EX-10.96 3 ttec-20170331ex1096e7c37.htm EX-10.96 PURCHASE AGREEMENT dated as of April 3, 2017 by and among OPTUMHEALTH HOLDINGS, LLC, AS SELLER, CONNEXTIONS, INC., AND TELETECH HEALTHCARE SOLUTIONS, INC., AS BUYER PURCHASE AGREEMENT
Exhibit 10.96
dated as of
April 3, 2017
by and among
OPTUMHEALTH HOLDINGS, LLC, AS SELLER,
CONNEXTIONS, INC.,
AND
TELETECH HEALTHCARE SOLUTIONS, INC., AS BUYER
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Exhibit 10.96
TABLE OF CONTENTS
Article I DEFINITIONS.....................................................................................................................................................1
SECTION 1.1.Certain Defined Terms.......................................................................................................1
Article II THE PURCHASE AND SALE...................................................................................................................................1
SECTION 2.1.Purchase and Sale of the Shares.........................................................................................1
SECTION 2.2.Consideration...................................................................................................................1
SECTION 2.3.Pre-Closing Adjustment...................................................................................................1
SECTION 2.4.Closing...............................................................................................................................2
SECTION 2.5.Post-Closing Adjustment..................................................................................................3
Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLER.......................................................................5
SECTION 3.1.Organization and Qualification..........................................................................................5
SECTION 3.2.Capitalization; Subsidiaries................................................................................................6
SECTION 3.3.Title to the Shares.............................................................................................................7
SECTION 3.4.Authority Relative to the Transaction Documents...............................................................7
SECTION 0.0.Xxxxxxxxx Information.......................................................................................................7
SECTION 0.0.Xx Undisclosed Liabilities.................................................................................................7
SECTION 3.7.Consents and Approvals; No Violations.............................................................................8
SECTION 3.8.Compliance with Laws......................................................................................................8
SECTION 0.0.Xxxxxxxx...........................................................................................................................10
SECTION 3.10.Litigation.........................................................................................................................10
SECTION 3.11.Employee Benefit Plans..................................................................................................11
SECTION 3.12.Labor Matters.................................................................................................................11
SECTION 3.13.Environmental Matters...................................................................................................13
SECTION 3.14.Taxes...............................................................................................................................13
SECTION 3.15.Material Contracts.........................................................................................................15
SECTION 0.00.Xxxxxxxxx Matters...........................................................................................................17
SECTION 3.17.Intellectual Property.....................................................................................................17
SECTION 3.18.Accounts Receivable.......................................................................................................18
SECTION 3.19.Customers and Material Suppliers...................................................................................18
SECTION 3.20.Brokers...........................................................................................................................19
SECTION 3.21.Transactions with Affiliates.............................................................................................19
Article IV REPRESENTATIONS AND WARRANTIES OF BUYER.................................................................................................19
SECTION 4.1.Organization and Qualification.........................................................................................19
SECTION 4.2.Authority Relative to the Transaction Documents.............................................................19
SECTION 4.3.Brokers...........................................................................................................................20
SECTION 4.4.Consents and Approvals; No Violations...........................................................................20
SECTION 4.5.Litigation.........................................................................................................................20
SECTION 4.6.Investment Intent.........................................................................................................20
SECTION 0.0.Xx Other Representations and Warranties.......................................................................20
Article V CERTAIN COVENANTS AND AGREEMENTS...........................................................................................................21
SECTION 5.1.Access and Information...................................................................................................21
SECTION 0.0.Xxx Matters...................................................................................................................21
SECTION 5.3.Additional Efforts...........................................................................................................24
SECTION 5.4.Public Announcements...................................................................................................24
SECTION 5.5.Employees; Company Employee Benefits.........................................................................24
SECTION 5.6.Names and Trademarks of Seller; Signage.......................................................................25
SECTION 5.7.Straddle Contracts.........................................................................................................25
SECTION 5.8.Restrictive Covenants.....................................................................................................27
Article VI Indemnification.............................................................................................................................................28
SECTION 6.1.Survival...........................................................................................................................28
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SECTION 6.2.Seller’s Indemnification Obligations.................................................................................28
SECTION 6.3.Limitation on Seller’s Indemnification Obligations...........................................................29
SECTION 6.4.Buyer’s Indemnification Obligations.................................................................................30
SECTION 6.5.Limitation on Buyer’s Indemnification Obligations...........................................................30
SECTION 6.6.Notice and Procedure....................................................................................................30
SECTION 6.7.Duty to Mitigate.............................................................................................................32
SECTION 6.8.Calculation of Damages...................................................................................................32
SECTION 6.9.Exclusive Remedy..........................................................................................................32
Article VII Miscellaneous...............................................................................................................................................33
SECTION 7.1.Fees and Expenses.........................................................................................................33
SECTION 7.2.Entire Agreement; Amendment; Assignment..................................................................33
SECTION 7.3.Waiver.............................................................................................................................33
SECTION 7.4.Notices.............................................................................................................................34
SECTION 7.5.Governing Law; Waiver of Jury Trial.................................................................................34
SECTION 7.6.Divisions and Headings...................................................................................................35
SECTION 7.7.Parties in Interest...........................................................................................................35
SECTION 7.8.Severability...................................................................................................................35
SECTION 7.9.Consent to Jurisdiction...................................................................................................35
SECTION 7.10.Counterparts.................................................................................................................35
SECTION 7.11.Interpretation...............................................................................................................35
SECTION 7.12.Time of Essence.............................................................................................................36
SECTION 7.13.Confidentiality...............................................................................................................36
SECTION 7.14.Waiver of Conflicts Regarding Representation; Non-Assertion of Attorney-Client Privilege.37
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THIS PURCHASE AGREEMENT, dated as of April 3, 2017 (this “Agreement”), is entered into by and among TeleTech Healthcare Solutions, Inc., a Delaware corporation (“Buyer”), CONNEXTIONS, INC., a Florida corporation (the “Company”), and OPTUMHEALTH HOLDINGS, LLC, a Delaware limited liability company (“Seller”).
WITNESSETH:
WHEREAS, Seller owns all of the issued and outstanding capital stock of the Company (the “Shares”);
WHEREAS, Buyer desires to purchase and acquire all of the Shares from Seller, and Seller desires to sell and transfer the Shares to Buyer, upon the terms and subject to the conditions set forth herein; and
WHEREAS, contemporaneously upon entry into this Agreement, Buyer and Seller are entering into that certain transition services and employee leasing agreements.
NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, Buyer, the Company and Seller hereby agree as follows:
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SECTION 1.1. Certain Defined Terms. Capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in Schedule A. |
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(i) pay Seller, by wire transfer of immediately available funds, the aggregate amount of Estimated Purchase Price; |
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(iii) pay all Transaction Expenses in accordance with written payment instructions delivered by Seller to Buyer; |
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(iv) deliver to Seller counterparts of the Transaction Documents (other than this Agreement), duly executed by Buyer; and |
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(v) deliver to Seller a certificate, dated as of the Closing Date, of the Secretary, Assistant Secretary or corollary officer of Buyer certifying that attached thereto is a complete and correct copy of the resolutions adopted by the Board of Directors of Buyer authorizing the execution, delivery and performance of this Agreement and all other agreements executed in connection herewith by such entity and the consummation of the transactions contemplated hereunder and thereunder. |
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(c) At the Closing, Seller shall: |
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(i) deliver to Buyer an assignment of the Shares (which are uncertificated) duly endorsed in blank or any other proper instrument of assignment endorsed in blank in proper form for transfer; |
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(ii) deliver to Buyer counterparts of the Transaction Documents (other than this Agreement), duly executed by Seller or an Affiliate of Seller (as applicable); |
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(iii) deliver to Buyer resignations of each director and officer of the Company and Connextions HCI, resigning from all positions with each of the Company and Connextions HCI effective at the Closing as permitted by Law; |
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(iv) deliver to Buyer evidence, in form and substance reasonably satisfactory to Buyer, of the release of all Liens on the assets of the Company and Connextions HCI, other than Permitted Liens; |
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(v) deliver to Buyer duly executed certification(s), in form and substance reasonably satisfactory to Buyer, that Seller is not a foreign person in accordance with Treasury Regulations Section 1.1445-2(b); |
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(vi) deliver to Buyer an executed copy of the Contribution Agreement, duly executed by the Company and each of the other parties thereto, along with schedules thereto; and |
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(vii) deliver to Buyer one or more certificates, dated as of the Closing Date, of the Secretary, Assistant Secretary or corollary officer of Seller and the Company certifying that attached thereto is a complete and correct copy of the resolutions adopted by the Board of Directors or other governing body (as applicable) of Seller and the Company authorizing the execution, delivery and performance of all Transaction Documents to which Seller or the Company, as applicable, is a party and all other agreements executed in connection therewith by such entity and the consummation of the transactions contemplated hereunder and thereunder. |
All payments made by Buyer pursuant to this Section 2.4(b) shall be made by wire transfer of immediately available funds to the accounts specified in writing at least two (2) Business Days prior to the Closing Date by Seller.
