169(4) of the Excise Tax Act (Canada) and section 3 of the Input Tax Credit Information (GST/HST) Regulations (and their corresponding provincial equivalents), necessary for Purchaser for claiming any input tax credit, refund, rebate or similar reimbursement with respect to any VAT payable by Purchaser.
SECTION 10.04. Refunds. Purchaser shall pay to Seller any refund or credit described in Section 1.02(b)(vii), within ten (10) business days after receipt thereof, in the case of a refund, or in the case of a credit, within ten (10) business days after Purchaser or any of its affiliates file the Tax Return utilizing such credit. Seller shall pay to Purchaser any refund or credit described in Section 1.02(a)(ix), within ten (10) business days after receipt thereof, in the case of a refund, or in the case of a credit, within ten (10) business days after Seller or any member of Seller Group file the Tax Return utilizing such credit. If any portion of any refund or credit paid pursuant to this Section 10.04 is subsequently disallowed by any Governmental Entity, then the amounts previously paid hereunder shall be promptly reimbursed along with any interest and penalties owed in respect of such disallowed Tax refund or credit (net of any Taxes and other reasonable out-of-pocket expenses related thereto). The Parties shall use commercially reasonable efforts to obtain all such Tax refunds or credits.
SECTION 10.05. Allocation of Purchase Price.
ARTICLE XIAdditional Agreements
SECTION 11.01. Publicity. No public release or announcement concerning the transactions contemplated hereby or by any Ancillary Agreement shall be issued by any party or its affiliates and Representatives without the prior consent of the other party (which consent shall not be unreasonably withheld or delayed), except as such release or announcement may be required by applicable Law or the rules or regulations of any applicable securities exchange, in which case the party required to make the release or announcement shall allow the other party reasonable time to comment on such release or announcement in advance of such issuance; provided, however, that (a) notwithstanding such right of the non-disclosing party to comment thereon, any such release or announcement that is required by applicable Law may contain any information that counsel to the disclosing party, in its sole discretion, advises is required to be included therein and (b) Seller may make internal announcements to their respective employees that are consistent with the parties’ prior public disclosures regarding the transactions contemplated hereby or by any Ancillary Agreement. The parties agree that the initial press release to be issued with respect to the Acquisition shall be in the form, of substance and with timing agreed upon by the parties.
SECTION 11.02. Intellectual Property Matters.
SECTION 11.03. Support Services. Purchaser acknowledges that as of the Closing, no member of Seller Group shall have any obligation to provide any support or other services to Purchaser relating to the Business other than those services expressly required to be provided pursuant to the Transition Services Agreement, which agreement shall be entered into by Seller and Purchaser as of the Closing.
SECTION 11.04. Books and Records; Post-Closing Information. (a) Purchaser shall retain the Books and Records of the Business existing as of the Closing and acquired by Purchaser for no less than seven (7) years after the Closing, and shall make all such Books and Records available after the Closing Date for inspection and copying by any member of Seller Group, during regular business hours and upon reasonable request. At and after the expiration of such period, if Seller has previously requested that such Books and Records be preserved, Purchaser shall either preserve such Books and Records for such reasonable period as may be requested by Seller or transfer such Books and Records to Seller or its designee at Seller’s expense. Purchaser recognizes that certain Books and Records may contain information relating to subsidiaries, divisions or businesses of Seller Group other than the Business and that Seller Group may redact and retain copies thereof.
SECTION 11.05. Bulk Transfer Laws. Purchaser hereby waives compliance by Seller Group with the provisions of any so-called “bulk transfer laws” of any jurisdiction in connection with the Acquisition.
SECTION 11.06. Refunds and Remittances. After the Closing, if any member of Seller Group receives any refund or other amount which is a Transferred Asset or is otherwise properly due and owing to the Business, Purchaser or any of its affiliates in accordance with the terms of this Agreement, Seller shall cause the applicable member of Seller Group to promptly remit, or cause to be remitted, such amount to Purchaser at the address set forth in Section 12.04. After the Closing, if Purchaser or any of its affiliates receives any refund or other amount which is an Excluded Asset or is otherwise properly due and owing to any member of Seller Group in accordance with the terms of this Agreement, Purchaser shall promptly remit, or cause to be remitted, such amount to the Seller at the address set forth in Section 12.04. After the Closing, if the Business, Purchaser or any of its affiliates receives any refund or other amount which is related to claims (including workers’ compensation), litigation, insurance or other matters for which a member of Seller Group is responsible hereunder, and which amount is not a Transferred Asset, or is otherwise properly due and owing to a member of Seller Group in accordance with the terms of this Agreement, Purchaser shall promptly remit, or cause to be remitted, such amount to the applicable Seller at the address set forth in Section 12.04. Subject to the terms of Section 9.05, after the Closing, if any member of Seller Group receives any refund or other amount which is related to claims (including workers’ compensation), litigation, insurance or other matters for which the Business, Purchaser or any of its affiliates is responsible hereunder, and which amount is not an Excluded Asset, or is otherwise properly due and owing to Purchaser or any of its affiliates in accordance with
the terms of this Agreement, the applicable Seller shall cause the applicable member of Seller Group to promptly shall remit, or cause to be remitted, such amount to Purchaser at the address set forth in Section 12.04.
