AMENDED AND RESTATED STOCK PURCHASE AGREEMENT between ABILITY INC. and and

Exhibit 10.1

 

AMENDED AND RESTATED

 

STOCK PURCHASE AGREEMENT

 

between

 

ABILITY INC.

 

and

 

[***]

 

and

 

TELCOSTAR PTE. LTD.

 

dated as of

 

January 15, 2019

 

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

TABLE OF CONTENTS

 

Article I Definitions 1
   
Article II Purchase and sale 5
     
Section 2.01 Purchase and Sale. 5
     
Section 2.02 Consideration. 5
     
Section 2.03 Transactions to be Effected at the Closing 5
     
Section 2.04 Closing. 6
     
Section 2.05 Reseller Agreement and Related Payments. 6
     
Article III Representations and warranties of seller 7
     
Section 3.01 Organization and Authority of Seller. 7
     
Section 3.02 Organization, Authority and Qualification of the Company. 7
     
Section 3.03 Capitalization. 8
     
Section 3.04 No Subsidiaries. 8
     
Section 3.05 No Conflicts; Consents. 8
     
Section 3.06 Financial Statements. 9
     
Section 3.07 Undisclosed Liabilities. 9
     
Section 3.08 Absence of Certain Changes, Events and Conditions. 9
     
Section 3.09 Material Contracts. 10
     
Section 3.10 Intellectual Property. 10
     
Section 3.11 Legal Proceedings; Governmental Orders. 11
     
Section 3.12 Compliance With Laws; Permits. 12
     
Section 3.13 Employment Matters. 12
     
Section 3.14 Taxes. 12
     
Section 3.15 Brokers. 13
     
Section 3.16 Full Disclosure. 13
     
Section 3.17 Investment Purpose. 13
     
Section 3.18 Seller Status 13
     
Section 3.19 Reliance on Exemptions 14
     
Section 3.20 Experience of the Seller 14
     
Section 3.21 General Solicitation 14
     
Section 3.22 Access to Information 14

  

i

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 3.23 Transfer or re-sale 14
     
Section 3.24 Legends 15
     
Article IV Representations and warranties of buyer 15
     
Section 4.01 Organization and Authority of Buyer. 15
     
Section 4.02 No Conflicts; Consents. 16
     
Section 4.03 Brokers. 16
     
Section 4.04 Legal Proceedings. 16
     
Article V Covenants 16
     
Section 5.01 Conduct of Business Prior to the Closing. 16
     
Section 5.02 Access to Information. 17
     
Section 5.03 Resignations. 17
     
Section 5.04 Confidentiality. 17
     
Section 5.05 Governmental Approvals and Other Third-party Consents. 17
     
Section 5.06 Books and Records. 18
     
Section 5.07 Closing Conditions. 19
     
Section 5.08 Public Announcements. 19
     
Section 5.09 Further Assurances. 19
     
Section 5.10 Transfer Taxes. 19
     
Section 5.11 Non-Competition; Non-Solicitation. 19
     
Article VI Conditions to closing 20
     
Section 6.01 Conditions to Obligations of All Parties. 20
     
Section 6.02 Conditions to Obligations of Buyer. 21
     
Section 6.03 Conditions to Obligations of Seller. 22
     
Article VII Indemnification 23
     
Section 7.01 Survival. 23
     
Section 7.02 Indemnification By Seller. 23
     
Section 7.03 Indemnification By Buyer. 23
     
Section 7.04 Certain Limitations. 24
     
Section 7.05 Indemnification Procedures. 25
     
Section 7.06 Tax Treatment of Indemnification Payments. 27
     
Section 7.07 Exclusive Remedies. 27
     
Section 7.08 Unjust Termination by Seller. 28

 

ii

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Article VIII Termination 28
     
Section 8.01 Termination. 28
     
Section 8.02 Effect of Termination. 28
     
Article IX Miscellaneous 28
     
Section 9.01 Expenses. 29
     
Section 9.02 Notices. 30
     
Section 9.03 Interpretation. 31
     
Section 9.04 Headings. 31
     
Section 9.05 Severability. 31
     
Section 9.06 Entire Agreement. 31
     
Section 9.07 Successors and Assigns. 31
     
Section 9.08 No Third-party Beneficiaries. 31
     
Section 9.09 Amendment and Modification; Waiver. 32
     
Section 9.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial 32
     
Section 9.11 Specific Performance. 33
     
Section 9.12 Counterparts. 33

 

iii

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

AMENDED AND RESTATED STOCK PURCHASE AGREEMENT

 

This Amended and Restated Stock Purchase Agreement (this “Agreement”), dated as of January 15, 2019, is entered into between [***] (“Seller”), Ability Inc., a company incorporated under the laws of the Cayman Islands (“Buyer”) and, with respect to Section 2.05 to this Agreement, TELCOSTAR PTE. LTD., a company organized and existing under the laws of Singapore (the “Company”).

 

Recitals

 

WHEREAS, [***] owns all of the issued and outstanding ordinary shares, par value 1.00 SGD (the “Shares”), of the Company;

 

WHEREAS, [***] and the Seller are parties to that certain Declaration of Trust, dated as of June 29, 2016 (the “Declaration of Trust”), pursuant to which [***] holds the Shares in trust and as nominee for the Seller, and agrees to deal with or act in relation to the Shares only in accordance with the direction of the Seller; and

 

WHEREAS, Seller wishes to cause its nominee [***] to sell to Buyer, and Buyer wishes to purchase from [***] at the direction of Seller, the Shares, subject to the terms and conditions set forth herein;

 

WHEREAS, the Buyer, the Seller and the Company entered into that certain Stock Purchase Agreement dated November 20, 2018 (the “Original SPA”);

 

WHEREAS, the Buyer and the Seller entered into that certain Amendment No. 1 to this Agreement, dated December 21, 2018, to extend the Drop Dead Date (as defined herein) to January 15, 2019;

 

WHEREAS, the Buyer, the Seller and the Company wish to amend and restate the Original SPA in full;

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

Article I
Definitions

 

The following terms have the meanings specified or referred to in this ‎Article I:

 

“Accredited Investor” has the meaning set forth in Section 3.18.

 

“Ability” has the meaning set forth in Section 2.05.

