AGREEMENT AND PLAN OF MERGER dated as of October 3, 2023 among LIVEVOX HOLDINGS, INC., NICE LTD., INCONTACT, INC. and LASER BRIDGE MERGER SUB INC.

Exhibit 2.1

Execution Version

AGREEMENT AND PLAN OF MERGER

dated as of

October 3, 2023

among

LIVEVOX HOLDINGS, INC.,

NICE LTD.,

INCONTACT, INC.

and

LASER BRIDGE MERGER SUB INC.

TABLE OF CONTENTS

Page

Article 1 Definitions		2

Section 1.01	Definitions	2
Section 1.02	Other Definitional and Interpretative Provisions	15

Article 2 The Merger		16

Section 2.01	The Merger	16
Section 2.02	Conversion of Shares	17
Section 2.03	Surrender and Payment	18
Section 2.04	Treatment of Equity Awards	18
Section 2.05	Dissenting Shares	20
Section 2.06	Treatment of Company Warrants	20
Section 2.07	Withholding Rights	20
Section 2.08	Lost Certificates	21

Article 3 The Surviving Corporation		21

Section 3.01	Certificate of Incorporation	21
Section 3.02	Bylaws	21
Section 3.03	Directors and Officers	21

Article 4 Representations and Warranties of the Company		21

Section 4.01	Corporate Existence and Power	22
Section 4.02	Corporate Authorization	22
Section 4.03	Governmental Authorization	22
Section 4.04	Non-contravention	23
Section 4.05	Capitalization	23
Section 4.06	Subsidiaries	24
Section 4.07	SEC Filings and the Xxxxxxxx-Xxxxx Act	26
Section 4.08	Financial Statements	27
Section 4.09	Disclosure Documents	28
Section 4.10	Absence of Certain Changes	28
Section 4.11	No Undisclosed Material Liabilities	28
Section 4.12	Compliance with Laws and Court Orders	29
Section 4.13	Litigation	29
Section 4.14	Properties	29
Section 4.15	Intellectual Property, Data Privacy and Cybersecurity	30
Section 4.16	Taxes	33
Section 4.17	Employees and Employee Benefit Plans	35
Section 4.18	Environmental Matters	38
Section 4.19	Licenses and Permits	38

Section 4.20	Material Contracts	39
Section 4.21	Insurance	42
Section 4.22	Customers, Partners, Resellers, Suppliers	42
Section 4.23	CFIUS and National Security Matters	43
Section 4.24	AML and Anti-Corruption Compliance	43
Section 4.25	Economic Sanctions & Export Controls Compliance	44
Section 4.26	Related Party Transactions	44
Section 4.27	Finders’ Fees	44
Section 4.28	Opinion of Financial Advisor	44
Section 4.29	Antitakeover Statutes	45
Section 4.30	No Other Representations and Warranties	45

Article 5 Representations and Warranties of Parent		46

Section 5.01	Corporate Existence and Power	46
Section 5.02	Corporate Authorization	46
Section 5.03	Governmental Authorization	46
Section 5.04	Non-contravention	47
Section 5.05	Disclosure Documents	47
Section 5.06	Litigation	47
Section 5.07	Ownership of Shares	47
Section 5.08	Financing	48
Section 5.09	Vote/Approval Required	48
Section 5.10	Brokers	48
Section 5.11	Stockholder and Management Arrangements	48
Section 5.12	Solvency	49
Section 5.13	Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans	50
Section 5.14	No Other Representations and Warranties	50

Article 6 Covenants of the Company		51

Section 6.01	Conduct of the Company	51
Section 6.02	Stockholder Consent; Information Statement Filing; Information Supplied	54
Section 6.03	Proxy Statement; Company Stockholder Meeting	56
Section 6.04	No Solicitation; Other Offers	58
Section 6.05	Access to Information	61
Section 6.06	Stockholder Litigation	62
Section 6.07	Tax Matters	62
Section 6.08	Cooperation Regarding Termination of PNC Credit Agreement	62

Article 7 Covenants of Parent		63

Section 7.01	Obligations of Merger Subsidiary	63
Section 7.02	Director and Officer Liability	63
Section 7.03	Employee Matters	65

Article 8 Covenants of Parent, NICE and the Company		67

Section 8.01	Reasonable Best Efforts	67
Section 8.02	Public Announcements	69
Section 8.03	Further Assurances	70
Section 8.04	Notices of Certain Events	70
Section 8.05	Section 16 Matters	71
Section 8.06	Company Warrants.	71
Section 8.07	Stock Exchange De-listing; Exchange Act Deregistration	71
Section 8.08	Takeover Statutes	72

Article 9 Conditions to the Merger		72

Section 9.01	Conditions to the Obligations of Each Party	72
Section 9.02	Conditions to the Obligations of Parent and Merger Subsidiary	73
Section 9.03	Conditions to the Obligations of the Company	73

Article 10 Termination		74

Section 10.01	Termination	74
Section 10.02	Effect of Termination	76
Section 10.03	Termination Payments	76

Article 11 Miscellaneous		77

Section 11.01	Notices	77
Section 11.02	Survival of Representations and Warranties	78
Section 11.03	Amendments and Waivers	78
Section 11.04	Expenses	79
Section 11.05	Disclosure Schedule and SEC Document References	79
Section 11.06	Binding Effect; Benefit; Assignment	80
Section 11.07	Governing Law	80
Section 11.08	Jurisdiction	80
Section 11.09	WAIVER OF JURY TRIAL	81
Section 11.10	Counterparts; Effectiveness	81
Section 11.11	Entire Agreement	81
Section 11.12	Severability	81
Section 11.13	Remedies	81
Section 11.14	No Recourse	82
Section 11.15	Parent Guarantee	83

Exhibit A	Certificate of Incorporation of the Surviving Corporation
Exhibit B	Form of Written Consent

Schedule A-1	Beneficial Owners of Earnout Shares
Schedule A-2	Beneficial Owners of Lock-Up Shares
Schedule A-3	Holders to Execute Written Consent

iii

SCHEDULES

Company Disclosure Schedule

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated as of October 3, 2023 among LiveVox Holdings, Inc., a Delaware corporation (the “Company”), inContact, Inc., a Delaware corporation (“Parent”), Laser Bridge Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Subsidiary”), and NICE Ltd., a company organized under the laws of the State of Israel (“NICE”).

W I T N E S S E T H :

WHEREAS, on the terms and subject to the conditions set forth herein, Parent will acquire the Company by means of a merger of Merger Subsidiary with and into the Company in accordance with Delaware Law, with the Company surviving the Merger as a wholly owned subsidiary of Parent;

WHEREAS, the Board of Directors of the Company has, upon the terms and subject to the conditions set forth herein, (i) determined that the Merger and the other transactions contemplated by this Agreement are fair to and in the best interests of the Company and its stockholders, (ii) approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby in accordance with Delaware Law and (iii) subject to the terms and conditions of this Agreement, resolved to recommend that the Company’s stockholders approve and adopt this Agreement;

WHEREAS, the respective Boards of Directors of NICE, Xxxxxx and Merger Subsidiary have, upon the terms and subject to the conditions set forth herein, (i) determined that the Merger and the other transactions contemplated by this Agreement are fair to and in the best interests of NICE, Parent and Merger Subsidiary and their respective stockholders and (ii) approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby;

WHEREAS, following the execution and delivery of this Agreement, and as a condition to Parent’s and Merger Subsidiary's willingness to enter into this Agreement, the Company has agreed to use its best efforts to obtain the written consent of Company Stockholders holding at least a majority of the outstanding shares of Company Stock pursuant to which such Company Stockholders will adopt this Agreement and approve the transactions contemplated hereby, including the Merger, in accordance with Section 228 and Section 251(c) of Delaware Law (the “Written Consent”); and

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition to Parent’s and Merger Subsidiary’s willingness to enter into this Agreement, certain shareholders of the Company are entering into a support agreement with Parent.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Article 1
Definitions

Section 1.01         Definitions.

(a)            As used herein, the following terms have the following meanings:

“Acquisition Proposal” means, other than the transactions contemplated by this Agreement, any bona fide written offer, proposal or inquiry relating to, or any Third Party written indication of interest in, (i) any acquisition or purchase, direct or indirect, of 25% or more of the consolidated assets of the Company and its Subsidiaries or 25% or more of any class of equity or voting securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, (ii) any tender offer (including a self-tender offer) or exchange offer that, if consummated, would result in such Third Party beneficially owning 25% or more of any class of equity or voting securities of the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company, or (iii) a merger, consolidation, share exchange, business combination, sale of substantially all the assets, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the Company or any of its Subsidiaries whose assets, individually or in the aggregate, constitute 25% or more of the consolidated assets of the Company.

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person. For purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that Person, whether through the ownership of voting securities or partnership or other ownership interests, by contract or otherwise.

“Antitrust Law” means collectively, the Xxxxxxx Antitrust Act of 1890, as amended, the Xxxxxxx Antitrust Act of 1914, as amended, the HSR Act, the Federal Trade Commission Act of 1914, as amended, and all other federal, state, local or foreign laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition or the creation or strengthening of a dominant position through merger or acquisition, in any case that are applicable to the transactions contemplated by this Agreement.

“Applicable Law” means, with respect to any Person, any federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.

“Business Day” means a day, other than Friday, Saturday, Sunday or other day on which commercial banks in New York, New York, San Francisco, California or Tel Aviv, Israel are authorized or required by Applicable Law to be closed.

“CFIUS” means the Committee on Foreign Investment in the United States and each member agency thereof acting in such capacity.

“CFIUS Clearance” means any of the following shall have occurred: (i) the parties shall have received a written determination from CFIUS stating it has concluded that neither the Merger, nor any portion thereof, constitutes a “covered transaction” subject to review under the DPA; (ii) the parties shall have received a written determination from CFIUS stating it has completed its review of the notification provided to CFIUS pursuant to the DPA with respect to the Merger and has concluded all action under the DPA with respect to the transactions contemplated hereby; or (iii) CFIUS shall have sent a report to the President of the United States (the “President”) requesting the President’s decision and either (A) the President has announced a decision to not take any action to suspend or prohibit the Merger, or any portion thereof, or (B) having received a report from CFIUS requesting the President’s decision, the President has not taken any action after 15 days from the earlier of the date the President received such report from CFIUS or the end of the investigation period related to the notification provided to CFIUS pursuant to the DPA with respect to the Merger or any portion thereof.

“Code” means the Internal Revenue Code of 1986.

“Collective Bargaining Agreement” means any agreement, memorandum of understanding or other contractual obligation between the Company or any of its Subsidiaries and any labor organization or other authorized employee representative representing Service Providers.

“Company 10-K” means the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2022.

“Company 10-Q” means the Company’s quarterly report on Form 10-Q for the fiscal quarter ended June 30, 2023.

“Company Balance Sheet” means the consolidated balance sheet of the Company as of June 30, 2023, and the footnotes thereto set forth in the Company 10-Q.

“Company Balance Sheet Date” means June 30, 2023.

“Company Disclosure Schedule” means the disclosure schedule dated the date hereof regarding this Agreement that has been provided by the Company to Parent and Merger Subsidiary.

“Company PSU” means each restricted stock unit with respect to Company Stock granted under the Company Stock Plan that is subject to any performance-based vesting conditions.

“Company RSU” means each restricted stock unit with respect to Company Stock granted under the Company Stock Plan that is subject to only time-based vesting conditions.

“Company Stock” means the common stock, $0.0001 par value, of the Company.

“Company Stock Plan” means the Company’s 2021 Equity Incentive Plan.

“Company Stockholder” means a holder of the Company Stock as of the date of this Agreement.

“Company Termination Fee” means an amount equal to $4,000,000.00.

“Company Warrants” means the redeemable warrants exercisable to purchase one share of Company Stock at an exercise price of $11.50 per share, as adjusted, listed on the NASDAQ under the trading symbol LVOXW.

“Contract” means any legally binding written contract, agreement or arrangement.

“COVID-19” means the coronavirus (COVID-19) pandemic, including any evolutions, mutations or variants of the coronavirus (COVID-19) disease, and any further epidemics or pandemics arising therefrom.

“COVID-19 Measures” means any quarantine, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure, sequester, safety or similar Applicable Law, directive, protocol or guideline promulgated by any Governmental Authority, including the Centers for Disease Control and Prevention or the World Health Organization, in each case, in connection with or in response to COVID-19, including the CARES Act, the Families First Coronavirus Response Act, as signed into law by the President of the United States on March 18, 2020, and the Consolidated Appropriations Act, 2021, Pub. L. 116-260, in each case, together with any administrative or other guidance published with respect thereto by any Governmental Authority.

“Cybersecurity Measures” means any measures enacted or regulations promulgated by a Governmental Authority relating to cybercrime, cyberterrorism, ransomware, malware, privacy or the protection of personally identifiable information.

“Delaware Law” means the General Corporation Law of the State of Delaware.

“Department of Labor” means the United Stated Department of Labor.

“DPA” means Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. §4565), and all rules and regulations thereunder, including those codified at 31 C.F.R. Part 800.

“Earnout Shares” means the 5,000,000 shares of Company Stock held in escrow for the benefit of the Persons (and in the respective amounts) set forth on Schedule A-1.

“Employee Plan” means any (i) “employee benefit plan” as defined in Section 3(3) of ERISA, (ii) employment, individual consulting, severance, termination protection, change in control, transaction bonus, retention or similar plan, agreement, arrangement, program or policy or (iii) other plan, agreement, arrangement, program or policy providing for compensation, bonuses, profit-sharing, equity or equity-based compensation (including, without limitation, the Company Stock Plan) or other forms of incentive or deferred compensation, vacation benefits, insurance (including any self-insured arrangement), medical, dental, vision, prescription or fringe benefits, life insurance, relocation or expatriate benefits, perquisites, disability or sick leave benefits, employee assistance program, supplemental unemployment benefits or post-employment or retirement benefits (including compensation, pension, health, medical or insurance benefits), in each case whether or not written (x) that is sponsored, maintained, administered, contributed to or entered into by the Company or any of its Subsidiaries for the current or future benefit of any current or former Service Provider or (y) with respect to which the Company or any of its Subsidiaries is a party or for which the Company or any of its Subsidiaries has or may have any direct or indirect liability (contingent or otherwise), in each case excluding any plan or program maintained by a Governmental Authority.

“Environmental Laws” means any Applicable Laws or any agreement with any Governmental Authority or other Third Party, relating to human health and safety, the environment or to Hazardous Substances.

“Environmental Permits” means all permits, licenses, franchises, certificates, approvals and other similar authorizations of Governmental Authorities relating to or required by Environmental Laws and affecting, or relating to, the business of the Company or any of its Subsidiaries as currently conducted.

“Equity Award Exchange Ratio” means the quotient obtained by dividing (i) the Merger Consideration by (ii) the volume-weighted average closing price of NICE ADSs reported on the NASDAQ Global Select Market for the ten full trading days ending on (and including) the trading day immediately preceding the Closing Date, rounded to the nearest ten-thousandth.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any entity or trade or business that, together with the Company or any of its Subsidiaries, is or would be treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.

“Exchange Act” means the Securities Exchange Act of 1934.

“Fraud” means intentional and willful fraud (and not constructive fraud or negligent misrepresentation) with respect to a representation or warranty set forth in this Agreement with the intent to induce another party to rely upon such representation or warranty. For the avoidance of doubt, no party shall be liable for or as a result of any other Person’s Fraud, including through equitable claims (such as unjust enrichment) not requiring proof of wrongdoing committed by the subject of such claims.

“Fundamental Representations” means the representations and warranties of the Company contained in Section 4.01, Section 4.02, Section 4.04(i), the first and third sentences of Section 4.06(c) and Section 4.27.

“GAAP” means generally accepted accounting principles in the United States.

“Government Contract” means any Contract between the Company or any of its Subsidiaries, on the one hand, and (i) a Governmental Authority, (ii) any prime contractor or reseller to a Governmental Authority in its capacity as a prime contractor or reseller of the Company’s products and services or (iii) any subcontractor with respect to any agreement described in clauses (i) or (ii) above, on the other hand.

“Governmental Authority” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department, court, agency or official, including any political subdivision thereof or any arbitrator.

“Hazardous Substance” means any pollutant, contaminant, waste or chemical or any toxic, radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material, or any substance, waste or material having any constituent elements displaying any of the foregoing characteristics, including any substance, waste or material.

“HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and any regulations promulgated thereunder.

“Intellectual Property Rights” means any and all intellectual property rights throughout the world, including in and to any and all (i) trademarks, service marks, brand names, corporate names, rights in logos, certification marks, trade dress, domain names, social media identifiers and accounts, and other indications of origin, the goodwill associated with the foregoing and registrations in any jurisdiction of, and applications in any jurisdiction to register, the foregoing, including any extension, modification or renewal of any such registration or application, (ii) inventions and discoveries, whether patentable or not, in any jurisdiction, patents, applications for patents, and divisionals, continuations, provisionals, non-provisionals, continuations-in-part, renewals, extensions, reissues, supplemental protection certificates, and the equivalents of any of the foregoing in any jurisdiction and all inventions disclosed in any of the foregoing, (iii) Trade Secrets, (iv) works of authorship, whether copyrightable or not, in any jurisdiction, and any and all copyright rights, whether registered or not, and registrations or applications for registration of copyrights in any jurisdiction, and any renewals or extensions thereof, including all derivative works, reversions or restorations associated with such copyrights, now or hereafter provided by Applicable Law, regardless of the medium of fixation or means of expression (v) rights in Software, (vi) rights to Personal Information, (vii) databases and data collections and (viii) moral rights, database rights, design rights, industrial property rights, publicity rights and privacy rights.

“International Plan” means any Employee Plan that is not a US Plan.

“Intervening Event” means any change, event, effect, occurrence or development that occurs, arises or becomes known to the Board of Directors of the Company after the date of this Agreement and prior to obtaining the Company Stockholder Approval, to the extent that such change, event, effect, occurrence or development was unknown to the Board of Directors of the Company and was not reasonably foreseeable to the Board of Directors, in each case, as of the date of this Agreement, other than any of the following events, occurrences or developments: (i) the receipt by the Company, the existence or the terms of an Acquisition Proposal or a Superior Proposal, (ii) changes in the trading price of the shares of Company Stock, or (iii) the Company and its Subsidiaries exceeding any internal or published budgets, projections, forecasts or predictions of financial performance for any period (it being understood that each of clauses (ii) and (iii) shall not prevent a party from asserting that any underlying change, event, effect, occurrence or development that may have contributed to such change or excess independently constitutes or contributes to an Intervening Event if not otherwise excluded hereunder).

“IRS” means the Internal Revenue Service.

“IT Assets” means computers, Software, firmware, middleware, servers, workstations, routers, hubs, switches, data centers, data communications lines and all other information technology, network and communications equipment, and all associated documentation, owned or used by, leased or licensed to the Company or any of its Subsidiaries and used in the conduct of the business of the Company or any of its Subsidiaries.

“Key Employee” means each employee of the Company or any of its Subsidiaries at the level of Vice President or above.

“knowledge” means (i) with respect to the Company, the actual knowledge of the individuals set forth on ‎Section 1.01(a)(i) of the Company Disclosure Schedule after reasonable inquiry of such individuals’ direct reports and (ii) with respect to Parent, the actual knowledge of Parent’s officers after reasonable inquiry of such individuals’ direct reports.

“Legal Proceeding” means any claim, action, charge, lawsuit, litigation, investigation, arbitration or other similar legal proceeding brought by or pending before any Governmental Authority.

“Lien” means, with respect to any property or asset, any mortgage, lien, pledge, charge, option, restriction, right, security interest, encumbrance or other adverse claim of any kind in respect of such property or asset. A non-exclusive license of Intellectual Property Rights granted to customers in the ordinary course of business shall not be deemed to be a Lien. For purposes of this Agreement, a Person shall be deemed to own subject to a Lien any property or asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset.

“Lock-Up Shares” means the 2,543,750 shares of Company Stock held in escrow for the benefit of the Persons (and in the respective amounts) set forth on Schedule A-2.

“Material Adverse Effect” means, with respect to any Person, a material adverse effect on (i) the financial condition, business, assets or results of operations of such Person and its Subsidiaries, taken as a whole, excluding any fact, change, event, occurrence or effect resulting from (A) changes in the financial, equity, credit, debt, currency, capital or securities markets generally or general economic, regulatory, legislative or political conditions, including inflation, supply chain disruptions and labor shortages, in the United States or any other country or region in the world (except to the extent having a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to comparable companies in the industry in which such Person and its Subsidiaries operate, in which case only the incremental disproportionate adverse effect may be taken into account in determining whether a Material Adverse Effect has occurred), (B) changes in GAAP or Applicable Law (or the official interpretation of any of the foregoing), (C) changes or conditions generally affecting the industry in which such Person and its Subsidiaries operate (except to the extent having a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to comparable companies in the industry in which such Person and its Subsidiaries operate, in which case only the incremental disproportionate adverse effect may be taken into account in determining whether a Material Adverse Effect has occurred), (D) geopolitical conditions, outbreak of hostilities, armed conflicts, acts of war (whether or not declared), military actions, sabotage, terrorism, cybersecurity incident, data breach, cyberattack or cyberterrorism (but, in the case of any cybersecurity incident, data breach, cyberattack or cyberterrorism, except to the extent such cybersecurity incident, data breach, cyberattack or cyberterrorism has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to its effect on comparable companies in the industry in which such Person and its Subsidiaries operate, in which case only the incremental disproportionate adverse effect may be taken into account in determining whether a Material Adverse Effect has occurred), including any escalation or worsening of, or any Applicable Law or sanction, mandate, directive, pronouncement, guideline or recommendation issued by a Governmental Authority in response to, the foregoing or any threats thereof, in each case, in the United States or any other country or region in the world (except to the extent having a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to comparable companies in the industry in which such Person and its Subsidiaries operate, in which case only the incremental disproportionate adverse effect may be taken into account in determining whether a Material Adverse Effect has occurred), (E) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wildfires, nuclear incidents, pandemics (including COVID-19), epidemics or other outbreaks of disease, quarantine restrictions or other natural or man-made disasters (except to the extent having a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to comparable companies in the industry in which such Person and its Subsidiaries operate, in which case only the incremental disproportionate adverse effect may be taken into account in determining whether a Material Adverse Effect has occurred), (F) COVID-19 Measures or Cybersecurity Measures, (G) the announcement, pendency or consummation of the transactions contemplated by this Agreement (including any loss of, or adverse change in, the relationship of such Person or any of its Subsidiaries with its employees, customers, distributors, partners, suppliers or other business partners resulting therefrom); provided that this clause (G) shall not apply with respect to any representation or warranty, or any condition to consummation of the Merger to the extent related thereto, that by its terms expressly addresses the consequences of the announcement or consummation of the transactions contemplated by this Agreement, (H) any failure by such Person and its Subsidiaries to meet any internal or published budgets, projections, forecasts or predictions of financial performance for any period (it being understood that this clause (H) shall not prevent a party from asserting that any fact, change, event, occurrence or effect that may have contributed to such failure independently constitutes or contributes to a Material Adverse Effect if not otherwise excluded hereunder), (I) any actions taken or refrained from being taken by the Company as expressly approved, consented to or requested in writing (including by email) by Parent, (J) any actions taken as expressly required by this Agreement, (K) the identity of NICE, Parent, Merger Subsidiary or their respective Affiliates, or the respective actions, plans or intentions of Parent or Merger Subsidiary or their respective Affiliates with respect to the Company or its business, (L) change in the price or trading volume of the Company Stock, Units or Company Warrants (it being understood that this clause (L) shall not prevent a party from asserting that any fact, change, event, occurrence or effect that may have contributed to such change independently constitutes or contributes to a Material Adverse Effect if not otherwise excluded hereunder), (M) the availability or cost of equity, debt or other financing to NICE, Parent or Merger Subsidiary, or (N) any Transaction Litigation or any demand or Legal Proceeding for appraisal of the fair value of any shares of Company Stock pursuant to Delaware Law in connection herewith or (ii) such Person’s ability to consummate the Merger under the terms contemplated by this Agreement.