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(g) If Buyer and Seller are unable to resolve any disagreement as contemplated by Section 2.5(e) or Section 2.5(f) within forty-five (45) days after delivery of an Objection Notice, then Buyer and Seller shall engage the dispute resolution group of a nationally recognized independent public accounting firm or financial consulting firm mutually agreed upon by Buyer and Seller (the “Independent Auditor”), who shall, acting as experts and not as arbitrators, resolve the issues remaining in dispute in accordance with the terms of this Agreement. The parties agree that PricewaterhouseCoopers LLP is not independent for this purpose. The fees, costs and expenses of the Independent Auditor shall be borne by Buyer and Seller in proportion to the relative amount each party’s determination has been modified. For example, if Buyer challenges the calculation of the Net Working Capital by an amount of $100,000, but the Independent Auditor determines that Buyer has a valid claim for only $40,000, Seller shall bear 40% of the fees and expenses of the Independent Auditor and Buyer shall bear the other 60% of such fees and expenses. |
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basis of an independent review), and the Independent Auditor shall determine a value for any such disputed item which is equal to or between the final values proposed by Buyer and Seller in their respective submissions. |
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Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLER |
Except as set forth in the corresponding section of the Disclosure Schedule to this Agreement, the Company and Seller, jointly and severally, hereby represent and warrant to Buyer as follows in this Article III as of the date hereof. Any information disclosed in one section of the Disclosure Schedule shall be deemed, for purposes of disclosure made with respect to each section of this Article III, to have been disclosed in each section of the Disclosure Schedule where the application of such disclosure is readily apparent on its face from a reading of such disclosure.
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(a) Each of Seller, the Company and Connextions HCI is an entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and has all |
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requisite corporate or limited liability company power and authority, as the case may be, to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use (in each case, after giving effect to the Contribution), except where the failure to have such power and authority would not reasonably be expected to be material to the Business. |
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(c) Seller has made available to Buyer accurate and complete copies of the Governing Documents, as currently in effect, of the Company and Connextions HCI. |
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(d) The Company owns all of the issued and outstanding equity and ownership interests of Connextions HCI. Except as set forth in the preceding sentence, neither the Company nor Connextions HCI: (i) has any Subsidiaries, or (ii) otherwise holds any direct or indirect equity or ownership interest in any Person or other similar interest or any right (contingent or otherwise) to acquire the same. |
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(e) The authorized equity interests of Connextions HCI are accurately reflected in Section 3.2(e)(i) of the Disclosure Schedule. The beneficial and record ownership of the issued and outstanding equity interests of Connextions HCI is set forth on Section 3.2(e)(ii) of the Disclosure Schedule. The equity interests of Connextions HCI are not subject to, and were not issued in violation of, any preemptive rights or any other third party rights created by statute, the Governing Documents of Connextions HCI or any agreement to which Connextions HCI is, or was, a party or by which Connextions HCI is, or was, bound. All of the issued and outstanding equity interests of Connextions HCI have been validly issued, and are fully paid and are owned beneficially and of record by the Company, free and clear of any Liens. |
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SECTION 3.3. Title to the Shares. Seller is the owner of all right, title and interest (record and beneficial) in and to the Shares, free and clear of any Liens. |
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(c) No member of the Company Group nor any Related Entity (i) is a party to a Corporate Integrity Agreement or Certification of Corporate Compliance or similar agreement with the Office of Inspector General of the U.S. Department of Health and Human Services, (ii) is a party to a Deferred Prosecution Agreement with the Department of Justice (“DOJ”), (iii) is a party to or has reporting |
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obligations pursuant to any settlement agreement entered into with any Governmental Entity, (iv) has, since January 1, 2014, been the subject of any Government Program investigation or audit conducted by any Governmental Entity, (v) has, since January 1, 2014, been a defendant in any qui tam/False Claims Act litigation, or (vi) has, since January 1, 2014, received any complaints or information from a whistleblower or any other Person that would indicate that any member of the Company Group or any of its employees, agents, or contractors has violated, or is currently in violation of, any Law. |
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(d) No member of the Company Group nor any Related Entity is enrolled in or receiving payments directly from any Government Program. No member of the Company Group, no Related Entity, nor any of their respective employees, officers, directors or agents involved in the Business (i) is currently, or has been since January 1, 2014, excluded, debarred, suspended from or otherwise ineligible to participate in the Government Programs, nor to the Knowledge of Seller is any such action threatened; (ii) has been since January 1, 2014 subject to sanction pursuant to 42 U.S.C. §1320a-7a or 1320a-8 or convicted of a criminal offense related to the provision of healthcare items or services, including but not limited to a crime described at 42 U.S.C. §1320a-7b; or (iii) is listed in the United States Department of Health and Human Services Office of the Inspector General’s List of Excluded Individuals/Entities, listed in the General Services Administration Excluded Parties List System, or listed in the System for Award Management excluded list. |
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(e) When acting as a Business Associate of a Covered Entity or another Business Associate (such terms as defined by HIPAA), each member of the Company Group, OHCS, and OI has in effect agreements with each such Covered Entity and Business Associate that satisfy the requirements of HIPAA (“BA Agreements”). Each member of the Company Group, OHCS, and OI has in effect with each entity acting as its Business Associate or Subcontractor (as defined in HIPAA), as applicable, an agreement that satisfies all the requirements of HIPAA (“Vendor BA Agreements”). Each member of the Company Group, OHCS, and OI is in compliance with (i) all such BA Agreements and (ii) all Contracts or other arrangements between a member of the Company Group, OHCS, or OI and other business partners that apply to or restrict the use, disclosure or security of Personal Information. Each member of the Company Group, OHCS, and OI (A) has in place written privacy and security policies, and (B) has the right pursuant to such policies and the BA Agreements to use and disclose Personal Information for the purpose such information is and has been used and disclosed. Neither the execution, delivery or performance of this Agreement, nor the consummation of any of the transactions contemplated by this Agreement, including any transfer of any Personal Information resulting from such transactions, will violate any policies or any BA Agreements of any member of the Company Group, OHCS, or OI as such currently exist or as existed at any time during which any of such Personal Information was collected or obtained. |
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(f) No member of the Company Group, OHCS, or OI has since January 1, 2014 received any written complaint from any Person or Governmental Entity regarding such member of the Company Group’s, OHCS’s, OI’s, or any of their respective agents, employees or contractors’ uses or disclosures of, or security practices or security incidents regarding, Personal Information. Except as set forth on Section 3.8(f) of the Disclosure Schedule, there have not been since January 1, 2014 any breaches (as defined by HIPAA) involving Personal Information held or collected by or on behalf of any member of the Company Group, OHCS, or OI. No member of the Company Group, OHCS, or OI has since January 1, 2014 notified, either voluntarily or as required by Law, any affected individual, any customer, any Governmental Entity, or the media of any breach of Personal Information, and no member of the Company Group, OHCS, or OI is currently planning to conduct any such notification or investigating whether any such notification is required. No member of the Company Group, OHCS, or OI is subject to any pending suit, action, proceeding, or investigation, audit or review by a Governmental Entity, nor, to the Knowledge of Seller, has any such suit, action, proceeding, or investigation, audit or review been threatened in writing, for a violation of HIPAA. |
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(g) No member of the Company Group, nor OHCS and OI, nor any director, officer, agent, employee, or Representative thereof involved in the Business, nor any other Person associated with or acting therefor or on behalf thereof in connection with the Business, has, since January 1, 2014: (a) made, authorized, offered or promised to make any unlawful payment or transfer of anything of value, whether money, property, or services, directly or indirectly through a third party, to any officer, employee or Representative of a foreign government or any department, agency or instrumentality thereof, political party, political campaign or public international organization, in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), or any applicable Law of similar effect; or (b) otherwise taken any action which would cause any member of the Company Group, OHCS, or OI to be in violation of the FCPA or any applicable Law of similar effect. Each member of the Company Group, OHCS, and OI have instituted and maintain policies, procedures, periodic employee training, internal audits, and internal controls designed to ensure, and which the members of the Company Group reasonably expect will continue to ensure, compliance with the FCPA. |
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(a) Owned Real Property. No member of the Company Group nor UHS owns any real property. |
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Agreement or of any action taken or to be taken by any member of the Company Group, Seller, or any Related Entity in connection with the Transaction Documents or the transactions contemplated thereby. |
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(c) No Benefit Plan is (i) a “multiemployer plan,” as such term is defined in Section 3(37) of ERISA; (ii) a plan that is subject to Title IV of ERISA, Sections 302 or 303 of ERISA or Sections 412 or 436 of the Code; (iii) a multiple employer plan as defined in Section 413(c) of the Code; or (iv) a “multiple employer welfare arrangement” as such term is defined in Section 3(40) of ERISA. |
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(d) None of the Benefit Plans that are “welfare benefit plans,” within the meaning of Section 3(1) of ERISA, provide for continuing benefits or coverage after termination or retirement from employment for any Company Employee, except for COBRA rights under a “group health plan” as defined in Section 4980B(g) of the Code and Section 607 of ERISA. The consummation of the transactions contemplated hereby will not (i) result in an increase in or accelerate the vesting of any of the benefits available to a Company Employee under any Benefit Plan, or (ii) otherwise entitle any current or former employee, independent contractor or director of any member of the Company Group, OSI, or UHS to severance pay or any other payment from any member of the Company Group, OSI, or UHS. |
