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10-Q
Heritage Global Inc. · May 7, 4:00 PM ET
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Heritage Global Inc. 10-Q
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Contents
87
Article I.DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the following terms shall have the following meanings:
1.2 Table of Defined Terms. Terms that are not defined in Section 1.1 have the meanings set forth in the following Sections:
Article II.PURCHASE AND SALE
2.1 Purchase and Sale of Assets.
2.2 Assumption of Liabilities.
2.3 Closing. Subject to the terms and conditions of this Agreement, the closing of the transactions contemplated hereby (the “Closing”) shall take place simultaneously with the execution and delivery hereof on the Closing Date. The date upon which the Closing occurs is referred to herein as the “Closing Date.” The Closing will be deemed to occur at 12:00:01 a.m. (Eastern Time) on the Closing Date (the “Effective Time”).
2.4 Closing Payments; Actions and Deliveries.
2.5 Post-Reference Time Payment.
2.6 Closing Deliverables.
2.7 Withholding. Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement all Taxes that Purchaser is required to deduct and withhold under any provision of Tax Law. All such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which the deduction or withholding was made. Purchaser shall use commercially reasonable efforts to (i) promptly provide Seller with written notice of any amounts that Purchaser intends to withhold from any payment required to be made pursuant to this Agreement reasonably in advance of such payment; provided that notice shall not be required to be given if such payment is a compensatory payment, (ii) cooperate in good faith with Seller to determine whether an exemption from or reduced rate of withholding or deduction is applicable and, if so, seek to eliminate or reduce any such withholding or deduction, and (iii) provide Seller a reasonable opportunity to provide any applicable certificates, forms or other documentation that would eliminate or reduce the requirement to deduct or withhold under applicable Law.
2.8 Allocation of Consideration.
Article III.REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Organization and Qualification. Seller is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware, and (a) has all the requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted and (b) except where the failure to be duly qualified would not have a Material Adverse Effect, is duly qualified to do business and is in good standing in each of the jurisdictions in which the ownership,
operation or leasing of its properties and assets and the conduct of its business requires it to be so qualified, each of which is set forth in Section 3.1 of the Disclosure Schedule.
3.2 Governing Documents. Seller has made available to Purchaser true and complete copies of all of the Governing Documents of Seller, as presently in effect. Seller is not in material violation of any such Governing Document.
3.3 Capitalization. The shareholders set forth on Section 3.3 of the Disclosure Schedule own all of the authorized, issued and outstanding Equity Interests of Seller, free and clear of all Liens, in the amounts set forth on Section 3.3 of the Disclosure Schedule. No other Person owns, holds or has any right to acquire any Equity Interest in Seller.
3.4 Subsidiaries. Seller does not own, directly or indirectly, any Equity Interests in any other Person. Seller is not obligated to make any investment in or capital contribution to any Person.
3.5 Authority; Enforceability. Seller has the requisite power and authority to execute and deliver this Agreement, each other Transaction Document to which it is a party and each instrument required to be executed and delivered by it hereunder, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of this Agreement, each other Transaction Document to which it is a party and each instrument required to be executed and delivered by it hereunder, the performance of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly and validly approved and authorized by all necessary corporate, limited liability company or similar action, and no other corporate, limited liability company or similar action on the part of Seller is necessary to authorize this Agreement, any other Transaction Document to which it is a party or any instrument required to be executed and delivered by it hereunder or the consummation of transactions contemplated hereby or thereby. This Agreement has been duly and validly executed and delivered by Seller and, assuming the due authorization, execution and delivery thereof by Purchaser, constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).
3.6 Indebtedness; Seller Transaction Expenses. Except as set forth on Section 3.6(a) of the Disclosure Schedule, Seller has (a) no Indebtedness, (b) no liability or obligation with respect to any Change of Control Payment and (c) no outstanding Seller Transaction Expenses.
