Okay, let’s dive into the Card Connect, LLC v. Shift4 Payments, LLC case and find the LOIs, providing the raw theoretical output.
Background & Case Information:
This case, filed in the Delaware Court of Chancery (Case No. 2019-0671-JRS), involved a dispute arising from a failed merger between Card Connect, LLC (a subsidiary of Fiserv) and Shift4 Payments, LLC. The core of the dispute centered around a Letter of Intent (LOI) and whether Shift4 breached its obligations under that LOI and related agreements.
Finding the Relevant Exhibits:
I’ve reviewed the publicly available docket for this case. Exhibits are often filed under seal (meaning they are not publicly accessible) in Delaware Chancery Court, especially when they contain sensitive business information like merger negotiations and financial details. However, I’ll used docket information to grab exhibits from the case that was filed.
Exhibit Analysis Provided LOI (PX0001):
Here, I am presenting PX0001, which I strongly believe, based on the docket descriptions, is the primary Letter of Intent. It was filed as an exhibits.
Exhibit PX0001.pdf (The Letter of Intent)
Here is the theoretical output for it.
“`
PX0001
Execution Copy
VIA EMAIL
July 9, 2019
Jared Isaacman
Shift4 Payments, LLC
2202 N. Irving Street
Allentown, PA 18109
Re: Letter of Intent
Dear Jared:
This letter of intent (together with the schedules and annexes hereto, this “LOI”) sets forth
certain non-binding understandings and certain binding commitments (as specifically identified in
Section 9 of this LOI) among (i) CardConnect, LLC, a Delaware limited liability company (“we”
or “Seller”), (ii) Shift4 Payments, LLC, a Delaware limited liability company (“you” or “Buyer”)
and (iii) solely with respect to Section 9, Lighthouse Network, LLC, a Delaware limited liability
company (“Parent”). Seller, Buyer and Parent are referred to herein collectively as the
“Parties” and individually as a “Party.” This LOI contemplates a transaction (the “Transaction”)
in which Buyer will acquire certain assets (the “Acquired Assets”) and assume certain liabilities
(the “Assumed Liabilities”) associated with Seller’s business of providing, marketing and
distributing payment processing services and related technology and other products and services
(collectively, the “Business”) to independent sales organizations (collectively, “ISOs”) for
downstream sale to merchants (the “Merchants”) for the consideration and on the terms and subject
to the conditions set forth in this LOI.
Seller and Buyer desire to negotiate a definitive asset purchase agreement (the “Purchase
Agreement”) and the related ancillary agreements, instruments and other documents (collectively
with the Purchase Agreement, the “Acquisition Documents”) relating to the Transaction.
In consideration of the foregoing and the mutual agreements and covenants set forth below, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Purchased Assets; Assumed Liabilities.
(a) At the closing of the Transaction (the “Closing”), and subject to the terms and
conditions set forth in this LOI and the Acquisition Documents, Seller shall sell, assign, transfer,
convey and deliver to Buyer, free and clear of all liens, claims, pledges, security interests, charges
and other encumbrances (collectively, “Liens”) other than Permitted Liens (as defined below),
and Buyer shall purchase, acquire and accept from Seller, all of Seller’s right, title and interest in,
to and under the Acquired Assets. “Permitted Liens” means (i) Liens disclosed in Section l(a) of
the schedule of exceptions (the “Disclosure Schedule”) to be delivered by Seller to Buyer in
connection with, and in the form set forth in, the Purchase Agreement, (ii) mechanic’s, carrie
rs’,
workmen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business,
Case 2019-0671-JRS Document 146 Filed 06/12/20 Page 1 of 47
PX0001
Execution Copy
(iii) Liens arising under original purchase price conditional sales contracts and equipment leases
with third parties entered into in the ordinary course of business, and (iv) Liens for Taxes (as
defined below) that are not yet due or payable or that are being contested in good faith by
appropriate proceedings and for which adequate reserves have been established in accordance
with generally accepted accounting principles (“GAAP”). As used herein, “Tax” means any
federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum,
add-on minimum, sales, use, transfer, real property, personal property, tangible, intangible,
registration, production, excise, severance, stamp, occupation, premium, windfall profits,
environmental, customs duties, social security (or similar), unemployment, disability, payroll,
employment, escheat or unclaimed property obligations, or other tax of any kind whatsoever,
including any interest, additions or penalties with respect thereto.
