Veracyte (VCYT) 10-Q2021 Q2 Quarterly report

(e)    The Parties will consult with each other and consider in good faith any issues and proposals in relation to the Proposed Acquisition that may be raised as part of the Consultation Process, provided however that neither Buyer nor the Shareholders shall be obliged to agree to any modification hereto or to the SPA or the transactions contemplated thereby.

(b)    The Shareholders Representative represents and warrants that, prior to the date hereof, neither the Shareholders nor any of their Affiliates have entered into any binding arrangement or agreement, whether or not conditional, with any third party to effect any Competing Proposal.

(a)    Buyer shall initiate the process to obtain the Foreign Investment Authorization, as soon as possible after the date hereof.

(b)    As from the date hereof, the Shareholders and Buyer shall comply with the provisions of Clause 4.3 the SPA as if such provisions had been set forth in full in this Agreement, mutatis mutandis, and any reference therein to “this Agreement” or to “the date hereof” (or a similar expression) shall be deemed to include a reference to this Agreement or the date hereof, respectively.

(a)    Buyer and the Shareholders shall agree on the content and timing of circulation of the press release (or as many as they may further agree to in writing), which will be made after the date hereof.

(b)    Save for such press release or as may be required by Law, each Party agrees that this Agreement as well as its existence, contents and any information disclosed in connection with the matters contemplated herein fall under the mutual confidentiality agreement dated as of 18 May 2020 and thus are strictly confidential and shall not be disclosed to any person whatsoever without the prior written consent of the other Party hereto.

(a)    This Agreement is personal to the Parties hereto. Accordingly, this Agreement and the benefits hereof may not be assigned by Buyer or the Shareholders or otherwise transferred to any other person without the prior consent of the other party.

(b)    Notwithstanding the foregoing, Buyer shall be entitled to assign its rights and obligations under this Agreement (in whole or in part) without the prior consent of any other party hereto to any direct or indirect wholly owned subsidiary of Buyer, provided that (i) notwithstanding any such assignment, Buyer shall remain liable for all of its obligations under this Agreement and under

(a)    This Agreement and any contractual or non-contractual obligation arising out of or in connection with this Agreement shall be governed by, and construed in accordance with, French law.

(b)    Each party further irrevocably waives (i) any right it may have under article 1186 of the French Civil Code to claim that this Agreement has lapsed as a result of any other contract contributing to the completion of the Proposed Acquisition having terminated, lapsed or being ineffective for any reason whatsoever, and (ii) any right it may have under article 1195 of the French Civil Code and fully assumes any risk which may arise from any of the unforeseeable circumstances referred to under such article, and accordingly no termination, lapse or variation of this Agreement shall be permitted on the grounds of such provisions of the French Civil Code.

(d)    All disputes arising out of or in connection with this Agreement (including without limitation with respect to the existence, validity, performance, termination and interpretation of this Agreement and any non-contractual obligation arising out of or in connection with this Agreement) shall be submitted to the exclusive jurisdiction of the Commercial Court of Paris.

(b)    Without prejudice to any other rights and remedies Buyer may have, Buyer shall not be obliged to complete the acquisition by way of purchase or contribution, as the case may be, of any of the Transferred Securities unless the acquisition by way of purchase or contribution, as the case may be, of all of the Transferred Securities is completed simultaneously.

(c)    The Parties expressly agree that the transfer of ownership of the Transferred Securities shall only be deemed to have occurred on the Closing Date, subject to Closing.

(a)    Subject to the provisions of Section 2.2, the aggregate purchase price for the transfer of all Transferred Securities (it being specified that the warrants are transferred for free together with the ordinary shares to which they are attached) shall be equal to the product of the Transferred Percentage and:

(b)    Following Closing, the Provisional Consideration shall be adjusted as follows, provided that the Parties shall comply with the requirements set out in Schedule 5 (Accounting Definitions and Principles) to calculate such adjustments:

(c)    Buyer and the Sellers agree to treat the Adjustment Amount as an adjustment to the Provisional Consideration for all Tax purposes except to the extent otherwise required by applicable Laws, and accordingly, the Final Consideration shall, subject to any further adjustment pursuant to Section 11, be adopted for all Tax reporting purposes.