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and overtime Laws. No Key Employee nor any Company Employee who would reasonably be expected to have a material impact on the transaction, has informed any officer of Seller (whether orally or in writing) of any plan to terminate his or her employment with Buyer, the Company, Connextions HCI, OSI, or UHS. To the Knowledge of Seller, each Company Employee is properly classified in all material respects with respect to employment status for all purposes, including employment, labor, wage and hour compliance and Tax purposes. |
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(b) Section 3.12(b) of the Disclosure Schedule sets forth a correct and complete list of the following information with respect to each independent contractor involved in the Business whose Contracts will be transferred to the Company (collectively, the “Company Contractors”): (i) name, (ii) engagement date, (iii) project assignment, (iv) contract expiration or expected termination date, and (v) daily rate or other remuneration. To the Knowledge of Seller, each Company Contractor is properly classified in all material respects as an independent contractor and not an employee of any member of the Company Group or any of their respective Affiliates. |
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(c) Seller has provided Buyer with copies of the current (i) trade secret, non-compete, non-disclosure and invention assignment agreements entered into by any Key Employee in connection with his or her employment by OSI or UHS, and (ii) handbooks applicable to any Company Employee or Company Contractor. Subject to Buyer’s compliance with Section 5.5, no Company Employee will have any claim for severance pay as a result of this Agreement or the consummation of the transactions contemplated hereby. |
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(d) |
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a “mass layoff” (as defined in the WARN Act, or any similar Law) affecting any of the Leased Real Property locations. |
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(a) All consolidated U.S. federal and state income Tax Returns for any “affiliated group” (within the meaning of Section 1504(a) of the Code) filing a consolidated return of which the Company or Connextions HCI is or was a member have been timely filed, and each member of the Company Group has filed all other material Tax Returns required to be filed by such member. All such Tax Returns described in the preceding sentence are true, correct, and complete in all material respects. |
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(b) Each member of the Company Group has paid all Taxes due from such Person (whether or not shown on any Tax Return). Neither the Company nor Connextions HCI (i) has been a member of an affiliated group filing a consolidated federal income Tax Return (other than an affiliated group of which it is currently a member), or (ii) has any Liability for the unpaid Taxes of any Person (other than members of the affiliated group of which it is currently a member) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Law), as a transferee or successor, by Contract, or otherwise. |
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(c) There are no Liens relating to Taxes upon the assets of any member of the Company Group other than Permitted Liens. |
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(i) Each of the Company and Connextions HCI has withheld and paid all material Taxes required to have been withheld and paid in connection with any amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other Person, and substantially all IRS Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed. |
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(j) Neither the Company nor Connextions HCI is a party to any agreement, Contract, arrangement or plan that has resulted or could result, separately or in the aggregate, in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code (or any corresponding provision of state, local, or non-U.S. Tax Law) as a result of the transactions contemplated by this Agreement. |
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(k) Neither the Company nor Connextions HCI is a party to or bound by any Tax indemnification, allocation, sharing or similar agreement, or has any current or potential contractual or legal obligation to indemnify any other Person with respect to Taxes other than an agreement the primary subject of which is not Taxes. |
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(l) Neither the Company nor Connextions HCI has participated in any “reportable transaction” within the meaning of Treasury Regulations Section 1.6011-4. |
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(m) Neither the Company nor Connextions HCI has distributed stock of another Person, or has had its stock distributed to another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code. |
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(n) No claim has been asserted by any Governmental Entity that the Company or Connextions HCI is liable for any Taxes based on Section 482 of the Code or comparable provisions of other applicable Laws. |
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(o) Each party to the Contribution Agreement is a member of the “affiliated group” (within the meaning of Section 1504(a) of the Code) filing a consolidated return of which (i) Ultimate Parent is the common parent and (ii) the Company and Connextions HCI are members. Connextions HCI has never filed an election under Treasury Regulations Sections 301.7701-3 to be classified other than as provided in Treasury Regulations Section 301.7701-3(b). Connextions HCI has been treated at all times commencing with its formation as a disregarded entity for federal income Tax purposes pursuant to Treasury Regulations Section 301.7701-3. |
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(ii) any Lease; |
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(iii) any Contract involving contracted payments by or to the Company or Connextions HCI on a going-forward basis in an amount of at least (A) $75,000 during any 12-month period or (B) $500,000 in the aggregate; |
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(v) any Contract containing “most favored nations” or similar pricing provisions applicable to the Company or Connextions HCI or the Business, or that provides for any Person to be an exclusive or preferred provider of services or products to the Company or Connextions HCI or the Business, or under which the Company or Connextions HCI is an exclusive or preferred provider of services or products to another Person, or that grants a right of first refusal or first negotiation to another Person; |
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(vii) any Contract containing requirements of minimum purchases by the Company or Connextions HCI from another Person or that requires the Company or Connextions HCI to supply a minimum level of goods or services to another Person, in each case, in an amount of at least (A) $75,000 during any 12-month period, or (B) $500,000 in the aggregate; |
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(viii) any Contract restricting the ability of the Company or Connextions HCI to operate any business or solicit or hire any Person, or that provides any exclusive rights to any party thereto or include rights of first refusal, negotiation or similar rights in any of its property, in each case that was entered into outside of the Ordinary Course of Business; |
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(ix) any Contract relating to personal property with an initial, nondepreciated book value of more than $100,000 that is used in the operation of the Business; |
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(x) any mortgage, pledge, indenture or security agreement or similar arrangement constituting a Lien upon any of the assets or properties that are owned by the Company or Connextions HCI; |
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(xiv) any Contract between the Company or Connextions HCI, on the one hand, and any Governmental Entity on the other hand; |
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(xv) any capital lease or similar agreement relating to the Business or its properties or assets involving contracted fees by the Company or Connextions HCI following the Closing of at least (i) $75,000 during any 12-month period, or (ii) $500,000 in the aggregate; and |
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accurate (1) copies of each of the Material Contracts that is in written form and (2) descriptions of the material terms of each Material Contract that is not in written form, in each case including any and all amendments, supplements and modifications thereof. |
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registerability, enforceability, infringement, misappropriation, violation or use of any Intellectual Property. To the Knowledge of Seller, no valid basis exists for any such litigation, opposition, cancellation, Legal Proceeding, objection or claim. To the Knowledge of Seller, no Person is infringing, misappropriating or otherwise violating any Owned Intellectual Property or has infringed, misappropriated or otherwise violated any Owned Intellectual Property. This SECTION 3.17(c) constitutes the sole and exclusive representation and warranties of Seller with respect to any matters related to the infringement, misappropriation or violation of Intellectual Property. |
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(e) Section 3.17(e) of the Disclosure Schedule sets forth a complete and accurate list of general descriptions of Owned Software that is material to the Business. To the Knowledge of Seller, none of the source code of such Owned Software has been published, disclosed or put into escrow by such Person for any reason. Except for source code provided to employees or third-party developers to make modifications or derivative works thereof solely for the benefit of any such member of the Company Group, no licenses or rights have been granted to any Person to distribute, or to otherwise use or create derivative works of, the source code of any such Owned Software. No Open Source Software is used in, incorporated into, integrated or bundled with any such Owned Software in a manner that would require that source code for any material portion of such Owned Software be disclosed or distributed under terms that require general disclosure of such source code. The Business Systems (i) are in reasonable working order, operate as necessary for the operation of the Business and meet current capacity of the Business; (ii) have reasonable security, backups, disaster recovery arrangements, and hardware and software support and maintenance to reduce the risk of material error, breakdown, failure, data loss or security breach occurring; (iii) use reasonable anti-virus protections and, to the Knowledge of Seller, do not contain Trojan horses, spyware, adware, malware, or other malicious code; and (iv) have not suffered any material error, breakdown, failure, or security breach in the last twelve (12) months that has caused disruption or damage to the Business or was reportable to any Governmental Entity or Person. |
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(f) Each member of the Company Group and the conduct of the Business are in compliance with, and have been in compliance with, all Data Security Requirements and, except as set forth in Section 3.8(f) of the Disclosure Schedule, there have not been any actual or alleged incidents of data security breaches, unauthorized access or use of any of the Business Systems, or unauthorized acquisition, destruction, damage, disclosure, loss, corruption, alteration, or use of any Business Data. The transactions contemplated by this Agreement will not result in any Liabilities in connection with any Data Security Requirements. |
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(a) Section 3.19(a) of the Disclosure Schedule sets forth a complete and accurate list of the customers of the Business during calendar year 2016 (the “Customers”), and the amount of sales to each Customer during such period. |
