HSW INTERNATIONAL, INC.
DAILY STRENGTH, INC.
SHARECARE, INC.
DS ACQUISITION, INC.
| “Claim” means any and all litigation, claims, demands, actions, causes of action, suits, injunctions, judgments, decrees, settlements, investigations, proceedings (administrative, arbitral, mediated or otherwise) and audits of any nature. “Covered Employee” means, with respect to Seller or any ERISA Affiliate, any current or former director, officer, employee or independent contractor, or any beneficiary thereof. “Damage” means any assessment, loss, injury, damage, Liability, debt, charge (including any judgment, decree or settlement which gives rise to any of the foregoing), cost and expense, including interest, penalties, court costs, reasonable fees and expenses of legal counsel, consultants, experts and other professional fees, actually incurred by a party. “Default” means (a) any breach or violation of, default under, contravention of, or conflict with, any Contract, Law or Permit, (b) any occurrence of any event that with the passage of time or the giving of notice or both would constitute a breach or violation of, default under, contravention of, or conflict with, any Contract, Law or Permit, or (c) any occurrence of any event that with or without the passage of time or the giving of notice would give rise to a right of any Person to exercise any remedy or obtain any relief under, to terminate or revoke, suspend, cancel, or materially modify or change the current terms of, or renegotiate, or to accelerate the maturity or performance of, or to increase or impose any Liability under, any Contract, Law or Permit. “Environmental Laws” means any federal, state, local and foreign law, treaty, judicial decision, regulation, rule, judgment, order, decree or governmental restriction or requirement or any Contract with any Governmental Authority, whether now or hereinafter in effect, relating to the environment or to pollutants, contaminants, wastes or chemicals or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substances, wastes or materials, including the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq., the Toxic Substances Control Act, 15 U.S.C. 2601, et seq., the Occupational, Safety and Health Act, 29 U.S.C. 651, et seq., the Clean Air Act, 42 U.S.C. 7401, et seq., the Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., the Safe Drinking Water Act, 42 U.S.C. 300f, et seq., the Hazardous Materials “Governing Documents” means, with respect to any Person, such Person’s Certificate of Incorporation, Certificate of Formation, Articles of Incorporation, Bylaws, Operating Agreement or other similar incorporating and governing documents. “Governmental Authority” means any federal, state, municipal, local, foreign or other judicial, administrative, legislative or regulatory agency, department or commission, tribunal, arbitration panel, commission or other governmental or quasi-governmental authority, parastatal agency or dispute-resolving body of competent jurisdiction or other similar entity (including any branch, department or official thereof). “Hirsch Agreements” means that certain Employment Agreement, dated as of November 26, 2008, by and between Seller and Douglas J. Hirsch (the “Hirsch Employment Agreement”) and that certain Noncompetition Agreement, dated as of November 26, 2008, by and between Douglas J. Hirsch and Parent. “Intellectual Property” means any and all of the following together with all goodwill therein or associated therewith, and all rights therein, thereto and thereunder: (a) United States and foreign (i) patents and patent applications (including reissues, divisions, continuations, continuations-in-part, extensions, requests for continued examination, continued prosecution applications and re-examination applications), invention disclosures, and utility models (collectively, “Patents”), (ii) trademarks, service marks, certification marks, trade names, trade dress, logos, business and product names, slogans, and registrations and applications for registration thereof (collectively, “Marks”), and (iii) copyrights and registrations and applications for registration thereof (collectively, “Copyrights”); (b) proprietary interests and rights, whether registered or unregistered, in, under and to maskworks and registrations and applications for registration thereof, inventions (whether or not patentable), improvements, methods, processes, procedures, protocols, designs, products and other specifications, formulae, trade secrets and rights therein, know-how, database rights, data in and the organization and structure of databases, website content, domain names, internet protocol address space, Software (including source and object code), industrial models, confidential, technical and business information, and manufacturing, engineering and technical drawings and manuals and documentation; (c) proprietary interests or rights, including moral rights, in, under or to any similar intangible asset of a technical, business, scientific or creative nature, including slogans, logos, trade dress and the like; and (d) proprietary interests or rights in, under or to any documents, Records or other tangible or electronic media containing or comprising any of the foregoing or any part thereof. “Law” means any statute, law, code, ordinance, regulation, rule (including any rule of common law), judgment, injunction, settlement, award, writ, order or decree or other requirement of any Governmental Authority. “Liability” means, with respect to any Person, any Liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, determined, determinable, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise, and whether or not the same is required to be accrued on the financial statements of such Person. “Lien” means, with respect to any asset, any charge, claim, community or other marital property interest, condition, equitable interest, lien, option, pledge, security interest, mortgage, right of way, easement, encroachment, servitude, right of first option, right of first refusal or similar restriction, including any restriction on use, voting (in the case of any security or equity interest), transfer, receipt of income or exercise of any other attribute of ownership. “Losses” means any loss, assessment, payment, damage, Liability, debt, charge (including any judgment and decree which gives rise to any of the foregoing), cost and expense, including interest, penalties, court costs (including costs of settlement), reasonable attorneys’ fees and expenses. “Open Source Materials” means Software or other material: (i) that is distributed as “free software”, “open source software” or under similar licensing or distribution models, including the GNU General Public License, the GNU Lesser General Public License, the Mozilla Public License, the BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License, and the Sun Industry Standards License and the Apache License; or (ii) that requires as a condition of use, modification, and/or distribution of such software that such software or other software incorporated into, derived from, or distributed with such software: (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; or (C) be redistributable at no or minimal charge. “Page View” means a request by a human web user unaffiliated with Parent or Seller to load a page of a website, as measured by Omniture or a similar measurement system. “Prohibited Territory’ means any and all States within the United States. “Purchaser’s Knowledge” means the actual knowledge, or such knowledge as would or should be obtained after reasonable inquiry, of any officer of SC or Purchaser. “Related Person” means (a) with respect to an individual, each other member of such individual’s Family, any Person that is directly or indirectly controlled by any one or more members of such individual’s Family, any Person in which members of such individual’s Family hold (individually or in the aggregate) a Material Interest, and any Person with respect to which one or more members of such individual’s Family serves as a director, officer, partner, member, executor or trustee (or in a similar capacity), and (b) with respect to a Person other than an individual, any Person that directly or indirectly controls, is directly or indirectly controlled by or is directly or indirectly under common control with such specified Person, any Person that holds a Material Interest in such specified Person, each Person that serves as a director, officer, partner, member, executor or trustee of such specified Person (or in a similar capacity), any Person in which such specified