Exhibit 2.1
By and among
Yellow Folder, LLC,
And each of
16 th Fairway, LLC,
TAG 2103 Investment Trust,
Elderly Moose, LLC,
and
Double Wolves, Inc.
dated as of
April 1, 2022
TABLE OF CONTENTS
| ARTICLE I DEFINITIONS | 1 |
| Section 1.01 Capitalized Terms. | 1 |
| Section 1.02 Interpretation. | 1 |
| ARTICLE II PURCHASE AND SALE | 2 |
| Section 2.01 Purchase and Sale of Assets. | 2 |
| Section 2.02 Excluded Assets. | 3 |
| Section 2.03 Assumed Liabilities. | 4 |
| Section 2.04 Excluded Liabilities. | 4 |
| Section 2.05 Preliminary Purchase Price. | 6 |
| Section 2.06 Estimated Closing Statement. | 6 |
| Section 2.07 Preliminary Purchase Price Adjustment. | 6 |
| Section 2.08 Allocation of Purchase Price. | 8 |
| Section 2.09 Third Party Consents. | 9 |
| ARTICLE III CLOSING | 9 |
| Section 3.01 Closing. | 9 |
| Section 3.02 Closing Deliverables. | 9 |
| Section 3.03 Discharge of Indebtedness, Closing Costs and Liens. | 11 |
| ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER PARTIES | 12 |
| Section 4.01 Organization and Qualification of Seller. | 12 |
| Section 4.02 Authority of Seller Parties. | 12 |
| Section 4.03 No Conflicts; Consents. | 12 |
| Section 4.04 Financial Statements. | 13 |
| Section 4.05 Undisclosed Liabilities. | 13 |
| Section 4.06 Absence of Certain Changes, Events and Conditions. | 13 |
| Section 4.07 Material Contracts. | 15 |
| Section 4.08 Title to Purchased Assets. | 17 |
| Section 4.09 Condition and Sufficiency of Assets. | 17 |
| Section 4.10 Real Property. | 17 |
| Section 4.11 Intellectual Property. | 17 |
| Section 4.12 Privacy and Data Security. | 21 |
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Section 4.13 Accounts Receivable. |
22 |
| Section 4.14 Customers and Suppliers. | 22 |
| Section 4.15 Insurance. | 22 |
| Section 4.16 Legal Proceedings; Governmental Orders. | 23 |
| Section 4.17 Compliance With Laws; Permits. | 23 |
| Section 4.18 Environmental Matters. | 23 |
| Section 4.19 Employee Benefit Matters. | 24 |
| Section 4.20 Employment Matters. | 26 |
| Section 4.21 Taxes. | 27 |
| Section 4.22 Brokers. | 28 |
| Section 4.23 Full Disclosure. | 28 |
| Section 4.24 Acknowledgment. | 28 |
| ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER | 29 |
| Section 5.01 Organization of Buyer. | 29 |
| Section 5.02 Authority of Buyer. | 29 |
| Section 5.03 No Conflicts; Consents. | 29 |
| Section 5.04 Brokers. | 29 |
| Section 5.05 Legal Proceedings. | 30 |
| ARTICLE VI COVENANTS | 30 |
| Section 6.01 Employees and Employee Benefits. | 30 |
| Section 6.02 Confidentiality. | 31 |
| Section 6.03 Non-Competition; Non-Solicitation. | 32 |
| Section 6.04 Public Announcements. | 33 |
| Section 6.05 Bulk Sales Laws. | 33 |
| Section 6.06 Receivables. | 33 |
| Section 6.07 Transfer Taxes. | 33 |
| Section 6.08 Tax Clearance Certificates. | 33 |
| Section 6.09 Representation and Warranty Insurance. | 33 |
| Section 6.10 Further Assurances. | 33 |
| ARTICLE VII INDEMNIFICATION | 34 |
| Section 7.01 Survival. | 34 |
| Section 7.02 Indemnification By Seller Parties. | 34 |
| Section 7.03 Indemnification By Buyer. | 35 |
| Section 7.04 Certain Limitations. | 35 |
| Section 7.05 Indemnification Procedures. | 36 |
| Section 7.06 Tax Treatment of Indemnification Payments. | 37 |
| Section 7.07 Effect of Investigation. | 37 |
| Section 7.08 Materiality. | 38 |
| Section 7.09 Exclusive Remedies. | 38 |
| Section 7.10 Payments. | 39 |
| ARTICLE VIII MISCELLANEOUS | 39 |
| Section 8.01 Expenses. | 39 |
| Section 8.02 Notices. | 39 |
| Section 8.03 Headings. | 40 |
| Section 8.04 Severability. | 40 |
| Section 8.05 Entire Agreement. | 40 |
| Section 8.06 Successors and Assigns. | 40 |
| Section 8.07 No Third-party Beneficiaries. | 40 |
| Section 8.08 Amendment and Modification; Waiver. | 40 |
| Section 8.09 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. | 41 |
| Section 8.10 Specific Performance. | 41 |
| Section 8.11 Counterparts. | 41 |
Schedules
Schedule A: Schedule of Definitions
Disclosure Schedules
Exhibits
| Exhibit A: | Closing Working Capital Methodology |
| Exhibit B: | Reserved |
| Exhibit C: | Escrow Agreement |
This Asset Purchase Agreement (this “ Agreement ”), dated as of April 1, 2022, is entered into between YELLOW FOLDER, LLC , a Texas limited liability company (“ Seller ”), 16 TH FAIRWAY, LLC , a Texas limited liability company (“ Fairway ”), TAG 2103 INVESTMENT TRUST , a Texas trust (“ TAG ”), ELDERLY MOOSE, LLC , a Texas limited liability company (“ Elderly Moose ”), DOUBLE WOLVES, INC. , a Texas subchapter S corporation (“ Double Wolves ” and together with Fairway, TAG, and Elderly Moose, the “ Members ”) (the Members and Seller together, each a “ Seller Party ” and collectively, the “ Seller Parties ”), and INTELLINETICS, INC. , a Nevada corporation (“ Buyer ”).
Recitals
WHEREAS , Seller is engaged in the business of document management, focused on the K-12 education market operated primarily through a software as a service platform (the “ Business ”);
WHEREAS , the Members collectively own one hundred percent (100%) of the issued and outstanding Class A Unit voting membership interests of Seller;
WHEREAS , Seller wishes to sell, transfer, convey and assign to Buyer, and Buyer wishes to purchase and assume from Seller, substantially all of the assets, and certain specified liabilities, of the Business, subject to the terms and conditions set forth herein; and
WHEREAS , a portion of the purchase price payable by Buyer to Seller at Closing (as defined herein) shall be placed in escrow by Buyer, the release of which shall be contingent upon certain events and conditions, all as set forth in this Agreement and the Escrow Agreement (as defined herein).
NOW, THEREFORE , in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Seller Parties and Buyer hereto agree as follows:
ARTICLE I
Definitions
Section 1.01 Capitalized Terms . Capitalized terms used in this Agreement shall have the meanings specified or referred to in Schedule A attached hereto and incorporated herein. Other capitalized terms used herein but not defined in Schedule A shall have the meanings respectively ascribed to them elsewhere in this Agreement. All capitalized terms defined herein are equally applicable to both the singular and plural forms of such terms.
Section 1.02 Interpretation . For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Schedules and Exhibits mean the Articles and Sections of, and Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
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ARTICLE II
Purchase and Sale
Section 2.01 Purchase and Sale of Assets. Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell, assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, free and clear of any Encumbrances other than Permitted Encumbrances, all of Seller’s right, title and interest in, to and under all of the assets, properties and rights of every kind and nature, whether personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection with, the Business (collectively, the “ Purchased Assets ”), including, without limitation, the following:
(a) all accounts or notes receivable held by Seller, and any security, claim, remedy or other right related to any of the foregoing (“ Accounts Receivable ”);
(b) all inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories (“ Inventory ”);
(c) all Contracts related to the Business to which Seller is a party, other than the Excluded Contracts (the “ Assigned Contracts ”);
(d) all Intellectual Property Assets;
(e) all furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, accessories, telephones and other tangible personal property, whether or not reflected on the Balance Sheet (the “ Tangible Personal Property ”);
(f) all Permits which are held by Seller and required for the conduct of the Business as currently conducted or for the ownership and use of the Purchased Assets, including, without limitation, those listed on Section 4.17(b) of the Disclosure Schedules;
(g) to the extent transferable, all of the right, title and interest of the Seller in and to the telephone and facsimile numbers, email addresses and directory listings of the Business, and all passwords and security protection procedures and systems with respect thereto;
(h) all rights to any Actions of any nature available to or being pursued by Seller to the extent related to the Business, the Purchased Assets or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;
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(i) all claims and rights under non-disclosure or confidentiality, non-compete, or non-solicitation, employment, assignment of inventions or similar agreements with any current or former employee, consultant, independent contractor or non-employee director or manager of the Seller have been entered into for the benefit of the Business and/or Purchased Assets;
(j) all prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees (including any such item relating to the payment of Taxes);
(k) all of Seller’s rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased Assets;
(l) all insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities;
(m) originals, or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general, financial and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (including all correspondence with any Governmental Authority), sales material and records (including pricing history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements, marketing and promotional surveys, material and research and files relating to the Intellectual Property Assets and the Intellectual Property Agreements (“ Books and Records ”); and
(n) all goodwill and the going concern value of the Business.
Section 2.02 Excluded Assets. Notwithstanding the foregoing, the Purchased Assets shall not include the following assets (collectively, the “ Excluded Assets ”):
(a) cash and cash equivalents;
(b) Contracts, including Intellectual Property Agreements, which are not Assigned Contracts which are listed on Section 2.02(b) of the Disclosure Schedules (the “ Excluded Contracts ”);
(c) the organizational documents, minute books, Tax Returns, books of account or other records having to do with the organization of Seller;
(d) all Benefit Plans and assets attributable thereto;
(e) the assets, properties and rights specifically set forth on Section 2.02(e) of the Disclosure Schedules; and
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(f) the rights which accrue or will accrue to Seller under this Agreement and the Ancillary Documents.
Section 2.03 Assumed Liabilities. Subject to the terms and conditions set forth herein, as of the Closing, Buyer shall assume and agree to pay, perform and discharge only the following Liabilities of Seller (collectively, the “ Assumed Liabilities ”), which relate to the Business or Purchased Assets, and no other Liabilities:
(a) all trade accounts payable of Seller to third parties in connection with the Business that (i) remain unpaid and are not delinquent as of the Closing Date, (ii) are reflected as a liability in the Closing Working Capital, (iii) and that arose in the ordinary course of business consistent with past practice since the Balance Sheet Date, but excluding, in all cases, any and all liabilities and obligations in respect of Taxes;
(b) all Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder (i) are required to be performed after the Closing Date, (ii) were incurred in the ordinary course of business, and (iii) do not relate to any failure to perform, improper performance, warranty or other breach, default or violation by Seller on or prior to the Closing;
(c) those Liabilities incurred in the ordinary course of business and which have been identified as “current liabilities” in the Closing Working Capital; and
(d) those Liabilities of Seller, if any, set forth on Section 2.03(d) of the Disclosure Schedules.
Section 2.04 Excluded Liabilities. Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of any Seller Party or any of their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “ Excluded Liabilities ”). Seller Parties shall, and shall cause each of their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of a Seller Party arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, brokers, advisers and others (“ Closing Costs ”);
(b) any Liability for (i) Taxes of Seller (or any Member or Affiliate of Seller) or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of Seller pursuant to Section 6.07; or (iii) other Taxes of Seller (or any member or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any member or Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
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(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any Liabilities of Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(f) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(g) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller;
(h) any trade accounts payable of Seller (i) to the extent not accounted for on the Balance Sheet; (ii) which constitute intercompany payables owing to Affiliates of Seller or any Member; (iii) which constitute debt, loans or credit facilities owing to financial institutions are incurred in connection with capital leases; or (iv) which did not arise in the ordinary course of business;
(i) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to Seller on or before the Closing; (ii) did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(j) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 7.03 as Seller Indemnitees;
(k) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by Seller of such Contracts prior to Closing;
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(l) any Liabilities associated with the Indebtedness of the Seller and/or the Business, including but not limited to any debt, loans or credit facilities owing to financial institutions and any capital leases; and
(m) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order.
