EXHIBIT 10.1
EXECUTION VERSION
INTERESTS PURCHASE AGREEMENT
by and among
CAREERBUILDER, LLC,
SELLERS
and
PURCHASER
Dated as of June 17, 2017
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TABLE OF CONTENTS
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| ARTICLE I |
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| DEFINITIONS; INTERPRETATION |
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Section 1.1 | Defined Terms and Rules of Construction | 1 |
Section 1.2 | Other Definitions | 18 |
Section 1.3 | Interpretation; Absence of Presumption | 21 |
| ARTICLE II |
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| THE TRANSACTIONS |
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Section 2.1 | The Transactions | 22 |
Section 2.2 | Aggregate Common Equity Price | 25 |
Section 2.3 | Closing | 27 |
Section 2.4 | Adjustment of the Aggregate Common Equity Price | 28 |
Section 2.5 | Withholding | 32 |
Section 2.6 | Tax Treatment | 32 |
| ARTICLE III |
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| REPRESENTATIONS AND WARRANTIES CONCERNING SELLERS AND PURCHASER |
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Section 3.1 | Representations and Warranties of Sellers | 32 |
Section 3.2 | Representations and Warranties of Purchaser | 34 |
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| ARTICLE IV |
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| REPRESENTATIONS AND WARRANTIES CONCERNING THE TRANSFERRED ENTITIES |
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Section 4.1 | Organization and Qualification; Authority; Enforceability | 39 |
Section 4.2 | Capitalization | 40 |
Section 4.3 | Consents and Approvals; No Violations | 40 |
Section 4.4 | Financial Statements; Liabilities | 41 |
Section 4.5 | Absence of Certain Changes or Events | 42 |
Section 4.6 | Litigation; Compliance with Laws | 42 |
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Section 4.7 | Permits | 44 |
Section 4.8 | Employee Benefit Matters | 44 |
Section 4.9 | Labor Relations; Employment. | 46 |
Section 4.10 | Taxes | 47 |
Section 4.11 | Environmental Matters | 49 |
Section 4.12 | Intellectual Property; Cybersecurity; Privacy | 50 |
Section 4.13 | Material Contracts | 53 |
Section 4.14 | Real Property | 54 |
Section 4.15 | Contracts with Sellers | 54 |
Section 4.16 | Brokers | 55 |
Section 4.17 | Personal Property | 55 |
Section 4.18 | Insurance | 55 |
| ARTICLE V |
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| COVENANTS |
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Section 5.1 | Access to Books and Records | 56 |
Section 5.2 | Efforts to Consummate | 57 |
Section 5.3 | Further Assurances | 60 |
Section 5.4 | Conduct of Business of the Company | 61 |
Section 5.5 | Exclusive Dealing | 64 |
Section 5.6 | Control of Other Party’s Business | 65 |
Section 5.7 | Public Announcements | 65 |
Section 5.8 | D&O Indemnification and Insurance | 65 |
Section 5.9 | Employee Matters | 67 |
Section 5.10 | Non-Competition | 70 |
Section 5.11 | Non-Solicitation; No Hire | 71 |
Section 5.12 | Confidentiality | 71 |
Section 5.13 | Financing | 72 |
Section 5.14 | Certain Affiliate Arrangements. | 78 |
Section 5.15 | Insurance Reporting and Access | 78 |
Section 5.16 | Notification | 79 |
Section 5.17 | Unaudited Quarterly Financials | 80 |
Section 5.18 | Compliance Investment | 80 |
| ARTICLE VI |
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| CONDITIONS TO OBLIGATIONS TO CLOSE |
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Section 6.1 | Conditions to Obligation of Each Party to Close | 81 |
Section 6.2 | Conditions to Purchaser’s Obligation to Close | 81 |
Section 6.3 | Conditions to Sellers’ Obligation to Close | 82 |
Section 6.4 | Frustration of Closing Conditions | 82 |
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| ARTICLE VII |
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| TERMINATION |
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Section 7.1 | Termination | 82 |
Section 7.2 | Notice of Termination | 84 |
Section 7.3 | Effect of Termination | 84 |
Section 7.4 | Reverse Termination Fee | 84 |
| ARTICLE VIII |
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| SURVIVAL, INDEMNIFICATION AND LIMITED RELEASE |
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Section 8.1 | Survival Periods | 85 |
Section 8.2 | Indemnification by Sellers | 86 |
Section 8.3 | Indemnification by Purchaser | 87 |
Section 8.4 | Claims Procedures | 87 |
Section 8.5 | Limitations on Indemnification | 90 |
Section 8.6 | Exclusive Remedies | 91 |
Section 8.7 | Manner of Payment | 92 |
Section 8.8 | Limited Releases | 92 |
| ARTICLE IX |
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| TAX MATTERS |
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Section 9.1 | Tax Indemnification | 93 |
Section 9.2 | Filing of Tax Returns | 94 |
Section 9.3 | Tax Benefits, Refunds, Credits and Carrybacks | 95 |
Section 9.4 | Assistance and Cooperation | 95 |
Section 9.5 | Contests | 96 |
Section 9.6 | Transfer Taxes | 97 |
Section 9.7 | Treatment of Indemnity Payments | 97 |
Section 9.8 | Certain Tax Elections | 97 |
Section 9.9 | Manner of Payment | 98 |
Section 9.10 | Tax Sharing Agreements | 98 |
Section 9.11 | Tax Matters Coordination | 98 |
| ARTICLE X |
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| MISCELLANEOUS |
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Section 10.1 | Counterparts | 98 |
Section 10.2 | Governing Law; Submission to Jurisdiction; Waiver of Jury Trial | 98 |
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Section 10.3 | Entire Agreement | 100 |
Section 10.4 | Expenses | 100 |
Section 10.5 | Notices | 100 |
Section 10.6 | Successors and Assigns | 101 |
Section 10.7 | Third-Party Beneficiaries | 101 |
Section 10.8 | Amendments, Extensions and Waivers | 102 |
Section 10.9 | Specific Performance | 102 |
Section 10.10 | Treatment of Cape Publications, Inc. | 104 |
Section 10.11 | Provision Respecting Legal Representation | 104 |
Section 10.12 | Severability | 105 |
Section 10.13 | Non-Recourse | 105 |
Schedules
Schedule I: Sellers
Company Disclosure Schedule
Purchaser Disclosure Schedule
Exhibits
Exhibit A:Working Capital Calculation
Exhibit B:Certificate of Formation of Parent
Exhibit C:Limited Liability Company Agreement of Parent
Exhibit D:Certificate of Formation of Parent Holdings
Exhibit E:Limited Liability Company Agreement of Parent Holdings
Exhibit F:Certificate of Formation of Parent Acquisition
Exhibit G:Limited Liability Company Agreement of Parent Acquisition
Exhibit H:Amended and Restated Limited Liability Company Agreement of the Company
Exhibit I:Registration Rights Agreement
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INTERESTS PURCHASE AGREEMENT
This INTERESTS PURCHASE AGREEMENT (this “Agreement”), dated as of June 17, 2017, is by and among CareerBuilder, LLC, a Delaware limited liability company (the “Company”), the Sellers named on Schedule I hereto (collectively, “Sellers” and each, a “Seller”), and AP Special Sits Camaro Holdings, LLC, a Delaware limited liability company, (“Purchaser”) (each of Purchaser and Sellers, a “Party” and collectively, the “Parties”).
RECITALS
WHEREAS, Sellers collectively hold, of record and beneficially, all of the outstanding membership interests (the “Interests”) of the Company;
WHEREAS, the Parties desire to effect a series of transactions which will result in (a) the formation of the New Entities, (b) the Interests ultimately being owned by Parent Acquisition, (c) Sellers and Purchaser owning Common Units, (d) Purchaser owning Preferred Units, (e) Sellers receiving the Distribution Amount and (f) Sellers receiving cash for the sale of Common Units to Purchaser, as more particularly described in, and subject to the terms and conditions of, this Agreement and the Operating Agreement;
WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to Sellers’ willingness to enter into this Agreement, each of Apollo Special Situations Fund, L.P. (“ASSF”) and Ontario Teachers’ Pension Plan Board (“OTPP” and together with ASSF, the “Guarantors”) has duly executed and delivered to the Company a limited guaranty, dated as of the date of this Agreement, in favor of the Company (a “Guaranty”) pursuant to which the Guarantors have agreed to guarantee obligations of Purchaser hereunder subject to the limitations set forth therein; and
WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
Section 1.1 Defined Terms and Rules of Construction. For the purposes of this Agreement, the following terms shall have the following meanings: |
“30% Rule” means Section 79 of regulation 909 under Section 62 of the Pension Benefits Act (Ontario).
“Acquisition Transaction” means any of the following (other than with or by Purchaser or any of its Affiliates), (a) any merger, consolidation, joint venture, partnership,
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dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or similar transaction involving the Transferred Entities as a result of which any third party would acquire, or (b) any acquisition by a third party in any manner, directly or indirectly, by operation of law or otherwise, of, in each case, beneficial ownership of or other interest in any equity securities of any of the Transferred Entities or of thirty percent (30%) or more of the fair market value of the total consolidated assets of the Transferred Entities. For the avoidance of doubt, any transaction involving the of securities of TEGNA Inc., Tribune Media Company or The McClatchy Company shall not be considered an Acquisition Transaction.
“Additional Equity Contribution” means the amount, by which the sum of the Purchaser Transaction Expenses plus the Bank Fee Amount, exceeds $25 million, if any.
“Action” means any action, claim, suit, litigation, proceeding or (to the knowledge of the applicable Party) investigation (including any civil, criminal, administrative or appellate proceeding) by or before any Governmental Entity, self-regulatory organization or private arbitral body with jurisdiction over any Party hereto or any Transferred Entity.
“Affiliate” means, with respect to any Person, any other Person that directly, or through one or more intermediaries, controls or is controlled by or is under common control with such Person; provided that (a) no Transferred Entity or New Entity shall be considered an Affiliate of any Seller or of any Affiliate of any Seller; (b) no Seller or Affiliate of any Seller shall be considered an Affiliate of any Transferred Entity or New Entity; (c) no Seller or Affiliate of any Seller shall be considered an Affiliate of any other Seller or of any of such other Seller’s Affiliates; (d) Affiliates of a Seller shall not include any Person other than (i) in case of TEGNA Inc. or Cape Publications, Inc., TEGNA Inc. and its controlled Affiliates, (ii) in case of Tribune National Marketing Company, LLC, Tribune Media Company and its controlled Affiliates, and (iii) in case of McClatchy Interactive West, The McClatchy Company and its controlled Affiliates; and (e) except with respect to Section 8.2(b) and Section 10.13, in no event shall Purchaser be considered an Affiliate of any portfolio company or investment fund (excluding Apollo Special Situations Fund, L.P.) affiliated with Apollo Global Management, LLC, nor shall any portfolio company or investment fund (excluding Apollo Special Situations Fund, L.P.) affiliated with Apollo Global Management, LLC, be considered to be an Affiliate of Purchaser. For the avoidance of doubt, following the Closing, Affiliates of Purchaser shall include the New Entities, the Company and their respective Subsidiaries. For purposes of this Agreement, “control” means, as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise (and the terms “controlled by” and “under common control with” shall have correlative meanings).
“Balance Sheet Cash Amount” means an amount of cash up to $10 million, to be retained by the Company and/or its Subsidiaries from the proceeds of the Debt Financing funded on or prior to Closing, which amount (up to $10 million) shall be determined by Purchaser in good faith to be necessary or advisable.
“Bank Fee Amount” means the sum of (a) fees, costs and expenses incurred or paid by Purchaser or its Affiliates to their advisors, ratings agencies, the Lenders or their respective advisors and (b) fees, costs and expenses incurred or paid by any of the Transferred
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Entities, in each case, (i) prior to, at or around Closing in connection with the borrowing under the Debt Financing and (ii) including, without limitation, all arrangement fees, upfront fees, original issue discount, administration fees and other fees and expenses payable or reimbursable under the Debt Commitment Letter and any related fee letter (including any “flex” provisions thereof); provided that the Bank Fee Amount shall exclude any amount paid or payable to Purchaser or any Affiliate of Purchaser other than to Apollo Global Securities, LLC and its Affiliates in the capacity as an arranger for the Debt Financing pursuant to the fee letter relating to the Debt Commitment Letter as of the date hereof. For the avoidance of doubt, any amounts included in the Bank Fee Amount shall not be duplicative of amounts included in Purchaser Transaction Expenses.
“Benefit Plan” means any employee benefit plan, program, policy, practice, agreement, understanding or other arrangement providing compensation or benefits to any current or former employee or other individual service provider of the Transferred Entities, or any beneficiary or dependent thereof that is sponsored or maintained by the Transferred Entities, or to which the Transferred Entities contributes or is obligated to contribute or has any liability, whether actual or contingent, whether or not written, including any employee welfare benefit plan within the meaning of Section 3(1) of ERISA, whether or not such plan is subject to ERISA, any employee pension benefit plan within the meaning of Section 3(2) of ERISA, whether or not such plan is subject to ERISA, and any retirement, pension, redundancy, old age, death, bonus, incentive, deferred compensation, vacation, holiday, cafeteria, medical, disability, share purchase, stock option, stock appreciation, phantom stock, restricted stock, free shares, company savings, profit-sharing or other stock-based compensation, severance, employment, change in control or fringe benefit plan, program, policy, practice, agreement, understanding, custom or other arrangement, other than any of the foregoing which is a statutorily-maintained, mandated or sponsored plan, program or policy.
“Benefits Cash” means an amount equal to (a) all cash and cash equivalents, other than Trapped Cash, held by any of the Transferred Entities (other than Employee Benefits Specialists, Inc. and/or its Subsidiaries), plus (b) all cash and cash equivalents held by Employee Benefits Specialists, Inc. and/or its Subsidiaries; provided that Benefits Cash shall not exceed the Customer Obligations.
“Business Day” means any day that is not a Saturday, a Sunday or other day on which commercial banks in New York, New York, are required or authorized by Law to be closed.
“Capital Expenditures” means expenditures of the Transferred Entities that are classified as capital expenditures in accordance with GAAP to acquire or improve the useful life of fixed, physical or other non-consumable assets, including software, real property, equipment, machinery, vehicles, and other similar assets.
“Capital Expenditures Budget” means a summary of all budgeted Capital Expenditures of the Transferred Entities, for the period beginning on January 1, 2017 and ending on December 31, 2017, as set forth in Section 1.1(a) of the Company Disclosure Schedule.
“Capital Expenditures Budget Proration” means an amount determined by multiplying the aggregate budgeted Capital Expenditures set forth in the Capital Expenditures
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Budget by the actual number of days elapsed in 2017 prior to Closing, and dividing the resulting amount by 365.