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(b) Section 3.19(b) of the Disclosure Schedule sets forth a complete and accurate list of each of the suppliers of the Business from which the Company Group or a Related Entity has made total purchases in excess of $75,000 during calendar year 2016 (the “Material Suppliers”), and the amount of purchases from each Material Supplier during such period. |
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(c) Since January 1, 2016 (i) no Customer or Material Supplier has terminated or suspended, or to the Knowledge of Seller, has threatened to terminate or suspend its business with the Business and (ii) no Customer or Material Supplier has cancelled or otherwise terminated any Contract with respect to the Business. |
Buyer hereby represents and warrants to Seller as follows as of the date hereof:
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insolvency, reorganization and other similar applicable Laws affecting the enforcement of creditors’ rights generally and by general principles of equity. |
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transactions contemplated hereby, including the accuracy, completeness or currency thereof, and neither the Company, Seller nor any other Person shall have any Liability to Buyer or any other Person in respect of such information, including any subsequent use of such information, except in the case of fraudulent misrepresentation in the making of any representation or warranty hereunder. |
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(b) Consolidated Income Tax Returns. Seller shall include the income of each member of the Company Group (including any deferred items triggered into income by Treasury Regulations Section 1.1502-13 and any excess loss account taken into income under Treasury Regulations Section 1.1502-19) on Seller’s consolidated federal income Tax Returns for all periods (or portions thereof) through the Closing Date and pay any federal income Taxes attributable to such income. |
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(c) Straddle Tax Returns. Buyer shall prepare or cause to be prepared all Tax Returns that relate solely to the Company and/or Connextions HCI for any taxable periods which begin before and |
21
Exhibit 10.96
end after the Closing Date (“Straddle Periods”) (such Tax Returns, “Straddle Period Tax Returns”). In any instance a Straddle Period Tax Return is required, Seller will provide Buyer with reasonably requested financial and other information required to properly calculate and report Tax for the Pre-Closing Tax Period at least fifteen (15) days prior to the due date (including extensions). Except as otherwise required by applicable Law, Buyer shall prepare such Straddle Period Tax Returns in a manner consistent with past custom and practice. Buyer shall permit Seller to review and comment on each Straddle Period Tax Return at least fifteen (15) days prior to the due date (including extensions) for filing such Straddle Period Tax Return and shall consider in good faith any comments provided by Seller. Buyer shall execute and file or cause to be executed and filed all such completed Straddle Period Tax Returns on or prior to the due date (including extensions) for filing such Straddle Period Tax Returns, and shall timely pay all Taxes due as reflected on such Straddle Period Tax Returns. Seller shall remit to Buyer, at least five (5) days before the due date (including extensions) of the applicable Straddle Period Tax Return, an amount equal to the amount of Taxes shown as due and payable on such Straddle Period Tax Return to the extent such Taxes are allocable to the portion of such Straddle Period ending on the Closing Date pursuant to Section 5.2(d). |
22
Exhibit 10.96
requirements as set forth in Treasury Regulations Section 1.1502-36(e)(5)(viii) and Seller and any of its Affiliates shall not take any action which could reasonably be expected to result in a revocation of the Section 1.1502-36 Election. |
23
Exhibit 10.96
equitably apportioned between Seller and Buyer in accordance with the principles set forth in Section 5.2(d). Buyer shall promptly pay or cause to be paid to Seller any such refund and the dollar value of any such credit or benefit. If Seller determines that the Company or Connextions HCI is entitled to file or make a claim for a refund or credit or an amended Tax Return providing for a refund or credit with respect to a Pre-Closing Period, Seller shall be entitled to file or make such claim or amended Tax Return (solely at Seller’s expense) on behalf of the Company or Connextions HCI, as applicable, and shall control the prosecution of such claim. Buyer shall cooperate with any reasonable request by Seller relating to filing or making such claim or amended Tax Return or prosecuting such claim, provided that any such costs relating to such claim or such Tax Return, as the case may be, shall be borne solely by Seller. |
24
Exhibit 10.96
Company Employee who is not a Group B Employee and who accepts an offer of employment from the Company and who commences employment with the Company in accordance with the terms of the Employment Leasing and Transition Agreement shall become a Transferred Employee. As of each Transferred Employee’s Employment Transition Date (except as otherwise provided under the terms of the applicable Benefit Plan), the Transferred Employee shall cease to participate in and accrue benefits under each Benefit Plan, and the Company will provide compensation and employee benefits to each such Transferred Employee in accordance with the terms of the Employment Leasing and Transition Agreement. |
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(c) Nothing contained in this Agreement shall constitute or be deemed to be an amendment to any Benefit Plan or any other compensation or benefit plan, program or arrangement. |
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(a) Buyer and Seller acknowledge and agree that certain Contracts that are utilized by Seller and its Affiliates (the “Seller Entities”) are also utilized by the Company Group (such Contracts, together with all statements of work, exhibits, schedules, and other attachments thereto, the “Straddle Contracts”). With respect to the Straddle Contracts, Seller and Buyer hereby agree that: |
25
Exhibit 10.96
5.7, Seller and the applicable Seller Entity, on the one hand, and Buyer and the Company Group, on the other hand, shall work together in good faith during the remaining term of the Straddle Contract to seek a solution so that the respective parties will have the benefits, rights and obligations they were intended to have under this Agreement. |
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(d) No benefits of the Straddle Contracts with respect to the Seller Business shall accrue to Company Group or Buyer, and Buyer, on behalf of Company Group, hereby assigns to the Seller Entities all of the benefits accruing under the Straddle Contracts with respect to the Seller Business, including all Intellectual Property Rights. |
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(e) Seller hereby acknowledges and agrees, on behalf of itself and the Seller Entities, and Buyer hereby acknowledges and agrees, on behalf of itself and the Company Group, that from and after the Closing, Seller and the Seller Entities or Buyer and the Company Group, as applicable, are not permitted to and shall not, without the prior consent of Buyer or Seller, respectively: (i) for Seller and the Seller Entities, use or exercise any right (including the purchase or consumption of any good, product, right or service) under a Straddle Contract, unless such use or exercise exclusively relates to the Seller Business; (ii) for Buyer and Company Group, use or exercise any right (including the purchase or consumption of any good, product, right or service) under a Straddle Contract, unless such use or exercise exclusively relates to the Company Group Business; (iii) for Seller and the Seller Entities, take any action under a Straddle Contract that creates or continues any Liability of or on the part of the Company Group, Buyer or their Affiliates; or (iv) for Buyer and the Company Group, take any action under a Straddle Contract that creates or continues any Liability of or on the part of Seller, the Seller Entities or their Affiliates. Seller hereby acknowledges and agrees that Seller and the Seller Entities are liable for, and will bear, and will fully indemnify the Buyer and its Affiliates from any and all Liabilities arising under or related to the Straddle Contracts to the extent relating to the Seller Business or the conduct or operation of the Business prior to the Closing or to the extent caused by any act or omission of Seller, the Seller Entities, their Affiliates, or any of their subcontractors or Representatives. Except as may be otherwise set out in this Agreement, Buyer hereby acknowledges and agrees that Buyer and the Company Group are liable for, and will bear, and will fully indemnify Seller and its Affiliates from any and all Liabilities arising under or related to the Straddle Contracts to the extent relating to the conduct or operation of the Business following the Closing or to the extent caused by any act or omission of Buyer, the Company Group, their Affiliates, or any of their subcontractors or Representatives. |
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(f) All proprietary or non-public information relating to the Seller Business portion of the Straddle Contracts, including the Seller Entities’ performance of the Seller Business obligations thereunder, shall be deemed confidential and subject to Section 7.13. All proprietary or non-public information relating to the Company Group Business portion of the Straddle Contracts, including the |
26
Exhibit 10.96
Company Group’s performance of the Company Group Business obligations thereunder, shall be deemed confidential and subject to Section 7.13. For the avoidance of doubt, the foregoing provisions of this Section 5.7(e) shall not be deemed to prevent any party’s or its Affiliates’ ability to perform its obligations pursuant to such Straddle Contract in accordance with this Section 5.7. |
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(g) Seller and the Seller Entities, on the one hand, and Buyer and the Company, on the other hand, will cooperate with each other and work in good faith with respect to the Straddle Contracts so as not to harm the other party’s relationship with the counterparties to the Straddle Contracts. |
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(a) Seller and Buyer acknowledge and agree that they are not, by virtue of the relationship under this Section 5.7: (i) creating a joint venture or similar venture between Buyer, the Company Group or their respective Affiliates, on the one hand, and Seller or the Seller Entities or their respective Affiliates, on the other hand; (ii) authorized to act as the other party’s agent or otherwise bind the other party or its Affiliates with respect to any Straddle Contracts, other than as otherwise agreed by the parties under this Section 5.7; or (iii) being granted any ownership, license or other rights in the Intellectual Property of the other party or its Affiliates that is used or developed in the performance of, or licensed or assigned by the third party customer with respect to the Seller Business or Business portion, as applicable, of the Straddle Contracts. |
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(i) providing any services to the customers listed in Schedule 1.1(b) other than the services included in the Restricted Activity; |
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(ii) providing any services to any customers not listed in Schedule 1.1(b); or |
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(iii) the acquisition of another entity (whether through the acquisition of the equity securities of such entity or the operating assets of such entity (an “Acquired Business”)) that engages in the Restricted Activity as long as the Restricted Activity is not the primary activity of such Acquired Business. |