 

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

 

“Agreement” has the meaning set forth in the preamble.

 

“Balance Sheet” has the meaning set forth in ‎Section 3.06.

 

“Balance Sheet Date” has the meaning set forth in ‎Section 3.06.

 

“Basket” has the meaning set forth in ‎Section 7.04(a).

 

“Business Day” means any day except Friday, Saturday, Sunday or any other day on which commercial banks located in Israel or [***] are authorized or required by Law to be closed for business.

 

“Buyer” has the meaning set forth in the preamble.

 

“Buyer Indemnitees” has the meaning set forth in ‎Section 7.02.

 

“Cap” has the meaning set forth in ‎Section 7.04(a).

 

“Closing” has the meaning set forth in ‎Section 2.04.

 

“Closing Date” has the meaning set forth in ‎Section 2.04.

 

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

 

“Confidential Information” means all confidential and/or proprietary information, disclosed by one party to the other both prior to and following the Closing Date of this Agreement, and whether oral, electronic, visual or written form, including, without limitation, processes, services, products, plans, intentions, pricing, inventions, intellectual property rights, trade secrets, know-how, methods, techniques, computer software, source and object codes, algorithms, engineering concepts, product specifications, models descriptions, drawings, samples, demonstrations, manufacturing processes, research and development efforts, development tools, marketing information, sales, suppliers, customers, and financial data.

 

“Company” has the meaning set forth in the recitals.

 

“Company Intellectual Property” has the meaning set forth in ‎Section 3.10(b).

 

“Company IT Systems” has the meaning set forth in Section 3.10(d).

 

“Declaration of Trust” has the meaning set forth in the recitals.

 

“Direct Claim” has the meaning set forth in ‎Section 7.05(c).

 

2

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

“Dollars or $” means the lawful currency of the United States.

 

“Drop Dead Date” has the meaning set forth in Section 9.01(b)(i).

 

“Employees” means those Persons employed by the Company immediately prior to the Closing.

 

“Encumbrance” means any lien, pledge, mortgage, deed of trust, security interest, charge, claim, easement, encroachment or other similar encumbrance.

 

“Financial Statements” has the meaning set forth in ‎Section 3.06.

 

“GAAP” means United States generally accepted accounting principles in effect from time to time.

 

“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

 

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

 

“Indemnified Party” has the meaning set forth in Section 7.05.

 

“Indemnifying Party” has the meaning set forth in Section 7.05.

 

“Intellectual Property” has the meaning set forth in ‎Section 3.10(a).

 

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority.

 

“Losses” means actual out-of-pocket losses, damages, liabilities, costs or expenses, including reasonable attorneys’ fees.

 

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is materially adverse to (a) the business, results of operations, financial condition or assets of the Company, or (b) the ability of Seller to consummate the transactions contemplated hereby.

 

“Material Contracts” has the meaning set forth in ‎Section 3.09(a).

 

“[***]” has the meaning set forth in the preamble.

 

“Original SPA” has the meaning set forth in the preamble.

 

3

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

“Permits” means all permits, licenses, franchises, approvals, authorizations, and consents required to be obtained from Governmental Authorities.

 

“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

 

“Reseller Agreement” has the meaning set forth in Section 2.05.

 

“Restricted Business” means the XXXX business that allows voice and SMS interception. 

 

“Restricted Period” has the meaning set forth in ‎Section 5.11(a).

 

“Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

 

“SEC” has the meaning set forth in Section 3.22.

 

“Securities” has the meaning set forth in Section 3.17.

 

“Securities Act” has the meaning set forth in Section 3.17.

 

“Seller” has the meaning set forth in the preamble.

 

“Seller Indemnitees” has the meaning set forth in ‎Section 7.03.

 

“Services Agreement” means the Services Agreement between [***] and the Company, substantially in the form attached hereto as Exhibit A, and as may further be amended until the Closing Date based on due diligence.

 

“Share Consideration” has the meaning set forth in Section 2.02(a).

 

“Shares” has the meaning set forth in the recitals.

 

“Taxes” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

 

“Tax Claim” has the meaning set forth in Section 8.01.

 

“Tax Return” means any return, declaration, report, claim for refund, information return or statement or other document required to be filed with respect to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

4

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

“Territory” means worldwide.

 

“Third-Party Claim” has the meaning set forth in ‎Section 7.05(a).

 

“Transaction Price” means $2.82 per ordinary share.

 

“XXXX” is [***].

 

“Warrants” has the meaning set forth in Section 2.02(b).

 

Article II
Purchase and sale

 

Section 2.01 Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing, Seller shall cause its nominee [***] to sell to Buyer, and Buyer shall purchase from [***] at the direction of Seller, the Shares for the consideration specified in Section 2.02.

 

Section 2.02 Consideration. The consideration for the Shares shall be:

 

(a) Ordinary shares of Buyer in an amount equal to $1,000,000 (one million dollars), as calculated based on the Transaction Price (the “Share Consideration”), rounded down to the nearest whole share; and

 

(b) Three warrants, each warrant to purchase 100,000 ordinary shares of the Buyer, issued to Seller and exercisable on each of the first, second and third anniversaries of the Closing Date, in each case for a 30-day period and at an exercise price equal to 1.35 times the Transaction Price (the “Warrants”).

 

Section 2.03 Transactions to be Effected at the Closing.

 

(a) At the Closing, Buyer shall deliver to Seller, or to its designees:

 

(i) the Share Consideration;

 

(ii) the Warrants; and

 

(iii) all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to ‎Section 6.03 of this Agreement.

 

5

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(b) At the Closing, Seller shall deliver (or cause to be delivered) to Buyer:

 

(i) stock certificates or other instruments evidencing the Shares, as required in order to perfect the transfer of the Shares free and clear of all Encumbrances to Buyer under Singapore law; and

 

(ii) all other agreements, documents, instruments or certificates required to be delivered by Seller at or prior to the Closing pursuant to ‎Section 6.02 of this Agreement.

 

Section 2.04 Closing. Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Barnea Law Firm, HaRakevet St 58, Tel Aviv-Yafo, 0000000, Israel, at 3:00pm Israel time, on the fifth Business Day after all of the conditions to Closing set forth in ‎Article VI have been satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date), or at such other time, date or place as Seller and Buyer may mutually agree upon in writing. The date on which the Closing is to occur is herein referred to as the “Closing Date”.