“Cash” means all cash and cash equivalents of the Transferred Entities. Cash shall (a) be reduced by issued but uncleared checks and drafts of any Transferred Entity, and (b) be increased by uncleared checks and drafts deposited for the account of any Transferred Entity.
“Class A Common Units” has the meaning set forth in the Operating Agreement.
“Class B Common Units” has the meaning set forth in the Operating Agreement.
“Class B Common Valuation” means the quotient obtained by dividing Equity Value by 1,000,000.
“Class B Common Prorated Valuation” means the product obtained by multiplying the Class B Common Valuation by 2/3.
“Closing Date Cash” means the aggregate amount of all Cash as of immediately prior to the Closing, excluding Trapped Cash; provided (a) that Closing Date Cash shall exclude any Cash received in connection with borrowings under the Debt Financing, and (b) Closing Date Cash (other than Benefits Cash) in excess of $10 million shall be disregarded (such excess Cash, “Excess Cash”). Notwithstanding the foregoing, if any cash is generated following the date hereof from the liquidation of marketable securities previously held by or for the benefit of the Company or its Subsidiaries in respect of any forfeited LTIP and ELTIP amounts, such cash shall not be taken into account for purposes of Closing Date Cash but shall instead be subject to Section 5.9(e).
“Closing Date Indebtedness” means all Indebtedness of the Transferred Entities as of immediately prior to the Closing.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Common Units” has the meaning set forth in the Operating Agreement.
“Compliant” means, with respect to the Required Information, that (a) the Company’s auditors have not withdrawn any audit opinion with respect to any audited financial statements contained in such Required Information, (b) such Required Information, when taken as a whole, does not contain any untrue statement of a material fact regarding the Company and its Subsidiaries or omit to state any material fact regarding the Company and its Subsidiaries, in each case, necessary in order to make such Required Information not misleading under the circumstances (giving effect to all supplements and updates provided thereto), (c) neither any Seller nor the Company has publicly announced its intention to, or determined that it must, restate any historical financial statements or other financial information included in such Required Information or any such restatement is otherwise required in accordance with GAAP (it being understood that such Required Information may be Compliant under this subclause (c) if such restatement is completed and the applicable Required Information has been amended or supplemented or such Seller or the Company, as applicable, has determined that no such restatement shall be required), and (d) the financial statements and other information included in
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such Required Information would not be deemed stale under Regulation S-X or Regulation S-K under the Securities Act for a registered public offering of non-convertible debt securities on Form S-1 by an entity that is not a “large accelerated filer” or an “accelerated filer” as defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.
“Confidentiality Agreement” means the Non-Disclosure Agreement, dated as of December 16, 2016, by and between the Company and Apollo Management VIII, L.P.
“Contract” means any agreement, license, joint venture agreement, and research and development contract or other legally binding obligation or undertaking, excluding any Benefit Plan.
“Covered Indebtedness” means Indebtedness of the types described in subclauses (1) (a), (b) and (c) of the definition of “Indebtedness”, and (2) to the extent relating to Indebtedness described in subclauses (a), (b) or (c), subclauses (i) , (j) and (k) of the definition of “Indebtedness.”
“Credit Support Arrangements” means guaranties, performance bonds, performance guaranties, keep-wells, sureties, bankers’ acceptances, letters of credit, agreements to assume liabilities, and other security, credit support or similar financial assurances.
“Customer Obligations” has the meaning set forth in the definition of Indebtedness.
“Distribution Amount” means (a) $350 million, less (b) the Balance Sheet Cash Amount, less (c) the sum of the Bank Fee Amount plus Purchaser Transaction Expenses, collectively up to $25 million, less (d) Seller Transaction Expenses.
“Dutch Subsidiary” means each of CareerBuilder International Holding B.V., Jobbingmall B.V., Textkernel B.V. and CareerBuilder ProfilSoft Dutch Holdings B.V.
“ELTIP” means the Amended and Restated CareerBuilder, LLC Executive Long Term Incentive Plan.
“Environmental Laws” means any Law relating to (a) pollution or protection of the environment or natural resources; or (b) the manufacture, handling, transport, use, treatment, storage, or disposal of or exposure to hazardous materials.
“Environmental Permits” means any permit, license, registration, consent, order, filing, authorization or approval required under applicable Environmental Laws.
“Equity Value” means an amount equal to (i) $500 million, minus (ii) the Preferred Unit Price, minus (iii) the Distribution Amount, and minus (iv) Seller Transaction Expenses.
“ERISA” means the Employment Retirement Income Security Act of 1974, as amended.
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“Excess Cash” has the meaning set forth in the definition of Closing Date Cash. For the avoidance of doubt, “Excess Cash” shall not include Benefits Cash.
“Excluded Taxes” means any liability, without duplication, (a) for Taxes of the Transferred Entities for any Pre-Closing Period, (b) for the payment of Taxes of any Pre-Closing Period as a result of a Transferred Entity being a member of an affiliated, consolidated, combined or unitary group under Treasury Regulations 1.1502-6 (or any similar provision of state, local, or non-U.S. income Tax law), (c) of a Transferred Entity for the payment of any amounts as a result of being a party, prior to Closing, to any Tax sharing, allocation or indemnity agreements or arrangements (other than ordinary course agreements with respect to the acquisition of goods or services, loan agreements for borrowed money and agreements the primary subject of which is not Taxes), (d) of a Transferred Entity for the payment of Taxes for any Pre-Closing Period as a successor or transferee, (e) for any Taxes arising out of or resulting from the breach of any covenant or agreement contained in this Agreement by (i) any Seller or (ii) any Transferred Entity, (f) for any Taxes imposed as a result of any action or failure to act in the Pre-Closing Period by (i) a Seller, any of its Affiliates or (ii) any Transferred Entity which action or failure to act results in the inability of Purchaser or its applicable Affiliate to file a valid new domestic use election pursuant to Section 9.8(b), (g) for any Taxes imposed pursuant to Treasury Regulations Section 1.1503(d)-6(h) in a Pre-Closing Period or Post-Closing Period with respect to the domestic use in any Pre-Closing Period of any dual consolidated loss and (h) for any Specified Indemnified Taxes. To the extent permitted by applicable Law, the taxable year of each of the Transferred Entities that includes the Closing Date shall be treated as closing on (and including) the Closing Date. To the extent not permitted by applicable Law, for purposes of this Agreement, in the case of any Straddle Period, Taxes attributable to the Pre-Closing Period shall be computed as if such taxable period ended as of the end of the day on the Closing Date; provided, that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period.
“Fundamental Representations” means (a) with respect to Sellers and the Company, the representations and warranties contained in Section 3.1(a) (Organization; Authority), Section 3.1(b) (Enforceability), Section 3.1(c) (Title to Interests), Section 3.1(e) (Brokers), Sections 4.1(a)(i) and (ii) (Organization and Qualification), Section 4.1(c) (Authority; Enforceability), Sections 4.2 (Capitalization), Section 4.16 (Brokers); and (b) with respect to Purchaser, the representations and warranties contained in Section 3.2(b) (Authority; Enforceability) and Section 3.2(h) (Brokers).
“GAAP” means generally accepted accounting principles in the United States as in effect at the time any applicable financial statements were prepared.
“Governmental Entity” means any foreign, domestic, federal, territorial, state, local or supranational governmental entity, court, tribunal, arbitral body, judicial body, commission, board, bureau, agency or instrumentality, or any regulatory or administrative agency, or any political or other subdivision, department or branch of any of the foregoing.
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“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Indebtedness” of any Person means, without duplication, (a) all obligations for money borrowed, whether or not contingent, or evidenced by notes, debentures, bonds or other similar instruments, (b) any obligations under any surety bond, performance bond, letter of credit, bankers’ acceptance or similar instrument, in each case solely to the extent drawn, (c) capital leases that would be classified as balance sheet liabilities in accordance with GAAP, (d) all obligations for the payment of any deferred purchase price of any property (including any obligations secured by a purchase money mortgage or other Lien to secure all or part of the purchase price of the property subject to such Lien), in each case other than any put or call options or similar rights or obligations, (e) all obligations in respect of swaps or other hedging agreements, (f) all matured obligations to purchase, redeem, retire, defease or otherwise make any payment in respect of any membership interests, shares of capital stock or other ownership or profit interest of such Person, in each case other than any put or call options or similar rights or obligations, (g) all obligations in respect to overdrafts, (h) all obligations created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person or its subsidiaries (even if the rights and remedies of seller or lender under such agreement following an event of default are limited to repossession of such sale or property), (i) all accrued interest and premiums, penalties, make whole or similar payments payable in connection with the obligations described in any other clause of this definition, (j) all obligations described in the foregoing clauses (a) through (i) of any Person that are guaranteed, directly or indirectly, by such Person, (k) all obligations described in the foregoing clauses (a) through (i) of a third party secured by any Lien on property or assets of such Person, (l) unfunded pension or defined benefit retirement plan obligations, whether or not accrued or reflected in the Financial Statements, calculated in accordance with US GAAP, including French and other statutory pension obligations, (m) unpaid amounts required to be paid over to Governmental Entities under escheat, unclaimed property or similar Laws, and (n) all obligations to return cash amounts paid by clients or to remit payments to satisfy client’s benefits obligations, in each case in this clause (n), as reflected in the Company’s books and records or any Subsidiary of the Company’s books and records as “Liabilities for Client’ Obligations” (the aggregate amount of the obligations described in this clause (n), “Customer Obligations”); provided that Indebtedness shall not include (A) trade payables, to the extent such trade payables are included in the calculation of Working Capital, (B) any indebtedness incurred by any Transferred Entity (or Purchaser or its Affiliates and subsequently assumed by any Transferred Entity) in connection with the Closing or as otherwise directed by Purchaser or its Affiliates, including any debt incurred to finance the Distribution Amount on the Closing Date, (C) any obligations under the LTIP or ELTIP, which are addressed in Section 5.9(e), and/or (D) any endorsement of negotiable instruments for collection in the ordinary course of business.
“Indemnifying Party” means Sellers for the purposes of Section 8.2 and Purchaser for the purposes of Section 8.3, as the case may be.
“Initial Fully Diluted Purchase Percentage” means 75%.
“Initial Purchase Percentage” means 100% minus the Initial Rollover Percentage.
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“Initial Rollover Percentage” means 33.3333%.
“Intellectual Property” means rights in and to all of the following as they exist worldwide: (a) all inventions (whether or not patentable or reduced to practice), all improvements, enhancements, and updates thereto, patents and patent applications and continuations, continuations-in-part, revisions, divisionals, extensions, reexaminations or reissues of any of the foregoing, (b) trademarks, service marks, designs, trade dress, and trade names, registrations and pending applications to register the foregoing, and common law trademarks, service marks and trademarks, designs, logos, and all other designations of origin along with all goodwill associated therewith, (c) all copyrights and other works of authorship, including registered copyrights and applications to register copyrightable works, (d) trade secrets and know-how, and (e) all registered and applied-for domain names.
“Key Transferred Employee” means any employee of any of the Transferred Entities set forth in Section 1.1(b) of the Company Disclosure Schedule.
“Law” means any law (including common law), statute, constitution, ordinance, rule or regulation of any Governmental Entity.
“Liens” means all liens (statutory or otherwise), pledges, charges, security interests, restrictions on transfer, deeds of trust, options, rights of first refusal, rights of way, easements, mortgages or other encumbrance of any kind or nature whatsoever (including any restriction on the right to vote or transfer the same) other than Liens arising under applicable securities Laws.
“Lookback Date” means January 1, 2014.
“Losses” means all losses, costs, charges, expenses, fees (including reasonable fees of attorneys, consultants and advisors), liabilities, settlement payments, awards, judgments, fines, interest awards, penalties, damages, or assessments, in each case, whether incurred in advance of or following the final disposition of any claim.
“LTIP” means the Amended and Restated CareerBuilder, LLC Long Term Incentive Plan.
“Marketing Period” means the first period of 17 consecutive calendar days after the date of this Agreement throughout and at the end of which (i)(A) Purchaser shall have the Required Information and (B) the Required Information shall be Compliant; provided that, unless the conditions set forth in Section 6.1 and Section 6.2 (other than those conditions that by their nature are to be satisfied at the Closing, provided that such conditions are capable of being satisfied) shall be satisfied or waived, the Purchaser may, by delivery of a written notice to the Company, elect to delay the start of such 17 consecutive calendar day period for up to 7 calendar days following receipt of the Compliant Required Information; provided further that the Marketing Period shall not commence or be deemed to have commenced if, following the delivery of the Required Information but prior to the completion of such 17 consecutive calendar day period, any such Required Information would not be Compliant or otherwise ceases to meet the requirements of “Required Information” (it being understood that if any Required Information provided at the commencement of the Marketing Period ceases to be Compliant
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prior to the completion of such 17 consecutive calendar day period, then the Marketing Period shall be deemed not to have commenced until, at the earliest, the Required Information is provided and is Compliant) and (ii) nothing has occurred and no condition exists that would cause any of the conditions set forth in Section 6.1 and Section 6.2 (other than Section 6.1(a) and Section 6.2(f)) to fail to be satisfied as of the Closing Date; provided that (x) if such 17 consecutive calendar day period has not ended on or prior to August 18, 2017, then such period shall commence no earlier than September 5, 2017 and (y) in no event shall such 17 consecutive calendar day period commence earlier than July 5, 2017. If the Company in good faith believes that it has provided the Required Information and that the Required Information is Compliant, it may deliver to Purchaser a written notice to that effect (stating when it believes it completed such delivery and that the Required Information so delivered is Compliant), in which case the Company shall be deemed to have complied with the foregoing requirements set forth in clauses (i)(A) and (i)(B) unless Purchaser in good faith believes the Company has not completed the delivery of the Required Information or that such Required Information is not Compliant and, within three (3) Business Days after the delivery of such notice by the Company, delivers a written notice to the Company to that effect (stating with specificity which Required Information the Company has not delivered or why Purchaser believes such Required Information is not Compliant), it being understood that, whether or not the Company or Purchaser delivers any such notice, the Marketing Period shall be deemed to commence and be completed as and when provided in the preceding sentence, subject to the terms and conditions thereof. Notwithstanding anything in this definition to the contrary, the Marketing Period shall end on any earlier date prior to the expiration of the 17 consecutive calendar day period described above if the Debt Financing is consummated on such earlier date.