Person holds a Material Interest, and any Person with respect to which such specified Person serves as a general partner, manager, or a trustee (or in a similar capacity). For “Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership or other organization, whether incorporated or unincorporated, (i) of which such Person or any other Subsidiary of such Person is a general partner or managing member or (ii) of which at least a majority of the stock, member interests, partnership interests, or other equity interests of which having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries. “Tax” or “Taxes” means (i) any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), custom duties, capital stock, franchise, profits, withholding, social security (or similar excises), unemployment, disability, ad valorem, real property, personal property, sales, use, transfer, registration, value added, alternative or add-on minimum, estimated, or other tax, impost or duty of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not, by any Governmental Authority responsible for imposition of any such tax (domestic or foreign), (ii) Liability for the payment of any amount of the type described in clause (i) as a result of being or having been on or before the Closing Date a member of an affiliated, consolidated, combined or unitary group, or a party to any agreement or arrangement, as a result of which Liability of Seller to a Governmental Authority is determined or taken into account with reference to the Liability of any other Person, and (iii) Liability for the payment of any amount as a result of being party to any Tax Sharing Agreement or with respect to the payment of any amount of the type described in (i) or (ii) as a result of any existing express or implied obligation (including an indemnification obligation). “Tax Return” means any return, declaration, disclosure, election, schedule, estimate, report, claim for refund, estimates or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof. “Virus” means any technique, Software, computer instruction, code or device or method, which is designed or intended to damage, delete, corrupt, impair, gain unauthorized access to or take over the operation of, or prevent or hinder access to any computer or other hardware, network, Software, any storage medium or device, data, or database or which does any of the same (whether by, in whole or part, installing itself, enabling remote unauthorized access, or altering, erasing, duplicating, rearranging within or bombarding the computer or other hardware, network, Software, any storage medium or device, data, or database or otherwise), including computer viruses, worms, trojan horses, salamis, trap doors, back doors, spybots, sniffers, botnets, and all other so-called “malware” and any other similar things of like intent, use or purpose, but excluding any technique, Software, computer instruction, code or device or method designed for Seller for rendering computer network operations services, information assurance and cybersecurity technology services relating to information leakage detection and prevention, insider communications and threat detection, internet/intranet usage monitoring and external network surveillance, information operations, computer network attack or computer network exploitation. THE TRANSACTION 2.01 Acquired Assets. Subject to the terms and conditions set forth in this Agreement, at the Closing: (i) Seller shall sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall purchase, accept, acquire and take assignment and delivery of, all right, title and interest in, to and under the assets of Seller used or held for use in the Business (wherever located and whether tangible or intangible); and (ii) Parent shall sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall purchase, accept, acquire and take assignment and delivery of, the Hirsch Agreements and those assets identified on Schedule 2.01 (collectively, the “Acquired Assets”) free and clear of all Liens (except for Permitted Liens), except for the Excluded Assets. The Acquired Assets include the following, to the extent used in or held for use in the Business: (e) all of Seller’s data and information, in any medium, including proprietary and confidential information and trade secrets, such as client, customer, supplier and vendor lists, catalogs, research material, technical information, source code and object code, know-how and information regarding processes and procedures; (g) all operational data, creative materials, marketing information, advertising materials, sales and promotional literature, studies, reports, sales records, sales agent records, manuals and data, sales and purchase correspondence, billing systems, engineering information, customer files (including customer credit and collection information), historical and financial records and quality control data; (i) all warranties, indemnities or other rights and causes of action relating to the Acquired Assets; (m) any other personal property that is not an Excluded Asset and that is used, held for use, or arises from, the Business; and (b) all taxpayer and other identification numbers and minute books, stock transfer books and other documents relating to the organization, maintenance, and existence of Seller as a corporation; For the avoidance of doubt, neither SC nor Purchaser shall assume (or be deemed to assume) any Liability for: (i) any Earn-Out Payment arising out of Page View metrics calculated for any time period prior to Closing (or pre-Closing activities affecting any such Page View metrics); or (ii) any action or omission of any Person (other than SC or Purchaser) on or before the Closing or in connection with the Closing which affects or allegedly affects any pre- Closing or post-Closing Page Views and/or Earn-Out Payments, and, in each case, no such Liability shall be (or deemed to be) an Assumed Liability. 2.06 Allocation. Within thirty (30) days of the Closing Date, the parties shall allocate the value of the Assumed Liabilities among the Acquired Assets, and such allocation shall be attached to this Agreement as Exhibit 2.06. Each of SC, Purchaser, Parent and Seller shall, within thirty (30) days of the date of any post-Closing payment made pursuant to or in connection with this Agreement, revise Exhibit 2.06 to the extent necessary to reflect any such post-Closing payment. Such allocation is intended to comply with the requirements of Section 1060 of the Internal Revenue Code of 1986, as amended. Each of Parent, Seller, SC and Purchaser shall file Form 8594 with their respective Tax Returns consistent with such allocation. The parties shall treat and report the transaction contemplated by this Agreement in all respects consistently for purposes of any federal, state or local tax, including the calculation of gain, loss and basis pursuant REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT 3.03 Governmental Authorization and Consents. Except for those Consents, filings or notices set forth in Section 3.03 of the Schedule of Exceptions, no Consent of, filing with, or notice to, any Governmental Authority, lender, lessor, creditor, stockholder or any other Person is required by either Parent or Seller in connection with the execution, delivery and performance by such Person of this Agreement, any other Transaction Document to which such Person is a party, or the consummation of the Transactions. 