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8-K
Feb 5, 7:39 AM ET
P10, Inc. 8-K
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Contents
120
Article IDEFINITIONS AND TERMS
Section 1.01 Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.01:
Section 1.02 Interpretations.
Article IITHE PURCHASE AND SALE; CLOSING; CLOSING DELIVERABLES
Section 2.01 Purchase and Sale of Interests. Upon the terms and subject to the conditions set forth in this Agreement, and in reliance on the representations, warranties and covenants contained herein, at the Closing, the Sellers agree to sell, assign, convey, transfer and deliver to Purchaser, and Purchaser agrees to purchase and accept from the Sellers, all of the outstanding Equity Interests in the Company, free and clear of any Liens, other than Permitted Securities Liens, in exchange for (a) the Equity Consideration, (b) the Final Cash Consideration and (c) the Earnout Payments, if any.
Section 2.02 The Closing. The closing of the Transactions (the “Closing”) shall take place virtually, via the electronic exchange of documents, or at such place as the Purchaser and Sellers may mutually agree in writing, on the date that is five (5) Business Days following the date of satisfaction of the conditions (or, to the extent permitted by Law, waived by the Party or Parties entitled to the benefits of such conditions) set forth in Article VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or such other date as is agreed in writing by the Purchaser and Sellers. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date.” The Closing will be effective as of 11:59 p.m. (Eastern U.S. Time) on the Closing Date (the “Effective Time”).
Section 2.03 Deliveries at Closing and Post-Closing.
Section 2.04 Post-Closing Statement.
Section 2.05 Dispute Resolution for Payments.
Section 2.06 Adjustment to Cash Consideration.
Section 2.07 Management Fees; Incentive Fees. The Parties expressly acknowledge and agree that:
Section 2.08 Earnout.
Section 2.09 Post-Signing Financial Statements. With respect to each fiscal quarter ending between the date hereof and the Closing, the Company shall provide to Purchaser unaudited consolidated interim financial statements in respect of such fiscal quarter no later than the fifteenth (15th) Business Day following the end of such fiscal quarter, containing the same type of information and prepared consistently with the preparation of the Financial Statements.
Section 2.10 Withholding. Notwithstanding any other provision in this Agreement, Purchaser and its affiliates and agents, as applicable, shall have the right to deduct and withhold from any payments to be made to any person in connection with the Transactions contemplated in this Agreement made hereunder such amounts as are required to be deducted and withheld under the Code or any provision of state, local or non-U.S. Tax law. To the extent that amounts are so withheld and paid to the appropriate Taxing Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been delivered and paid to the person in respect of which such deduction and withholding was made. Purchaser hereby confirms that, based on Law in effect as of the date hereof, that no withholding Taxes are expected to be deducted from the Cash Consideration (other than any in respect of any amounts that are compensatory in nature) if the IRS Forms specified in Section 2.03(a)(ii) are delivered to Purchaser prior to the Closing.
Article IIIREPRESENTATIONS AND WARRANTIES OF THE SELLERS
Section 3.01 Organization, Standing and Power.
Section 3.02 Authorization. Each of the Sellers has all necessary power and authority and has taken all necessary action to execute and deliver this Agreement and each Ancillary Agreement to which it is or will be party in connection with the consummation of the Transactions, and to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance by each of the Sellers of this Agreement and each Ancillary Agreement to which it is or will be party, respectively, and the consummation of the Transactions
by the Sellers have been duly and validly authorized by all requisite action of Sellers. This Agreement has been, and each other Ancillary Agreement will be at or prior to the Closing, duly executed and delivered by each of the Sellers and, assuming due authorization, execution and delivery hereof and thereof by the other parties hereto and thereto, constitutes a legal, valid and binding obligation of such Seller, enforceable against each such Seller in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar Laws of general application affecting or relating to the enforcement of creditors’ rights generally or general principles of equity, whether considered in a proceeding at Law or in equity (the “Bankruptcy and Equity Exception”).
Section 3.03 Noncontravention.
Section 3.04 Title. Such Seller is the record and beneficial owner of the Interests set forth opposite its name on Section 3.04 of the Sellers Disclosure Schedule, free and clear of any and all Liens other than Permitted Liens. Except as set forth on Section 3.04 of the Sellers Disclosure Schedule, the Interests represent all of the equity interests, economic interests or voting interests, or any interests or securities convertible into or exchangeable or exercisable for such interests, of the Company. Such Seller has the power and authority to sell, transfer, assign and deliver the Interests owned by such Seller and such delivery will convey to Purchaser at the Closing good and valid title to such Interests, free and clear of any and all Liens other than Permitted Liens.