“Material Adverse Effect” means an event, change or development that has or would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Transferred Entities, taken as a whole; provided, however, that no event, change or development to the extent resulting from any of the following shall be deemed by itself or by themselves, either alone or in combination, to constitute or be taken into account in determining whether there has been a Material Adverse Effect:
(a) general conditions in the global or national economy, financial or securities markets, including interest rates or currency exchange rates, or any events, changes or developments therein; |
(b) any events, changes or developments in the industries in which any of the Transferred Entities conduct business or any segment thereof; |
(c) any changes (or proposed changes) in applicable Laws, protocols or programs of any Governmental Entity or industry standards, or the interpretation, implementation or enforcement thereof; |
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(j) any action or omission required pursuant to the terms of this Agreement, or pursuant to the written request or consent of Purchaser; |
except, in the case of clauses (a), (b), (c), (d), (e) and (f), to the extent, and only to the extent, that such event, change or development has a disproportionate effect on the Transferred Entities, taken as a whole, relative to similarly situated participants in the industries in which the Transferred Entities operate.
“Material Contract” means each Contract to which any Transferred Entity is a party or otherwise bound by as of the date hereof:
(b) pursuant to which the Transferred Entities have collected or received or are reasonably expected to collect or receive, payments or consideration during any twelve month period including the date of this Agreement, of more than $1,500,000; |
(c) (i) which is a note, indenture, or other evidence of third-party Covered Indebtedness or which relates to a Credit Support Agreement, in each case, in excess of $1,000,000, or (ii) pursuant to which a Transferred Entity has mortgaged, pledged or otherwise placed a Lien on any of its material assets; |
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(h) which provides for the lease of real or personal property by or to a Transferred Entity and provides for annual payments after the date of this Agreement in excess of $750,000; |
“Net Capital Expenditures Amount” means, as of immediately prior to the Closing, the amount (which may be a positive or negative number) by which (i) the sum of (w) out-of-pocket expenditures actually made, (x) purchase price actually paid, (y) investments actually made, and/or (z) expenses actually incurred and paid in cash, in each case, by the Transferred Entities, in respect of Capital Expenditures, from January 1, 2017 to the Closing less any prepaid Capital Expenditures included as current assets in the calculation of Closing Date Working Capital, exceeds (ii) the Capital Expenditures Budget Proration; provided that if (A) such amount is positive and (1) is equal to or less than $2,000,000, then the “Net Capital Expenditures Amount” shall be zero dollars, (2) exceeds $2,000,000 but is less than $5,000,000, then the “Net Capital Expenditures Amount” shall be equal to the amount by such amount
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exceeds $2,000,000 (i.e., such amount minus $2,000,000) or (3) equals or exceeds $5,000,000, then the “Net Capital Expenditures Amount shall be equal to $3,000,000 (e.g., if such amount is $6,000,000, the “Net Capital Expenditures Amount” shall be deemed equal to $5,000,000), or (B) such amount is negative and the absolute value of which (1) is equal to or less than $2,000,000, then the “Net Capital Expenditures Amount” shall be zero dollars or (2) exceeds $2,000,000, then the “Net Capital Expenditures Amount” shall be equal to negative one multiplied by the amount by which such absolute value amount exceeds $2,000,000.
“New Entities” means Parent, Parent Holdings and Parent Acquisition.
“Non-Wholly Owned Subsidiaries” means Economic Modeling, LLC, Economic Modeling UK Limited, Employee Benefits Specialists, Inc. and Textkernel B.V.
“Order” means any outstanding judgment, stipulation, award, verdict, ruling, injunction, decree, subpoena, writ, award or order of a Governmental Entity.
“PCI DSS” means the Payment Card Industry Data Security Standard, issued by the Payment Card Industry Security Standards Council, as may be revised from time to time.
“Permits” means all licenses, permits, franchises, approvals, registrations, authorizations, consents or orders of, or filings with, any Governmental Entity.
“Permitted Liens” means the following Liens: (a) Liens disclosed or reflected on the Financial Statements; (b) Liens for Taxes, assessments or other governmental charges or levies that are not yet due or payable or that are being contested in good faith by appropriate Actions and for which adequate reserves have been set aside in accordance with GAAP; (c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen, workmen, repairmen and other Liens imposed by Law or in the ordinary course of business with respect to any amounts that are not yet due and payable or which are being contested in good faith by appropriate Actions; (d) Liens incurred or deposits made in the ordinary course of business of any Transferred Entity in connection with workers’ compensation, unemployment insurance or other types of social security; (e) Liens incurred in the ordinary course of business, securing obligations or liabilities that are not material to, not incurred in connection with the borrowing of money, and that do not materially interfere with the ordinary course of business of the Transferred Entities or materially impair the value of the assets of the Transferred Entities taken as a whole; (f) easements, declarations, covenants, rights-of-way, restrictions and other similar charges or encumbrances not incurred in connection with the borrowing of money and not impairing in any material respect the use of or access to any leased or owned real property; (g) zoning ordinances, variances, conditional use permits and similar regulations, permits, approvals and conditions; (h) Liens not created by any Transferred Entity that affect the underlying fee interest of any Leased Real Property, including master leases or ground leases and any set of facts that an accurate up-to-date survey would show; provided, however, that any such item set forth in subsections (g) or (h) of this definition would not or do not materially interfere with the ordinary conduct of the business of the Transferred Entities or materially affect the value of the Transferred Entities taken as a whole; (i) Liens imposed by applicable securities laws; and/or (j) non-exclusive licenses granted to Intellectual Property in the ordinary course of business.
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“Person” means an individual, partnership (general or limited), corporation, limited liability company, joint venture, association or other form of business organization (whether or not regarded as a legal entity under applicable Law), trust or other entity or organization, including a Governmental Entity.
“Personal Information” means any information that, alone or in combination with other information, identifies or allows the identification of, or contact with, any individual, including an individual’s name, address, telephone number, e-mail address, date of birth, photograph, social security number or tax identification number, credit card number, bank information, or biometric identifiers.
“Post-Closing Period” means, with respect to the Transferred Entities, any taxable year or period that begins after the Closing Date and, in the case of any Straddle Period, the portion of such period beginning immediately after the Closing Date.
“Pre-Closing Period” means, with respect to the Transferred Entities, any taxable year or period that ends on or before the Closing Date and, in the case of any Straddle Period, the portion of such period ending on and including the Closing Date.
“Preferred Units” has the meaning set forth in the Operating Agreement.
“Preferred Unit Number” means 5 million.
“Preferred Unit Price” means $50 million.
“Purchaser Transaction Expenses” means, any fees, costs and expenses (including any legal, accounting, financial advisory, broker’s, finder’s and other third party advisory or consulting fees and other expenses) incurred by or on behalf of the Purchaser and paid or payable to a third party (who is not Purchaser or any of its Affiliates) in connection with, arising from, or relating to the preparation, execution, performance and/or consummation of the transactions contemplated hereby (including due diligence investigation, preparation and negotiation of documents, arrangement of financing and securing any regulatory approvals or third-party consents). For the avoidance of doubt, “Purchaser Transaction Expenses” shall (a) include to the extent payable by the Purchaser in accordance with and as limited by Section 10.4, expenses of the Transferred Entities or the Sellers in connection with seeking any third–party consents and approvals in connection with this Agreement and (b) include amounts initially paid by an Affiliate of Purchaser, and for which reimbursement is sought hereunder, so long as such amounts would otherwise constitute “Purchaser Transaction Expenses” if initially paid by Purchaser, (c) include any fees, costs or expenses incurred prior the Closing so long as such amounts would otherwise constitute “Purchaser Transaction Expenses”, but for which the applicable Person has not received an invoice or other demand for payment by the Closing, and (d) exclude any fees, costs or expenses incurred following the Closing.
“Registration Rights Agreement” means a registration rights agreement, to be entered into at Closing among Parent and the Holders party thereto (as defined therein) in the form attached hereto as Exhibit I.
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“Related Party” means, (a) with respect to the Transferred Entities, including the Company, any Affiliate or any former, current or future direct or indirect equity holders, controlling Persons, stockholders, directors, officers, employees, members, managers, general or limited partners, agents, attorneys, advisors or other representatives of any of the Transferred Entities or any the Transferred Entities’ Affiliates, or any of the foregoing’s respective successors or assigns (in each case of this clause (a), other than any Person covered by the following clause (b) and other than the Sellers and their respective Affiliates), and (b) with respect to Purchaser, Apollo Global Management, LLC, any Affiliate or any former, current or future direct or indirect equity holders, controlling Persons, stockholders, directors, officers, employees, members, managers, general or limited partners, agents, attorneys, advisors or other representatives of any of Purchaser or Apollo Global Management, LLC, or of their respective Affiliates or any of the foregoing’s respective successors or assigns (in each case other than Purchaser or any party to either Equity Commitment Letter or Guaranty).
“Required Information” means (i) audited consolidated balance sheets and related statements of operations, equity and cash flows of the Transferred Entities for the three most recently completed fiscal years ended at least 90 days prior to the end of the Marketing Period, (ii) unaudited consolidated balance sheets and related statements of operations, equity and cash flows of the Transferred Entities for each subsequent fiscal quarter ended subsequent to the most recent fiscal year in respect of which financial statements have been delivered pursuant to clause (i) above and ended at least 45 days prior to the end of the Marketing Period (but excluding the fourth quarter of any fiscal year), in each case prepared in accordance with GAAP (except, in the case of financial statements provided pursuant to clause (ii), for the omission of footnotes), and (iii) all other financial statements, financial data, audit reports and other information reasonably requested by Purchaser of the type and form customarily included in marketing documents used to syndicate credit facilities of the type to be included in the Debt Financing, in each case that is required to be delivered to the Debt Financing Sources or reasonably necessary to satisfy the conditions in Paragraphs 3, 4 and 5 of Exhibit C to the Debt Commitment Letter, in each case, assuming that the Debt Financing were consummated at the same time during the Company’s fiscal year as such Debt Financing will be consummated; provided, that in no event shall the Required Information be deemed to include or shall the Company or any of its Subsidiaries otherwise be required to provide any (1) pro forma financial statements or adjustments (including regarding any synergies, cost savings, ownership or other post-Closing adjustments) or projections, (2) risk factors relating to all or any component of the Debt Financing (or any alternative financing in accordance with Section 5.13), (3) separate financial statements in respect of any of the Company’s Subsidiaries, or (4) other information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X or any Compensation, Discussion and Analysis required by Item 402(b) of Regulation S-K.
“Reverse Termination Fee” means $31,500,000, in cash.
“Sanctions Authority” means the United States of America (including U.S. Department of the Treasury’s Office of Foreign Assets Control, Department of State and the Bureau of Industry and Security of the Department of Commerce), Her Majesty’s Treasury of the United Kingdom, and the Council of the European Union.
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“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Seller Transaction Expenses” means, to the extent not paid prior to the Closing, (a) any legal, accounting, financial advisory, broker’s, finder’s and other third party advisory or consulting fees, or other out-of-pocket fees, costs and expenses (other than any fees, costs or expenses in respect of insurance matters and obtaining consents or approvals as addressed by other provisions of this Agreement), incurred or required to be paid by the Transferred Entities and based on arrangements made prior to the Closing by any of the Sellers or any of the Transferred Entities or any of their respective Affiliates in connection with or arising from (1) the preparation, execution, performance and/or consummation of the Sale and (2) any auction or other process leading up to the execution of this Agreement, (b) 25% of any amounts payable by the Transferred Entities under the Benefit Plans (such Benefit Plans, the “Employee Retention Awards”) set forth on Section 1.1(c) of the Company Disclosure Schedule (regardless of when after the Closing such payments are required to be made), including any related payroll Tax obligations resulting therefrom, the Transferred Entities or any of their respective Affiliates in respect of such payments, and, (c) to the extent provided in (and as limited by) Section 10.4, expenses of the Transferred Entities in connection with seeking any third–party consents and approvals in connection with this Agreement. For the avoidance of doubt, certain matters related to Section 280G(b)(5)(B) of the Code shall constitute “Seller Transaction Expenses” as described in Section 5.9(f). Notwithstanding anything herein to the contrary, fees, costs and expenses incurred by any of the Transferred Entities in connection with or related to the Debt Financing (including any amount included as part of the Bank Fee Amount) shall not be Seller Transaction Expenses.
“Sensitive Data” means all confidential information, proprietary information, Personal Information, trade secrets and any other information protected by Law or Contract that is collected, created, maintained, stored, transmitted, used, disclosed or otherwise processed by or for the business of the Transferred Entities, including any information that is governed, regulated or protected by any Law, Contract, or that is subject to PCI DSS.
“Series A Convertible Preferred Units” has the meaning set forth in the Operating Agreement.
“Series B Convertible Preferred Units” has the meaning set forth in the Operating Agreement.
“Software” means all computer software, including all source code, object code, and documentation related thereto and all software modules, algorithms, assemblers, applets, compilers, flow charts or diagrams, tools and databases.
“Solvent” when used with respect to any Person, means that, as of any date of determination, (a) the fair value of the assets of such person and its subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of such person and its subsidiaries on a consolidated basis, (b) the present fair saleable value of the property of such Person and its subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of such person and its subsidiaries on a consolidated basis on their debts and other liabilities, direct,
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subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) such Person and its subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, and (d) such Person and its subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.
“Specified Indemnified Taxes” means (a) Taxes imposed as a result of the breach by the Company of any representation contained in Section 4.10(f), (b) Taxes arising out income items described in Section 4.10(l) (as read prior to giving effect to items scheduled in Section 4.10 of the Company Disclosure Schedules) and (c) Taxes on gain recognized under any gain recognition agreements entered into in a Pre-Closing Period (including those outlined in Section 4.10(o)(iii) of the Company Disclosure Schedules).
“Specified Matters” means the matters described in item 4 of Section 8.2(a)(iv) of the Purchaser Disclosure Schedules.
“Straddle Period” means, with respect to the Transferred Entities, any taxable period beginning on or prior to and ending after the Closing Date.
“Subsidiary” means, with respect to any Person, any corporation, entity or other organization whether incorporated or unincorporated, of which (a) such first Person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of managers or directors or others performing similar functions or (b) such first Person is a general partner or managing member. For the avoidance of doubt, each of Economic Modeling, LLC, Economic Modeling UK Limited, Employee Benefits Specialists, Inc. and Textkernel B.V. shall be a “Subsidiary” of the Company for all purposes hereunder. Notwithstanding anything herein to the contrary, no Transferred Entity or New Entity shall be considered a Subsidiary of any Seller or any Affiliate of any Seller.
“Tax” means (a) any tax of any kind, including any federal, state and local income, profits, branch, license, severance, occupation, windfall profits, capital gains, capital stock, transfer, registration, social security (or similar), production, franchise, gross receipts, payroll, sales, employment, use, property, excise, value added, estimated, stamp, alternative or add-on minimum, environmental, withholding and any other tax or similar assessment imposed by a Governmental Entity, and (b) any interest, penalties and additional amounts imposed with respect to the foregoing, whether disputed or not.