3.7 No Conflict; Required Filings and Consents. The execution and delivery by Seller of this Agreement, the other Transaction Documents to which it is a party or any instrument required by this Agreement to be executed and delivered by Seller hereunder do not, and the performance of this Agreement, the other Transaction Documents to which it is a party and any instrument required by this Agreement to be executed and delivered by it hereunder will not, (a) conflict with, require a consent or notice under or violate any Governing Document of Seller, (b) except as otherwise provided by Section 3.7 of the Disclosure Schedule, conflict with, require a consent or notice under or violate any Law or Order applicable to Seller or by which any properties, rights or assets of Seller is bound or affected, or (c) except as otherwise provided by Section 3.7 of the Disclosure Schedule, to the Knowledge of Seller, result in any breach or violation of, require a consent or notice under, or constitute a default under, or impair Seller’s rights or alter the rights or obligations of any party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the properties, rights or assets of Seller pursuant to, any Material Contract. No Governmental Approval of, or filing to, any Governmental
Authority is required to be obtained or made by or with respect to Seller in connection with the consummation of the transactions contemplated hereby.
3.8 Material Contracts.
3.9 Compliance with Laws. Seller is, and at all times since January 1, 2023, has been, in compliance in all material respects with all applicable Laws and all Orders of any Governmental Authority applicable to such Seller or the ownership, lease, use, occupancy, or operation of the Acquired Assets or the conduct of the Business. Since January 1, 2023, Seller has not received any written, or, to the Knowledge of Seller, oral, notice, report, order, demand, request for information, citation, summons, complaint, notice of breach or directive or other communication from any Governmental Authority of any breach of any Law which is material to Seller taken as a whole. There is no, and since January 1, 2023, has not been any, investigation by a Governmental Authority pending against or, to the Knowledge of Seller, threatened against Seller related to the ownership, lease, use, occupancy, or operation of the Acquired Assets or the conduct of the Business.
3.10 Financial Statements.
3.11 Absence of Certain Changes and Events. Since the Balance Sheet Date, and other than in the Ordinary Course of Business, there has not been any change, event, condition, or development that is, individually or in the aggregate, materially adverse to: (a) the Business, results of operations, condition (financial or otherwise), or assets of the Business; or (b) the value of the Acquired Assets.
3.12 Absence of Litigation, Claims and Orders.
3.13 Employee Benefit Plans. Section 3.13 of the Disclosure Schedule sets forth a complete list of all “employee benefit plans” (as that term is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) as well as any bonus, stock option, equity compensation, deferred compensation plan, stock purchase, medical, compensation, welfare, disability, severance or termination pay, insurance or incentive plan and each other benefit plan, program, agreement or arrangement, (whether funded or unfunded, written or oral, qualified or nonqualified), sponsored, maintained or contributed to or required to be contributed to by Seller or its ERISA Affiliates, for the benefit of any employee, leased employee, director, officer, manager, owner or independent contractor (in each case either current or former) of Seller or its ERISA Affiliates, and/or their dependents or beneficiaries or with respect to which Seller or its ERISA Affiliates otherwise has any liabilities or obligations (the “Employee Plans”). Neither Seller, nor its ERISA Affiliates, have any liability, contingent or otherwise, with respect to any plan, arrangement or practice of the type described in this Section 3.13 other than the Employee Plans set forth on Section 3.13 of the Disclosure Schedule. Section 3.13 of the Disclosure Schedule sets forth all the Employee Plans with respect to which the payments, benefits or obligations are funded through a third party insurer or are self-insured. For purposes of this Agreement, “ERISA Affiliate” means any entity that is considered a single employer with Seller under Section 414 of the Code.