“NICE ADSs” means the American Depositary Shares of NICE, each representing one share of NICE Stock.

“NICE Equity Plan” means NICE’s 2016 Share Incentive Plan, as may be amended from time to time.

“NICE Stock” means the ordinary shares, par value one New Israeli Shekel per share, of NICE.

“Owned Intellectual Property Rights” means any and all Intellectual Property Rights owned or purported to be owned by the Company or any of its Subsidiaries.

“Permits” means all permits, licenses, registrations, concessions, grants, certificates, approvals, waivers, variances, filings, consents and franchises issued by any Governmental Authority, and any other authorizations issued by or exemption of, or filings or registrations with, or issued by any Governmental Authority.

“Permitted Lien” means (i) Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and, if required by GAAP, for which adequate reserves have been established in the Company Balance Sheet, (ii) Liens in favor of vendors, carriers, warehousemen, repairmen, mechanics, workmen, materialmen, construction or similar statutory Liens imposed by operation of Applicable Law and arising in the ordinary course of business with respect to amounts not yet due and payable or which are being contested in good faith by appropriate proceedings, (iii) Liens imposed by Applicable Law (other than laws in respect of Tax), (iv) pledges or deposits to secure obligations pursuant to workers’ compensation law or similar legislation or to secure public or statutory obligations, (v) pledges and deposits to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary course of business, (vi) defects, imperfections or irregularities in title, charges, easements, covenants and rights of way (unrecorded and of record) and other similar Liens (or other encumbrances of any type), and zoning, building and other similar codes or restrictions, in each case that do not adversely affect in any material respect the current use of the applicable property, (vii) to the extent arising in the ordinary course of business, statutory, common law or contractual Liens (or other encumbrances of any type) securing payments not yet due, including Liens of landlords pursuant to the terms of any lease or Liens against the interests of the landlord or owner of any Leased Real Property unless caused by the Company or any of its Subsidiaries, (viii) matters that would be disclosed by an accurate survey or inspection of the Leased Real Property and (ix) any other Liens that, individually or in the aggregate, do not, and would not be reasonably expected to, materially interfere or materially impair with any present or intended use, of such property or assets.

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

“Personal Information” means “personal information,” “personally identifiable information,” “personal data,” and any terms of similar import, in each case as defined under Applicable Laws relating to data privacy, data protection, cybersecurity and/or the processing of such information or data.

“PNC Credit Agreement” means that certain Credit Agreement, dated as of November 7, 2016, by and among LiveVox Intermediate LLC, LiveVox, Inc., PNC Bank, National Association and the lenders and the other parties party thereto, as amended by that certain (i) First Amendment to Credit Agreement, dated as of February 28, 2018, (ii) Second Amendment to Credit Agreement, dated as of May 6, 2019, (iii) Third Amendment and Waiver to Credit Agreement, dated as of December 16, 2019, (iv) Fourth Amendment to Credit Agreement, dated as of December 20, 2019, (v) Fifth Amendment to Credit Agreement, dated as of January 13, 2021, (vi) Sixth Amendment to Credit Agreement, dated as of February 5, 2021, (vii) Seventh Amendment to Credit Agreement, dated as of August 2, 2021, (viii) Eighth Amendment to Credit Agreement, dated as of March 31, 2023 and (ix) Ninth Amendment to Credit Agreement, dated as of May 31, 2023, and as may be further amended, restated, modified or supplemented from time to time in accordance with the terms thereof and hereof.

“Representatives” means, with respect to any Person, such Person’s Affiliates and such Person’s and its Affiliates’ respective directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives.

“Sanctioned Person” shall mean any Person that is the subject or target of sanctions or restrictions under Sanctions and Export Control Laws, including any Person (i) listed on any Sanctions and Export Control Laws-related list of designated Persons maintained by a Governmental Authority, (ii) located, organized, or resident in a Sanctioned Country, Russia or Lebanon, (iii) in the aggregate, greater than 50% owned, directly or indirectly, or controlled by one or more Persons described in clause (i) or (ii) above or (iv) any national of a Sanctioned Country with which U.S. Persons are prohibited from dealing.

“Sanctions and Export Control Laws” means all U.S. and non-U.S. laws, regulations, rules, statutes and orders relating to (i) economic or trade sanctions, including the laws, regulations, rules, statutes and orders administered and enforced by the United States (including by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State), the United Nations Security Council, the European Union and any other applicable non-U.S. Governmental Authorities and (ii) all applicable export, reexport, transfer, and import controls, including the Export Administration Regulations, the International Traffic in Arms Regulations, the customs and import laws and orders administered by the U.S. Customs and Border Protection, the EU Dual Use Regulation, the State of Israel (including the Export Control Agency of the Ministry of Economy and Industry and the Defense Exports Control Agency of the Ministry of Defense) and any other applicable non-U.S. Governmental Authorities.

“Xxxxxxxx-Xxxxx Act” means the Xxxxxxxx-Xxxxx Act of 2002.

“SEC” means the Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933.

“Service Provider” means any director, officer, employee of the Company or any of its Subsidiaries or any individual independent contractor directly retained by the Company or any of its Subsidiaries.

“Software” means any and all (i) software, computer programs, applications, systems, specifications and embedded versions thereof (including operating systems and all software implementation of algorithms (including those for artificial intelligence technologies (including generative artificial intelligence technologies), machine learning technologies, data analytics technologies, large language models and deep learning technologies), models and methodologies, development and design tools, compilers and assemblers, whether in source code, object code, human readable form or other form, including statements in human readable form such as comments and definitions, which are generally formed and organized according to the syntax of a computer or programmable logic programming language, and such statements in batch or scripting languages), (ii) databases, data files and compilations, including any and all libraries, data and collections of data, whether machine readable, on paper or otherwise, (iii) text, diagrams, descriptions, flow charts and other work product used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, microcode and implementations, development tools, templates, menus, buttons and icons and (iv) documentation, media and other works of authorship, including programmers’ notes and source code annotations, user manuals and other training documentation relating to or embodying any of the foregoing or on which any of the foregoing is recorded.

“Subsidiary” means, with respect to any Person, any entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by such Person.

“Superior Proposal” means a bona fide written Acquisition Proposal obtained after the date hereof and not in violation of Section 6.04 that the Board of Directors of the Company determines in good faith, after considering the advice of its financial advisor and outside legal counsel, taking into account all terms of such Acquisition Proposal that the Company’s Board of Directors deems relevant (including any termination or break-up fees and conditions to consummation and the reasonable likelihood of consummation of such Acquisition Proposal), would be more favorable from a financial point of view to the Company’s stockholders (in their capacity as such) than the Merger (taking into account any proposal by Parent to amend the terms of this Agreement pursuant to Section 6.04(d)); provided that for purposes of this definition, all references to “25%” in the definition of “Acquisition Proposal” shall be deemed to be “50%.”

“Tax” means any U.S. or non-U.S. tax, governmental fee, impost, custom, duty or other like assessment or charge of any kind whatsoever (including withholding on amounts paid to or by any Person), together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Authority responsible for the imposition of any such tax (a “Taxing Authority”).

“Tax Asset” means any net operating loss, net capital loss, investment tax credit, foreign tax credit, charitable deduction or any other credit or Tax attribute that could be carried forward or back to reduce Taxes (including without limitation deductions and credits related to alternative minimum Taxes).

“Tax Return” means any report, return, document, declaration or other information or filing required to be supplied to any Taxing Authority with respect to Taxes, including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information.

“Tax Sharing Agreements” means all existing agreements or arrangements (whether or not written) binding the Company or any of its Subsidiaries that provide for the allocation, apportionment, sharing or assignment of any Tax liability or benefit, or the transfer or assignment of income, revenues, receipts, or gains for the purpose of determining any Person’s Tax liability (excluding customary Tax sharing or indemnification provisions contained in an agreement entered into in the ordinary course of business the primary subject matter of which does not relate to Taxes).

“Third Party” means any Person, including as defined in Section 13(d) of the Exchange Act, other than Parent or any of its Affiliates.

“Trade Secrets” means trade secrets and confidential information, including any and all procedures, processes, rules of thumb, techniques, results of experimentation and testing, methods, formulae, algorithms, templates, specifications, pricing and cost information, business and marketing plans and customer and supplier information, and rights in any jurisdiction to limit the use or disclosure thereof by any Person.

“Transaction Litigation” means any Legal Proceeding commenced or threatened against a party hereto or any of its Subsidiaries or Affiliates (or their respective directors or officers) by or on behalf of any stockholder of the Company (including derivative claims by or on behalf of the Company).

“Units” means the public units each consisting of one share of Company Stock and one-half of one Company Warrant, listed on the NASDAQ under the trading symbol LVOXU.

“US Plan” means any Employee Plan that covers current or former Service Providers located primarily within the United States.

“Vested Company RSU” means a Company RSU that is outstanding as of immediately prior to the Effective Time and that became vested prior to, or the vesting of which will accelerate at, the Effective Time, in either case, as required by the terms of the applicable award agreement as in effect as of the date hereof.

“WARN” means the Worker Adjustment and Retraining Notification Act and any comparable foreign, state or local law.

“Warrant Agreement” means that certain Warrant Agreement, dated as of March 7, 2019, by and between Crescent Acquisition Corp, a Delaware corporation, and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”).

(b)            Each of the following terms is defined in the Section set forth opposite such term:

Term	Section
Adverse Recommendation Change	‎6.04
Agreement	Preamble
Applicable Data Protection Law	‎4.15(l)
Applicable Data Protection Requirements	‎4.15(l)
Certificates	‎2.03
CFIUS Filing	‎8.01(e)
Closing	‎2.01(b)
Closing Date	‎2.01(b)
Company	Preamble
Company Board Recommendation	‎4.02(b)
Company SEC Documents	‎4.07(a)
Company Securities	‎4.05(c)
Company Stockholder Approval	‎4.02(a)
Company Stockholder Meeting	‎6.03(g)(i)
Company Subsidiary Securities	‎4.06(c)
Confidentiality Agreement	‎6.04(b)(i)
Covered Employee	‎7.03
Data Breach	‎4.15(n)
D&O Insurance	‎7.02(c)
Effective Time	‎2.01(c)
e-mail	‎11.01
End Date	‎10.01(b)(i)
Equity Award Schedule	‎4.05(b)
Exchange Agent	‎2.03
Indemnification Agreements	‎7.02(e)
Indemnified Person	‎7.02(a)
Information Statement	‎6.02(c)
Insurance Policies	‎4.21
Leased Real Property	‎4.14(b)
Material Contract	‎4.20(a)(xviii)
Material Permits	‎4.19(a)
Maximum Amount	‎7.02(c)
Merger	‎2.01(b)
Merger Consideration	‎2.02(a)
Merger Subsidiary	Preamble

Term

Section

NASDAQ	‎4.07(i)
Negotiation Period	‎6.04(d)
NICE	Preamble
Owned Registered Intellectual Property Rights	‎4.15(a)
Parent	Preamble
Parent Plan	‎7.03(b)
Preferred Stock	‎4.05(a)
Proxy Statement	‎6.03(a)
Surviving Corporation	‎2.01(b)
Takeover Statute	‎4.29
Terminating Company RSU	‎2.04(a)
Terminating Company RSU Consideration	‎2.04(a)
Uncertificated Shares	‎2.03

Section 1.02         Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections and Schedules are to Articles, Sections, and Schedules of this Agreement unless otherwise specified. All Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any agreement or contract listed on any schedules hereto, all such amendments, modifications or supplements have been made available to Parent on or prior to the date of this Agreement. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law”, “laws” or to a particular statute or law shall be deemed also to include any Applicable Law. References to “$” are to United States dollars. References to anything having been “made available” to Parent shall include information filed or furnished on the SEC’s Xxxxx system or the posting of such information or material, prior to 5:01 p.m. (New York time) on the date hereof, in an electronic data room to which Parent (or its Representatives) has been provided access.

Article 2
The Merger

Section 2.01         The Merger.

(a)            At the Effective Time, Merger Subsidiary shall be merged (the “Merger”) with and into the Company in accordance with Delaware Law, whereupon the separate existence of Merger Subsidiary shall cease, and the Company shall be the surviving corporation (the “Surviving Corporation”).

(b)            Subject to the provisions of Article 9, the closing of the Merger (the “Closing”) shall take place remotely by exchange of documents and signatures (or their electronic counterparts) as soon as possible, but in any event no later than three Business Days after the date the conditions set forth in Article 9 (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permissible, waiver of those conditions at the Closing) have been satisfied or, to the extent permissible, waived by the party or parties entitled to the benefit of such conditions, or at such other place, at such other time or on such other date as Parent and the Company may mutually agree. The date on which the Closing occurs is referred to herein as the “Closing Date”.

(c)            At the Closing, the Company and Merger Subsidiary shall file a certificate of merger with the Delaware Secretary of State and make all other filings or recordings required by Delaware Law in connection with the Merger. The Merger shall become effective at such time (the “Effective Time”) as the certificate of merger is duly filed with the Delaware Secretary of State (or at such later time as may be specified in the certificate of merger).

(d)            From and after the Effective Time, the Surviving Corporation shall possess all the rights, powers, privileges and franchises and be subject to all of the obligations, liabilities, restrictions and disabilities of the Company and Merger Subsidiary, all as provided under Delaware Law.

Section 2.02         Conversion of Shares. At the Effective Time:

(a)            except as otherwise provided in Section 2.02(b), Section 2.02(c), Section 2.02(d), Section 2.02(g) or Section 2.05, each share of Company Stock outstanding immediately prior to the Effective Time shall be converted into the right to receive $3.74 in cash, without interest (the “Merger Consideration”). As of the Effective Time, all such shares of Company Stock shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and shall thereafter represent only the right to receive the Merger Consideration, in each case to be issued or paid in accordance with Section 2.03, without interest and less applicable Tax withholding;

(b)            each share of Company Stock held by the Company as treasury stock or owned by NICE, Parent or Merger Subsidiary immediately prior to the Effective Time shall be canceled, and no payment shall be made with respect thereto;

(d)            each Lock-Up Share shall be canceled, and no payment shall be made with respect thereto;

(e)            each Unit that is outstanding immediately prior to the Effective Time shall be treated in accordance with its constituent parts, with the share of Company Stock in each Unit converted into the Merger Consideration in accordance with Section 2.02(a) and each one-half of the Company Warrant in each Unit treated in accordance with Section 2.06;

(f)             each share of common stock of Merger Subsidiary outstanding immediately prior to the Effective Time shall be converted into and become one share of common stock of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation; and

(g)            each share of Company Stock held by any Subsidiary of either the Company, NICE or Parent (other than the Merger Subsidiary) immediately prior to the Effective Time shall be converted into such number of shares of stock of the Surviving Corporation such that each such Subsidiary owns the same percentage of the Surviving Corporation immediately following the Effective Time as such Subsidiary owned in the Company immediately prior to the Effective Time.

Section 2.03         Surrender and Payment.

(a)            Prior to the Effective Time, Parent shall appoint a nationally recognized bank or trust company reasonably acceptable to the Company (the “Exchange Agent”) for the purpose of exchanging for the Merger Consideration (i) certificates representing shares of Company Stock (the “Certificates”) that have been converted into the right to receive the Merger Consideration and (ii) uncertificated shares of Company Stock (the “Uncertificated Shares”) that have been converted into the right to receive the Merger Consideration. At or prior to Closing, Parent shall, and NICE shall cause Parent to, deposit (or cause to deposited) with the Exchange Agent by wire transfer of immediately available funds, for payment to the holders of shares of Company Stock as set forth in Section 2.02, an amount of cash equal to the aggregate Merger Consideration to which such holders of Company Stock become entitled pursuant to Section 2.02. Promptly after the Effective Time (and in any event within three Business Days), Parent shall send, or shall cause the Exchange Agent to send, to each holder of shares of Company Stock at the Effective Time (x) a letter of transmittal in customary form (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange and (y) instructions for effecting the exchange.

(b)            Each holder of shares of Company Stock that have been converted into the right to receive the Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal, or (ii) receipt of an “agent’s message” by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Merger Consideration in respect of the Company Stock represented by a Certificate or Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Merger Consideration.

(c)            If any portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.

(d)            After the Effective Time, there shall be no further registration of transfers of shares of Company Stock. If, after the Effective Time, Certificates or Uncertificated Shares entitling the holder thereof to receive the Merger Consideration are presented to the Surviving Corporation or the Exchange Agent, they shall be canceled and exchanged for the Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2.

(e)            Any portion of the Merger Consideration made available to the Exchange Agent pursuant to Section 2.03 that remains unclaimed by the holders of shares of Company Stock entitled thereto one year after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged shares of Company Stock for the Merger Consideration in accordance with this Section 2.03 prior to that time shall thereafter look only to Parent for payment of the Merger Consideration, in respect of such shares without any interest thereon. Notwithstanding the foregoing, none of the Exchange Agent, NICE, Parent, the Surviving Corporation or any other party shall be liable to any holder of shares of Company Stock for any amounts paid to a public official pursuant to applicable abandoned property, escheat or similar laws. Any amounts remaining unclaimed by holders of shares of Company Stock two years after the Effective Time (or such earlier date, immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority) shall become, to the extent permitted by Applicable Law, the property of Parent free and clear of any claims or interest of any Person previously entitled thereto.

Section 2.04         Treatment of Equity Awards.

(a)            At the Effective Time, each Company RSU that is outstanding as of immediately prior to the Effective Time and that (x) is a Vested Company RSU or (y) is held by a non-employee director of the Company or any former Service Provider as of immediately prior to the Effective Time (whether vested or unvested, solely to the extent, in the case of any former Service Provider, such Company RSU was outstanding as of immediately prior to the Effective Time in accordance with its existing terms in effect as of the date hereof) (each, a “Terminating Company RSU”) shall, without any required action on the part of any holder of such Company RSU, be automatically canceled and converted into the right to receive (without interest) an amount in cash, subject to applicable withholding, equal to the product of (i) the Merger Consideration and (ii) the total number of shares of Company Stock subject to such Company RSU as of immediately prior to the Effective Time (the “Terminating Company RSU Consideration”), subject to the terms and conditions set forth in Section 2.04(d) below.

(b)            At the Effective Time, each Company RSU that is outstanding as of immediately prior to the Effective Time that is not a Terminating Company RSU shall, without any required action on the part of the holder of such Company RSU, be automatically canceled and converted into an award under the NICE share incentive plan of time-vesting restricted stock units with respect to a number of NICE ADSs equal to the product of (i) the number of shares of Company Stock underlying such Company RSU immediately prior to the Effective Time and (ii) the Equity Award Exchange Ratio, rounded to the nearest whole share (each, a “Converted NICE RSU”). Each such Converted NICE RSU shall continue to have, and shall be subject to, the same terms and conditions (including vesting, acceleration and payment schedule) as applied to the corresponding Company RSU immediately prior to the Effective Time.

(c)            At the Effective Time, each Company PSU that is outstanding as of immediately prior to the Effective Time shall, without any required action on the part of the holder of such Company PSU, be forfeited and canceled in its entirety without the payment of any consideration with respect thereto.

(d)            The Terminating Company RSU Consideration shall be paid as soon as reasonably practicable following the Effective Time and in no event later than ten Business Days following the Effective Time and shall be reduced by any withholding Taxes required to be paid by or collected on behalf of the recipients of the Terminating Company RSU Consideration. Notwithstanding anything to the contrary in Section 2.04(a), with respect to any Company RSU that constitutes nonqualified deferred compensation subject to Section 409A of the Code and that is not permitted to be paid at the Effective Time without triggering a Tax or penalty under Section 409A of the Code, such payment shall be made at the earliest time permitted under the Company Stock Plan and the applicable award agreement thereunder that will not trigger a Tax or penalty under Section 409A of the Code.

(e)            At or prior to the Effective Time, the Company, the Board of Directors of the Company or the compensation committee of the Board of Directors of the Company, as applicable, shall adopt resolutions and take any other actions as are reasonably necessary to effectuate the provisions of this Section 2.04.

(f)             NICE shall take all corporate action necessary to reserve for issuance a sufficient number of NICE ADSs for delivery upon settlement of the Converted NICE RSUs in accordance with Section 2.04(b). As soon as reasonably practicable after the Effective Time, if and to the extent necessary to cause a sufficient number of NICE ADSs to be registered and issuable under Converted NICE RSUs, NICE shall file a registration statement on Form S-8 (or any successor or other appropriate form) with respect to the NICE ADSs subject to the Converted NICE RSUs and shall use its commercial best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Converted NICE RSUs remain outstanding.

Section 2.05         Dissenting Shares. Notwithstanding Section 2.02, shares of Company Stock outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the Merger or consented thereto in writing (including by execution of the Written Consent) and who has (or for which the “beneficial owner” (as defined, for purposes of this Section 2.05, in Section 262(a) of Delaware Law) has) properly exercised appraisal rights with respect to such shares in accordance with Delaware Law and who has (and, to the extent applicable, for which the applicable beneficial owner has) complied with, Section 262 of Delaware Law with respect to such shares shall not be converted into the right to receive the Merger Consideration, unless such holder or beneficial owner fails to perfect, withdraws or otherwise loses the right to appraisal. If, after the Effective Time, such holder or beneficial owner fails to perfect, withdraws or otherwise loses the right to appraisal, such shares shall be treated as if they had been converted as of the Effective Time into the right to receive the Merger Consideration. The Company shall give Parent prompt notice of any demands received by the Company for appraisal of shares, and Parent shall have the right to direct all negotiations and proceedings with respect to such demands. Except with the prior written consent of Parent, the Company shall not make any payment with respect to, or offer to settle or settle, any such demands.