SECTION 11.07. Cooperation. (a) In the event that, at any time following the Closing, any of the assets in which any member of Seller Group had a right, title or interest in, to or under immediately prior to the Closing that constitute Transferred Assets or any other asset that was used or held for use exclusively in the Business (other than any Excluded Asset enumerated in clauses (i) through (xv) of Section 1.02(b)) were not, upon the consummation of the Closing, transferred to Purchaser, then Seller shall, or shall cause the applicable member of Seller Group to, transfer such right, title or interest as promptly as reasonably practicable to Purchaser for no additional consideration, including by executing and delivering agreements, documents and instruments, making filings and taking all such further actions as are reasonably necessary under applicable Law in the applicable jurisdiction, including the jurisdiction in which the assets are located, applied for or registered to convey such right, title or interest in accordance with applicable Law. Until such time as any such right, title or interest is transferred to Purchaser, Seller shall not and shall cause the applicable member of Seller Group not to, sell, assign, lease, pledge, encumber, license, let lapse, abandon or cancel, or extend or exercise any option to sell, assign, lease or license, any such assets. All costs and expenses arising out of compliance with this Section 11.07(a) (including the costs and expenses associated with filings and recordations) shall be borne by Seller.
ARTICLE XIIMiscellaneous
SECTION 12.01. Assignment. Neither this Agreement nor any of the rights and obligations of the parties hereunder may be assigned or transferred, in whole or in part, by operation of Law or otherwise by any of the parties hereto without the prior written consent of the other party hereto, and any purported assignment without such consent shall be null and void; provided, however, this Agreement and rights and obligations hereunder may (without the consent of Seller) be assigned or transferred (in whole or in part) to one or more affiliates of Purchaser (including any affiliates designated by Purchaser to purchase and/or accept any of the Transferred Assets or assume any of the Assumed Liabilities), but no such assignment shall relieve Purchaser of its obligations hereunder. Subject to the first sentence of this Section 12.01, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
SECTION 12.02. Third-Party Beneficiaries. Except for Sections 9.03, 9.04, 12.14, 12.15, 12.17 and this Section 12.02, this Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies, it being understood that (i) the persons released pursuant to Sections 12.14 and 12.15 shall have the right to enforce their respective rights under Sections 12.14 and 12.15 and (ii) Existing Counsel is a third-party beneficiary of Section 12.17 and shall have the right to enforce its rights thereunder.
SECTION 12.03. Fees and Expenses; Invoices. (a) Whether or not the transactions contemplated by this Agreement are consummated, except as otherwise expressly set forth in this Agreement, each of the parties hereto shall be responsible for the payment of its own respective costs and expenses incurred in connection with the negotiations leading up to and the performance of its respective obligations pursuant to this Agreement and the Ancillary Agreements, including the fees of any attorneys, accountants, brokers or advisors employed or retained by or on behalf of such party. Any cost or expense required to be paid by Seller to Purchaser or any of its affiliates pursuant to the terms of this Agreement shall be paid to Purchaser or its applicable affiliate by Seller. Notwithstanding anything to the contrary in this Agreement, Purchaser shall be solely responsible for all costs, fees and expenses associated with or payable in connection with (i) the submission of any filing with or notification to, or registration or qualification with, a Governmental Entity and (ii) obtaining and pursuing coverage under any R&W Insurance.