3.14 Labor Matters.
3.15 Real Property.
3.16 Taxes.
3.17 Intellectual Property and Information Privacy and Security Laws.
3.18 Customers and Suppliers.
3.19 Insurance. Section 3.19 of the Disclosure Schedule sets forth a true and complete list of all insurance policies and self-insurance programs insuring Seller (collectively, the “Insurance Policies”), identifying for each Insurance Policy (a) the name of the insurer(s) thereunder, (b) the type of coverage provided thereunder, and (c) the amount and period covered thereby. The Insurance Policies (w) collectively provide coverage as is required by applicable Law and any Material Contracts and otherwise commercially standard, (x) have been made available to Purchaser prior to the date hereof, and (y) are in full force and effect and all premiums due and payable with respect thereto have been paid in full and Seller is in compliance therewith in all material respects Seller has not received any written or, to the Knowledge of Seller, oral notice of the impending cancellation, invalidation, or non-renewal of any Insurance Policy, that any claim or coverage thereunder will be refused or disputed or that any insurer is reserving any rights in connection therewith.
3.20 Brokers. No broker, financial advisor, finder or investment banker or other Person is entitled to any broker’s, financial advisor’s, finder’s or other fee or commission, or any other payment or other amount, in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller.
3.21 Affiliated Transactions. Except as set forth in Section 3.21 of the Disclosure Schedule, (a) no owner (including any shareholder), manager, director, employee or officer of Seller (any such individual, a “Seller Related Person”) or, to the Knowledge of Seller, any Affiliate or member of the immediate family of any Seller Related Person is or has been (i) a customer (other than with respect to de minimis purchases for personal use), vendor, landlord, tenant, or other business relation of Seller (other than as an owner, shareholder, manager, director, employee or officer), (ii) a direct or indirect owner or Affiliate of any
customer, vendor, landlord, tenant, or other business relation of Seller, or (iii) a party to any transaction, Contract, or other business arrangement or relationship with or involving Seller (other than as an owner, shareholder, manager, director, employee or officer), and (b) no Seller Related Person or, to the Knowledge of Seller, any Affiliate or member of the immediate family of any Seller Related Person, owns any asset or property of any nature whatsoever used by Seller in the conduct of the Business.
3.22 Ownership and Sufficiency of Assets. Except as set forth in Section 3.22 of the Disclosure Schedule, (a) Seller has good and valid title to, a valid leasehold interest in, or a valid license to, all of the Acquired Assets, free and clear of any Liens, (b) Seller has not pledged any such Acquired Asset to a third Person, (c) to the Knowledge of Seller, the Acquired Assets are sufficient for the continued conduct of the Business after the Closing in substantially the same or similar manner as conducted prior to the Closing, and (d) the Acquired Assets are in good working order and condition (ordinary wear and tear excepted).
3.23 Solvency. Seller is neither insolvent nor will it be rendered insolvent by any of the transactions contemplated by this Agreement. As used in this Section 3.23, “insolvent” means that the sum of the debts and other liabilities of Seller exceeds the present fair saleable value of Seller’s assets.
Article IV.REPRESENTATIONS AND WARRANTIES OF PURCHASER
4.1 Organization. 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 the requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted.
4.2 Authority; Enforceability. Purchaser has all necessary corporate power and authority to execute and deliver this Agreement, each other Transaction Document to which it is a party and each instrument required to be executed and delivered by it hereunder, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Purchaser of this Agreement, each other Transaction Document to which it is a party and each instrument required hereby to be executed and delivered by Purchaser hereunder, the performance of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary action on the part of Purchaser, and no other action on the part of Purchaser is necessary to authorize this Agreement, any other Transaction Document to which it is a party or any instrument required to be executed and delivered by it hereunder or the consummation of the transactions contemplated hereby or thereby. This Agreement has been duly and validly executed and delivered by Purchaser and, assuming the due authorization, execution and delivery thereof by Seller, constitutes a legal, valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).