3.04 Non-contravention. The execution and delivery of the Transaction Documents by each of Parent and Seller, the performance by each of Parent and Seller of its obligations under the Transaction Documents to which it is a party, and the consummation of the Transactions do not and will not (i) contravene or conflict with any of such Person’s Governing Documents, (ii) assuming compliance with the matters referred to in Section 3.03, contravene or conflict with any applicable provision of any Law binding upon or applicable to such Person or the Acquired Assets, (iii) assuming compliance with the matters referred to in Section 3.03 and except as set forth in Section 3.04 of the Schedule of Exceptions, require notice, or constitute a Default, under any provision of any Contract binding upon such Person or by which the Acquired Assets may be bound or subject, or any Permit held by such Person, or (iv) result in the creation or imposition of any Lien on any of the Acquired Assets. (a) Seller has indefeasible legal and beneficial title to or sufficient other valid and enforceable rights to possess and use or, in the case of its leased property and assets, valid leasehold interests in, all of the Acquired Assets, free and clear of all Liens, except (i) as set forth in Section 3.05(a) of the Schedule of Exceptions, and (ii) for Liens for Taxes not yet due and payable, and (iii) for Liens that do not materially detract from the value of the property or asset subject thereto or materially impair the operations of the Business (collectively, “Permitted Liens”). All Acquired Assets are in good operating condition and repair, ordinary wear and tear excepted, and are usable in the ordinary course of business consistent with past practices. (c) Seller has no issued and outstanding invoices for payments due in consideration for services not yet rendered or goods not yet delivered as of the Closing Date. (a) any acquisition by Seller of material assets, including stock or other equity interest, from any Person (whether by merger, consolidation or combination or acquisition of stock or assets) or any sale, lease, license or other disposition of material assets or property of Seller, other than in the ordinary course of business consistent with past practices; (e) any change in any method of accounting or accounting practice by Seller; (i) any notice of any actual or threatened labor trouble, strike, walk out, picketing, boycott or other similar occurrence; or (b) Each Material Contract constitutes a valid and binding obligation of Seller or Parent or both of them, as applicable, is in full force and effect and is enforceable against it and, to Seller’s Knowledge, each other party thereto, in accordance with its terms, subject to general equitable principles (regardless of whether such enforceability is considered in a proceeding at equity or at law), and except as enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application relating to creditors’ rights. Seller has paid in full all amounts due and payable under the Material Contracts, and has satisfied in full all of the Liabilities under the Material Contracts, except: (i) accrued Liabilities which are Retained Liabilities, all of which will be paid by Seller when due; (ii) Liabilities disputed in good faith by Seller and set forth on Section 3.09(b) of the Schedule of Exceptions; and (iii) Liabilities with respect to the Hirsch Agreements. Parent has paid in full all amounts due and payable under the Hirsch Agreements. Neither Seller, Parent nor, to Seller’s Knowledge, any other party is in Default under any Material Contract, and Seller (or, with respect to the Hirsch Agreements and the Merger Agreement, Parent) has complied in all material respects with all of the terms and obligations resulting from the termination of any Material Contract. Since December 31, 2008, neither Seller nor Parent has received any written notice that it is in Default under any Material Contract. (c) Except as set forth in Section 3.09(c)(i), neither Parent nor Seller intends, and, to Seller’s Knowledge, no other Person intends to terminate (whether for cause or convenience) or declare a Default under any Material Contract before expiration of its stated term. Except as set forth in Section 3.09(c)(ii) of the Schedule of Exceptions, no Claim under any Material Contract is pending or, to Seller’s Knowledge, threatened against Seller or Parent. To Seller’s Knowledge, there are no pending renegotiations of, or outstanding rights to renegotiate, any amounts paid or payable under any Material Contract, and no Person has made a written demand to Seller or Parent for any such renegotiation. 3.13 Permits. Section 3.13(a) of the Schedule of Exceptions correctly sets forth a list of each material license, franchise, permit, order, registration, certificate, approval or other similar authorization of a Governmental Authority affecting, or relating in any way to, the Business or the ownership or operation of the Acquired Assets (each a “Permit”), and each pending application for any Permit, together with the name of the Governmental Authority issuing such Permit or with which such application is pending. Seller has all Permits required to carry on the Business as now conducted. Except as set forth in Section 3.13(b) of the Schedule of Exceptions, (i) the Permits are valid and in full force and effect, (ii) Seller is not in material Default under any Permit, (iii) no proceeding is pending or, to Seller’s Knowledge, threatened, to revoke or limit any Permit, and (iv) none of the Permits will be terminated or impaired or become terminable, in whole or in part, as a result of the Transactions. Since December 31, 2008, Seller has not received any written notice from any Governmental Authority to the effect that Seller is not in compliance with any Permit. (iii) Seller owns all Intellectual Property developed by former and current personnel of Seller (including employees, contract workers, temporary workers and agents) during and in the course of their employment or Contract with or by Seller. Except as indicated in Section 3.14(a)(iii) of the Schedule of Exceptions, all of Seller’s current and former employees, consultants, contractors, contract workers, temporary workers, agents and other consultants who have contributed to or participated in the conception, reduction to practice or development of any Owned Intellectual Property; (A) have been a party to a valid and enforceable agreement with Seller that accords Seller full and exclusive and original ownership of all Intellectual Property developed by such individuals for Seller; or (B) have executed valid and enforceable instruments of assignment in favor of Seller as assignee, such instruments conveying to Seller effective and exclusive ownership (including a waiver of any applicable moral rights therein) of all such Intellectual Property; and (z) have executed valid and enforceable agreements protecting the confidential information of Seller and third parties in the possession of Seller from unauthorized use and disclosure. (f) Protection. Seller has taken all reasonable measures to (i) protect the proprietary nature of the Owned Intellectual Property, and has implemented policies therefor, and (ii) ensure the physical and electronic protection of trade secrets from unauthorized access, disclosure, use or modification. To Seller’s Knowledge, no acts or omissions have occurred that would invalidate, reduce or eliminate, in whole or in part, the enforceability, scope or value of, or Seller’s entitlement to use any material trade secret or other Intellectual Property referenced in Section 3.14(a), or otherwise impair the Business as it is presently conducted. All registrations included in the Intellectual Property used in the Business are in full force and effect, and all applicable fees with respect thereto have been paid. (i) Open-Source Materials. Except as disclosed in Section 3.14(i) of the Schedule of Exceptions, Seller does not use in the Business, and none of the Software owned, used or distributed by Seller in its operation of the Business incorporates, includes or is otherwise derived from or dependent upon, any Open Source Materials, and no Seller use of any Open Source Materials: (i) creates, or purports to create, material obligations for Seller; or (ii) grants, or purports to grant, to any third party, any rights or immunities in any of Seller’s Software when distributed by Seller to a third party (including Seller using any Open Source Materials that require, as a condition of use, modification and/or distribution of such Open Source Materials that other Software incorporated into, derived from or distributed with such Open Source Materials be disclosed or distributed in source code form, be licensed for the purpose of making derivative works or be redistributable at no charge). (j) No Viruses. All websites owned or operated by Seller as part of its operation of the Business are fit in all material respects for their respective intended purposes and perform in all material respects as intended. Except as indicated on Section 3.14(j) of the Schedule of Exceptions, Seller has used its reasonable efforts and up-to-date versions of commercially available anti-Virus products and services to ensure that: (i) all Owned Intellectual Property is free of all known Viruses; and (ii) all Owned Intellectual Property does not and shall not contain any code, feature or function designed to: (A) disable the Owned Intellectual Property or render it incapable of processing data; or (B) enable Seller or any third party to: (1) discontinue the effective use by Purchaser of any such Intellectual Property; (2) access, erase, destroy, corrupt or modify any data without Purchaser’s knowledge and consent; or (3) bypass