Section 3.05 Legal Actions; Orders.
Section 3.06 Brokers and Other Advisors. Except for Goldman Sachs & Co. LLC, no broker, investment banker, financial advisor, intermediary, finder or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses, directly or indirectly, in connection with the Transactions based upon arrangements made by or on behalf of any Seller.
Section 3.07 Parent Securities. As of the date hereof and as of the Closing, no Seller, nor any of its direct and indirect equityholders (including the Principals) beneficially owns any securities of Parent.
Section 3.08 Securities Law Matters. Each Seller is acquiring the securities constituting its portion of the Equity Consideration and, if applicable, any Earnout Payment, solely for its own account with the present intention of holding such securities for investment purposes and not with a view to, or for sale in connection with, any distribution of such securities in violation of the Securities Act or other applicable securities Laws. Each Seller acknowledges that the Equity Consideration and, if applicable, any Earnout Payment: (a) will, upon issuance, be characterized as “restricted securities” and have not been registered under the Securities Act or other applicable securities Laws; and (b) may not be transferred or sold except pursuant to the registration provisions of the Securities Act or other applicable securities Laws or pursuant to an applicable exemption from such registration provisions; and (c) will bear or otherwise be subject to one or more restrictive legends to the foregoing effect. Each Seller has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the securities constituting its portion of the Equity Consideration and, if applicable, any Earnout Payment, has so evaluated the merits and risks of such investment and has determined, based on such evaluation, that it is capable of bearing the economic risks of such investment and, at the present time and in the foreseeable future, is capable of affording a complete loss of such investment. Such Seller is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. To the extent deemed necessary by it, such Seller has retained, at its own expense, and relied upon, appropriate professional advice regarding the investment, tax and legal merits and consequences of its execution of this Agreement and all Ancillary Agreements to be delivered by it in accordance with the terms hereof.
Section 3.09 No Other Representations and Warranties. Except for the representations and warranties expressly contained in this Article III or the Ancillary Agreements executed by each applicable Seller(s), neither Sellers nor any other Person acting on behalf of any Seller makes any representation or warranty, express or implied, at law or in equity. Without limiting the generality of the foregoing, Sellers expressly disclaim responsibility, and shall have no Liability whatsoever, for any representations or warranties in the materials relating to the Group Entities made available to Purchaser, including due diligence materials, or in any presentation of the Group Entities by any member of the management of the Group Entities or others in connection with the Transactions, and no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder or under any Ancillary Agreement. None of the provisions set forth in this Article III shall apply to limit any Person’s liability arising out
of Fraud in connection with the making of the representations and warranties of such Person in this Agreement.
Article IVREPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4.01 Organization, Standing and Power. Each Group Entity is duly formed or organized, validly existing and in good standing under the Laws of the jurisdiction in which it was formed or organized. Each Group Entity has the necessary power and authority to carry on its business and to own, lease and operate all of its properties and assets, as currently conducted, owned, leased or operated. Each Group Entity is duly qualified to do business in each jurisdiction in which the nature of the business or the character or location of the properties and assets owned, leased or operated by it makes such qualification necessary, except where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on the Group Entities. The Group Entities have made available to Purchaser true and complete copies of all of the Governing Documents of each Group Entity as in effect as of the date hereof. Each Governing Document of each Group Entity is in full force and effect and no Group Entity is in breach of or default under any provision of any of its Governing Documents.
Section 4.02 Authorization. Each Group Entity has all necessary corporate, limited liability company or limited partnership, as applicable, power and authority and has taken all necessary action to execute and deliver each Ancillary Agreement to which it is or will be party in connection with the consummation of the Transactions and to perform its obligations thereunder. Each Ancillary Agreement to which a Group Entity will be a party at Closing will be duly executed and delivered by each relevant Group Entity and, assuming due authorization, execution and delivery thereof by the other parties thereto, will constitute a legal, valid and binding obligation of each relevant Group Entity that is or will be party thereto, enforceable against each such Group Entity in accordance with its terms, except as may be limited by the Bankruptcy and Equity Exception.
Section 4.03 Noncontravention.