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(a) Non-Solicitation. In consideration of the completion of the transactions contemplated by this Agreement, Seller agrees that, during (i) the Restricted Period with respect to the Key Employees and (ii) the twelve (12) months following the Closing Date with respect to all other Company Employees, without the prior written consent of Buyer, Seller shall not, and shall cause each of its Subsidiaries not to, directly or indirectly or by assisting others, contact, approach, induce or solicit, or attempt to induce or solicit, hire, offer employment to, or otherwise engage as an employee or independent contractor, any of such Company Employees; provided, however, that this Section 5.8(b) shall not prohibit Seller or any of its Affiliates or Representatives from (i) interviewing or hiring any Company Employee |
27
Exhibit 10.96
who responds, without specific inducement by Seller or any of its Subsidiaries, to a general solicitation made by Seller or any of its Subsidiaries in any trade publication, newspaper, or online posting or through any search firm not targeted specifically at such Company Employee, or (ii) interviewing or hiring any Company Employee who has not been employed by Buyer, the Company or any of their respective Subsidiaries for a period of at least six (6) months prior thereto. |
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(b) Seller acknowledges and agrees that: (i) the duration, scope and geographic area of the covenants contained in this Section 5.8 are fair, reasonable and necessary in order to protect the goodwill and legitimate business interests of the Company and Buyer and to prevent any unfair advantage conferred upon Seller; and (ii) that adequate consideration has been received by Seller for such obligations and Buyer would not have entered into this Agreement or made the payments to Seller hereunder unless Seller agreed to be subject to all of the restrictions set forth in this Section 5.8. If, however, any of the covenants set forth in this Section 5.8 are held to be invalid or unenforceable, the remainder of such covenants shall not thereby be affected and shall be given full effect, without regard to the invalid portions. If it is determined by a court of competent jurisdiction that any of the restrictive covenants, or any part thereof, are unenforceable because of the duration of such provision, the geographical area covered thereby, or any other determination of unreasonableness of the provision, the court making such determination shall have the power to reduce the duration, area or scope of such provision and, in its reduced form, such provision shall then be enforceable and shall be enforced. |
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(c) Seller acknowledges that a breach by Seller of any of the covenants set forth in Section 5.8(a) or Section 5.8(b) of this Agreement may not be reasonably or adequately compensated in damages in an action at law, and that Buyer will be entitled to seek, among other remedies, injunctive relief, which may include, but will not be limited to: (i) restraining Seller from engaging in any action that would constitute or cause a breach or violation of this Section 5.8, (ii) obtaining specific performance to compel Seller to perform its obligations and covenants hereunder, or (iii) obtaining damages available either at law or in equity. |
28
Exhibit 10.96
Indemnified Parties, for any Damages, whether in respect of third party claims, claims between the parties hereto, or otherwise directly or indirectly relating to, as a result of, arising out of, or by virtue of: |
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(a) any inaccuracy in or breach of any representation and warranty made by the Company or Seller to Buyer herein (other than Fundamental Seller Representations and Warranties); |
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(b) any inaccuracy in or breach of any Fundamental Seller Representations and Warranties; |
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(c) any breach by the Company or Seller of, or failure by the Company or Seller to comply with, any covenant or obligation under this Agreement to be performed by Seller; |
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(d) (i) any Taxes of Seller for any taxable period, (ii) any Taxes for Pre-Closing Periods and the portion of any Straddle Period ending on and including the Closing Date owed by or payable with respect to any member of the Company Group, (iii) any Transfer Taxes for which Seller is liable pursuant to Section 5.2(h) of this Agreement, and (iv) any Taxes arising by reason of any member of the Company Group being a member of any “affiliated group” (within the meaning of Section 1504(a) of the Code) on or prior to the Closing Date, including pursuant to U.S. Treasury Regulations Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision of state, local or non-U.S. Law); and |
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(e) the matters set forth on Schedule 6.2(e). |
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SECTION 6.3. Limitation on Seller’s Indemnification Obligations. Seller’s obligations pursuant to Section 6.2 are subject to the following limitations: |
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(d) Other than for Damages resulting from claims brought on the basis of fraud or intentional misrepresentation, the aggregate liability of Seller pursuant to Section 6.2 shall in no event exceed the amount of the cash proceeds actually received by Seller under this Agreement. |
29
Exhibit 10.96
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(e) For the avoidance of doubt, no Buyer Indemnified Party will assert a claim for indemnification under Section 6.2(a) or Section 6.2(b) on the basis of Section 3.6 (No Undisclosed Liabilities) if such claim would be covered under any other representation or warranty set forth in Article III but for the effect of any express exceptions or limitations set forth in such other representation or warranty, including limitations as to materiality, Knowledge, dollar thresholds, or duration. |
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(f) In addition to the foregoing, Seller’s obligations pursuant to Section 6.2 shall be further limited by Section 5.2(j). |
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(a) any inaccuracy in or breach of any representation and warranty made by Buyer to Seller herein (other than Fundamental Buyer Representations and Warranties); |
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(b) any inaccuracy in or breach of any Fundamental Buyer Representations and Warranties; and |
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(c) any breach by Buyer of, or failure by Buyer to comply with, any covenant or obligation under this Agreement to be performed by Buyer. |
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SECTION 6.5. Limitation on Buyer’s Indemnification Obligations. Buyer’s obligations pursuant to Section 6.4 are subject to the following limitations: |
30
Exhibit 10.96
from whom indemnity is sought (the “Indemnitor”) may have liability to any Indemnitee hereunder (a “Third Party Claim”), such Indemnitee shall notify the Indemnitor in writing of such Third Party Claim (a “Claim Notice”), in each such case promptly following such Indemnitee’s receipt of a Third Party Claim; provided, however, that the failure to give a timely Claim Notice shall not affect the rights of an Indemnitee hereunder or otherwise relieve the Indemnitor of any liability that it may have to any Indemnitee, except and only to the extent that the Indemnitor demonstrates that the defense of such Third Party Claim is materially prejudiced by the Indemnitee’s failure to give such notice. The Indemnitor shall have thirty (30) days after receipt of the Claim Notice (the “Notice Period”) to notify the Indemnitee that it desires to defend the Indemnitee against such Third Party Claim. |
31
Exhibit 10.96
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(f) A claim for indemnification for any matter not involving a Third Party Claim may be asserted by (i) in the case of any claim under Section 6.2, written notice by Buyer to Seller, and (ii) in the case of any claim under Section 6.4, written notice by Seller to Buyer. |
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(a) For purposes of calculating the amount of Damages to which the Buyer Indemnified Parties or the Seller Indemnified Parties are entitled under this Article VI (but not for purposes of determining whether a representation or warranty has been breached), the terms “material” and “materiality” will be disregarded. |
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(b) Any Indemnitee will only be entitled to recover the full amount of Damages once with respect to any item giving rise to Damages. |
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(c) The amount of any indemnification obligation under this Agreement shall be reduced by the amount of any insurance proceeds actually received by the Indemnitee under any applicable insurance policy with respect thereto, net of any deductibles or other expenses and any increase in applicable premiums/retro-premiums related to the recovery of such proceeds; provided, however, that the foregoing shall not be deemed to require an Indemnitee to seek recovery under any applicable insurance policies prior to a claim for indemnification hereunder. In the event that any Indemnitee actually recovers any insurance proceeds with respect to any Damages for which such Person has been indemnified under this Agreement, then a refund equal to the aggregate amount of the insurance recovery (net of any deductibles or other expenses and any increase in applicable premiums/retro-premiums related to the recovery of such proceeds) shall be made promptly to the Indemnitor so as to avoid a duplication of recovery (but not to exceed the amount for which such Indemnitee was previously indemnified for hereunder in respect of such Damages). |
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(d) Any indemnification obligation under this Agreement shall be net of any indemnity, contribution or other similar payment received by the Indemnitee or its Affiliates from any third party with respect thereto, net of any expenses related to the recovery of such amounts. In the event that any recovery is received by any Indemnitee or its Affiliates with respect to any indemnification obligation for which any such Person has been indemnified under this Agreement, then a refund equal to the aggregate amount of the recovery shall be made promptly to the Indemnitor. |
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(e) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY INDEMNITEE HEREUNDER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR DAMAGES BASED ON A MULTIPLE OF EARNINGS, REVENUES, OR OTHER FINANCIAL MEASURE OR OTHER DAMAGES NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, IN EACH CASE, EXCEPT TO THE EXTENT SUCH DAMAGES ARE PAYABLE BY AN INDEMNITEE TO AN UNAFFILIATED THIRD PARTY. |
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(a) Buyer and Seller acknowledge and agree that their sole and exclusive remedy for monetary relief with respect to any breach of any representation, warranty, covenant or agreement and with |
32
Exhibit 10.96
respect to any and all claims relating to the subject matter of this Agreement, excluding (i) any claim relating to fraudulent misrepresentation in the making of any representation or warranty under Article III or Article IV, as applicable, or (ii) any Post-Closing Adjustment contemplated by Section 2.5, shall be pursuant to the provisions set forth in this Article VI; provided, however, nothing contained herein shall prevent the Indemnitee from (A) pursuing remedies as may be available to such party under applicable Law in the event of the Indemnitor’s failure to comply with its indemnification obligations hereunder, or (B) pursuing an injunction or other equitable relief as may be available to such party under applicable Law. |
33
Exhibit 10.96
given, and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement. |
if to the Company or Buyer:TeleTech Healthcare Solutions, Inc. 0000 Xxxxx Xxxxxx Xxxxxx, 0-000 Xxxxxxxxx, XX 00000 Attention: General Counsel
with a copy to:Bass, Xxxxx & Xxxx PLC 000 Xxxxx Xxx. Xxxxx, Xxxxx 0000 Xxxxxxxxx, XX 00000 Attention: Xxxxx X. Xxxx
if to Seller:OPTUMHEALTH HOLDINGS, LLC 0000 Xxxx Xxxx Xxxx Xxxxxxxxxx, XX 00000 Attention: Executive Vice President and Chief Legal Officer Attention: Vice President, Corporate Development
with a copy to:Faegre Xxxxx Xxxxxxx LLP 2200 Xxxxx Fargo Center 00 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxx, XX 00000 Attention: W. Xxxxxx Xxxxx
Notice given by a party’s counsel shall be considered notice given by that party.