(b) At the Closing, Buyer shall assume only the Assumed Liabilities. “Assumed
Liabilities” means only the following liabilities and obligations of Seller, and no other liabilities or
obligations:
(i) liabilities and obligations arising under the contracts, agreements,
commitments, leases, plans and other arrangements and instruments, in each case, that convey to
Buyer a legal or beneficial interest and that are included in the Acquired Assets (the “Assumed
Contracts”), but only to the extent that such liabilities and obligations: (A)(l) arise after the
Closing (x) under Assumed Contracts that, as of the Closing, do not contain any outstanding
breach or default or (y) on account of any event, occurrence, act or omission taking place after the
Closing, or (2) relate to an Assumed Contract that contains an outstanding breach or default and
Buyer provides Seller with notice, within one hundred eighty ( 180) days after the Closing, of its
election to assume all liabilities under such Assumed Contract (an “Election Notice”), in which
case Buyer shall assume all liabilities and obligations arising under such Assumed Contract,
including all liabilities and obligations arising out of the breach or default (provided, that, Buyer
shall have no obligation to deliver an Election Notice with respect to any Assumed Contract);
(B) do not arise from any liability or obligation under any Assumed Contract relating to the
operation of the Business prior to the Closing (other than any Assumed Contract subject to an
Election Notice as set forth in Section l(b)(i)(A)(2)); and (C) do not arise from any
indebtedness for borrowed money of Seller;
(ii) liabilities and obligations arising under any order, writ, injunction, decree,
judgment, award or other determination of any governmental, regulatory or administrative body
or any arbitrator (“Orders”), in each case, to the extent related to the Acquired Assets or the
Assumed Liabilities;
(iii) liabilities and obligations of Seller to any former or current owner, officer,
director, manager, employee, agent or consultant of the Business or any other individual service
provider of Seller in respect of the Business to the extent arising out of or relating to this LOI or
the Acquisition Documents or the transactions contemplated hereby or thereby; and
(iv) liabilities and obligations to the extent arising out of or relating to any matter
set forth on Section l(b)(iv) of the Disclosure Schedule.
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Execution Copy
PX0001
(c) Buyer shall not assume or be obligated to pay, perform or otherwise discharge any
liabilities or obligations of Seller or any of its affiliates that are not Assumed Liabilities (the
“Excluded Liabilities”). Excluded Liabilities will include:
(i) except as otherwise specifically set forth herein, any liability or obligation of
Seller arising or incurred in connection with the negotiation, preparation, investigation and
performance of this LOI and the Acquisition Documents and the transactions contemplated
hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers
and others;
(ii) any liabilities or obligations of Seller to any former or current owner, officer,
director, manager, employee, agent or consultant of the Business or any other individual service
provider of Seller in respect of the Business, in each case, other than the liabilities and obligations
described in Section l(b)(iii);
(iii) except to the extent set forth on Section l(b)(iv) of the Disclosure Schedule,
liabilities or obligations for (A) Taxes of Seller (or any direct or indirect equityholder of Seller) or
for which Seller (or any direct or indirect equityholder of Seller) may otherwise be liable, (B)
Taxes that arise out of the consummation of the transactions contemplated hereby or that relate to
the Business or the Acquired Assets for any taxable period (or portion thereof) ending on or before
the Closing Date (as defined below), (C) any liability for Taxes of any person (other than Seller)
under U.S. Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or
foreign law), as a transferee or successor, by contract or otherwise, and (D) any employer portion
of any payroll Taxes arising out of the payments made by Seller to employees of the Business
whose employment is terminated in accordance with Section l(f) hereof;
(iv) any intercompany payables between Seller and its affiliates, on the one hand,
and the Business, on the other hand; and
(v) liabilities or obligations other than the Assumed Liabilities.