“Tax Benefit” means the Tax effect of any Tax Item which decreases Taxes paid or payable. For the purposes of determining the amount and timing of the Tax effect of any Tax Item, such Tax effect shall be determined based on a “with or without” calculation with respect to the applicable Tax Item, and any dispute with respect to such calculation shall be referred to the Accounting Referee, who shall resolve such dispute in accordance with such procedures and on the basis of such information as the Accounting Referee deems proper and whose determination shall be conclusive.
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“Tax Claim” means any claim with respect to Taxes made by any Taxing Authority that, if pursued successfully, would reasonably be expected to serve as the basis for a claim for indemnification under Article IX.
“Taxing Authority” means any Governmental Entity having jurisdiction over the assessment, determination, collection or other imposition of any Tax.
“Tax Item” means any item of income, gain, loss, deduction, credit, recapture or credit or any other item which increases or decreases Taxes paid or payable.
“Tax Return” means all returns, declarations, reports, statements, estimates, claims for refunds, information statements and other forms and documents (including all schedules, exhibits and other attachments thereto), and any amendments to any of the foregoing, filed or required to be filed with any Taxing Authority in connection with the calculation, determination, assessment or collection of any Taxes.
“to the knowledge of the Company” and phrases of similar import means the actual knowledge of the individuals identified in Section 1.1(e) of the Company Disclosure Schedule and the knowledge such persons would reasonably be expected to obtain if such person had made reasonable due inquiry of his direct reports.
“to the knowledge of Purchaser” and phrases of similar import means the actual knowledge of the individuals identified in Section 1.1(f) of the Purchaser Disclosure Schedule.
“to the knowledge of such Seller” and phrases of similar import means the actual knowledge of the individuals identified below the names of the applicable Seller in Section 1.1(g) of the Company Disclosure Schedule.
“Total Seller Payment” means the sum of (a) the Distribution Amount, plus (b) the Aggregate Common Equity Price, plus (c) the Preferred Unit Price, plus (d) the Class B Common Prorated Valuation.
“Transaction Documents” means, collectively, this Agreement, the Confidentiality Agreement, each Guaranty, each Equity Commitment Letter, the Debt Commitment Letter, the Operating Agreement, the Voting Agreement, the Registration Rights Agreement, and any other agreement or document contemplated thereby or any document or instrument delivered in connection herewith or therewith.
“Transferred Entities” means, collectively, the Company and its Subsidiaries, as of immediately prior to the Closing.
“Trapped Cash” means any cash or cash equivalent of the of the Transferred Entities which (a) is classified as restricted cash in accordance with GAAP on a balance sheet of the Transferred Entities, (b) is held as a deposit or advance toward purchases including, for the avoidance of doubt, advance billings (in each case of this clause (b) to the extent there is no corresponding current liability included as part of Working Capital), (c) would be subject to taxes if repatriated from a foreign jurisdiction, (d) is held by any of the Non-Wholly Owned Subsidiaries and, pursuant to applicable Law or Contract as in effect as of immediately prior to
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the Closing, cannot be distributed or dividended out of such Subsidiary without the consent of one or more third-party equity owners of such Non-Wholly Owned Subsidiary, (e) is held by any other Non-Wholly Owned Subsidiaries, in an amount equal to the product of (A) the amount of such cash and cash equivalents multiplied by (B) the ownership percentage of such Non-Wholly Owned Subsidiary held by third persons (i.e., persons who are not Transferred Entities), (f) is held in a custody account or is otherwise custodial cash, (g) is a cash equivalent and has a maturity greater than 90 days (i.e., cannot be converted to cash within 90 days), and (h) any other cash that cannot be transferred by the Company or any other Transferred Entity in immediately available funds within 5 Business Days following the Closing (excluding cash which may be subject to being held in deposit less than 90 days). Notwithstanding the foregoing or anything else in this Agreement to the contrary, “Trapped Cash” shall not include (but “Cash” shall include) Benefits Cash.
“Voting Agreement” means a voting agreement to be entered into among the Purchaser, the Sellers (other than Cape Publications, Inc.) and any other holders of Class B Common Units party thereto reflecting the voting, nomination, election and removal terms contemplated by Section 9 of the limited liability company agreement set forth in Exhibit C hereto, and customary representations and warranties (power and authority, enforceability, etc.) and customary miscellaneous provisions that are consistent with such limited liability company agreement.
“Willful Breach” means a material breach, or a material failure to perform, in each case that is the consequence of an act or omission by a party with the actual knowledge that the taking of such act or failure to take such act would cause a breach of this Agreement.
“Working Capital” has the meaning set forth in Exhibit A hereto.
Section 1.2 Other Definitions. The following terms shall have the meanings defined on the page number indicated: |
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280G Shareholder Vote | 68 |
280G Waiver | 68 |
Accounting Referee | 29 |
Aggregate Common Equity Price | 26 |
Agreement | 1 |
Antitrust Laws | 58 |
ASSF | 1 |
Bankruptcy and Equity Exception | 32 |
Base Amount | 66 |
Business Employee | 66 |
Cash Equity | 35 |
Closing | 22 |
Closing Date | 26 |
Closing Statement | 28 |
Combined Tax Return | 93 |
Commitment Letters | 35 |
Company | 1 |
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Company Disclosure Schedule | 32 |
Company Indemnified Parties | 85 |
Company Releasor Parties | 91 |
Company Releasor Party | 91 |
Company Software | 51 |
Company Systems | 52 |
Controlling Party | 95 |
D&O Indemnitees | 65 |
De Minimis Threshold | 89 |
Debt Commitment Letter | 35 |
Debt Financing | 35 |
Debt Financing Sources | 73 |
Deductible | 89 |
Definitive Agreements | 71 |
Delayed Payment | 28 |
Dispute Notice | 29 |
Distribution | 22 |
DOJ | 57 |
Employee Retention Allocation | 69 |
Equity Commitment Letters | 35 |
Equity Investors | 35 |
ERISA Affiliate | 44 |
ERP | 66 |
Estimated Aggregate Common Equity Price | 26 |
Estimated Closing Date Cash | 25 |
Estimated Closing Date Indebtedness | 25 |
Estimated Closing Date Working Capital | 25 |
Estimated Net Capital Expenditures Amount | 25 |
Estimated Seller Transaction Expenses | 25 |
Export Control Laws | 42 |
Financial Statements | 40 |
Financing | 35 |
Foreign Benefit Plan | 45 |
FTC | 57 |
Guarantors | 1 |
Guaranty | 1 |
Hazardous Materials | 49 |
HIPAA | 52 |
Indemnified Parties | 86 |
Initial Contribution | 23 |
Interests | 1 |
Interim Financial Statements | 41 |
Labor Agreement | 46 |
Leased Real Property | 54 |
Lenders | 35 |
Material IP | 50 |
Negotiation Period | 29 |
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New Plans | 67 |
Non-controlling Party | 95 |
Open Source License Terms | 51 |
Operating Agreement | 23 |
OTPP | 1 |
Outside Date | 82 |
Owned Real Property | 53 |
Parent | 23 |
Parent Acquisition | 23 |
Parent Holdings | 23 |
Parties | 1 |
Party | 1 |
Positive Adjustment | 28 |
Preferred Exchange | 24 |
Prohibited Party | 43 |
Purchased Common Units | 24 |
Purchaser | 1 |
Purchaser Disclosure Schedule | 34 |
Purchaser Indemnified Parties | 85 |
Purchaser Pre-Closing Statement | 25 |
Purchaser Pre-Closing Update Statement | 25 |
Purchaser Released Parties | 91 |
Purchaser Released Party | 91 |
Registered IP | 50 |
Related Software | 51 |
Release | 49 |
Representatives | 63 |
Required Payment Amount | 36 |
Restricted Business | 69 |
Sale | 24 |
Sanctions | 42 |
Sanctions Laws | 42 |
Second Contribution | 23 |
Second Quarter Financial Statements | 79 |
Seller | 1 |
Seller Indemnified Parties | 86 |
Seller Indemnitees | 85 |
Seller Pre-Closing Statement | 25 |
Seller Proportions | 23 |
Seller Releasor Parties | 91 |
Seller Releasor Party | 91 |
Sellers | 1 |
Specified Termination | 83 |
Tax Proceeding | 95 |
Terminated Contracts | 77 |
Third Contribution | 23 |
Third Party Claim | 86 |
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Transaction Tax Treatment | 32 |
Transfer Taxes | 96 |
Unpaid Retention Amount | 69 |
WARN | 46 |
WLRK | 103 |
Work | 51 |
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(a) Debt Financing. Subject to the Transferred Entities’ compliance with the covenant set forth in Section 5.13(e), Purchaser shall cause the proceeds of the Debt Financing in an amount equal to $350 million (less an amount up to the Bank Fee Amount) to be disbursed to the Company by wire transfer of immediately available funds to the bank accounts specified by the Company in writing at least three (3) Business Days prior to the Closing Date. To the extent fees, costs and expenses contemplated by the Bank Fee Amount are not so netted against and paid out of the proceeds of such Debt Financing, the Company shall pay any such remaining fees, costs and expenses out of such net proceeds. |
(b) Distributions. The Company shall declare and, following the funding of the Debt Financing as contemplated by the Debt Commitment Letter, pay cash distributions in an aggregate amount equal to the Distribution Amount to the Sellers (the “Distribution”), with each Seller (or any of such Seller’s designee(s)) being entitled to receive an amount in cash equal to such Seller’s proportion (determined in accordance with the Seller Proportions) of the Distribution Amount by wire transfer of immediately available funds to the bank accounts specified by such Seller in writing at least three (3) Business Days prior to the Closing Date. For the avoidance of doubt, (i) the payment of the Distribution Amount shall be expressly conditioned on the funding of the Debt Financing in accordance with Section 2.1(a) and (ii) the |
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Sellers’ obligations under this Section 2.1 shall be conditioned on their receipt of the Distribution Amount. |
(i) Immediately following the Initial Contribution, the Sellers shall cause Parent to form a member managed Delaware limited liability company, to be called “Camaro Holdings, LLC” (or another name selected by Sellers with the consent of the Purchaser, which consent shall not be unreasonably withheld) (“Parent Holdings”), by filing with the Secretary of State of the State of Delaware a certificate of formation in the form attached hereto as Exhibit D, and shall cause Parent to enter into a limited liability company agreement with Parent Holdings in the form attached hereto as Exhibit E, and immediately thereafter, Sellers shall cause Parent to transfer, contribute, assign and deliver to Parent Holdings all of Parent’s rights, title and interest in and to the Interests, as a contribution to capital (the “Second Contribution”). Upon the Second Contribution, Parent shall be admitted as the sole member of Parent Holdings. In exchange for the Second Contribution, Parent Holdings shall issue to Parent 100% of its membership interests. |
(ii) Immediately following the Second Contribution, the Sellers shall cause Parent to cause Parent Holdings to form a member managed Delaware limited liability company, to be called “Camaro Acquisition, LLC” (or another name selected by Sellers with the consent of the Purchaser, which consent shall not be unreasonably withheld) (“Parent Acquisition”), by filing with the Secretary of State of the State of Delaware a certificate of formation in the form attached hereto as Exhibit F, and shall cause Parent to cause Parent Holdings to enter into a limited liability company agreement with Parent Acquisition in the form attached hereto as Exhibit G, and immediately thereafter, Sellers shall cause Parent to cause Parent Holdings to transfer, contribute, assign and deliver to Parent Acquisition all of Parent Holdings’ rights, title and interest in and to the Interests, as a contribution to capital (the |
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“Third Contribution”). Upon the Third Contribution, Parent Holdings shall be admitted as the sole member of Parent Acquisition. In exchange for the Third Contribution, Parent Acquisition shall issue to Parent Holdings 100% of its membership interests. |
(iii) Subject to Section 2.1(h), immediately following the Third Contribution, each Seller shall transfer, convey, assign and deliver to Purchaser , and Purchaser shall purchase and acquire from such Seller, its respective rights, title and interests in and to its respective Seller Proportion of a total number of Common Units of each class equal to the sum of (A) the Preferred Unit Number, plus (B) the quotient obtained by dividing (1) the product of the Initial Purchase Percentage multiplied by the Equity Value, by (2) $10 (such Common Units, the “Purchased Common Units”). As consideration for the Purchased Common Units, Purchaser shall pay to each Seller (or any respective designee(s) designated by such Seller) such Seller’s proportion (as determined in accordance with the Seller Proportions) of the sum of (x) the Preferred Unit Price, (y) the Estimated Aggregate Common Equity Price, and (z) the Class B Common Prorated Valuation. Notwithstanding the foregoing, the Parties agree that the Cape Publications, Inc. shall sell to Purchaser all of its Common Units and the number of Common Units that Purchaser will acquire from TEGNA Inc. shall be reduced by the additional number of Common Units that Cape Publications, Inc. will sell to Purchaser as a result of this sentence, and the payments required therefor shall be similarly adjusted. Thereafter, any payments required by this Agreement to be made to Cape Publications, Inc. shall be made to TEGNA Inc. Upon receipt of the payment described in this Section 2.1(f), Sellers shall cause Parent to admit Purchaser as a member of Parent, with rights and obligations set forth in the Operating Agreement, and Cape Publications, Inc. shall cease to be a member of Parent. The Distribution, the Initial Contribution and the sale and purchase (including payment therefor) of the Purchased Common Units pursuant to this Agreement is referred to herein as the “Sale”. |
(f) Preferred Exchange. Immediately following the Sale, Purchaser shall (and/or shall cause its designee to) transfer, convey, assign and deliver to Parent five million Class A Common Units and five million Class B Common units, in exchange for five million Series A Convertible Preferred Units (which shall represent 100% of the outstanding Series A Convertible Preferred Units) and five million Series B Convertible Preferred Units (which shall represent 100% of the outstanding Series B Convertible Preferred Units) (together, the “Preferred Exchange”). |
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Preferred Units issued, issuable, transferred or transferrable to Purchaser hereunder and set forth in the Issuance Notice shall instead be issued or transferred to the Initial Class B Designee (as defined in the Operating Agreement) or another Person identified in the Issuance Notice, in each case, for nominal consideration paid by such Person (which shall not reduce the aggregate consideration payable pursuant to Section 2.1(e)(iii)), so long as such Person duly executes a copy of the Operating Agreement and is admitted as a member of Parent substantially concurrently with its receipt of such Class B Common Units and/or Series B Convertible Preferred Units. |
(i) For the purposes of this Section 2.1, all contributions, transfers and deliveries of equity interests contemplated by this Section 2.1 shall be made free and clear of any Liens, except as imposed by applicable securities Laws. |
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B Common Prorated Valuation. If the Purchaser fails to provide the notice contemplated by this Section 2.2(c), the amount of the Balance Sheet Cash Amount shall be deemed to be the amount set forth in the Purchaser Pre-Closing Statement. |
(f) For purposes of this Agreement the term “Aggregate Common Equity Price” means the Estimated Aggregate Common Equity Price, as it may be adjusted and finally determined pursuant to the provisions of Section 2.4. |
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such other place, time or date as may be mutually agreed upon in writing by the Sellers and Purchaser (the date on which the Closing actually occurs, the “Closing Date”). |
(b) Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, in addition to the actions specified in Section 2.1: |
(C) deliver to Parent interest powers, other instruments of transfer duly executed in blank, or such other instruments or documentation reasonably evidencing the assignment such Seller’s percentage of Interests set forth opposite such Seller’s name on Schedule I; |