Section 4.04 Governmental Approvals. Except for (a) Filings required under, and compliance with other applicable requirements of, the HSR Act, the Investment Advisers Act, the Exchange Act, (b) any Consents in connection with compliance with the rules and regulations of the SBA, (c) any Consents in connection with compliance with the rules and regulations of the New York Stock Exchange, or any other applicable self-regulatory organization, (d) as set forth on Section 4.04 of the Sellers Disclosure Schedule, (e) the Transaction Consents, or (f) such Consents the failure of which to obtain or make would not, individually or in the aggregate, have a material adverse impact on the Business following Closing, no Governmental Authorizations are necessary for the execution, delivery and performance of this Agreement and any Ancillary Agreement by the Sellers or any Group Entity that is or will be party hereto or thereto, and the consummation of the Transactions by the Sellers or any Group Entity that is or will be party hereto or thereto.
Section 4.05 Capital Structure.
Section 4.06 Financial Statements; No Undisclosed Liabilities.
Section 4.07 Absence of Certain Changes and Events. Except as set forth in Section 4.07 of the Sellers Disclosure Schedule, since the Balance Sheet Date, (i) except for the Transactions or as otherwise expressly permitted by this Agreement, the business of the Group Entities has been conducted in all material respects in the ordinary course of business consistent with past practice and none of the Group Entities have taken any action that, if taken between the date of this Agreement and the Effective Time, would have been prohibited by Section 6.01 without the consent of Purchaser and (ii) there has not been any change, occurrence or development in the financial condition, properties, assets, liabilities, business or results of operations of the Group Entities or any other effect, event, development, circumstance, fact, condition, occurrence or change which has had, or would, individually or in the aggregate, reasonably be expected to have, a Material Adverse Effect on the Group Entities.
Section 4.08 Legal Actions; Orders.
Section 4.09 Compliance with Law; Governmental Authorizations.
Section 4.10 Insurance Policies. Section 4.10 of the Sellers Disclosure Schedule sets forth a list of all in-force property and liability insurance policies and fidelity or financial institution bonds that are maintained by or for the benefit of any Group Entity. All current property and liability insurance policies covering any Group Entity are in full force and effect (and all premiums due and payable thereon have been paid in full on a timely basis), and no written notice of cancellation, termination or revocation or other written notice that any such insurance policy is no longer in full force or effect or that the issuer of any such insurance policy is not willing or able to perform its obligations thereunder has been received by any of the Sellers or any Group Entity except in the ordinary course at the end of the applicable policy term. No Group Entity is in violation or breach in any material respect of, or default in any material respect under, any provision thereof. There are no material claims by any Group Entity pending under any such insurance policies as to which coverage has been denied by the insurer or as to which, after
reviewing the information provided with respect to such claim, the insurer has advised in writing that it intends to deny.
Section 4.11 Material Contracts; Assets.
Section 4.12 Intellectual Property.
Section 4.13 Employee Benefits Matters.
Section 4.14 Labor.
Section 4.15 Tax Matters.
Section 4.16 BDCs; Funds.
Section 4.17 Real Property. None of the Group Entities own or has ever owned any real property. Section 4.17 of the Sellers Disclosure Schedule sets forth all property leased, subleased or otherwise occupied by any Group Entity (the “Leased Real Property”). The Group Entities have valid, legally binding, enforceable Leases for each Leased Real Property that are in full force and effect, and none of the Group Entities are and to the Knowledge of Sellers, no other party to any such Lease is in breach of or default under any such Lease, and all Leased Real Property is free and clear of all Liens (except in all cases for Permitted Liens). The Group Entities have not (a) subleased, licensed or otherwise granted any Person the right to use or occupy any Leased Real Property or any portion thereof, or (b) collaterally assigned or granted any other security interest in any Lease or any interest therein.
Section 4.18 Related-Party Transactions. There is no agreement or arrangement between any Group Entity, BDC or Fund, on the one hand, and any Related Party, on the other hand, related to the business other than (a) this Agreement, the Ancillary Agreements and the agreements listed on Section 4.18 of the Sellers Disclosure Schedule and (b) any investment in a BDC or Fund by a Related Party. Except as set forth on Section 4.18 of the Sellers Disclosure Schedule, no Related Party (i) has, directly or indirectly, any interest or right in (x) any property (real, personal or mixed and whether tangible on intangible) or asset used in or hold for use in connection with or pertaining to the business of any Group Entity, (ii) serves as a trustee, officer, director or employee of any Person that is an underlying investment of a Client or a supplier, lessor or lessee of any Group Entity, BDC or Fund; or (iii) or has otherwise engaged in any material transaction with any Group Entity (any such Contract, interest or transaction, a “Related-Party Agreement”). Ownership of less than 5% of a class of securities of a Person that is publicly traded shall not be deemed to be an interest or investment for purposes of this Section 4.18. Each Contract, other than any investment advisory agreements, between any Group Entity, on the one hand, and any Fund or subsidiary of a Fund (including any portfolio investment), on the other hand, has been entered into in the ordinary course of business on arms’-length terms and any conflicts of interest associated with each such Contract have been fully and fairly disclosed to the investors in such Fund in all material respects.