Section 2.06         Treatment of Company Warrants. At the Effective Time, each Company Warrant outstanding and unexercised as of immediately prior to the Effective Time will automatically, without any action on the part of NICE, Parent, Merger Subsidiary, the Company or the holder thereof, cease to represent a Company Warrant exercisable for shares of Company Stock and shall become a Company Warrant exercisable for the Merger Consideration (with respect to each share of Company Stock underlying such Company Warrant) that such holder would have received if such Company Warrant had been exercised by paying the exercise price in respect thereof in cash immediately prior to the Effective Time. Notwithstanding the foregoing, if a holder of a Company Warrant that is outstanding and unexercised as of immediately prior to the Effective Time properly exercises such Company Warrant within 30 days following the public disclosure of the consummation of the Merger, the Warrant Price (as defined in the Warrant Agreement) with respect to such exercise shall be treated in accordance with the terms of Section 4.4 of the Warrant Agreement.

Section 2.07         Withholding Rights. Notwithstanding any provision contained herein to the contrary, each of the Exchange Agent, the Surviving Corporation and Parent shall be entitled to deduct and withhold from any amount otherwise payable to any Person pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of federal, state, local or non-U.S. Tax law. If the Exchange Agent, the Surviving Corporation or Parent, as the case may be, so withholds amounts and pays over to the appropriate Taxing Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which the Exchange Agent, the Surviving Corporation or Parent, as the case may be, made such deduction and withholding.

Section 2.08         Lost Certificates. If any Certificate representing shares of Company Stock that have been converted into the right to receive the Merger Consideration shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue, in exchange for such lost, stolen or destroyed Certificate, the Merger Consideration to be paid in respect of the shares of Company Stock represented by such Certificate, as contemplated by this Article 2.

Article 3
The Surviving Corporation

Section 3.01         Certificate of Incorporation. At the Effective Time and by virtue of the Merger, the certificate of incorporation of the Company shall be amended and restated in its entirety to read as set forth in Exhibit A attached hereto and, as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation until amended in accordance with Applicable Law and the certificate of incorporation of the Surviving Corporation, subject to Section 7.02.

Section 3.02         Bylaws. At the Effective Time, the bylaws of Merger Subsidiary as in effect at the Effective Time shall become the bylaws of the Surviving Corporation, except that all references to Merger Subsidiary shall be automatically amended and shall become references to the Surviving Corporation, until amended in accordance with Applicable Law, the certificate of incorporation of the Surviving Corporation and such bylaws, subject to Section 7.02.

Section 3.03         Directors and Officers. From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with Applicable Law, (i) the directors of Merger Subsidiary at the Effective Time shall be the directors of the Surviving Corporation and (ii) the officers of the Company at the Effective Time shall be the officers of the Surviving Corporation.

Article 4
Representations and Warranties of the Company

Subject to Section 11.05, except as disclosed in any Company SEC Document filed or furnished before the date of this Agreement or as set forth in the Company Disclosure Schedule, the Company represents and warrants to Parent that:

Section 4.01         Corporate Existence and Power. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all corporate powers and all governmental licenses, franchises, authorizations, permits, certificates, consents and approvals required to carry on its business as now conducted, except for those licenses, franchises, authorizations, permits, certificates, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company is duly qualified to do business as a foreign corporation and is in good standing (with respect to jurisdictions that have the concept of good standing) in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company has heretofore made available to Parent true and complete copies of the certificate of incorporation and bylaws of the Company as in effect on the date hereof.

Section 4.02         Corporate Authorization.

(a)            The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby are within the Company’s corporate powers and, except for the required approval of the Company’s stockholders in connection with the consummation of the Merger, have been duly authorized by all necessary corporate action on the part of the Company. The affirmative vote of the holders of a majority of the outstanding shares of Company Stock entitled to vote is the only vote of the holders of any of the Company’s capital stock necessary in connection with the consummation of the Merger (the “Company Stockholder Approval”). The delivery of the Written Consent will constitute the Company Stockholder Approval. Assuming the due authorization, execution and delivery of this Agreement by NICE, Parent and Merger Subsidiary, this Agreement constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).

(b)            At a meeting duly called and held, the Company’s Board of Directors has (i) determined that this Agreement and the transactions contemplated hereby are fair to and in the best interests of the Company and its stockholders, (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, and (iii) resolved, subject to Section 6.04(b), to recommend approval and adoption of this Agreement by its stockholders (such recommendation, the “Company Board Recommendation”), (iv) fixed a record date for the determination of stockholders of record entitled to consent to adoption and approval of this Agreement and (v) determined to submit the adoption and approval of this Agreement to its stockholders for action by written consent without a meeting.

Section 4.03         Governmental Authorization. The execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby require no action by or in respect of, or filing with, any Governmental Authority other than (i) the filing of a certificate of merger with respect to the Merger with the Delaware Secretary of State and appropriate documents with the relevant authorities of other states in which the Company is qualified to do business, (ii) compliance with any applicable requirements of the HSR Act and any other foreign Antitrust Laws as set forth on Section 4.03 of the Company Disclosure Schedule, (iii) compliance with any applicable requirements of NASDAQ, the Securities Act, the Exchange Act, and any other applicable state or federal securities laws, (iv) filings as may be required with, submissions as may be necessary or advisable to, and clearances, permits, authorizations, consents and approvals as may be required from, CFIUS in order to obtain the CFIUS Clearance and (v) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.

Section 4.04         Non-contravention. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the certificate of incorporation or bylaws of the Company, (ii) assuming compliance with the matters referred to in Section 4.03, contravene, conflict with or result in a violation or breach of any provision of any Applicable Law with respect to the Company or any of its Subsidiaries, (iii) assuming compliance with the matters referred to in Section 4.03, require any consent or other action by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is entitled under any provision of any agreement or other instrument binding upon the Company or any of its Subsidiaries or any license, franchise, authorization, permit, certificate, consent, approval or other similar authorization affecting, or relating in any way to, the assets or business of the Company and its Subsidiaries or (iv) result in the creation or imposition of any Lien (other than Permitted Liens) on any asset of the Company or any of its Subsidiaries, with only such exceptions, in the case of each of clauses (ii) through (iv), as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.

Section 4.05         Capitalization.

(a)            The authorized capital stock of the Company consists of (i) 500,000,000 shares of Company Stock and (ii) 25,000,000 shares of preferred stock, $0.0001 par value (the “Preferred Stock”). As of 5:00 p.m. (New York time) on October 2, 2023, there were outstanding (A) 102,014,263 shares of Company Stock (of which 5,000,000 were held in escrow as Earnout Shares and 2,543,750 were held in escrow as Lock-Up Shares), (B) no shares of Preferred Stock, (C) Company Warrants exercisable for an aggregate of 13,333,328 shares of Company Stock, (D) Units representing 59,806 shares of Company Stock and 29,903 Company Warrants (which shares of Company Stock and Company Warrants are included in the amounts set forth in clauses (A) and (C) above), (E) 11,447,666 shares of Company Stock that are subject to issuance and/or delivery pursuant to Company RSUs granted and outstanding under the Company Stock Plan and (F) 1,732,978 shares of Company Stock (assuming maximum performance) that are subject to issuance and/or delivery pursuant to Company PSUs granted and outstanding under the Company Stock Plan. As of the date hereof, there were 17,681,156 shares of Company Stock reserved for issuance under the Company Stock Plan. All outstanding shares of capital stock of the Company have been duly authorized and validly issued, fully paid and nonassessable and were not issued in violation of preemptive rights.

(b)            Section 4.05 of the Company Disclosure Schedule contains a complete and correct list as of the date hereof of all Company RSUs and Company PSUs, including with respect to each such award, as applicable, the holder, date of grant, vesting schedule (including whether such award accelerates or is subject to “single-trigger” or “double-trigger” vesting on a change in control transaction), expiration date and the number of shares of Company Stock subject thereto (the “Equity Award Schedule”).

(c)            There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote. Except as set forth in this Section 4.05 and Section 4.05 of the Company Disclosure Schedule and for changes since October 2, 2023, resulting from the settlement of any Company RSUs or Company PSUs outstanding on such date, there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or ownership interests in the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of or ownership interests in the Company or (iii) warrants, calls, options or other rights to acquire from the Company, or other obligation of the Company to issue, any capital stock, voting securities, other ownership interests or securities convertible into or exchangeable for capital stock or voting securities of or ownership interests in the Company or (iv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities of or other ownership interests in the Company (the items in clauses (i) through (iv) being referred to collectively as the “Company Securities”). There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Securities. Neither the Company nor any of its Subsidiaries is a party to any voting agreement with respect to the voting of any Company Securities.

(d)            The Company does not have in place, nor is it subject to, a stockholder rights plan, “poison pill” or similar plan or instrument.

(e)            No Company Securities are owned by any Subsidiary of the Company.

Section 4.06         Subsidiaries.

(a)            Each Subsidiary of the Company has been duly organized, is validly existing and (where applicable) in good standing under the laws of its jurisdiction of organization and has all organizational powers and all governmental licenses, franchises, authorizations, permits, certificates, consents and approvals required to carry on its business as now conducted, except for those licenses, franchises, authorizations, permits, certificates, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. Each such Subsidiary is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.

(b)            All Subsidiaries of the Company and their respective jurisdictions of organization are identified in the Company 10-K and no new Subsidiaries have been incorporated or organized since the date of the Company 10-K.

(c)            All of the outstanding capital stock or other voting securities of or other ownership interests in each Subsidiary of the Company is owned by the Company, directly or indirectly, free and clear of any Lien and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities or ownership interests), except for transfer restrictions imposed by applicable securities laws or the organizational documents of such Subsidiaries. All filings required to be made with respect to all outstanding capital stock or other voting securities of or other ownership interests in LiveVox Solutions Private Limited have been duly made in accordance with Applicable Law, including under applicable exchange control regulations, except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Other than shares of capital stock or other voting securities of or ownership interests in any Subsidiary of the Company that are owned by the Company, there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or ownership interests in any Subsidiary of the Company, (ii) securities of the Company or any of its Subsidiaries convertible into, or exchangeable for, shares of capital stock or other voting securities of or ownership interests in any Subsidiary of the Company, (iii) warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries, or other obligations of the Company or any of its Subsidiaries to issue, any capital stock or other voting securities of or other ownership interests in or any securities convertible into, or exchangeable for, any capital stock or other voting securities of or other ownership interests in, any Subsidiary of the Company or (iv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or other voting securities of or other ownership interests in any Subsidiary of the Company (the items in clauses (i) through (iv) being referred to collectively as the “Company Subsidiary Securities”). There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of the Company Subsidiary Securities. Except for the capital stock or other voting securities of or ownership interests in its Subsidiaries, the Company does not own, directly or indirectly, any capital stock or other voting securities of, or ownership interests in, any Person.

Section 4.07         SEC Filings and the Xxxxxxxx-Xxxxx Act.

(a)            The Company has filed with or furnished to the SEC all reports, schedules, forms, statements, prospectuses, registration statements and other documents required to be filed or furnished by the Company since June 21, 2021 (collectively, together with any exhibits and schedules thereto and other information incorporated therein, the “Company SEC Documents”).

(b)            As of its filing date (or, if amended, as of the date of the last such amendment), each Company SEC Document complied as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as the case may be, each as in effect on the date so filed (or, if amended, as of the date of the last such amendment).

(c)            As of its filing date (or, if amended or superseded by a filing prior to the date hereof, on the date of such filing), each Company SEC Document filed pursuant to the Exchange Act did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

(d)            Each Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date such registration statement or amendment became effective, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.

(e)            As of the date of this Agreement, there are no outstanding or unresolved comment letters received from the SEC staff with respect to any of the Company SEC Documents. As of the date of this Agreement, to the knowledge of the Company, there are no pending (i) formal or informal investigations of the Company by the SEC or (ii) inspections or an audit of the Company Financial Statements by the Public Company Accounting Oversight Board.

(f)            The Company has established and maintains disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act). Such disclosure controls and procedures are reasonably designed to ensure that material information relating to the Company, including its consolidated Subsidiaries, is made known to the Company’s principal executive officer and its principal financial officer by others within those entities, particularly during the periods in which the periodic reports required under the Exchange Act are being prepared. For purposes of this Agreement, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Xxxxxxxx-Xxxxx Act.

(g)            The Company and its Subsidiaries have established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act). Such controls are reasonably designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of Company Financial Statements for external purposes in accordance with GAAP. The Company has disclosed, based on its most recent evaluation of internal controls over financial reporting prior to the date hereof, to the Company’s auditors and audit committee (i) any significant deficiencies and material weaknesses in the design or operation of internal controls which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in internal controls over financial reporting. The Company has made available to Parent a summary of any such disclosure made by management to the Company’s auditors and audit committee, since June 21, 2021.

(h)            There are no outstanding loans or other extensions of credit made by the Company or any of its Subsidiaries to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company. The Company has not, since the enactment of the Xxxxxxxx-Xxxxx Act, taken any action prohibited by Section 402 of the Xxxxxxxx-Xxxxx Act.

(i)             Since June 21, 2021, the Company has complied in all material respects with the applicable listing and corporate governance rules and regulations of the NASDAQ Capital Market (the “NASDAQ”).

(j)             Since June 21, 2021, each of the principal executive officer and principal financial officer of the Company (or each former principal executive officer and principal financial officer of the Company, as applicable) have made all certifications required by Rule 13a-14 and 15d-14 under the Exchange Act and Sections 302 and 906 of the Xxxxxxxx-Xxxxx Act and any related rules and regulations promulgated by the SEC and the NASDAQ, and the statements contained in any such certifications are complete and correct.

(k)            There have been no, nor as of the date of this Agreement are there any proposed, securitization transactions or other off-balance sheet arrangements (as defined in Item 303 of Regulation S-K of the SEC) that existed or were effected by the Company or its Subsidiaries that would be required to be disclosed under Item 303 of Regulation S-K of the SEC.

(l)             Since June 21, 2021, there has been no transaction, or series of similar transactions, Contracts, arrangements or understandings, nor is there any proposed transaction as of the date of this Agreement, or series of similar transactions, agreements, arrangements or understandings to which the Company or any of its Subsidiaries was or is to be a party, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act that has not been so disclosed.

Section 4.08         Financial Statements. The audited consolidated financial statements and unaudited consolidated interim financial statements of the Company (collectively, the “Company Financial Statements”) included or incorporated by reference in the Company SEC Documents fairly present in all material respects, in conformity with GAAP (except, in the case of unaudited statements, as permitted by the rules and regulations of the SEC) applied on a consistent basis (except as may be indicated in the notes thereto), the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject to normal and recurring year-end audit adjustments and the absence of footnotes, in each case the effect of which would not be material in the case of any unaudited interim financial statements and except as indicated in the notes to such Company Financial Statements or, in the case of unaudited statements, as permitted by the rules and regulations of the SEC).

Section 4.09         Disclosure Documents. At the time the Information Statement or Proxy Statement (if any), or any amendments or supplements thereto, is first mailed to the stockholders of the Company and, in the case of the Proxy Statement (if any), at the time of the Company Stockholder Approval, the Information Statement or Proxy Statement (if any), or supplement or amendment, if applicable, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The representations and warranties contained in this Section 4.09 will not apply to statements or omissions included or incorporated by reference in the Information Statement or Proxy Statement (if any) based upon information supplied by Parent, Merger Subsidiary or any of their respective Representatives or advisors specifically for use or incorporation by reference therein.

Section 4.10         Absence of Certain Changes.

(a)            Since December 31, 2022 until the date hereof, except for (i) the execution and performance of this Agreement and the discussions and negotiations related thereto and (ii) any modifications, suspensions or alternations of operations resulting from, or determined by the Company to be advisable and reasonably necessary in response to, COVID-19, any COVID-19 Measures or any Cybersecurity Measures, the business of the Company and its Subsidiaries has been conducted in all material respects in the ordinary course consistent with past practices and there has not been any event, occurrence, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.

(b)            From the Company Balance Sheet Date until the date hereof, there has not been any action taken by the Company or any of its Subsidiaries that, if taken during the period from the date of this Agreement through the Effective Time without Parent’s consent, would constitute a breach of Sections 6.01(a), 6.01(b), 6.01(c), 6.01(e), 6.01(f), 6.01(h), 6.01(j), 6.01(k), 6.01(m), 6.01(n), 6.01(o), or 6.01(p).

Section 4.11         No Undisclosed Material Liabilities. There are no liabilities or obligations of the Company or any of its Subsidiaries of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable or otherwise, other than: (i) liabilities or obligations disclosed on, reserved against or provided for in the Company Balance Sheet or in the notes thereto; (ii) liabilities or obligations incurred in the ordinary course of business since the Company Balance Sheet Date (it being understood that in no event will any liabilities or obligations incurred as a result of any breach of contract, tortious conduct or violation or noncompliance with Applicable Law be deemed to have been incurred in the ordinary course of business); (iii) liabilities or obligations incurred under this Agreement or in connection with the transactions contemplated hereby or in connection with (A) existing Contracts or (B) Applicable Law (it being understood that neither clause (A) nor (B) will be deemed to include any liabilities or obligations incurred as a result of any breach of contract, tortious conduct or violation or noncompliance with Applicable Law); and (iv) liabilities or obligations that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect on the Company.

Section 4.12         Compliance with Laws and Court Orders. The Company and each of its Subsidiaries is and, since June 21, 2021, has been in compliance with, and to the knowledge of the Company is not under investigation with respect to and has not been threatened in writing to be charged with or given written notice of any violation of, any Applicable Law, except for failures to comply or violations that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. There is no judgment, decree, injunction, rule or order of any arbitrator or Governmental Authority outstanding against the Company or any of its Subsidiaries that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, or that seeks to prevent, enjoin or materially delay the Merger or any of the other transactions contemplated hereby.

Section 4.13         Litigation. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, and except for any Transaction Litigation filed after the date of this Agreement, there is no action, suit, investigation or proceeding pending against, or, to the knowledge of the Company, threatened in writing against, or any order, judgment, ruling or decree imposed upon, the Company, any of its Subsidiaries, any present or former executive officer, director or employee of the Company or any of its Subsidiaries, in their capacities as such or any of their respective properties before (or, in the case of threatened actions, suits, investigations or proceedings, that would be before) or by (or, in the case of threatened actions, suits, investigations or proceedings, that would be by) any Governmental Authority.

Section 4.14         Properties.

(a)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, the Company and its Subsidiaries have good title to, or valid leasehold interests in, all property and assets reflected on the Company Balance Sheet or acquired after the Company Balance Sheet Date, except as have been disposed of since the Company Balance Sheet Date in the ordinary course of business consistent with past practice, in each case free and clear of all Liens, other than Permitted Liens. Notwithstanding the foregoing, it is understood and agreed that matters regarding the infringement, misappropriation or other violation of Intellectual Property Rights of a Third Party are addressed solely in Section 4.15 and not in this Section 4.14.

(b)            Section 4.14 of the Company Disclosure Schedule sets forth an accurate and complete list of all real property leased, subleased, licensed or sublicensed by the Company or any of its Subsidiaries (collectively, the “Leased Real Property”). Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, the Company and its Subsidiaries have good and valid leasehold interests in all Leased Real Property, in each case, free and clear of all Liens, other than Permitted Liens.

(c)            Neither the Company nor any of its Subsidiaries owns any real property or are party to any agreement or option to purchase any real property.

Section 4.15         Intellectual Property, Data Privacy and Cybersecurity.

(a)            Section 4.15(a) of the Company Disclosure Schedule sets forth a true and complete list of all of the following registrations and applications for registration that are Owned Intellectual Property Rights: (i) issued patents and pending patent applications, (ii) registered trademarks and pending trademark applications, (iii) registered copyrights and pending copyright applications, and (iv) domain names (the Owned Intellectual Property Rights referred to in clauses (i) through (iv), collectively, the “Owned Registered Intellectual Property Rights”). The Company and its Subsidiaries have paid all registration, maintenance and renewal fees and have made all filings required to maintain their respective ownership, and the validity and enforceability of, such Owned Registered Intellectual Property Rights, except in each case where failure to do so would not reasonably be expected to constitute a Material Adverse Effect.

(b)            The Company and its Subsidiaries are sole and exclusive owners of all material Owned Intellectual Property Rights and hold all right, title and interest in and to all material Owned Intellectual Property Rights free and clear of any Liens, except Permitted Liens. Effective, written, present assignments, constituting an unbroken, complete chain-of-title, for each of the registrations and applications identified in Section 4.15(a), from each original creator, owner or inventor to the Company or its Subsidiaries have been obtained with respect to all Owned Registered Intellectual Property Rights and have been duly recorded with any applicable Governmental Authority.

(c)            The Company and its Subsidiaries own, are licensed or have a valid and enforceable right to use, any and all of the Intellectual Property Rights used or held for use in the conduct of the business of the Company and each of its Subsidiaries as presently conducted, including all data used in or to train any Software.

(d)            To the knowledge of the Company, neither the Company nor any of its Subsidiaries, nor the conduct of the business of the Company and each of its Subsidiaries nor the products, processes and services of the Company and each of its Subsidiaries have, in the past six years, infringed, misappropriated or otherwise violated, and do not infringe, misappropriate or otherwise violate, the Intellectual Property Rights of any other Person, in each case in a manner that would reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. To the knowledge of the Company, no Person has, in the past three years, challenged, infringed, misappropriated or otherwise violated any Owned Intellectual Property Rights in a manner that would reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries has received in the past three years any written notice of or, to the knowledge of the Company, is there threatened, in writing, any material Legal Proceeding (i) challenging or seeking to deny or restrict, the rights of the Company or any of its Subsidiaries in any of the Owned Intellectual Property Rights or (in each case, other than non-material office actions from the United States Patent and Trademark Office, the United States Copyright Office, or any equivalent foreign Governmental Authority in the ordinary course of prosecution), or (ii) alleging that any services provided, processes used or products manufactured, used, imported, offered for sale or sold by the Company or any of its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property Rights of any other Person.

(e)            None of the material Owned Registered Intellectual Property Rights have been adjudged invalid or unenforceable in whole or part, and, to the knowledge of the Company, all such Owned Registered Intellectual Property Rights are valid, subsisting and enforceable.

(f)            No government funding, facilities of a university, college, other educational institution or research center was used or is presently being used in any material respect in the development of any material Intellectual Property Rights included in the Owned Intellectual Property Rights that would limit or impair the worldwide use or exploitation of such Intellectual Property Rights by the Company or any of its Subsidiaries following the Merger or any of the other transactions contemplated hereby.

(g)            The Company and its Subsidiaries have taken commercially reasonable steps in accordance with normal industry practice to maintain, enforce and protect all material Owned Intellectual Property Rights, including the confidentiality of all material Trade Secrets owned by the Company or any of its Subsidiaries and no such Trade Secrets have been disclosed other than to employees, Representatives, contractors, consultants, service providers and agents of the Company or any of its Subsidiaries, all of whom are bound by confidentiality obligations, provided that all of the foregoing who have participated in the development of any material Owned Intellectual Property Rights for or on behalf of the Company or any of its Subsidiaries (i) assign to the Company or any of its Subsidiaries any ownership interest and right they may have in all such Intellectual Property Rights and (ii) acknowledge the Company’s and its Subsidiaries’ ownership of all such Intellectual Property Rights.