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SECTION 7.5. Governing Law; Waiver of Jury Trial. The parties agree that this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, excluding any rule or principle that might refer the governance or the construction of this Agreement to the laws of another jurisdiction. 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 EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY 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 THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED |
34
Exhibit 10.96
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.5. |
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SECTION 7.9. Consent to Jurisdiction. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE OR ANY FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF DELAWARE, SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT, AND HEREBY WAIVES, AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT, (A) THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS, (B) THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR (C) THAT THE INTERNAL LAWS OF THE STATE OF DELAWARE DO NOT GOVERN THE VALIDITY, INTERPRETATION OR EFFECT OF THIS AGREEMENT, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL DISPUTES WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH A STATE OR FEDERAL COURT. EACH PARTY HEREBY CONSENTS TO AND GRANTS ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY SUCH DISPUTE AND AGREES THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 7.4, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF. |
35
Exhibit 10.96
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SECTION 7.12. Time of Essence. Time is of the essence in the performance of this Agreement. |
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(a) Buyer and its Affiliates shall not disclose, directly or indirectly, any documents, work papers or other materials of a confidential or proprietary nature related to Seller (including any such information obtained in connection with the entering into of this Agreement) and shall have all such information kept confidential; provided, however, that Buyer may disclose any such information (i) that is or becomes generally available to the public other than as a result of disclosure by Buyer or its Affiliates, (ii) that is or becomes available to Buyer on a non-confidential basis from a source that is not bound by a confidentiality obligation to Seller, or (iii) with the prior written approval of Seller; provided further, that, to the extent that Buyer or its Affiliates may become legally compelled to disclose any such information by any Governmental Entity or if Buyer or its Affiliates receives an opinion of counsel that disclosure is required in order to avoid violating any Laws, Buyer or its Affiliates may disclose such information but only after, if applicable or relevant, they have used all commercially reasonable efforts to afford Seller, at its sole cost and expense, the opportunity to obtain an appropriate protective order, or other satisfactory assurance of confidential treatment, for the information required to be disclosed; provided further, that Buyer may disclose such information to the extent necessary to comply with applicable Law or regulation, or to enforce its obligations under this Agreement; and, provided further, that this Section 7.13 shall not prohibit or restrict or otherwise limit the use or disclosure by Buyer and its Affiliates of any documents, work papers or other materials or information related to the Company or Connextions HCI. |
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(b) Seller and its Affiliates shall not disclose, directly or indirectly, any documents, work papers or other materials of a confidential or proprietary nature related to Buyer and its Affiliates (which shall for the purposes of this Section 7.13 include, as of the Closing, the Company and Connextions HCI) (including any information obtained in connection with the entering into of this Agreement) and shall have all such information kept confidential; provided, however, that Seller may disclose any such information (i) that is or becomes generally available to the public other than as a result of disclosure by Seller or its Affiliates, (ii) that is or becomes available to Seller on a non-confidential basis from a source |
36
Exhibit 10.96
that is not bound by a confidentiality obligation to Buyer, or (iii) with the prior written approval of Buyer; provided further, that, to the extent that Seller or its Affiliates may become legally compelled to disclose any such information by any Governmental Entity or if Seller or its Affiliates receives an opinion of counsel that disclosure is required in order to avoid violating any Laws, Seller or its Affiliates may disclose such information but only after, if applicable or relevant, they have used all commercially reasonable efforts to afford Buyer, at its sole cost and expense, the opportunity to obtain an appropriate protective order, or other satisfactory assurance of confidential treatment, for the information required to be disclosed; and, provided further, that Seller may disclose such information to the extent necessary to comply with applicable Law or regulation, in connection with any required Tax disclosures or to enforce its rights under this Agreement. |
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SECTION 7.14. Waiver of Conflicts Regarding Representation; Non-Assertion of Attorney-Client Privilege. |
[Signature pages follow.]
37
Exhibit 10.96
IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement or caused this Agreement to be duly executed on its behalf as of the day and year first above written.
BUYER: TeleTech Healthcare Solutions, Inc.
By: Name: Title:
38
Exhibit 10.96
IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement or caused this Agreement to be duly executed on its behalf as of the day and year first above written.
COMPANY: CONNEXTIONS, INC.
By: Name: Title:
SELLER:
OPTUMHEALTH HOLDINGS, LLC
By: Name: Title:
39
Exhibit 10.96
EXHIBITS
Exhibit ANet Working Capital Methodology
Exhibit BEstimated Closing Statement
Exhibit CContribution Agreement
SCHEDULES
Schedule ACertain Defined Terms
Schedule 1.1(a)Permitted Liens
Schedule 1.1(b)Restricted Activity Customers and Contracts
Schedule 1.1(c)Key Employees
Schedule 6.2(e)Indemnification Matters
40
Exhibit 10.96
Schedule A
Certain Defined Terms
“Affiliate” means with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the “controlled” Person, whether through ownership of voting securities, by Contract, or otherwise.
“Business” means the provision of contract call center services on behalf of customers, primarily in the healthcare industry, conducted by the Company as of the date of this Agreement (for the avoidance of doubt, giving effect to the Contribution).
“Business Data” means all business information and all personally-identifying information and data (whether of employees, contractors, consultants, customers, consumers, or other Persons and whether in electronic or any other form or medium) that is accessed, collected, used, processed, stored, shared, distributed, transferred, disclosed, destroyed, or disposed of by any of the Business Systems.
“Business Day” means any day other than a Saturday, Sunday or day on which banks in New York, New York are authorized or required by Law to close.
“Business Systems” means all software, computer hardware (whether general or special purpose), electronic data processing, information, record keeping, communications, telecommunications, networks, interfaces, platforms, servers, peripherals, and computer systems, including any outsourced systems and processes that are owned or used or held for use in, and that are material for, the conduct of the Business.
“Buyer Parent” means TeleTech Holdings, Inc., a Delaware corporation.
“Closing Aged Receivables” means all accounts receivable and other receivables of the Business that have been invoiced and unpaid and are past due for more than ninety (90) days as of the Closing Date.
“Closing Indebtedness” means the aggregate amount of Indebtedness outstanding as of the Effective Time.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Employees” means the employees identified in Chart A of the Employment Leasing and Transition Agreement.
“Company Group” means the Company and Connextions HCI.
“Company Intellectual Property” means the Intellectual Property used or held for use in the conduct of the Business.
“Confidentiality Agreement” means that certain confidentiality agreement by and between the Company and TeleTech Services Corporation (an Affiliate of Buyer), dated December 14, 2016, as amended.
“Connextions HCI” means Connextions HCI, LLC, a Florida limited liability company and wholly owned Subsidiary of the Company.
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Exhibit 10.96
“Contract” means any note, bond, mortgage, indenture, contract, lease, license, purchase order, sales order, memoranda of understanding or other agreement, undertaking or binding commitment, whether or not in written form.
“Contribution” means the transfer of certain assets and liabilities related to the Business by Affiliates of the Company to the Company prior to the date of this Agreement pursuant to the Contribution Agreement.
“Contribution Agreement” means that certain Assignment, Assumption and Distribution Agreement by and among the Company, OHCS, OI, and UHS, dated as of April 2, 2017, a copy of which is attached hereto as Exhibit C.
“Current Employer” has the meaning ascribed to such term in the Employment Leasing and Transition Agreement.
“Damages” means all assessments, levies, losses, fines, liabilities, claims, payments, penalties, damages, interest, costs and expenses, including reasonable attorneys’ fees and expenses.
“Data Security Requirements” means, collectively, all of the following to the extent relating to data treatment and processing, or otherwise relating to privacy, security, or security breach notification requirements and applicable to the Company or Connextions HCI, to the conduct of the Business, or to any of the Business Systems or any Business Data: (i) any of the Company Group’s own rules, policies, and procedures, (ii) all Laws, (iii) industry standards applicable to the industry in which the Business operates (including, if applicable, the Payment Card Industry Data Security Standard (PCI DSS)), and (iv) Contracts into which the Company Group have entered or by which they are otherwise bound.
“Disclosure Schedule” means the disclosure schedule delivered by Seller and the Company to Buyer concurrently with the execution of this Agreement.
“Employment Leasing and Transition Agreement” means the Employment Leasing and Transition Agreement dated as of the date hereof by and between OSI, UHS, and Buyer.
“Employment Transition Date” has the meaning ascribed to such term in the Employment Leasing and Transition Agreement.
“Environmental Laws” means any Laws relating to (i) protection, preservation or cleanup of the environment or natural resources; or (ii) the manufacture, generation, production, installation, use, handling, storage, treatment, transportation, disposal, or release of or exposure to Hazardous Substances.
“Environmental, Health and Safety Liabilities” means any cost, Damages, expense, Liability, obligation or other responsibility arising from or under any Environmental Law.
“ERISA Affiliate” means any entity that is considered a single employer with Seller or the Company or any Affiliate of Seller or the Company under Section 414 of the Code.
“Estimated Purchase Price” means $80,000,000 minus Seller’s good faith estimates, as of the Effective Time, of Closing Indebtedness and Transaction Expenses.
“Expenses” means all out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a party hereto and its Affiliates) incurred by a
42
Exhibit 10.96
party or on its behalf in connection with, or related to, the authorization, preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby.
“GAAP” means the United States generally accepted accounting principles, at the time in effect, consistently applied.
“Governing Documents” means (i) in the case of a Person that is a corporation, its articles or certificate of incorporation and its bylaws or similar governing instruments required by the Laws of its jurisdiction of formation or organization; (ii) in the case of a Person that is a partnership, its articles or certificate of partnership, formation or association, and its partnership agreement (in each case, limited, limited liability, general or otherwise); (iii) in the case of a Person that is a limited liability company, its articles or certificate of formation or organization, and its limited liability company agreement or operating agreement; (iv) in the case of a Person that is a trust, its declaration of trust, trust agreement, certificates of ownership or similar governing instruments required by the Laws of its jurisdiction of formation; and (v) in the case of a Person that is none of a corporation, partnership (limited, limited liability, general or otherwise), limited liability company, trust or natural person, its governing instruments as required or contemplated by the Laws of its jurisdiction of organization.
“Government Program” means the federal Medicare Program (including Medicare Part C and Medicare Part D), Medicaid, Medicaid-waiver and CHAMPUS/TRICARE programs, any other federal health care program (as defined in 42 U.S.C. §1320a-7b(f)), any other federal or state medical assistance programs.