Section 2.05 Preliminary Purchase Price. Buyer agrees to pay Seller, at the Closing, for the Purchased Assets an amount equal to: (A) $6,500,000.00 (the “ Preliminary Purchase Price ”), plus (B) the amount, if any, by which the Estimated Closing Working Capital exceeds the Target Working Capital (or minus the amount by which the Target Working Capital exceeds the Estimated Closing Working Capital), minus (C) the Escrow Amount minus (D) the amount of any Indebtedness of Seller not paid by Seller pursuant to Section 3.03(a), if any, minus (E) the Closing Costs not paid by Seller pursuant to Section 3.03(a), if any (such aggregate amount, the “ Closing Payment ”).
Section 2.06 Estimated Closing Statement. At least three (3) Business Days prior to the date hereof, Seller has delivered to Buyer a written statement (the “ Estimated Closing Statement ”), which includes a balance sheet of Seller estimated as of immediately prior to the Closing (an “ Estimated Balance Sheet ”), together with a statement setting forth, in reasonable detail, Seller’s determination of the Closing Working Capital of Seller estimated as of immediately prior to Closing (the “ Estimated Closing Working Capital ”). The Estimated Closing Statement, together with the Estimated Balance Sheet, have been prepared and determined in accordance with GAAP, consistently applied in accordance with Seller’s past practices. The calculation of Estimated Closing Working Capital has been prepared in accordance with the Closing Working Capital Methodology.
Section 2.07 Preliminary Purchase Price Adjustment.
(a) Post-Closing Adjustment .
(i) Within sixty (60) days after the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “ Closing Working Capital Statement ”), which includes the final balance sheet of Seller as of immediately prior to the Closing (the “ Closing Balance Sheet ”), together with a statement setting forth Buyer’s calculation of Closing Working Capital. The Closing Working Capital Statement shall be determined in accordance with the Closing Working Capital Methodology.
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(ii) The Preliminary Purchase Price shall be adjusted consistent with Section 2.05 based on the Estimated Closing Capital and shall be subject to further adjustment after the Closing as set forth in this Section 2.07, based upon the Closing Working Capital. Upon determination by the Parties of the Closing Working Capital, pursuant to this Section 2.07, the Preliminary Purchase Price shall be increased by the amount, if any, by which the Closing Working Capital exceeds the Estimated Closing Working Capital or decreased by the amount by which the Estimated Closing Working Capital exceeds the Closing Working Capital. The “ Post-Closing Adjustment ” shall be an amount equal to the Closing Working Capital minus the Estimated Closing Working Capital. If the Post-Closing Adjustment is a positive number, Buyer shall pay to Seller an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Seller Parties shall pay to Buyer an amount equal to the Post-Closing Adjustment. The Preliminary Purchase Price as so adjusted pursuant to this Section 2.07, plus any amount released to Seller from the Escrow Fund in accordance with this Agreement and the Escrow Agreement, is referred to as the “ Purchase Price .”
(b) Examination and Review .
(i) Examination. After receipt of the Closing Working Capital Statement, Seller shall have thirty (30) days (the “ Review Period ”) to review the Closing Working Capital Statement. During the Review Period, Seller and its accountants shall have full access to the relevant books and records of Buyer, the personnel of, and work papers prepared by, Buyer and/or Buyer’s accountants to the extent that they relate to the Closing Working Capital Statement and to such historical financial information (to the extent in Buyer’s possession) relating to the Closing Working Capital Statement as Seller may reasonably request for the purpose of reviewing the Closing Working Capital Statement and to prepare a Statement of Objections (defined below), provided, that such access shall be in a manner that does not interfere with the normal business operations of Buyer.
(ii) Objection. On or prior to the last day of the Review Period, Seller may object to the Closing Working Capital Statement by delivering to Buyer a written statement setting forth Seller’s objections in reasonable detail, indicating each disputed item or amount and the basis for Seller’s disagreement therewith (the “ Statement of Objections ”). If Seller fails to deliver the Statement of Objections before the expiration of the Review Period, the Closing Working Capital Statement and the Post-Closing Adjustment, as the case may be, reflected in the Closing Working Capital Statement shall be deemed to have been accepted by Seller. If Seller delivers the Statement of Objections before the expiration of the Review Period, Buyer and Seller shall negotiate in good faith to resolve such objections within thirty (30) days after the delivery of the Statement of Objections (the “ Resolution Period ”), and, if the same are so resolved within the Resolution Period, the Post-Closing Adjustment and the Closing Working Capital Statement with such changes as may have been previously agreed in writing by Buyer and Seller, shall be final and binding.
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(iii) Resolution of Disputes. If Seller and Buyer fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections before expiration of the Resolution Period, then any amounts remaining in dispute (“ Disputed Amounts ” and any amounts not so disputed, the “ Undisputed Amounts ”) shall be submitted for resolution to the office of BDO USA, LLC or, if BDO USA, LLC is unable to serve, Buyer and Seller shall appoint by mutual agreement the office of an impartial nationally recognized firm of independent certified public accountants (the “ Independent Accountant ”) who, acting as experts and not arbitrators, shall resolve the Disputed Amounts only and make any adjustments to the Post-Closing Adjustment, as the case may be, and the Closing Working Capital Statement. The parties hereto agree that all adjustments shall be made without regard to materiality. The Independent Accountant shall only decide the specific items under dispute by the parties and their decision for each Disputed Amount must be within the range of values assigned to each such item in the Closing Working Capital Statement and the Statement of Objections, respectively.
(iv) Fees of the Independent Accountant. The fees and expenses of the Independent Accountant shall be paid by Seller, on the one hand, and Buyer, on the other hand, based upon the percentage that the amount actually contested but not awarded to Seller or Buyer, respectively, bears to the aggregate amount actually contested by Seller and Buyer.
(v) Determination by Independent Accountant. The Independent Accountant shall make a determination as soon as practicable within thirty (30) days (or such other time as the parties hereto shall agree in writing) after their engagement, and their resolution of the Disputed Amounts and their adjustments to the Closing Working Capital Statement and/or the Post-Closing Adjustment shall be conclusive and binding upon the parties hereto.
(c) Payments of Post-Closing Adjustment . Except as otherwise provided herein, any payment of the Post-Closing Adjustment shall (A) be due (x) within five (5) Business Days of acceptance of the applicable Closing Working Capital Statement or (y) if there are Disputed Amounts, then within five (5) Business Days of the resolution described in clause (b)(v) above; and (B) be paid by wire transfer of immediately available funds to such account as is directed by Buyer or Seller, as the case may be. If any payment of the Post-Closing Adjustment owed by Seller to Buyer is not paid within the applicable time period set forth in the immediately preceding sentence, the Post-Closing Adjustment owed by Seller to Buyer shall be paid by the Escrow Agent pursuant to the terms of the Escrow Agreement from the Escrow Fund.
(d) Adjustments for Tax Purposes . Any payments made pursuant to this Section 2.07 shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.
Section 2.08 Allocation of Purchase Price. Seller Parties and Buyer agree that the Purchase Price shall be allocated among the Purchased Assets for all purposes (including Tax and financial accounting) pursuant to an allocation schedule completed by Seller Parties and Buyer promptly after the Closing (the “ Allocation Schedule ”). Buyer and Seller Parties shall use commercially reasonable good faith efforts in completing the Allocation Schedule. Buyer and Seller Parties shall file all Tax Returns (including amended returns and claims for refund) and information reports in a manner consistent with the Allocation Schedule. Any adjustments to the Purchase Price pursuant to Section 2.07 shall be allocated in a manner consistent with the Allocation Schedule.
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Section 2.09 Third Party Consents. To the extent that Seller’s rights under any Contract or Permit constituting a Purchased Asset, or any other Purchased Asset, may not be assigned to Buyer without the consent of another Person which has not been obtained, this Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful, and Seller, at its expense, shall use its reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted by law and the Purchased Asset, shall act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder and shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed to provide such benefits to Buyer, including holding in trust for and paying to Buyer promptly upon receipt thereof, all such income, proceeds and other monies received by Seller to under such Contract or Purchased Asset. Provided the Seller helps the Buyer obtain the benefits of such Purchased Asset pursuant to the foregoing, there shall be no reduction to the Purchase Price for the inability to transfer such Purchased Asset.
ARTICLE III
Closing
Section 3.01 Closing. The consummation of the transactions contemplated by this Agreement (the “ Closing ”) shall take place on the date hereof concurrently with the execution and delivery of this Agreement (the “ Closing Date ”), it being agreed that the Parties may exchange signatures through electronic transmission (including but not limited to .pdf, email or facsimile), without the need to physically attend the Closing. All proceedings to be taken and all documents to be executed and delivered by the Parties at the Closing shall be deemed to have been taken, executed and delivered simultaneously and no proceedings shall be deemed taken nor any documents executed or delivered until all have been taken, executed and delivered.
Section 3.02 Closing Deliverables.
(a) At the Closing, Seller shall deliver to Buyer the following:
(i) the Escrow Agreement duly executed by Seller;
(ii) a xxxx of sale in form and substance satisfactory to Buyer (the “ Xxxx of Sale ”) and duly executed by Seller, transferring the tangible personal property included in the Purchased Assets to Buyer;
(iii) an assignment and assumption agreement in form and substance satisfactory to Buyer (the “ Assignment and Assumption Agreement ”) and duly executed by Seller, effecting the assignment to and assumption by Buyer of the Purchased Assets and the Assumed Liabilities;
(iv) an assignment in form and substance satisfactory to Buyer (the “ Intellectual Property Assignments ”) and duly executed by Seller, transferring all of Seller’s right, title and interest in and to the Intellectual Property Assets to Buyer;
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(v) an employment agreement in form and substance satisfactory to Buyer, signed by Xxxx Xxxx (the “ Xxxx Employment Agreement ”);
(vi) an employment agreement in form and substance satisfactory to Buyer, signed by Xxxxx Xxxxx (the “ Tyler Employment Agreement ” and collectively with the Xxxx Employment Agreement, the “ Employment Agreements ”);
(vii) all consents, waivers, approvals and other authorizations identified on Section 3.02(a)(vii) of the Disclosure Schedules;
(viii) reserved;
(ix) pay-off letter(s) and UCC termination statement(s) in form and substance satisfactory to Buyer evidencing the discharge of all Indebtedness and the release of all Liens related thereto;
(x) Seller’s duly completed and executed Internal Revenue Service Form W-9;
(xi) a certificate of amendment to the Certificate of Formation of Seller, duly executed by an officer of Seller, to change the name of Seller to a name that is reasonably acceptable to Buyer that does not include “Yellow Folder” or “YF” or any variation thereof;
(xii) documents in form and substance satisfactory to Buyer evidencing the forgiveness of the PPP loan or evidence of forgiveness application and escrow of loan amount pursuant to SBA PPP guidelines;
(xiii) a certificate of the Secretary (or equivalent officer) of Seller certifying as to (A) the resolutions of the board of directors and holders of Class A Units of Seller, which authorize the execution, delivery, and performance of this Agreement, the Ancillary Documents, and the other agreements, instruments and documents required to be delivered in connection with this Agreement and the consummation of the transactions contemplated hereby and thereby (collectively, the “ Transaction Documents ”, and (B) the names and signatures of the officers of Seller authorized to sign the Transaction Documents;
(xiv) a properly completed and duly executed IRS Form W-9 from Seller; and
(xv) such other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Buyer, as may be required to give effect to this Agreement.