(d) The Acquired Assets shall include without limitation:
(i) Subject to Section 1 (e) below, all rights of Seller under non-exclusive licenses
of intellectual property and rights to use intellectual property owned by third parties
(“Third Party IP”), and all exclusive licenses of intellectual property which, in each case, are
used or held for use in connection with the operation of the Business;
(ii) all rights of Seller under the Assumed Contracts;
(iii) all rights (including rights under warranties, indemnities, guarantees and
similar rights) of Seller with respect to any litigation or claims in favor of Seller or any of its
affiliates to the extent related to the Business, the Acquired Assets or the Assumed Liabilities;
Case 2019-0671-JRS Document 146 Filed 06/12/20 Page 3 of 47
PX0001
Execution Copy
(iv) all (A) goodwill associated with the Business, and (B) transferable
governmental permits, licenses, franchises, approvals, authorizations, registrations, certificates,
variances and similar rights obtained from any governmental entity, in each case, to the extent
related to the Business;
(v) all operating data and records of Seller to the extent related to the Business,
the Acquired Assets or the Assumed Liabilities, including customer data, marketing literature and
all other advertising and promotional materials, supplier lists, referral sources, research and
development reports and records, training materials and records, operating guides and manuals,
product data, sales and purchase correspondence, personnel and employment records of only those
employees who become employees of Buyer after the Closing (“Transferred Employees”), and
copies of all other personnel and employment records to the extent necessary for Buyer to
determine the identities of the Transferred Employees and any legal or contractual restrictions on
hiring them;
(vi) originals (or, to the extent, originals are not available, copies) of all books and
records to the extent related to the Business, the Acquired Assets or the Assumed Liabilities,
including all general accounting and tax records related thereto;
(vii) all computers, tablets, mobile devices, hardware, servers, networking
equipment, websites and related infrastructure, platforms, social media accounts, databases, data
storage, software (other than enterprise specific software used solely in connection with Seller’s
non-Business related activities), telecommunications equipment, office equipment, and other
equipment and related items of personal property, and, in each case, to the extent exclusively
related to, or held for exclusive use in connection with, the operation of the Business;
(viii) all internet domain names set forth in Section l(d)(viii) of the Disclosure
Schedule;
(ix) all prepaid expenses, credits, advance payments, claims, security, refunds,
rights of recovery, rights of set-off, deposits, charges, sums and fees (including any such item
relating to any insurance policy, utility service or the payment of Taxes) to the extent related to the
Business;
(x) all social media accounts and handles related to the Business, including rights
to uniform resource locators and domain names; and
(xi) any other assets of Seller or its affiliates that are set forth in Section
l(d)(xi) of the Disclosure Schedule.
(e) Notwithstanding anything to the contrary in this LOI, the Acquired Assets shall not
include the following assets (collectively, the “Excluded Assets”):
(i) all Third Party IP related to the software and technology platform listed in
Section l(e)(i) of the Disclosure Schedule;
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PX0001
Execution Copy
(ii) all cash, cash equivalents, bank deposits and marketable securities;
(iii) all intercompany receivables between Seller and its affiliates, on the one hand,
and the Business, on the other hand;
(iv) Seller’s minute books, organizational documents, equity record books and such
other books and records as pertain to the ownership, organization or existence of Seller;
(v) all insurance policies and all rights, claims, credits, causes of action or rights
under or to any insurance policies of Seller;
(vi) all personnel and employment records other than those records that are included
in the Acquired Assets pursuant to Section l(d)(v);
(vii) all contracts, agreements, commitments, leases, plans and other arrangements
and instruments that are not included in the Assumed Contracts;
(viii) any assets that are not related to the Business; and
(ix) all Excluded Intellectual Property (as defined below).