Section 4.19 Brokers and Other Advisors. Except for Goldman Sachs & Co. LLC, no broker, investment banker, financial advisor, intermediary, finder or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses, directly or indirectly, in connection with the Transactions based upon arrangements made by or on behalf of any Group Entity.
Section 4.20 No Other Representations and Warranties. Except for the representations and warranties expressly contained in this Article IV or the Ancillary Agreements, neither the Company nor any other Person acting on behalf of the Company makes any representation or warranty, express or implied, at law or in equity. Without limiting the generality of the foregoing, the Company and Sellers disclaim responsibility, and shall have no Liability whatsoever, for any representations or warranties in the materials relating to the Group Entities made available to Purchaser, including due diligence materials, or in any presentation of the Group Entities by any member of the management of the Group Entities or others in connection with the Transactions, and no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder or under any Ancillary Agreement. None of the provisions set forth in this Article IV shall apply to limit any Person’s liability arising out of Fraud in connection with the making of the representations and warranties of such Person in this Agreement.
Article VREPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 5.01 Organization, Standing and Power. Purchaser is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite corporate power and authority necessary to conduct its business as it is now being conducted, except as would not reasonably be expected to prevent, materially delay or materially impair the Purchaser’s ability to perform any of its obligations hereunder or to timely consummate the Transactions. Parent is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite corporate power and authority necessary to conduct its business as it is now being conducted except as would not reasonably be expected to have a Material Adverse Effect on Parent.
Section 5.02 Authorization. Purchaser has all necessary power and authority and has taken all necessary action to execute and deliver this Agreement and each Ancillary Agreement to be executed by Purchaser in connection with the consummation of the Transactions, and to perform its obligations hereunder and thereunder and to consummate the Transactions. The execution, delivery and performance by Purchaser of this Agreement and each Ancillary Agreement to be executed by Purchaser, and the consummation of the Transactions, have been duly and validly authorized by all requisite action of Purchaser. This Agreement has been, and each Ancillary Agreement to be executed by Purchaser at or prior to Closing will be, duly executed and delivered by Purchaser and, assuming due authorization, execution and delivery hereof and thereof by the other parties hereto and thereto, constitutes a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, subject to the Bankruptcy and Equity Exception.
Section 5.03 Noncontravention. Neither the execution, delivery and performance of this Agreement or any Ancillary Agreement to be executed by Purchaser, nor the consummation by Purchaser of the Transactions will (a) breach any provision of the Governing Documents of Purchaser or Parent, (b) assuming that the authorizations, Consents and approvals referred to in Section 5.04 are obtained and the Filings referred to in Section 5.04 are made, violate any Law applicable to Purchaser or Parent, or (c) require any consent of, notice or payment to or other action by any Person under, or with or without notice, lapse of time or both, violate, breach or constitute a default under any of the terms, conditions or provisions of any Contract to which Purchaser or Parent is a party or by which any Group Entity or any of its assets or properties is bound, or accelerate or give rise to a right of termination, amendment, cancellation or acceleration of, or to a loss of any rights or benefits under, any such Contract, with or without notice, lapse of time or both, violate, breach or constitute a default under any material Permit by which any Group Entity or their assets or properties are bound except, in the case of clause (b), for such violations, defaults, accelerations or rights as would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the consummation of the Transactions.
Section 5.04 Governmental Approvals. Except for (i) Filings required under, and compliance with other applicable requirements of, the HSR Act or the SBA, (ii) such Filings and approvals as may be required by any federal or state securities Laws, and (iii) such other Governmental Authorizations the failure of which to obtain would not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the consummation of the Transactions, no Consents, authorizations or approvals of, or Filings, declarations or registrations with, any Person or Governmental Authority are necessary for the execution, delivery and performance of this Agreement and any Ancillary Agreement to be executed by Purchaser and the consummation by Purchaser of the Transactions.