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(b) At the Closing, Buyer shall deliver to Seller the following:
(i) the Cash Payment by wire transfer of immediately available funds to an account designated in writing by Seller to Buyer;
(ii) the Escrow Agreement duly executed by Buyer;
(iii) the Assignment and Assumption Agreement duly executed by Buyer;
(iv) the Employment Agreements, each duly executed by Buyer; and
(v) a certificate of the Secretary (or equivalent officer) of Buyer certifying as to (A) the resolutions of the board of directors of Buyer, which authorize the execution, delivery, and performance of the Transaction Documents, and (B) the names and signatures of the officers of Buyer authorized to sign the Transaction Documents.
(c) At or prior to the Closing, Buyer shall deliver to the Escrow Agent:
(i) the Escrow Amount (such amount, including any interest or other amounts earned thereon and less any disbursements therefrom in accordance with the Escrow Agreement, the “ Escrow Fund ”) by wire transfer of immediately available funds to accounts designated by the Escrow Agent, to be held for the purpose of securing the obligations of Seller in Section 2.07(c); and
(ii) the Escrow Agreement.
Section 3.03 Discharge of Indebtedness, Closing Costs and Liens .
(a) At or before the Closing, Seller shall, at Seller’s sole cost and expense, pay and discharge in full all Indebtedness and Closing Costs. To the extent not so paid at or before the Closing, all such unpaid Indebtedness and Closing Costs shall be the sole responsibility of Seller and shall constitute Excluded Liabilities and Seller shall not distribute any portion of the Closing Payment to the Members unless and until such Indebtedness and Closing Costs have been paid and discharged in full.
(b) At the Closing, to the extent any Indebtedness or Closing Costs are not paid by Seller pursuant to Section 3.03(a), Buyer, on Seller’s behalf, shall remit payment of the Indebtedness and Closing Costs to the third party creditors in the amounts and as set forth on the respective invoices and payoff letters from such third party creditors.
(c) At or before the Closing, Seller shall cause all Liens (other than Permitted Encumbrances) on or relating to any of the Purchased Assets, at Seller’s sole cost and expense, to be released, extinguished and discharged in full, and shall deliver to Buyer instruments and UCC termination statements releasing, extinguishing and discharging all such Liens, all in form and substance satisfactory to Buyer.
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ARTICLE IV
Representations and warranties of seller PARTIES
Except as set forth in the correspondingly numbered Section of the Disclosure Schedules, each Seller Party hereby represents and warrants to Buyer that the statements contained in this ARTICLE IV are true and correct as of the date hereof.
Section 4.01 Organization and Qualification of Seller. Seller is a limited liability company duly organized, validly existing and in good standing under the Laws of the state of Texas and has full limited liability company power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on the Business as currently conducted. Section 4.01 of the Disclosure Schedules sets forth each jurisdiction in which Seller is licensed or qualified to do business, and Seller is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the ownership of the Purchased Assets or the operation of the Business as currently conducted makes such licensing or qualification necessary.
Section 4.02 Authority of Seller Parties. Seller has the requisite power (company or otherwise) and authority to enter into this Agreement and any Ancillary Documents to which it is or will be a party and to undertake and perform fully the transactions contemplated hereby and thereby. All necessary action (corporate or otherwise) has been taken by and on behalf of Seller with respect to the authorization, execution, delivery and performance of this Agreement and any Ancillary Documents to which it is or will be a party. Each Member has full capacity, authority and right to execute and deliver this Agreement and the Ancillary Documents to which it is or will be a party and to undertake and perform the transactions contemplated hereby. This Agreement has been duly executed and delivered by each of the Seller Parties, and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding obligation of such Seller Parties, enforceable against such Seller Parties in accordance with its terms. When each other Ancillary Document to which a Seller Party is or will be a party has been duly executed and delivered by such Seller Party (assuming due authorization, execution and delivery by each other party thereto), such Ancillary Document will constitute a legal and binding obligation of such Seller Party enforceable against it in accordance with its terms.
Section 4.03 No Conflicts; Consents. The execution, delivery and performance by any of the Seller Parties of this Agreement and the Ancillary Documents to which any Seller Party is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of Seller; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to a Seller Party, the Business or the Purchased Assets; (c) except as set forth in Section 4.03 of the Disclosure Schedules, require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any Contract or Permit to which Seller is a party or by which Seller or the Business is bound or to which any of the Purchased Assets are subject (including any Assigned Contract); or (d) result in the creation or imposition of any Encumbrance other than Permitted Encumbrances on the Purchased Assets. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to any Seller Party in connection with the execution and delivery of this Agreement or any of the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby.
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Section 4.04 Financial Statements. Complete copies of the financial statements consisting of the balance sheet of the Business as at December 31 in each of the years 2020 and 2021 and the related statements of income and retained earnings, members’ equity and cash flow for the years then ended (the “ Final Financial Statements ”), and financial statements consisting of the balance sheet of the Business as at February 28, 2022 and the related statements of income and retained earnings, members’ equity and cash flow for the two month period then ended (the “ Interim Financial Statements ” and together with the Final Financial Statements, the “ Financial Statements ”) have been delivered to Buyer. Except as set forth on Section 4.04 of the Disclosure Schedules, the Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved, subject in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes (that, if presented, would not differ materially from those presented in the Final Financial Statements). The Financial Statements are based on the books and records of the Business, and fairly present the financial condition of the Business as of the respective dates they were prepared and the results of the operations of the Business for the periods indicated. The balance sheet of the Business as of December 31, 2021 is referred to herein as the “ Balance Sheet ” and the date thereof as the “ Balance Sheet Date ” and the balance sheet of the Business as of February 28, 2022 is referred to herein as the “ Interim Balance Sheet ” and the date thereof as the “ Interim Balance Sheet Date ”. Seller maintains a standard system of accounting for the Business established and administered in accordance with GAAP.
Section 4.05 Undisclosed Liabilities. Seller has no Liabilities with respect to the Business, except (a) those which are adequately reflected or reserved against in the Balance Sheet as of the Balance Sheet Date, and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material in amount.
Section 4.06 Absence of Certain Changes, Events and Conditions. Since the Balance Sheet Date, and other than in the ordinary course of business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) material change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to the Financial Statements;
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(c) material change in cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(d) entry into any Contract that would constitute a Material Contract;
(e) incurrence, assumption or guarantee of any Indebtedness in connection with the Business except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(f) transfer, assignment, sale or other disposition of any of the Purchased Assets shown or reflected in the Balance Sheet, except for the sale of Inventory in the ordinary course of business;
(g) cancellation of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets;
(h) transfer or assignment of or grant of any license or sublicense under or with respect to any Intellectual Property Assets or Intellectual Property Agreements (except non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice);
(i) abandonment or lapse of or failure to maintain in full force and effect any Intellectual Property Registration, or failure to take or maintain reasonable measures to protect the confidentiality of any Trade Secrets included in the Intellectual Property Assets;
(j) material damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;
(k) acceleration, termination, material modification to or cancellation of any Assigned Contract or Permit;
(l) material capital expenditures which would constitute an Assumed Liability;
(m) imposition of any Encumbrance upon any of the Purchased Assets;
(n) (i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Business, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee of the Business or any termination of any employees, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business;
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(o) hiring or promoting any person except to fill a vacancy in the ordinary course of business;
(p) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(q) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any current or former directors, officers or employees of the Business;
(r) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(s) purchase, lease or other acquisition of the right to own, use or lease any property or assets in connection with the Business for an amount in excess of $1,000, individually (in the case of a lease, per annum) or $5,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of Inventory or supplies in the ordinary course of business consistent with past practice;
(t) any Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Section 4.07 Material Contracts.
(a) Section 4.07(a) of the Disclosure Schedules lists each of the following Contracts (x) by which any of the Purchased Assets are bound or affected or (y) to which Seller is a party or by which it is bound in connection with the Business or the Purchased Assets (such Contracts and all Intellectual Property Agreements set forth in Section 4.11(b) of the Disclosure Schedules, being “ Material Contracts ”):
(i) all Contracts involving aggregate consideration in excess of $1,000 and which, in each case, cannot be cancelled without penalty or without more than thirty (30) days’ notice;
(ii) all Contracts that require Seller to purchase or sell a stated portion of the requirements or outputs of the Business or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person (whether by merger, sale of stock, sale of assets or otherwise);
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(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable without material penalty or without more than thirty (30) days’ notice;
(vii) except for Contracts relating to trade payables, all Contracts relating to Indebtedness (including, without limitation, guarantees);
(viii) all Contracts pursuant to which the Seller has advanced or loaned, or agreed to advance or loan, any amount to any person, other than advances to employees of business expenses in the ordinary course of business;
(ix) all Contracts with any Governmental Authority (“ Government Contracts ”);
(x) all Contracts that limit or purport to limit the ability of Seller to compete in any line of business or with any Person or in any geographic area or during any period of time;
(xi) all Contracts with any Member or any officer or director of the Seller or with or any Affiliate of the foregoing;
(xii) all joint venture, joint marketing (including any pilot program), partnership, strategic alliance or other agreements involving the sharing of profits, losses, costs or Liabilities with any Person or any development, data-sharing, marketing or similar arrangement relating to any product or service;
(xiii) all Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets;
(xiv) all powers of attorney with respect to the Business or any Purchased Asset;
(xv) all collective bargaining agreements or Contracts with any Union;
(xvi) all Contracts pursuant to which the Company agreed to provide (i) “most favored nation” pricing or other terms and conditions or (ii) volume discounts or rebates, in each case to any person with respect to the sale, distribution, license or support of any of the products or services of the Company; and
(xvii) all other Contracts that are material to the Purchased Assets or the operation of the Business and not previously disclosed pursuant to this Section 4.07.
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(b) Each Material Contract is valid and binding on Seller in accordance with its terms and is in full force and effect. None of Seller or any other party thereto is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder) have been delivered to Buyer. There are no material disputes pending or threatened under any Contract included in the Purchased Assets. There are no future commitments for development under any Contract with a customer of Seller.
Section 4.08 Title to Purchased Assets. Seller has good and valid title to, or a valid leasehold interest in, all of the Purchased Assets. All such Purchased Assets (including leasehold interests) are free and clear of Encumbrances except for the Permitted Encumbrances.
Section 4.09 Condition and Sufficiency of Assets. The machinery, equipment, and other items of tangible personal property included in the Purchased Assets are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such machinery, equipment, and other items of tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The Purchased Assets constitute all of the assets, properties and rights necessary to conduct the Business as conducted and as currently proposed to be conducted, and, other than the Excluded Assets, Seller does not use any other assets, properties or rights in or for the Business. The Purchased Assets are sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted prior to the Closing and constitute all of the rights, property and assets necessary to conduct the Business as currently conducted. None of the Excluded Assets are material to the Business.
Section 4.10 Real Property. Seller does not own or lease any real property.
Section 4.11 Intellectual Property.
(a) Section 4.11(a) of the Disclosure Schedules contains a correct, current and complete list of: (i) all Intellectual Property Registrations, specifying as to each, as applicable: the title, xxxx, or design; the jurisdiction by or in which it has been issued, registered or filed; the patent, registration or application serial number; the issue, registration or filing date; and the current status; (ii) all unregistered Trademarks included in the Intellectual Property Assets; (iii) all proprietary Software included in the Intellectual Property Assets; and (iv) all other Intellectual Property Assets that are used or held for use in the conduct of the Business as currently conducted or proposed to be conducted.
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(b) Section 4.11(b) of the Disclosure Schedules contains a correct, current and complete list of all Intellectual Property Agreements, specifying for each the date, title, and parties thereto: (i) under which Seller is a licensor or otherwise grants to any Person any right or interest relating to any Intellectual Property Asset; (ii) under which Seller is a licensee or otherwise granted any right or interest relating to the Intellectual Property of any Person; and (iii) which otherwise relate to the Seller’s ownership or use of any Intellectual Property in the conduct of the Business as currently conducted or proposed to be conducted, in each case identifying the Intellectual Property covered by such Intellectual Property Agreement. Seller has provided Buyer with true and complete copies (or in the case of any oral agreements, a complete and correct written description) of all such Intellectual Property Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Each Intellectual Property Agreement is valid and binding on Seller in accordance with its terms and is in full force and effect. Neither Seller nor any other party thereto is, or is alleged to be, in breach of or default under, or has provided or received any notice of breach of, default under, or intention to terminate (including by non-renewal), any Intellectual Property Agreement.