(D) cause the delivery to Purchaser of an amended and restated limited liability company agreement of the Company in the form attached hereto as Exhibit H executed by Parent Acquisition, which shall only be effective upon the consummation of the Closing; |
(E) cause the delivery to Purchaser of the applicable certificate required to be delivered pursuant to Section 6.2(e). |
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(C) deliver to the Sellers a copy of each of the Operating Agreement and the Voting Agreement, to the extent not previously executed and delivered by Purchaser, duly executed by Purchaser; |
(D) deliver to the Sellers a copy of the Registration Rights Agreement, duly executed by Purchaser; |
(E) deliver to Sellers the certificate required to be delivered pursuant to Section 6.3(c). |
(c) If the amount calculated pursuant to clause (B) of the first sentence of Section 2.2(e) is positive (any such positive amount, the “Positive Adjustment”), Purchaser may, subject to the terms of this Section 2.3(c), elect to delay until after the Closing the payment of a portion of the amount payable at Closing pursuant to Section 2.1(e)(iii) and Section 2.3(b)(ii)(A) by an amount up to the Positive Adjustment (such amount, the “Delayed Payment”) by delivering written notice of such election to the Company and Sellers no later than one (1) Business Day prior to the Closing. If the Purchaser so delivers such notice, the amount payable at the Closing pursuant to Section 2.1(e)(iii) and Section 2.3(b)(ii)(A) shall be reduced by the Delayed Payment and the Company or Parent shall, and Purchaser shall cause the Company or Parent to, promptly (but in any event within twenty (20) Business Days after the Closing), pay or cause to be paid to each Seller, an amount in cash equal to such Seller’s proportion (determined in accordance with the Seller Proportions) of the quotient equal to (x) the Delayed Payment divided by (y) the Initial Fully Diluted Purchase Percentage, without interest and rounded to the nearest cent, free of any costs, fees, set-off, deductions and withholding, by wire transfer of immediately available funds to the account or accounts designated in writing by such Seller. |
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Working Capital and Exhibit A hereto), and the Accounting Referee shall not be limited to determining whether either Party has presented sufficient evidence of its position on disputed items. The Accounting Referee shall deliver to the Sellers and Purchaser, as promptly as practicable (but in any case no later than thirty (30) days from the date of appointment of the Accounting Referee), a report setting forth the resolution of each disputed item of the Closing Statement submitted to it (determined in accordance with the provisions of this Section 2.4 and Exhibit A hereto) and its calculations of the Aggregate Common Equity Price (taking into account any agreed upon (or deemed agreed upon) items of the Closing Statement pursuant to this Section 2.4), which amounts shall not be less than the applicable amount thereof shown in Purchaser’s calculation delivered pursuant to Section 2.4(a) nor more than the amount thereof shown in the Sellers’ calculation delivered pursuant to Section 2.4(b)(i). Such report (and the calculation of the Aggregate Common Equity Price set forth therein) shall be final and binding upon the Parties for purposes of this Agreement and such Aggregate Common Equity Price shall be used for purposes of calculating the required payments pursuant to Section 2.4(c). Notwithstanding anything herein to the contrary, the dispute resolution mechanism contained in this Section 2.4(b) shall be the exclusive mechanism for resolving disputes regarding the Aggregate Common Equity Price adjustment, if any. Judgment may be entered upon the determination of the Accounting Referee in any court having jurisdiction over the Party (or Parties) against which such determination is to be enforced. The fees, costs and expenses of the Accounting Referee shall be borne by Sellers and Purchaser in proportion to the relative amount by which the determination by the Sellers, on the one hand, and by Purchaser, on the other hand, has been modified. If any such fees, costs and expenses are to be borne by Sellers, each Seller shall be severally, and not jointly, liable for such Seller’s proportion of such fees, costs and expenses in accordance with the Seller Proportions. For example and for illustrative purposes only, if the Sellers challenge the calculation of the Aggregate Common Equity Price by an amount of $100,000, but the Accounting Referee determines that the Sellers have a valid claim for only $60,000, Sellers shall bear, in the aggregate, forty percent (40%) of the fees and expenses of the Accounting Referee and Purchaser shall bear the other sixty percent (60%) of such fees and expenses. |
(c) Final Aggregate Common Equity Price Adjustment. Following the time that the Aggregate Common Equity Price is finally determined pursuant to this Section 2.4, payment shall be made as follows: |
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accordance with the Seller Proportions) of such excess, without interest and rounded to the nearest cent, free of any costs, fees, set-off, deductions and withholding, by wire transfer of immediately available funds to the account or accounts designated in writing by such Seller. |
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that amounts are so withheld, and paid to the proper Taxing Authority pursuant to any applicable Tax Law, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to such person in respect of which such deduction and withholding was made. |
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the execution of this Agreement (giving effect to Section 1.3(b)) (the “Purchaser Disclosure Schedule”), Purchaser hereby represents and warrants to Sellers as of the date of this Agreement and as of the Closing Date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date) as follows: |
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(i) As of the date of this Agreement, Purchaser has delivered to Sellers true, complete and correct copies of the executed Commitment Letters and any fee letters related thereto, subject to Sellers’ compliance with the confidentiality provisions of the Debt Commitment Letter and such fee letters. |
(i) Except as expressly set forth in the Commitment Letters and any related fee letters, there are no conditions precedent to the obligations of the Lenders and the Equity Investors to provide the Financing or any contingencies that would permit the Lenders or the Equity Investors to reduce the total amount of the Financing. As of the date of this Agreement, assuming the satisfaction of Purchaser’s obligation to consummate the Sale, Purchaser does not have any reason to believe that any of the conditions to the Financing will not be satisfied on a timely basis, nor does Purchaser have actual knowledge that any of the Lenders or the Equity Investors will not perform its obligations thereunder. As of the date of this Agreement, there are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Commitment Letters that could impair the enforceability of the Commitment Letters, impose new or additional conditions precedent to the Financing or affect the availability of the Financing contemplated by the Commitment Letters. |
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(i) In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing (or any alternative financing in accordance with Section 5.13)) be a condition to any of Purchaser’s obligations under this Agreement. |
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other Person has made, shall be deemed to have made or makes, and each of Purchaser and its Affiliates is not relying upon, any representation or warranty, express or implied, oral or written, at law or in equity, made by or on behalf of any such Person with respect to Sellers, the Transferred Entities, the New Entities or any matter relating to any of them, including their respective businesses, affairs, assets, liabilities, financial condition or results of operations, or with respect to the accuracy or completeness of any information provided or made available to Purchaser, its Affiliates or any of their respective representatives or any other Person. Without limiting the generality of the foregoing, Purchaser, on its own behalf and on behalf of each of its Affiliates, hereby acknowledges and agrees that none of Sellers, the Transferred Entities, the New Entities, their respective Affiliates, any representatives of any of the foregoing or any other Person has made, shall be deemed to have made, or makes any representation or warranty with respect to any projections, forecasts, plans, estimates, budgets or other information regarding future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows (or any component thereof) or future financial condition (or any component thereof) of the Transferred Entities, the New Entities or the future business, operations or affairs of the Transferred Entities and/or the New Entities. Purchaser, on its own behalf and on behalf of each of its Affiliates, hereby expressly disclaims any such representation or warranty described in this Section 3.2(j) notwithstanding the delivery or disclosure to Purchaser or any of its Affiliates or any of their respective representatives or any other Person of any documentation or other information by any Seller, any Transferred Entity, any New Entity, any of their respective Affiliates or any representatives of any of the foregoing or any other Person, and no such Person will have any liability to Purchaser, any of its Affiliates, any of their respective representatives, or any other Person resulting from or in connection with the use of any such information. |
Except as set forth in the corresponding sections of the Company Disclosure Schedule (giving effect to Section 1.3(b)), the Company represents and warrants to Purchaser as of the date of this Agreement and as of the Closing Date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date) as follows:
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The Company Disclosure Schedule sets forth a list of all of the Transferred Entities as of the date hereof. |
(d) No Dutch Subsidiary is a party, or has been a party since the Lookback Date, to a merger, split off or demerger within the meaning of Title 7 of Book 2 of the Dutch Civil Code or any other Laws. |
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(d) No Transferred Entity has any other outstanding contractual obligations that provide for registration rights with respect to equity interests in the Company or any Subsidiary of the Company. |
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(a) Since December 31, 2016 until the date hereof, the business of the Transferred Entities has been conducted in the ordinary course in all material respects. |
(b) Since December 31, 2016, there have not occurred any events, changes or developments which have had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. |
(c) Since December 31, 2016 until the date hereof, neither the Company nor any of its Subsidiaries has taken or authorized any action which, if taken or authorized on or after the date hereof, would require the consent of Purchaser pursuant to Sections 5.4(a)(ii), (e), (f), (g), (h), (i), (k), (l) or (n). |
(b) No Transferred Entity or its respective businesses, properties or assets is subject to any material Order. |
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importation of goods, including Laws administered by the U.S. Customs and Border Protection, Title 19 of the United States Code and Code of Federal Regulations, and any other equivalent or comparable Laws of other countries (collectively, “International Trade Control Laws” ) that are applicable to the business of the Transferred Entities. |
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Code, or any similar Law (including U.S. state and foreign group health plan continuation Laws), the cost of which (excluding administrative costs) is fully paid by such current or former employees or individual service providers or their dependents. |
(i) No Benefit Plan is or is intended to be a “registered pension plan”, “deferred profit sharing plan”, or “retirement compensation arrangement”, as each such term is defined in the Income Tax Act (Canada). |
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(j) No insurance policy or any other agreement affecting any Benefit Plan requires or permits a retroactive increase in contributions, premiums or other payments due under such insurance policy or agreement. The level of insurance reserves under each insured Benefit Plan is reasonable and sufficient to provide for all incurred but unreported claims. |
(k) No amendments have been made to any Foreign Benefit Plan by a Dutch Subsidiary without consent of the relevant works council, employees, former employees or trade unions (in each case to the extent required). |
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(a) To the extent required by applicable Law or by any Contract to which any of the Transferred Entities is a party (i) prior to the execution of this Agreement, the Transferred Entities have complied in all material respects with any applicable obligation to inform and consult with their employee representative bodies on the sale of the Interests in accordance with applicable Law, and (ii) prior to Closing, the Transferred Entities will have complied in all material respects with any applicable obligation to inform and consult with their employee representative bodies on the sale of the Interests in accordance with applicable Law. |
(e) The Transferred Entities have withheld and paid all material Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, shareholder or other third party. All such withholdings and payments have been properly reported to, and all relevant forms and documents have been properly filed with, Taxing Authorities in accordance with applicable Law in all material respects. |
(g) None of the Transferred Entities has participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4. |
(h) The Company is, and at Closing will be, and has at all times been and at all times until immediately prior to the Closing will be, properly classified as a partnership for U.S. federal income tax purposes. |
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(i) Other than any agreement that will be terminated pursuant to Section 9.10, none of the Transferred Entities is a party to, or otherwise bound by, any Tax indemnity, Tax sharing or tax allocation agreement. |
(j) No extensions or waivers of statutes of limitations have been given or requested in the last six (6) years with respect to Taxes of any of the Transferred Entities. |
(p) None of the Transferred Entities that is organized under non-U.S. Law has ever had income, gain, or loss that is treated as effectively connected with the conduct of a trade or business within the United States under Section 864(c) of the Code. |
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contractors of the Transferred Entities who had a need to know and use such Material IP and who have executed appropriate agreements prohibiting the unauthorized use or disclosure of such Material IP or are otherwise subject to obligations of confidentiality with respect to such Material IP. |
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Transferred Entities in the conduct of their businesses (“Company Systems”) are sufficient in all material respects for the conduct of their businesses as conducted as of the date hereof. |
(j) The Transferred Entities are, and since the Lookback Date have been, in compliance in all material respects with all U.S., non-U.S., international, European, local and cross-border data transfer, processing, privacy and data security Laws, regulations, and with PCI DSS, including laws regarding transparency. Since the Lookback Date, the Transferred Entities have complied in all material respects with their published privacy policies and internal privacy and data security policies, and related contractual obligations with respect to the collection, acquisition, storage, transmission, transfer (including cross-border transfers), disclosure and use of Personal Information or Protected Health Information. |
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HIPAA. The Transferred Entities are in compliance in all material respects with all Business Associate Agreements under which Transferred Entities serves as a Business Associate (as defined in HIPAA). |
(i) the Company has not leased or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof;
(ii)other than the right of Purchaser pursuant to this Agreement, there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion thereof or interest therein; and
(iii)there are no pending, or to the knowledge of the Company, any threatened, condemnation proceedings relating to the Owned Real Property or the Leased Real Property or other matters adversely affecting the current use, occupancy or value thereof.