“Governmental Approval” means any consent, approval, authorization, waiver, permit, license, grant, franchise, certification, exemption or order of, or registration, franchise, certificate, declaration or filing with any Governmental Entity.
“Governmental Entity” means any federal, state, municipal, local or foreign government, any political subdivision thereof or any court, administrative or regulatory agency, department, instrumentality, body or commission or other governmental or quasi-governmental authority, agency or entity, domestic or foreign.
“Group B Employees” means the employees identified in Chart B of the Employment Leasing and Transition Agreement.
“Hazardous Substances” means any (i) pollutant, contaminant, waste, petroleum, petroleum products, asbestos or asbestos-containing material, radioactive materials, polychlorinated biphenyls, mold, urea formaldehyde and radon gas; (ii) other chemicals, materials or substances defined or regulated as “pesticide,” “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “biohazardous waste,” “biomedical waste,” “medical waste,” “sharps,” “contaminant,” “pollutant,” “toxic waste,” “toxic substance” or words of similar import, under any Environmental Law; and (iii) other substance, material or waste which may be the subject of regulatory action by a Governmental Entity pursuant to any Environmental Law.
“Healthcare Laws” means all Laws relating to: (i) the licensure, certification, qualification or authority to operate business in connection with the provision of, payment for, or arrangement of, health care services, health benefits or health insurance and, without limiting the generality of the foregoing, the Medicare Program Laws, including the Medicare Advantage program (also known as “Medicare Part C”) and the Medicare Prescription Drug Benefit Programs (also known as “Medicare Part D”), and Laws relating to the Medicaid program; (ii) the offer, solicitation, receipt or acceptance of improper inducements or incentives involving Persons operating in the health care industry, including the following statutes: the
43
Exhibit 10.96
Federal anti-kickback law (42 U.S.C. § 1320a-7b(b)), the Federal physician self-referral law (42 U.S.C. § 1395nn), the Federal False Claims Act (31 U.S.C. §§ 3729, et seq.), the Federal Civil Monetary Penalties Law (42 U.S.C. § 1320a−7a), the Federal Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq.) and any similar state Laws; (iii) the administration of health care claims or benefits for, or processing or payment for, health care services, treatment or supplies furnished by providers, including such administration and processing or payment activities conducted by third party administrators, utilization review agents and persons performing quality assurance, credentialing or coordination of benefits; (iv) xxxxxxxx to insurance companies, health maintenance organizations and other managed care plans or Government Programs or otherwise related to insurance fraud; and (v) any state insurance, health maintenance organization or managed care Laws (including Laws relating to Medicaid programs).
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 (Pub. L. No. 104-191), as amended by the Health Information Technology for Economic and Clinical Health Act (Pub. L. No. 111-5) and their implementing regulations set forth at 45 CFR Part 160, 162 and 164.
“HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“Indebtedness” means (without duplication), with respect to the Company and Connextions HCI, (i) indebtedness for borrowed money, whether secured or unsecured; (ii) obligations evidenced by any note, bond, debenture or other debt security; (iii) obligations under conditional sale or other title retention agreements relating to purchased property; (iv) obligations under letter of credit or similar facilities (for the avoidance of doubt, not including any undrawn amounts under standby letters of credit); (v) obligations under interest rate cap, swap, collar or similar transaction or currency hedging transactions; (vi) any debt-like obligation in respect of the deferred purchase price of property with respect to which the Company or Connextions HCI is liable as obligor (including contingent purchase price obligations, such as earnouts, resulting from acquisitions); (vii) guarantees of any such indebtedness referred to in clauses (i)-(vi) of any other Person; and (viii) any accrued interest, prepayment premiums or penalties or other costs or expenses related to any of the foregoing.
“Intellectual Property” means all rights in patents, patent applications, trademarks, service marks and trade names, and all goodwill associated therewith and all registrations and applications therefor, copyrights, copyright registrations and applications, Internet domain names, software, technology, processes, inventions, methodologies, workflows, protocols, trade secrets, and know how, or any other similar type of proprietary or intellectual property right, in each case, in any jurisdiction, to the extent protectable by applicable Law.
“IRS” means the U.S. Internal Revenue Service.
“Key Employees” means the individuals identified on Schedule 1.1(c).
“Knowledge of Buyer” or “Buyer’s Knowledge” means any matters known by, or which should be known following reasonable inquiry by, any of Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxx, and Xxxxxxxx XxXxxx.
“Knowledge of Seller” means any matters known by, or which should be known following reasonable inquiry by, any of Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxxx, or Xxxx Xxxxxxx.
“Law” means any foreign or domestic law, Order, ordinance, stipulation, statute or regulation of a Governmental Entity, including any Healthcare Laws.
44
Exhibit 10.96
“Lease” means any lease with respect to the Leased Real Property.
“Legal Proceeding” means any judicial (civil or criminal) or administrative action, suit, claim, charge, audit, mediation, arbitration, Order, inquiry, hearing, search warrant, civil investigative demand, or other proceeding commenced, brought, conducted, pending, or heard by or before any Governmental Entity, arbitrator, or mediator, or any enforcement action or material subpoena by or from any Governmental Entity.
“Liability” or “Liabilities” means any debts, liabilities, commitments, obligations, duties or responsibilities of any kind and description, whether accrued or unaccrued, absolute or contingent, known or unknown, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, and regardless of whether such debt, liability or obligation would be required to be disclosed on a balance sheet prepared in accordance with GAAP.
“Licensed Intellectual Property” means any Company Intellectual Property that is owned by a third party and licensed to a member of the Company Group.
“Lien” means any mortgage, lien, pledge, charge, security interest or encumbrance.
“Net Working Capital” means, as of the Effective Time, the aggregate amount of current assets of the Business, minus the aggregate amount of current liabilities of the Business, in each case determined in accordance with the Net Working Capital Methodology.
“Net Working Capital Methodology” means the accounting methodologies, principles, practices, policies, and procedures set forth on Exhibit A attached hereto.
“OHCS” means OptumHealth Care Solutions, Inc., a Delaware corporation. References to OHCS in Article III of the Agreement only refer to OHCS to the extent of its ownership or lease of assets used in the Business that were contributed to the Company under the Contribution Agreement.
“OI” means OptumInsight, Inc., a Delaware corporation. References to OI in Article III of the Agreement only refer to OI to the extent of its ownership or lease of assets used in the Business that were contributed to the Company under the Contribution Agreement.
“Open Source Software” means any software subject to a license or other agreement whose terms require the distribution of source code in connection with the distribution of the software to which such license applies or that prohibits the licensee from charging a fee or otherwise limit the licensee’s freedom of action with regard to seeking compensation in connection with sublicensing or distributing the software to which such license applies (whether in source code or executable code form), including the licenses commonly referred to as the “Artistic License,” the “Mozilla Public License,” the “General Public License,” the “Lesser General Public License” and other similar licenses applicable to software distributed without charge to the public in source code form.
“Order” means any judgment, order, award, decree, consent, writ, or injunction of any Governmental Entity, any conciliation agreement, settlement agreement, market conduct or financial examination report or corrective action plan with any Governmental Entity.
“Ordinary Course of Business” means the conduct of the Business by Seller, or each member of the Company Group in a manner consistent with its past custom and practice (or, in the case of the assets transferred as part of the Contribution, in a manner consistent with the past custom and practice of the transferors of such assets).
45
Exhibit 10.96
“OSI” means Optum Services, Inc., a Delaware corporation. References to OSI in Article III of the Agreement only refer to OI to the extent of its employment of Transferred Employees.
“Owned Intellectual Property” means Company Intellectual Property owned by or exclusively licensed to the Company Group, including any such Company Intellectual Property consisting of software (“Owned Software”).
“Permitted Liens” means (i) mechanic’s, materialmen’s, carriers’, repairers’ and other Liens arising in the Ordinary Course of Business for amounts that are not yet delinquent or are being contested in good faith; (ii) Liens for Taxes, assessment or other governmental charges not yet due and payable as of the Closing Date or which are being contested in good faith; (iii) encumbrances and restrictions on real property (including easements, covenants, conditions, rights of way and similar restrictions as to the use of the real property) not created or granted by any member of the Company Group, but only to the extent that such matters and encumbrances do not materially interfere with the right of the Company or Connextions HCI to use such real property in the conduct of the Business as currently conducted; (iv) Liens granted to any lender at the Closing in connection with any financing by Buyer of the transactions contemplated hereby; (v) zoning, building codes and other land use laws regulating the use or occupancy of real property or the activities conducted thereon which (A) are imposed by any Governmental Entity having jurisdiction over such real property, (B) are not violated by the current use or occupancy of such real property or the operation of the Business as currently conducted, and (C) do not affect or interfere in any material respect with the use of the real property by any member of the Company Group; and (vi) the Liens listed on Schedule 1.1(a).
“Person” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, Governmental Entity, other entity or group (as defined in Section 13(d)(3) of the Exchange Act).
“Personal Information” means any information that identifies a specific natural person, including, without limitation: (i) a natural person’s first and last name, in combination with a (A) social security number or tax identification number, or (B) credit card number, bank account information and other financial account information, or financial customer or account numbers, account access codes and passwords; and (ii) Protected Health Information as defined under HIPAA and any information pertaining to an individual that is regulated or protected by one or more Laws.