(c) Except as set forth in Section 4.11(c) of the Disclosure Schedules, Seller is the sole and exclusive legal and beneficial, and with respect to the Intellectual Property Registrations, record, owner of all right, title and interest in and to the Intellectual Property Assets, and has the valid and enforceable right to use all other Intellectual Property used or held for use in or necessary for the conduct of the Business as currently conducted or as proposed to be conducted, in each case, free and clear of Encumbrances other than Permitted Encumbrances. The Intellectual Property Assets and Licensed Intellectual Property are all of the Intellectual Property necessary to operate the Business as presently conducted or proposed to be conducted.
(d) The Seller has obtained and possesses valid licenses to use all of the Software present on the computers and other Software-enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with the Business. Except as disclosed in Section 4.11(d) of the Disclosure Schedule, all Software owned by the Seller was (i) developed by employees of the Seller within the scope of their employment; (ii) developed by independent contractors who have expressly assigned their rights and interest therein to the Seller pursuant to written agreements; or (iii) otherwise acquired by the Seller from a third party pursuant to a written agreement in which the ownership rights therein were expressly assigned to the Seller.
(e) Seller has entered into binding, valid and enforceable written Contracts with each current and former employee and independent contractor who is or was involved in or has contributed to the invention, creation, or development of any Intellectual Property during the course of employment or engagement with Seller whereby such employee or independent contractor (i) acknowledges Seller’s exclusive ownership of all Intellectual Property Assets invented, created or developed by such employee or independent contractor within the scope of his or her employment or engagement with Seller; (ii) grants to Seller a present, irrevocable assignment of any ownership interest such employee or independent contractor may have in or to such Intellectual Property; and (iii) irrevocably waives any right or interest, including any moral rights, regarding such Intellectual Property, to the extent permitted by applicable Law. Seller has provided Buyer with true and complete copies of all such Contracts. All assignments and other instruments necessary to establish, record, and perfect Seller’s ownership interest in the Intellectual Property Registrations have been validly executed, delivered, and filed with the relevant Governmental Authorities and authorized registrars.
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(f) Neither the execution, delivery, or performance of this Agreement, nor the consummation of the transactions contemplated hereunder, will result in the loss or impairment of or payment of any additional amounts with respect to, or require the consent of any other Person in respect of, the Buyer’s right to own or use any Intellectual Property Assets or Licensed Intellectual Property in the conduct of the Business as currently conducted and as proposed to be conducted. Immediately following the Closing, all Intellectual Property Assets will be owned or available for use by Buyer on identical terms as they were owned or available for use by Seller immediately prior to the Closing.
(g) All of the Intellectual Property Assets (and Licensed Intellectual Property) are valid and enforceable, and all Intellectual Property Registrations are subsisting and in full force and effect. Seller has taken all necessary steps to maintain and enforce the Intellectual Property Assets and Licensed Intellectual Property and to preserve the confidentiality of all Trade Secrets included in the Intellectual Property Assets, including by requiring all Persons having access thereto to execute binding, written non-disclosure agreements. All required filings and fees related to the Intellectual Property Registrations have been timely submitted with and paid to the relevant Governmental Authorities and authorized registrars. Seller has provided Buyer with true and complete copies of all file histories, documents, certificates, office actions, correspondence, assignments, and other instruments relating to the Intellectual Property Registrations.
(h) The conduct of the Business as currently and formerly conducted and as proposed to be conducted, including the use of the Intellectual Property Assets and Licensed Intellectual Property in connection therewith, and the products, processes, and services of the Business have not infringed, misappropriated, or otherwise violated and will not infringe, misappropriate, or otherwise violate the Intellectual Property or other rights of any Person. No Person has infringed, misappropriated, or otherwise violated any Intellectual Property Assets or Licensed Intellectual Property.
(i) There are no Actions (including any opposition, cancellation, revocation, review, or other proceeding), whether settled, pending or threatened (including in the form of offers to obtain a license): (i) alleging any infringement, misappropriation, or other violation of the Intellectual Property of any Person by any Seller Party in the conduct of the Business; (ii) challenging the validity, enforceability, registrability, patentability, or ownership of any Intellectual Property Assets or Licensed Intellectual Property; or (iii) by any Seller Party or any other Person alleging any infringement, misappropriation, or other violation by any Person of any Intellectual Property Assets. No Seller Party is aware of any facts or circumstances that could reasonably be expected to give rise to any such Action. No Seller Party is subject to any outstanding or prospective Governmental Order (including any motion or petition therefor) that does or could reasonably be expected to restrict or impair the use of any Intellectual Property Assets or Licensed Intellectual Property.
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(j) To the extent that the Seller uses “open source” or “copyleft” Software, the Seller is not required under any such license to make or permit any public disclosure or make available any source code or other intellectual property of the Seller either used or developed by the Seller in its Software-as-a-service offerings to customers and the Seller is in compliance with all terms and conditions of any and all “open source” or “copyleft” Software licenses. Other than with respect to “open source” Software, no source code of any Software owned by the Seller has been licensed or otherwise provided to another person other than an escrow agent pursuant to the terms of a source code escrow agreement in customary form, and such source code has been safeguarded and protected as a trade secret of the Seller.
(k) Seller owns, possesses or maintains control over all of the Technical Items. Seller further hereby agrees and acknowledges that all of the Technical Items in its possession (or under its control, as the case may be) constitute all of the current items necessary for any reasonably-skilled person to build, operate and use the application and/or production environment maintained by Seller for the benefit of its customers.
(l) All Business IT Systems are sufficient for the needs and operation of the Business as currently conducted and as proposed to be conducted. The Business IT Systems are in good working condition to effectively perform all information technology operations necessary for the Company’s business as currently conducted. In the past five (5) years, there has been no malfunction, failure, continued substandard performance, denial-of-service, or other cyber incident, including any cyberattack, or other impairment of the Business IT Systems that has resulted or is reasonably likely to result in material disruption or damage to the Business. Seller has taken all commercially reasonable steps to safeguard the confidentiality, availability, security, and integrity of the Business IT Systems, including implementing and maintaining appropriate backup, disaster recovery, and Software and hardware support arrangements. Seller has established, in accordance with customary industry standards, data back-up procedures and hardware back-up and disaster prevention facilities, which in each case comply with all applicable Laws and Contracts to which Seller is a party.
(m) Seller has complied with all applicable Laws and all internal or publicly posted policies, notices, and statements concerning the collection, use, processing, storage, transfer, and security of personal information in the conduct of the Business. In the past five (5) years, Seller has not (i) experienced any actual, alleged, or suspected data breach or other security incident involving personal information in its possession or control or (ii) been subject to or received any notice of any audit, investigation, complaint, or other Action by any Governmental Authority or other Person concerning Seller’s collection, use, processing, storage, transfer, or protection of personal information or actual, alleged, or suspected violation of any applicable Law concerning privacy, data security, or data breach notification, in each case in connection with the conduct of the Business, and there are no facts or circumstances that could reasonably be expected to give rise to any such Action.
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(n) Section 4.11(n) of the Disclosure Schedules contains a correct, current, and complete list of all social media accounts used by Seller in the conduct of the Business and all of the domain names, websites maintained or used by the Seller. Seller has complied with all terms of use, terms of service, and other Contracts and all associated policies and guidelines relating to its use of any websites, social media platforms, sites, or services in the conduct of the Business (collectively, “ Platform Agreements ”). There are no Actions settled, pending, or threatened alleging (A) any breach or other violation of any Platform Agreement by Seller; or (B) defamation, any violation of publicity rights of any Person, or any other violation by Seller in connection with its use of social media in the conduct of the Business.
Section 4.12 Privacy and Data Security .
(a) The Seller complies, and at all times in the past five (5) years has complied, in all material respects with all of the following: (A) Privacy Laws; (B) the Seller Privacy and Data Security Policies; and (C) all obligations or restrictions concerning the privacy, security, or Processing of Personal Information under any Contract to which the Seller is a party or otherwise bound as of the date hereof.
(b) The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, do not and will not: (A) conflict with or result in a violation or breach of any Privacy Laws or Seller Privacy and Data Security Policies (as currently existing or as existing at any time during which any Personal Information was collected or Processed by or for the Seller); or (B) require the consent of or notice to any Person concerning such Person’s Personal Information.
(c) Seller has delivered or made available to Buyer true, complete, and correct copies of all Seller Privacy and Data Security Policies that are currently in effect, and the Seller has complied in all material respects with such Seller Privacy and Data Security Policies.
(d) In the past five (5) years, (A) to, no Personal Information in the possession or control of the Seller has been subject to any data or security breach or unauthorized access, disclosure, use, loss, denial or loss of use, alteration, destruction, compromise, or Processing (a “ Security Incident ”), and (B) the Seller has not notified and there have been no facts or circumstances that would require the Seller to notify, any Governmental Authority or other Person of any Security Incident.
(e) In the past five (5) years, the Seller has not received any notice, request, claim, complaint, correspondence, or other communication in writing from any Governmental Authority or other Person, and there has not been any audit, investigation, enforcement action (including any fines or other sanctions), or other Action relating to, any actual, alleged, or suspected Security Incident or violation of any Privacy Law involving Personal Information in the possession or control of the Seller, or held or Processed by any vendor, processor, or other third party for or on behalf of the Seller.
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Section 4.13 Accounts Receivable. The Accounts Receivable reflected on the Balance Sheet and the Accounts Receivable arising after the date thereof (a) have arisen from bona fide transactions entered into by Seller involving the sale of goods or the rendering of services in the ordinary course of business consistent with past practice; (b) constitute only valid, undisputed claims of Seller not subject to claims of set-off or other defenses or counterclaims other than normal cash discounts accrued in the ordinary course of business consistent with past practice; and (c) subject to a reserve for bad debts shown on the Balance Sheet or, with respect to Accounts Receivable arising after the Balance Sheet Date, on the accounting records of the Business, are collectible in full within ninety (90) days after billing. The reserve for bad debts shown on the Balance Sheet or, with respect to Accounts Receivable arising after the Balance Sheet Date, on the accounting records of the Business have been determined in accordance with GAAP, consistently applied, subject to normal year-end adjustments and the absence of disclosures normally made in footnotes.
Section 4.14 Customers and Suppliers.
(a) Section 4.14(a) of the Disclosure Schedules sets forth with respect to the Business (i) the top fifteen (15) customers of Seller for each of the two (2) most recent fiscal years, determined by calculating the aggregate consideration paid by such customer to Seller for goods or services for such year (collectively, the “ Material Customers ”); and (ii) the amount of consideration paid by each Material Customer during such periods. No Seller Party has received any notice, or otherwise has reason to believe, that any of the Material Customers has ceased, or intends to cease after the Closing, to use the goods or services of the Business or to otherwise terminate or materially reduce its relationship with the Business.
(b) Section 4.14(b) of the Disclosure Schedules sets forth with respect to the Business (i) the top fifteen (15) suppliers of Seller for each of the two (2) most recent fiscal years, determined by calculating the aggregate consideration paid to such supplier by Seller for goods or services rendered in each such year (collectively, the “ Material Suppliers ”); and (ii) the amount of purchases from each Material Supplier during such periods. No Seller Party has received any notice, or otherwise has reason to believe, that any of the Material Suppliers has ceased, or intends to cease, to supply goods or services to the Business or to otherwise terminate or materially reduce its relationship with the Business.