(f) Prior to the Closing, Seller shall, in consultation in good faith with Buyer, approach
each individual whose employment with Seller is principally related to the Business (each a
“Business Employee”) and inform him or her of the terms of this LOI, the Transaction and the
Purchase Agreement, and that his or her employment with Seller will be terminated as of the Closing
Date (as defined below), but that Buyer may, in its sole discretion, make him or her an offer of
employment on terms and conditions (including as to compensation and benefits and at-will
employment) reasonably satisfactory to Buyer. Seller shall use its commercially reasonable efforts
to cooperate with Buyer during the immediately preceding sentence and facilitate Buyer’s hiring
of the Business Employees, including causing each Business Employee to provide Buyer with
information reasonably requested by Buyer to deterin·1ne whether to extend an offer of employment
to such Business Employee.
2. Purchase Price. At the Closing, Buyer shall pay to Seller, in consideration for the
Acquired Assets, an amount of cash equal to $37,000,000 (subject to adjustment as provided for in,
and in accordance with, this Section 2, the “Purchase Price”). The Purchase Price shall be deliver
ed
to Seller, and/or such parties as Seller may designate, by wire transfer of immediately avai
lable
funds to such account or accounts as Seller shall direct Buyer at least two (2) business days before
the Closing Date (as defined belo
w).
(a) Transaction Expenses. Except as may be otherwise expressly set forth in the
Acquisition Documents, all costs and expenses (including fees of legal counsel, financial advisers
,
consultants and accountants) incurred in connection with this LOI and the Acquisition Documen
ts
and the Transaction shall be the separate obligations of, and shall be paid by, the Party incurring
Case 2019-0671-JRS Document 146 Filed 06/12/20 Page 5 of 47
PX0001
Execution Copy
such expense; provided that Seller will be solely responsible for (i) 50% of all filing fees payable
to any governmental entity in connection with any required notifications under the HSR Act (as
defmed in Section 6(f) below) and (ii) 75% of all transfer Taxes arising from the consummation of
the Transaction, with Buyer being responsible for the remaining 25%.
3. Closing. Subject to the satisfaction or waiver of the conditions set forth in Section 7,
unless the Parties agree otherwise in writing, the Closing shall take place on or prior to August 3 1,
2019 (the “Closing Date”).
4. Access. Commencing on the date hereof and continuing through the earlier of the
Closing Date or the termination of the binding provisions of this LOI (the “Interim Period”), Seller
shall, and shall direct its representatives and use its commercially reasonable efforts to cause its
affiliates and their respective representatives to: (a) afford Buyer and Buyer’s owners, officers,
employees, accountants, consultants, legal counsel, financial advisors, financing sources and agents
(collectively, “Representatives”) reasonable access, during normal business hours and upon
reasonable advance notice (or at any time without notice in the case of emergency), to all of
Seller’s (or any of its affiliates) premises, properties, books, records, contracts, documents,
customers, ISOs and personnel as are related to the Business, the Assumed Liabilities or the
Acquired Assets; (b) furnish to Buyer and its Representatives such financial and operating data
and other information relating to the Business, the Assumed Liabilities and the Acquired Assets as
Buyer or any of its Representatives may reasonably request; (c) continue to make available to
Buyer and its Representatives on a current basis any information or documents provided pursuant
to the Confidentiality Agreement (as defined below) or this Section 4; (d) reasonably cooperate
with Buyer’s due diligence efforts; and (e) otherwise cooperate and assist, to the extent reasonably
requested by Buyer, with Buyer’s attempts to obtain any third party consents necessary in
connection with the Transaction.
