ASSET PURCHASE AGREEMENT

Exhibit 10.03

EXECUTION VERSION

 

ASSET PURCHASE AGREEMENT

BY AND BETWEEN

VERISIGN, INC.,

a Delaware corporation,

AND

TRANSACTION NETWORK SERVICES, INC.,

a Delaware corporation

DATED AS OF MARCH 2, 2009

 

TABLE OF CONTENTS

 

 

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ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT is dated as of March 2, 2009, between VERISIGN, INC., a Delaware corporation (“ VeriSign ” or “ Seller ”), and TRANSACTION NETWORK SERVICES, INC., a Delaware corporation (“ Purchaser ”).

W I T N E S S E T H :

WHEREAS, Seller beneficially owns and operates (directly and through its Subsidiaries (as defined below)) the Business (as defined below); and

WHEREAS, Seller wishes to transfer (and cause its Subsidiaries to transfer) to Purchaser or its designated wholly owned Subsidiaries, and Purchaser wishes to purchase and assume (or cause its designated wholly owned Subsidiaries to purchase and assume), the Assets and the Assumed Liabilities (each as defined below) from Seller and its Subsidiaries, all upon the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein, the parties agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Certain Defined Terms . As used in this Agreement, the following terms have the following meanings:

“ Acceptable Confidentiality Agreement ” means a confidentiality agreement that contains confidentiality provisions that are no less favorable in the aggregate to Seller than those contained in the Confidentiality Agreement.

“ Action ” means any litigation, action, claim, subpoena, suit, investigation, complaint, originating application to an employment tribunal, binding arbitration or proceeding.

“ Affiliate ” means, with respect to any specified Person, any other Person who or that, directly or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such specified Person.

“ Agreement ” means this Agreement, including the Seller Disclosure Schedule and all Exhibits and Schedules hereto and thereto, and all amendments hereto and thereto made in accordance with Section 11.09 .

“ Ancillary Agreements ” means the Assignment and Assumption Agreement, the Bill of Sale, the Foreign Acquisition Agreements, the Intellectual Property License Agreement, the ATLAS License Agreement, the Intellectual Property Assignment Agreement, the Transition Services Agreement, the Messaging Agreement and the real estate transfer documents relating to the transfer of the Owned Real Property pursuant to this Agreement.

“ Assignment and Assumption Agreement ” means the Assignment and Assumption Agreement to be executed by the parties thereto on the Closing Date, in the form of Exhibit A .

“ Assumed Contracts ” means all Material Contracts and all other Contracts relating exclusively to the Business (including those Contracts entered into after the date hereof in accordance with Section 5.01 of this Agreement).

“ ATLAS Licensing Agreement ” means the license agreement to be executed by the parties thereto on the Closing Date, with terms and conditions consistent in all material respects with those set forth on the term sheet attached as Exhibit B .

“ Base Working Capital ” means $25,000,000.

“ Benefit Plan ” means (i) each “employee benefit plan,” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), whether or not subject to ERISA, and (ii) each material employment, consulting, severance, termination, retirement, change in control, retention, incentive or deferred compensation, bonus, stock option or other equity based, vacation or holiday pay, dependent care assistance, excess benefit, salary continuation, medical, life or other insurance, pension, supplemental retirement, supplemental unemployment or other fringe benefit plan, policy, program, agreement, arrangement or commitment.

“ Bill of Sale ” means the bill of sale and conveyance to be executed by the parties thereto on the Closing Date, in the form of Exhibit C .

“ Business ” means the following services provided by Seller’s Communications Services Group (a) the provision of products and services based on the operation and delivery of Signaling System 7 signaling services, (b) the hosting of telecommunication databases, consisting of a calling name database, a line-information database, a toll-free database and local number portability products, (c) the delivery of services that address the roaming needs of wireless carriers, consisting of network signaling, protocol normalization, real-time message visibility services, data roaming exchange and clearinghouse services for financial settlement (but specifically excluding all roaming and clearing services provided by Seller’s Brazil Subsidiary, Seller’s Messaging Group or Seller’s Billing and Commerce Group, such as Outcollect Billing and Exchange, and prepaid Real-Time Roaming), (d) the delivery of services necessary to establish and operate a centralized registry of subscription-related information for telephone-mapping between telephone numbers and IP addresses, consisting of Seller’s ENUM-based number identity registry and (e) the delivery of services that interconnect or are used in conjunction with Voice Over Internet Protocol networks, consisting of Seller’s “network routing directory services,” “IP connect” services and “PBX IP connect” services; but excluding in all instances Excluded Assets and Overhead and Shared Services.

“ Business Day ” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in New York, New York, USA.

 

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“ Change of Control Agreement ” means each Change of Control Agreement to be executed by Seller and a Change of Control Employee on or prior to the Closing Date, in the form of Exhibit D .

“ Change of Control Employee ” means any current employee of Seller or any of its Subsidiaries who is listed in Section 1.01(a)(i) of the Seller Disclosure Schedule .

“ Code ” means the United States Internal Revenue Code of 1986, as amended.

“ Consent ” means any approval, authorization, consent, order, license, declaration, permission, permit, qualification, exemption or waiver by any third party or Governmental Authority.

“ Contract ” means any contract, agreement, lease, ground lease, or commitment, license, sublicense, permit, mortgage, purchase order, indenture, loan agreement, note, lease, sublease, agreement, obligation, commitment, understanding, instrument or other arrangement or any commitment to enter into any of the foregoing to which Seller or any of its Subsidiaries is a party or by which any property of Seller or any Subsidiary of Seller is bound.

“ 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. The term “ Controlled ” shall have a correlative meaning.

“ Employee ” means any current employee of Seller or any of its Subsidiaries employed in connection with the operation of the Business who is listed in Section 1.01(a)(ii) of the Seller Disclosure Schedule .

“ Environmental Law ” means any applicable Law relating to pollution or protection of the environment, natural resources, worker health and safety or human health and safety.

“ Environmental Permit ” means any permit, approval, license or other authorization required under any Environmental Law to conduct the Business as currently conducted, own the Assets and occupy the Owned Real Property.