any internal or external security measure without Purchaser’s prior knowledge and consent, in each case, other than any code, feature or function designed for Seller for rendering computer network operations services, information assurance and cybersecurity technology services relating to information leakage detection and prevention, insider communications and threat detection, internet/intranet usage monitoring and external network surveillance. Seller shall immediately provide to Purchaser written notice in reasonable detail upon becoming aware of the existence of any Virus or any of the foregoing features or functions contained in Seller Intellectual Property. (a) Section 3.18(a) of the Schedule of Exceptions contains a complete list identifying (i) each “employee benefit plan,” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974 (“ERISA”) and (ii) each employment, severance or similar Contract, plan, arrangement or policy and each other plan or arrangement (written or oral) providing for compensation, bonuses, profit-sharing, stock option or other stock related rights or other forms of incentive or deferred compensation, vacation benefits, insurance coverage (including any self-insured arrangements), health or medical benefits, disability benefits, other welfare benefits, workers’ compensation, supplemental unemployment benefits, severance benefits and post-employment or retirement benefits (including compensation, pension, health, medical or life insurance benefits) which is currently maintained, administered, contributed to or required to be contributed to by Seller or any ERISA Affiliate and covers any Covered Employee, or with respect to which Seller or any ERISA Affiliate has any Liability. Such plans are referred to herein individually as an “Employee Plan” and collectively as the “Employee Plans.” For purposes of this Section 3.18, “ERISA Affiliate” of any Person means any other Person that, together with such Person, would be treated as a single employer under Section 414 of the Code. (b) Neither Seller nor any ERISA Affiliate contributes to or maintains, or has ever contributed to or maintained, or has any Liability with respect to, any plan that constitutes or constituted a “multiemployer plan,” as defined in Section 3(37) of ERISA, or that is or was subject to Title IV of ERISA. As of the Closing: (i) payment will have been made of all amounts which Seller or any ERISA Affiliate is required to have made at or prior to such time, under applicable Law, as a contribution to each Employee Plan, and no accumulated funding deficiency (as defined in ERISA Section 302 or Code Section 412), whether or not waived, will exist with respect to any Employee Plan; and (ii) no Lien will have arisen under Code Section 401(a)(29). (c) Each Employee Plan and related trust, if any, has at all times been maintained, operated, and administered (including the filing and distribution of all required reports and descriptions) in material compliance with its terms and with the requirements prescribed by any and all Laws, including ERISA and the Code, which are applicable to such Employee Plan. No Claim (other than routine benefit claims) has been asserted or instituted or, to Seller’s Knowledge, threatened against any Employee Plan, any trustee or fiduciaries thereof, Parent or any ERISA Affiliate, any director, officer or employee thereof, or any of the assets of any Employee Plan or any related trust. (h) Seller, each Employee Plan and each Employee Plan “sponsor” or “administrator” (within the meaning of Section 3(16) of ERISA) has complied with the applicable requirements of Section 4980B of the Code and Section 601 et seq. of ERISA or any comparable state Law. (b) There are no labor troubles, including strikes, work stoppages, work slowdowns, picketing or lockouts pending or, to Seller’s Knowledge, threatened against or involving Seller, and (ii) neither Seller nor, to Seller’s Knowledge, any of its officers, directors or employees is the subject of any Claim of any unfair labor practice, grievance, arbitration, negotiation, suit, or action by any employee or employee representative, and no complaint or charge is pending against Seller before the National Labor Relations Board, Equal Employment Opportunity Commission or any other Governmental Authority. (c) To Seller’s Knowledge, (i) no employee of Seller is represented by a labor union; (ii) no petition has been filed or other Claim instituted by an employee or group of employees of Seller with any labor relations board seeking recognition of a bargaining representative; and (iii) there is no organizational effort currently being made or threatened by, or on behalf of, any labor union to organize employees of Seller, and no demand for recognition of employees of Seller has been made by, or on behalf of, any labor union. 3.21 Real Property. (a) Seller does not currently own, or has ever owned, any real property. (b) Section 3.21(b) of the Schedule of Exceptions sets forth a true, correct and complete list of all leases, subleases and other agreements (collectively, the “Real Property Leases”) under which Seller uses or occupies or has the right or obligation to use or occupy or pay rent or other fees for use thereof, now or in the future, any real property (the land, buildings and other improvements covered by the Real Property Leases being hereinafter referred to as the “Leased Real Property”). Seller has good, valid and enforceable leasehold interests to the leasehold estate in the Leased Real Property, all of which will be transferred to Purchaser as part of the transactions contemplated by this Agreement. Seller has heretofore delivered or made available to Purchaser true, correct and complete copies of all Real Property Leases, including all modifications, amendments and supplements thereto. Each Real Property Lease is valid, binding and in full force and effect, and as of the Closing, all amounts currently due and owing pursuant to the Real Property Leases will have been paid in full. Seller is not, and, to Seller’s Knowledge, no other party is in Default under any Real Property Lease. Since December 31, 2008, Seller has not received notice of, nor to Seller’s Knowledge, has there been any threatened Default by any landlord or tenant under any Real Property Lease or under any subordinate transfer under a Real Property Lease. All required Consents of, filings with, or notices to, any party to any of the Real Property Leases in connection with the Transactions have been completed or will be completed by the Closing Date. All of the land, buildings, structures, plants, facilities and other improvements used by Seller in the Business are included in the Leased Real Property. (c) Collectively, the Leased Real Property is adequate for the operation of the Businesses as presently conducted and, to Seller’s Knowledge, there are no conditions existing or Claims pending or threatened that would materially impair the adequacy of the Leased Real Property for that purpose. 3.22 [Intentionally Omitted]. 3.23 Monthly Page Views; Site Performance / Scalability. (a) Since November 26, 2008, the number of Page Views of www.dailystrenth.org has not exceeded 19 million Page Views in any single calendar month. The only Subject Website (as defined in Schedule 2.09 to the Merger Agreement) is www.dailystrength.org and no Person who held Company Capital Stock (as defined in the Merger Agreement) has requested that another website be included within the definition of Subject Website. (b) All of the rights and obligations of Seller and Parent with respect to the Earn Out Payments are set forth in the Merger Agreement, the Hirsch Employment Agreement and on Schedule 2.09 to the Merger Agreement, true and correct copies of which have been provided to SC and Purchaser, and there are no other rights, obligations, Liabilities or promises, oral or written, relating to the Earn Out Payments. (c) Seller’s website has been built using hardware and software components that are scalable to meet the Seller-anticipated growing demand of user traffic over the next 12 months with reasonable and proportional expenditures and no known or reasonably foreseeable limitations. For the avoidance of doubt, scaling to such levels will require further expenditures in hardware and software; provided, however, that there is no obligation, other than any obligation expressly set forth in the Hirsch Employment Agreement, to make any expenditures in hardware, software or otherwise, in order to scale Seller’s website. For the period beginning January 1, 2009 and ending on the Closing Date, Seller’s website has historically been (and will be) operational for 99.8% of the time, excluding scheduled maintenance (based on the total number of minutes such site was (and will be) operational during such period vs. the total number of minutes in such period, excluding scheduled downtime for maintenance). 