(b)    Buyer shall pay to each Founder and his/her Estate Vehicle, as the case may be, their respective Holdback Amount if and when the Second Contingent Consideration in relation to their Free Shares 2018 becomes due and payable under the Put & Call Option Agreement.

(c)    Each Founder confirms that: (a) they have received appropriate legal advice in respect of this Agreement; (b) this provision is a negotiated primary (and not secondary) obligation and not a penalty; (c) this provision is justifiable and not unconscionable; and (d) this provision is appropriate to protect the legitimate interest of Buyer and was critical in the value assigned to the Securities.

(a)    The Provisional Consideration shall be paid:

(b)    Upon receipt of the Pre-Closing Schedule, Buyer shall have the right to notify the Sellers Representative of any observation it may have in good faith in this respect no later than four Business Days prior to the Closing Date, in which case the Sellers Representative and Buyer shall negotiate in good faith any changes to all or part of the Pre-Closing Schedule that may be appropriate (it being specified that, if the Sellers Representative and Buyer are unable to resolve their disagreement, the Pre-Closing Schedule as notified by the Sellers Representative pursuant to Section 3.3(a) shall prevail, all without prejudice to the post-Closing adjustment set forth in Section 3.5). For the avoidance of doubt, Buyer's failure to identify any questions or changes to the Pre-Closing Schedule, including the Provisional Consideration, shall not impact Buyer's rights to prepare the Closing Statement in accordance with Section 3.5.1.

(d)    No later than one Business Day after receipt of the Provisional Consideration Schedule, the Sellers Representative shall update the Pre-Closing Schedule using the information contained in the Provisional Consideration Schedule and provide Buyer with (i) the allocation of the contributed Transferred Securities, Stock Portion of the Provisional Consideration, sold Transferred Securities and Cash Portion of the Provisional Consideration among the Sellers; (ii) the allocation between the Sellers other than the Founders and the Estate Vehicles of the Escrow Amount to be deposited with the Escrow Agent on the Closing Date, and (iii) the final Funds Flow Memorandum.

(e)    It is expressly agreed that the Sellers shall be solely responsible for the determination of the allocation of the Provisional Consideration per category of Transferred Securities and among the Sellers, and no liability whatsoever shall inure to Buyer or any of its respective Affiliates in respect of such determination and allocation.

(b)    If the Buyer fails to prepare and deliver to the Sellers Representative the Closing Statement within the 90 calendar days period provided for in Section 3.5.1(a) and if such failure has not been remedied within ten (10) Business Days following a formal notice to do so sent by the Sellers Representative, the Sellers Representative shall have the right to decide either: (i) that the post-Closing adjustment set forth in this Section shall not apply and that the Provisional Consideration shall be final and binding upon the Parties or (ii) cause the Third Party Expert to come up with its own determination of the Net Cash Amount and Working Capital Amount, prepared in accordance with the terms of this Agreement including the Accounting Definitions and Principles set forth in Schedule 5; provided however that the provisions of this paragraph 3.5.1(b) shall not apply if the failure to timely submit the Closing

(b)    Buyer and the Sellers Representative shall use their reasonable efforts for a period of 15 Business Days after the Sellers Representative’s delivery of the Notice of Disagreement (or such longer period as Buyer and the Sellers Representative shall mutually agree upon) to resolve any disagreements raised by the Sellers Representative with respect to the calculation of the Adjustment Amount. If, at the end of such period, Buyer and the Sellers Representative are unable to resolve such disagreements, Buyer and/or the Sellers Representative can refer the disagreement to the Third Party Expert. The Third Party Expert will consider only those items and amounts that Buyer and the Sellers Representative are unable to resolve (except in the case it has been appointed pursuant to Section 3.5.1(b)) and shall comply with the terms and definitions of this Agreement, including the Accounting Definitions and Principles set forth in Schedule 5. The Buyer shall procure that all books and records relating to the Group Companies are made available to the Third Party Expert during normal office working hours and, more generally, the Buyer and the Sellers shall reasonably assist and cooperate with the Third Party Expert with regard to its mission. The Third Party Expert shall comply with the adversarial principle and shall in particular (x) give the Sellers Representative and the Buyer a reasonable opportunity to provide written and oral submissions to it, (y) require that the Sellers Representative and the Buyer provide to each other a copy of any written submissions at the same time as they are made to the Third Party Expert, and (z) allow the Sellers Representative and the Buyer to be present while oral submissions are being made by other. The determination by such Third Party Expert shall be final, binding and conclusive on the Parties save in the event of a manifest error. Buyer and the Sellers Representative shall use their reasonable efforts to cause the Third Party Expert to make its determination within 30 Business Days of accepting its selection. The fees and expenses of the Third Party Expert shall be borne equally by Buyer and the Sellers (except in the case it has been appointed pursuant to Section 3.5.1(b), in which case, its fees and expenses shall be borne in full by the Buyer).