 

Section 2.05 Reseller Agreement and Related Payments. With respect to that certain Reseller Agreement between the Company and Ability Computers and Software Industries Ltd. (“Ability”), dated October 20, 2015 (as amended by that certain First Amendment to the Reseller Agreement, dated as of August 2018, the “Reseller Agreement”), the Parties agree as follows:

 

(a) Any income from orders made pursuant to the Reseller Agreement prior to November 20, 2018 shall be split between Ability and the Company pursuant to the Reseller Agreement, or as may be adjusted or otherwise agreed between Ability, the Company and the Seller. With regards to any such income payable to the Company, the Company hereby instructs the Buyer to pay such income directly to the Seller or as instructed by the Seller.

 

(i) With regards to outstanding payments due from Ability to the Company pursuant to the Reseller Agreement as of December 31, 2018, the parties agree that, within 15 Business Days after the Closing Date, Buyer shall pay Seller, or such other entity as instructed by the Seller, an amount of 526,438 EUR (five hundred twenty-six thousand four hundred thirty-eight euros). The Buyer shall have no right to demand the Seller to repay such amount.

 

(ii) The parties agree that, within 15 Business Days after the Closing Date, the Buyer shall pay Seller, or such other entity as instructed by the Seller, an amount of 30,000 EUR (thirty thousand euros) in return for services provided up to and including December 31, 2018.

 

(iii) With regards to the payment due from Ability to the Company in connection with that certain client in [***], the parties agree as follows:

 

(a) Seller shall repay the Buyer an amount of 103,857 EUR (one hundred three thousand eight hundred fifty-seven euros) previously paid by the Buyer to the Seller in connection with that certain client in [***].

 

6

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(b) If Ability received a written demand for repayment from such client prior to December 31, 2019, and such repayment was made prior to December 31, 2019, then Ability shall not be obligated to make any payments to the Company in connection with that client.

 

(c) If Ability received a written demand for repayment from such client prior to December 31, 2019, but such repayment was not made by Ability prior to June 30, 2020, then Ability shall pay the Company its share in connection with that client pursuant to the Reseller Agreement.

 

(d) If Ability did not receive a written demand for repayment from such client prior to December 31, 2019, then Ability shall pay the Company its share in connection with that client pursuant to the Reseller Agreement.

 

(b) The Company shall not receive any income from orders made pursuant to the Reseller Agreement between November 20, 2018 and January 31, 2019.

 

(c) If the Closing Date occurs on or prior to January 31, 2019, the Reseller Agreement shall be terminated.

 

Article III
Representations and warranties of seller

 

Seller represents and warrants to Buyer that the statements contained in this ‎Article III are true and correct as of the date hereof and at the Closing Date.

 

Section 3.01 Organization and Authority of Seller. Seller is a corporation duly organized, validly existing and in good standing under the Laws of the state of [***]. Seller, through the Declaration of Trust, has all necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Seller of this Agreement, the performance by Seller of its obligations hereunder and the consummation by Seller of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Seller. This Agreement has been duly executed and delivered by Seller, and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

 

Section 3.02 Organization, Authority and Qualification of the Company. The Company is a corporation duly organized, validly existing and in good standing under the Laws of the state of Singapore and has all necessary corporate power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on its business as it is currently conducted. The Company is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the properties owned or leased by it or the operation of its business as currently conducted makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing would not have a Material Adverse Effect. All corporate actions taken by the Company in connection with this Agreement will be duly authorized on or prior to the Closing.

 

7

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 3.03 Capitalization.

 

(a) The authorized capital stock of the Company consists of 1,000 ordinary shares, of which 1,000 shares are issued and outstanding and constitute the Shares. All of the Shares have been duly authorized, are validly issued, fully paid and non-assessable, and are owned of record and beneficially by Seller, through [***] and the Declaration of Trust, free and clear of all Encumbrances. All Share Consideration and Warrants to be paid on account of a sale of the Shares are to be paid to Seller or to its designees, and [***] is merely a nominee and has no legal or equitable claim to any consideration on account of a sale of the Shares.

 

(b) There are no outstanding or authorized options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to the capital stock of the Company or obligating Seller or the Company, or any of their Affiliates, to issue or sell any shares of capital stock of, or any other interest in, the Company. The Company does not have outstanding or authorized any stock appreciation, phantom stock, profit participation or similar rights. There are no voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of any of the Shares.

 

Section 3.04 No Subsidiaries. The Company does not own, or have any interest in any shares or have an ownership interest in any other Person.

 

Section 3.05 No Conflicts; Consents. The execution, delivery and performance by Seller of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not: (a) result in a violation or breach of any provision of the certificate of incorporation or by-laws or other organizational documents of Seller or the Company; (b) result in a violation or breach of any provision of any Law or Governmental Order applicable to Seller, or the Company; or (c) require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default under or result in the acceleration of any Material Contract, except in the cases of clauses (b) and (c), where the violation, breach, conflict, default, acceleration or failure to give notice would not have a Material Adverse Effect. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Seller or the Company in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, except for such filings and such consents, approvals, Permits, Governmental Orders, declarations, filings or notices which, in the aggregate, would not have a Material Adverse Effect.

 

8

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 3.06 Financial Statements. Copies of the Company’s financial statements consisting of the balance sheet of the Company as at September 30 in each of the years 2017 and 2016 and the related statements of income and retained earnings, stockholders’ equity and cash flow for the years then ended (the “Financial Statements”) have been made available to Buyer. The Financial Statements fairly present in all material respects the financial condition of the Company as of the respective dates they were prepared and the results of the operations of the Company for the periods indicated. The balance sheet of the Company as of September 30, 2017 is referred to herein as the “Balance Sheet”.

 

Section 3.07 Undisclosed Liabilities. The Company has no liabilities, obligations or commitments of a type required to be reflected on a balance sheet prepared in accordance with generally accepted accounting principles, except (i) those which are adequately reflected or reserved against in the Balance Sheet as of the Balance Sheet Date; and (ii) those which have been incurred in the ordinary course of business since the Balance Sheet Date and which are not material in amount.