(h)            Neither the Company nor any of its Subsidiaries use, license or distribute any Software that is licensed under any “copyleft” terms or conditions in a way that would require that any Software included in the Owned Intellectual Property Rights be (i) made available or distributed in source code form, (ii) licensed for the purpose of making modifications or derivative works, (iii) licensed under terms that allow reverse engineering, reverse assembly or disassembly of any kind or (iv) redistributable at no charge.

(i)             No Software included in the Owned Intellectual Property Rights is subject to any agreement with any Person under which the Company or any of its Subsidiaries has deposited, or is required to deposit, into escrow the source code of such Software and no such source code has been released to any Person, or is entitled to be released to any Person. The consummation of the transactions contemplated by this Agreement will not trigger the release of any source code of any such Software.

(j)             Neither the Company nor any Subsidiary is a member, contributor to or other participant of any industry standards bodies. No license or other right or immunity with respect to any material Owned Intellectual Property Rights has been or is required to be granted by the Company or any of its Subsidiaries to any Person as a direct result of the Company’s or any Subsidiary’s membership in, contribution to, or other participation in any industry standards body or “open source” initiative.

(k)            The Company and its Subsidiaries use all commercially reasonable efforts to scan, with commercially available virus scan Software, the Software used in the business of the Company and its Subsidiaries as presently conducted or that is otherwise distributed by the Company or any of its Subsidiaries. None of the Software included in the Owned Intellectual Property Rights contains any virus, worm, Trojan horse, bomb, backdoor, clock, timer, or other disabling device code, design or routine which can cause Software to be erased, inoperable, or otherwise incapable of being used, either automatically or upon command by any Person in a manner that would materially adversely affect the operation thereof.

(l)             The IT Assets operate and perform in a manner that permits the Company and each of its Subsidiaries to conduct its business as presently conducted in all material respects. Each of the Company and its Subsidiaries have taken commercially reasonable actions, to protect the confidentiality, integrity and security of the IT Assets and all data, information and transactions stored or contained therein or transmitted thereby against any unauthorized use, access, interruption, modification or corruption. In the past three years, there have been no material security breaches of any of the IT Assets or any data, information or transactions stored or contained therein or transmitted thereby.

(m)           The Company and its Subsidiaries have for the past three years complied, and are currently in compliance, in each case in all material respects with all Applicable Law relating to data privacy, data protection, cybersecurity and the collection and use or other processing of Personal Information and user information gathered or accessed in the course of the operations of the Company or any of its Subsidiaries (“Applicable Data Protection Law”) and contractual obligations and external policies established by the Company or any of its Subsidiaries from time to time with respect to the foregoing. No claims have been asserted or, to the knowledge of the Company, threatened in writing against the Company or any of its Subsidiaries alleging a violation of (i) any Applicable Data Protection Law, (ii) any external policies, binding industry standards applicable to the Company or any of its Subsidiaries, and restrictions and requirements contained in any Contract to which the Company or any of its Subsidiaries is bound, in each case, relating to data privacy, data protection, cybersecurity or the processing of Personal Information (collectively, with Applicable Data Protection Laws, “Applicable Data Protection Requirements”), or (iii) a Person’s privacy, personal or confidentiality rights under any Applicable Data Protection Requirements.

(n)            The Company and each of its Subsidiaries have at all times (i) taken all commercially reasonable steps to protect the Personal Information in its possession or control against loss and against a breach, or unauthorized access, use, exfiltration, theft, interruption, modification, disclosure, corruption or other misuse (each, a “Data Breach”). There has not been, for the past three years, any material Data Breach with respect to any Personal Information in the possession or control of the Company or any of its Subsidiaries, and neither the Company nor its Subsidiaries have been required under any Applicable Data Protection Law to provide any notice to any Governmental Authority in connection with any Data Breach.

Section 4.16         Taxes.

(a)            All income Tax Returns and all other material Tax Returns required by Applicable Law to be filed with any Taxing Authority by, or on behalf of, the Company or any of its Subsidiaries have been filed when due in accordance with all Applicable Law (taking into account valid extensions), and all such Tax Returns are true and complete in all material respects.

(b)            Each of the Company and its Subsidiaries has paid or has withheld and remitted to the appropriate Taxing Authority all Taxes due and payable, or, where payment is not yet due, has established in accordance with GAAP an adequate accrual for all material Taxes through the end of the last period for which the Company and its Subsidiaries ordinarily record items on their respective books.

(c)            The U.S. federal and state and non-U.S. income and franchise Tax Returns of the Company and its Subsidiaries through the Tax year ended December 31, 2018 have been examined and closed or are Tax Returns with respect to which the applicable period for assessment under Applicable Law, after giving effect to extensions or waivers, has expired.

(d)            There is no claim, audit, action, suit, proceeding or investigation now pending or threatened in writing (or otherwise to the knowledge of the Company) against or with respect to the Company or its Subsidiaries in respect of any Tax or Tax Asset.

(e)            During the two-year period ending on the date hereof, neither the Company nor any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.

(f)            Neither the Company nor any of its Subsidiaries owns an interest in real property in any jurisdiction in which a Tax is imposed, or the value of the interest is reassessed, on the transfer of an interest in real property and which treats the transfer of an interest in an entity that owns an interest in real property as a transfer of the interest in real property.

(g)            Section 4.16(g) of the Company Disclosure Schedule contains a list of all jurisdictions (whether U.S. or non-U.S.) in which the Company or any of its Subsidiaries currently files income or other material Tax Returns.

(h)            Neither the Company nor any of its Subsidiaries (i) is, or has been, a party to any Tax Sharing Agreement (other than an agreement exclusively between or among the Company and its Subsidiaries or among the Company’s Subsidiaries) pursuant to which it will have any obligation to make any payments for Taxes after the Effective Time, (ii) has been a member of a group filing a consolidated, combined or unitary Tax Return that includes any Person other than the Company or any of its Subsidiaries, or (iii) has any liability for the payment of any Tax imposed on any Person (other than the Company or any of its Subsidiaries) pursuant to Treasury Regulations Section 1.1502-6 (or any analogous provision of state, local or non-U.S. law), or as a transferee or successor by Contract.

(i)             No jurisdiction in which neither the Company nor any of its Subsidiaries files Tax Returns has made a claim in writing which has not been resolved that the Company or any of its Subsidiaries is or may be liable for Tax in that jurisdiction.

(j)             Neither the Company nor any of its Subsidiaries has waived any statute of limitations in respect of U.S. federal or state or non-U.S. income or franchise Taxes or agreed to any extension of time with respect to a U.S. federal or state or non-U.S. income or franchise Tax assessment or deficiency, which waiver or extension is currently effective, other than in connection with an extension of time for filing a Tax Return.

(k)            Neither the Company nor any of its Subsidiaries has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4.

(l)             Section 4.16(l) of the Company Disclosure Schedule contains a correct and complete list of all non-U.S. Subsidiaries of the Company that are disregarded entities for U.S. federal income tax purposes. With respect to each such non-U.S. Subsidiary, a valid entity classification election to treat such Subsidiary as a disregarded entity has been made as of the date of its formation.

(m)            Neither the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period beginning after the Closing Date as a result of any installment sale, open transaction or any change of method of accounting made on or prior to the Closing Date.

(n)            To the knowledge of the Company, no Tax Asset of the Company or any of its Subsidiaries is currently subject to limitation on its use pursuant to Section 382 or Section 383 of the Code or comparable provisions of state or non-U.S. law.

Section 4.17         Employees and Employee Benefit Plans.

(a)            Section 4.17 of the Company Disclosure Schedule contains a correct and complete list identifying each material Employee Plan and specifies whether such plan is a US Plan or an International Plan. For each material US Plan, the Company has provided to Parent (i) a copy of such plan document (or a description, if such plan is not written) and all amendments thereto, as applicable, (ii) all trust agreements, insurance contracts or other funding arrangements and amendments thereto, (iii) the current prospectus or summary plan description and all summaries of material modifications thereto, (iv) the most recent favorable determination or opinion letter from the IRS, (v) the most recently filed annual return/report (Form 5500) and accompanying schedules and attachments thereto, (vi) the most recently prepared actuarial report and financial statements and (vii) any notices from the last three years to or from the IRS or any office or representative of the United States Department of Labor or any other Governmental Authority relating to any compliance issues in respect of any such Employee Plan. For each material International Plan (other than such plans that are maintained by a Governmental Authority), the Company has provided to Parent copies of such International Plans or summaries of the material terms of such International Plans, and any notices from the last three years to or from any Governmental Authority relating to any compliance issues in respect of any such International Plan.

(b)            The Company has provided to Parent a schedule that sets forth, for each employee of the Company or any of its Subsidiaries: (i) employee identification number, (ii) job title, (iii) annual base salary, (iv) most recent annual bonus received and current target annual bonus opportunity, (v) employing entity, (vi) hire date, (vii) primary work location, (viii) full- or part-time status and (ix) leave status (and, if on leave, the nature of the leave and the expected return date) (collectively, the “Employee Census”). Notwithstanding anything to the contrary in this Section 4.17(b), the information provided by the Company regarding employees will be anonymized to the extent reasonably necessary for compliance with Applicable Law. No Key Employee has notified the Company or any of its Subsidiaries in writing (or otherwise to the knowledge of the Company) that he or she intends to resign or retire as a result of the transactions contemplated by this Agreement or otherwise within six months after the date hereof.

(c)            With respect to any Employee Plan covered by Subtitle B, Part 4 of Title I of ERISA or Section 4975 of the Code, no non-exempt “prohibited transaction” (within the meaning of Section 4975 of the Code or Sections 406, 407 or 408 of ERISA) has occurred that has caused or would reasonably be expected to cause the Company or any of its Subsidiaries to incur any material liability under ERISA or the Code. No Employee Plan is, and neither the Company nor any of its ERISA Affiliates (nor any predecessor of any such entity) sponsors, maintains, administers or contributes to (or has any obligation to contribute to), or has in the past six years sponsored, maintained, administered or contributed to (or had any obligation to contribute to), or has or is reasonably expected to have any direct or indirect liability (including on account of an ERISA Affiliate) (whether actual or contingent) with respect to, any plan that is (i) subject to Section 412 of the Code or Title IV of ERISA (including, without limitation, and “multiemployer plan” (as defined in Section 3(37) of ERISA)), (ii) a “multiple employer plan” (as defined in Section 4063 or Section 4064 of ERISA); (iii) a defined benefit pension plan; or (iv) a voluntary employees’ beneficiary association under Section 501(c)(9) of the Code.

(d)            Each Employee Plan, and any award thereunder, that is or forms part of a “nonqualified deferred compensation plan” within the meaning of Section 409A or 457A of the Code has been established, maintained and operated in material compliance with all applicable requirements of Section 409A and 457A of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former Service Provider for any Tax incurred by such Service Provider under Section 409A, 457A or 4999 of the Code.

(e)            Each US Plan that is intended to be qualified under Section 401(a) of the Code has been established pursuant to a preapproved prototype plan for which an IRS opinion letter has been obtained, and, to the Company’s knowledge, no circumstances exist that would reasonably be expected to result in the loss of such qualification or any such opinion letter being revoked or the Company’s reliance on same being rejected by the IRS. Each US Plan is in compliance with and has been maintained in compliance in all material respects with its terms and with the requirements of Applicable Law, including ERISA and the Code. Neither the Company nor any of its Subsidiaries has incurred, and, to the Company’s knowledge, no events have occurred with respect to any US Plan that could result in payment or assessment by or against the Company or any of its Subsidiaries of, any material excise taxes or penalties under ERISA, the Code or other Applicable Law, including, without limitation, Section 4980B, 4980D, 4980H, 6721 or 6722 of the Code.

(f)            All contributions, premiums and payments that are due have been made for each Employee Plan within the time periods prescribed by the terms of such plan and Applicable Law or, to the extent not due, are properly accrued to the extent required to be accrued under applicable accounting principles. There has been no written amendment, commitment or announcement to increase or enhance the payments or benefits provided under any Employee Plan that would reasonably be expected to materially increase the Company’s aggregate benefit and compensation expense above the aggregate benefit and compensation expense for the most recently completed fiscal year.

(g)            Neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (either alone or together with any other event) will: (i) entitle any current or former Service Provider to any payment or material benefit, including any bonus, retention, severance, or retirement payment or benefit under any Employee Plan, (ii) enhance or accelerate the time of payment or vesting or trigger any payment of funding (through a grantor trust or otherwise) of any compensation or benefits under, or increase the amount payable under, any Employee Plan, or (iii) limit or restrict the right of the Company or any of its Subsidiaries or, after Closing, Parent, to merge, amend or terminate any Employee Plan (for the avoidance of doubt excluding International Plans mandated by Applicable Law). There is no Contract, plan or arrangement (written or otherwise) covering any current or former Service Provider that is reasonably expected to, and no payment, benefit or other right that will be made or provided in connection with the Merger (whether alone or in conjunction with any other event, whether contingent or otherwise) is reasonably expected to, individually or collectively, give rise to any excess parachute payments within the meaning of Section 280G of the Code.

(h)            Neither the Company nor any of its Subsidiaries has any current or projected liability for, and no Employee Plan provides or promises, any post-employment or post-retirement medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any current or former Service Provider (other than coverage mandated by Applicable Law, including the Consolidated Omnibus Budget Reconciliation Act of 1985).

(i)             There is no action, suit, investigation, audit, proceeding or claim (other than routine claims for benefits) pending against, or, to the Company’s knowledge, threatened against or involving any Employee Plan before any arbitrator or any Governmental Authority, including the IRS or the Department of Labor. The Company and its Subsidiaries are, and have been since January 1, 2021, in compliance with all Applicable Laws with respect to labor relations, employment and employment practices, including those relating to labor management relations, wages, hours, overtime, employee classification, discrimination, sexual harassment, affirmative action, work authorization, immigration, safety and health, information privacy and security, workers compensation, continuation coverage under group health plans, wage payment and the payment and withholding of Taxes, except for failures to comply that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company. The Company and each of its Subsidiaries is, and since January 1, 2021 has been, in compliance with WARN, except for failures to comply that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.

(j)            In the past three years, (i) no material allegations of sexual harassment have been made through the Company’s internal reporting procedures against any employee of the Company or its Subsidiaries, other than any allegations that the Company or Subsidiary thereof determined, after due inquiry, did not have merit and (ii) neither the Company nor any of its Subsidiaries has entered into any settlement agreements related to allegations of sexual harassment or sexual misconduct by any employee.

(k)            Each International Plan (i) has been established and maintained in compliance in all material respects with its terms and Applicable Law, (ii) if intended to qualify for special tax treatment, complies in all material respects with all the requirements for such treatment and (iii) if required under Applicable Law, to any extent, to be funded, book-reserved or secured by an insurance policy, is funded, book-reserved or secured by an insurance policy, as applicable, to the extent required in accordance with Applicable Law or the terms of the applicable International Plan, based on reasonable actuarial assumptions in accordance with applicable accounting principles.

(l)            Neither the Company nor any of its Subsidiaries is party to or subject to, or is currently negotiating in connection with entering into, any Collective Bargaining Agreement. To the knowledge of the Company, there are no and, during the three-year period ending on the date hereof, there has not been any organizational campaign, petition or other material unionization activity seeking recognition of a collective bargaining unit relating to any Service Provider. There are no, and for the three-year period ending on the date hereof there have not been any, labor strikes, concerted work stoppages, picketing or lockouts pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries. There are no material unfair labor practice complaints pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries before the National Labor Relations Board or any other Governmental Authority or any current union representation questions involving Service Providers. The consent of, or, except for failures to comply that would not reasonably be expected to be material, the consultation of, or notification to, any labor or trade union, works council, or other employee representative body representing employees of the Company or any of its Subsidiaries is not required for the Company to enter into this Agreement or to consummate any of the transactions contemplated hereby.

Section 4.18         Environmental Matters.

(a)            Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company:

(i)           no written notice, order, complaint or penalty has been received by the Company or any of its Subsidiaries arising out of any Environmental Laws, and there are no judicial, administrative or other actions, suits or proceedings pending or, to the Company’s knowledge, threatened which allege a violation by the Company or any of its Subsidiaries of any Environmental Laws;

(ii)          the Company and each of its Subsidiaries have all Environmental Permits necessary for their operations to comply with all applicable Environmental Laws and are in compliance with the terms of such permits; and

(iii)         the operations of the Company and each of its Subsidiaries are in compliance with the terms of applicable Environmental Laws.

(b)            For purposes of this Section 4.18, the terms “Company” and “Subsidiaries” shall include any entity that is, in whole or in part, a predecessor of the Company or any of its Subsidiaries.

Section 4.19         Licenses and Permits.

(a)            The Company and its Subsidiaries each own or possess all material Permits that are necessary to enable it to carry on its operations as presently conducted (the “Material Permits”).

(b)            Except as would not reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, (i) all Material Permits are valid, subsisting and in full force and effect, and (ii) the Company and each of its Subsidiaries is currently, and, since January 1, 2021, has been, in compliance with such Material Permits. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, no event has occurred or condition or state of facts exists which constitutes or after notice or lapse of time or both, would constitute a breach or default in any material respect under any such Material Permit or which permits or, after notice or lapse of time or both, would permit revocation or termination of any such Material Permit, or which would materially and adversely affect the rights of the Company or any of its Subsidiaries. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, as of the date of this Agreement, no notice of cancellation, or of any default, concerning any such Material Permit has been received by the Company or any of its Subsidiaries.

Section 4.20         Material Contracts.

(a)            Section 4.20 of the Company Disclosure Schedule sets forth an accurate and complete list of each Contract of the following nature to which the Company or any of its Subsidiaries is currently a party or by which the Company or any of its Subsidiaries is currently bound or is a third-party beneficiary of, in each case, excluding any Employee Plan:

(i)           any Contract for the purchase of materials, supplies, goods, services, equipment or other assets that resulted in annual payments by the Company and its Subsidiaries of $500,000 or more in any of the last three years or that is expected to result in annual payments by the Company and its Subsidiaries of $500,000 or more in any future year;

(ii)          any sales, distribution or other similar Contract providing for the sale by the Company or any of its Subsidiaries of materials, supplies, goods, services, equipment or other assets that resulted in annual payments to the Company and the Subsidiaries of $1,000,000 or more in any of the last three years or that is expected to result in annual payments to the Company and its Subsidiaries of $1,000,000 or more in any future year;

(iii)         any agency, reseller or other similar Contract providing for the payment of at least $50,000 or more in any of the last two years by the Company or any of its Subsidiaries of commissions to any Person;

(iv)         any Government Contract;

(v)          any lease or sublease (whether of real or personal property) providing for annual payments of $300,000 or more;

(vi)         any Contract relating to (A) the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) or (B) the purchase or sale of any material assets or properties, in the case of this clause (B), outside of the ordinary course of business;

(vii)        any Contract under which the Company or its Subsidiaries have continuing or contingent payment obligations after the date of this Agreement in excess of $100,000, pursuant to “earnout,” indemnification, amounts held in escrow or other similar contingent payment obligations;

(viii)       any partnership, joint venture, strategic alliance or other similar Contract;

(ix)         any Contract that by its terms limits the freedom of the Company or any of its Subsidiaries to sell any products or services or to compete in any line of business or with any Person or in any area or during any period of time or which would so limit the freedom of the Company, Parent or any of their respective Subsidiaries after the Closing Date;

(x)          any Contract relating to indebtedness for borrowed money or the deferred purchase price of property (in either case, whether incurred, assumed, guaranteed or secured by any asset), in each case in excess of $1,000,000 (and excluding any expense advances made in the ordinary course to any Service Providers and/or loans made under the 401(k) plans(s) of the Company or its Subsidiaries);

(xi)          any Contract pursuant to which the Company or any of its Subsidiaries grants any Person, including any agent, reseller or partner, exclusivity, “most favored nation” status or any type of special discount rates or rebates or includes minimum purchase requirements;

(xii)         any Contract that grants any right of first refusal or right of first offer or similar right or that by its terms limits the ability of the Company or any of its Subsidiaries to sell, transfer, pledge, or otherwise dispose of any material amount of its assets or its business;

(xiii)        any Related Party Contract;

(xiv)       any Contract (including employment agreements and agreements that contain non-competition, non-solicitation or confidentiality covenants) with any executive officer of the Company;

(xv)         any collective bargaining or similar written labor-related agreement with any labor union, works council or similar labor organization;

(xvi)        any Contract pursuant to which the Company or any Subsidiary obtains any license, sublicense, right to use, or covenant not to be sued with respect to any Intellectual Property Right, other than any (A) commercial off-the-shelf Software licensed by the Company or any Subsidiary with a license fee of less than $500,000 per annum in the aggregate, (B) non-disclosure agreements entered into in the ordinary course of business, (C) Contracts that contain a license that is merely incidental to the transaction contemplated in such Contract, the commercial purpose of which is primarily for something other than such license or (D) open source Software licenses;

(xvii)      any Contract pursuant to which the Company or any Subsidiary grants any license, sublicense, right to use, or covenant not to be sued with respect to any Owned Intellectual Property Right, other than non-exclusive licenses granted in the ordinary course of business; and

(xviii)     any settlement Contract arising out of any Legal Proceeding asserted by any Person (including any Governmental Authority), or any Contract involving the settlement, release, compromise or waiver by the Company or any of its Subsidiaries of any litigation, material rights, claims, material obligations, duties or liabilities, in each case, involving payment by the Company or any of its Subsidiaries after the date hereof in excess of $150,000, or that imposes material ongoing obligations after the date hereof on the Company and its Subsidiaries (each contract, agreement, arrangement or understanding of the type described in clauses (i) through (xviii), a “Material Contract”).

The Company has made available to Parent an accurate and complete copy of each Material Contract.

(b)            Except as would not reasonably be expected to have a Material Adverse Effect on the Company, (i) each Material Contract is a valid and binding obligation of the Company or its applicable Subsidiary and, to the knowledge of the Company, of the other party or parties thereto enforceable against the Company or its applicable Subsidiary and, to the knowledge of the Company, against the other party or parties thereto in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity); (ii) the Company has performed all obligations required to be performed by it under each Material Contract and, to the knowledge of the Company, each other party to each Material Contract has performed all obligations required to be performed by it under such Material Contract; and (iii) the Company has not received written notice of any violation or default under (nor, to the knowledge of the Company, does there exist any condition which with or without notice or lapse of time or both would cause such a violation of or material default under) any Material Contract. As of the date hereof, the Company has not received written or, to the knowledge of the Company, non-written notice from any Person that such Person intends to terminate or not renew, or seek renegotiation of the terms of, any Material Contract. Except as set forth on Section 4.19(b) of the Company Disclosure Schedule, from the Company Balance Sheet Date through the date of this Agreement, there has been no material amendment or modification of any Material Contract.