3.24 Books and Records. Seller has maintained Records with respect to the Business, the Acquired Assets and the Assumed Liabilities which are true, accurate and complete in all material respects, and Seller is not aware of any material deficiencies in such Records. Except as set forth in Section 3.24 of the Disclosure Schedules, Seller does not have any of its primary Records, systems, controls, data or information which are material to the operation of the Business recorded, stored, maintained, operated or otherwise wholly or partly dependent upon or held by any means (including any electronic, mechanical or photographic process, whether or not computerized) which (including all means of access thereto and therefrom) are not under the exclusive ownership and direct control of Seller. 3.28 Other Business Interests. Seller does not engage in any business, other than the Business. 4.02 Authorization; Binding Effect. Each of SC and Purchaser has all requisite corporate power and corporate authority required to enter into this Agreement, the Transaction Documents to be executed by it and to perform its obligations under this Agreement and the Transaction Documents to which it is a party and to otherwise consummate the Transactions. The execution and delivery of this Agreement and the other Transaction Documents to which it is a party by SC and Purchaser and the consummation of the Transactions by SC and Purchaser have been duly authorized by all necessary corporate action on the part of such Person. This Agreement has been duly executed and delivered by each of SC and Purchaser and constitutes a legal, valid and binding agreement of such Person enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at Law). All other Transaction Documents delivered at Closing by each of SC and Purchaser will be duly and validly executed by such Person and will constitute the legal, valid and binding agreement of such Person, enforceable against such Person in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). 4.05 Litigation. To Purchaser’s Knowledge, there is no litigation, action, suit, proceeding, or governmental investigation pending or threatened against either SC or Purchaser, at law or in equity or before any federal, state, municipal, local or other Governmental Authority, which might have a material adverse effect on the ability of either SC or Purchaser to consummate the Transactions, nor does SC or Purchaser know or have reason to know of any grounds for any such litigation, action, suit, proceeding, or investigation. 4.07 Payment of Liabilities. There is no pending proceeding for the dissolution, liquidation, insolvency or recapitalization of the Purchaser or SC nor, to Purchaser’s Knowledge, has any third party threatened to commence any such proceeding. Each of Purchaser and SC has not incurred, does not intend to incur, or believes (nor should it reasonably believe) that it will incur (whether contemplated by the Transactions or otherwise), any Liability, including the Assumed Liabilities, beyond its ability to pay such Liabilities as they become due. (a) From the date hereof through the earlier of the Closing or the termination of this Agreement and except as expressly contemplated by this Agreement, Seller agrees (i) to conduct the Business only in the ordinary course and in substantially the same manner as heretofore conducted, (ii) to use its reasonable best efforts to preserve its business organizations intact, and to retain its present officers and key employees who participate in the Business, to preserve the goodwill of customers, suppliers and all other Persons having business relationships with Seller in its operation of the Business, (iii) to pay its obligations to its creditors in the ordinary course of business, (iv) to use its reasonable best efforts to maintain and keep the Acquired Assets in as good repair and condition as at present, ordinary wear and tear excepted, (v) to operate the Business in compliance with all applicable Laws, (vi) to confer with Purchaser concerning operational matters that may have a Material Adverse Effect, and (vii) to maintain in effect and, when necessary, renew Seller Policies and to confer with Purchaser prior to making any modifications to the Seller Policies. 5.02 Efforts; Consents. Each party hereto agrees to use reasonable best efforts, at its own cost and expense, to take or cause to be taken all actions necessary, proper or advisable to consummate the Transactions on or prior to October 31, 2009. Without limiting the generality of the foregoing, each of the parties hereto shall use reasonable best efforts to obtain all Consents of, make any filings with, or give any notices to, any Governmental Authority or any other Person that are or may become necessary for the performance of its respective obligations pursuant to this Agreement, the other Transactions Documents and the consummation of the Transactions, and shall cooperate fully in promptly seeking to obtain, make or give such Consents, filings and notices as may be necessary for the performance of its respective obligations pursuant to this Agreement, the other Transaction Documents and the Transactions. (a) Prior to the Closing Date, Purchaser shall be entitled, through its employees and representatives, to make such investigation of the Acquired Assets and Business and such examination of the books, records and financial condition of Seller as Purchaser may request. Any such investigation and examination shall be conducted after providing reasonable prior notice and Seller shall cooperate therewith. In order that Purchaser may have the opportunity to make such business, accounting and legal review, examination or investigation as it requests, Seller shall furnish the representatives of Purchaser, during such period, with all such information and copies of such documents as such representatives may request, shall make available its officers and employees as such representatives may reasonably request, and shall cause its officers and employees to, and use its best efforts to cause its consultants, agents, accountants and attorneys to, cooperate fully with such representatives in connection with such review and examination. Between the date of this Agreement and the Closing Date, as soon as the same are available, Seller will provide Purchaser with copies of the regularly prepared financial statements of Seller, if any. (b) Between the date of this Agreement and the Closing Date, Purchaser will not, without the prior written consent of Parent, disclose any Parent or Seller Confidential Information to any Person other than those of its Representatives who are actively assisting in completion of the Transactions and integration of Seller’s Business, unless, upon the advice of counsel to Purchaser, disclosure is required to be made pursuant to the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules of NASDAQ or any other relevant securities exchange or other applicable Law. In the event that Purchaser or any of its Representatives are requested pursuant to, or required by, Law to disclosure any Parent or Seller Confidential Information, Purchaser agrees that it will provide Parent with prompt notice of such request or requirement in order to enable Parent, at Parent’s sole expense, to seek an appropriate protective order or other remedy or to waive compliance, in whole or in part, with the terms hereof. (b) Purchaser shall give immediate notice to Parent if any of the following occurs after the date of this Agreement and prior to or on the Closing Date: (i) receipt by Purchaser of any notice or other communication in writing from any Person alleging that the Consent of such Person is or may be required in connection with the Transactions contemplated by this Agreement, other than a Consent disclosed pursuant to Section 3.03 above; (ii) the occurrence or non-occurrence of any fact or event which could reasonably be expected to cause any covenant, condition or agreement of Purchaser hereunder not to be complied with or satisfied; (iii) the commencement or written threat of any material litigation or government investigation involving or affecting Purchaser or any of its properties or assets; (iv) the occurrence or non-occurrence of any fact or event that causes, a breach by Purchaser of any