Section 4.15 Insurance. Section 4.15 of the Disclosure Schedules sets forth (a) a true and complete list of all current policies or binders of fire, liability, product liability, umbrella liability, personal property, workers’ compensation, vehicular, fiduciary liability and other casualty and property insurance maintained by Seller or its Affiliates and relating to the Business, the Purchased Assets or the Assumed Liabilities (collectively, the “ Insurance Policies ”); and (b) with respect to the Business, the Purchased Assets or the Assumed Liabilities, a list of all pending claims and the claims history for Seller for the past five (5) years. Except as set forth on Section 4.15 of the Disclosure Schedules, there are no claims related to the Business, the Purchased Assets or the Assumed Liabilities pending under any such Insurance Policies as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. Neither Seller nor any of its Affiliates (including any Member) has received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been paid or, if not yet due, accrued. All such Insurance Policies (a) are in full force and effect and enforceable in accordance with their terms; (b) are provided by carriers who are financially solvent; and (c) have not been subject to any lapse in coverage. None of Seller or any of its Affiliates (including any Member) is in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any such Insurance Policy. The Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Business and are sufficient for compliance with all applicable Laws and Contracts to which Seller is a party or by which it is bound. True and complete copies of the Insurance Policies have been made available to Buyer.
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Section 4.16 Legal Proceedings; Governmental Orders.
(a) There are no Actions pending or threatened against or by Seller (a) relating to or affecting the Business, the Purchased Assets or the Assumed Liabilities; or (b) that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.
(b) There are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the Business.
Section 4.17 Compliance With Laws; Permits.
(a) Each Seller Party has complied, and is now complying, with all Laws applicable to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets.
(b) All Permits required for Seller to conduct the Business as currently conducted or for the ownership and use of the Purchased Assets have been obtained by Seller and are valid and in full force and effect. All fees and charges with respect to such Permits as of the date hereof have been paid in full. Section 4.17(b) of the Disclosure Schedules lists all current Permits issued to Seller which are related to the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets, including the names of the Permits and their respective dates of issuance and expiration. No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit set forth in Section 4.17(b) of the Disclosure Schedules.
Section 4.18 Environmental Matters. Seller is currently and has at all times been in compliance with all Environmental Laws (including material compliance with all Environmental Permits necessary to operate the Business) and no Seller Party has received from any Person any: (a) Environmental Notice or Environmental Claim; or (b) written request for information pursuant to Environmental Law, which, in each case, either remains pending or unresolved, or is the source of ongoing Liabilities or requirements as of the Closing Date.
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Section 4.19 Employee Benefit Matters.
(a) Intentionally omitted.
(b) With respect to each Benefit Plan, Seller has made available to Buyer accurate, current and complete copies of each of the following: (i) where the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits and coverage, COBRA communications, employee handbooks and any other written communications (or a description of any oral communications) relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service and any legal opinions issued thereafter with respect to such Benefit Plan’s continued qualification; (vi) in the case of any Benefit Plan for which a Form 5500 must be filed, a copy of the two most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (vii) actuarial valuations and reports related to any Benefit Plans with respect to the most recently completed plan years; (viii) the most recent nondiscrimination tests performed under the Code; and (ix) copies of material notices, letters or other correspondence from the Internal Revenue Service, Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating to the Benefit Plan.
(c) Each Benefit Plan and any related trust (other than any multiemployer plan within the meaning of Section 3(37) of ERISA (each a “ Multiemployer Plan ”)) has been established, administered and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA, the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code (a “ Qualified Benefit Plan ”) is so qualified and received a favorable and current determination letter from the Internal Revenue Service with respect to the most recent five year filing cycle, or with respect to a prototype or volume submitter plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to adversely affect the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could reasonably be expected to subject Seller or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Buyer or any of its Affiliates, to a penalty under Section 502 of ERISA or to tax or penalty under Sections 4975 or 4980H of the Code.
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No pension plan (other than a Multiemployer Plan) which is subject to minimum funding requirements, including any multiple employer plan, (each a “ Single Employer Plan ”) in which employees of the Business or any ERISA Affiliate participate or have participated has an “accumulated funding deficiency,” whether or not waived, or is subject to a lien for unpaid contributions under Section 303(k) of ERISA or Section 430(k) of the Code. No Single Employer Plan covering employees of the Business which is a defined benefit plan has an “adjusted funding target attainment percentage,” as defined in Section 436 of the Code, less than 80%. All benefits, contributions and premiums relating to each Benefit Plan have been timely paid in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principles, and all benefits accrued under any unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with GAAP.
(d) Neither Seller nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii) failed to timely pay premiums to the Pension Benefit Guaranty Corporation; (iii) withdrawn from any Benefit Plan; (iv) engaged in any transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA; (v) incurred taxes under Section 4971 of the Code with respect to any Single Employer Plan; or (vi) participated in a multiple employer welfare arrangements (MEWA).
(e) With respect to each Benefit Plan, (i) except as set forth in Section 4.19(e) of the Disclosure Schedules, no such plan is a Multiemployer Plan, and (A) all contributions required to be paid by Seller or its ERISA Affiliates have been timely paid to the applicable Multiemployer Plan, (B) neither Seller nor any ERISA Affiliate has incurred any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from all such Multiemployer Plans on the Closing Date would not result in any material liability to Seller and no Multiemployer Plan is in critical, endangered or seriously endangered status or has suffered a mass withdrawal; (ii) except as set forth in Section 4.19(e) of the Disclosure Schedules, no such plan is a “multiple employer plan” within the meaning of Section 413(c) of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan; (iv) no such plan or the plan of any ERISA Affiliate maintained or contributed to within the last six (6) years is a Single Employer Plan subject to Title IV of ERISA; and (v) no “reportable event,” as defined in Section 4043 of ERISA, with respect to which the reporting requirement has not been waived, has occurred with respect to any such plan.
(f) Other than as required under Sections 601 to 608 of ERISA or other applicable Law, no Benefit Plan or other arrangement provides post-termination or retiree health benefits to any individual for any reason.
(g) There is no pending or threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Authority.
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(h) There has been no amendment to, announcement by Seller or any of its Affiliates (including any Member) relating to, or change in employee participation or coverage under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any director, officer, employee, consultant or independent contractor of the Business, as applicable. Neither Seller nor any of its Affiliates (including any Member) has any commitment or obligation or has made any representations to any director, officer, employee, consultant or independent contractor of the Business, whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining agreement.
(i) Each Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations) thereunder. Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest or penalties incurred pursuant to Section 409A of the Code.
(j) Neither the execution of this Agreement nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events): (i) entitle any current or former director, officer, employee, independent contractor or consultant of the Business to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based compensation) due to any such individual; (iii) increase the amount payable under or result in any other material obligation pursuant to any Benefit Plan; (iv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (v) require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of the Code.
Section 4.20 Employment Matters.
(a) Section 4.20(a) of the Disclosure Schedules contains a list of all persons who are employees, independent contractors or consultants of the Business as of the date hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized, and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full-time or part-time); (iii) hire or retention date; (iv) current annual base compensation rate or contract fee; (v) commission, bonus or other incentive-based compensation; and (vi) a description of the fringe benefits provided to each such individual as of the date hereof. Other than as set forth on Section 4.20(a) of the Disclosure Schedules as of the date hereof, all compensation, including wages, commissions, bonuses, fees and other compensation, payable to all employees, independent contractors or consultants of the Business for services performed on or prior to the date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of Seller with respect to any compensation, commissions, bonuses or fees.
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(b) Seller is not, and has not been for the past five (5) years, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works council or labor organization (collectively, “ Union ”), and there is not, and has not been for the past five (5) years, any Union representing or purporting to represent any employee of Seller, and no Union or group of employees is seeking or has sought to organize employees for the purpose of collective bargaining. There has never been, nor has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting Seller or any employees of the Business. Seller has no duty to bargain with any Union.
(c) Seller is and has been in compliance with all applicable Laws pertaining to employment and employment practices to the extent they relate to employees, volunteers, interns, consultants and independent contractors of the Business, including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence, paid sick leave and unemployment insurance. All individuals characterized and treated by Seller as consultants or independent contractors of the Business are properly treated as independent contractors under all applicable Laws. All employees of the Business classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified. Seller is in compliance with and has complied with all immigration laws, including Form I-9 requirements and any applicable mandatory E-Verify obligations. There are no Actions against Seller pending or, to Seller’s Knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant, employee, consultant, volunteer, intern or independent contractor of the Business, including, without limitation, any charge, investigation or claim relating to unfair labor practices, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, employee classification, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence, paid sick leave, unemployment insurance or any other employment related matter arising under applicable Laws.
(d) Seller has complied with the WARN Act.
Section 4.21 Taxes. Except as set forth in Section 4.21 of the Disclosure Schedules:
(a) All Tax Returns with respect to the Business required to be filed by any Seller Party for any Pre-Closing Tax Period have been, or will be, timely filed. Such Tax Returns are, or will be, true, complete and correct in all respects. All Taxes due and owing by any Seller Party (whether or not shown on any Tax Return) have been, or will be, timely paid.
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(b) Seller has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any Employee, independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions of applicable Law.
(c) No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of Seller.
(d) All deficiencies asserted, or assessments made, against Seller as a result of any examinations by any taxing authority have been fully paid.
(e) Seller is not a party to any Action by any taxing authority. There are no pending or threatened Actions by any taxing authority.
(f) There are no Encumbrances for Taxes upon any of the Purchased Assets nor is any taxing authority in the process of imposing any Encumbrances for Taxes on any of the Purchased Assets (other than for current Taxes not yet due and payable).
(g) Seller is not, and has not been, a party to, or a promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011 4(b).
(h) None of the Purchased Assets is (i) required to be treated as being owned by another person pursuant to the so-called “safe harbor lease” provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, as amended, (ii) subject to Section 168(g)(1)(A) of the Code, or (iii) subject to a disqualified leaseback or long-term agreement as defined in Section 467 of the Code.
(i) None of the Purchased Assets is tax-exempt use property within the meaning of Section 168(h) of the Code.
Section 4.22 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf of any Seller Party.
Section 4.23 Full Disclosure. No representation or warranty by Seller Parties in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.
Section 4.24 Acknowledgment. Each Seller Party acknowledges and agrees that except for the representations and warranties contained in ARTICLE V, none of Buyer or any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of Buyer (a) relating to Buyer or the assets of Buyer, or (b) with respect to any projections, estimates or budgets of future revenues, future results of operations, future cash flows or future financial condition (or any component of any of the foregoing) of Buyer and/or the Business.
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ARTICLE V
Representations and warranties of buyer
Except as set forth in the correspondingly numbered Section of the Disclosure Schedules, Buyer represents and warrants to Seller Parties that the statements contained in this ARTICLE V are true and correct as of the date hereof.
Section 5.01 Organization of Buyer. Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the state of Nevada.
Section 5.02 Authority of Buyer. Buyer has full corporate power and authority to enter into this Agreement and the Ancillary Documents to which Buyer is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and any Ancillary Document to which Buyer is a party, the performance by Buyer of its obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by the Seller Parties) this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms. When each Ancillary Document to which Buyer is or will be a party has been duly executed and delivered by Buyer (assuming due authorization, execution and delivery by each other party thereto), such Ancillary Document will constitute a legal and binding obligation of Buyer enforceable against it in accordance with its terms.
Section 5.03 No Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement and the Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of Buyer; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer; or (c) require the consent, notice or other action by any Person under any Contract to which Buyer is a party. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Buyer in connection with the execution and delivery of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, except for such filings as may be required under the HSR Act and such consents, approvals, Permits, Governmental Orders, declarations, filings or notices which, in the aggregate, would not have a Material Adverse Effect.
Section 5.04 Brokers. Except for Taglich Brothers, Inc. (“ Buyer’s Broker ”), no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf of Buyer. Buyer shall pay any commission due to Buyer’s Broker pursuant to the terms of a separate agreement by and between Buyer and Buyer’s Broker.
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Section 5.05 Legal Proceedings. There are no Actions pending or, to Buyer’s knowledge, threatened against or by Buyer or any Affiliate of Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances exist that may give rise or serve as a basis for any such Action.
ARTICLE VI
Covenants
Section 6.01 Employees and Employee Benefits.
(a) Commencing on the Closing Date, Seller shall terminate all employees of the Business who are actively at work on the Closing Date, and, other than Xxxx Xxxx and Xxxxx Xxxxx, at Buyer’s sole discretion, Buyer may offer employment, on an “at will” basis, to any or all of such employees. Seller shall bear any and all obligations and liability under the WARN Act resulting from employment losses pursuant to this Section 6.01.