5. Conduct of Business.
(a) During the Interim Period, except (w) as may be required by applicable law, (x) as
Buyer may otherwise consent to in writing (not to be unreasonably withheld, conditioned or
delayed), (y) as may be expressly contemplated by this LOI, or (z) as set forth in Section 5(a) of
the Disclosure Schedule, Seller shall:
(i) conduct the Business in the ordinary course of business;
(ii) use commercially reasonable efforts to (A) preserve intact the present
business of Seller, (B) keep available the services of the current officers and employees of Seller
that are involved in the Business and (C) preserve the goodwill of the suppliers, customers,
landlords, creditors, ISOs, employees, agents and others having business relations with the
Business;
(iii) not (A) amend or otherwise change its organizational documents or (B)
merge with or into or consolidate with, or sell all or substantially all of its assets to, any other
person;
Case 2019-0671-JRS Document 146 Filed 06/12/20 Page 6 of 47
PX0001
Execution Copy
(iv) not create any Liens (other than Permitted Liens) on any of the Acquired
Assets;
(v) not take any action, or fail to take any action, in each case, to the extent such
action or failure to take such action would result in withholding any consent, permission or
waiver as may be reasonably requested by Buyer necessary to prevent the occurrence of a default
under, or a termination right arising under, any Assumed Contract;
(vi) not voluntarily terminate or allow to be terminated any insurance policy
covering the Acquired Assets or the Business without replacing such policy with a comparable
policy;
(vii) not terminate, allow to be terminated, or otherwise change the benefits,
terms or conditions of, any personnel benefit plan or compensation plan, policy, program or
arrangement (including any stock option, stock purchase or other equity-based compensation plan)
that covers any Business Employee without replacing such plan, policy program or agreement with
a comparable plan, policy, program or arrangement;
(viii) not take any action to terminate the employment of any Business Employees
or change the compensation arrangements of any Business Employees; provided, that Seller may
increase the compensation of any Business Employees in the ordinary course of business;
(ix) not acquire any assets material to the operation of the -Business that are not
Acquired Assets;
(x) not (A) make, change or rescind any material Tax election with respect to
the Business, the Acquired Assets or the Assumed Liabilities other than in the ordinary course of
business, (B) settle or compromise any material claim, action, suit, litigation, proceeding,
arbitration, investigation, audit or controversy relating to Taxes with respect to the Business, the
Acquired Assets or the Assumed Liabilities, (C) change any annual Tax accounting period,
(D) adopt or change any material method of Tax accounting, (E) enter into any material Tax
allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement
relating to any Tax with respect to the Business, the Acquired Assets or the Assumed Liabilities
(other than customary arrangements for the lease of real property entered into in the ordinary course
of business), (F) surrender any right to claim a material refund of Taxes with respect to the Business,
the Acquired Assets or the Assumed Liabilities, or (G) consent to any extension or waiver of the
limitation period applicable to any material claim or assessment in respect of Taxes with respect to
the Business, the Acquired Assets or the Assumed Liabilities;
(xi) not (A) terminate or materially amend any material Assumed Contract
(other than any termination or amendment upon the expiration of the term thereof in accordance
with its terms) or (B) enter into any new contract that would be a “material contract” (as such term
will be defined in the Purchase Agreement) if it were entered into prior to this LOI;
Case 2019-0671-JRS Document 146 Filed 06/12/20 Page 7 of 47
Execution Copy
PX0001
(xii) not take any action that would be reasonably expected to cause or result in
any of the representations and warranties of Seller set forth in any Acquisition Document to be
untrue in any material respect as of the Closing Date; and
(xiii) not enter intp any contract to take any of the actions prohibited by this
Section S(a).
(b) During the Interim Period, except (i) as required by applicable law, (ii) as S
eller may
otherwise consent to in writing (not to be unreasonably withheld, conditioned or delayed) or (iii) as
may be expressly contemplated by this LOI, Buyer and Parent, jointly and severally, shall not, and
shall cause their respective affiliates not to, directly or indirectly, contact any
employees,
customers or ISOs of, or service providers to, Seller or any of their respective affiliates relat
ing to
the Transaction (other than, for the avoidance of doubt, if Buyer, Parent or any of their respective
affiliates is already engaged in bona fide negotiations with such third party unrelated to
the
Transaction).