(d)    The Third Party Expert shall act as independent appraiser in accordance with the provisions of Clause 1592 of the French Civil Code.

(a)    Within seven Business Days as from the day on which the Final Closing Statement is issued in accordance with Section 3.5.2:

(b)    Upon any Party becoming aware that any of the Conditions have been satisfied, it shall promptly within two Business Days notify the other Parties of the satisfaction of such Condition. If at any time any Party becomes aware of any event, circumstance or condition that would be reasonably likely to prevent a Condition being satisfied it shall forthwith inform the other Parties.

(a)    At any time prior to the Closing, this Agreement may be terminated:

(c)    Subject to compliance with competition Laws during the period from the date hereof, and continuing until the earlier of the termination of this Agreement and the Closing Date, the Sellers, each within the limits of its respective power and authority within the Company, shall procure that each Group Company allows Buyer and its Representatives (as well as its and their advisors), upon reasonable notice and during working hours, access to its books and records, other than materials subject to any confidentiality restrictions in favour of Third-Party, and to the properties and the Group’s management, where such access is reasonably required by Buyer for the purposes of the consummation of the Transaction and the actions contemplated by the Transaction Documents, provided that the Group Companies (and their management and employees) shall not be required to provide any access or disclose any information to the Buyer if such access or disclosure, would, in the Sellers Representative's sole discretion, acting reasonably:

(d)    Subject to compliance with competition Laws, during the period from the date hereof and continuing until the earlier of the termination of this Agreement and the Closing Date, the Company shall confer from time to time as reasonably requested by Buyer with one or more Representatives of Buyer to discuss any material changes or developments in the operational matters of the Company and the Subsidiary and the general status of the ongoing Business.

(e)    If at any time prior to or at Closing any Seller, any member of the Sellers’ Group or any of the Group Companies becomes aware that any of the matters set out in paragraph (b) above has occurred, or there is a reasonable expectation that any of such matters might occur, the Management Sellers shall promptly (i) notify Buyer in sufficient detail to enable Buyer to make an accurate assessment of the situation (and for the avoidance of doubt, the delivery of such notice shall not limit or otherwise affect the remedies available to Buyer), and (ii) if requested by Buyer, use its reasonable endeavours to procure that the notified occurrence is prevented or remedied.

(f)    For the purpose of any consent which shall be requested from Buyer pursuant to this Clause, it is specifically agreed that:

(a)    During the period from the date hereof and continuing until the earlier of the termination of this Agreement and the Closing Date, each of the Sellers and the Company shall not, and shall not authorize or permit the Subsidiary or any of their respective Representatives to, directly or indirectly, (i) solicit, initiate, seek, entertain, knowingly encourage, facilitate, support or induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or deliver or make available to any person any non-public information with respect to, or take any other action regarding, any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (iv) enter into any letter of intent or any other Contract contemplating or otherwise relating to, or that would reasonably be

(b)    The Sellers Representative and/or the Company shall as soon as practicable notify Buyer orally and in writing after receipt by any Seller or the Company or the Subsidiary (or, to the knowledge of the Sellers Representative and/or the Company, by any of the Sellers’, the Company’s or the Subsidiary’ Representatives) of: (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (iii) any other notice that any person is considering making an Acquisition Proposal or (iv) any request for non-public information relating to the Company or the Subsidiary or for access to any of the properties, books or records of the Company or the Subsidiary by any person or persons other than Buyer and its Representatives. Such notice shall describe, to the extent not confidential, (A) the material terms and conditions of such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request and (B) the identity of the person or group of persons making any such Acquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Sellers Representative and/or the Company shall keep Buyer promptly and fully informed, to the extent not confidential, of the status and details of, and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to Buyer a true, correct and complete copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing.