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(a) The Transferred Entities own, hold or are entitled to access policies of insurance, in such amounts and against such risks customarily insured against by companies in |
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(b) Section 4.18(b) of the Company Disclosure Schedule sets forth the last aggregate annual premium paid by the Company prior to the date hereof for the directors’ and officers’ liability coverage of the Transferred Entities’ existing managers, directors’ and officers’ insurance policies, and the Transferred Entities’ existing fiduciary liability insurance policies. |
(c) Since the Lookback Date, the Transferred Entities have not failed to give any notice or present any claims under any applicable insurance policy in a due and timely fashion to the appropriate insurance company. |
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any of its Affiliates to, for a period of seven (7) years following the Closing Date (or such longer time as may be required by Law), destroy, alter or otherwise dispose of any of the books and records of the Transferred Entities for any period prior to the Closing Date without first giving reasonable prior written notice to Sellers and offering to surrender to Sellers such books and records or any portion thereof that Purchaser or any of its Affiliates may intend to destroy, alter or dispose of. In the event of any conflict between this Section 5.1 and Section 9.4, Section 9.4 shall control. |
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directors or managers of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Sellers, as the case may be) or its legal counsel. |
(e) Notwithstanding anything to the contrary herein or otherwise, none of the Sellers, the Transferred Entities or their respective Representatives or Affiliates shall (i) propose, negotiate, offer or commit to making or effecting any divestitures, dispositions, or licenses of any assets, properties, products, rights, services or businesses of Purchaser, Apollo Global Management LLC, any of its affiliated investment funds or portfolio companies, any Transferred Entity or any of their respective Affiliates, or (ii) agree to any other remedy, requirement, obligation, condition or restriction related to the conduct of Purchaser’s, Apollo Global Management LLC’s, any of its affiliated investment funds’ or portfolio companies’, any Transferred Entity’s or any of their respective Affiliates’ businesses, in each case in order to resolve any Governmental Entity’s objections to or concerns about the transactions contemplated by this Agreement. |
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(h) Without limiting Purchaser’s obligations pursuant to this Section 5.2, (i) Purchaser shall determine strategy and timing, lead all proceedings and coordinate all activities with respect to seeking any actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers of any Governmental Entity as contemplated hereby, and (ii) the Company shall, and shall cause each of its Subsidiaries to, to take such actions as reasonably requested by Purchaser in connection with obtaining any such actions, non-actions, terminations or expirations of waiting periods, consents, approvals or waivers, so long as any such action is binding only in the event that the Closing occurs. |
. During the period from the date of this Agreement until the earlier of the Closing Date and the valid termination of this Agreement, except as expressly required or contemplated by this Agreement or applicable Law, as consented to in writing by Purchaser or as set forth in Section 5.4 of the Company Disclosure Schedule, the Company shall, and shall cause the other Transferred Entities to, (i) use commercially reasonable efforts to conduct its business in the ordinary course of business consistent with past practice in all material respects, including to maintain its ongoing Capital Expenditures program in all material respects and (ii) use commercially reasonable efforts to preserve intact in all material respects its business and existing personal properties in the ordinary course of business consistent with past practice and to maintain its existing relationships and goodwill with Governmental Entities, customers, suppliers, vendors, creditors, employees, business partners,
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prospects and agents; provided that no action by any Transferred Entity with respect to matters addressed by any of the following provisions of this Section 5.4 shall be deemed a breach of this sentence unless such action would constitute a breach of one or more of such provisions, and provided, further that the foregoing notwithstanding, the Company and the other Transferred Entities may use cash or cash equivalents to make or pay distributions or dividends on or prior to the Closing. Without limiting the foregoing, during the period from the date of this Agreement until the earlier of the Closing Date and the valid termination of this Agreement, except as contemplated or permitted by this Agreement, as may be required by applicable Law, as consented to in writing by Purchaser (such consent not to be unreasonably withheld, conditioned or delayed in the case of Sections 5.4(d), (i), (j), (k), (l), (m) and (o) and (p) (as it relates to the foregoing clauses) only below) or as set forth in Section 5.4 of the Company Disclosure Schedule, the Company shall not, and shall cause the other Transferred Entities not to:
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(h) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganizational document with respect any Transferred Entity; |
(k) conduct a reduction in force or other mass termination that would implicate the notice obligations or liability provisions of WARN or any similar applicable Law; |
(m) other than as permitted by any clause of this Section 5.4 or in the ordinary course of business, enter into any Contract that would be a Material Contract if in effect on the date hereof or amend, waive or modify in any material respect any such Contract or any Material Contract (or waive or assign any material right thereunder) or renew, assign or |
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voluntarily terminate any such Contract or any Material Contract, other than any termination or renewal in accordance with the terms of any existing Material Contract that occurs automatically without any action (other than notice of renewal) by any Transferred Entity; |
(o) fail to use commercially reasonable efforts to maintain in full force and effect in all material respects, or fail to use commercially reasonable efforts to replace, extend or renew, material insurance policies of the Transferred Entities existing as of the date hereof; |
During the period from the date of this Agreement until the earlier of the Closing Date and the valid termination of this Agreement, except as expressly required or contemplated by this Agreement or applicable Law, the Sellers shall not fail to use commercially reasonable efforts to maintain in full force and effect in all material respects, or fail to use commercially reasonable efforts to replace, extend or renew, any of their material insurance policies existing as of the date hereof, which policies provide material insurance coverage to the Transferred Entities.
(i) initiate, solicit or knowingly encourage the submission to any Transferred Entity, any Seller or any of their respective Affiliates or Representatives of any proposal or offer that constitutes or would reasonably be expected to lead to any Acquisition Transaction; |
(ii) enter into, engage in, continue or otherwise participate in any discussions or negotiations with a third party in connection with any Acquisition Transaction, or provide any non-public information or data concerning the Transferred Entities to any third party (other than Purchaser or its representatives) that would reasonably be expected to make a proposal regarding an Acquisition Transaction (including to afford any access to the personnel, offices, facilities, properties or books and records of the Transferred Entities) or otherwise knowingly facilitate or encourage any effort or attempt by any such third party to make, finance or implement any Acquisition Transaction; or |
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(iii) approve or recommend, or enter into any agreement, agreement in principle, understanding, term sheet, letter of intent, purchase agreement, option or similar instrument or arrangement relating to any Acquisition Transaction. |
(a) Notwithstanding anything in this Section 5.5 to the contrary, the Sellers, the Transferred Entities and their respective Affiliates and Representatives shall be permitted to (i) discuss or approve or enter into any agreements or arrangements amongst themselves or with their respective Representatives, and (ii) respond to any unsolicited inquiries (or inquiries that were solicited prior to the date hereof) regarding any Acquisition Transaction to inform such parties that the Transferred Entities are not engaging in discussions at the present time. |
(a) The Company shall promptly (and in any event within three (3) Business Days hereof) deliver a written notice to each such Person to the effect that the Company is ending all such solicitations, communications, activities, discussions or negotiations with such Person, effective on the date hereof, which written notice shall also request that each Person promptly return or destroy all non-public information previously furnished to such Person or any of its representatives by or on behalf of the Company or any of its Subsidiaries. Without limiting the foregoing, it is agreed that any violation or breach of the restrictions or obligations set forth in this Section 5.5 by any Transferred Entity or by any of their respective Representatives shall be deemed to be a breach of Section 5.5 by the Company. |
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Order, court process or the rules and regulations of any national securities exchange or national securities quotation system, in which case the Party required to publish such press release or public announcement or make such other communication shall use commercially reasonable efforts to provide the other Parties a reasonable opportunity to review and comment on such press release or public announcement of such publication or such other communication in advance of the time it is made, and the Party issuing such press release or public announcement shall consider any comments in good faith. Notwithstanding the foregoing, this Section 5.7 shall not (i) apply to any press release or other public statement (a) that contains information that has been previously announced or made public in accordance with the terms of this Agreement or (b) is made in the ordinary course of business and does not relate specifically to the signing of this Agreement or the Transactions, or (ii) prohibit Purchaser, Apollo Global Management, LLC or their respective Affiliates from providing ordinary course communications regarding this Agreement and the Transactions to existing or prospective general and limited partners, equity holders, members, managers and investors of any Affiliates of such Person who are subject to customary confidentiality restrictions prohibiting further communications thereof. |
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consummation of the transactions contemplated hereby and continue in full force and effect and be honored by the Transferred Entities. |
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shall be terminated for all purposes other than the payment of any accrued but unpaid obligations thereunder. All accrued but unpaid obligations under the LTIP and ELTIP shall be paid by the Company to the participants as soon as administratively practicable following the termination of the LTIP and ELTIP, but in no event later than 30 days following the termination of the LTIP and ELTIP pursuant to this Section 5.9(e). Any and all marketable securities held by or for the benefit of the Company or its Subsidiaries in respect of LTIP and/or ELTIP obligations shall be liquidated by the Company following the Closing in a prudent and commercially reasonable manner, but in no event shall such liquidation occur later than the first anniversary of the Closing Date. To the extent that the proceeds realized from the sale of all such marketable securities (i) exceed the amounts paid or payable under the LTIP and ELTIP pursuant to this Section 5.9(e), the amount of such excess proceeds shall be paid by the Company to the Sellers (in accordance with their respective Seller Proportions), or (ii) are less than the amounts paid or payable under the LTIP and ELTIP pursuant to this Section 5.9(e), the amount of such shortfall shall be paid by the Sellers (in accordance with their respective Seller Proportions) to the Company, in each case, within 30 days of the complete liquidation of such marketable securities. |
(f) Before the Closing Date, the Company shall (to the extent the requisite waivers described below are obtained) seek, or cause to be sought, the approval by such number of stockholders of the Transferred Entities as is required by the terms of Section 280G(b)(5)(B) of the Code so as to render the parachute payment provisions of Section 280G of the Code inapplicable to any and all accelerated vesting, payments, benefits, options and/or stock provided pursuant to agreements, contracts or arrangements in existence as of the Closing Date (and excluding any such agreements, contracts or arrangements that might be entered into by Purchaser or its Affiliates (including the Transferred Entities following the Closing) without the Sellers’ consent) that might otherwise result from the consummation of the transactions contemplated by this Agreement, separately or in the aggregate, in the payment of any amount and/or the provision of any benefit that would not be deductible by reason of Section 280G of the Code, with such shareholder vote to be obtained in a manner that satisfies all applicable requirements of applicable state Law and of Section 280G(b)(5)(B) of the Code and the Treasury Regulations promulgated thereunder (the “280G Shareholder Vote”). In connection therewith, the Company shall take, or shall cause to be taken, commercially reasonable efforts to obtain and deliver to the Company (with a copy to Purchaser), prior to the initiation of the 280G Shareholder Vote, a parachute payment waiver agreement (a “280G Waiver”) from each person who is a “disqualified individual” (within the meaning of Section 280G(c) of the Code and the Treasury Regulations promulgated thereunder), as determined immediately prior to the 280G Shareholder Vote, and who might otherwise have, receive or have the right or entitlement to receive any payments or benefits from the consummation of the transactions contemplated by this Agreement that would be subject to treatment as parachute payments within the meaning of Section 280G of the Code. Copies of all materials produced by the Company in connection with the 280G Shareholder Vote shall be provided to Purchaser at least five Business Days in advance for Purchaser’s review and comment, which comment and any requested changes the Company shall consider in good faith and not unreasonably omit. Notwithstanding the foregoing, to the extent the Company fails to obtain an affirmative 280G Shareholder Vote or any disqualified individual (within the meaning of Section 280G(c) of the Code and the Treasury Regulations promulgated thereunder) fails to deliver a 280G Waiver, then the resulting amount of any lost deductions for the Transferred Entities and the |
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cost of any related tax gross up payment (in each case, excluding any lost deduction or tax gross up payment attributable to agreements, contracts or arrangements that are entered into by Purchaser or its Affiliates (including the Transferred Entities following the Closing) without the Sellers’ consent) as a result of any such failures shall be included in Seller Transaction Expenses. |
(g) In the event that any portion of the Employee Retention Awards is not paid, or becomes (by its terms as of immediately prior to the Closing) not payable, to the applicable recipient (the “Unpaid Retention Amount”), the Company shall pay to Sellers (in accordance with their respective Seller Proportions) an amount (the “Employee Retention Allocation”) equal to the portion of the Seller Transaction Expenses that was attributable to the Unpaid Retention Amount (including any portion of the Seller Transaction Expenses attributable to related payroll Tax obligations). Any portion of the Employee Retention Allocation payable to Sellers hereunder shall be paid within 60 days of Seller’s request for payment. |
.
(a) For purposes of this Agreement, “Restricted Business” means the business of providing online job applicant search and screening services and related human capital management software. |
(i) engage in the Restricted Business; |
(c) Notwithstanding the foregoing, nothing herein shall preclude any Seller or any of its Affiliates from: |
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(ii) owning twenty percent (20%) or less of the outstanding securities of any Person who may be engaged in the Restricted Business; |
(iv) exercising its rights or performing or complying with its obligations under or in connection with this Agreement; |
(v) exercising its rights or performing or complying with its obligations under or in connection with the Operating Agreement or any organizational documents of any Subsidiary of Parent; |
(vi) engaging in the Restricted Business for the benefit of any of the Transferred Entities or any of the Subsidiaries of Parent; |
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. Purchaser and the Sellers shall, and shall cause their respective Affiliates and its and their respective representatives to hold and treat in confidence all
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documents and information concerning Transferred Entities in connection with the transactions contemplated by this Agreement in accordance with the Confidentiality Agreement, which Confidentiality Agreement shall be deemed terminated upon the Closing.