SECTION 12.04. Notices. All notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given (a) three (3) business days following sending by registered or certified mail, postage prepaid, (b) when delivered, if delivered personally to the intended recipient, (c) when sent, if sent by e-mail; and (d) one (1) business day following sending by overnight delivery via a national courier service and, in each case, addressed to a party at the following address for such party:
SECTION 12.05. Headings; Certain Definitions; Interpretation. (a) The descriptive headings of the several Articles and Sections of this Agreement, the Exhibits and Table of Contents to this Agreement and the Seller Disclosure Letter are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. All references herein to “Articles”, “Sections” or “Exhibits” shall be deemed to be references to Articles or Sections hereof or Exhibits hereto unless otherwise indicated. All Annexes, Exhibits and Schedules attached hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any matter set forth in any section of the Seller Disclosure Letter shall be deemed to apply to each Section of this Agreement to the extent that it is reasonably apparent from the face of such disclosure that such disclosure would apply to such other Sections of this Agreement. Any capitalized terms used in any Annex, Exhibit or Schedule, but not otherwise defined therein, shall have the meaning as defined in this Agreement. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. All references herein to “immediately available funds”, “dollars”, “U.S. dollars” or “$” shall be deemed to be references to the lawful money of the United States. All provisions herein qualified by the term “domestic” or “foreign” shall be construed on the basis that the United States is the relevant domestic country. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless otherwise expressly provided herein, all references herein to days (excluding business days) or months shall be deemed to be references to calendar days or months. All references herein to anniversaries, business days, days, months, years, dates or other time periods shall be determined based on Eastern Standard Time. If any time period for giving notice or taking action hereunder expires on a day which is not a business day, the time period shall automatically be extended to the business day immediately following such non-business day. Unless the context requires otherwise, (i) any definition of or reference or citation to any Law, this Agreement or any Ancillary Agreement herein shall be construed as referring or citing to such Law, this Agreement or any Ancillary Agreement as from time to time amended, supplemented or otherwise modified, including by succession of comparable successor Laws, and to the rules and regulations promulgated thereunder, (ii) any reference herein to any person shall be construed to include such person’s successors and assigns, (iii) the words “herein”, “hereto”, “hereby”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections, Annexes, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Annexes, Exhibits and Schedules to, this Agreement, (v) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, (vi) all accounting terms not specifically defined herein shall be construed in accordance with the Accounting Principles, (vii) this Agreement shall be deemed to have been drafted by Purchaser, on the one hand, and Seller, on the other hand, and this Agreement shall not be construed against any party as the principal draftsperson hereof, (viii) the word “or” is not exclusive, (ix) the phrase “to the extent” shall mean the degree to which a subject or other item extends and shall not simply mean
“if”, (x) the phrase “date hereof” or “date of this Agreement” shall be deemed to refer to January 30, 2026; (xi) the phrases “provided”, “delivered”, or “made available” or words of similar import, when used in this Agreement, shall be deemed to refer to any documents or materials that were actually provided or delivered by any member of Seller Group or any of their respective Representatives to Purchaser or any of its affiliates or Representatives, including, without limitation, the information that has been posted in the “data room” (virtual) hosted by Intralinks and established by Seller or its Representatives and to which Purchaser or its respective Representatives have had access, in each case, as of 5:00 p.m. on the day prior to the date of this Agreement; and (xii) references to “writing”, “written” and variations thereof include any manner of representing or manifesting words in a legible form (including on an electronic or visual display screen) or other non-transitory form.
SECTION 12.06. Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the parties and delivered to the other parties. Any signature to this Agreement may be delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable Law.
SECTION 12.07. Integrated Contract. This Agreement, including the Seller Disclosure Letter (and the Introduction thereto) and the Exhibits hereto, any written
amendments to the foregoing satisfying the requirements of Section 12.11, the Confidentiality Agreement and the Ancillary Agreements, including the schedules, exhibits and annexes thereto, constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede any previous agreements and understandings between the parties with respect to such matters. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any term used in the Seller Disclosure Letter or any Exhibit hereto but not otherwise defined therein shall be defined as set forth in this Agreement. There are no restrictions, promises, representations, warranties, agreements or undertakings of any party hereto with respect to the transactions contemplated by this Agreement, the Confidentiality Agreement or the Ancillary Agreements other than those set forth herein or therein or in any other document required to be executed and delivered hereunder or thereunder.
SECTION 12.08. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule or Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement and the Ancillary Agreements is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated by this Agreement and the Ancillary Agreements are fulfilled to the extent possible.
SECTION 12.09. Governing Law. This Agreement, and all matters, claims or causes of action (whether in contract or tort) based upon, arising out of or relating to this Agreement or the negotiation, execution or performance of this Agreement, shall be governed by, and construed in accordance with, the Laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdictions other than those of the State of New York; provided, that matters involving the internal corporate affairs of each of the parties hereto shall be governed by the Laws of the jurisdiction in which such party is organized.
SECTION 12.10. Jurisdiction; Consent to Service of Process. Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of the Supreme Court of the State of New York, New York County located in the Borough of Manhattan (and the appellate courts thereof) in the event any dispute arises out of this Agreement or the Acquisition, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) agrees that it will not bring any Proceeding relating to this Agreement or the Acquisition in any court other than the Supreme Court of the State of New York, New York County located in the Borough of Manhattan (and the appellate courts thereof), or, if (and only if) such court finds it lacks subject matter jurisdiction, the federal court of the United States sitting in the Southern District of New York (and appellate courts thereof), and appellate courts thereof, (iv) waives any right to trial by jury with respect to any Proceeding related to or arising out
of this Agreement or the Acquisition, (v) waives the defense of an inconvenient forum to the maintenance of any Proceeding related to or arising out of this Agreement or the Acquisition and (vi) consents to service of process being made through the notice procedures set forth in Section 12.04. The consents to jurisdiction set forth in this paragraph shall not constitute general consents to service of process in the State of New York. The parties hereto agree that a final judgment in any such Proceeding or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.