 

Section 3.08 Absence of Certain Changes, Events and Conditions. Except as expressly contemplated by the Agreement, from the Balance Sheet Date until the date of this Agreement, the Company has operated in the ordinary course of business in all material respects and there has not been, with respect to the Company, any:

 

(a) event, occurrence or development that has had a Material Adverse Effect;

 

(b) material amendment of the charter, by-laws or other organizational documents of the Company;

 

(c) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;

 

(d) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or applicable Law or as disclosed in the notes to the Financial Statements;

 

(e) incurrence, assumption or guarantee of any indebtedness for borrowed money in an aggregate amount exceeding $10,000, except unsecured current obligations and liabilities incurred in the ordinary course of business;

 

(f) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof;

 

(g) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law; or

 

9

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(h) any agreement to do any of the foregoing, or any action or omission that would result in any of the foregoing.

 

Section 3.09 Material Contracts.

 

(a) The Company has not entered into any of the following contracts or other agreements (the “Material Contracts”):

 

(i) each agreement of the Company, which, cannot be cancelled by the Company without penalty or without more than 180 days’ notice;

 

(ii) all agreements that relate to the sale of any of the Company’s assets, other than in the ordinary course of business;

 

(iii) all agreements that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise);

 

(iv) except for agreements relating to trade receivables, all agreements relating to indebtedness (including, without limitation, guarantees) of the Company;

 

(v) all agreements between or among the Company on the one hand and Seller or any Affiliate of Seller (other than the Company) on the other hand; and

 

(b) The Company is not in breach of, or default under, any Material Contract, except for such breaches or defaults that would not have a Material Adverse Effect.

 

Section 3.10 Intellectual Property.

 

(a) “Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) trademarks and service marks, including all applications and registrations and the goodwill connected with the use of and symbolized by the foregoing; (ii) copyrights, including all applications and registrations related to the foregoing; (iii) trade secrets and confidential know-how; (iv) patents and patent applications; (v) internet domain name registrations; (vi) object and source codes; and (vii) other intellectual property and related proprietary rights, interests and protections.

 

(b) The Company owns or has the right to use all Intellectual Property necessary to conduct the business as currently conducted (the “Company Intellectual Property”).

 

(c) (i) the Company Intellectual Property as currently licensed or used by the Company, and the Company’s conduct of its business as currently conducted, do not infringe, misappropriate or otherwise violate the Intellectual Property of any Person; and (ii) no Person is infringing, misappropriating or otherwise violating any Company Intellectual Property.

 

10

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(d) The computer systems, networks, hardware, software, databases, websites, and equipment used to process, store, maintain and operate data, information, and functions used in connection with the business of the Company (the “Company IT Systems”) (i) are adequate for, and operate and perform in all material respects as required in connection with, the operation of the business of the Company as currently conducted, (ii) since the incorporation of the Company have not failed in a manner that caused or would reasonably be expected to cause a serious disruption to the business of the Company, and (iii) do not contain viruses, spyware and other malicious faults or devices that may be embedded, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has implemented commercially reasonable backup, security and disaster recovery technology consistent in all material respects with applicable regulatory standards and customary industry practices. The Company IT Systems do not contain any shareware, freeware, open source code, or other software subject to any license which would mandate the disclosure or licensing of any Company IT Systems or Intellectual Property to any other Person in the event such Company IT Systems or Intellectual Property were used in conjunction with such code, except where such uses, singly or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

 

(e) The Company has not received any notice (written or otherwise) that any of the Company Intellectual Property has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within five (5) years from the date of this Agreement. The Company has not received a written notice of a claim or otherwise has any knowledge that the Company Intellectual Property violates or infringes upon the rights of any Person. All such Company Intellectual Property is enforceable and there is no existing infringement by another Person of any of the Company Intellectual Property. The Company has taken reasonable security measures to protect the secrecy, confidentiality and value of all of its intellectual properties. The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Company Intellectual Property. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Company Intellectual Property that is necessary to conduct its business.

 

Section 3.11 Legal Proceedings; Governmental Orders.

 

(a) There are no actions, suits, claims, investigations or other legal proceedings pending or, to Seller’s knowledge, threatened against or by the Company affecting any of its properties or assets (or by or against Seller or any Affiliate thereof and relating to the Company), which if determined adversely to the Company (or to Seller or any Affiliate thereof) would result in a Material Adverse Effect.

 

(b) There are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against or affecting the Company or any of its properties or assets which would have a Material Adverse Effect.

 

11

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 3.12 Compliance With Laws; Permits.

 

(a) The Company is in compliance with all Laws applicable to it or its business, properties or assets, except where the failure to be in compliance would not have a Material Adverse Effect.

 

(b) All Permits required for the Company to conduct its business have been obtained by it and are valid and in full force and effect, except where the failure to obtain such Permits would not have a Material Adverse Effect.

 

Section 3.13 Employment Matters.

 

(a) The Company is not a party to, or bound by, any collective bargaining or other agreement with a labor organization representing any of its Employees. Since the incorporation of the Company, there has not been, nor, to Seller’s knowledge, has there been any threat of, any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor activity or dispute affecting the Company.

 

(b) The Company is in compliance with all applicable Laws pertaining to employment and employment practices to the extent they relate to employees of the Company, except to the extent non-compliance would not result in a Material Adverse Effect. Except as would not have a Material Adverse Effect, there are no actions, suits, claims, investigations or other legal proceedings against the Company pending, or to the Seller’s knowledge, threatened to be brought or filed, by or with any Governmental Authority or arbitral tribunal in connection with the employment or termination of employment of any current or former employee of the Company, including, without limitation, any claim relating to unfair labor practices, employment discrimination, harassment, retaliation, equal pay or any other employment related matter arising under applicable Laws.

 

(c) The representations and warranties set forth in this ‎Section 3.13 are the Seller’s sole and exclusive representations and warranties regarding employment matters.

 

Section 3.14 Taxes.

 

(a) The Company has filed (taking into account any valid extensions) all material Tax Returns required to be filed by the Company. Such Tax Returns are true, complete and correct in all material respects. The Company is not currently the beneficiary of any extension of time within which to file any material Tax Return other than extensions of time to file Tax Returns obtained in the ordinary course of business. All material Taxes due and owing by the Company have been paid or accrued.