provision of this Agreement applicable to it; (v) receipt by Purchaser of any notice or other communication from any Governmental Authority in connection with the Transactions; (vi) the occurrence of any fact or event of which it becomes aware that results in the inaccuracy in any representation or warranty of Purchaser; provided, however, that, subject to Section 8.02, the delivery of any notice pursuant to this provision shall not modify any representation or warranty of any party, cure any breaches thereof or limit or otherwise affect the rights or remedies available hereunder to Parent or Seller and the failure of Parent or Seller to take any action with respect to such notice shall not be deemed a waiver of any breach or breaches to the representations or warranties of Purchaser. Business or any other business conducted by SC or Purchaser; and (ii) such services do not interfere with Mr. Hirsch’s responsibilities to SC or Purchaser following the Closing. (a) Following the Closing Date, Purchaser may receive and open all mail addressed to Seller that Purchaser reasonably believes relates to the Business, the Acquired Assets or the Assumed Liabilities, and, to the extent that such mail and the contents thereof relate to the Business, the Acquired Assets or the Assumed Liabilities, deal with the contents thereof at its reasonable discretion. Following the Closing Date, Seller may receive and open all mail addressed to Purchaser that Seller reasonably believes relates to the Excluded Assets or Retained Liabilities, and, to the extent that such mail and the contents thereof relate to the Excluded Assets or Retained Liabilities, deal with the contents thereof at its reasonable discretion. From and after the Closing Date, Seller shall promptly forward or cause to be forwarded to Purchaser any mail received by Seller that relates to the Business, the Acquired Assets or the Assumed Liabilities, and Purchaser shall promptly forward or cause to be forwarded to Seller any mail received by Purchaser that relates to the Excluded Assets or the Retained Liabilities. (b) Following the Closing Date, Seller hereby grants to Purchaser the power, right and authority, coupled with an interest, to receive, endorse, cash, deposit, and otherwise deal with, in the name of Seller, any checks, drafts, documents and instruments constituting payment of any notes or accounts receivable included in the Acquired Assets and that are payable to, payable to the order of, or endorsed in favor of Seller or any agent of Seller. Seller agrees promptly to endorse and pay over or cause to be endorsed and paid over to Purchaser, without deduction or offset, the full amount of any payment received by Seller after the Closing Date in respect of goods sold or services rendered as part of the Business. 5.10 Further Assurances. All deliveries, payments and other transactions and documents relating to the Transactions shall be interdependent and none shall be effective unless and until all are effective (except to the extent that the party entitled to the benefit thereof has waived in writing satisfaction or performance thereof as a condition precedent to Closing). Each party shall, at the request of any other party from time to time and at any time, whether on or after the Closing Date, and without further consideration, execute and deliver such deeds, assignments, transfers, assumptions, conveyances, powers of attorney, receipts, acknowledgments, acceptances and assurances as may be reasonably necessary to procure for the party so requesting, and its successors and assigns, or for aiding and assisting in collecting and reducing to possession, any and all of the Acquired Assets, or for the assumption of the Assumed Liabilities, or to otherwise satisfy and perform the obligations of the parties hereunder or to otherwise give effect to the Transactions. Without limiting the generality of the foregoing, each of Parent and Seller shall, upon the request of Purchaser and without further consideration, in a timely manner on and after the Closing Date execute and deliver to Purchaser such other documents, releases, assignments and other instruments as may be reasonably required to effectuate completely the transfer and assignment to Purchaser of, and to vest fully in Purchaser all of Seller’s and Parent’s rights to the Acquired Assets. 5.12 Earn-Out Payment. Neither Seller, Parent nor any of their Affiliates shall take any action with respect to (or otherwise affecting) the Earn-Out Payment or any Liabilities with respect thereto, in each case which could adversely impact SC’s or Purchaser’s obligations hereunder, without SC’s prior written consent. In addition, promptly after its receipt of any Claim or other correspondence relating to any Earn-Out Payment, or the results of any internal or third-party analysis of the data comprising any metrics supporting the payment or non-payment of any Earn-Out Payment, each of Seller, Parent or its respective Affiliates, as applicable, shall forward the same to SC. CONDITIONS TO CLOSING (b) No Actions or Orders. No Law shall have been adopted, promulgated, entered, enforced or issued (and not repealed, superseded, lifted or otherwise made inapplicable) by any Governmental Authority which, or Claim shall be pending or threatened before any court, other Governmental Authority or arbitrator which, if successful, would (i) enjoin, restrain, or prohibit the consummation of any of the Transactions or (ii) have the effect of making illegal or otherwise prohibiting any of the Transactions. (c) Subscription Agreement. Each of Parent and SC shall have executed and delivered (or tendered subject only to Closing) to the other, a Subscription Agreement pursuant to which Parent is acquiring stock in SC concurrent with the Closing, in the form attached as Exhibit 6.01(c). (d) Promissory Note. Parent shall have executed and delivered (or tendered subject only to Closing) to SC a Promissory Note, in the form attached as Exhibit 6.01(d). (e) Stockholder Agreements. Each of Parent and SC and each other stockholder of SC shall have executed and delivered (or tendered subject only to Closing) to the other, a counterpart to each agreement among SC and its stockholders (including a Co-Sale and Right of First Refusal Agreement, Voting Agreement and Investor Rights Agreement) in the forms attached as Exhibit 6.01(e). (g) Other Agreements. Each party to an agreement set forth on Exhibit 6.01(g) shall have received counterpart signature pages from all other parties to such agreement. (e) License Agreements. SC shall have executed and delivered (or tendered subject only to Closing) to Parent the License Agreements in the form attached as Exhibit 6.02(e). 6.04 Closing. The consummation of the Transactions (the “Closing”) will take place at the offices of Nelson Mullins Riley & Scarborough LLP, 201 17th Street, Suite 1700, Atlanta, Georgia, at 10:00 a.m., Atlanta, Georgia time, on the date which is no later than two (2) Business Days following the satisfaction (or waiver, if applicable) of the conditions in this Article VI, or at such other place and time as the parties have mutually agreed in writing. The date on which the Closing actually occurs is referred to herein as the “Closing Date.” INDEMNIFICATION AND SURVIVAL (b) The representations and warranties contained in or made pursuant to this Agreement and the indemnity obligations set forth in Sections 7.02(a)(i) and 7.02(b)(i) shall terminate and expire on, and no Claim with respect thereto may be brought after, the date that is eighteen (18) months after the Closing Date; provided, however, that: (i) the representations, warranties and related indemnity obligations under Sections 3.01 (Existence and Power), 3.02 (Authorization; Binding Effect), 3.05(a) (Title to and Condition of Properties), 4.01 (Existence and Power) 4.02 (Authorization; Binding Effect) and 4.07 (Payment of Liabilities) shall survive until expiration of the respective applicable statute of limitations for each such item, and (ii) the representations, warranties and related indemnity obligations under Sections 3.14 (Intellectual Property), 3.16 (Environmental Matters), 3.18 (Employee Benefit Plans), 3.27 (Finders’ Fees) and 4.06 (Finders’ Fees) shall terminate on, and no Claim with respect thereto may be brought after, the date that is twenty-four (24) months after the Closing Date. (d) The right to indemnification or any other remedy based on warranties, representations, covenants and agreements in this Agreement shall not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement. The waiver of any condition based on the accuracy of any warranty or representation, or on the performance of or compliance with any covenant or agreements, will not affect the right to indemnification or any other remedy based on such warranties, representations, covenants and agreements. 