4.3 No Conflict; Required Filings and Consents. The execution and delivery by Purchaser of this Agreement, the other Transaction Documents to which it is a party or any instrument required by this Agreement to be executed and delivered by it hereunder do not, and the performance of this Agreement, the other Transaction Documents to which it is a party and any instrument required by this Agreement to be executed and delivered by it hereunder will not, (a) conflict with, require a consent or notice under or violate the Governing Documents of Purchaser, (b) conflict with, require a consent or notice under or violate any Law or Order applicable to Purchaser or by which any of its properties, rights or assets is bound or
affected or (c) result in any material breach or violation of, require a consent or notice under, or constitute a material default under, or materially impair Purchaser’s rights or alter the rights or obligations of any party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the properties, rights or assets of Purchaser pursuant to, any material Contract to which Purchaser is a party, or by which Purchaser or its properties, rights or assets is or are bound or affected.
4.4 Absence of Litigation, Claims and Orders. As of the date hereof, there are no Claims pending or, to Purchaser’s knowledge, threatened on behalf of or against Purchaser that (a) challenges (i) the validity of this Agreement or any other Transaction Document to which Purchaser is a party or (ii) any action taken or to be taken by Purchaser pursuant to this Agreement or any other Transaction Documents to which Purchaser is a party or in connection with the transactions contemplated hereby and thereby, (b) could impair or delay the transactions contemplated hereby or the ability to consummate the transactions contemplated hereby or (c) could adversely affect Purchaser’s performance under this Agreement or the consummation of the transactions contemplated hereby.
4.5 Brokers. No broker, financial advisor, finder or investment banker or other Person is entitled to any broker’s, financial advisor’s, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser.
Article V.COVENANTS
5.1 Further Assurances. Following the Closing, and without further consideration, each Party shall promptly execute and deliver all such agreements, amendments, instruments, certificates, forms, filings, or other documents, and shall take or refrain from taking all such other action, in each case, as may be reasonably requested by or on behalf of any other Party (at such other Party’s sole expense) in order to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement; provided, however, that this Section 5.1 shall not require any Party to waive any rights it may have hereunder or under any other documents contemplated hereby, to waive any breach hereof or of any other documents contemplated hereby, or to enter into any amendment of this Agreement or any other documents contemplated hereby in a manner materially adverse to such Party.
5.2 Publicity. The Parties agree that any press release with respect to this Agreement and the transactions contemplated hereby shall be a press release of Purchaser, in a form mutually agreed to by Purchaser and Seller; provided, however, that nothing contained herein will limit any Party from making (or require the other Party’s consent to) any announcements, statements or acknowledgments that such Party is required by applicable Law to make, issue or release.
5.3 Customer and Business Relationships. After the Closing, upon the reasonable request of Purchaser, Seller will cooperate with Purchaser in its efforts to continue and maintain for the benefit of Purchaser those business relationships of Seller existing prior to the Closing and relating to the Business to be operated by Purchaser after the Closing, including relationships with lessors, employees, regulatory authorities, licensors, customers, suppliers and others. Seller will refer to Purchaser all inquiries relating to the Business. Neither Seller nor any of its Affiliates shall take any action that would tend to diminish the value of the Acquired Assets after the Closing or that would interfere with the Business of Purchaser to be engaged in after the Closing, including disparaging the name or business of Purchaser.
5.4 Expenses. Except as expressly provided in this Agreement, each Party shall pay its own respective costs and expenses incurred or to be incurred by such Party in negotiating and preparing this Agreement and the other Transaction Documents, and in performing such Party’s obligations under this
Agreement and the other Transaction Documents and carrying out and closing the transactions contemplated hereby and thereby. Except as otherwise explicitly provided in the Escrow Agreement, each Party shall be responsible for one-half of the fees due to Escrow Agent.
5.5 Restrictive Covenants.
5.6 Certain Assigned Contracts.
5.7 Names; Domain Name.
5.8 Receivables.
5.9 Bulk Sales Laws. The Parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Acquired Assets to Purchaser; it being understood that any liabilities arising out of the failure of Seller to comply with the requirements and provisions of any bulk sales, bulk transfer or
similar Laws of any jurisdiction which would not otherwise constitute Assumed Liabilities shall be treated as Excluded Liabilities.