Section 5.05 Capitalization. The total number of shares of all classes of capital stock that Parent has authority to issue is 700,000,000 shares, consisting of: 510,000,000 shares of Class A Common Stock, par value $0.001 per share (“Class A Common Stock”) and 180,000,000 shares of Class B Common Stock, par value $0.001 per share (“Class B Common Stock” and together with Class A Common Stock, the “Parent Common Stock”), and 10,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”). As of November 3, 2025, there were 78,067,335 shares of Class A Common Stock, 31,947,755 shares of Class B Common Stock and no shares of Preferred Stock outstanding. All outstanding shares of stock of Parent have been duly
authorized and validly issued, are fully paid and nonassessable and are free of preemptive rights. The total number of Units that Purchaser has authority to issue is unlimited. As of November 3, 2025, there were 126,240,629 Units issued, and 113,931,756 Units issued and outstanding. All Units of the Purchaser to be issued hereunder as Equity Consideration or an Earnout Payment will have been validly issued and will be fully paid and non-assessable when issued and delivered in accordance with the terms of this Agreement, and the issuance thereof will be free of preemptive rights.
Section 5.06 SEC Filings and the Sarbanes-Oxley Act.
Section 5.07 Compliance With Laws and Court Orders. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect on Parent:
Section 5.08 Legal Actions; Section 15(f).
Section 5.09 Financial Capacity. At the Closing, Purchaser will have sufficient available and unencumbered funds to enable Purchaser to consummate the Transactions.
Section 5.10 Investment Representation. Purchaser is acquiring the Interests for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of any federal or state securities Laws. Purchaser acknowledges that it is informed as to the risks of the Transactions and of ownership of the Interests. Purchaser acknowledges that the Interests have not been registered under the Securities Act, or any state or foreign securities Laws and that the Interests may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed of unless such transfer, sale, assignment, pledge, hypothecation or other disposition is pursuant to the terms of an effective registration statement under the Securities Act and the Interests is registered under any applicable state or foreign securities Laws or sold pursuant to an exemption from registration under the Securities Act and any applicable state or foreign securities laws.
Section 5.11 Brokers and Other Advisors. No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses, in connection with the Transactions based upon arrangements made by or on behalf of Purchaser.
Section 5.12 No Other Representations or Warranties.
Article VICOVENANTS
Section 6.01 Conduct of the Business Pending the Closing.
Section 6.02 Access to Information.
Section 6.03 Reasonable Best Efforts; Governmental Authorizations.
Section 6.04 Publicity and Branding; Post-Closing Systems.
Section 6.05 Employment and Employee Benefits.
Section 6.06 Tax Matters.
Section 6.07 Fund Approvals; Client Consents.
Section 6.08 Confidentiality.
Section 6.09 No Solicitation. During the period from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, in accordance with Article VIII, the Sellers shall not, and shall cause the Group Entities and the Sellers’ and the Group Entities’ respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly: (i) initiate, solicit or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal; (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data to any Person relating to, any Acquisition Proposal; or (iii) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal.
Section 6.10 Further Assurances. The Parties shall execute and deliver, or shall cause to be executed and delivered, such documents and other instruments and shall take, or shall cause to be taken, such further actions as may be reasonably required to carry out the provisions of this Agreement and give effect to the Transactions.
Section 6.11 Incentive Fees; Control of Fund GPs.
Section 6.12 Section 15(f).
Section 6.13 Release. Subject to, and effective as of, the consummation of the Closing, Sellers and the Principals, on behalf of themselves, their respective Affiliates, and their respective and their Affiliates’ respective direct and indirect directors, officers, members, managers, partners, equityholders, service providers, agents, successors and assigns (each a “Releasing Party” and collectively, the “Releasing Parties”) irrevocably waives, releases, remises, and forever discharges the Company, its Affiliates, and its direct and indirect current or former directors, officers, members, managers, partners, equityholders, service providers, agents, successors and assigns (the “Released Parties”) from all actions, claims, damages, Liabilities, obligations, costs, expenses, losses, judgments, fines, debts, or other demands of any kind that any Releasing Party has had, currently has, or may in the future have against any of the Released Parties, in each case, whether known or unknown, suspected or unsuspected, absolute or contingent, or direct or indirect and arising out, in connection with, or relating to the Company at any time prior to the Closing, including those arising out of or in connection with: (i) any Releasing Party’s right to or interest in any assets or properties of the Company; or (ii) all Interests in the Company or other interests any Releasing Party may have or claim to have in, or all other claims or rights to payment any Releasing Party may have against the Company. Notwithstanding the foregoing, the foregoing releases shall not apply to any claim against a Released Party pursuant to this Agreement or the Ancillary Agreements or any matters arising solely after the Closing. The Releasing Parties represent and warrant that (x) there are no liens against any of the matters released herein, (y) the Releasing Parties have not transferred or otherwise alienated any such matters, and (z) the Releasing Parties are fully authorized and entitled to give the releases specified herein.