“ Equipment ” means furniture and office equipment, goods, furnishings, fixtures, machinery, telecommunications, manufacturing and other equipment and other interests in tangible personal property listed in Section 1.01(a)(iii) of the Seller Disclosure Schedule , excluding in all cases any Intellectual Property Rights covering, embodied in or connected to any of the foregoing (other than where such Intellectual Property Rights are included in the Assets or, in the case of computer programs or databases, where Purchaser has provided evidence reasonably satisfactory to Seller that Purchaser holds a license to (or otherwise has the right to use) such computer programs or databases).

“ ERISA Affiliate ” means any trade or business (whether or not incorporated) which is or ever has been under common control, or which is or ever has been treated as a single employer, with Seller or its respective Affiliates under Section 414(b), (c), (m) or (n) of the Code or Section 4001(a)(14) or (b) of the Employee Retirement Income Security Act of 1974, as amended.

 

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“ Estimated Working Capital Adjustment ” means an amount (which may be positive or negative) equal to:

(i) if the Estimated Working Capital is greater than or equal to the Working Capital Floor but less than or equal to the Working Capital Ceiling, zero;

(ii) if the Estimated Working Capital is greater than the Working Capital Ceiling, an amount equal to the Estimated Working Capital minus the Working Capital Ceiling; and

(iii) if the Estimated Working Capital is less than the Working Capital Floor, an amount equal to the Estimated Working Capital minus the Working Capital Floor.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, together with the rules, regulations, schedules and forms thereunder.

“ Final Working Capital Adjustment ” means an amount (which may be positive or negative) equal to:

(i) if the Final Working Capital is greater than or equal to the Working Capital Floor but less than or equal to the Working Capital Ceiling, zero;

(ii) if the Final Working Capital is greater than the Working Capital Ceiling, an amount equal to the Final Working Capital minus the Working Capital Ceiling; and

(iii) if the Final Working Capital is less than the Working Capital Floor, an amount equal to the Final Working Capital minus the Working Capital Floor.

“ Governmental Authority ” means any U.S. or foreign, multinational, federal, state, provincial or local authority, legislative body, court, government or self-regulatory organization (including any stock exchange), commission, tribunal or organization, or any regulatory agency, or any political or other subdivision, department or branch of any of the foregoing.

“ Governmental Order ” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

“ Hazardous Materials ” means (a) petroleum, petroleum products, asbestos in any form that is friable or polychlorinated biphenyls and (b) any chemical, material or other substance regulated as hazardous or as a pollutant, contaminant or waste under any Environmental Law or that may otherwise serve as the basis for liability under Environmental Law.

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations thereunder, each as amended from time to time.

 

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“ Intellectual Property Assignment Agreements ” means the Intellectual Property Assignment Agreements to be executed by the parties thereto on the Closing Date, in the forms of Exhibit E-1 and Exhibit E-2 .

“ Intellectual Property License Agreement ” means the Intellectual Property License Agreement to be executed by the parties thereto on the Closing Date, in the form of Exhibit F .

“ Intellectual Property Rights ” means all intellectual property rights throughout the world, including all (a) patents (including all reissues, divisions, continuations, continuations in part, re-examinations and extensions thereof) and patent applications, (b) Trademarks (including registrations, applications and renewals therefor), including any goodwill associated therewith, (c) copyrights and other works of authorship and moral rights (including registrations, applications and renewals therefor), (d) trade secrets, know-how (including processes, methods, improvements, inventions, specifications, plans and protocols), rights to proprietary information, databases and data (including technical data, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals) and (e) computer software (including source code and object code) and databases and related documentation.

“ Inventory ” means inventories held for use exclusively in the operation and conduct of the Business, including raw materials, goods in process, finished goods and specific packaging and labels used in connection with the Business.

“ Knowledge of Seller ” or “ Seller’s Knowledge ” means the actual knowledge, without further inquiry, of (i) any of the individuals listed in Part I of Section 1.01(a)(iv) of the Seller Disclosure Schedule and (ii) any of the individuals listed in Part II of Section 1.01(a)(iv) of the Seller Disclosure Schedule , solely with respect to matters falling within the responsibilities of their respective positions.

“ Law ” means any law (including common law), statute, ordinance, regulation, rule, code or other requirement or rule enacted or promulgated by any Governmental Authority, including any Governmental Order.

“ Leased Real Property ” means all leasehold or subleasehold estates and other rights to use or occupy any land, building, structures, improvements, or other interests in real property held by the Seller or any Subsidiary and relating exclusively to the Business.

“ Liabilities ” means debts, liabilities, commitments and obligations (including guarantees and other forms of credit support), whether accrued or fixed, absolute or contingent, matured or unmatured, on- or off-balance sheet, including those arising under any Law or Action and those arising under any Contract or otherwise.

“ Lien ” means any mortgage, deed of trust, pledge, hypothecation, security interest, deed of trust, encumbrance, claim, lien, license, lease or charge of any kind.

“ Losses ” means any and all realized losses, liabilities, damages, judgments, settlements and expenses (including interest and penalties recovered by a third party with respect thereto and reasonable attorneys’ fees and expenses).

 

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“ Material Adverse Effect ” means a material adverse effect on the operations, results of operations or financial condition of the Business, taken as a whole, but in each case shall not include the effect of events, changes and circumstances relating to (a) the industries and markets in which the Business operates, to the extent they do not have a disproportionately adverse affect on the Assets or the Business, (b) macroeconomic factors, interest rates, general financial market conditions, acts of God, war, terrorism or hostilities, to the extent they do not have a disproportionately adverse affect on the Assets or the Business, (c) changes in Law, US GAAP or official interpretations of the foregoing, (d) compliance with this Agreement, or (e) the transactions contemplated hereby or any announcement hereof or the identity of Purchaser; it being understood that the failure of the Business to achieve internal or external financial forecasts or projections, by itself, will not constitute a Material Adverse Effect.

“ Material Customer” means (i) with respect to database services customers, each such customer from which the Business received database services revenues exceeding $500,000 in the aggregate in the 2008 fiscal year of Seller, (ii) with respect to network services customers, each such customer from which the Business received network services revenues exceeding $375,000 in the aggregate in the 2008 fiscal year of Seller and (iii) with respect to other customers, each such customer from which the Business received revenues exceeding $100,000 in the aggregate in the 2008 fiscal year of Seller.

“ Material Real Property Lease ” means any Real Property Leases for which the annual rental exceeds $400,000.

“ Material Vendor” means each vendor to which the Business paid more than $250,000 in the aggregate in the most recent fiscal year of Seller.