(b) Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to all entitled persons on or prior to the Closing Date.
(c) Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Seller also shall remain solely responsible for all worker’s compensation claims of any current or former employees, officers, directors, independent contractors or consultants of the Business which relate to events occurring on or prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.
(d) Seller will be responsible for providing continuation coverage (within the meaning of Section 4980B of the Code and Part G of Subtitle B of Title I of ERISA) with respect to any former employee of Seller and any other qualified beneficiary who as of the Closing is receiving or is eligible to receive such continuation coverage, and Buyer will incur no premium or other expense for such coverage.
(e) Effective as soon as practicable following the Closing Date, Seller, or any applicable Affiliate, shall effect a transfer of assets and liabilities from the defined contribution retirement plan that it maintains, to the defined contribution retirement plan maintained by Buyer, with respect to those employees of the Business who become employed by Buyer, or an Affiliate of Buyer, in connection with the transactions contemplated by this Agreement. Any such transfer shall be in an amount sufficient to satisfy Section 414(l) of the Code.
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(f) Each employee of the Business who becomes employed by Buyer in connection with the transaction shall be given service credit for the purpose of eligibility under the group health plan and eligibility and vesting only under the defined contribution retirement plan for his or her period of service with the Seller prior to the Closing Date; provided, however , that (i) such credit shall be given pursuant to payroll or plan records, at the election of Buyer, in its sole and absolute discretion; and (ii) such service crediting shall be permitted and consistent with Buyer’s defined contribution retirement plan.
(g) This Section 6.01 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.01, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.01. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 6.01 shall not create any right in any Person to any continued employment with Buyer or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
Section 6.02 Confidentiality. From and after the Closing, the Seller Parties shall, and shall cause their Affiliates to, hold, and shall use their reasonable best efforts to cause their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning the Business, except to the extent that a Seller Party can show that such information (a) is generally available to and known by the public through no fault of such Seller Party, any of its Affiliates or their respective Representatives; or (b) is lawfully acquired by such Seller Party, any of its Affiliates or their respective Representatives from and after the Closing from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If a Seller Party or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller Party shall promptly notify Buyer in writing and shall disclose only that portion of such information which such Seller Party is advised by its counsel in writing is legally required to be disclosed, provided that such Seller Party shall use commercially reasonable efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
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Section 6.03 Non-Competition; Non-Solicitation.
(a) For a period of five (5) years commencing on the Closing Date (the “ Restricted Period ”), no Seller Party shall, or shall permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, the Seller Parties may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if the Seller Parties do not control and are not members of a group which controls, such Person and does not, directly or indirectly, in the aggregate, own five percent (5%) or more of any class of securities of such Person.
(b) During the Restricted Period, no Seller Party shall, or shall permit any of its Affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer pursuant to Section 6.01(a) or is or was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.03(b) shall prevent any Seller Party or any of its Affiliates from hiring any employee after 180 days from the date of termination of employment.
(c) Each Seller Party acknowledges that a breach or threatened breach of this Section 6.03 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Seller Party of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(d) Each Seller Party acknowledges that the restrictions contained in this Section 6.03 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.03 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.03 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
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Section 6.04 Public Announcements. Unless otherwise required by applicable Law or stock exchange requirements (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other party (which consent shall not be unreasonably withheld, conditioned or delayed), and the parties shall cooperate as to the timing and contents of any such announcement.
Section 6.05 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 Purchased Assets to Buyer; 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.
Section 6.06 Receivables. From and after the Closing, if a Seller Party or any of its Affiliates receives or collects any funds relating to any Accounts Receivable or any other Purchased Asset, such Seller Party or its Affiliate shall remit such funds to Buyer within five (5) Business Days after its receipt thereof. From and after the Closing, if Buyer or its Affiliate receives or collects any funds relating to any Excluded Asset, Buyer or its Affiliate shall remit any such funds to Seller within five (5) Business Days after its receipt thereof.
Section 6.07 Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the Ancillary Documents shall be borne and paid by Seller when due. Seller shall, at its own expense, timely file any Tax Return or other document with respect to such Taxes or fees (and Buyer shall cooperate with respect thereto as necessary).
Section 6.08 Tax Clearance Certificates. If requested by Buyer, Seller shall notify all of the taxing authorities in the jurisdictions that impose Taxes on Seller or where Seller has a duty to file Tax Returns of the transactions contemplated by this Agreement in the form and manner required by such taxing authorities, if the failure to make such notifications or receive any available tax clearance certificate (a “ Tax Clearance Certificate ”) could subject the Buyer to any Taxes of Seller. If any taxing authority asserts that Seller is liable for any Tax, Seller shall promptly pay any and all such amounts and shall provide evidence to the Buyer that such liabilities have been paid in full or otherwise satisfied.
Section 6.09 [ Intentionally deleted]
Section 6.10 Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the Ancillary Documents.
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ARTICLE VII
Indemnification
Section 7.01 Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the Closing and shall remain in full force and effect until the date that is six (6) months from the Closing Date; provided, that the representations and warranties in (i) Section 4.01 (Organization and Qualification), Section 4.02 (Authority of Seller Parties), Section 4.08 (Titled to Purchased Assets), Section 4.09 (Condition and Sufficiency of Assets), Section 4.22 (Brokers) (each as to Seller, “ Seller’s Fundamental Representations ”), Section 5.01 (Organization of Buyer), Section 5.02 (Authority of Buyer) and Section 5.04 (Brokers) (each as to Buyer, “ Buyer’s Fundamental Representations ” and together with Seller’s Fundamental Representations, the “ Fundamental Representations ”) shall survive indefinitely, and (ii) Section 4.11 (Intellectual Property), Section 4.12 (Privacy and Data Security), Section 4.19 (Employee Benefit Matters) and Section 4.21 (Taxes) shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) plus 90 days. All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the period explicitly specified herein. Notwithstanding the foregoing, any claims (x) asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period or (y) made in respect of fraud, shall not be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.
Section 7.02 Indemnification By Seller Parties. Subject to the other terms and conditions of this ARTICLE VII, each Seller Party shall, jointly and severally, indemnify and defend each of Buyer and its Affiliates and their respective Representatives (collectively, the “ Buyer Indemnitees ”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of any Seller Party contained in this Agreement, the Ancillary Documents or in any certificate or instrument delivered by or on behalf of a Seller Party pursuant to this Agreement;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by any Seller Party pursuant to this Agreement, the Ancillary Documents or any certificate or instrument delivered by or on behalf of a Seller Party pursuant to this Agreement;
(c) any Excluded Asset or any Excluded Liability;
(d) any Third Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of a Seller Party or any of its Affiliates (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing Date; or
(e) any of the matters set forth on Section 7.02(e) of the Disclosure Schedule hereto.
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Section 7.03 Indemnification By Buyer. Subject to the other terms and conditions of this ARTICLE VII, Buyer shall indemnify and defend each of Seller and its Affiliates and their respective Representatives (collectively, the “ Seller Indemnitees ”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to or by reason of:
(a) any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement;
(c) any Purchased Assets (to the extent such Loss is based upon, arises out of, is with respect to or is by reason of the operation of the Business by Buyer following the Closing Date and is not in any way based upon, resulting from or arising out of any Excluded Liabilities or the operation of the Business prior to the Closing Date) and/or Assumed Liability; or
(d) any commission due to Buyer’s Broker.
Section 7.04 Certain Limitations. The indemnification provided for in Section 7.02 and Section 7.03 shall be subject to the following limitations:
(a) Seller Parties shall not be liable to the Buyer Indemnitees for indemnification under Section 7.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.02(a) exceeds $50,000 (the “ Basket ”), in which event all such Losses from the first dollar shall be due to Buyer; provided that the Basket shall not apply to Losses arising from the breach of any Seller’s Fundamental Representation or fraud. The aggregate amount of all Losses for which the Seller Parties shall be liable pursuant to Section 7.02(a) shall not exceed $1,500,000 (the “ Cap ”); provided that the Cap shall not apply to Losses arising from the breach of any Seller’s Fundamental Representation or fraud.
(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.03(a) exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 7.03(a) shall not exceed the Cap; provided that the Cap and Basket shall not apply to Losses arising from the breach of any Buyer’s Fundamental Representation or fraud.
(c) Notwithstanding the foregoing, the limitations set forth in Section 7.04(a) and Section 7.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 4.18, Section 4.19, Section 4.21, Section 4.22.
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Section 7.05 Indemnification Procedures. The party making a claim under this ARTICLE VII is referred to as the “ Indemnified Party ”, and the party against whom such claims are asserted under this ARTICLE VII is referred to as the “ Indemnifying Party ”.
(a) Third Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any claim by a Person who is not party to this Agreement (a “ Third Party Claim ”) against such Indemnified Party with respect to which an Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall promptly notify the Indemnifying Party in writing and in reasonable detail of such Third Party Claim, provided , however, that no delay in providing such notice shall affect an Indemnified Party’s rights hereunder, unless (and then only to the extent that) the Indemnifying Party is materially prejudiced thereby. Such notice by the Indemnified Party shall describe the Third Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party, at its option upon written notice to the Indemnified Party within twenty (20) days of receipt of notice of such Third Party Claim from the Indemnified Party, and at its expense, shall have the right to assume the defense of any Third Party Claim against any Indemnified Party with counsel of the Indemnifying Party’s choice (subject to the Indemnified Party’s written consent and approval, such consent and approval not to be unreasonably delayed, withheld or conditioned); provided that the Indemnifying Party may not assume such defense unless (i) the Indemnifying Party conducts the defense of the Third Party Claim in a commercially reasonable and diligent manner, (ii) the Third Party Claim is for monetary damages only and (iii) defense of the Third Party Claim would not reasonably be expected to adversely affect the Indemnified Party or its Affiliates, other than as a result of monetary damages for which it would be entitled to relief under this Agreement. In the event the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnified Party shall have the right to receive copies of all pleadings, notices and communications with respect to the Third Party Claim to the extent that receipt of such documents does not affect any privilege relating to the Indemnifying Party and shall be entitled, at its expense, to participate in, but not to determine or conduct, any defense of the Third Party Claim or settlement negotiations with respect to the Third Party Claim; provided that if, in the reasonable judgment of counsel to the Indemnified Party, (i) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying Party or (ii) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which the Indemnified Party determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnified Party may pay, compromise, defend such Third Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third Party Claim, including making available (subject to the provisions of Section 6.02) records relating to such Third Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third Party Claim. Except with the consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed, the Indemnified Party shall not enter into any settlement of any such claim unless (x) the Indemnifying Party shall not be subject to any indemnification obligation with respect to such claim hereunder, (y) such settlement shall include an express and unconditional release of the Indemnifying Party from all liability with respect to the Third Party Claim, and (c) such settlement does not impose any consent order, injunction, or decree that would restrict the future activity or conduct of the Indemnifying Party.
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(b) Direct Claims. Reasonably promptly following an Indemnified Party’s discovery of an Action by such Indemnified Party on account of a Loss which does not result from a Third Party Claim (a “ Direct Claim ”), such Indemnified Party shall give notice thereof (“ Breach Notice ”) to the Indemnifying Party, stating in reasonable detail the facts and circumstances related to such Losses, including copies of all material written evidence thereof and indicating the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. The Indemnifying Party shall have thirty (30) days after its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Indemnified Party’s premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such thirty (30) day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
Section 7.06 Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.
Section 7.07 Effect of Investigation. The representations, warranties and covenants of the Indemnifying Party, and the Indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate, as the case may be.
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Section 7.08 Materiality . Each of the representations and warranties in ARTICLE IV and ARTICLE V that contains any “Material Adverse Effect,” “material” or similar materiality qualifications shall be read as though such qualifications were not contained therein for purposes of determining whether any breach of any such representation or warranty has occurred and for purposes of determining the amount of Losses to which any Indemnified Party may be entitled under this ARTICLE VII.