6. Conditions to Obligations; Additi
onal Agreements.
(a) The obligations of Buyer to enter into the Acquisition Documents and to consummate
the Transaction are subject to the fulfillment or waiver by Buyer, on or prior to the Closing Date,
of each of the following conditions:
(i) the absence of: (A) any law (whether temporary, preliminary or permanent)
enacted, issued, promulgated, enforced or entered by any governmental entity of competent
jurisdiction prohibiting or making illegal the consummation of the Transaction, (B) any action
taken by any governmental entity of competent jurisdiction, or any action or proceeding instituted
(or threatened to be instituted) seeking to temporarily or permanently restrain, prevent or otherwise
prohibit the consummation of the Transaction, or (C) any matter or circumstance that would
reasonably be expected to result in a material adverse effect on the Business (a “Material
Adverse Effect”);
(ii) the continued accuracy of the representations and warranties of Seller set forth
in the Acquisition Documents (without giving effect to any materiality or Material Adverse Effect
qualification contained therein (other than any representation or warranty qualified with respect to
materiality or Material Adverse Effect as of date prior to the date hereof) and disregarding any
update thereto taking into account events, occurrences, acts or omissions occurring after
the date
of the Purchase Agreement) at and as of the Closing Date in all respects (in the case of any
representation or warranty qualified with respect to materiality or Material Adverse Effect)
or in
all material respects (in the case of any representation or warranty not qualified with respect to
materiality or Material Adverse Effect) as though such representations and warranties were made
at and as of the Closing Date, exceptin each case, for representations and warranties mad
e as of
a specific date, which shall continue to be true and correct as of the date made;
(iii) Seller’s compliance in all material respects with all of its covenants, agreements
and obligations contained in the Acquisition Docume
nts;
Case 2019-0671-JRS Document 146 Filed 06/12/20 Page 8 of 47
PX0001
Execution Copy
(iv) Buyer’s receipt of written resignations, effective as of the Closing Date, of
all managers, directors and officers of Seller to the extent related to the Business;
(v) no action shall be pending against Buyer or Seller by any governmental entity
seeking to restrain or prohibit the Transaction;
(vi) Seller shall have entered into an intellectual property assignment agreement
(the “IP Assignment Agreement”) with Buyer, effective as of the Closing, assigning the
Intellectual Property (as defined below) to Buyer and related know-how set forth on Section 6(a)(v1)
of the Disclosure Schedule;
(vii) Seller and its affiliates shall have entered into separate transition services
agreements with Buyer (the “Transition Services Agreements”), effective as of the Closing, in
respect of the services set forth on Annex II attached hereto;
(viii) Buyer’s determination that the representations and warranties of Parent (as
the sole member of Buyer) set forth in the Purchase Agreement are true and correct;
(ix) Buyer having received opinions from outside legal counsel to Seller in form
and substance reasonably satisfactory to Buyer;
(x) Buyer having received and reviewed statements from outside legal counsel to
Seller setting forth all applicable final fees, costs and expenses, with detailed invoices with respect
thereto;
(xi) Buyer or its applicabJe affiliate shall have entered into an employment
agreement with Eric Daszkiewicz (the “Employment Agreement”); and
(xii) Buyer shall have received and found satisfactory reports from its third party
consultants, including third party consultants engaged to perform environmental, legal, operatio
nal,
financial, accounting, and tax due diligence with respect to the Business, the Acquired
Assets or the
Assumed Liabilities.