Section 6.14 Stock Transactions. Promptly following the date of this Agreement and during the period from the date of this Agreement to the earlier of the Closing Date and the termination of this Agreement in accordance with Article VIII, each of the Principals, the Sellers
and Group Entities shall not, and shall (in the case of the Sellers and Group Entities) instruct each of their directors, officers, employees and direct and indirect equityholders not to, directly or indirectly, engage in any transactions involving the securities of Parent without the prior written consent of Purchaser.
Section 6.15 Related-Party Agreements. At or prior to the Closing, except as set forth on Section 6.15 of the Sellers Disclosure Schedule, the Sellers and the Group Entities shall cause all of the Related-Party Agreements to be terminated, in each case, without any Liability to the Purchaser or its Affiliates following the Effective Time.
Section 6.16 Restrictive Covenants.
Section 6.17 Issuance of Equity. During the period from the date hereof until the Effective Time, neither Parent nor Purchaser shall sell, issue, grant or deliver: (A) any Equity Interests; or (B) any instrument convertible into or exchangeable for any Equity Interests, in each case other than (v) exchanges of Units pursuant to the terms and conditions of the Exchange Agreement, (w) in a bona fide transaction in exchange for fair market value (whether cash of in-kind), (x) as consideration in connection with the acquisition (or similar transaction) of another Person, (y) issuances to any employees of Parent or its Subsidiaries or (z) pursuant to any agreement entered into by Parent or Purchaser before the date of this Agreement.
Section 6.18 Additional Agreements. Purchaser agrees to comply with the obligations set forth in Section 6.18(a) of the Sellers Disclosure Schedule. Sellers agrees to comply with the obligations set forth in Section 6.18(b) of the Sellers Disclosure Schedule.
Section 6.19 Financing Cooperation.
Article VIICONDITIONS TO CLOSING
Section 7.01 Conditions Precedent to Obligations of Each Party. The obligations of each Party to consummate the Transactions are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by each of Purchaser and the Sellers, in whole or in part, to the extent permitted by applicable Law):
Section 7.02 Conditions Precedent to Obligations of Purchaser. In addition to the conditions set forth in Section 7.01, the obligations of Purchaser to consummate the Transactions are subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions
(any or all of which may be waived by Purchaser, in whole or in part, to the extent permitted by applicable Law):
Section 7.03 Conditions Precedent to Obligations of the Sellers. In addition to the conditions set forth in Section 7.01, the obligations of the Sellers to consummate the Transactions are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by the Sellers, in whole or in part, to the extent permitted by applicable Law):
Section 7.04 Frustration of Closing Conditions. A Party may not rely on the failure of any condition set forth in Section 7.01, Section 7.02 or Section 7.03, as the case may be, to be satisfied if such failure was due to the failure of such Party to perform any of its obligations under this Agreement.
Article VIIITERMINATION
Section 8.01 Termination of Agreement. Subject to Section 10.04, this Agreement may be terminated at any time prior to the Effective Time as follows:
Section 8.02 Procedure upon Termination. In the event of termination and abandonment by Purchaser or the Sellers, or both, pursuant to Section 8.01, written notice thereof shall forthwith be given to the other Parties, and this Agreement shall terminate, and the Transactions shall be abandoned, without further action by any Party.
Section 8.03 Effect of Termination. In the event that this Agreement is validly terminated in accordance with Section 8.01, then each of the Parties shall be relieved of its duties and obligations arising under this Agreement after such termination and such termination shall be without Liability to any of the Parties; provided, however, that, subject to the terms, conditions and limitations of this Section 8.03, (a) no such termination shall relieve any Party from Liability for Fraud or for willful and material breach by that Party in connection with the Transactions prior
to such termination and (b) the provisions of this Section 8.03, Section 6.04, Section 6.08, Article I and Article X shall remain in full force and effect and survive any termination of this Agreement in accordance with its terms.