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obligations, and enforce its rights, under the Debt Commitment Letter in a timely and diligent manner; provided that notwithstanding the foregoing, nothing contained in this Section 5.13 shall require Purchaser to pay any fees or expenses required to be paid pursuant to the terms of the Debt Commitment Letter and any related fee letter on or after the Closing Date. Purchaser shall use commercially reasonable efforts, taking into account the Purchaser’s view of market conditions, to begin syndication of the Debt Financing as promptly as reasonably practicable after the Company has provided the Required Information and such Required Information is Compliant. |
(a) Purchaser shall not, without the prior written consent of the Sellers: (i) permit any amendment or modification to, or any waiver of any provision or remedy under, any of the Commitment Letters, if such amendment, modification, waiver or remedy (A) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing in a manner that would (or would reasonably be expected to) prevent, materially delay or materially impede the consummation of the Financing or the Closing, (B) reduces the total amount of the Financing, (C) adversely affects the ability of Purchaser to enforce its rights against other parties to the Commitment Letters as so amended, replaced, supplemented or otherwise modified, relative to the ability of Purchaser to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof or (D) could otherwise reasonably be expected to prevent or materially delay the consummation of the Sale and the other transactions contemplated by this Agreement; provided that, for the avoidance of doubt, Purchaser may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, documentation agents, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement if the addition of such parties, individually or in the aggregate, could not reasonably be expected to prevent, impede or delay the availability of the Financing or the consummation of the contemplated transactions; or (ii) terminate any Commitment Letter. Purchaser shall promptly deliver to Sellers copies of any such amendment, modification, waiver or replacement. |
(a) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor, Purchaser will (i) use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with Cash Equity and the available portion of the Debt Financing, to pay the Required Payment Amount) from the same or other sources with terms and conditions (including “flex” provisions) not materially less favorable to Purchaser and the Company (or their respective Affiliates) than the terms and conditions set forth in the Debt Commitment Letter and any related fee letter and which do not include any conditions to the consummation of such alternative debt financing that would (or would reasonably be expected to) have any result, event or consequence described in any of clauses (A) through (D) of Section 5.13(b)(i) and (ii) promptly notify Sellers of such unavailability and the reason therefor. For the purposes of this Agreement, the term (i) “Debt Commitment Letter” shall be deemed to include any commitment letter (or similar agreement) with respect to any alternative financing arranged in compliance herewith (and any Debt Commitment Letter remaining in effect at the time in question) and (ii) “Debt Financing” shall be deemed to include the financing contemplated by such commitment letter (or similar agreement). Purchaser shall provide Sellers with prompt written notice of any actual or threatened breach or default by any party to any Commitment Letter and the receipt of any written notice or other written communication from any Lender, Equity Investor, or other |
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financing source with respect to any actual or threatened breach, default, termination or repudiation by any party to any Commitment Letter of any provision thereof. At Sellers’ request, Purchaser shall keep Sellers reasonably informed on a current basis of the status of its efforts to consummate the Financing (or any alternative financing in accordance with this Section 5.13). The foregoing notwithstanding, compliance by Purchaser with this Section 5.13 shall not relieve Purchaser of its obligation to consummate the transactions contemplated by this Agreement whether or not the Financing (or any alternative financing in accordance with this Section 5.13) is available. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Section 5.13 shall require, and in no event shall the reasonable best efforts of Purchaser be deemed or construed to require, Purchaser or any Affiliate thereof to (i) seek Equity Financing from any other source other than the Equity Investors (or its assignees thereunder) counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letters or (ii) pay any material fees in excess of those contemplated by the Equity Commitment Letters or the Debt Commitment Letter (and any related fee letter). |
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Transferred Entities, (b) reasonable assistance in the preparation of pro forma financial statements by Purchaser and (c) reasonable assistance to and cooperation with Purchaser, including attending accounting due diligence sessions if requested by any Debt Financing Source; and (5) furnishing Purchaser with all other financial statements, financial data, audit reports and other information of the type and form customarily included in marketing documents used to syndicate credit facilities of the type to be included in the Debt Financing, in each case that is required to be delivered to the Debt Financing Sources or reasonably necessary to satisfy the conditions in Paragraph 5 of Exhibit C to the Debt Commitment Letter, in each case, assuming that the Debt Financing were consummated at the same time during the Company’s fiscal year as such Debt Financing will be consummated; provided, that in no event shall the Company or any of its Subsidiaries be required to provide any (i) pro forma financial statements or adjustments (including regarding any synergies, cost savings, ownership or other post-Closing adjustments) or projections, (ii) risk factors relating to all or any component of the Debt Financing (or any alternative financing in accordance with Section 5.13), (iii) separate financial statements in respect of any of the Company’s Subsidiaries, or (iv) other information required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, any Compensation, Discussion and Analysis required by Item 402(b) of Regulation S-K; (B) executing and delivering as of (but not before, except with respect to borrowing requests in connection with the initial borrowings under the Debt Financing) the Closing any pledge and security documents, other definitive financing documents, or other customary certificates or documents as may be reasonably requested by Purchaser (including a certificate of the chief financial officer of the Company with respect to solvency matters in the form set forth as Exhibit D to the Debt Commitment Letter) and otherwise facilitating the pledging of collateral, in each case to the extent required by the Debt Commitment Letter (including cooperation in connection with Purchaser’s efforts to obtain title insurance); (C) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Purchaser that are necessary to permit the consummation of the Debt Financing and to permit the proceeds thereof to be made available on the Closing Date to consummate the transactions contemplated by this Agreement; (D) providing all documentation and other information about the Sellers, the Transferred Entities and Parent Acquisition as has been reasonably requested by the Debt Financing Sources as they reasonably determine is required by applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, and (E) providing (i) audited consolidated balance sheets and related statements of operations, equity and cash flows of the Transferred Entities for the three most recently completed fiscal years ended at least 90 days prior to Closing Date and (ii) unaudited consolidated balance sheets and related statements of operations, equity and cash flows of the Transferred Entities for each subsequent fiscal quarter ended subsequent to the most recent fiscal year in respect of which financial statements have been delivered pursuant to clause (i) above and ended at least 45 days prior to Closing Date (but excluding the fourth quarter of any fiscal year), it being understood that the Company’s obligations set forth in this Section 5.13(d), including clauses (A) through (D) of this sentence, are only to use reasonable best efforts with respect to the matters covered thereby and shall be satisfied if the Company shall have used such reasonable best efforts whether or not any applicable deliverables or actions are actually obtained or provided or taken. The foregoing notwithstanding, neither Sellers, the Company nor any of their respective Affiliates shall be required to take or permit the taking of any action pursuant to this Section 5.13(d) that would: (i) require any of the Sellers and their respective Affiliates or any Persons who are directors or managers of the |
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Sellers, the Transferred Entities or any of their respective Affiliates to pass resolutions or consents to approve or authorize the execution of the Debt Financing (or any alternative financing in accordance with this Section 5.13) or execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement (other than (i) customary representation letters and authorization letters (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing) and (ii) borrowing requests with respect to the initial borrowings under the Debt Financing), in each case, that is not contingent upon the occurrence of the Closing or that would be effective prior to the Closing Date, (ii) cause any representation or warranty in this Agreement to be breached by any of the Sellers, the Transferred Entities or any of their respective Affiliates, (iii) require any of the Sellers, the Transferred Entities or any of their respective Affiliates (other than with respect to the Transferred Entities on the Closing Date) to pay any commitment or other similar fee in connection with the Financing (or any alternative financing in accordance with this Section 5.13), (iv) require the Sellers to incur any other expense, liability or obligation that is not reimbursed by Company in connection with the Financing (or any alternative financing in accordance with this Section 5.13) prior to the Closing Date in accordance with this Section 5.13(d), (v) cause any director, officer or employee or equityholder of any of the Sellers, the Transferred Entities or any of their respective Affiliates to incur any personal liability (as opposed to liability in his or her capacity as a director, officer or employee or equityholder of such Person), (vi) conflict with the organizational documents of any of the Transferred Entities or any of their respective Affiliates or any Laws, (vii) result (or would reasonably be expected to result) in a material violation or breach of, or a default (with or without notice, lapse of time, or both) under, (a) any material contract to which any of the Transferred Entities or any of their respective Affiliates is a party or (b) the restrictions on the incurrence of liens in (1) that certain Amended and Restated Competitive Advance and Revolving Credit Agreement, dated as of December 13, 2004 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof), among TEGNA Inc., as borrower, JPMorgan Chase Bank, N.A., as administrative agent, the lenders party thereto and the other parties party thereto, (2) that certain Tenth Supplemental Indenture, dated as of July 29, 2013, between TEGNA Inc. and U.S. Bank National Association, as trustee, (3) that certain Eleventh Supplemental Indenture, dated as of October 3, 2013, between TEGNA Inc. and U.S. Bank National Association, as trustee or (4) that certain Twelfth Supplemental Indenture, dated as of September 8, 2014, between TEGNA Inc. and U.S. Bank National Association, as trustee, or (viii) require the delivery of any legal opinions. Nothing contained in this Section 5.13(d) or otherwise shall require the Transferred Entities to be an issuer or other obligor with respect to the Debt Financing (or any alternative financing in accordance with this Section 5.13) prior to the Closing Date, and in no event shall any of the Sellers or any of their Affiliates (other than the Transferred Entities) be required to be an issuer or other obligor with respect to the Debt Financing (or any alternative financing in accordance with this Section 5.13) at any time whatsoever. If the Closing does not occur, Purchaser shall indemnify and hold harmless the Sellers, the Transferred Entities and their respective Affiliates and any representatives of any of the foregoing from and against any and all losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing (or any alternative financing in accordance with this Section 5.13), any action taken by them at the request of Purchaser pursuant to this Section 5.13(d) and any information used in connection therewith (other than historical information provided in writing by the Company |
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or any of its Subsidiaries specifically for use in connection therewith), in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of or material breach of this Agreement by the Sellers, the Company or any of its Subsidiaries and their Affiliates and any representatives of any of the foregoing (as determined by a final and non-appealable judgment of a court of competent jurisdiction). From and after the Closing, the Company shall indemnify and hold harmless the Sellers and their respective Affiliates and any representatives of any of the foregoing from and against any and all losses suffered or incurred by any of them in connection with the arrangement of the Debt Financing (or any alternative financing in accordance with this Section 5.13), any action taken by them at the request of Purchaser pursuant to this Section 5.13(d) and any information used in connection therewith (other than historical information provided in writing by the Sellers specifically for use in connection therewith), in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of or material breach of this Agreement by the Sellers, and their respective Affiliates and any representatives of any of the foregoing (as determined by a final and non-appealable judgment of a court of competent jurisdiction). The Company shall promptly reimburse the Sellers for their respective costs and expenses, if any, incurred in connection with this Section 5.13. |
(a) The Company hereby consents to the use of the logos of the Company solely in connection with the Debt Financing; provided that (i) such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or the Company’s reputation or goodwill and (ii) such logos are used in a manner consistent with the |
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Company’s usage requirements to the extent made available to Purchaser prior to the date of this Agreement. |
(a) The Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to periodically update any Required Information provided to Purchaser as may be necessary so that such Required Information (i) is Compliant, (ii) meets the applicable requirements set forth in the definition of “Required Information” and (iii) would not, after giving effect to such update(s), result in the Marketing Period to cease to be deemed to have commenced. For the avoidance of doubt, subject to the terms of this Section 5.13, Purchaser may, to most effectively access the financing markets, require the cooperation of the Company and its Subsidiaries under this Section 5.13 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing; provided that, for the avoidance of doubt, the Marketing Period shall not be applicable as to each attempt to access the markets. |
(a) For the avoidance of doubt, the Parties hereto acknowledge and agree that the provisions contained in Section 2.1(a) and this Section 5.13 represent the sole obligations of any of the Sellers, the Transferred Entities, their respective Affiliates and any representatives of any of the foregoing with respect to cooperation in connection with the arrangement of any financing (including any Debt Financing) to be obtained with respect to the transactions contemplated by this Agreement. |
(a) Prior to the Closing, the Company shall comply with the obligations set forth in Section 5.14(b) of the Company Disclosure Schedule. |
(a) Prior to Closing, the Sellers and the Transferred Entities shall promptly report all potential claims related to the business of the Transferred Entities that could reasonably be expected to be insurable under, and based on the reporting requirements of, the insurance policies set forth on Section 4.18(a) of the Company Disclosure Schedule to applicable carriers. |
(b) If there are insurance claims primarily related to the business of the Transferred Entities under any occurrence based insurance policies of any of the Sellers |
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covering events occurring prior to the Closing (each a “Pre-Closing Claim”) then, following the Closing, such Seller shall cooperate with the Company and use its commercially reasonable efforts to assist the Company, at the Company’s sole cost and expense, in obtaining amounts payable under such Pre-Closing Claims, and such Seller (or its designee) will promptly remit to the Company any and all amounts recovered, net of costs and expenses, after the Closing pursuant to such Seller’s insurance policies for any Pre-Closing Claim, only to the extent such Pre-Closing Claims exceed any retention or deductible set forth on Section 4.18(a) of the Company Disclosure Schedule, related to a claim made under the applicable occurrence policies and after reimbursement by the Company of the associated claims handling cost. The Purchaser and the Company shall, and shall cause the Transferred Entities to provide all assistance and information reasonably requested by any Seller in connection with processing of Pre-Closing Claims and providing information to its insurance underwriters. The Company shall promptly reimburse any Seller for its out-of-pocket costs and expenses (including the associated claims handling cost) incurred in providing the assistance described in this Section 5.16(b). For the avoidance of doubt, (i) nothing in this Agreement shall require any Seller or its Affiliates to extend or purchase any insurance policy following the Closing, and (ii) the Purchaser acknowledges and agrees that the Transferred Entities shall be responsible for any deductible, retention or similar amount under such policies for any Pre-Closing Claims. |
(c) If there are insurance claims primarily related to the business of the Transferred Entities under any claims-made insurance policies of any of the Sellers covering events occurring prior to the Closing for which claims were made by the applicable Seller or Transferred Entity (each a “Pending Claim”), then, following the Closing, such Seller shall cooperate with the Company and the Transferred Entities, and use its commercially reasonable efforts to assist the Company, at the Company’s sole cost and expense, in obtaining amounts payable in respect of such Pending Claims under the applicable policies, and such Seller (or its designee) will promptly remit to the Company any and all amounts recovered, net of costs and expenses, after the Closing pursuant to such Seller’s insurance policies for such Pending Claims, only to the extent such claims exceed any retention or deductible set forth on Section 4.18(a) of the Company Disclosure Schedule applicable thereto, and after reimbursement by the Company of the associated claims handling cost. The Purchaser and the Company shall, and shall cause the Transferred Entities to provide all assistance and information reasonably requested by any Seller in connection with processing of such Pending Claim and providing information to its insurance underwriters. The Company shall promptly reimburse any Seller for its out-of-pocket costs and expenses (including the associated claims handling cost) incurred in providing the assistance described in this Section 5.15(c). For the avoidance of doubt, the Purchaser acknowledges and agrees that the Transferred Entities shall be responsible for any deductible, retention or similar amount under such policies for any Pending Claim. |
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satisfied. The delivery of any such notice pursuant to this Section 5.16 shall not cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise limit or affect the remedies available hereunder. Notwithstanding anything herein to the contrary, any breach of, or failure to comply with, the provisions set forth in this Section 5.16 shall not be considered a breach of, or failure to comply with, a covenant or agreement for purposes of Article VI, Article VIII or Article IX. |
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(a) Regulatory Approvals. Any waiting period (and any extension thereof) applicable to the consummation of the Sale under the HSR Act shall have been terminated or shall have expired; and |
(d) Sufficient Benefits Cash. As of the 12:01 AM on the Closing Date, the amount of (i) Benefits Cash shall not be less than (ii) the Customer Obligations, in each case as of such time. |
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and agreements of the Company), and (B) the conditions specified in Section 6.2(c), and Section 6.2(d) have been satisfied. |
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Entities’ compliance with the covenant set forth in Section 5.13(e), by causing the net proceeds of the Debt Financing to be disbursed to the Company as provided in Section 2.1(a)) by the later of the date the Closing should have occurred pursuant to Section 2.3 and five days after Purchaser’s receipt of such notice. |
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warranties and covenants relating to Taxes and the obligations and the right to commence any claim with respect thereto under Article IX shall survive the Closing and remain in full force and effect until sixty (60) days following the expiration of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof), and (b) if notice in writing of a bona fide claim with respect to the inaccuracy or breach of any such representation or warranty or covenant or failure to comply with any such covenant providing with reasonable specificity the basis for the claim shall have been given in good faith to the Party against whom such indemnity may be sought prior to the expiration date of the applicable survival period, such representation or warranty or covenant in respect of which indemnity may be sought under this Agreement, and the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Section 8.1 solely with respect to the claims made in such written notice and claims reasonably related to the underlying facts until finally resolved. |
(iii) any breach of any covenant or agreement contained in this Agreement to be performed by the Company prior to Closing; or |
(iv) the matters set forth in Section 8.2(a)(iv) of the Purchaser Disclosure Schedule. |
(i) any breach of a Fundamental Representation by such Seller; |
(iii) any breach of any covenant or agreement contained in this Agreement to be performed by such Seller; or |
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(iv) Seller Transaction Expenses to the extent they were incurred prior to the Closing and were not considered in calculating the Equity Value or the Distribution Amount. |
provided that, notwithstanding anything in this Agreement to the contrary, any indemnifiable Losses incurred by the Company Indemnified Parties or the Purchaser Indemnified Parties to the extent resulting from the breach of any representation or warranty made by a Seller or from the breach of a covenant or agreement made by a Seller shall be indemnified solely by the breaching Seller in accordance with this Article VIII, and not by any other Seller; provided further, notwithstanding anything in this Agreement to the contrary, the foregoing indemnification with respect to the Purchaser Indemnified Parties is intended to indemnify the Purchaser Indemnified Parties only for Losses suffered or incurred by them directly and is not intended to indemnify the Purchaser Indemnified Parties with respect to Losses suffered by a Company Indemnified Party or that they may suffer or incur solely by virtue of their direct or indirect equity ownership in a Company Indemnified Party.