(a)    At Closing, the Sellers Representative shall deliver to Buyer or procure the delivery to Buyer of:

(b)    At Closing the Sellers shall procure that board resolutions and resolutions of the supervisory board and/or shareholders resolutions, where required of each Group Company in connection with the change of name if requested and chosen by Buyer at least ten (10) Business Days prior to the Closing Date, or the appointment of any director of such Group Company as from the Closing Date if requested and designated by the Buyer at least ten (10) Business Days prior to the Closing Date.

(a)    At Closing Buyer shall:

(a)    Each Party shall further execute and deliver to the relevant Parties all other documents and take all necessary measures that may be reasonably required by any other Party to carry out the transactions contemplated in this Agreement.

(b)    All matters at Closing will be deemed to take place simultaneously and all documents and items delivered and payments made in connection with Closing shall be held by the recipient to the order of the person delivering them until such time as Closing takes place. Each of such actions, deliveries and payments shall be deemed to have occurred as at the Closing Date.

(a)    The Buyer shall procure that (i) as from Closing, the Company and its Subsidiary shall maintain its Book and Records until the expiration of any applicable statutory period requiring the maintenance of such Books and Records and that (ii) until the later of the date of winding-up of the relevant entity and the fifth anniversary of the Closing, the Group Companies shall, subject to customary protection and covenants relating to confidential information, provide promptly to the Sellers access to, and copies of, such Books and Records and shall provide such other assistance (for instance, by making available employees to provide additional information and explanations on any materials so provided) as may be reasonably necessary for the Sellers and their Affiliates to fulfil their respective obligations including pursuant to applicable Tax, accounting or other Laws unless such access or disclosure, would, in the Buyer's sole discretion, acting reasonably:

(b)    Each Seller shall, notwithstanding any termination of this Agreement, severally and not jointly, indemnify and hold harmless Buyer, its officers, directors, agents, partners, members, managers, stockholders, Affiliates and employees, each Person who controls Buyer (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, managers, stockholders, agents and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against all Specific Losses, as incurred, to the extent such Specific Losses arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the extent that such untrue statements or omissions are based solely upon the Selling Holder Information with respect to such

(d)    If a claim for indemnification under Section 8.7(a) or 8.7(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Specific Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Specific Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Specific Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Specific Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any Specific Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section 8.7 was available to such party in accordance with its terms. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 8.7(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 8.7(d), (A) no Seller shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Seller from the sale of the Registrable Securities subject to the Specific Proceeding exceeds the amount of any damages that such Seller has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and (B) no contribution will be made under circumstances where the maker of such contribution would not have been required to indemnify the Indemnified Party under the fault standards set forth in this Section 8.7. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

(e)    The indemnity and contribution agreements contained in this Section 8.7 are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties and are not in diminution or limitation of the indemnification provisions under this Agreement.

(a)    Buyer is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization with full corporate power and authority to own and lease its properties and assets and conduct its business as such business is presently being conducted.

(b)    Buyer has all requisite corporate power and authority, and has taken all corporate action necessary, to execute and deliver this Agreement and the other Transaction Documents to be executed and delivered to which it is a party, to consummate the transactions contemplated hereby and thereby and to perform its obligations hereunder and thereunder. The board of directors of Buyer has duly approved the execution and delivery by Buyer of this Agreement and the other Transaction Documents to which Buyer is to be a party and the consummation by Buyer of the transactions contemplated hereby and thereby. No other corporate proceedings on the part of Buyer are necessary to authorize this Agreement and the other Transaction Documents to which Buyer is or will be a party and the transactions contemplated hereby and thereby.

(c)    This Agreement has been duly executed and delivered by Buyer and is, and upon execution and delivery of the other Transaction Documents to which Buyer is or will be a party, the other Transaction Documents will be, legal, valid and binding obligations of Buyer, enforceable against Buyer in accordance with their terms except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally or by equitable principles (whether considered in an action at law or in equity).