(c)            Government Contracts. Except as would not reasonably have a Material Adverse Effect on the Company, neither the Company nor its Subsidiaries have, since January 1, 2021: (i) breached or violated any law, certification, representation, clause, provision or requirement pertaining to any Government Contract; (ii) been suspended or debarred from bidding on government contracts by a Governmental Authority; (iii) been audited or investigated by any Governmental Authority with respect to any Government Contract; (iv) conducted or initiated any internal investigation or made any disclosure with respect to any alleged or potential irregularity, misstatement or omission arising under or relating to a Government Contract; (v) received from any Governmental Authority or any other person any written notice of breach, cure, show cause or default with respect to any Government Contract; (vi) had any Government Contract terminated by any Governmental Authority or any other Person for default or failure to perform; (vii) received any small business set-aside contract, any other set aside contract or other order or contract requiring small business or other preferred bidder status or (viii) entered any Government Contracts payable on a cost-reimbursement basis. To the knowledge of the Company, there are no outstanding or unsettled allegations of fraud, false claims or overpayments nor any investigations or audits by any Governmental Authority with regard to any of the Company’s or its Subsidiaries’ Government Contracts.

Section 4.21         Insurance. The Company maintains insurance coverage with reputable and financially sound insurers in such amounts and covering such risks as are in accordance with customary industry practice for participants in the industry in which the Company and its Subsidiaries operate. The Company has made available to Parent all material insurance policies and fidelity bonds relating to the business, equipment, properties, employees, officers or directors, assets and operations of the Company and its Subsidiaries (collectively, the “Insurance Policies”). Except as would not reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, each of the Insurance Policies is in full force and effect, all premiums due and payable thereon have been paid when due and the Company is in compliance in with the terms and conditions of the Insurance Policies. The Company has not received any written notice regarding any invalidation or cancellation of any Insurance Policy that has not been renewed in the ordinary course without any lapse in coverage. As of the date of this Agreement, there are no pending material claims under any Insurance Policies in respect of which the insurer has issued a notice of denial or a reservation of rights.

Section 4.22         Customers, Partners, Resellers, Suppliers.

(a)            Section 4.22(a) of the Company Disclosure Schedule sets forth a true, correct and complete list of the top thirty largest customers (based on net revenue received by the Company or any of its Subsidiaries) for the twelve-month period ending June 30, 2023.

(b)            Section 4.22(b) of the Company Disclosure Schedule sets forth a true, correct and complete list of the top ten largest partners and resellers (based on net revenue received by the Company or any of its Subsidiaries) for the twelve-month period ending June 30, 2023.

(c)            Section 4.22(c) of the Company Disclosure Schedule sets forth a true, correct and complete list of the twenty largest suppliers and vendors (based on spend by the Company or any of its Subsidiaries) for the twelve-month period ending June 30, 2023.

(d)            Since December 31, 2022 through the date of this Agreement, no customer, partner, reseller, supplier or vendor listed on Section 4.22(a)-(c) of the Company Disclosure Schedule has notified the Company or any of its Subsidiaries in writing that it shall, or intends to, terminate its relationship with (including by allowing its Contract to expire without renewal) or stop, materially decrease the rate or volume of, or materially increase or decrease the price of buying or selling products and services from or to the Company or any of its Subsidiaries. Since December 31, 2022 through the date of this Agreement, no material disagreement, indemnity claim, claim for damages or other dispute has arisen between the customers, partners, resellers or suppliers listed on Section 4.22(a)-(c) of the Company Disclosure Schedule, on the one hand, and the Company or its Subsidiaries, on the other hand, with respect to the business relationship or any agreements between such customers, partners, resellers, suppliers or vendors and the Company or any of its Subsidiaries.

Section 4.23         CFIUS and National Security Matters.

(a)            All technologies, products, technical data, and any other material manufactured or exported by the Company or any of its Subsidiaries and subject to the United States International Traffic in Arms Regulations or subject to elevated license requirements under the Export Administration Regulations are scheduled on Section 4.23 of the Company Disclosure Schedule.

(b)            As of the date hereof, (i) neither the Company nor any of its Subsidiaries is, and for the three years prior to the date of this Agreement, neither the Company nor any Company Subsidiary has been, a party to any U.S. federal Government Contract and (ii) neither the Company nor any of its Subsidiaries has, for the five years prior to the date of this Agreement, entered into any Government Contract with respect to a classified program.

(c)            Neither the Company nor any of its Subsidiaries stores information that is classified for national security purposes under Executive Order 13256 (or similar law, regulation or order) or holds a facility security clearance.

Section 4.24         AML and Anti-Corruption Compliance. Since January 1, 2021, none of the Company, any of its Subsidiaries, or any of their respective officers, directors or employees, or, to the knowledge of the Company, any other Person acting on behalf of the Company or any of its Subsidiaries has (in each case acting on behalf of the Company or its Subsidiaries), taken any action that would cause any of the foregoing to be in violation of any provision of the United States Foreign Corrupt Practices Act of 1977 or any other applicable anticorruption law, anti-bribery law, anti-money laundering or similar laws and any other regulation or guidance related to any of the foregoing (collectively, “AML and Anti-corruption Laws”). Since January 1, 2021, there has been no voluntary or involuntary disclosure to a Governmental Authority, written notice, inquiry, investigation or internal or external allegation from any Governmental Authority or other Person, or pending or, to the knowledge of the Company, threatened litigation or enforcement action, in each case relating to violations of AML and Anti-corruption Laws, Sanctions and Export Control Laws or U.S. antiboycott requirements involving the Company, any of its Subsidiaries or any of their respective officers, directors or employees (in their capacity as such), or, to the knowledge of the Company, any other Person acting on behalf of the Company or any of its Subsidiaries (in their capacity as such).

Section 4.25         Economic Sanctions & Export Controls Compliance.

(a)            The Company and each of its Subsidiaries are and, since January 1, 2021, have been in material compliance with all applicable Sanctions and Export Control Laws.

(b)            None of the Company, any of its Subsidiaries or any of their respective officers, directors or employees, or, to the knowledge of the Company, any Person acting on its behalf is currently or has since January 1, 2021 been: (i) a Sanctioned Person, (ii) organized in, operating in, conducting business with, ordinarily resident, or is otherwise engaging in dealings with or for the benefit of any Sanctioned Person or in Russia, Lebanon or a country or territory which is (or whose government is) currently or has in the last five years been itself the subject of or target of comprehensive Sanctions and Export Control Laws (at present, the Crimea, Kherson, Zaporizhzhia, so-called Donetsk People’s Republic and so-called Luhansk People’s Republic regions of Ukraine, Cuba, Iran, North Korea, Syria and Venezuela) (each, a “Sanctioned Country”), (iii) engaging in any export, reexport, transfer or provision of any goods, Software, technology, data or service without, or exceeding the scope of, any required or applicable licenses or authorizations under all applicable Sanctions and Export Control Laws, or (iv) otherwise in violation of any Sanctions and Export Control Laws or U.S. antiboycott requirements.

Section 4.26         Related Party Transactions. Except for compensation or other employment arrangements in the ordinary course of business, there are no Contracts, transactions, arrangements or understandings between the Company or any of its Subsidiaries, on the one hand, and any other Person that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC in the Company’s Form 10-K or proxy statement pertaining to an annual meeting of stockholders (the “Related Party Contracts”).

Section 4.27         Finders’ Fees. Except for Xxxxxxxxx LLC, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf of the Company or any of its Subsidiaries who is entitled to any fee or commission from the Company or any of its Affiliates in connection with the transactions contemplated by this Agreement. The total fee payable by the Company and its Subsidiaries collectively to Xxxxxxxxx LLC in connection with the transactions contemplated by this Agreement is currently estimated to be as set forth on ‎Section 4.27 of the Company Disclosure Schedule.

Section 4.28         Opinion of Financial Advisor. The Board of Directors of the Company (in its capacity as such) has received an opinion from Xxxxxxxxx LLC, financial advisor to the Company, to the effect that, as of the date of such opinion and based upon and subject to the various qualifications, assumptions, limitations and other matters set forth therein, the Merger Consideration to be received in the Merger by holders of shares of Company Stock (other than holders of Company Stock that execute a written consent in connection with the Merger, parties to earnout or lockup arrangements in their capacities as holders of Earnout Shares and Lock-Up Shares thereunder, NICE, Merger Subsidiary, and their respective Affiliates) is fair, from a financial point of view, to such holders. It is understood and agreed by the parties hereto that such opinion is for the benefit of the Board of Directors of the Company (in its capacity as such) and may not be relied upon by Parent or Merger Subsidiary. A signed copy of such opinion shall be delivered to Parent as soon as practicable following the date of this Agreement.

Section 4.29         Antitakeover Statutes. Assuming the accuracy of the representations and warranties of NICE, Parent and Merger Subsidiary in Article 5, the Company has taken all action necessary to exempt the Merger, this Agreement and the transactions contemplated hereby from Section 203 of Delaware Law, and, accordingly, neither such Section nor any other antitakeover or similar statute or regulation applies or purports to apply to any such transactions (“Takeover Statutes”). Assuming the accuracy of the representations and warranties of NICE, Xxxxxx and Merger Subsidiary in Article 5, no other “control share acquisition,” “fair price,” “moratorium” or other antitakeover laws enacted under U.S. state or federal laws apply to this Agreement or any of the transactions contemplated hereby.

Section 4.30         No Other Representations and Warranties. Except for the express written representations and warranties made by the Company in this Article 4, neither the Company nor any other Person makes any express or implied representation or warranty whatsoever regarding the Company or any of its Subsidiaries or any of its or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects or its or their respective Representatives in connection with this Agreement or the transactions contemplated by this Agreement, notwithstanding the delivery or disclosure to NICE, Parent and Merger Subsidiary or any of their Affiliates or Representatives of any documentation, forecasts or other information with respect to any one or more of the foregoing. The Company expressly disclaims any other representations or warranties. None of the Company or any of its Affiliates or its or their respective Representatives has relied on and none are relying on any representations or warranties regarding Parent or any of its Subsidiaries or any of its or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects or its or their respective Representatives in connection with this Agreement or the transactions contemplated by this Agreement, other than the express written representations and warranties expressly set forth in Article 5.

Article 5
Representations and Warranties of Parent

Subject to Section 11.05, Parent and NICE each represent and warrant to the Company that:

Section 5.01         Corporate Existence and Power. Each of Parent, NICE and Merger Subsidiary is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all corporate powers and all governmental licenses, franchises, authorizations, permits, certificates, consents and approvals required to carry on its business as now conducted, except for those licenses, franchises, authorizations, permits, certificates, consents and approvals the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent. Since the date of its incorporation, Merger Subsidiary has not engaged in any activities other than in connection with or as contemplated by this Agreement or in connection with arranging any financing required to consummate the transactions contemplated hereby. Merger Subsidiary was incorporated solely for the purpose of engaging in and consummating the Merger and the transactions contemplated hereby. All of the outstanding shares of capital stock of Merger Subsidiary have been validly issued, are fully paid and nonassessable and are owned, and at the Effective Time will be owned, directly or indirectly, by Parent. All of the outstanding shares of capital stock of Parent have been validly issued, are fully paid and not assessable and are owned, and at the Effective Time will be owned, directly or indirectly, by NICE. Parent has heretofore made available to the Company true and complete copies of the articles of association of NICE and the certificates of incorporation and bylaws of Parent and Merger Subsidiary as currently in effect.

Section 5.02         Corporate Authorization. The execution, delivery and performance by Xxxxxx, NICE and Merger Subsidiary of this Agreement and the consummation by Parent, NICE and Merger Subsidiary of the transactions contemplated hereby are within the corporate powers of Parent, NICE and Merger Subsidiary and have been duly authorized by all necessary corporate action. Assuming the due authorization, execution and delivery of this Agreement by the Company, this Agreement constitutes a valid and binding agreement of each of Parent, NICE and Merger Subsidiary, enforceable against Parent, NICE and Merger Subsidiary in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity).

Section 5.03         Governmental Authorization. The execution, delivery and performance by Parent, NICE and Merger Subsidiary of this Agreement and the consummation by Parent, NICE and Merger Subsidiary of the transactions contemplated hereby require no action by or in respect of, or filing with, any Governmental Authority, other than (i) the filing of a certificate of merger with respect to the Merger with the Delaware Secretary of State and appropriate documents with the relevant authorities of other states in which Parent is qualified to do business, (ii) compliance with any applicable requirements of the HSR Act and any other foreign Antitrust Laws as set forth on Section 4.03 of the Company Disclosure Schedule, (iii) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other state or federal securities laws, (iv) filings as may be required with, submissions as may be necessary or advisable to, and clearances, permits, authorizations, consents and approvals as may be required from, CFIUS in order to obtain the CFIUS Clearance, and (v) any actions or filings the absence of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent.

Section 5.04         Non-contravention. The execution, delivery and performance by Xxxxxx, NICE and Merger Subsidiary of this Agreement and the consummation by Parent, NICE and Merger Subsidiary of the transactions contemplated hereby do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the certificate of incorporation or bylaws (or other constitutional documents, as applicable) of Parent, NICE or Merger Subsidiary, (ii) assuming compliance with the matters referred to in Section 5.03, contravene, conflict with or result in a violation or breach of any provision of any Applicable Law, (iii) assuming compliance with the matters referred to in Section 5.03, require any consent or other action by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which NICE, Parent or any of their respective Subsidiaries is entitled under any provision of any agreement or other instrument binding upon NICE, Parent or any of their respective Subsidiaries or any license, franchise, permit, certificate, approval or other similar authorization affecting, or relating in any way to, the assets or business of NICE, Parent and their respective Subsidiaries or (iv) result in the creation or imposition of any Lien on any asset of NICE, Parent or any of their respective Subsidiaries, with only such exceptions, in the case of each of clauses (ii) through (iv), as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on Parent.

Section 5.05         Disclosure Documents. At the time the Information Statement or Proxy Statement (if any) of the Company to be filed with the SEC in connection with the Merger, or any amendments or supplements thereto, is first mailed to the stockholders of the Company and, in the case of the Proxy Statement (if any), at the time of the Company Stockholder Approval, the Information Statement or Proxy Statement (if any), or supplement or amendment, if applicable, will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The representations and warranties contained in this Section 5.05 will apply solely to statements or omissions included or incorporated by reference in the Information Statement or Proxy Statement (if any) based upon information supplied by Parent, NICE, Merger Subsidiary or any of their respective Representatives or advisors specifically for use or incorporation by reference therein.

Section 5.06         Litigation. As of the date hereof, there is no action, suit, investigation or proceeding pending against, or, to the knowledge of Parent, NICE and Merger Subsidiary, threatened against, or any order, judgment, ruling or decree imposed upon, Parent, NICE or Merger Subsidiary or any of their respective Affiliates before (or, in the case of threatened actions, suits, investigations or proceedings, would be before) or by (or, in the case of threatened actions, suits, investigations or proceedings, would be by) any Governmental Authority or arbitrator, that would reasonably be expected to prevent or materially impair or delay the consummation of the Merger or other transactions contemplated by this Agreement.

Section 5.07         Ownership of Shares. None of Parent, NICE, Merger Subsidiary or any of their respective Affiliates (i) is, or has been at any time during the last three years, an “interested stockholder” of the Company, as defined in Section 203 of Delaware Law or (ii) owns (directly or indirectly, beneficially or of record), or is a party to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of, any shares of capital stock of the Company other than this Agreement, other than shares over which NICE, Parent or their respective Subsidiaries have no voting or dispositive power and held in investment funds or other managed accounts with Third Party managers.

Section 5.08         Financing. NICE and Parent have ready access to, and will have as of the Effective Time, sufficient available funds to consummate the Merger and to make all payments required to be made in connection therewith, including: (a) the payments to the holders of Company Stock and Terminating Company RSUs; (b) any payments made in respect of any other compensation obligations that become payable in connection with the transactions contemplated by this Agreement; (c) all payments in respect of any indebtedness required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied or discharged in connection with the Merger and all premiums and fees required to be paid in connection therewith; and (d) all other amounts to be paid pursuant to this Agreement, including the fees, costs and expenses incurred by or on behalf of the parties hereto in connection with the negotiation, performance and consummation of the transactions contemplated hereby. As of the date hereof, NICE and Parent have no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent, NICE or Merger Subsidiary hereunder.

Section 5.09         Vote/Approval Required. No vote or consent of the holders of any class or series of capital stock of Parent or NICE is necessary to approve this Agreement or the Merger or the other transactions contemplated hereby. The vote or consent of Parent as the sole stockholder of Merger Subsidiary (which shall have occurred prior to the Effective Time) is the only vote or consent of the holders of any class or series of capital stock of Merger Subsidiary necessary to approve this Agreement or the Merger or the other transactions contemplated hereby.

Section 5.10         Brokers. There is no financial advisor, investment banker, broker, finder, agent or other Person that has been retained by or is authorized to act on behalf of Parent, NICE, Merger Subsidiary or any of their Affiliates who is entitled to any financial advisor’s, investment banking, brokerage, finder’s or other fee or commission in connection with the Merger.

Section 5.11         Stockholder and Management Arrangements. Except as expressly set forth in this Agreement (including the support agreements entered into by and between Parent and certain shareholders of the Company in respect of the Merger), none of Parent, NICE, Merger Subsidiary or any of their respective Affiliates is a party to any Contract, or has authorized, made or entered into, or committed or agreed to enter into, any arrangements with any stockholder, director, officer, employee or other Affiliate of the Company or any of its Subsidiaries (other than the Company) (a) relating to (i) this Agreement or the Merger; (ii) the Company; or (iii) the Surviving Corporation or any of its Subsidiaries, businesses or operations (including as to continuing employment) from and after the Effective Time; or (b) pursuant to which (i) any holder of Company Stock would be entitled to receive consideration of a different amount or nature than the Merger Consideration in respect of such holder’s shares of Company Stock (including through any “roll-over” of existing equity in connection with the transactions contemplated hereby); (ii) any holder of Company Stock has agreed to approve this Agreement or vote against any Superior Proposal; or (iii) any Person has agreed to provide, directly or indirectly, equity investment to Parent, NICE, Merger Subsidiary or the Company to finance any portion of the Merger.

Section 5.12         Solvency. As of the Effective Time and immediately after giving effect to the Merger (including the payment of all amounts payable pursuant to Article 2 in connection with or as a result of the Merger and all related fees and expenses of Parent, NICE, Merger Subsidiary, the Company and their respective Subsidiaries in connection therewith), (a) the amount of the “fair saleable value” of the assets of the Surviving Corporation and its Subsidiaries (on a consolidated basis) will exceed (i) the value of all liabilities of the Surviving Corporation and such Subsidiaries (on a consolidated basis), including contingent and other liabilities; and (ii) the amount that will be required to pay the probable liabilities of the Surviving Corporation and its Subsidiaries (on a consolidated basis) on their existing debts (including contingent liabilities) as such debts become absolute and matured; (b) the Surviving Corporation and its Subsidiaries (on a consolidated basis) will not have an unreasonably small amount of capital for the operation of the businesses in which they are engaged or proposed to be engaged; and (c) the Surviving Corporation and its Subsidiaries (on a consolidated basis) will be able to pay their liabilities, including contingent and other liabilities, as they mature. No transfer of property is being made by Parent, NICE, Merger Subsidiary, the Surviving Corporation or any their respective Affiliates (or is contemplated being made) and no obligation is being incurred (or is contemplated being incurred) by Parent, NICE, Merger Subsidiary, the Surviving Corporation or any of their respective Affiliates in connection with the transactions contemplated by this Agreement (or any series of related transactions or any other transactions in close proximity with the transactions contemplated by this Agreement) (x) with the intent to hinder, delay or defraud either present or future creditors of the Surviving Corporation, Parent, NICE, Merger Subsidiary or any of their respective Affiliates, (y) that could reasonably be expected to render the Surviving Corporation, Parent, NICE, Merger Subsidiary or any of their respective Affiliates insolvent or (z) that as of the date hereof, is reasonably expected to have a material adverse effect on the long term financial sustainability of the Surviving Corporation, Parent, NICE, Merger Subsidiary or any of their respective Affiliates.

Section 5.13         Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans. In connection with the due diligence investigation of the Company by Parent, NICE and Merger Subsidiary, Parent, NICE and Merger Subsidiary have received and may continue to receive from the Company certain estimates, projections, forecasts, and other forward-looking information, as well as certain business and strategic plan information, regarding the Company and its Subsidiaries and their respective businesses and operations. Parent, NICE and Merger Subsidiary hereby acknowledge that there are uncertainties inherent in attempting to make such estimates, projections, forecasts, and other forward-looking statements, as well as in such business and strategic plans, with which Parent, NICE and Merger Subsidiary are familiar, that Parent, NICE and Merger Subsidiary are taking full responsibility for making their own evaluation of the adequacy and accuracy of all estimates, projections, forecasts, and other forward-looking information, as well as such business plans, so furnished to them (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking information, or business plans), and that, except for the representations and warranties expressly set forth in Article 4, Parent, NICE and Merger Subsidiary have not relied on such information or on any other representation or warranty (express or implied), memorandum, presentation or other materials or information provided by or on behalf of the Company and will have no claim against the Company or any of its Subsidiaries, or any of their respective Representatives, with respect thereto or any rights hereunder with respect thereto. Without limiting the generality of the foregoing, Parent, NICE and Merger Subsidiary each acknowledges and agrees that neither the Company nor any other Person makes or has made any representations or warranties with respect to any estimates, projections, forecasts, or other forward-looking information (or omissions therefrom) made available to Parent, NICE, Merger Subsidiary or any of their respective Representatives (including in certain “data rooms,” “virtual data rooms,” management presentations or in any other form in expectation of, or in connection with, the transactions contemplated by this Agreement).

Section 5.14         No Other Representations and Warranties. Except for the express written representations and warranties made by Parent in this Article 5, neither Parent nor any other Person makes any express or implied representation or warranty regarding NICE or Parent or any of its Subsidiaries or any of its or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects or its or their respective Representatives in connection with this Agreement or the transactions contemplated by this Agreement, and Parent expressly disclaims any other representations or warranties. None of Parent, NICE, Merger Subsidiary or any of their respective Affiliates or its or their respective Representatives has relied on and none are relying on any representations or warranties or other written or oral information regarding the Company or any of its Subsidiaries or any of its or their respective businesses, operations, assets, liabilities, conditions (financial or otherwise) or prospects or its or their respective Representatives in connection with their due diligence investigation of the Company, the negotiation of this Agreement or the transactions contemplated by this Agreement, other than the express written representations and warranties expressly set forth in Article 4.