“ Messaging Agreement ” means the agreement between Purchaser and Seller (or any Affiliate or assignee of Seller) to be effective as of the Closing Date pursuant to which Purchaser will provide certain services to Seller’s messaging business, in the form of Exhibit G.

“ Nasdaq ” means The Nasdaq Stock Market’s National Market.

“ Overhead and Shared Services ” means ancillary corporate or shared services provided to or in support of the Business that are general corporate or other overhead services or provided to both the Business and other businesses of Seller and its Subsidiaries, including access to hardware and software related to research and development services, use of Intellectual Property Rights, travel and entertainment services, temporary labor services, office supplies services (including copiers and faxes), personal telecommunications services, computer hardware and software services, fleet services, energy/utilities services, procurement and supply arrangements, treasury services, public relations, legal and risk management services (including workers’ compensation), payroll services, sales and marketing support services, information technology and telecommunications services, accounting services, tax services, internal audit services, human resources and employee relations management services, employee benefits services, credit, collections and accounts payable services, logistics services, property management services, environmental support services and customs and excise services, in each case including services relating to the provision of access to information, operating and reporting systems and databases and all hardware and software or other intellectual property used in

 

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connection therewith. Overhead and Shared Services shall not include any item in the previous sentence that is (a) exclusive to the Business, rather than shared with any other line of business or the general corporate operations of Seller, and (b) provided solely by or using Transferred Employees and Assets.

“ Owned Real Property ” means the owned real property listed in Section 1.01(a)(vi) of the Seller Disclosure Schedule , together with Seller’s right, title and interest in all buildings, improvements and fixtures thereon and all appurtenances thereto.

“ Permits ” means all licenses, franchises, permits, approvals, authorizations, exemptions, certificates, registrations and similar documents or instruments issued by any Governmental Authority, excluding in all cases registrations or applications for Intellectual Property Rights.

“ Permitted Liens ” means (a) statutory Liens for Taxes that are not yet due or are being contested in good faith and for which appropriate accruals have been established, (b) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and other Liens imposed by Law, in each case, for amounts not yet due or that are being contested in good faith, (c) zoning, entitlement, building and land use regulations, customary covenants, defects of title, easements, rights-of-way, restrictions and other similar charges or encumbrances not, individually or in the aggregate, materially interfering with the use or occupancy of the affected property or the ordinary conduct of the Business thereon, (d) Liens that will be released prior to or as of the Closing, and (e) Liens listed in Section 1.01(a)(vii) of the Seller Disclosure Schedule , but in all cases excluding any such Liens that (1) materially interfere with the Purchaser’s use, or materially detract from the value of, or marketability of, the affected property or (2) secure the payment of money.

“ Person ” means any natural person, general or limited partnership, corporation, limited liability company, firm, association or other legal entity.

“ Purchase Price Adjustment ” means an amount (which may be positive or negative) equal to the Final Working Capital Adjustment minus the Estimated Working Capital Adjustment.

“ Purchaser Benefit Plan ” means each Benefit Plan sponsored, maintained or contributed to by Purchaser or any of its Subsidiaries or with respect to which Purchaser or any of its Subsidiaries is a party and in which any Employee is or becomes eligible to participate or derive a benefit.

“ Real Property Leases ” means all leases, subleases, licenses, concessions and other agreements relating exclusively to the Business, pursuant to which Seller holds a leasehold or subleasehold estate in, or is granted the right to use or occupy, any Leased Real Property, including the right to all security deposits and other amounts and instruments deposited by or on behalf of Seller or its Subsidiary thereunder.

“ Registered Intellectual Property ” means any Transferred Intellectual Property that is the subject of a patent, patent application, registration or application for registration.

 

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“ Securities Act ” means the Securities Act of 1933, as amended.

“ Seller Benefit Plan ” means each Benefit Plan sponsored, maintained or contributed to by Seller or any of its Subsidiaries or with respect to which Seller or any of its Subsidiaries is a party and in which any Employee is or becomes eligible to participate or derive a benefit.

“ Seller Disclosure Schedule ” means the disclosure schedule delivered by Seller to Purchaser on the date hereof.

“ Straddle Period ” means any Taxable period that includes, but does not end on, the day immediately prior to the Closing Date.

“ Subsidiary ” of any Person means any corporation, partnership, limited liability company, joint venture or other legal entity of which such Person owns, directly or indirectly, a majority of the stock or other equity interests the holders of which are generally entitled to vote for the election of or act as the board of directors or other governing body of such corporation or other legal entity, or of which such Person is a general partner or managing member.

“ Superior Alternative Transaction ” means an Alternative Transaction that the board of directors of Seller determines in good faith (after consultation with a financial advisor of nationally recognized reputation) to be for a higher aggregate purchase price (inclusive of assumed liabilities and reflecting terms of payment and the fair market value, as determined in good faith by Seller’s board of directors, of any non-cash consideration included in the purchase price), after taking into account any proposal by Purchaser to amend or modify the terms of the transactions contemplated by this Agreement, and that is reasonably likely to be consummated.

“ Supplier Warranty Agreements ” means any express or implied warranty, guarantee of performance or similar agreement or obligation made by the manufacturer, supplier or seller of an Asset that by its terms or under applicable Law cannot be transferred in connection with the transfer of the relevant Asset.

“ Tax ” or “ Taxes ” means any and all taxes, charges, fees, levies, imposts, duties or other assessments of any kind whatsoever, imposed by or payable to any federal, state, provincial, local, or foreign tax authority, including any gross income, net income, alternative or add-on minimum, franchise, profits or excess profits, gross receipts, estimated, capital, goods, services, documentary, use, transfer, ad valorem, business rates, value added, sales, customs, real or personal property, capital stock, license, payroll, withholding or back-up withholding, employment, social security, workers’ compensation, unemployment compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, occupancy, transfer or gains taxes, together with any interest, penalties, additions to tax or additional amounts imposed with respect thereto. The term “ Taxable ” shall have a correlative meaning.

“ Tax Returns ” means all returns, reports (including declarations, disclosures, schedules, estimates and information returns) and other information required to be supplied to a Tax authority relating to Taxes.

 

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“ Trademarks ” means rights to trademarks, service marks, brand names, distinguishing guises, trade dress, logos, designs, trade names, words, symbols, color schemes, business names, internet domain names and other indications of origin.