5.10 Pre-Closing Taxes. Any and all ad valorem or similar Taxes (other than the Transfer Taxes) with respect to the Acquired Assets for any Straddle Period shall be prorated between Seller and Purchaser. Seller’s portion of any such Taxes shall be equal to the amount of Tax for the Straddle Period multiplied by a fraction, the numerator of which shall be the number of days from the beginning of the Straddle Period through the Closing Date and the denominator of which shall be the total number of days in the Straddle Period. Purchaser’s portion of any such Taxes shall be equal to the amount of Tax for the Straddle Period multiplied by a fraction, the numerator of which shall be the number of days in the Straddle Period after the Closing Date and the denominator of which shall be the total number of days in the Straddle Period. In the event that any Party pays any Taxes for which the other Party is obligated in whole or in part under this Section 5.10, the former shall present the latter with a statement setting forth the latter’s proportionate share, and the latter shall promptly pay its share to the former.
5.11 Transfer Taxes. Any transfer, documentary, sales, use, stamp, registration and other similar Taxes and fees incurred in connection with the transfer of the Acquired Assets to Purchaser (collectively, the “Transfer Taxes”) shall be paid by 50% by Seller and 50% by Purchaser, and Purchaser and Seller shall reasonably cooperate with respect to the filing of any Tax Returns and exemption certificates related thereto.
5.12 Cooperation. Seller and Purchaser shall provide each other with such cooperation and information as either of them reasonably may request of the other in filing any Tax Return or with respect to any audit by any Tax authority or other Tax authority proceeding in respect of Taxes for any taxable period that includes the date of the Closing and for all prior taxable periods, in each case, with respect to the Acquired Assets or the Business.
5.13 Payment of Other Excluded Liabilities. In addition to payment of Taxes pursuant to Section 5.10 or Section 5.11, Seller shall pay, or make adequate provision for the payment, in full all of the Excluded Liabilities and other liabilities of Seller under this Agreement. If any such liabilities are not so paid or provided for, or if Purchaser reasonably determines that failure to make any payments will impair Purchaser’s use or enjoyment of the Acquired Assets or conduct of the Business, Purchaser may, at any time after the Closing Date, elect to make all such payments directly (but shall have no obligation to do so) and set off and deduct the full amount of all such payments from any amounts due to Seller under this Agreement.
5.14 Seller Release. Seller, on such its own behalf and on behalf of its successors, trustees, executors, administrators, permitted assigns and any other Person that may claim by, through or in the right of Seller, as applicable (collectively, the “Releasing Parties”), hereby irrevocably waives, releases and discharges Purchaser and each of its Affiliates (collectively, the “Released Parties”) from any and all Proceedings, causes of actions, demands, rights, damages, Indebtedness, liabilities, dues, sums of money, accounts, reckonings, costs, expenses, responsibilities, covenants, contracts, controversies, agreements and claims of any kind or nature whatsoever that such Person now has or may have ever had, whether in such Releasing Party’s capacity as an equityholder, employee, officer, manager or director of the Business or otherwise (including any right to indemnification or exculpation with respect to any losses) and whether absolute or contingent, liquidated or unliquidated, known or unknown, and such Releasing Party shall not seek to recover any amounts or any other remedy in connection therewith or thereunder from any Released Party; provided, however, that the foregoing release will not be construed to apply to or release any claims (a) relating to or arising under this Agreement or the Transaction Documents or (b) which are not permitted to be released under applicable Law.
Article VI.INDEMNIFICATION
6.1 Survival . All representations, warranties, covenants, and obligations in this Agreement, the Schedules attached hereto, and any other certificate or document delivered pursuant to this Agreement will survive the Closing and the consummation of the Transactions, subject to Section 6.4. Except to the extent Purchaser has knowledge as of the Closing Date of any breach or inaccuracy of any of the representations or warranties in this Agreement, the right to indemnification, reimbursement, or other remedy based on such representations, warranties, covenants and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) about, the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or obligation. For purposes of this Section 6.1, the “knowledge” of Purchaser means the actual knowledge of Ross Dove, Brian Cobb, Nick Dove or James Sklar.