(c)    The Sellers make no representation and gives no warranty to the Buyer other than those expressly and specifically made and given in this Agreement, and accordingly, the Buyer shall not be entitled to make any claim on the basis of any other representation or warranty. In particular, without limiting the generality of the foregoing, the Sellers makes no representation or warranty whatsoever in relation to: (i) the accuracy or completeness of any projections, business plans, budgets, or other forward looking information delivered to the Buyer, its advisors or Affiliates during their examination of the Group Companies, or (ii) the future relations of the Group Companies with any Authorities, customers, suppliers, consultants, employees or any other third party, unless otherwise expressly provided herein.

(d)    The Warranties are given subject to matters fairly disclosed (with sufficient details to enable Buyer advised by its advisors to identify the nature and scope of the matter disclosed and to make a reasonably informed assessment of its impact on the relevant Group Company and/or its business) in the Agreement. The Seller shall not be liable to the Buyer in respect of any Loss arising from facts, events or circumstances referred to or fairly disclosed in this Agreement (including, for the avoidance of doubt, in any of its Schedules and Exhibits, it being specified that any disclosure made in a Schedule or in an Exhibit relating to a given Warranty is deemed to be made against all the other Warranties where the inaccuracy of such other Warranties is readily apparent in the disclosure). No other information of which Buyer has knowledge shall prejudice any claim made by Buyer under the Agreement or operate to reduce any amount recoverable thereunder.

(e)    Each of the Warranties shall be interpreted as a separate and independent Warranty and, unless otherwise specifically provided, shall not be restricted or limited by reference to any other representation, warranty or term of the Agreement.

(f)    Except as disclosed in Schedule 10(f), the Sellers waive and shall procure that all members of the Sellers Group shall waive any rights and remedies they may have against any member of Buyer Group or any Group Company or any of their respective present or former employees, directors, agents, officers or advisers with respect to claims arising out of any information, opinion or advice supplied or given (or omitted to be supplied or given) in connection with the Transaction other than in the case of fraud and agrees that no such rights or remedies shall constitute a defence to any claim by Buyer under this Agreement.

(g)    Each Seller receiving Registrable Securities pursuant to this Agreement meets the criteria of an “accredited investor” as defined in Rule 501(a) of Regulation D adopted under the Securities Act.

(h)    Each Seller understands that the Registrable Securities are “restricted securities”, the issuance of which has not been registered under the Securities Act or any applicable state securities law and that Sellers are acquiring the Registrable Securities as principal for their own accounts and not with a view to, or for distributing or reselling such Registrable Securities or any part thereof in violation of the Securities Act or any applicable state securities laws, provided, however, that by making the representations herein, Sellers do not agree to hold any of the Registrable Securities for any minimum period of time and reserves the right, subject to the provisions of this Agreement, at all times to sell or otherwise dispose of all or any part of such Registrable Securities pursuant to an effective registration statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities laws. The Sellers do not presently have any agreement, plan or understanding, directly or indirectly, to distribute or effect any distribution of any of the Registrable Securities (or any securities which are derivatives thereof) to or through any person or entity.

(i)    The Sellers are able to bear the economic risk of an investment in the Registrable Securities and have sufficient knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of ownership of the Registrable Securities and that they are able to bear the financial risks thereof.

(a)    Subject to the provisions of this Section 11 from and after the Closing Date:

(c)    The amount of the Refund paid to the Buyer by the Sellers under this Section 11 shall ultimately be borne: (x) in respect of Section 11.1(a)(i), by the Sellers in the proportions shown opposite their names in Exhibit D as may be updated from time to time after the date hereof by a notice sent by the Sellers to the Buyer (so long as such revised proportions total 100%) and (y) in respect of Section 11.1(a)(ii), by the relevant Seller only. The Buyer shall not incur any liability to the Sellers for such allocation or for any failure by the Sellers Representative or any other person to allocate the payment for the Refund between the Sellers in accordance with this paragraph.