(c) any breach of any covenant or agreement contained in this Agreement to be performed by Purchaser or, after the Closing, the Company. |
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Third Party Claim within thirty (30) calendar days of receipt of notice of such Third Party Claim by the Indemnifying Party, with full authority to conduct such defense, through counsel reasonably acceptable to the Indemnified Party. The Indemnifying Party shall not be entitled to assume the defense of any Third Party Claim without the consent of the Indemnified Party if such Third Party Claim (x) seeks an injunction or other equitable or non-monetary relief against the Indemnified Party (other than non-monetary relief that is incidental to monetary damages as the primary relief sought) and not also against the Indemnifying Party, (y) is related to or otherwise arises in connection with any criminal matter, or (z) based on the facts then known, is reasonably expected to result in Losses in excess of two hundred percent (200%) of the maximum amount for which the Indemnifying Party could then be liable pursuant to this Article VIII, in which case the Indemnified Party shall allow the Indemnifying Party a reasonable opportunity to participate in such defense with its own counsel and at its own expense. Notwithstanding an election by the Indemnifying Party to assume the defense of any Third Party Claim, the Indemnified Party shall have the right to employ one separate co-counsel and to participate in the defense in such action or proceeding, and the Indemnifying Party shall bear the reasonable fees, costs and expenses of such separate counsel, if, based on advice from counsel, there exists any actual or potential conflict of interest between the Indemnified Party and the Indemnifying Party in connection with the defense of the Third Party Claim. |
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(i) Upon becoming aware of any development with respect to a Specified Matter, the Company, as Indemnified Party, shall promptly provide the Sellers with written notice of such development, describing in reasonable detail any updates or changes to the Company’s estimate of Losses for which indemnification is being sought (if ascertainable). The failure to provide such notice shall not result in a waiver of any right to indemnification hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. Upon request by an Indemnifying Party, the Company shall promptly provide copies to the Indemnifying Parties of all materials and documents sent or received by any of the Transferred Entities or Purchaser or their representatives to or from, and the Company shall promptly advise and inform the Indemnifying Parties of other communications to or from, any Governmental Entity concerning any Specified Matter. The Company shall, after reasonably consulting with the Indemnifying Party and considering the Indemnifying Party’s views in good faith, (A) retain control of the defense of any claim related to Specified Matters, including any commercially reasonable internal investigation, through counsel reasonably acceptable to the Sellers; provided that unless an actual conflict of interest arises, Akin Gump Strauss Hauer & Feld LLP and Ropes & Gray LLP shall be deemed acceptable to the Sellers, (B) retain control of any remedial actions related to a Specified Matter contemplated by Item 4(b) of Section 8.2(a)(iv) of the Purchaser Disclosure Schedule, and (C) if required by a Governmental Entity, retain control of remedial actions related to a Specified Matter contemplated by Item 4(c) of Section 8.2(a)(iv) of the Purchaser Disclosure Schedule. With respect to clause (A) of the immediately preceding sentence, the Company shall allow, and shall cause the other Transferred Entities to allow, the Indemnifying Parties a reasonable opportunity to participate in such defense with their own counsel and at their own expense. |
(ii) The Company shall be authorized, after reasonably consulting with the Indemnifying Parties and considering the Indemnifying Parties’ views in good faith, to consent to any settlement of, or entry of any judgment arising from, any claim in respect of Specified Matter, in its reasonable discretion and without the consent of any Indemnifying Party; provided, that such settlement or judgment (A) involves only injunctive relief against any of the Transferred Entities or (B) does not result in Losses indemnifiable hereunder in excess of $2 million; provided, further, that such settlement or judgment (i) does not involve any injunctive relief against any of the Sellers or any of their respective Affiliates or finding or admission of any violation of Law or any admission of wrongdoing by any Seller or any Affiliate of any Seller or by any of the Transferred Entities, and (ii) fully and finally releases the Transferred Entities and the Indemnified Parties completely in connection with such Specified Matter. Except as expressly set forth in the foregoing sentence, neither the Company nor any other Transferred Entity may consent to any settlement of, or entry of any judgment arising from, any claim in respect of a Specified Matter without the prior written consent of the Indemnifying Parties, which consent may be withheld or delayed in the sole discretion of the Indemnifying Parties; provided that, with the consent of Purchaser (which may be given or withheld in Purchaser’s sole and absolute discretion), the Company or any other Transferred Entity may settle any Specified Matter without consent from the Indemnifying Parties if (x) the Transferred Entities and Purchaser first irrevocably waives in writing any right to indemnity under this Agreement with respect to all Losses related to such Specified Matter and (y) such settlement (I) does not involve any injunctive relief against any of the Sellers or any of their respective Affiliates or finding or |
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admission of any violation of Law or any admission of wrongdoing by any Seller or any Affiliate of any Seller, and (II) fully and finally releases the Transferred Entities and the Indemnified Parties completely in connection with such Specified Matter. |
Section 8.5 Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement: |
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Losses exceed the Deductible, the Seller Indemnitees shall only be entitled to indemnification for Losses under Section 8.2(a)(ii) or Section 8.2(b)(ii) in excess of the amount of the Deductible; (iii) the maximum amount of indemnifiable Losses for which a Seller may be liable pursuant to Section 8.2(a)(ii) and Section 8.2(b)(ii) shall be an amount equal to such Seller’s proportion (determined in accordance with the Seller Proportions) of $34,000,000; and (iv) the maximum amount of indemnifiable Losses for which a Seller may be liable pursuant to Section 8.2 and Article IX shall be an amount equal to such Seller’s proportion (determined in accordance with the Seller Proportions) of the Total Seller Payment. |
(g) No Indemnified Party shall be entitled to any indemnification hereunder to the extent that such indemnification would constitute a duplicative payment for the same Loss. |
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(b) Except for the rights and obligations of the parties specifically set forth herein and in the Confidentiality Agreement, effective upon the Closing, and intending to be legally bound, the Company, on its own behalf and on behalf of its Subsidiaries, Affiliates, representatives, agents, heirs, executors, administrators, successors and assigns (each individually, a “Company Releasor Party” and collectively, the “Company Releasor Parties”), as applicable and to the extent legally possible, hereby releases, waives and discharges each of the Seller Releaser Parties (which for purposes of this Section 8.8(b) shall also include directors and/or officers of any of the Transferred Entities who are also directors, officers |
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and/or employees of any of the Sellers or any of their respective Affiliates) from and against any and all liabilities or Losses whatsoever, at Law or in equity, whether now known or for any reason unknown, fixed or contingent, liquidated or unliquidated, mature or unmatured, arising or existing on, or at any time prior to, the Closing, including any liability, Losses or cause of action based on or relating to (i) any of the Seller Releaser Parties, the Transferred Entities, any act or omission occurring prior to the Closing or the operation of the businesses of the Transferred Entities prior to the Closing, or (ii) any breach of fiduciary or similar duties of such Seller Releasor Party, in such Seller Releasor Party’s capacity as shareholder, manager, equity owner, director or officer of any of the Transferred Entities. To the extent permitted by applicable Law, the Company, on behalf of itself and each of the Company Releasor Parties, agrees and promises that it will not file any claim asserting any such liabilities or Losses and, that if such a claim is brought on the Company Releasor Party’s behalf or for the Company Party’s benefit in or by any Governmental Entity, the Company, on behalf of itself and each of the Company Releasor Parties, hereby waives and agrees not to take any award or money or other damages as a result of such claim. |
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(c)Purchaser shall timely prepare and file or shall cause to be timely prepared and filed all Tax Returns of the Transferred Entities for any taxable period that begins after the Closing Date.
(d)Notwithstanding anything to the contrary in this Agreement, no Seller shall be required to provide any Person with any Tax Return or copy of any Tax Return of (i) any Seller or any of its Affiliates (other than the Transferred Entities) or (ii) a consolidated,
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combined or unitary group that includes any Seller or any of its Affiliates (other than a group that exclusively contains the Transferred Entities).
(a)From and after the Closing Date, Purchaser and the Sellers shall, and shall cause their respective Affiliates to, provide the other party with such cooperation, documentation and information as either of them reasonably may request in connection with (a) preparing and filing any Tax Return or claim for refund; (b) determining a liability for Taxes, an indemnity or payment obligation under this Article IX or a right to a refund of Taxes; (c) conducting any Tax Proceeding (which shall include granting any powers of attorney reasonably requested by the party entitled to control a Tax Proceeding pursuant to Section 9.5); or (d) determining an allocation of Taxes between a Pre-Closing Period and a Post-Closing Period. Such cooperation and information shall include providing copies of all relevant portions of relevant Tax Returns, together with all relevant accompanying schedules and work papers (or portions thereof), relevant documents relating to rulings or other determinations by Taxing Authorities and relevant records concerning the ownership and Tax basis of property and other information, which Purchaser or the Sellers may possess. Each of Purchaser and each of the Sellers shall make its employees reasonably available on a mutually convenient basis at its cost to provide an explanation of any documents or information so provided.
(b)Each Party shall retain all Tax Returns, schedules and work papers, and all material records and other documents relating to Tax matters, of the relevant entities for their respective Tax periods ending on or prior to the Closing Date until the later of (x) the
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expiration of the statute of limitations for the Tax periods to which the Tax Returns and other documents relate, or (y) ten (10) years following the due date (without extension) for such Tax Returns. Thereafter, the Party holding such Tax Returns or other documents may dispose of them after offering the other Parties reasonable notice and opportunity to take possession of such Tax Returns and other documents.
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(e) Purchaser shall have the right to control any Tax Proceeding involving any Transferred Entity (other than any Tax Proceeding described in Section 9.5(b), (c) or (d)). |
(a) Except as provided in Section 9.7(b) or as otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of state, local or non-U.S. law), all indemnification payments made pursuant to this Agreement shall be treated by the Parties as an adjustment to the Aggregate Common Equity Price for Tax purposes. |
(a) Purchaser shall not make, and shall cause its Affiliates (including the Transferred Entities) not to make, any election with respect to any Transferred Entity (including any election pursuant to Treasury Regulation Section 301.7701-3), which election would be effective or have effect on or prior to the Closing Date. |
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election that is the subject of such domestic use agreement or cause any triggering event with respect to any such dual consolidated loss before January 1, 2018 without the consent of the Sellers other than by sale of all the equity interests of Purchaser to an unaffiliated third party. |
(c) At the time of the Closing, the Company shall have a valid election under Section 754 of the Code in in effect. |
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agreements, understandings, representations or warranties between the Parties other than those set forth or referred to in this Agreement (including the Schedules and Exhibits to this Agreement) together with the Confidentiality Agreement. |
TEGNA Inc.
7950 Jones Branch Drive
McLean, Virginia 22107
Attention: Chief Legal and Administrative Officer
Fax No: (703) 873-6331
E-mail: lawdept@tegna.com
With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attention:
Igor Kirman
Victor Goldfeld
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Fax No:(212) 403-2000
E-mail: IKirman@wlrk.com
VGoldfeld@wlrk.com
AP Special Sits Camaro Holdings, LLC
c/o Apollo Management Holdings, L.P.
9 West 57th Street, 43rd Floor
New York, New York 10019
Attention: David Sambur
Reed Rayman
Email: Sambur@apollolp.com
Rrayman@apollolp.com
With a copy to:
Akin Gump Strauss Hauer & Feld LLP
One Bryant Park
New York, NY 10036
Attention: Adam K. Weinstein, Esq.
Tony D. Feuerstein, Esq.
Fax No: (212) 872-1002
E-mail: aweinstein@akingump.com
tfeuerstein@akingump.com
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the Exhibits and Schedules hereto, is not intended to confer upon any Person not a Party to this Agreement (and their successors and assigns) any rights, benefits, causes of action or remedies with respect to the subject matter or any provision hereof. |
.
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(i) Purchaser has failed to consummate (or indicated an intention to fail to consummate) the Closing in accordance with Section 2.3; |
(iii) the Debt Financing (or any alternative financing in accordance with Section 5.13) has been funded or will be funded at the Closing if the Cash Equity is funded at the Closing; and |
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(d) For the avoidance of doubt, notwithstanding anything to the contrary herein, the only Parties that may seek an injunction or other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement are the Purchaser and the Company (it being understood that the Company may obtain such remedies with respect to Purchaser’s obligations to the Sellers). |
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provision of this Agreement (or any portion thereof) shall be held to be so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. Upon a determination that any term, provision, covenant or restriction of this Agreement is invalid, void or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible. |
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the Parties as of the day first above written.
|
COMPANY: |
CAREERBUILDER, LLC |
By: /s/ Matt Ferguson_______________ |
SELLERS: |
CAPE PUBLICATIONS, INC. |
By: /s/ Todd Mayman_______________ |
MCCLATCHY INTERACTIVE WEST |
By:R. Elaine Lintecum_____________ |
TEGNA INC. |
By:/s/ Todd Mayman_______________ |
TRIBUNE NATIONAL MARKETING COMPANY, LLC |
By:/s/ Edward Lazarus_____________ |
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PURCHASER: |
AP Special Sits Camaro Holdings, LLC |
By:/s/ Reed Rayman_______________ |
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Schedule I
Sellers
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