 

(b) No extensions or waivers of statutes of limitations have been given or requested with respect to any material Taxes of the Company.

 

(c) There are no ongoing actions, suits, claims, investigations or other legal proceedings by any taxing authority against the Company.

 

(d) The Company is not a party to any Tax-sharing agreement.

 

12

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(e) All material Taxes which the Company is obligated to withhold from amounts owing to any employee, creditor or third party have been paid or accrued.

 

(f) The representations and warranties set forth in this ‎Section 3.14 are the Seller’s sole and exclusive representations and warranties regarding Tax matters.

 

Section 3.15 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller.

 

Section 3.16 Full Disclosure. No representation or warranty by the Seller in this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.

 

Section 3.17 Investment Purpose. The Seller understands that the Share Consideration, the Warrants and the ordinary shares underlying the Warrants (collectively, the “Securities”) have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), by reason of a claimed exemption under the provisions of the Securities Act that depends, in part, upon the Seller’s investment intention. In this connection, the Seller hereby represents that the Seller is purchasing the Securities for its own account for investment and not with a view toward the resale or distribution to other.

 

Section 3.18 Seller Status. The Seller is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D (an “Accredited Investor”). The Seller is not required to be registered as a broker-dealer under Section 15 of the Securities Exchange Act of 1934 and such Seller is not a broker-dealer, nor an affiliate of a broker-dealer. If the Seller is not a U.S. Person, the Seller (i) acknowledges that the certificate(s) representing or evidencing the Securities contains a customary restrictive legend restricting the offer, sale or transfer of any Securities except in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration, (ii) agrees that all offers and sales by such Seller of Securities shall be made pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from, or a transaction not subject to the registration requirements of, the Securities Act, (iii) represents that the offer to purchase the Securities was made to the Seller outside of the United States, and the Seller was, at the time of the offer and will be, at the time of the sale and is now, outside the United States, (iv) has not engaged in or directed any unsolicited offers to purchase Securities in the United States, (v) is neither a U.S. Person nor a Distributor (as such terms are defined in Rule 902(k) and 902(d), respectively, of Regulation S), (vi) has purchased the Securities for its own account and not for the account or benefit of any U.S. Person, (vii) is the sole beneficial owner of the Securities specified on signature pages hereto opposite his name and has not pre-arranged any sale with any other seller in the United States, and (ix) is familiar with and understands the terms and conditions and requirements contained in Regulation S, specifically, without limitation, the Seller understands that the statutory basis for the exemption claimed for the sale of the Securities would not be present if the sale, although in technical compliance with Regulation S, is part of a plan or scheme to evade the registration provisions of the Securities Act.

 

13

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 3.19 Reliance on Exemptions. The Seller understands that the Securities are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Buyer is relying upon the truth and accuracy of, and the Seller’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Seller set forth herein in order to determine the availability of such exemptions and the eligibility of the Seller to acquire the Securities.

 

Section 3.20 Experience of the Seller. The Seller, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. The Seller is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

 

Section 3.21 General Solicitation.  The Seller is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general advertisement.

 

Section 3.22 Access to Information. The Seller acknowledges that it has had the opportunity to review this Agreement, the Services Agreement (including all exhibits and schedules thereto) and the Buyer’s filings with the Securities and Exchange Commission (the “SEC”) and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Buyer concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Buyer and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Buyer possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. 

 

Section 3.23 Transfer or re-sale. The Seller understands that (i) the sale or re-sale of the Securities has not been and is not being registered under the Securities Act or any applicable state securities laws, and the Securities may not be transferred unless (a) the Securities are sold pursuant to an effective registration statement under the Securities Act, (b) the Seller shall have delivered to the Buyer, at the cost of the Seller, an opinion of counsel that shall be in form, substance and scope customary for opinions of counsel in comparable transactions to the effect that the Securities to be sold or transferred may be sold or transferred pursuant to an exemption from such registration, which opinion may be accepted by the Buyer in its reasonable discretion, (c) the Securities are sold or transferred to an “affiliate” (as defined in Rule 144) of the Seller who agrees to sell or otherwise transfer the Securities only in accordance with this Section 3.23 and who is an Accredited Investor, or (d) the Securities are sold pursuant to Rule 144 or Regulation S, and the Seller shall have delivered to the Buyer, at the cost of the Seller, an opinion of counsel that shall be in form, substance and scope customary for opinions of counsel in corporate transactions, which opinion may be accepted by the Buyer in its reasonable discretion; (ii) any sale of such Securities made in reliance on Rule 144 may be made only in accordance with the terms of said Rule 144 and further, if said Rule 144 is not applicable, any re-sale of such Securities under circumstances in which the Seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder; and (iii) neither the Buyer nor any other person is under any obligation to register such Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder (in each case).

 

14

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 3.24 Legends. The Seller consents to the placement of a legend on any certificate or other document evidencing the Securities that such securities have not been registered under the Securities Act or any state securities or “blue sky” laws and setting forth or referring to the restrictions on transferability and sale thereof contained in this Agreement. The Seller is aware that the Buyer will make a notation in its appropriate records with respect to the restrictions on the transferability of such Shares. The legend to be placed on each certificate shall be in form substantially similar to the following:

 

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE BUYER. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.

 

Article IV
Representations and warranties of buyer

 

Buyer represents and warrants to Seller that the statements contained in this ‎Article IV are true and correct as of the date hereof.

 

Section 4.01 Organization and Authority of Buyer. Buyer is a corporation duly organized, validly existing and in good standing under the Laws of the state of Cayman Islands. Buyer has all necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its obligations hereunder and the consummation by Buyer of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

 

15

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 4.02 No Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not: (a) result in a violation or breach of any provision of the certificate of incorporation or by-laws of Buyer; or (b) result in a violation or breach of any provision of any Law or Governmental Order applicable to Buyer, require the consent, notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default under or result in the acceleration of any agreement to which Buyer is a party, except in the case of clause (b), where the violation, breach, conflict, default, acceleration or failure to give notice would not have a material adverse effect on Buyer’s ability to consummate the transactions contemplated hereby. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Buyer in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, except for such consents, approvals, Permits, Governmental Orders, declarations, filings or notices which would not have a material adverse effect on Buyer’s ability to consummate the transactions contemplated hereby.