“Purchase Price” means (i) $80,000,000, plus (ii) the amount (if any) by which Net Working Capital exceeds Target Working Capital, minus (iii) the amount (if any) by which Target Working Capital exceeds Net Working Capital, minus (iv) the amount of Closing Indebtedness, minus (v) the amount of the Transaction Expenses, and minus (vi) the amount of the Closing Aged Receivables that remain uncollected within ninety (90) days following the Closing Date.
“Related Entity” means each of OHCS, OI, OSI, and UHS; provided, that any reference to a Related Entity shall only apply (i) to OHCS, OI, or UHS to the extent of that entity’s ownership or lease of assets used in the Business that were contributed to the Company under the Contribution Agreement or (ii) in the case of OSI, only to the extent of its employment of Transferred Employees.
“Representative” means, with respect to any Person, any director, manager, officer, employee, agent, consultant, advisor or other representative of such Person, including legal counsel, accountants and financial advisors.
“Restricted Activity” means the provision of contract call center services to each customer listed on Schedule 1.1(b) of the type described in the Contracts with that customer identified on Schedule 1.1(b).
46
Exhibit 10.96
“Subsidiary” or “Subsidiaries” means, when used with reference to any Person, any Person (i) of which such Person, or any other Subsidiary of such Person, is a general or managing partner, (ii) of which a Person owns or controls, directly or indirectly, capital stock or other equity ownership interests representing more than 50% of the outstanding voting stock or other equity ownership interests, or (iii) the outstanding voting securities or 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, are directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries.
“Target Working Capital” means $13,051,000.
“Tax” means (i) any and all taxes, fees, levies, duties, tariffs, imposts and other charges of any kind, imposed by any taxing authority or other Governmental Entity, including taxes or other charges on, measured by, or with respect to income, franchise, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation or net worth; and taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value-added or gains taxes; license, registration and documentation fees; and customs duties, tariffs and similar charges; (ii) any and all interest, penalties, additions to tax and additional amounts imposed in connection with or with respect to the foregoing; (iii) any liability for payment of amounts described in clauses (i) or (ii), whether as a result of transferee liability, of being a member of an affiliated, consolidated, combined or unitary group for any taxable period (including, without limitation, any liability pursuant to Treasury Regulations Section 1.1502-6 or any similar provision of state, local, or non-U.S. Law), by Contract, or otherwise through operation of Law; and (iv) any liability for the payment of amounts described in clauses (i), (ii) or (iii) as a result of any tax sharing, tax indemnity or tax allocation agreement or any other agreement to pay any Taxes of any other Person.
“Tax Return” means any return, statement, declaration, form, report, or information return or other documentation filed or maintained, or required to be filed or maintained, with respect to or in connection with the assessment or collection of any Taxes, including any schedules or attachments thereto and any amendments thereof.
“Transaction Documents” means this Agreement (including the Disclosure Schedule and other exhibits and schedules hereto), the Transition Services Agreement and the Employment Leasing and Transition Agreement, collectively.
“Transaction Expenses” means, as of the Effective Time, the aggregate Expenses payable by any member of the Company Group in connection with the transactions contemplated by this Agreement, which have not been paid by the Company Group.
“Transferred Employees” has the meaning ascribed to such term in the Employment Leasing and Transition Agreement.
“Transition Date” has the meaning ascribed to such term in the Employment Leasing and Transition Agreement.
“Transition Services Agreement” means the Transition Services Agreement dated as of the date hereof by and between Seller and Buyer describing services (including call recording retrieval services) that Seller will provide or cause to be provided to Buyer post-Closing to support the transition of the Business on the terms therein.
47
Exhibit 10.96
“UHS” means United HealthCare Services, Inc., a Minnesota corporation. References to UHS in Article III of the Agreement only refer to UHS to the extent of its ownership or lease of assets used in the Business that were contributed to the Company under the Contribution Agreement.
“Ultimate Parent” means UnitedHealth Group Incorporated.
“WARN Act” means the United States Worker Adjustment and Retraining Notification Act and any applicable state or local Laws of comparable effect, each as amended from time to time.
The following terms are not defined above but are defined on the pages of this Agreement indicated below:
Term Page
|
|
|
|
Acquired Business | 29 |
|
Agreement |
ii |
|
BA Agreements | 11 |
|
Benefit Plan | 12 |
|
Benefit Plans | 13 |
|
Buyer |
ii |
|
Buyer Indemnified Parties | 30 |
|
Buyer Indemnified Party | 30 |
|
Buyer Objection Notice | 5 |
|
Cap | 31 |
|
Claim Notice | 33 |
|
Closing | 3 |
|
Closing Date | 3 |
|
Closing Statement | 5 |
|
Company |
ii |
|
Company Contractors | 13 |
|
Current Representation | 39 |
|
Customers | 20 |
|
Designated Person | 39 |
|
DOJ | 10 |
|
Effective Time | 3 |
|
Estimated Closing Statement | 3 |
|
Exchange Act | 8 |
|
FCPA | 11 |
|
Final Purchase Price | 7 |
|
Financial Information | 9 |
|
Fundamental Buyer Representations and Warranties | 30 |
|
Fundamental Seller Representations and Warranties | 30 |
|
Indemnitee | 32 |
|
Indemnitor | 33 |
|
Independent Auditor | 6 |
|
IP License | 17 |
|
Leased Real Property | 12 |
|
Material Contract | 17 |
|
Material Suppliers | 21 |
48
Exhibit 10.96
|
Notice Period | 33 |
|
Objection Notice | 6 |
|
Owned Software | 48 |
|
Post-Closing Adjustment Amount | 7 |
|
Post-Closing Representation | 39 |
|
Pre-Closing Period Tax Returns | 23 |
|
Pre-Closing Periods | 16 |
|
Qualified Plans | 13 |
|
Registered Intellectual Property | 19 |
|
Restricted Period | 29 |
|
Review Period | 5 |
|
Section 1.1502-36 Election | 24 |
|
Securities Act | 8 |
|
Seller |
ii |
|
Seller Business | 27 |
|
Seller Entities | 27 |
|
Seller Indemnified Parties | 32 |
|
Seller Indemnified Party | 32 |
|
Seller Objection Notice | 6 |
|
Shares |
ii |
|
Single Claim Threshold | 31 |
|
Straddle Contract Period | 27 |
|
Straddle Contracts | 27 |
|
Straddle Period Tax Returns | 23 |
|
Straddle Periods | 23 |
|
Tax Proceeding | 25 |
|
Third Party Claim | 33 |
|
Threshold | 31 |
|
Transfer Taxes | 25 |
|
Uncollected Receivables Statement | 5 |
|
Vendor BA Agreements | 11 |
49
Exhibit 10.96
Schedule 1.1(a)
Permitted Liens
Liens under the Faxable Lease Agreements between the Company and Canon Financial Services, Inc.
Exhibit 10.96
Schedule 1.1(b)
Restricted Activity Customers and Contracts
|
|
Customer |
Contract |
|
1. |
Xxxxxx Foundation Health Plan, Inc. |
Amended and Restated Master Services Agreement effective as of October 1, 2012 by and between Xxxxxx Foundation Health Plan, Inc. and Connextions, Inc., as amended. |
|
2. |
Independence Blue Cross |
Standard Support Agreement between Connextions, Inc. and Independence Blue Cross, effective July 25, 2011, as amended. |
|
3. |
Health Net, Inc. |
Master Services and License Agreement by and between Health Net, Inc. and OptumInsight, Inc., effective as of June 29, 2012, as amended o Order Schedule No. 11 to Master Services and License Agreement between OptumInsight, Inc. and Health Net, Inc., made as of March 10, 2014, together with all amendments thereto.o Order Schedule No. 14 to Master Services and License Agreement between OptumInsight, Inc. and Health Net, Inc., made as of July 1, 2014, together with all amendments thereto. |
|
4. |
Cedars-Sinai Medical Center |
Call Center Agreement between Cedars-Sinai Medical Center and Connextions, Inc., effective January 1, 2012, as amended, together with all statements of work. |
|
5. |
Connecticut General Life Insurance Company |
Professional Services Agreement by and between Connecticut General Life Insurance Company and Connextions, Inc., effective as of December 2, 2009, together with all Task Orders as each may be amended. |
|
6. |
USAA Life General Agency |
Master Services Agreement between USAA Life General Agency and Connextions, Inc., effective February 28, 2013, together with all statements of work and addenda, as each may be amended. |
|
7. |
Connecticare, Inc. |
Standard Support Agreement between Connextions, Inc. and Connecticare, Inc., effective August 15, 2010, including addenda, as each may be amended. |
|
8. |
Chesapeake Life Insurance Company |
Master Software License and Services Agreement between Connextions, Inc. and the Chesapeake Life Insurance Company, effective September 1, 2011, together with all statements of work, as each may be amended. |
Exhibit 10.96
Schedule 1.1(c)
Key Employees
Xxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxxx
Xxxxx Xxxxxxxx
Xxxx Xxxxxxxxx
Xxxxxx Xxxx
Exhibit 10.96
Schedule 6.2(e)
Indemnification Matters
|
1. Any claim made by an individual who was a director or officer of the Company or Connextions HCI prior to the Effective Time for indemnification as a former director or officer of either of those entities under their respective Governing Documents related to any action or inaction that occurred at or prior to Closing. |
|
2. Any claims related to how any Company Employees are classified or paid, including “wage and hour claims” or other claims made with respect to any Company Employee(s) under the Fair Labor Standards Act, as amended, or any applicable state or local wage and hour Laws to the extent related to any action or inaction that occurred prior to Closing. |