Article IXSURVIVAL; REMEDIES; R&W INSURANCE
Section 9.01 Survival. The representations and warranties contained in Article III and Article IV, other than Fundamental Seller Representations and the representations and warranties in Section 4.15 (Tax Matters), shall terminate at, and shall not survive, the Closing. The Fundamental Seller Representations and the representations and warranties in Section 4.15 (Tax Matters) shall survive until the date that is ninety (90) days following the expiration of the applicable statute of limitations. The representations and warranties contained in Article V, other than the Fundamental Purchaser Representations, shall terminate at, and shall not survive, the Closing. The Fundamental Purchaser Representations shall survive the Closing until the date that is ninety (90) days following the expiration of the applicable statute of limitations. Notwithstanding the foregoing, to the extent a claim for indemnification for a breach of a representation and warranty has been made in good faith prior to the last day of the relevant survival period of such representation and warranty, such representation or warranty and the associated rights of indemnification shall survive with respect to such claim until such claim has been resolved or abandoned. All covenants and agreements of the Parties that are required to be performed prior to or at the Closing shall survive until the Closing for a period of one year. All covenants and agreements of the Parties that are contemplated as being performed following the Closing shall survive the Closing until performed or until such covenants and agreements expire in accordance with their terms.
Section 9.02 Indemnification.
Section 9.03 Claim Procedures.
Section 9.04 Insurance Proceeds; Duty to Mitigate. In calculating the amount of any Loss, the proceeds actually received by the Indemnified Person or any of its Affiliates (net of any costs of such recovery) under any insurance policy or pursuant to any claim, recovery, settlement or payment by or against any other Person, in each case as a direct result of such Loss, shall be deducted from the amount of such Loss. The Indemnified Person shall use commercially reasonable efforts to recover any such insurance or other proceeds from third parties; provided, however, nothing contained in this Section 9.04 shall require or be construed to require any Indemnified Person or any of its Affiliates to commence any legal proceeding, arbitration or other
dispute resolution mechanism against the insurance provider under or in respect of such insurance or file a claim notice under such insurance for Losses which are below the retention or losses that are expressly excluded under the terms of such insurance policy, provided that, with respect to Losses below the retention of such insurance policy, Section 9.08(a)(i) shall not be satisfied unless a claim notice is filed under such insurance policy. Each Party agrees to use commercially reasonable efforts to mitigate any Losses that form the basis of any claim for indemnification under this Article IX.
Section 9.05 Limitations on Liability of Company Indemnifying Persons.
Section 9.06 Limitations on Liability of Purchaser.
Section 9.07 No Duplication of Losses. The amount of any Losses to which any Indemnified Person is entitled hereunder shall be determined without duplication of any other recovery hereunder in respect of such Losses, and, in furtherance of the foregoing, each of the Parties hereby acknowledges and agrees that no Party shall have any obligations or liability under this Article IX with respect to any amount to the extent such amount has already been recovered by the applicable Indemnified Person. In no event shall the definition of Losses include any indirect, consequential, special, punitive or exemplary damages, except to the extent such damages are awarded as part of a Third-Party Claim or are imposed by a Governmental Authority.
Section 9.08 Payments.
Section 9.09 Exclusive Remedies. Following the Closing, no Party shall assert against any other Party any claim, cause of action, right or remedy, or any Action, with respect to the subject matter of this Agreement, other than (a) claims pursuant to and in accordance with Section 2.04 and Section 2.08 (which shall be resolved in accordance with the dispute mechanism set forth in Section 2.05 and, as applicable, Section 2.08), Section 6.06 and this Article IX, (b) claims that a Party committed Fraud, and (c) claims for specific enforcement, an injunction or other equitable relief pursuant to Section 10.04. Following the Closing, the claims specified in clauses (a) through (c) of the previous sentence shall constitute the Parties’ sole and exclusive rights and remedies (each on its own behalf, and (i) on behalf of the Purchaser Indemnified Persons in the case of Purchaser and (ii) the Seller Indemnified Persons in the case of the Sellers) for any and all Losses or other claims with respect to any actual or alleged breach of this Agreement, and shall supersede all other rights and remedies available at law or in equity (including any right of rescission, right of contribution or claim arising under any applicable statutes); provided, however, that the foregoing shall not prohibit any party to an Ancillary Agreement from making any claim for a breach thereof following Closing.
Section 9.10 R&W Insurance. In the event Purchaser notifies Sellers that Purchaser intends to obtain representations and warranties insurance, Sellers agree to cooperate with Purchaser in connection therewith and to provide Purchaser with all such information reasonably requested by Purchaser in connection with its obtaining of representations and warranties insurance. The premium for any such insurance policy and any reasonable costs and expenses associated therewith shall be borne fifty percent (50%) by Sellers and fifty percent (50%) by Purchaser; provided, however, that in no event shall Sellers’ payment obligation under this Section 9.10 exceed $500,000.