Article 6
Covenants of the Company

The Company agrees that:

Section 6.01         Conduct of the Company. From the date hereof until the earlier of the Effective Time and the termination of this Agreement, except (w) as expressly contemplated by this Agreement, (x) as set forth in Section 6.01 of the Company Disclosure Schedule, (y) as required by Applicable Law, or (z) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to (i) conduct its business in all material respects in the ordinary course consistent with past practice, except as necessary in response to any COVID-19 Measures or any Cybersecurity Measures, (ii) preserve intact its present business organization in all material respects, (iii) maintain in effect all of its material foreign, federal, state and local licenses, permits, consents, franchises, approvals and authorizations, (iv) keep available the services of its officers and other Key Employees and (v) maintain in all material respects its significant commercial relationships with third parties. Without limiting the generality of the foregoing, except (A) as expressly contemplated by this Agreement, (B) as set forth in Section 6.01 of the Company Disclosure Schedule, (C) as required by Applicable Law, (D) as necessary in response to any COVID-19 Measures or any Cybersecurity Measures, or (E) with the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), from the date hereof until the Effective Time or the termination of this Agreement in accordance with its terms, the Company shall not, nor shall it permit any of its Subsidiaries to:

(a)            amend its articles of incorporation, bylaws or other similar organizational documents (whether by merger, consolidation or otherwise);

(b)            (i) split, combine or reclassify any shares of its capital stock, (ii) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, other than dividends by any of its wholly owned Subsidiaries or (iii) redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company Securities or any Company Subsidiary Securities (other than acquisitions of Company Securities tendered by holders of Company RSUs or Company PSUs in the ordinary course of business consistent with past practice to satisfy obligations to pay the Tax withholding obligations with respect thereto in accordance with their terms as in effect as of the date of settlement);

(c)            (i) issue, deliver or sell, or authorize the issuance, delivery or sale of, any shares of any Company Securities or Company Subsidiary Securities, other than the issuance of (A) any Company Subsidiary Securities to the Company or any other Subsidiary of the Company or (B) any shares of Company Stock upon the settlement of Company RSUs or Company PSUs and as required pursuant to the terms of the Company Stock Plan governing such awards as in effect as of the date of settlement or (ii) amend any term of any Company Security (including, for the avoidance of doubt, the Earnout Shares or Lock-Up Shares) or any Company Subsidiary Security (in each case, whether by merger, consolidation or otherwise);

(d)            incur any capital expenditures or any obligations or liabilities in respect thereof, other than capital expenditures or any obligations or liabilities in respect thereof in an amount not exceeding $150,000 in the aggregate;

(e)            acquire (by merger, consolidation, acquisition of stock or assets or otherwise), directly or indirectly, any assets, securities, properties, interests or businesses, other than acquisitions (not including acquisitions of securities, interests or businesses) in the ordinary course of business of the Company and its Subsidiaries in a manner that is consistent with past practice;

(f)            sell, lease or otherwise transfer, or create or incur any Lien (other than Permitted Liens) on, any of the Company’s or its Subsidiaries’ assets, securities, properties, interests or businesses, other than (i) sales of obsolete equipment in the ordinary course of business consistent with past practice, (ii) Intellectual Property Rights, which are exclusively addressed in Section 6.01(k), (iii) sales, leases, licenses or other dispositions of assets in the ordinary course of business consistent with past practice that both (x) have a fair market value not in excess of $200,000 in the aggregate and (y) individually or in the aggregate, are not otherwise material to the business of the Company or its Subsidiaries as currently conducted or as proposed to be conducted, or (iv) pursuant to Contracts specifically disclosed on Section 4.20(a)(vii) of the Company Disclosure Schedule as in effect on the date hereof;

(g)            make any loans, advances or capital contributions to, or investments in, any other Person, other than (i) loans, advances or capital contributions to, or investments in, wholly owned Subsidiaries of the Company, (ii) advances to its employees in respect of travel or other related business expenses, (iii) participant loans under the Company’s 401(k) plan in the ordinary course of business consistent with past practice and pursuant to the terms of the Company’s 401(k) plan as in effect as of the date hereof and (iv) extensions of credit to customers, in each case in the ordinary course of business consistent with past practice;

(h)            create, incur, assume, suffer to exist or otherwise be liable with respect to any indebtedness for borrowed money or guarantees thereof, other than with respect to available capacity pursuant to a revolving credit facility as in effect as of the date hereof;

(i)            other than in the ordinary course of business consistent with past practice, enter into, amend or modify in any material respect or terminate any Material Contract or otherwise waive, release or assign any material rights, claims or benefits of the Company or any of its Subsidiaries;

(j)            except as required by Applicable Law or the terms of an Employee Plan as in effect on the date hereof, (i) grant or increase any severance, retention or termination pay to, or enter into or amend any retention, termination, employment, consulting, bonus, change in control or severance agreement with, any current or former Service Provider, (ii) increase the compensation or benefits provided to any current or former Service Provider, except for merit or promotion increases in base salary in the ordinary course of business consistent with past practice for up to 50 current Service Providers in the aggregate with annual base cash compensation of not more than $140,000, but in no event to exceed 5% on an individual basis, (iii) grant any equity, equity-based or other incentive awards to, or discretionarily accelerate the vesting, performance achievement or performance-period end date, payment or exercisability of any such awards held by, any current or former Service Provider (or any Service Provider hired in accordance with clause (v) below) or amend or modify any such awards to provide for any “single-trigger” or “double-trigger” acceleration provisions, (iv) establish, adopt, enter into, materially amend or terminate any Employee Plan or Collective Bargaining Agreement, except for (A) changes made to welfare plans in the ordinary course of business consistent with past practice in conjunction with annual renewals of welfare benefits that do not materially increase the cost of maintain such plans or (B) the entry into offer letters or similar agreements in the ordinary course of business consistent with past practice in connection with hiring permitted by clause (v) below (provided that such offer letters and similar agreements shall be on a form consistent with that made available to Parent prior to the date hereof and shall not otherwise provide for any severance, change in control or similar payments or benefits), or (v) hire or terminate (other than for cause) any Service Provider (other than the hiring to fill a vacancy of an existing position or termination in the ordinary course of business, in each case, of any Service Provider with annual base cash compensation of not more than $140,000);

(k)            transfer, sell, assign, lease, license, dispose of, or abandon or permit to lapse any material Owned Intellectual Property Rights, or fail to take any action necessary to maintain, defend, enforce or protect any such material Owned Intellectual Property Rights, in each case other than non-exclusive licenses granted in the ordinary course of business;

(l)             update, modify, revise or otherwise change (i) any external privacy policy of the Company or (ii) any internal policies or procedures of the Company relating to Personal Information or the collection, storage, use, sharing, disposal or other processing thereof, in each case, other than (A) to the extent required under Applicable Data Protection Laws, (B) to remediate any security issue, (C) to enhance data privacy, security, or integrity or (D) as recommended, directed or required by any Governmental Authority;

(m)           change the Company’s methods of accounting, except as required by Applicable Law or GAAP;

(n)            settle, or offer or propose to settle, any Legal Proceeding involving or against the Company or any of its Subsidiaries, other than any such settlement (i) involving only the payment of cash which amounts (including costs and expenses associated with such Legal Proceeding) are fully covered by insurance coverage maintained by the Company or any of its Subsidiaries (other than with respect to deductibles and ancillary costs and expenses), (ii) for an amount not materially in excess of the amount, if any, reflected or reserved in the Company Balance Sheet or (iii) involving only the payment of cash in an amount not exceeding $100,000 individually or $300,000 in the aggregate, and in each case of clauses (ii)-(iii), which does not include any admission of liability of the Company or any of its Subsidiaries and pursuant to which the Company and its Subsidiaries receive a full release of claims;

(o)            enter into any new line of business;

(p)            make or change any material Tax election, change any annual Tax accounting period, adopt or change any method of Tax accounting, file any material amended Tax Returns that could reasonably be expected to increase the Taxes payable by the Company or its Subsidiaries, enter into any material closing agreement, settle or compromise any material Tax claim, audit, investigation, proceeding or assessment, surrender or settle any right to claim a material Tax refund, offset or other reduction in Tax liability or consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment; or

(q)            agree, resolve or commit to do any of the foregoing.

Notwithstanding the foregoing, nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, control and supervision over its and its Subsidiaries’ respective operations.

Section 6.02         Stockholder Consent; Information Statement Filing; Information Supplied.

(a)            Immediately after the execution of this Agreement and in lieu of calling a meeting of the Company Stockholders, the Company shall submit the Written Consent, in the form attached hereto as Exhibit B, to record holders of at least 51% of the outstanding shares of Company Stock as of the date hereof, including the holders set forth on Schedule A-3, and shall use its best efforts to cause such holders to execute and deliver the Written Consent. As soon as practicable upon receipt of the Written Consent, executed by holders of at least 51% of the outstanding shares of Company Stock as of the date hereof, by the Company, the Company will provide Parent with a copy of such Written Consent, certified as true and complete by the corporate secretary of the Company. Upon delivery to the Company of the Written Consent executed by holders of at least 51% of the outstanding shares of Company Stock as of the date hereof, the Company Stockholder Approval shall be deemed to have been received for all purposes of this Agreement.

(b)            In connection with the Company Stockholder Approval, the Company shall take all actions necessary or advisable to comply, and shall comply in all respects, with Delaware Law, including Section 228 and Section 262 thereof, and the organizational documents of the Company.

(c)            The Company shall prepare and file with the SEC, as promptly as reasonably practicable after the date of receipt of the Written Consent (but in no event later than the 15th Business Day following the date of receipt of the Written Consent), with the assistance and cooperation of NICE, Parent and Xxxxxx Xxxxxxxxxx as reasonably requested by the Company, a written information statement of the type contemplated by Rule 14c-2 of the Exchange Act containing (i) the information specified in Schedule 14C under the Exchange Act concerning the Company Stockholder Approval and the Merger, (ii) the notice of action by written consent required by Section 228(e) of Delaware Law and (iii) the notice of availability of appraisal rights and related disclosure required by Section 262 of Delaware Law (including any amendment or supplement thereto, the “Information Statement”). The Company shall provide Parent with a reasonable opportunity to review drafts of the Information Statement and will consider in good faith any comments provided by Parent in connection with such review.

(d)            The Company shall promptly notify Parent, and Parent shall promptly notify the Company, as applicable, of the receipt of all comments from the SEC with respect to the Information Statement and of any request by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide to the other party copies of all correspondence between such party and/or any of its Representatives and the SEC with respect to the Information Statement, as applicable. Each of the Company and Parent shall provide Parent and the Company, as applicable, and their respective outside legal counsel and other Representatives a reasonable opportunity to participate in any material discussions or meetings with the SEC (or portions of any such discussions or meetings) with respect to the Information Statement. The Company and Parent shall use their respective reasonable best efforts to promptly provide responses to the SEC with respect to all comments received on the Information Statement from the SEC, and the Company shall cause the definitive Information Statement to be mailed (including by electronic delivery if permitted) to the Company Stockholders as promptly as possible after confirmation from the SEC that it will not review, or that it has completed its review of, the Information Statement, which confirmation will be deemed to occur if the SEC has not affirmatively notified the Company prior to the tenth calendar day after filing the Information Statement that the SEC will or will not be reviewing the Information Statement.

(e)            The Company agrees, as to itself and its Subsidiaries, that the Information Statement will comply in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. The Company, NICE, Parent and Merger Subsidiary shall ensure that none of the information supplied by it for inclusion in the Information Statement will, at the date of mailing (including by electronic delivery if permitted) to stockholders of the Company, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company assumes no responsibility with respect to information supplied in writing by or on behalf of NICE, Parent, their respective Affiliates or its or their respective Representatives for inclusion or incorporation by reference in the Information Statement. If any information relating to the Company or Parent, or any of their respective Affiliates or its or their respective Representatives, should be discovered by a party, which information should be set forth in an amendment or supplement to the Information Statement, as applicable, so that either the Information Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall as promptly as practicable following such discovery notify the other party or parties (as the case may be) and after such notification, as and to the extent required by applicable Law, (i) the Company shall promptly prepare (with the assistance of Parent as provided for in this Section 6.02) an amendment or supplement to the Information Statement, and/or (ii) the Company shall cause the Information Statement as so amended or supplemented to be filed with the SEC and to be disseminated to its stockholders.

Section 6.03      Proxy Statement; Company Stockholder Meeting. If, and only if, the Written Consent is not obtained as provided in Section 6.02(a) and Parent has not exercised its right to terminate this Agreement pursuant to Section 10.01(c)(ii), in each case within ten days after the date of this Agreement, then promptly as reasonably practicable:

(a)            Proxy Statement. The Company (with the assistance and cooperation of NICE, Parent and Merger Subsidiary as reasonably requested by the Company) shall prepare and file with the SEC a preliminary proxy statement (as amended or supplemented, the “Proxy Statement”) relating to the Company Stockholder Meeting. Subject to Section 6.04, the Company shall include the Company Board Recommendation in the Proxy Statement.

(b)            Other Required Company Filing. If the Company determines that it is required to file any document other than the Proxy Statement with the SEC in connection with the Merger pursuant to applicable Law (such document, as amended or supplemented, an “Other Required Company Filing”), then the Company (with the assistance and cooperation of NICE, Parent and Merger Subsidiary as reasonably requested by the Company) shall prepare and file such Other Required Company Filing with the SEC as promptly as reasonably practicable. The Company shall use its reasonable best efforts to cause the Proxy Statement and any Other Required Company Filing to comply as to form in all material respects with the applicable requirements of the Exchange Act and the rules of the SEC and Nasdaq. Except in connection with a Company Board Recommendation Change or thereafter, the Company may not file the Proxy Statement or any Other Required Company Filing with the SEC without providing Parent and its counsel, to the extent practicable, a reasonable opportunity to review and comment thereon, and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the other parties or their respective counsel.

(c)            Furnishing Information. Each of the Company, on the one hand, and NICE, Parent and Merger Subsidiary, on the other hand, shall furnish all information concerning it and its Affiliates, if applicable, as the other party may reasonably request in connection with the preparation and filing with the SEC of the Proxy Statement and any Other Required Company Filing. If at any time prior to the Company Stockholder Meeting any information relating to the Company, NICE, Parent, Merger Subsidiary or any of their respective Affiliates should be discovered by the Company, on the one hand, or NICE, Parent or Merger Subsidiary, on the other hand, that should be set forth in an amendment or supplement to the Proxy Statement or any Other Required Company Filing, as the case may be, so that such filing would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the party that discovers such information shall promptly notify the other, and an appropriate amendment or supplement to such filing describing such information shall be promptly prepared and filed with the SEC by the appropriate party hereto and, to the extent required by applicable law or the SEC or its staff, disseminated to the Company Stockholders.

(d)            Consultation Prior to Certain Communications. Except with respect to, or following, an Adverse Recommendation Change, the Company and its Affiliates, on the one hand, and NICE, Parent, Merger Subsidiary and their respective Affiliates, on the other hand, shall use reasonable best efforts to provide the other party a reasonable opportunity to review and comment on any written communication with the SEC or its staff with respect to the Proxy Statement or any Other Required Company Filing, as the case may be, and each party hereto shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the other parties or their respective counsel.

(e)            Notices. The Company, on the one hand, and NICE, Parent and Merger Subsidiary, on the other hand, shall advise the other, promptly after it receives notice thereof, of (i) any receipt of a request by the SEC or its staff for any amendment or revisions to the Proxy Statement or any Other Required Company Filing, as the case may be; (ii) any receipt of comments from the SEC or its staff on the Proxy Statement or any Other Required Company Filing, as the case may be; or (iii) any receipt of a request by the SEC or its staff for additional information in connection with the items covered in clauses (i) and (ii) above.

(f)            Dissemination of Proxy Statement. Subject to applicable Law, the Company shall use its reasonable best efforts to cause the Proxy Statement to be disseminated to the Company Stockholders as promptly as reasonably practicable following the filing thereof with the SEC and confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement.

(g)            Company Stockholder Meeting.

(i)            Calling of Company Stockholder Meeting. Subject to Section 6.04, following the clearance of the Proxy Statement by the SEC, the Company shall mail the Proxy Statement to the Company Stockholders and duly call and hold a meeting of its stockholders (the “Company Stockholder Meeting”) as promptly as reasonably practicable following the mailing of the Proxy Statement to the Company Stockholders for the purpose of obtaining the Company Stockholder Approval; provided, however, that in no event shall the Company be required to hold the Company Stockholder Meeting prior to the thirtieth day following the mailing of the Proxy Statement.

(ii)            Adjournment of Company Stockholder Meeting. Notwithstanding anything to the contrary in this Agreement, nothing will prevent the Company from postponing or adjourning the Company Stockholder Meeting (i) to allow additional solicitation of votes in order to obtain the Company Stockholder Approval; (ii) if there are holders of an insufficient number of shares of the Company Stock present or represented by proxy at the Company Stockholder Meeting to constitute a quorum at the Company Stockholder Meeting; (iii) if the Company is required to postpone or adjourn the Company Stockholder Meeting by applicable Law or a request from the SEC or its staff; or (iv) in order to give the Company Stockholders sufficient time to evaluate any information or disclosure that the Company has sent to the Company Stockholders or otherwise made available to the Company Stockholders (including in connection with any Company Board Recommendation Change).

Section 6.04      No Solicitation; Other Offers.

(a)            General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (in their capacities as representatives of the Company) to, directly or indirectly, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) withdraw, modify or fail to make in a manner adverse to Parent the Company Board Recommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), an “Adverse Recommendation Change”); provided, that none of (A) the factually accurate disclosure by the Company of the receipt of an Acquisition Proposal, (B) the determination by the Board of Directors (or a committee thereof) that an Acquisition Proposal constitutes a Superior Proposal; or (C) the delivery by the Company of any notice contemplated by Section 6.04(c) will constitute an Adverse Recommendation Change, (iv) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, other than (A) in connection with a bona fide Acquisition Proposal or (B) to the extent the Board of Directors (or any committee thereof) has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal. It is agreed that any violation of the restrictions on the Company set forth in this Section 6.04 by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section by the Company.

(b)            Exceptions. Notwithstanding Section 6.04(a), at any time prior to the receipt of the Company Stockholder Approval:

(i)            the Company, directly or indirectly through its Representatives, may (A) engage in negotiations or discussions with any Third Party and its Representatives that, subject to the Company’s compliance with Section 6.04, has made after the date of this Agreement a bona fide, written Acquisition Proposal that the Board of Directors of the Company determines in good faith constitutes, or would reasonably be expected to lead to, a Superior Proposal and (B) furnish to such Third Party or its Representatives non-public information relating to the Company or any of its Subsidiaries, and afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries, pursuant to a confidentiality agreement with such Third Party with terms in all material respects no less favorable to the Company than those contained in the confidentiality agreement dated March 13, 2023 between the Company and NICE (the “Confidentiality Agreement”); provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party (subject to applicable Law and any applicable “clean team” or similar arrangement);

(ii)           subject to compliance with Section 6.04(d), the Board of Directors of the Company may make an Adverse Recommendation Change (A) following receipt of a Superior Proposal or (B) in response to an Intervening Event; and

(iii)          subject to compliance with the procedures set forth in Section 10.01(d)(i), the Company may terminate this Agreement to enter into a definitive agreement with respect to a Superior Proposal;

in each case referred to in the foregoing clauses (i), (ii) and (iii), only if the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Delaware Law.

(c)            Required Notices. The Company shall notify Parent promptly (but in no event later than 48 hours) after receipt by the Company (or any of its Representatives) of any written (or, in the case of receipt by the Company or any of its directors, officers or investment bankers, oral) Acquisition Proposal. The Company shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal, indication or request (unless such identification is prohibited pursuant to the terms of any confidentiality agreement with such Third Party in effect prior to the date of this Agreement). The Company shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such Acquisition Proposal. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of the Company’s compliance with this Section 6.04(c).

(d)            “Last Look”. Further, the Board of Directors of the Company shall not make an Adverse Recommendation Change in response to an Acquisition Proposal (or terminate this Agreement pursuant to Section 10.01(d)(i)), unless (i) the Company notifies Parent (which notice shall not constitute an Adverse Recommendation Change), in writing at least three Business Days before taking that action, of its intention to do so (such period, the “Negotiation Period”), attaching (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of the Third Party making the Acquisition Proposal, or (B) in the case of an Adverse Recommendation Change to be made in response to an Intervening Event, a reasonably detailed description of the reasons for making such Adverse Recommendation Change, and (ii) Parent does not, as determined by the Board of Directors of the Company in good faith, make, within three Business Days after its receipt of that written notification, an offer that (A) in the case of an Adverse Recommendation Change to be made following receipt of a Superior Proposal, is at least as favorable to the stockholders of the Company from a financial point of view as such Superior Proposal; provided, that in the event there is any material modification to the terms of any such Superior Proposal (including any modification in the amount, form or mix of consideration proposed to be payable to the Company’s stockholders pursuant to such Superior Proposal), the Company shall have provided to Parent a notice of such modification and such Superior Proposal shall be deemed a new Superior Proposal to which the requirements of this Section 6.04(d) shall apply; provided, further that with respect to such new Superior Proposal, the Negotiation Period shall be deemed to be a two Business Day period rather than a three Business Day period (except that such Negotiation Period shall not expire earlier than the original Negotiation Period would have expired) or (B) in the case of an Adverse Recommendation Change to be made in response to an Intervening Event, obviates the need for such recommendation change.

(e)            Obligation to Terminate Existing Discussions. The Company shall, and shall cause its Subsidiaries and its and their Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives conducted prior to the date hereof with respect to any Acquisition Proposal. The Company shall promptly request that each Third Party, if any, that has executed a confidentiality agreement within the twelve-month period prior to the date hereof in connection with its consideration of any Acquisition Proposal and that is in possession of confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries to return or destroy all such confidential information (and those portion of all analyses and other materials prepared by or on behalf of such Person that contains, reflects or analyzes that information).

(f)            Nothing contained in this Agreement shall prohibit the Board of Directors of the Company from (i) complying with its disclosure obligations under United States federal or state law with regard to an Acquisition Proposal, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9, 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act, it being agreed that the making of such communication shall not be an Adverse Recommendation Change or (iii) making any disclosure to the Company’s stockholders that is required by Applicable Law; provided, however, that any such disclosure or communication that constitutes or contains an Adverse Recommendation Change shall only be made in accordance with Section 6.04.