6.2 Indemnification and Reimbursement by Seller. Seller shall indemnify and hold harmless Purchaser, its Affiliates, and their respective officers, directors, members, stockholders, employees, representatives and agents (collectively, the “Purchaser Indemnified Persons”), and shall reimburse the Purchaser Indemnified Persons, including through the right of Purchaser to assert a claim against the General Escrow Amount or the Patent Litigation Escrow Amount, as applicable, as provided in Section 6.7 hereof, for Losses, arising, directly or indirectly, from or in connection with:
6.3 Indemnification and Reimbursement by Purchaser. Purchaser shall indemnify and hold harmless Seller and its Affiliates, and their respective officers, directors, stockholders, employees, representatives and agents (collectively, the “Seller Indemnified Persons”), and shall reimburse the Seller Indemnified Persons for any Losses arising, directly or indirectly, from or in connection with:
6.4 Limitations.
6.5 Third-Party Claims.
6.6 Order of Recovery.
6.7 Release of Escrow Funds in Escrow Account.
6.8 Exclusive Remedy. The indemnification provided for in this Article VI shall be the exclusive post-Closing remedy available to an Indemnified Person in connection with any Losses arising out of the matters set forth in this Agreement or the transactions contemplated hereby, provided that nothing herein will limit any Indemnified Person’s rights hereunder or otherwise to injunctive or other equitable relief to enforce its rights under this Agreement or otherwise in connection with the transactions contemplated hereby.
6.9 Treatment of Indemnification Payments. Any payments made pursuant to the indemnification obligations arising under this Agreement shall be treated as an adjustment to the Base Purchase Price for all Tax purposes.
Article VII.MISCELLANEOUS
7.1 Amendment. This Agreement may not be amended other than in an instrument in writing signed by each of the Parties.
7.2 Waiver. Neither the failure nor any delay by any Party in exercising any right under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, and no single or partial exercise of any such right will preclude any other or further exercise of such right or the exercise of any other right. No claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Party. The rights and remedies of the Parties to this Agreement are cumulative and not alternative.
7.3 Notices. All notices, requests, demands or other communications under this Agreement must be in writing and will be deemed to have been duly given to the Person designated below (i) on the date of delivery if delivered in person; (ii) on the third (3rd) Business Day following the deposit thereof in the United States mail, provided it is mailed by certified mail, return-receipt requested and postage prepaid and properly addressed; or (iii) on the earlier of actual receipt or second (2nd) Business Day after being sent by air courier or commercial delivery service. Any Party may from time to time, by written notice to the other Party, designate a different address, which will be substituted for the one specified below:
7.4 Enforcement of Agreement. Each Party hereto acknowledges and agrees that the other Parties hereto would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms and that any breach of this Agreement by such Party could not be adequately compensated by monetary damages. Accordingly, the Parties hereto agree that, in addition to any other right or remedy to which any Party hereto may be entitled, at law or in equity, the Parties hereto will be entitled to, among other remedies, and without posting any bond or other undertaking, injunctive relief, which may include, but will not be limited to: (a) restraining any other Party hereto from engaging in any action that would constitute or cause a breach or violation of this Agreement, (b) obtaining specific performance to compel any Party hereto to perform such Party’s obligations and covenants under this Agreement, and (c) obtaining damages available either at law or in equity. If any Proceeding relating to this Agreement, or the enforcement of any provision of this Agreement is brought by a Party against any other Party, the prevailing Party will be entitled to recover reasonable attorney’s fees, costs and disbursements (in addition to any other relief to which the prevailing Party may be entitled).