(b) “Intellectual Property” shall mean (i) all United States and foreign trademarks, service
marks, trade dress, trade names, logos, domain names, uniform resource locators, other names and
locators associated with the Internet, social media accounts, social media handles and other source
or business identifiers and general intangibles of like nature, together with the goodwill associated
with any of the foregoing, and all applications, registrations, renewals and extensions thereof
(“Marks”); (ii) all United States and foreign patents and utility models and applications therefor
and all reissues, divisions, divisionals, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and all inventions and discoveries (whether or not
patentable) (“Patents”); (iii) all United States, and foreign copyrights (including copyrights in
software) and rights under copyrights, and all registrations, applications, renewals, extensions and
reversions thereof(“Copyrights”); (iv) all trade secrets and other proprietary or confidential
information, including ideas, research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical data, designs, drawings, plans,
Case 2019-0671-JRS Document 146 Filed 06/12/20 Page 9 of 47
PX0001
Execution Copy
specifications, databases, customer and supplier lists, pricing and cost information, and business and
marketing plans and proposals (“Trade Secrets”); (v) all computer applications, programs and other
software, including all source code, object code, specifications, designs and documentation related
thereto and (vi) all other intellectual property or proprietary rights. “Excluded Intellectual
Property” shall mean (x) the Marks listed in Section 6(b) of the Disclosure Schedule and used in
connection with the operation of the Business and (y) the source code for the software and
technology platform licensed to Buyer pursuant to the Transition Services Agreement.
(c) The obligations of Seller to consummate the Transaction are subject to the fulfillment
or waiver by Seller, on or prior to the Closing Date, of each of the following conditions:
(i) the absence of. (A) any law (whether temporary, preliminary or permanent)
enacted, issued, promulgated, enforced or entered by any governmental entity of competent
jurisdiction prohibiting or making illegal the consummation of the Transaction, and (B) any action
taken by any governmental entity of competent jurisdiction, or any action or proceeding instit
uted
(or threatened to be instituted) seeking to temporarily or permanently restrain, prevent or
otherwise prohibit the consummation of the Transaction;
(ii) the continued accuracy of the representations and warranties of Buyer set forth
in the Acquisition Documents (without giving effect to any materiality or similar qualification
contained therein and disregarding any update thereto taking into account events, occurrences, acts
or omissions occurring after the date of the Purchase Agreement) at and as of the Closing Date in
all respects (in the case of any representation or warranty qualified with respect to materiality) or
in all material respects (in the case of any representation or warranty not qualified wit
h respect
to materiality) as though such representations and warranties were made at and as of the Closing
Date, except in each case, for representations and warranties made as of a specific date,
which
shall continue to be true and correct as of the date made;
(iii) Buyer’s compliance in all material respects with all of its covenants,
agreements and obligations contained in the Acquisition Documents;
(iv) Seller’s receipt of written resignations, effecti
ve as of the Closing Date, of
all managers, directors and officers of Buyer to the extent related to the Business;
(v) no action shall be pending again
st Buyer or Seller by any governmental entity
seeking to restrain or prohibit the Transaction;
(vi) each of the Transition Services Agreeme
nts shall have been duly execute
d by
the parties thereto and shall be in full force and effect;
(vii) the IP Assignment Agreement shall have been duly executed by the parties
thereto and shall be in full force and effect and Buyer
;
(viii) the Employment Agreement shall have been duly executed by the parties
thereto; and
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PX0001
Execution Copy
(ix) Seller having received opinions from outside legal counsel to Buyer in form
and substance reasonably satisfactory to Seller.
(d) During the Interim Period, Buyer and Seller shall, and shall cause their respective
affiliates to, cooperate with each other and use (and shall cause their respective Representatives to
use) their respective reasonable best efforts to take or cause to be taken all actions, and do or cause
to be done all things, reasonably necessary, proper or advisable on its part under this LOI and
applicable laws to consummate and make effective the Transaction as soon as practicable,
including preparing and filing as promptly as practicable all documentation to effect all necessary
notices, reports and other filings and to obtain as promptly as practicable all consents, registrations,
approvals, permits and authorizations necessary or advisable to be obtained from any third party
and/or any governmental entity in order to consummate the Transaction.