Section 6.05      Access to Information. Subject to the last sentence of this Section 6.05, from the date hereof until the Effective Time and subject to Applicable Law and the Confidentiality Agreement, upon reasonable written prior notice and subject to restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, the Company shall (i) give to Parent, its counsel, financial advisors, auditors and other authorized Representatives reasonable access during normal business hours to the offices, properties, books and records and personnel of the Company and its Subsidiaries for purposes that are reasonably necessary for the consummation of the Merger or for planning with respect to post-closing integration, operations or value creation, and (ii) promptly provide Parent, its counsel, financial advisors, auditors and other authorized Representatives with all reasonably requested information regarding the business of the Company and such additional information, including the financial and operating data set forth on Section 6.05 of the Company Disclosure Schedule, regarding the Company for purposes that are reasonably necessary for the consummation of the Merger or for planning with respect to post-closing integration, operations or value creation. Any investigation pursuant to this Section 6.05 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or its Subsidiaries. No information or knowledge obtained in any investigation pursuant to this Section 6.05 shall affect or be deemed to modify any representation or warranty made by any party hereunder. Notwithstanding anything herein to the contrary, under no circumstances shall the Company, its Subsidiaries or their respective Representatives be required to furnish any person with, or be required to provide access to any person to, information to the extent that (a) any Applicable Law requires the Company to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company or any of its Subsidiaries is a party or is otherwise bound would violate, or cause a default payment to, or give a third Person the right to terminate or accelerate rights pursuant to, such Contract; (d) such access would result in the disclosure of any Trade Secrets of any Third Party (including source code); or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided, however, that in such instances, the Company shall inform Parent of the general nature of the information being withheld and, upon Parent’s request, reasonably cooperate with Parent to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (a) through (e). Nothing in this Section 6.05 shall be construed to require the Company, any of its Subsidiaries or any of their respective Representatives to prepare any reports, analysis, appraisals, options or other information in addition to the reports, analysis, appraisals, options or other information already being prepared by the Company, any of its Subsidiaries or any of their respective Representatives. Any access to the properties of the Company and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive or subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media. Notwithstanding anything herein to the contrary, NICE, Parent and Merger Subsidiary shall not, and shall cause their respective Representatives not to, contact any employee, independent contractor or other service provider of the Company or any of its Subsidiaries not involved in the negotiation of the transactions contemplated by this Agreement or any customer, technology or other partner, vendor or supplier of the Company in connection with the Merger or any of the other transactions contemplated by this Agreement, in each case, without the Company’s prior written consent (not to be unreasonably withheld, conditioned or delayed), and NICE, Parent and Merger Subsidiary acknowledge and agree that any such contact may, at the Company’s option, be arranged and supervised by Representatives of the Company. All requests for access pursuant to this Section 6.05 must be directed to the General Counsel of the Company, the Company’s outside counsel retained in connection with this Agreement or other Person designated by the Company.

Section 6.06      Stockholder Litigation. Until the earlier of the termination of this Agreement in accordance with its terms or the Effective Time, the Company will promptly provide Parent with any pleadings and correspondence received by the Company relating to any Transaction Litigation and will keep Parent reasonably informed regarding the status of any such litigation or dispute. The Company will cooperate with and, to the extent reasonably practicable, give Parent the opportunity to consult and participate with respect to the defense or settlement of any such proceeding (at Parent’s expense), and the Company will not agree to any such settlement without the prior written consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed. For purposes of this Section 6.06, “participate” means that the Company shall keep Parent reasonably apprised of the proposed strategy and other significant decisions with respect to any Transaction Litigation (to the extent that the attorney-client privilege is not undermined or otherwise adversely affected), and Parent may offer comments or suggestions with respect to such Transaction Litigation which the Company shall consider in good faith, but Parent shall not be afforded decision-making power or authority.

Section 6.07      Tax Matters. The payment of any transfer, documentary, sales, use, stamp, registration, value added and other Taxes and fees (including any penalties and interest) incurred solely by a holder of Company Stock in connection with the Mergers, and the filing of any related Tax Returns and other documentation with respect to such Taxes and fees, shall be the sole responsibility of such holder.

Section 6.08      Cooperation Regarding Termination of PNC Credit Agreement. The Company shall, and shall cause its Subsidiaries and the Company’s and its Subsidiaries’ Representatives to, reasonably cooperate as may be requested by Parent in connection with discharging in full all Obligations (as defined in the PNC Credit Agreement) and terminating all Liens granted under or in connection with the PNC Credit Agreement effective as of the Closing, including, without limitation, obtaining customary payoff letters, lien terminations and instruments of discharge to be delivered on the Closing Date to allow for the payoff, discharge and termination in full on the Closing of the PNC Credit Agreement.

Article 7
Covenants of Parent

Parent agrees that:

Section 7.01      Obligations of Merger Subsidiary. Parent shall take all action necessary to cause Merger Subsidiary to perform its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement. Parent shall execute and deliver, in accordance with Section 228 of the Delaware Law and in its capacity as the sole stockholder of Merger Subsidiary, a written consent adopting this Agreement and approve the Merger in accordance with Delaware Law.

Section 7.02      Director and Officer Liability. Parent shall cause the Surviving Corporation, and the Surviving Corporation hereby agrees, to do the following:

(a)            For six years after the Effective Time, the Surviving Corporation and its Subsidiaries shall indemnify and hold harmless the present and former directors, officers, employees or agents of the Company or any of its Subsidiaries (and any person who becomes a director, officer, employee or agent of the Company or any of its Subsidiaries prior to the Effective Time) (each, an “Indemnified Person”) to the fullest extent permitted by Delaware Law, any other Applicable Law or provided under the Company’s certificate of incorporation and bylaws in effect on the date hereof from and against any costs, fees and expenses (including attorneys’ fees and investigation expenses), judgments, fines, penalties, losses, claims, damages, liabilities and amounts paid in settlement or compromise in connection with any Legal Proceeding, whether civil, criminal, administrative or investigative, whenever asserted, to the extent that such Legal Proceeding arises, directly or indirectly, out of or pertains, directly or indirectly, to (i) the fact that an Indemnified Person is or was a director, officer, employee or agent of the Company or such Subsidiary; (ii) any action or omission, or alleged action or omission, taken in such Indemnified Person’s capacity as a director, officer, employee or agent of the Company or any of its Subsidiaries, or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a director, officer, employee, agent, trustee or fiduciary of another Person (including any employee benefit plan)) prior to the Effective Time; and (iii) the Merger, as well as any actions taken by the Company, Parent or Merger Subsidiary with respect thereto, except that if, at any time prior to the sixth anniversary of the Effective Time, any Indemnified Person delivers to Parent a written notice asserting a claim for indemnification pursuant to this Section 7.02(a), then the claim asserted in such notice will survive the sixth anniversary of the Effective Time until such claim is fully and finally resolved; provided that such indemnification shall be subject to any limitation imposed from time to time under Applicable Law.

(b)            For six years after the Effective Time, Parent shall cause to be maintained in effect provisions in the Surviving Corporation’s certificate of incorporation and bylaws (or in such documents of any successor to the business of the Surviving Corporation) regarding exculpation, indemnification and expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions of the Company’s and its Subsidiaries’ organizational documents in existence on the date of this Agreement.

(c)            Prior to the Effective Time, the Company shall, or, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for the non-cancellable extension of the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), in each case for a claims reporting or discovery period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the Effective Time with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies with respect to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against a director or officer of the Company or any of its Subsidiaries by reason of him or her serving in such capacity that existed or occurred at or prior to the Effective Time (including in connection with this Agreement or the transactions or actions contemplated hereby); provided that the Company shall give Parent a reasonable opportunity to participate in the selection of such tail policy and the Company shall give reasonable and good faith consideration to any comments made by Parent with respect thereto; and provided further that in no event shall the Company expend for such policies an aggregate premium amount in excess of 300% of the amount per annum the Company paid in its last full fiscal year, which amount is set forth in Section 7.02(c) of the Company Disclosure Schedule (the “Maximum Amount”). If the Company or the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, the Surviving Corporation shall continue to maintain in effect, for a period of at least six years from and after the Effective Time, the D&O Insurance in place as of the date hereof with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company’s existing policies as of the date hereof, or the Surviving Corporation shall purchase comparable D&O Insurance for such six-year period with terms, conditions, retentions and limits of liability that are no less favorable than as provided in the Company’s existing policies as of the date hereof; provided that in no event shall Parent or the Surviving Corporation be required to expend for such policies pursuant to this sentence an aggregate premium amount in excess of the Maximum Amount; and provided further that if the aggregate premiums of such insurance coverage exceed such amount, the Surviving Corporation shall be obligated to obtain a policy with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.

(d)            If Parent, the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 7.02.

(e)            The rights of each Indemnified Person under this Section 7.02 shall be in addition to any rights such Person may have under the certificate of incorporation or bylaws of the Company or any of its Subsidiaries, or under Delaware Law or any other Applicable Law or under any agreement of any Indemnified Person with the Company or any of its Subsidiaries (the “Indemnification Agreements”). These rights, including the Indemnification Agreements, shall survive consummation of the Merger and are intended to benefit, and shall be enforceable by, each Indemnified Person and shall not be terminated or modified in such a manner as to adversely affect in any material respect any Indemnified Person without the consent of such affected Indemnified Person, subject to Applicable Law.

Section 7.03      Employee Matters.

(a)            During the period beginning at the Effective Time and ending on the first anniversary of the Closing Date (or if earlier, until the date of any Covered Employee’s termination of employment), Parent shall, or shall cause its Subsidiaries to, provide to each employee who is actively employed by the Company or its Subsidiaries at the Effective Time (each, a “Covered Employee”), (i) a base salary or rate of pay that is at least equal to such Covered Employee’s base salary or rate of pay immediately prior to the Effective Time and (ii) employee benefits that are substantially comparable in the aggregate to the employee benefits (other than equity compensation and other long-term incentives, change in control, retention, transition, stay or similar arrangements, severance protection, nonqualified deferred compensation or defined benefit pensions) that are provided to similarly situated employees of Parent or its Affiliates. For the avoidance of doubt, if the Closing occurs prior to such time as the annual cash bonuses in respect of the Company’s 2023 fiscal year are paid, then Parent shall cause the Surviving Corporation to pay such bonuses following the Closing in accordance with the Company’s policies in effect as of the date of this Agreement and ‎Section 7.03(a) of the Company Disclosure Schedule; provided that the aggregate amount of such bonuses shall not exceed the amount provided for 2023 annual cash bonuses set forth in the Company’s budget for 2023, as previously provided to Parent prior to the date hereof.

(b)            Crediting of Payments. In the event any Covered Employee first becomes eligible to participate under any employee benefit plan, program, policy or arrangement of Parent or any of its Subsidiaries (each, a “Parent Plan”) following the Effective Time, Parent shall, or shall cause its Subsidiaries to use reasonable best efforts to: (i) waive any preexisting condition exclusions and waiting periods with respect to participation and coverage requirements applicable to such Covered Employee (and any eligible dependents thereof) under any Parent Plan providing medical, dental or vision benefits to the same extent such limitation would have been waived or satisfied under the Employee Plan such Covered Employee participated in immediately prior to coverage under such Parent Plan and (ii) provide such Covered Employee with credit for any copayments, coinsurance and deductibles paid under an Employee Plan prior to such Covered Employee’s coverage under any Parent Plan during the calendar year in which such amount was paid, to the same extent such credit was given under the Employee Plan such Covered Employee participated in immediately prior to coverage under such Parent Plan in satisfying any applicable deductible or out-of-pocket requirements under such Parent Plan.

(c)            Service Crediting. As of the Effective Time, Parent shall, or shall cause its Subsidiaries to, recognize all service of each Covered Employee prior to the Effective Time with the Company and its Subsidiaries (or any predecessor entities of either to the extent the Company or one of its Subsidiaries provides such past-service credit under a similar Employee Plan) for purposes of vesting and eligibility and for purposes of future vacation accrual and determining severance amounts (if any). In no event shall anything contained in this Section 7.03(c) result in any duplication of benefits for the same period of service.

(d)            Company 401(k) Plans. Unless otherwise directed by Xxxxxx in writing no later than five Business Days prior to the Closing Date, the Company’s Board of Directors shall adopt board consents (the form of which shall be subject to Parent’s reasonable prior review and comment) terminating the Company’s 401(k) Plan (the “Company 401(k) Plan”) effective as of the calendar day prior to the Closing Date. In connection with a termination of the Company 401(k) Plan, Parent shall permit each Covered Employee to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) in cash and notes associated with plan loans in an amount equal to the eligible rollover distribution portion of the account balance distributed to each such Covered Employee from the Company 401(k) Plan to an “eligible retirement plan” (within the meaning of Section 401(a)(31) of the Code) of Parent or any of its Subsidiaries. Parent shall also allow Continuing Employees to participate under a 401(k) plan sponsored by Parent or its Affiliates as soon as reasonably practicable following the Closing Date.

(e)             Without limiting the generality of Section 11.06, nothing in this Section 7.03, express or implied, (i) is intended to or shall confer upon any Person other than the parties hereto, including any Covered Employee or any former Service Provider, any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, (ii) shall establish, or constitute an amendment, termination or modification of, or an undertaking to amend, establish, terminate or modify, any benefit plan, program, agreement or arrangement, (iii) shall alter or limit the ability of Parent or any of its Subsidiaries (or, following the Effective Time, the Company or any of its Subsidiaries) to amend, modify or terminate any benefit plan, program, agreement or arrangement at any time assumed, established, sponsored or maintained by any of them or (iv) shall create any obligation on the part of Parent or its Subsidiaries (including, following the Effective Time, the Company or any of its Subsidiaries) to employ any Covered Employee for any period following the Closing Date.

(f)             Five Business Days prior to the Closing Date, the Company will make available to Parent a revised version of the Employee Census and Equity Award Schedule, in each case updated as of such date.

(g)            The Company shall use reasonable commercial efforts to provide to Parent on or prior to October 24, 2023 copies of each material International Plan and all amendments thereto, as well as documents that are substantially comparable to those set forth in ‎Section 4.17(a) for U.S. Plans (taking into account differences in Applicable Law and practices).

Article 8
Covenants of Parent, NICE and the Company

The parties hereto agree that:

Section 8.01      Reasonable Best Efforts.

(a)            Subject to the terms and conditions of this Agreement, the Company, NICE and Parent shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under Applicable Law to consummate the transactions contemplated by this Agreement, including (i) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement; provided that the parties hereto understand and agree that the reasonable best efforts of Parent and NICE shall not be deemed to require Parent or NICE to, and, without the prior written consent of Parent, the Company shall not, (A) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the transactions contemplated hereby or (B) sell, divest or otherwise hold separate (including by establishing a trust or otherwise), or take any other action (or otherwise agree to do any of the foregoing), in each case of clauses (A) and (B), (1) with respect to any of NICE’s or its Subsidiaries’ businesses, assets or properties or (2) with respect to any of the Company’s or its Subsidiaries’ businesses, assets or properties, (unless, in the case of this clause (2) only, such action would not reasonably be expected to be, individually or in the aggregate, adverse in any material respect to the Company and its Subsidiaries, taken as a whole) or (C) litigate against any Governmental Authority. NICE shall control the timing and submission of information to Governmental Authorities in connection with efforts to obtain approvals, consents, registrations, permits, authorizations and other confirmations; provided that each of NICE and the Company shall (i) cooperate in all respects and consult with each other in connection with filings, including by providing each other with information as may reasonably be required to prepare any filings or submissions and by allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and by considering in good faith such other party’s views, (ii) to the extent not prohibited by Applicable Law, promptly inform the other party of any written or oral communication received by such party from, or given by such party to, Governmental Authorities, including by promptly providing copies to the other party of any such written communications and (iii) permit the other party to review in advance any communication that it gives to, and consult with each other in advance of any meeting, substantive telephone call or conference with Governmental Authorities, and to the extent not prohibited by a Governmental Authority, give the other party the opportunity to attend and participate in any in-person meetings with that Governmental Authority. Notwithstanding the foregoing, materials required to be provided pursuant to this Section 8.01 may be redacted to remove references (x) concerning the valuation of the Company, (y) as necessary to comply with contractual arrangements and (z) as necessary to comply with Applicable Law. Each party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material as “outside counsel only”.

(b)             Subject to Section 8.01(a), each of NICE and the Company shall make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within three Business Days of the date hereof and to supply as promptly as practicable an appropriate response to any request for additional information and documentary material from any Governmental Authority pursuant to the HSR Act and to use their reasonable best efforts to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable.

(c)             NICE shall not, and shall cause its Affiliates not to, acquire, invest in or otherwise obtain any interest in or agree to acquire, invest in or otherwise obtain any interest in by merging or consolidating with, or by purchasing any assets of or equity in, or by any other manner, any Person or portion thereof that (i) is incorporated, has its headquarters, or conducts a substantially significant portion of its business, in the United States, (ii) provides a contact center as a service platform, including at least inbound voice applications, outbound voice applications or outbound dialing systems, and digital interaction routing and (iii) has a transaction value in excess of $100,000,000, if the entering into a definitive agreement relating to or the consummation of such acquisition, investment, purchase, merger or consolidation would reasonably be expected to materially (A) delay or (B) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement.

(d)             NICE shall be responsible for all filing fees payable to any Governmental Authority under the HSR Act and/or any other Antitrust Law in connection with the transactions contemplated by this Agreement.

(e)             Subject to Section 8.01(a), each party hereto agrees to use their reasonable best efforts with respect to any CFIUS Filing (defined below) made in connection with the transactions contemplated by this Agreement and obtaining CFIUS Clearance in connection with the transactions contemplated by this Agreement as promptly as reasonably possible after the date hereof.  Such reasonable best efforts shall include (i) as promptly as reasonably practicable providing any information to one another, or, as each party hereto reasonably determines in its sole discretion, confidentially to CFIUS, as needed to prepare and submit a joint voluntary notice pursuant to 31 C.F.R. § 800 Subpart E (a “CFIUS Filing”) or to respond to any request for information from CFIUS and (ii) reasonably cooperating with one another in connection with CFIUS’s review of the CFIUS Filing.  Without limitation of the foregoing, each party hereto agrees to (A) within three Business Days after the date hereof, submit a CFIUS Filing in respect of the transactions contemplated by this Agreement with CFIUS and engage in any informal pre-filing discussions with representatives of CFIUS with respect thereto, (B) following such pre-notice consultation, as promptly as practicable after the receipt of any comments to the draft CFIUS Filing or confirmation from CFIUS that it has no comments to such draft CFIUS Filing, and in any event no later than five Business Days following receipt of comments from CFIUS or confirmation from CFIUS that it has no comments, make the formal CFIUS Filing, (C) as promptly as practicable, comply with any request received from CFIUS for any certification, additional information, documents or other materials in respect of the CFIUS Filing or the transactions contemplated by this Agreement, in any event no later than the time frame set forth in the DPA or within a longer time frame approved by CFIUS in writing, provided that any party, after consultation with each such other party, may request in good faith an extension of time pursuant to 31 C.F.R. § 800.403(a)(3) to respond to CFIUS requests for follow-up information, provided that under no circumstance may a party request any extension that would reasonably be expected to cause CFIUS to reject the CFIUS Filing, (D) ensure that any information furnished to CFIUS is true, complete and correct in all material respects, and (E) cooperate in good faith with one another in connection with CFIUS’s review of the CFIUS Filing and the transactions contemplated by this Agreement (including, to the extent permitted by applicable law or order, or unless prohibited by reasonable request of any Governmental Authority, providing copies, or portions thereof, of all such documents to each other prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any Governmental Authority under the DPA with respect to the transactions contemplated by this Agreement. Parent will use reasonable best efforts to take any and all actions necessary, and agree to all such requirements or conditions to mitigate any national security concerns as may be requested or required by CFIUS in connection with, or as a condition of, the receipt of CFIUS Clearance, in each case, other than any actions that, individually or in the aggregate would be material in any adverse respect to (1) the Company and its Subsidiaries, taken as a whole or (2) Parent’s or NICE’s ability to control, and freedom of operation of, the Company, its Subsidiaries and their respective businesses as carried on as of the date hereof. Parent shall be responsible for payment of any filing fees in connection with the CFIUS Filing.

Section 8.02      Public Announcements.

(a)            The initial press release concerning this Agreement and the Merger shall be a joint press release reasonably acceptable to the Company and Parent and will be issued promptly following the execution and delivery of this Agreement.

(b)            Parent, NICE and Merger Subsidiary shall consult with the Company in good faith before issuing any press release, having any communication with the press (whether or not for attribution) or making any other public statement in connection with this Agreement and the transactions contemplated hereby. The Company shall not issue any press release, have any communication with the press (whether or not for attribution), make any other public statement (including any broad-based communication to employees, suppliers, customers, partners or vendors) or schedule any press conference or conference call with investors or analysts with respect to this Agreement or the transactions contemplated hereby without the consent of Parent, which consent shall not be unreasonably withheld, conditioned or delayed.

(c)            The restrictions on the Company set forth in this ‎Section 8.02 shall not apply to any release or public statement (i) required by Applicable Law or any applicable listing authority (in which case the Company shall use reasonable best efforts to (x) consult with Parent prior to making any such disclosure and (y) cooperate (at Parent's expense) in connection with Parent’s efforts to obtain a protective order), or (ii) made or proposed to be made by the Company in compliance with ‎Section 6.04 with respect to the matters contemplated by ‎Section 6.04 (or by Parent in response thereto). Notwithstanding the foregoing, the Company will not be obligated to obtain Parent’s consent with respect to communications that are (i) principally directed to its employees, suppliers, customers, partners or vendors so long as such communications are consistent with prior communications previously agreed to by Parent and the Company and do not add additional material information not included in such previous communication; (ii) related to a Superior Proposal or Adverse Recommendation Change or, in each case, any action taken pursuant thereto; (iii) with respect to any dispute or Legal Proceeding solely among the parties or their respective Affiliates; or (iv) substantively consistent with previous disclosures made by either party in compliance with this ‎Section 8.02 and that do not add additional material information not included in such previous disclosure.

Section 8.03      Further Assurances. At and after the Effective Time, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of the Company or Merger Subsidiary, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on behalf of the Company or Merger Subsidiary, any other actions and things to vest, perfect or confirm of record or otherwise in the Surviving Corporation any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger.

Section 8.04      Notices of Certain Events. Each of the Company, on the one hand, and Parent and NICE, on the other hand, shall promptly notify the other of:

(a)             any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement;

(b)             any notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement;

(c)            any actions, suits, claims, investigations or proceedings commenced or, to its knowledge, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries or Parent or any of its Subsidiaries, as the case may be, that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to any Section of this Agreement or that relate to the consummation of the transactions contemplated by this Agreement;

(d)             any inaccuracy of any representation or warranty contained in this Agreement that would reasonably be expected to cause any condition set forth in Article 9 not to be satisfied; and

(e)             any failure of that party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder that would reasonably be expected to cause any condition set forth in Article 9 not to be satisfied;

provided, that the delivery of any notice, or failure to provide such notice, pursuant to this Section 8.04 shall not affect any of the representations, warranties, covenants, rights or remedies, or the conditions to the obligations of, the parties hereunder or result in the failure of a condition set forth in Article 9.

Section 8.05      Section 16 Matters. Prior to the Effective Time, the Company shall take all steps as may be required to cause any dispositions of Company Stock (including derivative securities with respect to Company Stock) resulting from the transactions contemplated by Article 2 of this Agreement by each officer and director of the Company who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.

Section 8.06      Company Warrants.

(a)             In accordance with the provisions of Section 4.5 of the Warrant Agreement, promptly after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, send, or cause to be sent, written notice to (i) the Warrant Agent of the Merger, which notice shall set forth in reasonable detail the treatment of Company Warrants pursuant to Section 2.06 and (ii) each holder of the Company Warrants advising such holders of the effective date of the Merger and any other information required to be provided to the holders of the Company Warrants in accordance with the Warrant Agreement.