“ Transaction Documents ” means this Agreement, the Ancillary Agreements and any certificate or other document delivered by any party hereto or thereto in connection herewith or therewith.

“ Transfer Taxes ” means all goods, services, excise, sales, use, real or personal property, gross receipt, withholding, documentary, value added, stamp, registration, filing, recordation and all other similar Taxes or other like charges, together with interest, penalties or additional amounts imposed with respect thereto.

“ Transferred Intellectual Property ” means (a) those patents and patent applications listed in Section 1.01(a)(viii) of the Seller Disclosure Schedule ; (b) those Trademarks (including any registrations and applications therefor) listed in Section 1.01(a)(ix) of the Seller Disclosure Schedule and any goodwill associated therewith; (c) those copyright registrations and applications listed in Section 1.01(a)(x) of the Seller Disclosure Schedule together with any other copyrights owned by Seller or any of its Subsidiaries as of the Closing Date and used exclusively in connection with the Business; (d) all Transferred Software; and (e) all trade secrets, know-how and rights to other proprietary data and information owned by Seller or any of its Subsidiaries as of the Closing Date and used exclusively in connection with the Business, together (in each case) with all rights to collect royalties, products and proceeds in connection therewith, all rights to sue for past, present and future infringement, misappropriation or other violation thereof, and all rights to recover damages or lost profits in connection therewith.

“ Transferred Software ” means the computer programs and databases listed in Section 1.01(a)(xi) of the Seller Disclosure Schedule , in all cases excluding any components of the Atlas system.

“ Transition Services Agreement ” means the Transition Services Agreement to be executed by the parties thereto on the Closing Date, in the form of Exhibit H .

“ US GAAP ” means, at any time, generally accepted accounting principles in the United States in effect as of such time.

“ VeriSign Performance Plan ” means the 2009 VeriSign Performance Plan.

“ Working Capital ” means, with respect to any date, the net balance of amounts of the accounts shown on Exhibit I , as calculated in accordance with US GAAP, as adjusted in accordance with the accounting principles, methodologies and policies set forth on Exhibit I .

“ Working Capital Ceiling ” means an amount equal to the Base Working Capital plus $500,000.

“ Working Capital Floor ” means an amount equal to the Base Working Capital minus $500,000.

 

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SECTION 1.02. Other Defined Terms . The following terms have the meanings defined for such terms in the Sections set forth below:

 

 

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SECTION 1.03. Interpretation .

(a) Words in the singular shall include the plural and vice versa, and words of one gender shall include the other genders, in each case, as the context requires.

(b) The terms “hereof,” “herein,” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement and not to any particular provision of this Agreement, and Article, Section, paragraph, Exhibit and Schedule references are to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified.

(c) The word “including” and words of similar import shall mean “including, without limitation,” unless otherwise specified.

(d) The phrases “made available to Purchaser” or “furnished to Purchaser” shall include documents that were posted to the “Project Communications Services Group” data rooms at https://bdr124907.bmcgroup.com and https://bdr126108.bmcgroup.com/ , prior to, and that remain accessible to Purchaser on, the date that is one Business Day prior to the date of this Agreement.

ARTICLE II

PURCHASE AND SALE OF ASSETS

SECTION 2.01. Purchase and Sale of Assets; Exclusion of Excluded Assets .

(a) On the terms and subject to the conditions set forth in this Agreement, as of 12:01 a.m. on the Closing Date, Seller shall (or, as applicable, shall cause a Subsidiary of Seller to) sell, transfer, convey, assign and deliver to Purchaser (or, as applicable, one or more wholly owned Subsidiaries of Purchaser designated by Purchaser not less than 5 Business Days prior to the Closing Date), and Purchaser shall (or, as applicable, shall cause such wholly owned Subsidiary or Subsidiaries of Purchaser to) purchase and accept from Seller (or, as applicable, such Subsidiary of Seller) all of Seller’s and its Subsidiaries’ right, title and interest in and to each of the following assets, properties and rights, but in each case excluding the Excluded Assets (such assets, properties and rights, the “ Assets ”), free and clear of all Liens other than Permitted Liens or Liens created by or through Purchaser or any of its Affiliates:

(i) the Owned Real Property and Real Property Leases;

 

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(ii) the Assumed Contracts;

(iii) all current assets included on the Closing Statement;

(iv) any other prepaid expenses and cash lease deposits relating exclusively to the Business or the Assets, to the extent not reflected on the Closing Statement;

(v) the Equipment;

(vi) the Inventory;

(vii) originals or copies of books of account, supplier and customer lists, correspondence, marketing and promotional materials (including website content), records and files in any form or media (including computerized, online or electronic) and any other information reduced to writing or other physical or tangible media relating to the Business, in each case exclusively used or held for use in the conduct of the Business;

(viii) the Transferred Intellectual Property;

(ix) all past, present and future claims, causes of action, choses in action, rights of recovery and rights of set-off of any kind, to the extent (A) relating to the Assets and accruing on or after the Closing Date or (B) relating to the Assumed Liabilities;

(x) subject to Section 2.01(b)(iii), all rights under or pursuant to all warranties, representations and guaranties made by suppliers in connection with the Assets or relating exclusively to the operation of the Business, in each case, to the extent such warranties, representations and guaranties are assignable to Purchaser, and if such warranties, representations and guaranties are not assignable to Purchaser, then any proceeds actually recovered by Seller or any Subsidiary to the extent allocable to the Assets;

(xi) with respect to Contracts pursuant to which Seller (or one or more of its Subsidiaries) provides to the counterparty both the services provided by the Business and other services, the rights thereunder (including in respect of any service order or work order) relating to the Business (such rights relating to the Business, the “ Shared Contracts ”);

(xii) all proceeds from insurance policies held by Seller or any of its Subsidiaries relating to losses of the Business arising on or after the Closing Date and attributable to the Assets;

 

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(xiii) all other properties, assets and rights used exclusively in the Business that are not Excluded Assets; and

(xiv) all of Seller’s goodwill in the Business as a going concern.