7.02 Indemnification. After the Closing, subject to the limitations and qualifications set forth in this Article VII, each of Seller and Parent, on the one hand, and SC and Purchaser, on the other hand (each in such capacity, an “Indemnitor” and collectively, the “Indemnitors”) shall, jointly and severally, indemnify and hold harmless each of SC, Purchaser, their respective Affiliates, and each of their respective stockholders, trustees, directors, officers and other Representatives, on the one hand, and Seller, Parent, their respective Affiliates, and each of their respective stockholders, trustees, directors, officers and other Representatives, on the other hand (collectively in such capacities, the “Indemnitees”) from and against and in respect of any and all Claims, Damages and Losses which arise out of, relate to or result from: (a) in respect of Seller’s or Parent’s capacity as Indemnitor: (b) in respect of SC’s or Purchaser’s capacity as Indemnitor: (i) the inaccuracy in or breach of any representation or warranty made by an Indemnitor in any Transaction Document (including the Schedule of Exceptions), (ii) the breach or non-fulfillment of any covenant or agreement made by Indemnitor in any Transaction Document, (iii) the Assumed Liabilities, (iv) any Claim for finder’s fees SC or Purchaser incurs, and (v) enforcing the indemnity hereunder. (b) Procedure in Event of Indemnification Claim. If an Indemnitee desires to assert an indemnification claim pursuant to Section 7.02, the Indemnitee promptly shall provide an Indemnification Notice to Parent or SC, as applicable, in accordance with the procedures set forth in Section 7.03(a). If Parent or SC, as applicable, within thirty (30) days after receipt of the Indemnification Notice does not object to the propriety of the indemnification claims described as being subject to indemnification pursuant to Section 7.02 or the amount of Damages asserted in the Indemnification Notice, the indemnification claims described in the Indemnification Notice shall be deemed final and binding (a “Permitted Indemnification Claim”). If Parent or SC, as applicable, contests the propriety of an indemnification Claim described on the Indemnification Notice and/or the amount of Damages associated with such Claim, then Parent or SC, as applicable, shall deliver to the Indemnitee a written notice detailing with reasonable specificity all then known objections the Indemnitee has with respect to the indemnification claims contained in the Indemnification Notice (“Indemnification Objection Notice”). If Parent or SC, as applicable, and the Indemnitee are unable to resolve the disputed matters described in the Indemnification Objection Notice within fifteen (15) business days after the date the Indemnitee received the Indemnification Objection Notice, the disputed matters will be resolved by litigation in an appropriate court of competent jurisdiction. Any undisputed indemnification claims contained in the Indemnification Notice shall be deemed to be final and binding and shall constitute a Permitted Indemnification Claim. If Final Resolution of the litigation results in all or any portion of an indemnification Claim properly being subject to indemnification pursuant to Section 7.02, such Claim or portion thereof shall be final and binding and shall constitute a Permitted Indemnification Claim. (i) An Indemnitee against whom a third party Claim is made shall give Parent or SC, as applicable, notice of such Claim in accordance with Section 7.03(a) so that an Indemnitor shall have an opportunity to defend such Claim, at such Indemnitor’s sole expense and with legal counsel selected by an Indemnitor and reasonably satisfactory to the Indemnitee; provided, that such Indemnitee at all times also shall have the right to participate fully in or to assume control of such defense at such Indemnitee’s sole expense and each Indemnitor will cooperate fully with the Indemnitee; provided, further, that if the Indemnitee undertakes the sole defense of such Claim, it shall defend such Claim in good faith, shall apprise Parent or SC, as applicable, from time to time as the Indemnitee deems appropriate of the progress of such defense and shall not consent to the entry of any judgment or enter into any settlement except with the written consent of Parent or SC, as applicable (which consent shall not be unreasonably withheld, conditioned or delayed). In addition, the Indemnitee will have the right to employ one law firm as legal counsel, together with a separate local law firm in each applicable jurisdiction (each, “Separate Counsel”), to represent the Indemnitee in any action or group of related actions if, in the Indemnitee’s reasonable judgment at any time, either a conflict of interest between the Indemnitee and an Indemnitor exists with respect to such Claim or there may be defenses available to the Indemnitee that are different from or in addition to those available to either Indemnitor, and in that event: (i) the reasonable fees and expenses of such Separate Counsel will be paid by the Indemnitors; and (ii) each Indemnitor and the Indemnitee will have the right to conduct its own defense of such Claim. Failure of Parent or SC, as applicable, to give an Indemnitee written notice of its election to defend such Claim within twenty (20) days after receipt of notice thereof shall be deemed a waiver by each Indemnitor of its right to defend such Claim. If both Indemnitors shall elect not to assume the defense of such Claim (or if both Indemnitors shall be deemed to have waived its right to defend such Claim), the Indemnitee against whom such Claim is made shall have the right, but not the obligation, to undertake the sole defense of, and at the expense of, the Indemnitors (including the payment of the Indemnitees’ reasonable attorneys’, accountant and expert fees). No Indemnitor, in the defense of such Claim, shall consent to the entry of any judgment or enter into any settlement (except with the prior written consent of the Indemnitee, which shall not be unreasonably withheld, conditioned or delayed) that includes any admission of Liability by, on behalf of or with respect to any indemnified party or does not include as an unconditional term thereof the giving by the claimant to all the Indemnitees against whom such Claim is made or indemnification is provided of a general release from all past, present and future Liability in respect of, relating to or arising from such Claim or the alleged acts or omissions on which such Claim is based (which release shall exclude only any obligations incurred in connection with any such settlement) or contains any limitation, restriction, sanction or restriction on the conduct, or conduct of any business, by any such Indemnitee. (a) An indemnified party shall not be entitled to indemnification under Section 7.02(a)(i) or Section 7.02(b)(i), except if and to the extent that the aggregate Losses incurred by the Indemnitees exceeds the sum of $15,000 (the “Threshold Amount”), and, if and when the aggregate amount of Losses for which the Indemnitees may recover under Section 7.02(a)(i) or Section 7.02(b)(i), as applicable, exceeds the Threshold Amount, then such Indemnitees shall be entitled to indemnification for Losses in excess of such amount. The limitations set forth in this Section 7.04(a) shall not apply to (A) any Claims related to an inaccuracy or breach of any representation or warranty contained in Sections 3.01 (Existence and Power), 3.02 (Authorization; Binding Effect), 3.27 (Finders’ Fees), 4.01 (Existence and Power), 4.02 (Authorization; Binding Effect) 4.06 (Finders’ Fees) or 4.07 (Payment of Liabilities), or (B) any Claims based on a finding of fraud or willful misrepresentation. (b) Subject to the limitations set forth in this Article VII, and except for Claims based upon a finding of fraud or willful misrepresentation, no Indemnitee shall be entitled to indemnification under Section 7.02(a)(i) in an aggregate amount greater than the sum of (i) $150,000, plus (ii) any Earn-Out Payment to which SC becomes obligated pursuant to Section 2.03(b). Except for Claims based upon a finding of fraud or willful misrepresentation, the indemnification provisions set forth in this Article VII shall be the Indemnitees’ sole and exclusive remedy for all Claims, Losses and Damages arising out of the matters