Section 7.09 Exclusive Remedies. Subject to Section 2.07, Section 6.03 and Section 8.10, the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud, criminal activity or willful misconduct on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this ARTICLE VII. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this ARTICLE VII. Nothing in this Section 7.09 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled or to seek any remedy on account of any party’s fraudulent, criminal or intentional misconduct. For all purposes of Section 7.02(a) and Section 7.03(a), Losses for which an Indemnified Party is entitled to indemnification shall be net of (a) any amounts actually recovered by the Indemnified Party under any insurance policies in effect prior to or after the Closing in connection with the facts giving rise to the Losses and (b) any amounts received from an Indemnified Party from third parties pursuant to indemnification (or otherwise) with respect thereto (in each case, net of any deductible or co-pay amounts and any other reasonable out-of-pocket costs or expenses reasonably incurred in connection therewith, including all premiums and other costs of such insurance policies or any increase in premium payable by such Indemnified Party, or any retroactive adjustment under any such policy or reasonable out-of-pocket costs or expenses incurred in connection with pursuing a claim thereunder or therefrom (“ Recovery Costs ”)). If any such proceeds, benefits or recoveries are received by an Indemnified Party with respect to any Losses after an Indemnifying Party has made a payment to the Indemnified Party with respect thereto, the Indemnified Party shall promptly refund the Indemnifying Party for such payment up to the amount of such proceeds, benefits or recoveries (net of Recovery Costs). The Seller Parties hereby waive any and all rights of subrogation with respect to the rights each Buyer Indemnitee has or would otherwise have in respect of any claim against any Affiliate of Buyer. For the avoidance of doubt, no indemnification payment payable hereunder shall be conditioned, withheld or delayed as a result of any Buyer Indemnitee not having sought, realized or received any insurance proceeds.
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Section 7.10 Payments; Escrow Fund . To the extent any Losses are payable directly from an Indemnifying Party to an Indemnified Party, the Indemnifying Party shall satisfy such obligations within fifteen (15) Business Days of the agreement or final, non-appealable adjudication determining the amount of Losses payable (the “ Final Determination ”), by wire transfer of immediately available funds. The parties hereto agree that should an Indemnifying Party not make full payment of any such obligations within such fifteen (15) Business Day period, any amount payable shall accrue interest from and including the date of the Final Determination and including the date such payment has been made at a rate per annum equal to the Wall Street Journal Prime Rate plus two percent (2%). Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed. Any Losses payable to a Buyer Indemnitee shall be satisfied: (i) from the Escrow Fund; and (ii) to the extent the amount of Losses exceeds the amounts available to the Buyer Indemnitee in the Escrow Fund, from Seller.
ARTICLE VIII
Miscellaneous
Section 8.01 Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred.
Section 8.02 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the fifth (5 th ) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 8.02):
| If to Seller Parties: |
x/x Xxxxxxxx Private Equity 0000 X. Xxxx Xxxxxx, Xxxxxx 000 Xxxxx, Xxxxxxxx 00000 E-mail: xxxxxxxxxx@xxxxxx.xxx Attention: Xxxxx Xxxxx, President
|
| with a copy to: |
Xxxxxxx & Xxxxxx, Incorporated 000 X. Xxxxxxxx Xxxxxx, Xxxxx 000 Xxx Xxxxxxx, Xxxxx 00000 E-mail: xxxxxxxxxx@xxxxxxxxxxxxx.xxx Attention: Xxxxxxx X. Xxxxxxxxx |
| If to Buyer: |
0000 Xxxxxxxx Xx. Xxxxxxxx, Xxxx 00000 E-mail: xxxxxxxx@xxxxxxxxxxxxx.xxx Attention: Xxxxx XxXxxxx, President & CEO
|
| with a copy to: |
Xxxxxx Xxxxx Xxxx + Xxxxxx Co., LPA 00 X. Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxxxx, Xxxx 00000 E-mail: XXxxxxx@XxxxxxXxxxx.xxx Attention: Xxxx X. Xxxxxx |
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Section 8.03 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Section 8.04 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Except as provided in Section 6.03(d), upon such determination that any term or other provision is invalid, illegal or unenforceable, 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 a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Section 8.05 Entire Agreement. This Agreement and the Ancillary Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the Ancillary Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.
Section 8.06 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.
Section 8.07 No Third-party Beneficiaries. Except as provided in ARTICLE VII, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 8.08 Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
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Section 8.09 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF OHIO IN EACH CASE LOCATED IN THE CITY OF COLUMBUS AND COUNTY OF FRANKLIN, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE ANCILLARY DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.10(c).
Section 8.10 Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.
Section 8.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
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MEMBERS :
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SELLER :
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16 th FAIRWAY, LLC,
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YELLOW FOLDER, LLC,
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a Texas limited liability company
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a Texas limited liability company
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| By: |
/s/ Xxxxx Xxxxx
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By: |
/s/ Xxxxx Xxxxx
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Name:
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Xxxxx Xxxxx | Name: |
Xxxxx Xxxxx
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| Title : | Member | Title: | Chairman of the Board of Directors | |
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TAG 2103 INVESTMENT TRUST, a Texas trust |
BUYER : | |||
| INTELLINETICS, INC. , | ||||
| a Nevada corporation | ||||
| By: | /s/ Xxxxxxx X. Xxxxx | By: | /s/ Xxxxx X. XxXxxxx | |
| Name: | Xxxxxxx X. Xxxxx | Name: | Xxxxx X. XxXxxxx | |
| Title: | Trustee | Title: | President & CEO | |
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ELDERLY MOOSE, LLC,
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||
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a Texas limited liability company |
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| By: |
/s/ Xxxx Xxxx |
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| Name: |
Xxxx Xxxx |
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| Title: |
Member |
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DOUBLE WOLVES, INC., |
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a Texas subchapter S corporation |
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| By: |
/s/ Xxxxx Xxxxx |
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| Name: |
Xxxxx Xxxxx |
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| Title: |
Chairwoman |
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[Signature Page to the Asset Purchase Agreement ]
Schedule A
Defined Terms
“ Accounts Receivable ” has the meaning set forth in Section 2.01(a).
“ Action ” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.
“ Affiliate ” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“ Agreement ” has the meaning set forth in the preamble.
“ Allocation Schedule ” has the meaning set forth in Section 2.08.
“ Ancillary Documents ” means the Escrow Agreement, the Xxxx of Sale, the Assignment and Assumption Agreement, Intellectual Property Assignments, the Employment Agreements, and the other agreements, instruments and documents required to be delivered at the Closing.
“ Assigned Contracts ” has the meaning set forth in Section 2.01(c).
“ Assignment and Assumption Agreement ” has the meaning set forth in Section 3.02(a)(iii).
“ Assumed Liabilities ” has the meaning set forth in Section 2.03.
“ Balance Sheet ” has the meaning set forth in Section 4.04.
“ Balance Sheet Date ” has the meaning set forth in Section 4.04.
“ Basket ” has the meaning set forth in Section 7.04(a).
“ Xxxx Employment Agreement ” has the meaning set forth in Section 3.02(a)(v).
“ Benefit Plan ” means each pension, benefit, retirement, compensation, employment, consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in control, retention, severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, Code Section 125 cafeteria, fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed to, or required to be contributed to by Seller for the benefit of any current or former employee, officer, director, retiree, independent contractor or consultant of the Business or any spouse or dependent of such individual, or under which Seller or any of its ERISA Affiliates has or may have any Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability, contingent or otherwise.
“ Xxxx of Sale ” has the meaning set forth in Section 3.02(a)(i).
“ Books and Records ” has the meaning set forth in Section 2.01(m).
“ Breach Notice ” has the meaning set forth in section 7.05(b).
“ Business ” has the meaning set forth in the recitals.
“ Business Day ” means any day except Saturday, Sunday or any other day on which commercial banks located in Columbus, Ohio are authorized or required by Law to be closed for business.
“ Business IT Systems ” means all Software, computer hardware, firmware, servers, networks, platforms, interfaces peripherals, and similar or related items of automated, computerized, or other information technology (IT) networks and systems (including telecommunications networks and systems for voice, data, and video) owned, leased, licensed, or used (including through cloud-based or other third-party service providers) in the conduct of the Business.
“ Buyer ” has the meaning set forth in the preamble.
“ Buyer Indemnitees ” has the meaning set forth in Section 7.02.
“ Buyer’s Broker ” has the meaning set forth in Section 5.04.
“ Buyer’s Fundamental Representations ” has the meaning set forth in Section 7.01.
“ Cap ” has the meaning set forth in Section 7.04(a).
“ CERCLA ” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.
“ Closing ” has the meaning set forth in Section 3.01.
“ Closing Balance Sheet ” has the meaning set forth in Section 2.07(a)(i).
“ Closing Date ” has the meaning set forth in Section 3.01.
“ Closing Payment ” has the meaning set forth in Section 2.05.
“ Closing Working Capital ” means current assets (other than cash, cash equivalents and securities) minus current liabilities of Seller as of immediately prior to the Closing, with the components of “current assets” and “current liabilities” and the methodology for calculating Closing Working Capital, as set forth on the Closing Working Capital Methodology.
“ Closing Working Capital Methodology ” means the components, and the methodology, for calculating the Closing Working Capital as set forth on Exhibit A attached hereto.
“ Closing Working Capital Statement ” has the meaning set forth in Section 2.07(a)(i).
“ Code ” means the Internal Revenue Code of 1986, as amended.
“ Contracts ” means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures and all other agreements, commitments and legally binding arrangements, whether written or oral.
“ Direct Claim ” has the meaning set forth in Section 7.05(b).
“ Disclosure Schedules ” means the Disclosure Schedules delivered by the Seller Parties and Buyer concurrently with the execution and delivery of this Agreement.
“ Disputed Amounts ” has the meaning set forth in Section 2.07(b)(iii).
“ Dollars” or “$ ” means the lawful currency of the United States.
“ Employment Agreements ” means collectively, the Xxxx Employment Agreement and the Tyler Employment Agreement.
“ Encumbrance ” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.
“ Environmental Claim ” means any applicable Law, and any Governmental Order or binding agreement with any Governmental Authority: (a) relating to pollution (or the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment (including ambient air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation, processing, production, disposal or remediation of any hazardous materials.
“ Environmental Law ” includes, without limitation, the following (including their implementing regulations and any state analogs): CERCLA; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. §§ 300f et seq; the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq.; the Hazardous Materials Transportation Act, as amended, 49 U.S.C. §§ 5101 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; the Endangered Species Act of 1973, as amended, 16 U.S.C. §§ §§ 1531 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.
“ Environmental Notice ” means any written directive, notice of violation or infraction, or notice respecting any Environmental Claim relating to actual or alleged non-compliance with, or Liabilities pursuant to, any Environmental Law or any term or condition of any Environmental Permit.
“ Environmental Permit ” means any Permit, letter, clearance, consent, waiver, closure, exemption, decision, or other action required under or issued, granted, given, authorized by, or made pursuant to Environmental Law.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.
“ ERISA Affiliate ” means all employers (whether or not incorporated) that would be treated together with the Seller or any of its Affiliates as a “single employer” within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“ Escrow Agent ” means the Delaware Trust Company.
“ Escrow Agreement ” means the Escrow Agreement to be entered into by Buyer, the Seller Parties and the Escrow Agent at the Closing, substantially in the form of Exhibit C.
“ Escrow Amount ” means $200,000.00.
“ Escrow Fund ” has the meaning set forth in Section 3.02(c)(i).
“ Estimated Balance Sheet ” has the meaning set forth in Section 2.06.
“ Estimated Closing Statement ” has the meaning set forth in Section 2.06.
“ Estimated Closing Working Capital ” has the meaning set forth in Section 2.06.
“ Excluded Assets ” has the meaning set forth in Section 2.02.
“ Excluded Contracts ” has the meaning set forth in Section 2.02(b).
“ Excluded Liabilities ” has the meaning set forth in Section 2.04.
“ Final Determination ” has the meaning set forth in Section 7.10.
“ Final Financial Statements ” has the meaning set forth in Section 4.04.