(b) Notwithstanding anything in this Agreement to the contrary, Seller and its Subsidiaries shall retain their respective right, title and interest in and to, and Purchaser shall have no rights with respect to the right, title and interest of Seller and its Subsidiaries in and to, the following assets (such assets, the “ Excluded Assets ”):

(i) all the business, properties, assets, goodwill and rights of whatever kind and nature, real or personal, tangible or intangible that are owned, leased or licensed by Seller and its Subsidiaries on the Closing Date and used, held for use or intended to be used primarily in the operation or conduct of any business of Seller and its Subsidiaries other than the Business;

(ii) the minute books, stock ledgers, Tax records and Tax-related documents of Seller and its Subsidiaries;

(iii) all past, present, and future claims, causes of action and, choses in action, rights of recovery, rights of settlement or rights of any kind of Seller and its Subsidiaries (A) relating to the Business and accruing prior to the Closing Date, other than the current assets included on the Closing Statement, and (B) against any third party relating to any Retained Liability or to any Liability for which Seller or any of its Subsidiaries is responsible under this Agreement, including under any Supplier Warranty Agreement (including rights of set-off, rights to refunds and rights of recoupment thereunder);

(iv) all rights to Tax refunds, credits or similar benefits relating to the Assets or the Business attributable to periods, or portions of periods, ending before the Closing Date (which, in the case of a Straddle Period, shall be allocated among the parties in a manner consistent with Section 7.03 );

(v) all rights of Seller under this Agreement and the Ancillary Agreements;

(vi) subject to Section 2.01(a)(xii), all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance policies;

(vii) any assets used primarily for the purpose of providing Overhead and Shared Services and, other than as provided in the Transition Services Agreement, any rights of the Business to receive from Seller or any of its Affiliates any Overhead and Shared Services;

 

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(viii) software other than (A) the Transferred Software and (B) other software and computer databases for which Purchaser has obtained a license (or other right to use) as set forth in the definition of “Equipment”;

(ix) except (A) for the Transferred Intellectual Property and (B) as otherwise expressly provided in the Intellectual Property License Agreement or the Transition Services Agreement, all rights relating to any Intellectual Property Rights of Seller or any of its Subsidiaries (including Seller’s name);

(x) except to the extent described in Section 2.01(a)(iii) or 2.01(a)(iv), all cash, cash equivalents and bank accounts or similar cash items, or prepaid expenses of Seller and its Subsidiaries (whether or not reflected on the books of Seller or its Subsidiaries as of the Closing Date);

(xi) all stock or other equity interests in any Person;

(xii) all records prepared in connection with the sale of the Business to Purchaser;

(xiii) except as expressly provided herein, any asset related to or set aside to fund any employee benefit plan, program, arrangement, agreement or commitment; and

(xiv) any assets set forth in Section 2.01(b)(xiv) of the Seller Disclosure Schedule .

(c) Subject to the terms and conditions hereof, Seller and Purchaser shall, or shall cause their respective Subsidiaries to, enter into such agreements or instruments (the “ Foreign Acquisition Agreements ”) providing for the sale, transfer, assignment or other conveyance of any Assets located outside the United States as, pursuant to requirements of applicable local Law, would be required or advisable to be documented separately from this Agreement, which Foreign Acquisition Agreements shall be negotiated in good faith between Seller and Purchaser, but in all events shall be consistent with the terms of this Agreement.

(d) Subject to Sections 5.03 and 5.10, Seller shall have the right to retain, following the Closing Date, copies of any book, record, literature, list and any other written or recorded information constituting Assets to which Seller in good faith determines it is reasonably likely to need access for bona fide business or legal purposes relating to pre-Closing Liabilities or the operation of businesses of the Seller other than the Business.

SECTION 2.02. Assumption of Assumed Liabilities; Retention of Retained Liabilities .

(a) As of 12:01 a.m. on the Closing Date, Purchaser shall (or shall cause one or more of its wholly owned Subsidiaries designated by Purchaser not less than 5 Business Days prior to the Closing Date to) assume and become obligated to pay, perform and discharge when due, the following Liabilities, whether accrued or arising before, on or after the Closing Date (such Liabilities, the “ Assumed Liabilities ”):

(i) all Liabilities relating to the Assets or the Business to the extent arising from or relating to any event, circumstance or condition occurring on or after the Closing Date;

 

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(ii) all Liabilities under the Assumed Contracts and the Shared Contracts, excluding any liability or obligation relating to or arising out of such Assumed Contracts or Shared Contracts, as applicable, as a result of (A) any breach of such Assumed Contracts or Shared Contracts occurring prior to the Closing Date, or (B) any violation of law, breach of warranty, tort or infringement occurring prior to the Closing Date;

(iii) all accounts payable and accrued expenses of the Business not related to an Assumed Contract or a Shared Contract, to the extent reflected on the Closing Statement;

(iv) all Liabilities relating to Transferred Employees that are to be assumed by Purchaser pursuant to Article VI ;

(v) all product liability, professional liability or any other claims arising out of the sale and/or use of products or services sold following the Closing in connection with the Business (regardless of when manufactured or provided);

(vi) subject to Section 6.01(e) , (x) all amounts that become payable pursuant to and in accordance with each Change of Control Agreement and (y) bonus payments to the Transferred Employees identified on Section 2.02(a)(vi) of the Seller Disclosure Schedule to the extent such bonus payments become payable to such Transferred Employees following the Closing under the terms of the VeriSign Performance Plan; and

(vii) all Liabilities identified in Section 2.02(a)(vii) of the Seller Disclosure Schedule .

(b) Seller or the relevant Subsidiary shall retain, and shall be fully responsible for paying, performing and discharging when due, and Purchaser shall not assume or have any responsibility for, any Liabilities of Seller and its Subsidiaries other than the Assumed Liabilities (the “ Retained Liabilities ”), including the following:

(i) any Liability arising out of or relating to the Excluded Assets;

(ii) any of Seller’s Liabilities for expenses and fees incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’, accountants and brokerage fees, but not including any transfer Taxes, which shall be governed by Section 7.01 );

 

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(iii) any Liability related to any Employee (including, but not limited to, any retention, stay bonus or similar agreements entered into prior to the Closing Date in connection with or related to the transactions contemplated hereby), except to the extent such liability relates to a Transferred Employee and is expressly assumed by the Purchaser pursuant to Article VI;

(iv) any obligation or liability under any intercompany accounts payable to or intercompany obligations among the Seller and its Affiliates, including those relating to the Business, except as provided in the Ancillary Agreements;

(v) any obligation or liability for any Taxes related to the Business or the Assets for periods (or portions thereof) ending before the Closing Date (which, in the case of a Straddle Period, shall be allocated in accordance with Section 7.03 );