 

Section 4.03 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer.

 

Section 4.04 Legal Proceedings. There are no actions, suits, claims, investigations or other legal proceedings pending or, to Buyer’s knowledge, threatened against or by Buyer or any Affiliate of Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.

 

Article V
Covenants

 

Section 5.01 Conduct of Business Prior to the Closing. From the date hereof until the Closing, except as otherwise provided in this Agreement or consented to in writing by Buyer (which consent shall not be unreasonably withheld or delayed), Seller shall, and shall cause the Company to: (a) conduct the business of the Company in the ordinary course of business; (b) use commercially reasonable efforts to maintain and preserve intact the current organization, business and infrastructure of the Company, and to preserve the rights, goodwill and relationships of its Employees, customers, lenders, suppliers, regulators and others having business relationships with the Company and (c) to maintain and preserve intact the Company Intellectual Property. From the date hereof until the Closing Date, except as consented to in writing by Buyer (which consent shall not be unreasonably withheld or delayed), Seller shall not cause or permit the Company to take any action that would cause any of the changes, events or conditions described in ‎Section 3.08 to occur.

 

16

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 5.02 Access to Information. From the date hereof until the Closing, Seller shall, and shall cause the Company to: (a) afford Buyer and its Representatives reasonable access to and the right to inspect all of the properties, assets, premises, books and records, contracts, agreements and other documents and data related to the Company; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Company as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Seller and the Company to cooperate with Buyer in its investigation of the Company; provided, however, that any such investigation shall be conducted during normal business hours upon reasonable advance notice to Seller, under the supervision of Seller’s personnel and in such a manner as not to interfere with the normal operations of the Company. Notwithstanding anything to the contrary in this Agreement, neither Seller nor the Company shall be required to disclose any information to Buyer if such disclosure would, in Seller’s sole discretion: (x) cause significant competitive harm to Seller, the Company and their respective businesses if the transactions contemplated by this Agreement are not consummated; (y) jeopardize any attorney-client or other privilege; or (z) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement.

 

Section 5.03 Resignations. Seller shall deliver to Buyer written resignations, effective as of the Closing Date, of the officers and directors of the Company prior to the Closing.

 

Section 5.04 Confidentiality.

 

(a) Seller shall (and shall procure that its Affiliates and representatives) and Buyer shall (and shall procure that its Affiliates and representatives) keep secret and treat as confidential any information provided to the other party pursuant to this Agreement.

 

(b) The Parties hereto shall not disclose, or allow disclosure of, any Confidential Information to any third party without the prior written approval of the other party.

 

(c) Each party hereto shall protect the confidentiality of the Confidential Information with the same degree of care it uses to protect its own Confidential Information, which measures will, at a minimum, be in accordance with generally accepted business standards for protecting confidential and proprietary business information.

 

Section 5.05 Governmental Approvals and Other Third-party Consents.

 

(a) Each party hereto shall, as promptly as possible, use its reasonable best efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement. Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.

 

17

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(b) All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions contemplated hereunder (but, for the avoidance of doubt, not including any interactions between Seller or the Company with Governmental Authorities in the ordinary course of business, any disclosure which is not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.

 

(c) Seller and Buyer shall use commercially reasonable efforts to give all notices to, and obtain all consents from, all necessary third parties; provided, however, that Seller shall not be obligated to pay any consideration therefor to any third party from whom consent or approval is requested.

 

Section 5.06 Books and Records.

 

(a) In order to facilitate the resolution of any claims made against or incurred by Seller prior to the Closing, or for any other reasonable purpose, for a period of 5 years after the Closing, Buyer shall:

 

(i) retain the books and records (including personnel files) of the Company relating to periods prior to the Closing in a manner reasonably consistent with the prior practices of the Company; and

 

(ii) upon reasonable notice, afford the Representatives of Seller reasonable access (including the right to make, at Seller’s expense, photocopies), during normal business hours, to such books and records.

 

(b) In order to facilitate the resolution of any claims made by or against or incurred by Buyer or the Company after the Closing, or for any other reasonable purpose, for a period of 5 years following the Closing, Seller shall:

 

(i) retain the books and records (including personnel files) of Seller which relate to the Company and its operations for periods prior to the Closing; and

 

(ii) upon reasonable notice, afford the Representatives of Buyer or the Company reasonable access (including the right to make, at Buyer’s expense, photocopies), during normal business hours, to such books and records.

 

18

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(c) Neither Buyer nor Seller shall be obligated to provide the other party with access to any books or records (including personnel files) pursuant to this ‎Section 5.06 where such access would violate any Law.

 

Section 5.07 Closing Conditions. From the date hereof until the Closing, each party hereto shall, and Seller shall cause the Company to, use commercially reasonable efforts to take such actions as are necessary to expeditiously satisfy the closing conditions set forth in ‎Article VI hereof.

 

Section 5.08 Public Announcements. Unless otherwise required by applicable Law or stock exchange requirements (based upon the reasonable advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed), and the parties shall cooperate as to the timing and contents of any such announcement.

 

Section 5.09 Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

 

Section 5.10 Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement (including any real property transfer Tax and any other similar Tax) shall be borne and paid by Seller when due. Seller shall, at its own expense, timely file any Tax Return or other document with respect to such Taxes or fees (and Buyer shall cooperate with respect thereto as necessary).

 

Section 5.11 Non-Competition; Non-Solicitation.

 

(a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person.

 

19

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(b) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer or is employed in the XXXX business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees.

 

(c) Seller acknowledges that a breach or threatened breach of this ‎Section 5.11 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).

 

(d) Seller acknowledges that the restrictions contained in this ‎Section 5.11 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this ‎Section 5.11 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this ‎Section 5.11 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

 

Article VI
Conditions to closing

 

Section 6.01 Conditions to Obligations of All Parties. The obligations of each party to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions:

 

(a) No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.