(b)            In accordance with the provisions of Section 4.4 of the Warrant Agreement, promptly following the Closing, Parent shall cause the Surviving Corporation to make public disclosure of the consummation of the Merger by filing a Current Report on Form 8-K with the SEC.

Section 8.07      Stock Exchange De-listing; Exchange Act Deregistration. Prior to the Effective Time, the Company shall cooperate with Parent and use its reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under Applicable Laws and rules and policies of the NASDAQ to enable the de-listing by the Surviving Corporation of the Company Stock, the Units and the Company Warrants from the NASDAQ and the deregistration of the Company Stock, the Units and the Company Warrants under the Exchange Act as promptly as practicable after the Effective Time (in the case of the Company Warrants, to the extent permitted by Applicable Law and rules and policies of the NASDAQ).

Section 8.08      Takeover Statutes. If any Takeover Statute shall become applicable to the transactions contemplated by this Agreement, each of the Company, Parent and Merger Subsidiary and the respective members of their boards of directors shall, to the extent permitted by Applicable Law, use reasonable best efforts to grant such approvals and to take such actions as are reasonably necessary so that the transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated herein and otherwise to take all such other actions as are reasonably necessary to eliminate or minimize the effects of any such statute or regulation on the transactions contemplated hereby.

Article 9
Conditions to the Merger

Section 9.01      Conditions to the Obligations of Each Party. The respective obligations of each of the Company, Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or waiver, if permissible under Applicable Law) on or prior to the Closing Date of the following conditions:

(a)             the Company Stockholder Approval shall have been obtained in accordance with Delaware Law;

(b)             no Applicable Law (whether temporary, preliminary or permanent) shall make consummation of the Merger illegal or otherwise prohibited;

(c)             any (i) applicable waiting period (and any extension thereof) under the HSR Act relating to the Merger shall have expired or been terminated and (ii) agreement with a Governmental Authority entered into in accordance with Section 8.01 not to consummate, or to delay consummation of, the Merger shall have expired or been terminated;

(d)             the CFIUS Clearance shall have been obtained and be in full force and effect; and

(e)             all actions by or in respect of, or filings with, any Governmental Authority required to permit the consummation of the Merger set forth on Section 9.01(e) of the Company Disclosure Schedule, shall have been taken, made or obtained.

Section 9.02      Conditions to the Obligations of Parent and Merger Subsidiary. The obligations of NICE, Parent and Merger Subsidiary to consummate the Merger are subject to the satisfaction (or waiver, if permissible under Applicable Law) on or prior to the Closing Date of the following further conditions:

(a)            (i) the Company shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (ii) (A) the representations and warranties of the Company contained in Section 4.05(a) and the second and third sentences of Section 4.05(c) (other than the information set forth on Section 4.05 of the Company Disclosure Schedule with respect to the holder and the date of grant) shall be true at and as of the Effective Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of this clause (A), only such exceptions that in the aggregate do not result in a net increase to the total amount of consideration to be paid by Parent pursuant to Article 2 by more than $800,000, (B) the Fundamental Representations that are qualified by materiality or Material Adverse Effect shall be true in all respects and the Fundamental Representations that are not qualified by materiality or Material Adverse Effect shall be true in all material respects, in each case, at and as of the Effective Time as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be true in all material respects only as of such time) and (C) the other representations and warranties of the Company set forth in Article 4 (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true only as of such time), with, in the case of this clause (C), only such exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company; and (iii) Parent shall have received a certificate signed by an executive officer of the Company certifying that the conditions set forth in Sections 9.02(a)(i) and 9.02(a)(ii) have been satisfied; and

(b)            there shall not have occurred any event, occurrence, or development of a state of circumstances or facts which, individually or in the aggregate, has had a Material Adverse Effect on the Company that is continuing or would reasonably be expected to have a Material Adverse Effect.

Section 9.03      Conditions to the Obligations of the Company. The obligations of the Company to consummate the Merger are subject to the satisfaction (or waiver, if permissible under Applicable Law) on or prior to the Closing Date of the following further conditions: (a) each of NICE, Parent and Merger Subsidiary shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Effective Time, (b) the representations and warranties of NICE, Parent and Merger Subsidiary contained in this Agreement or in any certificate or other writing delivered by Parent or Merger Subsidiary pursuant hereto (disregarding all materiality and Material Adverse Effect qualifications contained therein) shall be true and correct at and as of the Effective Time as if made at and as of such time (other than representations and warranties that by their terms address matters only as of another specified time, which shall be true and correct only as of such time), with only such exceptions as have not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Parent’s ability to consummate the Merger and the other transactions contemplated by this Agreement and (c) the Company shall have received a certificate signed by an executive officer of the Parent certifying that the conditions set forth in Sections 9.03(a) and 9.02(b) have been satisfied.

Article 10
Termination

Section 10.01      Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time (notwithstanding any approval of this Agreement by the stockholders of the Company):

(a)            by mutual written agreement of the Company and Parent; or

(b)            by either the Company or Parent, if:

(i)            the Merger has not been consummated on or before 5:00 p.m. (New York time) on April 3, 2024 (the “End Date”); provided that the right to terminate this Agreement pursuant to this Section 10.01(b)(i) shall not be available to any party (treating Parent and Merger Subsidiary as one party for this purpose) whose breach of any provision of this Agreement is the primary cause of the failure of the Merger to be consummated by such time;

(ii)           there shall be any Applicable Law permanently preventing or prohibiting the consummation of the Merger in effect and such Applicable Law shall have become final and nonappealable; provided that the right to terminate this Agreement pursuant to this Section 10.01(b)(ii) shall not be available to any party (treating Parent and Merger Subsidiary as one party for this purpose) whose breach of any provision of this Agreement is the primary cause of the issuance of such Applicable Law (including Section 8.01); or

(iii)          the Company fails to obtain the Company Stockholder Approval at the Company Stockholder Meeting (or any adjournment or postponement thereof) at which a vote is taken on the Merger; or

(i)            prior to receipt of the Company Stockholder Approval, the Board of Directors has effected an Adverse Recommendation Change; provided, that Parent may not terminate this Agreement pursuant to this Section 10.01(c)(i) if Parent fails to terminate this Agreement pursuant to this Section 10.01(c)(i) prior to 11:59 p.m., Eastern Time, on the date which is ten Business Days after Parent is notified in writing that the Board of Directors has effected an Adverse Recommendation Change;

(ii)           the Written Consent constituting the Company Stockholder Approval and signed by each of the Company Stockholders set forth on Schedule A-3 shall not have been delivered to Parent within 24 hours of the entry into this Agreement; provided that the right to terminate this Agreement pursuant to this Section 10.01(c)(ii) shall not be available following the first to occur of (A) delivery of the Written Consent constituting the Company Stockholder Approval to Parent and (B) the date that is two days following the date of this Agreement; or

(iii)          a breach of any representation or warranty or failure to perform any covenant or agreement on the part of the Company set forth in this Agreement shall have occurred that would cause the condition set forth in Section 9.02(a) not to be satisfied, and such condition is incapable of being satisfied by the End Date or, if curable, is not cured by the Company within 45 days of receipt by the Company of written notice of such breach or failure stating Parent’s intention to terminate this Agreement pursuant to this Section 10.01(c)(iii) and the basis for such termination; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 10.01(c)(iii) if, at the time of the delivery of such notice, Parent or Merger Subsidiary is in material breach of its or their representations, warranties, covenants or other obligations under this Agreement.

(d)            by the Company, if:

(i)            prior to receipt of the Company Stockholder Approval, the Board of Directors of the Company shall have made an Adverse Recommendation Change in compliance with the terms of this Agreement, including Section 6.04(d), in order to enter into a definitive, written agreement concerning a Superior Proposal; provided, that substantially concurrently with such termination, the Company shall enter into such definitive, written agreement; or

(ii)           a breach of any representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Subsidiary set forth in this Agreement shall have occurred that would cause the condition set forth in Section 9.03(a) not to be satisfied, and such condition is incapable of being satisfied by the End Date or, if curable, is not cured by Parent within 45 days of receipt by Parent of written notice of such breach or failure stating the Company’s intention to terminate this Agreement pursuant to this Section 10.01(d)(ii) and the basis for such termination; provided, that the Company shall not have the right to terminate this Agreement pursuant to this Section 10.01(d)(ii) if, at the time of the delivery of such notice, the Company is in material breach of its representations, warranties, covenants or other obligations under this Agreement.

The party desiring to terminate this Agreement pursuant to this Section 10.01 (other than pursuant to Section 10.01(a)) shall give written notice of such termination to the other party specifying the provisions of this Section 10.01 pursuant to which this Agreement is being terminated.

Section 10.02         Effect of Termination. If this Agreement is validly terminated pursuant to Section 10.01, this Agreement shall become void and of no effect without liability of any party (or any stockholder, director, officer, employee, agent, consultant or Representative of such party) to the other parties hereto; provided that, subject to Section 10.03(c), if such termination shall result from the intentional (i) failure of either party (treating Parent and Merger Subsidiary as one party for this purpose) to fulfill a condition to the performance of the obligations of the other party, (ii) failure of either party (treating Parent and Merger Subsidiary as one party for this purpose) to perform a covenant set forth in this Agreement or (iii) breach by either party (treating Parent and Merger Subsidiary as one party for this purpose) of any representation and warranty set forth in this Agreement, such party shall be fully liable for any and all liabilities and damages incurred or suffered by the other party as a result of such failure. The provisions of Section 8.02, this Section 10.02, Section 10.03 and Sections 11.01, 11.04, 11.07, 11.08, 11.09 and Section 11.11 shall survive any termination hereof pursuant to Section 10.01. In addition to the foregoing, no termination of this Agreement will affect the rights or obligations of any party pursuant to the Confidentiality Agreement or any applicable clean team or similar arrangement, which rights, obligations and agreements will survive the termination of this Agreement in accordance with their respective terms.

Section 10.03         Termination Payments.

(a)            Company Payments.

(i)             If this Agreement is validly terminated pursuant to Section 10.01(c)(i), then the Company must promptly (and in any event within three Business Days) following such termination pay, or cause to be paid, to Parent the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.

(ii)            If this Agreement is validly terminated pursuant to Section 10.01(d)(i), then the Company must prior to or substantially concurrently with such termination pay, or cause to be paid, to Parent the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.

(iii)           If this Agreement is validly terminated pursuant to Section 10.01(c)(ii), then the Company must promptly (and in any event within three Business Days) following such termination pay, or cause to be paid, to Parent an amount of the Company Termination Fee in cash by wire transfer of immediately available funds to an account or accounts designated in writing by Parent as reimbursement for expenses incurred by Parent in connection with this Agreement and the transactions contemplated by this Agreement.

(b)            Single Payment Only. The parties acknowledge and agree that in no event will the Company be required to pay the Company Termination Fee on more than one occasion, whether or not the Company Termination Fee may be payable pursuant to more than one provision of this Agreement at the same or at different times and upon the occurrence of different events.

(c)            Sole Remedy. Notwithstanding any other provision of this Agreement, if this Agreement is validly terminated in a circumstance in which the Company Termination Fee is payable, Parent’s receipt of the Company Termination Fee, to the extent owed pursuant to Section 10.03(a), or Parent’s right to specific performance pursuant to Section 11.13, as applicable, will be the sole and exclusive remedies of (x) Parent, NICE and Merger Subsidiary and (y) the former, current and future holders of any equity, controlling persons, Affiliates (other than Parent, NICE or Merger Subsidiary), Representatives, members, managers, general or limited partners, stockholders and assignees of each of Parent, NICE and Merger Subsidiary (collectively, the “Parent Related Parties”) against (A) the Company, its Subsidiaries and each of their respective Affiliates; and (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (collectively, the “Company Related Parties”) in respect of this Agreement, any agreement executed in connection herewith and the transactions contemplated hereby and thereby, and upon payment of the Company Termination Fee, none of the Company Related Parties will have any further liability or obligation to Parent or Merger Subsidiary or any Parent Related Parties relating to or arising out of this Agreement, any agreement executed in connection herewith or the transactions contemplated hereby and thereby (except that the parties (or their Affiliates) will remain obligated with respect to, and Parent and Merger Subsidiary and their Subsidiaries may be entitled to remedies with respect to, the Confidentiality Agreement and Section 11.04, as applicable). For the avoidance of doubt, in no event shall Parent be entitled to obtain both (x) a grant of specific performance pursuant to Section 11.13 that results in the Closing occurring and (y) payment of the Company Termination Fee in accordance with Section 10.03(a). The Company Related Parties are intended third party beneficiaries of this Section 10.03(c).

(d)            Acknowledgements. The parties acknowledge that the agreements contained in this Section 10.03 are an integral part of this Agreement and that, without this Section 10.03, the parties would not have entered into this Agreement.

Article 11
Miscellaneous

Section 11.01         Notices. All notices, requests and other communications to any party hereunder shall be in writing (including electronic mail (“e-mail”) transmission, so long as no “bounce back” or similar message of non-delivery is received) and shall be given,

if to Parent, NICE or Merger Subsidiary, to:

NICE Headquarters
00 Xxxxxx Xxxxxx
XXXX 0,
X.X. Box 690
Ra’anana
4310602
Israel
Attention: Xxxx Xxxxxx
E-mail: Xxxx.Xxxxxx@xxxx.xxx

with a copy (which shall not constitute notice) to:

Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx
Email: xxx.xxxxxxxx@xxxxxxxxx.xxx

if to the Company, to:

LiveVox Holdings, Inc.

000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000

San Francisco, California 94111

Attention:       Xxxx XxXxxxx

Xxxxx Xxxx

E-mail:             xxxxxxxx@xxxxxxx.xxx

xxxxx@xxxxxxx.xxx

with a copy (which shall not constitute notice) to:

Xxxxxxxx & Xxxxx

0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000

Los Angeles, CA 90067

Attention:      Xxxxxx Xxxxxxxx

Xxx Xxxxx

E-mail:             xxxxxx.xxxxxxxx@xxxxxxxx.xxx

xxx.xxxxx@xxxxxxxx.xxx

or to such other address or email address as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. on a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding Business Day in the place of receipt. Notwithstanding the foregoing, if the Written Consent or Parent’s notice of termination pursuant to ‎Section 10.01(c)(ii) is delivered by e-mail, it shall be deemed received on the date of receipt irrespective of (i) the time of delivery and (ii) whether such date of receipt is a Business Day.

Section 11.02         Survival of Representations and Warranties. The representations and warranties contained herein and in any certificate or other writing delivered pursuant hereto shall not survive the Effective Time.

Section 11.03         Amendments and Waivers.

(a)            Any provision of this Agreement may be amended, supplemented or waived prior to the Effective Time, whether before or after receipt of the Company Stockholder Approval, if, but only if, such amendment, supplement or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective; provided that, in the case of an amendment, after the Company Stockholder Approval has been obtained there shall be no amendment that would require the further approval of the stockholders of the Company under Delaware Law without such approval having first been obtained.

(b)            No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by Applicable Law.

Section 11.04         Expenses. Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

Section 11.05         Disclosure Schedule and SEC Document References.

(a)            The parties hereto agree that any reference in a particular section of the Company Disclosure Schedule shall only be deemed to be an exception to (or, as applicable, a disclosure for purposes of) (i) the representations and warranties (or covenants, as applicable) of the relevant party that are contained in the corresponding Section of this Agreement and (ii) any other representations and warranties of such party that are contained in this Agreement, but only where the relevance of such exception or disclosure is reasonably apparent from the face of such disclosure. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree that the inclusion of an item in either disclosure schedule as an exception thereto will not be deemed an admission that such item represents a material exception or material fact, event or circumstance, that such item is required to be disclosed by this Agreement or that such item has had or would reasonably be expected to have a Material Adverse Effect on the Company.

(b)            The parties hereto agree that any information contained in any part of any Company SEC Document shall only be deemed to be an exception to (or a disclosure for purposes of) the Company’s representations and warranties if the relevance of that information as an exception to (or a disclosure for purposes of) such representations and warranties would be reasonably apparent to a person who has read that information concurrently with such representations and warranties; provided that in no event shall any information contained in any part of any Company SEC Document entitled “Risk Factors” (except to the extent such information consists of factual and/or historical statements) or containing a description or explanation of “Forward-Looking Statements” or other information that is of a similarly predictive, cautionary or forward-looking nature be deemed to be an exception to (or a disclosure for purposes of) any representations and warranties of the Company contained in this Agreement; provided, further, that in no event shall any information contained in any part of any Company SEC Document be deemed to be an exception to (or a disclosure for purposes of) any representation or warranty set forth in Section 4.05(a) and the second and third sentences of Section 4.05(c).

Section 11.06         Binding Effect; Benefit; Assignment.

(a)            The provisions of this Agreement shall be binding upon and, except (i) as provided in or contemplated by Section 7.02 and this Section 11.06, (ii) if the Closing occurs, for the right of the holders of Company Stock, Company RSUs, Company PSUs, Units or Company Warrants, respectively, to receive the consideration specified in this Agreement, in each case, after the Effective Time, and (iii) as provided in Section 10.03(c), shall inure to the benefit of the parties hereto and their respective successors and assigns. Except as provided in Section 7.02 and this Section 11.06, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns. Notwithstanding the foregoing, if NICE, Parent or Merger Subsidiary wrongfully terminates or willfully breaches this Agreement, then, following the termination of this Agreement, the Company may seek damages and other relief (including equitable relief) on behalf of the holders of the Company Stock, Company RSUs, Company PSUs, Units or Company Warrants.

(b)            No party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the written consent of each other party hereto, except that Merger Subsidiary may transfer or assign its rights and obligations under this Agreement, in whole or from time to time in part, (i) by written notice to the Company, to a wholly-owned direct or indirect Subsidiary of Parent, in which event all references herein to Merger Subsidiary, as applicable, shall be deemed references to such other Subsidiary; provided that any such assignment shall not materially impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or otherwise materially impair the rights of the Company under this Agreement or relieve Parent of any of its obligations under this Agreement and (ii) after the Effective Time, to any Person; provided that such transfer or assignment shall not relieve NICE, Parent or Merger Subsidiary of its obligations hereunder or enlarge, alter or change any obligation of any other party hereto or due to Parent or Merger Subsidiary.

Section 11.07         Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of such state that would result in the application of the laws of a jurisdiction other than the State of Delaware.

Section 11.08         Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates) shall be brought in the Delaware Chancery Court or, if such court shall not have jurisdiction, any federal court located in the State of Delaware or other Delaware state court, and each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 11.01 shall be deemed effective service of process on such party.

Section 11.09         WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 11.10         Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). This Agreement may be executed by .pdf signature and a .pdf signature shall constitute an original for all purposes.

Section 11.11         Entire Agreement. This Agreement and the Confidentiality Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.

Section 11.12         Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 11.13         Remedies.

(a)            Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.

(b)            The parties hereto 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 an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any federal court located in the State of Delaware or any Delaware state court, in addition to any other remedy to which they are entitled at law or in equity. The parties hereto agree not to raise any objections to (i) the granting of an injunction, specific performance or other equitable relief to prevent or restrain breaches or threatened breaches of this Agreement by the Company, on the one hand, or Parent and Merger Subsidiary, on the other hand; and (ii) the specific performance of the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants, obligations and agreements of Parent and Merger Subsidiary pursuant to this Agreement. Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with such injunction or enforcement, and each party hereto irrevocably waives any right that it may have to require the obtaining, furnishing or posting of any such bond or other security. The parties hereto further agree that (x) by seeking the remedies provided for in this Section 11.13, a party shall not in any respect waive its right to seek any other form of relief that may be available to a party under this Agreement; provided that in no event shall such party be entitled to obtain both (1) a grant of specific performance pursuant to this Section 11.13 that results in the Closing occurring and (2) an award of monetary damages, and (y) nothing set forth in this Section 11.13 shall require any party hereto to institute any Legal Proceeding for (or limit any party’s right to institute any proceeding for) specific performance under this Section 11.13 prior to, or as a condition to, exercising any termination right under Article 10 (and pursuing damages after such termination), nor shall the commencement of any Legal Proceeding pursuant to this Section 11.13 restrict or limit any party’s right to terminate this Agreement in accordance with the terms of Article 10 or pursue any other remedies under this Agreement that may be available then or thereafter.

Section 11.14         No Recourse. This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto and (a) no Person (other than the parties to this Agreement) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, the transactions contemplated by this Agreement or in respect of any oral representations made or alleged to be made in connection herewith, including any and all causes of action arising from or otherwise relating to such Person’s receipt of consideration or other benefits from this Agreement and the transactions contemplated by this Agreement and (b) no Person shall have any shared or vicarious liability, or otherwise be the subject of legal or equitable claims, for the actions, omissions or Fraud of any other Person.

Section 11.15         Parent Guarantee. NICE has the authority to and shall cause Parent and Merger Subsidiary to comply in all respects with each of the representations, warranties, covenants, obligations, agreements and undertakings made or required to be performed by Parent or Merger Subsidiary in accordance with the terms of this Agreement, subject to all terms, conditions and limitations contained in this Agreement. As a material inducement to the Company’s willingness to enter into this Agreement and perform its obligations hereunder, NICE hereby unconditionally guarantees and has the authority to and shall cause full performance and payment by Parent and Merger Subsidiary of each of the covenants, obligations and undertakings required to be performed by Xxxxxx and Merger Subsidiary under this Agreement, subject to all terms, conditions and limitations contained in this Agreement, and hereby represents, acknowledges and agrees that any such breach of any such representation and warranty or default in the performance of any such covenant, obligation, agreement or undertaking of Parent or Merger Subsidiary shall also be deemed to be a breach or default, as applicable, of NICE, and the Company shall have the right, exercisable in its sole discretion, to pursue any and all available remedies it may have arising out of any such breach or nonperformance directly against any of NICE, Parent and Merger Subsidiary in the first instance. As applicable, references in this Section 11.15 to “Merger Subsidiary” shall also include the Surviving Corporation following the Effective Time.

[The remainder of this page has been intentionally left blank; the next page is the signature page.]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date set forth on the cover page of this Agreement.

		NICE LTD.

		By:	/s/ Xxxxx Xxxxx
			Name: Xxxxx Xxxxx
			Title: Chief Executive Officer

		LIVEVOX HOLDINGS, INC.

		By:	/s/ Xxxx XxXxxxx
			Name: Xxxx XxXxxxx
			Title: Chief Executive Officer

		INCONTACT, INC.

		By:	/s/ Xxxxx Xxxxxx
			Name: Xxxxx Xxxxxx
			Title: President

		LASER BRIDGE MERGER SUB INC.

		By:	/s/ Xxxxx Xxxxxx
			Name: Xxxxx Xxxxxx
			Title: President

[Signature Page to Merger Agreement]

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AGREEMENT AND PLAN OF MERGER dated as of October 3, 2023 among LIVEVOX HOLDINGS, INC., NICE LTD., INCONTACT, INC. and LASER BRIDGE MERGER SUB INC.

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