(vi) any Liability in respect of indebtedness of the Seller, except for trade debt relating to Assumed Contracts;

(vii) Liabilities with respect to being a member or part of Seller’s control group or affiliated group, or by virtue of being owned or controlled by Seller, under ERISA, or with respect to discrimination, wrongful termination or other employee claims, the underlying facts of which relate primarily to the pre-Closing period;

(viii) any of Seller’s liabilities or obligations which Purchaser may become liable for as a result of or in connection with the failure by Purchaser or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “de facto merger” or “successor-in-interest” theories of liability, to the extent that any such noncompliance results in Purchaser assuming any Liability not set forth in Section 2.02(a); and

(ix) any of Seller’s Liabilities not otherwise referred to in this Section 2.02(b) relating to any legal action, proceeding, claim or investigation arising out of or in connection with Seller’s or any of its Subsidiary’s conduct of the Business prior to the Closing Date, any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors in each case other than Assumed Liabilities.

For purposes of this Section 2.02(b) , “Seller” shall be deemed to include all Affiliates and Subsidiaries of Seller and any predecessors to Seller and any Person with respect to which Seller is a successor-in-interest (including by operation of law, merger, liquidation, consolidation, assignment, assumption or otherwise). Seller hereby acknowledges that it is retaining the Retained Liabilities.

 

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SECTION 2.03. Purchase Price; Allocation of Purchase Price .

(a) Subject to the terms and conditions of this Agreement, in consideration of the transfer of Assets under Section 2.01 , Purchaser on its own behalf and, as applicable, as agent for its designated Subsidiaries, shall (i) assume and become obligated to pay, perform and discharge the Assumed Liabilities and (ii) pay to Seller an amount of cash (the “ Purchase Price ”) equal to U.S.$230,000,000 (the “ Base Purchase Price ”), as adjusted in accordance with Sections 2.03(c) and 2.04(b) .

(b) For purposes of determining the amount of cash to be paid as the Estimated Purchase Price by Purchaser to Seller at the Closing pursuant to Section 2.07 , Seller shall prepare and deliver, not less than five Business Days before the Closing Date, a good faith estimate of the Working Capital as of the Closing Date (such estimated amount, the “ Estimated Working Capital ”), which shall be reasonably acceptable to the Purchaser.

(c) As used in this Agreement, the “ Estimated Purchase Price ” shall mean an amount equal to the Base Purchase Price plus an amount equal to the Estimated Working Capital Adjustment (which may be positive or negative).

(d) The Purchase Price and the Assumed Liabilities shall be allocated among the Assets in accordance with their fair market values as mutually determined by Purchaser and Seller (the “ Allocation Schedule ”) for all Tax purposes, including for purposes of Section 1060 of the Code and the Treasury Regulations thereunder. Seller and Purchaser will use commercially reasonable efforts to agree on a final Allocation Schedule within 30 days after the final Purchase Price and the Assumed Liabilities have been finalized pursuant to Section 2.04. The procedures set forth in Sections 2.04(c), (d) and (e) , including the use of an Accounting Arbitrator, shall govern any dispute and the resolution thereof with respect to the final Allocation Schedule. Any subsequent allocation necessary as a result of an adjustment to the consideration to be paid hereunder shall be determined by Seller and Purchaser in a manner consistent with the Allocation Schedule. For all Tax purposes, Purchaser and Seller agree (i) to report, and cause their respective Subsidiaries to report, the transactions contemplated by this Agreement in a manner consistent in all respects with the final Allocation Schedule, which shall be binding upon Purchaser and Seller and their respective Subsidiaries and (ii) not to take any position inconsistent therewith in any Tax Return, Tax filing (including filings required under Section 1060 of the Code), audit, refund claim or otherwise.

SECTION 2.04. Purchase Price Adjustment .

(a) The Purchase Price shall be adjusted after the Closing in accordance with this Section 2.04 based upon the Working Capital as of the Closing Date (the “ Final Working Capital ”). For purposes hereof, the statement of the Final Working Capital, together with the calculation of the Purchase Price pursuant to this Section 2.04 , shall be referred to as the “ Closing Statement .”

 

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(b) If (i) the Purchase Price Adjustment as finally determined in accordance with this Section 2.04 is greater than zero, Purchaser shall pay to Seller the Purchase Price Adjustment or (ii) the Purchase Price Adjustment as finally determined in accordance with this Section 2.04 is less than zero, Seller shall pay to Purchaser the Purchase Price Adjustment, in either case by wire transfer, within three Business Days after the final determination of the Purchase Price, of immediately available U.S. Dollar funds to an account designated by the party receiving payment, plus interest on such amount accrued from the Closing Date to the date of such payment at the prime rate applicable from time to time as announced by Citibank, N.A.

(c) As promptly as practicable (and in any event within 75 days after the Closing), Purchaser shall prepare and deliver to Seller the Closing Statement prepared in accordance with this Section 2.04 . If Seller disagrees with the determination of the Closing Statement, Seller shall notify Purchaser of such disagreement within 30 days after delivery of the Closing Statement (such notice, the “ Disagreement Notice ”). The Disagreement Notice shall set forth, in reasonable detail, any disagreement with, and any requested adjustment to, the Closing Statement. Matters as to which Seller may submit disagreements (and the Disagreement Notice) shall be limited to whether the Closing Statement delivered by Purchaser was calculated in accordance with US GAAP and prepared on the basis of, and using the same accounting principles, methodologies and policies reflected in, Exhibit I , and Seller shall not be entitled to submit disagreements on any other basis (including as to whether such principles, methodologies and policies are or were appropriate). If Seller fails to deliver the Disagreement Notice by the end of such 30-day period, Seller shall be deemed to have accepted the Closing Statement delivered by Purchaser. Matters included in the calculations in the Closing Statement to which Seller does not object in the Disagreement Notice shall be deemed accepted by Seller and shall not be subject to further dispute or review. During the period prior to Seller’s delivery of any Disagreement Notice, Seller shall have reasonable access to all documents, schedules and workpapers used by Purchaser in the preparation of the Closing Statement. Purchaser and Seller shall negotiate in good faith to resolve any such disagreement with respect to the Closing Statement, and any resolution agreed to in writing by Purchaser and Seller shall be final and binding upon the parties.