 

(b) Seller shall have received all consents, authorizations, orders and approvals from the Governmental Authorities referred to in ‎Section 3.05 and Buyer shall have received all consents, authorizations, orders and approvals from the Governmental Authorities referred to in ‎Section 4.02, in each case, in form and substance reasonably satisfactory to Buyer and Seller, and no such consent, authorization, order and approval shall have been revoked.

 

20

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Section 6.02 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:

 

(a) The representations and warranties of Seller contained in ‎Article III shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date), except where the failure of such representations and warranties to be true and correct would not have a Material Adverse Effect.

 

(b) Seller shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.

 

(c) Buyer shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in ‎Section 6.02(a) and ‎Section 6.02(b) have been satisfied.

 

(d) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby.

 

(e) Buyer shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to sign this Agreement and the other documents to be delivered hereunder.

 

(f) Seller shall have delivered, or, by instructing [***] pursuant to the Declaration of Trust to do all necessary actions, caused to be delivered to Buyer, stock certificates evidencing the Shares, free and clear of Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank and with all required stock transfer tax stamps affixed.

 

(g) Seller shall have delivered, or caused to be delivered, to Buyer a duly executed copy of the Services Agreement, dated as of the Closing Date.

 

(h) There shall be not less than USD 2,000 in the bank account of the Company.

 

21

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

(i) Buyer shall have completed its due diligence investigation of the Company by January 15, 2019, and shall, in its sole discretion, be satisfied with the results of such due diligence investigation.

 

Section 6.03 Conditions to Obligations of Seller. The obligations of Seller to consummate the transactions contemplated by this Agreement shall be subject to the fulfillment or Seller’s waiver, at or prior to the Closing, of each of the following conditions:

 

(a) The representations and warranties of Buyer contained in ‎Article IV shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date), except where the failure of such representations and warranties to be true and correct would not have a material adverse effect on Buyer’s ability to consummate the transactions contemplated hereby.

 

(b) Buyer shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or on the Closing Date.

 

(c) Seller shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Buyer, that each of the conditions set forth in ‎Section 6.03(a) and Section 6.03(b) have been satisfied.

 

(d) Seller shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby.

 

(e) Seller shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and signatures of the officers of Buyer authorized to sign this Agreement and the other documents to be delivered hereunder.

 

(f) Buyer shall have delivered to Seller, or to its designees, the Share Consideration.

 

(g) Buyer shall have delivered, or caused to be delivered, to Seller a duly executed copy of the Services Agreement, dated as of the Closing Date.

 

(h) Buyer shall have delivered, or caused to be delivered, to Seller the Warrants, in such form to be agreed upon between the parties.

 

22

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Article VII
Indemnification

 

Section 7.01 Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained herein shall survive the Closing and shall remain in full force and effect until the date that is three years from the Closing Date; provided, that the representations and warranties in (i) ‎Section 3.01, ‎Section 3.02, ‎Section 3.03, Section 3.07, Section 3.10, ‎Section 3.15, ‎Section 4.01, ‎Section 4.02 and ‎Section 4.03 shall survive indefinitely, and (ii) Section 3.14 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension thereof) plus 60 days. All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.

 

Section 7.02 Indemnification By Seller. Subject to the other terms and conditions of this ‎Section 7.02, Seller shall indemnify and defend each of Buyer and its Affiliates and their respective Representatives (collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:

 

(a) any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or in any agreement, certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);

 

(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any agreement, certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement; or

 

(c) any Third Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of any Seller or any of its Affiliates conducted, existing or arising on or prior to the Closing Date.

 

Section 7.03 Indemnification By Buyer. Subject to the other terms and conditions of this ‎Section 7.03, Buyer shall indemnify and defend Seller and its Affiliates and their respective Representatives (collectively, the “Seller Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to or by reason of:

 

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(a) any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date); or

 

(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement.

 

Section 7.04 Certain Limitations. The indemnification provided for in ‎Section 7.02 and ‎Section 7.03 shall be subject to the following limitations:

 

(a) Seller shall not be liable to the Buyer Indemnitees for indemnification under Section 7.02(a) until the aggregate amount of all Losses in respect of indemnification under Section 7.02(a) exceeds 1% of the Purchase Price (the “Basket”), in which event Seller shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section 7.02(a) shall not exceed 20% of the Purchase Price (the “Cap”).

 

(b) Buyer shall not be liable to the Seller Indemnitees for indemnification under Section 7.03(a) until the aggregate amount of all Losses in respect of the indemnification exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate amount of all Losses for which Buyer shall be liable pursuant to Section 7.03(a) shall not exceed the Cap.

 

(c) Notwithstanding the foregoing, the limitations set forth in Section 7.04(a) and 7.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any representation or warranty in Section 3.01, Section 3.02, Section 3.03, Section 3.07, Section 3.10 and Section 3.15.

 

(d) For purposes of this ‎Section 7.04, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in or otherwise applicable to such representation or warranty.

 

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Section 7.05 Indemnification Procedures. The party making a claim under this Article VII is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party”.

 

(a) Third-Party Claims. If any Indemnified Party receives notice of the assertion or commencement of any action, suit, claim or other legal proceeding made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”) against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense. In the event that the Indemnifying Party assumes the defense of any Third-Party Claim, subject to ‎Section 7.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right, at its own cost and expense, to participate in the defense of any Third-Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim or fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, the Indemnified Party may, subject to ‎Section 7.05(b), pay, compromise, defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the provisions of ‎Section 5.04) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense of such Third-Party Claim.

 

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(b) Settlement of Third-Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of any Third-Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), except as provided in this ‎Section 7.05(b). If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party from all liabilities and obligations in connection with such Third-Party Claim and the Indemnifying Party desires to accept and agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails to consent to such firm offer within ten days after its receipt of such notice, the Indemnified Party may continue to contest or defend such Third-Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third-Party Claim shall not exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense of such Third-Party Claim, the Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such firm offer to settle such Third-Party Claim. If the Indemnified Party has assumed the defense pursuant to ‎Section 7.05(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

 

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(c) Direct Claims. Any claim by an Indemnified Party on account of a Loss which does not result from a Third-Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving the Indemnifying Party prompt written notice thereof. The failure to give such prompt written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. During such 30-day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to the Company’s premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30-day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.