set forth in this Article VII and Seller and Parent, on the one hand, and SC and Purchaser, on the other hand, hereby waive, for and on behalf of all of their related Indemnitees, any and all other remedies, whether at law or in equity, that are otherwise available to the Indemnitees, or any of them, arising out of this Agreement and the transactions contemplated hereby; provided, however, that notwithstanding the foregoing, nothing in this Agreement shall eliminate the ability of a party hereto to apply for equitable remedies to enforce the other party’s or parties’ obligations under this Agreement. TRANSFER ACT, ENVIRONMENTAL LAW, OR PRODUCTS LIABILITY, SECURITIES OR OTHER LAW) AND REGARDLESS OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM WHOM INDEMNIFICATION IS SOUGHT) ALLEGES OR PROVES THE SOLE CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED UPON THE PERSON SEEKING INDEMNIFICATION. THE INDEMNIFICATION PROVISIONS IN THIS ARTICLE VII ARE NOT INTENDED TO AFFECT AN INDEMNITEE’S OBLIGATION TO USE COMMERCIALLY REASONABLE EFFORTS TO MITIGATE DAMAGES WITH RESPECT TO ANY CLAIM. (d) NOTWITHSTANDING ANY PROVISION HEREIN, NO INDEMNITOR SHALL IN ANY EVENT BE LIABLE TO AN INDEMNITEE ON ACCOUNT OF ANY INDEMNITY OBLIGATION SET FORTH IN SECTION 7.02 FOR ANY INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (EXCLUDING ANY PUNITIVE DAMAGE ASSESSED AGAINST AN INDEMNITEE IN RESPECT OF A CLAIM BY A THIRD PARTY). 7.05 Right of Setoff. Each of Purchaser and SC shall be entitled to set-off the amount of any indemnification payment owed to Purchaser or SC under this Article VII against any amounts SC or Purchaser may owe either Parent or Seller, including any obligations of SC to pay any Earn-Out Payment pursuant to Section 2.03(b) and any amounts SC may become obligated to pay under the Services Agreement; provided, however, that any amounts which SC may become obligated to pay under the Services Agreement which are set-off by Purchaser or SC in accordance with this Section 7.05 shall be: (a) first, treated as payments made by Purchaser under the Promissory Note referenced in Section 6.01(d) until such Promissory Note is paid in full; and (b) second, after such Promissory Note is paid-in-full, treated as an indemnity payment pursuant to this Article VII. TERMINATION CONFIDENTIALITY 9.01 Definition. “Confidential Information” shall mean any and all information concerning the Business or the business affairs of SC, Purchaser or Seller, and shall include such information as it relates to any Affiliate of SC, Purchaser or Seller. Without limiting the generality of the foregoing, Confidential Information includes but is not limited to: (a) proprietary information of SC, Purchaser, Parent or Seller; (b) financial statements, financial projections and budgets, historical and projected sales, capital spending budgets and plans, business plans, the names and backgrounds of key personnel, customer lists and customer information, personnel training and techniques and materials, marketing plans or market expansion proposals and sales techniques and materials of SC, Purchaser, Parent or Seller, however documented; (c) information that it could be reasonably inferred to confer a competitive advantage against SC, Purchaser, Parent or Seller; (d) information the release of which could be reasonably inferred to be detrimental to SC, Purchaser, Parent or Seller; (e) product specifications, discoveries, improvements, processes, marketing and service methods or techniques, formulae, designs, styles, specifications, data bases, computer programs (whether in source code or object code), know-how, strategies, current and anticipated customer requirements, price lists, market studies, and any other information, however documented, that is a trade secret of SC, Purchaser, Parent or Seller under applicable Law; and (f) notes, analyses, compilations, studies, summaries, and other material prepared by or for SC, Purchaser, Parent or Seller containing or based, in whole or in part, on any information included in the foregoing. Notwithstanding anything to the contrary above, the term “Confidential Information” does not include information that: (x) is or becomes generally available to the public other than as a result of a disclosure by the receiving party or its representatives; (y) was within the receiving party’s possession prior to its being furnished to the receiving party by or on behalf of the disclosing party pursuant hereto; or (z) becomes available to the receiving party on a non-confidential basis from a source other than the disclosing party or any of its representatives (provided that with respect to clauses (y) and (z) above, the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the disclosing party or any other party with respect to such information). 9.02 Acknowledgments and Agreements by Seller and Parent. Each of Seller and Parent hereby acknowledge, agree and covenant that until the date that is five (5) years after the Closing Date, such Person and its Affiliates will keep confidential, will hold for the sole benefit of SC and Purchaser, and will not use except on behalf of either SC or Purchaser, all Confidential Information, which such Person acknowledges is, or shall be, proprietary to either SC or Purchaser, as applicable; provided, however, that any Confidential Information that is also considered a trade secret under applicable Law, shall not be disclosed by such Person as long as such information remains a trade secret and is not generally known or available to the public other than as a result of unauthorized or unlawful disclosure directly or indirectly by such Person. Each of Seller and Parent agrees that upon request it shall forthwith return to Purchaser, or destroy to the satisfaction of Purchaser, all Confidential Information in whatever form such information is in the possession of such Person or under such Person’s control, and shall additionally return all documents and other property that is in such Person’s possession or under such Person’s control and belonging to either SC or Purchaser. Notwithstanding the foregoing, the obligations of confidentiality, nondisclosure and non-use with respect to Confidential Information required by this Section 9.2 shall not apply to any Confidential Information required to be disclosed by law or stock exchange, in any such case only after giving the non-disclosing party as much advance notice of the possibility of such disclosure as practical so that the non-disclosing party may attempt to stop such disclosure or obtain a protective order concerning such disclosure. ARTICLE X MISCELLANEOUS PROVISIONS
10.05 Waiver of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.05. | | | | | | | HSW International, Inc. | | | | One Capital City Plaza | | | | | | | | | | | | Attention: Bradley T. Zimmer, |
| | | Executive Vice President and | | | | General Counsel | | | | | | | | | | | | | | | | | | | With a copy to: | | | | | 4101 Lake Boone Trail, Suite 300 | | | | Raleigh, NC 27607 | | | | Attention: Donald R. Reynolds | | | | | | | | | | | | | | | | | | | | HSW International, Inc. | | | | One Capital City Plaza | | | | 3350 Peachtree Road, Suite 1600 | | | | Atlanta, GA 30326 | | | | Attention: Bradley T. Zimmer, | | | | Executive Vice President and | | | | General Counsel | | | | | | | | | | | | | | | | | | | With a copy to: | Wyrick Robbins Yates & Ponton LLP | | | | 4101 Lake Boone Trail, Suite 300 | | | | Raleigh, NC 27607 | | | | Attention: Donald R. Reynolds | | | | | | | | | | | | | | | | | | | (c) SC: | | | | | One Capital City Plaza | | | | 3350 Peachtree Road, Suite 1500 | | | | Atlanta, GA 30326 | | | | Attention: Colin Daniel, | | | | Vice President, Finance | | | | | | | | | | | | | | | | | | | (d) Purchaser: | DS Acquisition, Inc. | | | | c/o Sharecare, Inc. | | | | One Capital City Plaza |
| | | 3350 Peachtree Road, Suite 1500 | | | | Atlanta, GA 30326 | | | | Attention: Colin Daniel, | | | | Vice President, Finance | | | | | | | | | | | | | | | | | | | In either case with a copy to: | | | | | 201 17th Street, NW, Suite 1700 | | | | Atlanta, GA 30363 | | | | | | | | | | | | | | | | |
terms hereof, set forth the final, complete and exclusive agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersede all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto.
Signature Page to the Sharecare, Inc. Asset Purchase Agreement | | HSW INTERNATIONAL, INC. | | | | | | By: /s/ Bradley T. Zimmer | | | | | | Title: Executive Vice President & General Counsel |
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Signature Page to the Sharecare, Inc.