(d) If Purchaser and Seller are unable to resolve any disagreement as contemplated by paragraph (c) of this Section 2.04 within 30 days after delivery of a Disagreement Notice by Seller, Purchaser and Seller shall jointly select a partner at a mutually agreeable accounting firm to resolve such disagreement. If Purchaser and Seller are unable to reach agreement on the identity of such a partner within 20 days after the expiration of such 30-day period, either party may request that a partner at a nationally recognized accounting firm be appointed by the American Arbitration Association. The individual so selected shall be referred to herein as the “ Accounting Arbitrator .” The Accounting Arbitrator shall determine, based solely on the provisions of this Agreement and the presentations by Purchaser and Seller and their respective representatives, and not by independent review, the appropriate amount, inclusion or omission of the items and amounts set forth in the Closing Statement as to which Purchaser and Seller have not resolved a disagreement identified in the Disagreement Notice (and only such matters). In resolving any such disputed item, the Accounting Arbitrator shall not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. Purchaser and Seller shall use commercially reasonable efforts to cause the Accounting Arbitrator to deliver to the parties, as promptly as practicable (and in no event

 

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later than 30 days after his or her appointment), a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. Such report shall be final and binding upon the parties. In the event the Accounting Arbitrator concludes that Seller was correct as to a majority (by dollar amount) of the disputed items, then Purchaser shall pay the Accounting Arbitrator’s fees, costs and expenses. In the event the Accounting Arbitrator concludes that Purchaser was correct as to a majority (by dollar amount) of the disputed items, then Seller shall pay the Accounting Arbitrator’s fees, costs and expenses.

(e) Purchaser and Seller agree that any payments made pursuant to this Section 2.04  shall be allocated in a manner consistent with the allocation referred to in Section 2.03(d) .

SECTION 2.05. Closing . Subject to the terms and conditions of this Agreement, the sale and purchase of the Assets and the assumption of the Assumed Liabilities, all as contemplated hereby, shall take place at a closing (the “ Closing ”) to be held at 11:00 AM, Eastern time, on the first Business Day that is (a) two Business Days following the satisfaction or waiver of all of the conditions to the obligations of the parties set forth in Article VIII (other than conditions to be satisfied at the Closing, but subject to the waiver or fulfillment of those conditions) or (b) the date that is mutually agreed upon in writing by Seller and Purchaser (the day on which the Closing takes place being the “ Closing Date ”), at such place as Seller and Purchaser may mutually agree upon in writing.

SECTION 2.06. Closing Deliveries by Seller . At the Closing, Seller shall deliver or cause to be delivered to Purchaser:

(a) a counterpart of each of the Ancillary Agreements, executed by each of Seller and its Subsidiaries that is a party thereto, to the extent not delivered prior to the Closing;

(b) a non-foreign affidavit dated as of the Closing Date and in the form and substance required under the Treasury Regulations issued pursuant to Section 1445(b) of the Code so that Purchaser is not obligated to withhold any portion of the Purchase Price thereunder; and

(c) any other documents required pursuant to this Agreement or reasonably requested by Purchaser.

SECTION 2.07. Closing Deliveries by Purchaser . At the Closing, Purchaser shall deliver or cause to be delivered to Seller:

(a) a counterpart of each of the Ancillary Agreements, executed by each of Purchaser and its Subsidiaries that is a party thereto, to the extent not delivered prior to the Closing;

(b) the Estimated Purchase Price by wire transfer in immediately available funds, to an account or accounts designated at least two Business Days prior to the Closing Date by Seller in a written notice to Purchaser; and

 

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(c) any other documents required pursuant to this Agreement or reasonably requested by Seller.

SECTION 2.08. Accounting . To the extent that, after the Closing Date, (a) Purchaser or any of its Subsidiaries receives any payment or instrument that is for the account of Seller or any of its Subsidiaries according to the terms of this Agreement, Purchaser shall promptly deliver such amount or instrument to Seller, and (b) Seller or any of its Subsidiaries receives any payment or instrument that is for the account of Purchaser or any of its Subsidiaries according to the terms of this Agreement, Seller shall promptly deliver such amount or instrument to Purchaser.

SECTION 2.09. Nonassignable Assets .

(a) Nothing in this Agreement, nor the consummation of the transactions contemplated hereby, shall be construed as an attempt or agreement to assign or transfer any Asset (including any Assumed Contract or Shared Contract) to Purchaser which by its terms or by Law is nonassignable without a Consent (a “ Nonassignable Asset ”), unless and until such Consent shall have been obtained. Seller shall advise Purchaser in writing at least five (5) Business Days prior to the Closing (a) of any Material Contract with a Material Customer that in the most recent fiscal year of Seller resulted in, or is required by its terms in the future to result in, the payment or receipt by the Business of more than $100,000 per annum in the aggregate with respect to which a Consent of the counterparty is required for assignment and (b) if, to the Knowledge of any of the individuals listed in Part 1 of Section 1.01(a)(iv) of the Seller Disclosure Schedule , Seller has received written notice by letter, facsimile or email that such Material Customer will not agree to the assignment of any Material Contract described in clause (a) to Purchaser hereunder at the Closing. To the extent permitted by applicable Law and by the terms of the applicable Nonassignable Asset, such Nonassignable Asset shall be held, as of and from the Closing Date, by Seller (or the relevant Subsidiary of Seller) for the benefit and burden of Purchaser and the covenants and obligations thereunder shall be fully performed by Purchaser on Seller’s (or such Subsidiary’s) behalf and all rights and Liabilities existing thereunder shall be for Purchaser’s account. For the avoidance of doubt, the designation of an Asset as a Nonassignable Asset does not render it an Excluded Asset.

(b) To the extent permitted by applicable Law and by the terms of the applicable Nonassignable Asset, Seller and Purchaser shall take, or cause to be taken, such actions as the other party may reasonably request that are required to be taken or appropriate in order to provide Purchaser with the benefits and burdens of the Nonassignable Assets. Seller shall promptly pay over to Purchaser the net amount (after de minimis reasonable administrative expenses and an adjustment for Taxes placing each party as nearly as possible in the same position as if the Nonassignable Asset had been transferred to Purchaser on the Closing Date), of all payments received by it (or such Subsidiary) in respect of all Nonassignable Assets and Purchaser shall indemnify Seller (or such Subsidiary) for all Losses attributable to Seller’s (or such Subsidiary’s) holding of all Nonassignable Assets.