 

Section 7.06 Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

 

Section 7.07 Exclusive Remedies. Subject to Section 7.08 and ‎Section 9.11, the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from fraud on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this ‎Article VII. In furtherance of the foregoing, each party hereby waives, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law, except pursuant to the indemnification provisions set forth in this ‎Article VII. Nothing in this ‎Section 7.07 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled pursuant to ‎Section 9.11 or to seek any remedy on account of fraud by any party hereto.

 

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Section 7.08 Unjust Termination by Seller. Notwithstanding anything contained herein, Seller acknowledges that if Seller breaches this Agreement prior to the Closing Date while the Buyer is not in a material breach of a material provision of this Agreement, such breach would give rise to irreparable harm to Buyer, and Seller shall pay to Buyer an amount of $300,000, in addition to any and all other rights and remedies that may be available to it in respect of such breach by the Seller.

 

Article VIII
TAX MATTERS

 

Section 8.01 Notice of Tax Claims. Seller will promptly notify Buyer (no later than five Business Days) in writing upon receipt by Seller (or any of its Affiliates) of notice of any pending or threatened audit, examination or proceeding by a Governmental Authority (a “Tax Claim”).

 

Section 8.02 Seller’s Cooperation and Exchange of Information. Seller shall provide Buyer with such cooperation and information as the Buyer requests in filing any Tax Return of the Company or in connection with any audit or proceeding in respect of Taxes of the Company for all periods prior to the Closing Date. Such cooperation and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules, related work papers and documents relating to ruling or other determinations by tax authorities. Seller and Buyer shall retain all Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of the Company for any taxable period beginning before the Closing Date until the expiration of the statute of limitations of the taxable periods to which such Tax Returns and other documents relate, without regard to extensions except to the extent notified by the other party in writing of such extensions for the respective Tax periods. Prior to transferring, destroying or discarding any Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of the Company for any taxable period beginning before the Closing Date, Seller shall provide the Buyer with reasonable written notice and offer the Buyer the opportunity to take custody of such materials.

 

Article IX
Termination

 

Section 9.01 Termination. This Agreement may be terminated at any time prior to the Closing:

 

(a) by the mutual written consent of Seller and Buyer;

 

(b) by Buyer by written notice to Seller if:

 

(i) Buyer is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Seller pursuant to this Agreement that would give rise to the failure of any of the conditions specified in ‎Article VI and such breach, inaccuracy or failure cannot be cured by Seller by January 15, 2019 (the “Drop Dead Date”); or

 

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(ii) any of the conditions set forth in ‎Section 6.01 or ‎Section 6.02 shall not have been fulfilled by the Drop Dead Date, unless such failure shall be due to the failure of Buyer to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing;

 

(iii) Buyer, at any time and at its sole discretion, is not satisfied in its due diligence of the Company, which must be completed by January 15, 2019.

 

(c) by Seller by written notice to Buyer if:

 

(i) Seller is not then in material breach of any provision of this Agreement and there has been a material breach, inaccuracy in or failure to perform any representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of the conditions specified in ‎Article VI and such breach, inaccuracy or failure cannot be cured by Buyer by the Drop Dead Date; or

 

(ii) any of the conditions set forth in ‎Section 6.01 or ‎Section 6.03 shall not have been fulfilled by the Drop Dead Date, unless such failure shall be due to the failure of Seller to perform or comply with any of the covenants, agreements or conditions hereof to be performed or complied with by it prior to the Closing; or

 

(d) by Buyer or Seller in the event that:

 

(i) there shall be any Law that makes consummation of the transactions contemplated by this Agreement illegal or otherwise prohibited; or

 

(ii) any Governmental Authority shall have issued a Governmental Order restraining or enjoining the transactions contemplated by this Agreement, and such Governmental Order shall have become final and non-appealable.

 

Section 9.02 Effect of Termination. In the event of the termination of this Agreement in accordance with this Article, this Agreement shall forthwith become void and there shall be no liability on the part of any party hereto except:

 

(a) as set forth in this ‎Article VIII and ‎Section 5.04 and ‎Article IX hereof; and

 

(b) that nothing herein shall relieve any party hereto from liability for any intentional breach of any provision hereof.

 

Article X
Miscellaneous

 

Section 10.01 Expenses. Except as otherwise expressly provided herein (including ‎Section 5.10 hereof), all costs and expenses, including, without limitation, fees and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred.

 

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Section 10.02 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this ‎Section 9.02):

 

If to Seller:

[***]

 

with a copy to:

[***]

 

If to Buyer:

Ability Inc.

Yad Xxxxxxxx 00

Xxx Xxxx, Xxxxxx, 0000000

Email: xxx@xxxxxxx.xx.xx

Tel: x000-00-000-0000

Attention: Avi Xxxxx, CFO

 

with a copy to:

XxXxxxxxx Will & Xxxxx LLP
000 Xxxxxxx Xxxxxx

Xxx Xxxx, XX 00000-0000

Telephone: (000) 000-0000 
Facsimile: (000) 000-0000

Attention: Xxxx Xxxxxxxx

 

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Section 10.03 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections and Exhibits mean the Articles and Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.

 

Section 10.04 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

 

Section 10.05 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

 

Section 10.06 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous representations, warranties, understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and the Exhibits, the statements in the body of this Agreement will control.

 

Section 10.07 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.

 

Section 10.08 No Third-party Beneficiaries. Except as provided in ‎Article VII, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 

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Section 10.09 Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

Section 10.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.

 

(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Israel.

 

(b) ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE SERVICES AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE INSTITUTED IN THE COURTS OF THE STATE OF ISRAEL, IN THE CITY OF TEL AVIV, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

 

(c) EACH PARTY 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 IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10(c).

 

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Section 10.11 Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

 

Section 10.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

  [***]
     
  By:  
 

 

Name:

Title:

  
   
  TELCOSTAR PTE. LTD., for purposes of Section 2.05 to this Agreement
     
  By:  
     
  Name:
  Title:
     
  ABILITY INC.
     
  By:  
     
  Name:
  Title:

 

 

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

 

Exhibit A

 

Form of Services Agreement

 

[***] = Information that has been omitted and submitted separately to the Securities and Exchange Commission and for which confidential treatment has been requested.

 

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Filed: January 15th, 2019
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