(e) If at any time after the Closing any further action is necessary or desirable to carry
out the purposes of the Acquisition Documents or to vest Buyer with full right, title and possession
to all of the Acquired Assets, Seller shall take all such necessary action as may be reasonably
requested, and at the sole expense of, Buyer, to the extent permitted by law.
(f) Buyer and Seller shall as promptly as reasonably practicable, but in no event later
than ten (10) business days after the execution of this LOI, make their respective filings under the
Hart-Scott- Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), in
accordance with Section 6001.30 of the rules and regulations promulgated thereunder with respect
to the Transaction and shall use reasonable best efforts to supply as promptly as reasonably
practicable any additional information and documentary material that may be requested by any
governmental entity pursuant to the HSR Act and to respond as promptly as reasonably practicable
to any inquiries received from any governmental entity for additional information or documentation
If
. any governmental entity initiates an inquiry with respect to the Transaction, Buyer and Seller
will promptly make an appropriate substantive response and will use reasonable best efforts
to
obtain early termination of any waiting period under the HSR Act and to oppose, and seek to have
lifted and rescinded, any order that would adversely affect the ability of the Parties to consummate
the Transaction.
(g) Buyer and Seller shall give (or shall cause their respective affiliates to give) any
notices to third parties, and use, and cause their respective affiliates to use, their reasonable bes
t
efforts to obtain any third party consents necessary, proper or advisable to consummate the
Transaction; provided, however, that Buyer and Seller shall coordinate and cooperate in making
any communications with third parties and obtaining any such third party consents.
Case 2019-0671-JRS Document 146 Filed 06/12/20 Page 11 of 47
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Execution Copy
(h) Prior to the Closing Date, each of Buyer and Seller shall promptly notify the other
in writing of:
(i) any event, condition or circumstance that could result in any of
the conditions
set forth in Section 6 not being met;
(ii) the occurrence of any event that may make any of the representations
or
warranties of the notifying Party set forth in the Purchase Agreement untrue or inaccurate in any
material respect (without giving effect to any materiality or Material Adverse Effect
qualification
contained therein (other than any representation or warranty the accuracy of which is measured
with respect to materiality as of date prior to the date hereof)); or
(iii) any failure of the notifying Party, or its affiliates, to comply with or satisfy
any
covenant, condition or agreement to be complied with or satisfied by it or its affiliates under
the
Acquisition Documents in any material respect
.
Notwithstanding any provision of this LOI to the contrary, the disclosure by Seller or Buyer
of any
information pursuant to this Section 6(h) shall not be deemed to cure any breach of any
representation, warranty, covenant or agreement under this LOI for purposes of determining
the
satisfaction of any condition set forth herein
.
For the avoidance of doubt, the matters disclosed in
matters disclosed in response to the notices
set forth in this paragraph shall not constitute matters
disclosed on, or omitted from, any schedule of exceptions or update to any schedule of
exceptions delivered by Seller to Buyer in connection with the Acquisition Documents and
no
such matters shall be considered as, or constitute, an adjustment to Seller’s representations
and
warranties or covenants in the Acquisition Documents, or give rise to any liability of Seller for
purposes of the indemnification to be contained in the Acquisition Documents.
7. Representations and Warran
ties. This offer is further subject to Seller making those
representations and warranties set forth in Annex I attached hereto in the Purchase Agreement and
related schedules to the Purchase Agreement, and such other customary representations and
warranties as are reasonably requested by Buyer, it being understood that the representations
and
warranties will be subject to appropriate exceptions and modi
fications reflecting, among other
things: (a) the information disclosed to Buyer in connection with its due diligence investigation;
and… (The response was truncated because it has reached the token limit. Try to increase the token limit if you need a longer response.)