(c) Nothing in this Section 2.09 shall require Seller or any of its Subsidiaries to renew any Nonassignable Asset that is an Assumed Contract or a Shared Contract. In addition, Seller (or the applicable Subsidiary of Seller) shall have the right, any time after the

 

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six-month anniversary of the Closing Date, upon no less than 10 Business Days’ advance written notice to Purchaser, to exercise any right to terminate any Nonassignable Asset that is an Assumed Contract or a Shared Contract.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER

For purposes of the representations and warranties of Seller contained herein, other than Section 3.05, disclosure in any section of the Seller Disclosure Schedule of any facts or circumstances shall be deemed to be adequate response and disclosure of such facts or circumstances with respect to all representations or warranties by Seller calling for disclosure of such information, whether or not such disclosure is specifically associated with or purports to respond to one or more of such representations or warranties, to the extent a matter is disclosed in such a way as to make its relevance to such other representation or warranty readily apparent. The inclusion of any information in any section of the Seller Disclosure Schedule or other document delivered by Seller pursuant to this Agreement shall not be deemed to be an admission or evidence of the materiality of such item, nor shall it establish a standard of materiality for any purpose whatsoever.

Except (a) as set forth in the Seller Disclosure Schedule, (b) as disclosed in, or as readily apparent from, the face of the Financial Information, or (c) to the extent relating solely to the Excluded Assets or the Retained Liabilities, Seller represents and warrants to Purchaser as follows.

SECTION 3.01. Organization and Good Standing . Seller, and each of its Subsidiaries that is or will be a party to any of the Ancillary Agreements, is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and has all requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted. Seller and each such Subsidiary is duly licensed or qualified to do business in each jurisdiction in which the properties owned or leased by it or the operation of its business makes such licensing or qualification necessary, except to the extent that the failure to be so licensed or qualified would not, individually or in the aggregate, have a Material Adverse Effect or a materially adverse effect upon Seller’s or such Subsidiaries’ ability to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement and the Ancillary Agreements.

SECTION 3.02. Authority . Seller, and each of its Subsidiaries that is or will be a party thereto, has full power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is or will be a signatory and to perform its obligations hereunder and thereunder. The execution, delivery and performance by Seller and each such Subsidiary of this Agreement and each Ancillary Agreement to which it is or will be a signatory has been duly authorized by all requisite corporate action on the part of Seller and each such Subsidiary, and no other proceedings on the part of Seller or any of its Subsidiaries are necessary to authorize the execution, delivery or performance of this Agreement. This Agreement has been, and upon execution of each Ancillary Agreement each such Ancillary Agreement will be, duly executed and delivered by Seller and each such Subsidiary that is or will be a party thereto

 

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and (assuming due authorization, execution and delivery by Purchaser and, if applicable in the case of the Ancillary Agreements, by each Subsidiary of Purchaser that is or will be a party thereto) this Agreement constitutes, and each Ancillary Agreement to which Seller or any such Subsidiary is or will be a party constitutes or, when so executed and delivered, will constitute, a legal, valid and binding obligation of Seller and each such Subsidiary, enforceable against Seller and each such Subsidiary in accordance with its terms, subject only to the effect, if any, of (a) applicable bankruptcy and other similar Laws affecting the rights of creditors generally and (b) Laws governing specific performance, injunctive relief and other equitable remedies.

SECTION 3.03. No Conflict; Consents and Approvals . Subject to the filing by Seller of reports under the Exchange Act and as contemplated by the rules of Nasdaq and to the requirements of the HSR Act and any filings or applications required under the Laws of any non-U.S. jurisdiction, including the European Union or any nation thereof, (a) the execution and delivery by Seller or, if applicable in the case of the Ancillary Agreements, any of its Subsidiaries, of this Agreement and the Ancillary Agreements to which it is or will be a party, (b) the consummation by Seller or any such Subsidiary of the transactions contemplated hereby or thereby and (c) the compliance by Seller or any such Subsidiary with any of the provisions hereof or thereof, do not and will not:

(i) conflict with, or result in the breach of, any provision of the certificate of incorporation or by-laws or other organizational documents of Seller or any such Subsidiary;

(ii) require Seller or any such Subsidiary to make any filing with, or obtain any Consent;

(iii) conflict with, violate or result in the breach by Seller or any such Subsidiary of any applicable Law;

(iv) after the giving of notice, or the lapse of time or otherwise, conflict with, violate, result in the breach or termination of or constitute a default under, or give any party the right to terminate, amend, modify, abandon, cancel or refuse to perform under, or accelerate or modify the time within which or the terms under which any duties or obligations are to be performed by the Seller or any rights or benefits are to be received by any Person under, any Assumed Contract or Shared Contract (except Nonassignable Assets); or

(v) result in the creation of any Lien (other than any Permitted Lien or any Lien created by or through Purchaser) upon any of the Assets;

except, in the case of clauses (ii), (iii) and (iv), for such matters that individually or in the aggregate, would not have a Material Adverse Effect or a material adverse effect upon Seller’s or any such Subsidiary’s ability to carry out its respective obligations under, and to consummate the transactions contemplated by, this Agreement and the Ancillary Agreements.

 

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SECTION 3.04. Financial Information .

(a) Seller has provided Purchaser with the audited adjusted financial information relating to the Business set forth in Part I of Section 3.04 of the Seller Disclosure Schedule (the “ Audited Financial Information ”). The Audited Financial Information is accurate and complete in all material respects and has been prepared in good faith on the bases described therein using the financial books and records maintained by Seller for the Business, in each case as of the dates and for the periods presented therein and except as otherwise described in Part II of Section 3.04 of the Seller Disclosure Schedule . The Audited Financial Information (a) has been prepared in accordance with US GAAP and (b) fairly presents, in all material respects, the financial condition of the Business as of the date thereof and the operating results of the Business for the periods covered thereby. The Audited Financial Information reflects the historical operation of the Business (including the Overhead and Shared Services and the Excluded Assets) for the periods specified therein.

(b) Seller has provided Purchaser with the unaudited adjusted financial information relating to the Business set forth in Part III of Section 3.04 of the Seller Disclosure Schedule (the “ Unaudited Financial Information ” and, together with the Audited Financial Information, the “ Financial Information &rdq