SECTION 12.11. Amendments. This Agreement may be amended, modified, superseded or canceled and any of the provisions hereof may be waived only by an instrument in writing signed by each of the parties hereto or, in the case of a waiver, by or on behalf of the party waiving compliance.
SECTION 12.12. Extension; Waiver. At any time prior to the Closing Date, the parties may (a) extend the time for the performance of any of the obligations or other acts of the other parties, (b) waive any inaccuracies in the representations and warranties of the other parties contained in this Agreement or in any document delivered by the other parties pursuant to this Agreement or (c) waive compliance by the other parties with any of the agreements or conditions contained in this Agreement. Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.
SECTION 12.13. Enforcement. The parties agree that irreparable damage would occur and that the parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled at law or in equity. The right of specific enforcement is an integral part of the Acquisition and without that right, neither Seller or Purchaser would have entered into this Agreement. No party shall oppose the granting of any such injunction, specific performance and other equitable relief on the basis that (a) there is an adequate remedy at law or (b) an award of specific performance is not an appropriate remedy for any reason at law or in equity. Each party shall waive any requirement for the posting of any bond or the provision of any other security in connection with any such injunction, specific performance and other equitable relief. If, prior to the Outside Date, a party hereto brings any Proceeding to prevent breaches of this Agreement or to enforce specifically the provisions of the Agreement, the Outside Date shall automatically be extended (x) for the period during which such Proceeding is pending, plus twenty (20) business days or (y) by such other time period established by the court presiding over such Proceeding, as the case may be. The parties hereto acknowledge and agree that the provisions set forth in Section 8.02 are not intended to and do not adequately compensate for the harm that would result from a breach of this
Agreement and shall not be construed to diminish or otherwise impair in any respect any party’s right to specific enforcement. It is explicitly agreed that each party has the right to injunctions, specific performance or other equitable remedies to enforce the other party’s obligations to consummate the Acquisition.
SECTION 12.14. No Recourse Against Nonparty Affiliates. Claims, obligations, liabilities or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to this Agreement or any Ancillary Agreement, or the negotiation, execution, or performance of this Agreement or any Ancillary Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement or any Ancillary Agreement), may be made only against (and are those solely of) the entities that are expressly identified as parties in the preamble to this Agreement or in the applicable Ancillary Agreement (“Contracting Parties”) and then only with respect to the specific obligations set forth herein (with respect to the parties identified in the preamble to this Agreement) or therein (with respect to the parties to such Ancillary Agreement.) No person who is not a Contracting Party with respect to this Agreement or an Ancillary Agreement, as applicable, including any member of Seller Group or any affiliate of Purchaser who is not itself a Contracting Party (“Nonparty Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations or liabilities arising under, out of, in connection with, or related in any manner to this Agreement or such Ancillary Agreement, as applicable, or based on, in respect of, or by reason of this Agreement or such Ancillary Agreement, as applicable, or its negotiation, execution, performance, or breach; and, to the maximum extent permitted by applicable Law, each Contracting Party hereby waives and releases all such liabilities, claims, causes of action and obligations against any such Nonparty Affiliates. Without limiting the foregoing, to the maximum extent permitted by applicable Law, (a) each Contracting Party hereby waives and releases any and all rights, claims, demands or causes of action that may otherwise be available in law or in equity, or granted by statute, to avoid or disregard the entity form of a Contracting Party or otherwise impose liability of a Contracting Party on any Nonparty Affiliate, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise and (b) each Contracting Party disclaims any reliance upon any Nonparty Affiliates with respect to the performance of this Agreement or any Ancillary Agreement or any representation or warranty made in, in connection with, or as an inducement to this Agreement or any Ancillary Agreement.
SECTION 12.15. Release.
SECTION 12.16. No Other Duties. The only duties and obligations of the parties under this Agreement are as specifically set forth in this Agreement, and no other duties or obligations shall be implied in fact, law or equity, or under any principle of fiduciary obligation.
SECTION 12.17. Legal Representation. (a) Each of the parties to this Agreement acknowledges and agrees that Cravath, Swaine & Moore LLP (“Existing Counsel”) has acted as counsel for Seller and their affiliates in connection with this Agreement and the Acquisition (the “Acquisition Engagement”).