Article XMISCELLANEOUS
Section 10.01 Entire Agreement; Amendments and Waivers. This Agreement and the Ancillary Agreements represent the entire understanding and agreement, and supersede all other prior agreements and understandings, both written and oral, among the Parties and their Affiliates, or any of them, with respect to the subject matter hereof. This Agreement may be amended, supplemented or changed only by a written instrument signed by each of the Parties. Each provision in this Agreement may be waived only by a written instrument making specific reference to this Agreement signed by the Party against whom enforcement of any such provision so waived is sought. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
Section 10.02 Binding Effect; Third-Party Beneficiaries; Assignment.
Section 10.03 Governing Law; Jurisdiction.
Section 10.04 Specific Enforcement. The Parties agree that irreparable damage for which monetary relief, even if available, may not be an adequate remedy, may occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the Parties fail to take any action required of them hereunder to consummate this Agreement, subject to the terms and conditions of this Agreement. The Parties acknowledge and agree that (a) the Parties shall be entitled to seek an injunction or injunctions, specific performance or other equitable relief to (i) solely prior to the Outside Date, to cause the Transactions to be consummated on the terms and subject to the conditions set forth in this Agreement or (ii) otherwise prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 10.03(b) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this
Agreement and (b) the right to seek specific enforcement is an integral part of the Transactions and without that right, the Parties would not have entered into this Agreement. The Parties agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law. The Parties acknowledge and agree that any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 10.04 shall not be required to provide any bond or other security in connection with any such Order or injunction, and each Party hereby waives any requirement for the securing or posting of any such bond or other security in connection with such remedy. Each Party further agrees that the only permitted objection that it may raise in response to any action for equitable relief is that it contests the existence of a breach or threatened breach of this Agreement.
Section 10.05 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY based upon, arising out of or relating to THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION THAT MAY DIRECTLY OR INDIRECTLY BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE ANCILLARY AGREEMENTS IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS Section 10.05.
Section 10.06 Remedies. Any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise at any time of any other remedy, except to the extent expressly limited hereby.
Section 10.07 Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt by other than automatic means, whether electronic or otherwise), (b) when sent by facsimile (with written confirmation of transmission) or email (unless an automatic response has been received indicating that the recipient did not receive such email) or (c) one (1) Business Day following the day sent by an internationally recognized overnight courier (with written confirmation of receipt), in each case, at the following addresses, facsimile numbers and email addresses (or to such other address, facsimile number or email address as a Party may have specified by notice given to the other Party pursuant to this provision):
Section 10.08 Severability. If any condition, term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Law or public policy, all other conditions, terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions 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 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 in order that the Transactions are consummated as originally contemplated to the greatest extent possible.
Section 10.09 Expenses. Except as otherwise provided in this Agreement, each Party shall bear its own expenses incurred in connection with the negotiation, execution and performance of this Agreement, each Ancillary Agreement and each other agreement, document and instrument contemplated by this Agreement and the consummation of the Transactions; provided however, that notwithstanding the foregoing, the Sellers, on one hand, and Purchaser, on the other hand, shall each be responsible for fifty percent (50%) of the costs and expenses (i) of preparing, filing, printing and mailing the Proxy Statement (including reasonable legal, accounting and other expenses of the BDCs), and all other filing fees and amounts paid to the SEC in connection with the Transactions and (ii) associated with any filing required under the HSR Act.
Section 10.10 Non-Recourse. All Actions, 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 the negotiation, execution or performance of this Agreement (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement), may be made against only (and such representations and warranties are those solely of) the Persons that are expressly identified as Parties to this Agreement (the “Contracting Parties”). No Person who is not a Contracting Party, including any current, former or future director, officer, employee, consultant, incorporator, member, partner, manager, stockholder, Affiliate, agent, attorney, Representative or assignee of, and any financial advisor or lender to, any Contracting Party, or any current, former or future director, officer, employee, consultant, incorporator, member, partner, manager, stockholder, Affiliate, agent, attorney, Representative or assignee of, and any financial advisor or lender to, any of the foregoing (collectively, the “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 or Liabilities arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, execution, performance or breach, and, to the maximum extent permitted by Law, each Contracting Party hereby waives and releases all such Liabilities, claims, causes of action and obligations under this Agreement against any such Nonparty Affiliates. Without limiting the foregoing, to the maximum extent permitted by Law, (a) other than in the case of Fraud, each Contracting Party hereby waives and releases any and all rights, claims, demands, or causes of action that may otherwise be available at 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 representation or warranty made in, in connection with, or as an inducement to this Agreement.
Section 10.11 Counterparts. This Agreement may be executed in any number of counterparts (including by means of facsimile or email in .pdf format), each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.