7.5 Headings; Construction. The headings of Articles and Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. All Annexes, Exhibits and Schedules to this Agreement are incorporated into and constitute an integral part of this Agreement as if fully set forth herein. The statements in the Disclosure Schedule, and those in any supplement thereto, relate to the representations and warranties in the Section of the Agreement to which they expressly relate and to any other representation or warranty in this Agreement to the extent such information is, on its face, responsive to such other Section. The language used in the Agreement will be construed, in all cases, according to its fair meaning, and not for or against any Party hereto. Any rules of construction to the effect that any ambiguities are to be resolved against the drafting Party will not be available in the interpretation of this Agreement.
7.6 Severability. If any term or provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms and provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any of the Parties. Upon such determination that any term or provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to amend or otherwise modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner such that that transactions contemplated hereby are fulfilled to the fullest extent possible.
7.7 Entire Agreement. This Agreement and the Transaction Documents (including all Annexes, Exhibits and Schedules (including the Disclosure Schedule) to this Agreement) and other documents and instruments delivered in connection herewith constitute the entire agreement among the Parties and supersede all prior representations, agreements, understandings and undertakings, whether written or oral, among the Parties, or any of them, with respect to the subject matter hereof and thereof (including the Confidentiality Agreement, which will be of no further force and effect as of the Closing), and no Party is relying on any other prior oral or written representations, agreements, understandings or undertakings with respect to the subject matter hereof and thereof.
7.8 Assignment. This Agreement and the rights and obligations hereunder may not be assigned by any Party without the prior written consent of each of the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective legal successors and permitted assigns. Notwithstanding the foregoing, Purchaser may assign its rights and obligations under this Agreement, in whole or in part, in connection with any disposition or transfer of all or any portion of Purchaser’s business in any form of transaction without the consent of Seller provided that Purchaser shall remain liable for any continuing obligations hereunder. In addition, Purchaser may assign any or all of its rights pursuant to this Agreement to any of its Affiliates or
to any lender to Purchaser or any of its Affiliates as collateral security without the consent of Seller, provided that, unless otherwise agreed to by Seller, Purchaser shall remain liable for any continuing obligations hereunder.
7.9 No Third Party Beneficiaries. Nothing in this Agreement will be construed to give any Person other than the Parties to this Agreement any legal or equitable right under or with respect to this Agreement or any provision of this Agreement, except such rights as will inure to a successor or permitted assignee pursuant to Section 7.8.
7.10 Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the Law of the State of Delaware without regard to any conflicts of law principles that would require the application of any other Law. Each Party agrees to personal jurisdiction in any action brought in any Court, Federal or State, within the State of Delaware having subject matter jurisdiction over the matters arising under this Agreement. Any suit, action or proceeding arising out of or relating to this Agreement shall only be instituted in the State of Delaware. Each Party waives any objection that it may have now or hereafter to the laying of the venue of such action or proceeding and irrevocably submits to the exclusive jurisdiction of any such Court in any such suit, action or Proceeding.
7.11 Waiver of Jury Trial. The parties hereby waive any right to trial by jury in any action or proceeding arising out of or in any way pertaining to this Agreement or the transactions, whether now or hereafter arising, and whether sounding in contract, tort, or otherwise. Any party may file a copy of this Section 7.11 with any court as written evidence of the knowing, voluntary and bargained agreement between the parties to irrevocably waive trial by jury, and that any proceeding or action whatsoever between the parties relating to this Agreement or the transactions will instead be tried in a court of competent jurisdiction by a judge sitting without a trial.
7.12 Execution of Agreement; Counterparts. This Agreement may be executed in one or more counterparts, 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. The exchange of copies of this Agreement and of signature pages by facsimile, electronic signature (including via DocuSign) or by .pdf or similar imaging transmission, will constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile, electronic signature (including via DocuSign) or by .pdf or similar imaging transmission, will be deemed to be their original signatures for any purpose whatsoever.
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