“ Financial Statements ” has the meaning set forth in Section 4.04.
“ GAAP ” means United States generally accepted accounting principles in effect from time to time.
“ Government Contracts ” has the meaning set forth in Section 4.07(a)(ix).
“ Governmental Authority ” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“ Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.
“ Indebtedness ” means at a particular time, without duplication, (i) any loan or other indebtedness for borrowed money, (ii) any obligations represented by notes, bonds, debentures, or other similar instruments, (iii) any indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to acquired property, (iv) any accrued vacation owing to employees of the Company immediately prior to Closing; (v) earn-out or other obligations issued, undertaken, or assumed as the deferred purchase price of any business, property or services, (vi) the face amount of any letters of credit (including, without duplication, all drafts drawn and reimbursement obligations with respect thereto), extensions of credit, surety bonds and other similar instruments, (vii) any capital lease (as defined by GAAP) and lease/purchase obligations, (viii) any deferred purchase price, or any similar obligation, and similar obligations and including amounts available to customers under gift certificates, gift cards and/or other similar vouchers or credits, and (ix) any direct or indirect guarantees of any of the foregoing, and including all accrued and unpaid interest on any of the foregoing, and applicable prepayment, breakage, or other premiums, fees, or penalties and the costs of discharging any such indebtedness.
“ Indemnified Party ” has the meaning set forth in Section 7.05.
“ Indemnifying Party ” has the meaning set forth in Section 7.05.
“ Independent Accountant ” has the meaning set forth in Section 2.07(b)(iii).
“ Insurance Policies ” has the meaning set forth in Section 4.15.
“ Intellectual Property ” means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: (a) issued patents and patent applications (whether provisional or non-provisional), including divisionals, continuations, continuations-in-part, substitutions, reissues, reexaminations, extensions, or restorations of any of the foregoing, and other Governmental Authority-issued indicia of invention ownership (including certificates of invention, xxxxx patents, and patent utility models) (“ Patents ”); (b) trademarks, service marks, brands, certification marks, logos, trade dress, trade names, and other similar indicia of source or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration, and renewals of, any of the foregoing (“ Trademarks ”); (c) copyrights and works of authorship, whether or not copyrightable, and all registrations, applications for registration, and renewals of any of the foregoing (“ Copyrights ”); (d) internet domain names and social media account or user names (including “handles”), whether or not Trademarks, all associated web addresses, URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not Copyrights; (e) mask works, and all registrations, applications for registration, and renewals thereof; (f) trade secrets, know-how, inventions (whether or not patentable), discoveries, improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes, techniques, and other confidential and proprietary information and all rights therein (“ Trade Secrets ”); (g) computer programs, operating systems, applications, firmware and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof (“ Software ”); (h) rights of publicity; and (i) all other intellectual or industrial property and proprietary rights.
“ Intellectual Property Agreements ” means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements, covenants not to xxx, waivers, releases, permissions and other Contracts, whether written or oral, relating to any Intellectual Property that is used or held for use in the conduct of the Business as currently conducted or proposed to be conducted to which Seller is a party, beneficiary or otherwise bound.
“ Intellectual Property Assets ” means all Intellectual Property that is owned by Seller and/or used or held for use in the conduct of the Business as currently conducted or proposed to be conducted, together with all (i) royalties, fees, income, payments, and other proceeds now or hereafter due or payable to Seller with respect to such Intellectual Property; and (ii) claims and causes of action with respect to such Intellectual Property, whether accruing before, on, or after the date hereof/accruing on or after the date hereof, including all rights to and claims for damages, restitution, and injunctive and other legal or equitable relief for past, present, or future infringement, misappropriation, or other violation thereof.
“ Intellectual Property Assignments ” has the meaning set forth in Section 3.02(a)(iv).
“ Intellectual Property Registrations ” means all Intellectual Property Assets that are subject to any issuance, registration, or application by or with any Governmental Authority or authorized private registrar in any jurisdiction, including issued Patents, registered Trademarks, domain names and Copyrights, and pending applications for any of the foregoing.
“ Interim Balance Sheet ” has the meaning set forth in Section 4.04.
“ Interim Balance Sheet Date ” has the meaning set forth in Section 4.04.
“ Interim Financial Statements ” has the meaning set forth in Section 4.04.
“ Inventory ” has the meaning set forth in Section 2.01(b).
“ Law ” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority.
“ Liabilities ” means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise.
“ Licensed Intellectual Property ” means all Intellectual Property in which Seller holds any rights or interests granted by other Persons, including any Affiliates of any Seller Party, that is used or held for use in the conduct of the Business as currently conducted or proposed to be conducted.
“ Losses ” means losses (including without limitation any diminution in value), damages, liabilities, deficiencies, Actions, judgments, payments, Taxes, interest, awards, settlements, penalties, fines, costs or expenses of whatever kind or nature whatsoever, whether known or unknown, contingent or vested, matured or unmatured, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers; provided, however , that “Losses” shall not include punitive damages, except to the extent actually awarded to a Governmental Authority or other third party.
“ Material Adverse Effect ” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of the Business, (b) the value of the Purchased Assets, or (c) the ability of Seller to consummate the transactions contemplated hereby on a timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally affecting the industries in which the Business operates; (iii) any changes in financial or securities markets in general; (iv) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted by this Agreement, except pursuant to Section 4.03; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the announcement, pendency or completion of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate effect on the Business compared to other participants in the industries in which the Business operates (in which case, only the incremental disproportionate adverse effect may be taken into account in determining whether a Material Adverse Effect has occurred).
“ Material Contracts ” has the meaning set forth in Section 4.07(a).
“ Material Customers ” has the meaning set forth in Section 4.14(a).
“ Material Suppliers ” has the meaning set forth in Section 4.14(b).
“ Members ” has the meaning set forth in the preamble.
“ Multiemployer Plan ” has the meaning set forth in Section 4.19(c).
“ Permits ” means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Authorities.
“ Permitted Encumbrances ” means:
(a) those items set forth in Section 4.08 of the Disclosure Schedules; and
(b) liens for Taxes not yet due and payable.
“ Person ” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.
“ Personal Information ” means any information that identifies or, alone or in combination with any other information, could reasonably be used to identify, locate, or contact a natural Person, including name, street address, telephone number, email address, identification number issued by a Governmental Authority, credit card number, bank information, customer or account number, online identifier, device identifier, IP address, browsing history, search history, or other website, application, or online activity or usage data, location data, biometric data, medical or health information, or any other information that is considered “personally identifiable information,” “personal information,” or “personal data” under applicable Law, and all data associated with any of the foregoing that are or could reasonably be used to develop a profile or record of the activities of a natural Person across multiple websites or online services, to predict or infer the preferences, interests, or other characteristics of a natural Person, or to target advertisements or other content to a natural Person.
“ Platform Agreements ” has the meaning set forth in Section 4.11(j).
“ Post-Closing Adjustment ” has the meaning set forth in Section 2.07(a)(ii).
“ Post-Closing Tax Period ” means any taxable period beginning after the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period beginning after the Closing Date.
“ Pre-Closing Tax Period ” means any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.
“ Preliminary Purchase Price ” has the meaning set forth in Section 2.05.
“ Privacy Laws ” means all applicable Laws, Governmental Orders, and binding guidance issued by any Governmental Authority concerning the privacy, security, or Processing of Personal Information (including Laws of jurisdictions where Personal Information was collected), including, as applicable, data breach notification Laws, consumer protection Laws, Laws concerning requirements for website and mobile application privacy policies and practices, Social Security number protection Laws, data security Laws, and Laws concerning email, text message, or telephone communications. Without limiting the foregoing, Privacy Laws include: the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children’s Online Privacy Protection Act, the California Consumer Privacy Act of 2018, the Computer Fraud and Abuse Act, the Electronic Communications Privacy Act, the Fair Credit Reporting Act, the Fair and Accurate Credit Transaction Act, the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented by the Health Information Technology for Economic and Clinical Health Act of the American Recovery and Reinvestment Act of 2009, the Xxxxx-Xxxxx-Xxxxxx Act, the Family Educational Rights and Privacy Act, the General Data Protection Regulation (Regulation (EU) 2016/679), and all other similar international, federal, state, provincial, and local Laws.
“ Processing ” or “ Processed ” means any operation performed on Personal Information, including the collection, creation, receipt, access, use, handling, compilation, analysis, monitoring, maintenance, storage, transmission, transfer, protection, disclosure, destruction, or disposal of Personal Information.
“ Purchase Price ” has the meaning set forth in Section 2.07(a)(ii).
“ Purchased Assets ” has the meaning set forth in Section 2.01.
“ Qualified Benefit Plan ” has the meaning set forth in Section 4.19(c).
“ Recovery Costs ” has the meaning set forth in Section 7.09.
“ Release ” means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient air (indoor or outdoor), surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).
“ Representative ” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.
“ Resolution Period ” has the meaning set forth in Section 2.07(b)(ii).
“ Restricted Business ” means the document management business for K-12 educational institutions and, to the extent not K-12 education institutions, any former, current or prospective customers of the Business, including the operation, sale and performance of any and all document management services or products for document management systems for K-12 educational institutions and any former, current or prospective customers of the Business.
“ Restricted Period ” has the meaning set forth in Section 6.03(a).
“ Review Period ” has the meaning set forth in Section 2.07(b)(i).
“ Seller ” has the meaning set forth in the preamble.
“ Seller Indemnitees ” has the meaning set forth in Section 7.03.
“ Seller Parties ” has the meaning set forth in the preamble.
“ Seller Privacy and Data Security Policies ” means all of the Seller’s past or present, internal or public-facing policies, notices, and statements concerning the privacy, security, or Processing of Personal Information.
“ Seller’s Fundamental Representations ” has the meaning set forth in Section 7.01.
“ Seller’s Knowledge ” means the actual knowledge or constructive knowledge, after due inquiry, of Seller and/or its members, directors and officers.
“ Single Employer Plan ” has the meaning set forth in Section 4.19(c).
“ Statement of Objections ” has the meaning set forth in Section 2.07(b)(ii).
“ Subsidiary ” means, with respect to any Person, any entity in which such Person directly or indirectly owns, beneficially or of record: (a) an amount of voting securities of or other interests in such entity that is sufficient to enable such Person to elect at least a majority of the members of such entity’s board of directors or other governing body; or (b) at least 50% of the outstanding equity, voting or financial interests in such entity.
“ Tangible Personal Property ” has the meaning set forth in Section 2.01(e).
“ Target Working Capital ” means $200,000.00.
“ Taxes ” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, documentary, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.
“ Tax Return ” means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
“ Technical Items ” means all (i) documented deployment procedures; (ii) third party software and tools; (iii) infrastructure description and components (ex. operating system, database, hardware, release levels, etc.); (iv) third party licensing agreements; (v) testing scripts and documentation; (vi) contact information for all key personnel of the Business; (vii) source code necessary to build the Seller’s Software applications; (viii) associated utilities and tools; (ix) tools and libraries necessary to build the applications; (x) administrative account information (user name and password) for the production environment system (all servers, all network equipment and all application administrator accounts); (xi) administrative account information (account number, user name and password) for DNS accounts for the hosted environment; (xii) administrative account information (account number, user name and password) for corporate website accounts; (xiii) administrative account information (account number, user name and password) for data backup plans; and (xiv) the encryption key required for the full use, benefit and operation of the aforementioned items.
“ Territory ” means the United States of America.
“ Third Party Claim ” has the meaning set forth in Section 7.05.
“ Transaction Documents ” has the meaning set forth in Section 3.02(a)(xiii).
“ Tyler Employment Agreement ” has the meaning set forth in Section 3.02(a)(vi).
“ Undisputed Amounts ” has the meaning set forth in Section 2.07(b)(iii).
“ Union ” has the meaning set forth in Section 4.20(b).
“ WARN Act ” means the federal Worker Adjustment and Retraining Notification Act of 1988, and similar state, local and foreign laws related to plant closings, relocations, mass layoffs and employment losses.