(d)    When a Refund is subject to any corporate income Tax or if any non-refundable and non-creditable deductions or withholdings are required by Law to be made from such Refund, its amount shall be increased by an additional amount as will, after such corporate income Tax has been paid or such deduction or withholding has been made, leave the Buyer and / or the Group Companies with the same amount as they would have been entitled to receive in the absence of any such requirement to pay corporate income Tax or make a deduction or withholding. In the event where Buyer assigns its rights under this Agreement in accordance with Section 20(a) below, any increased payment that the assignee would be entitled to receive in accordance with this Section (d) shall not exceed the increased payment that the Buyer would have been entitled to receive in accordance herewith if the assignment had not occurred.

(e)    For the avoidance of doubt, the Buyer may give notice of any single Claim in accordance with this Section, whether or not the Threshold Amount has been exceeded at the time the notice is given.

(f)    The Buyer shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity (i) more than once in respect of the same Loss, regardless of whether more than one Claim arises in respect of it and (ii) for any breach of the Sellers' Warranties, covenants or obligations contained herein giving rise to a Loss that is already taken into account in the post-Closing adjustment process set out in Section 3.5.

(g)    For the purposes of this Section 11, any Loss shall be determined without regard to any multiple, valuation factor, price earning or equivalent ratio implicit in negotiating and/or settling the Final Consideration.

(h)    The Sellers shall not be liable for indemnification in respect of any Loss under this Section 11 resulting directly from any action taken between the date hereof and the Closing Date, which action has been expressly authorized pursuant to Section 6.1.

(j)    The Sellers shall not be obligated to indemnify the Buyer for any Tax reassessment, the only effect of which would be to shift the income or expense of one financial year to another, and that does not give rise to any additional Tax burden for the Group Companies in comparison to that which they would bear in the absence of such reassessment, except for the amount of any penalty, late payment interest or fine resulting from such reassessment and any related costs (including any treasury costs), fees and charges. The Sellers shall not be obligated to indemnify the Buyer for any value added tax liability which is recoverable by any of the Group Companies and results in no actual charge to the Group Companies.

(k)    Notwithstanding anything to the contrary in this Agreement, the Sellers shall not be obligated to indemnify the Buyer for any reduction of any Tax loss carry back or carry forward, Tax credit or other Tax relief shown on any Tax Returns of any of the Group Companies and any decrease in deferred tax asset shown on any financial statements of any of the Group Companies (including as a result, as the case may be, of a Tax reassessment by the Tax authorities), except in the case where any such Tax loss carry back or carry forward, Tax credit, Tax relief or other deferred Tax asset was taken into account for the calculation of the Net Cash Amount or Net Working Capital Amount (either as such or because it gave rise to a cash Tax saving or payment which a Group Company benefited from prior to the Closing Date). For the avoidance of doubt, it is specified that the Sellers shall be obligated to indemnify the Buyer for any reduction of the French research and development tax credit (including as a result, as the case may be, of a Tax reassessment by the Tax authorities) that was either accounted for as a receivable or already cashed in by the Company on the Closing Date.

(l)    The Sellers shall not be held liable for indemnification in respect of any Loss resulting solely from, or increased by, any voluntary action or omission on the part of the Buyer or any of the Group Companies after the Closing Date, including any change in the accounting principles previously applied by any of the Group Companies.

(m)    No indemnity will be due by the Seller to the Buyer if the Loss arises from the entry into force or the modification of a Law and/or the levy or modification of any Tax or Tax rate after the date hereof, even if such change has a retroactive effect.

(n)    For all purposes of this Section 11, in calculating the amount of any "Loss", there shall be deducted (i) the amount of any indemnification or other recoveries (including insurance proceeds) payable to the Buyer or any of the Group Companies in connection with the facts, matters or circumstances giving rise to the right of indemnification as reduced by the cost incurred by the Buyer and the Group Companies to receive such indemnification or other recoveries and (ii) the amount of any reserve or provision with respect to such Loss recorded in the Accounts and taken into account in the Net Cash Amount or the Working Capital Amount.

(o)    In assessing any Loss, any Tax saving which is or will effectively be available to the Buyer or the relevant Group Company as a direct result of the accrual, incurrence or payment of any such Loss with respect to the financial year(s) when the said Loss is accrued, incurred or paid, shall be deducted from the amount of such Loss.

(p)    The Buyer shall use and, shall procure to the extent of its powers as shareholder of the Company that the Group Companies shall use, commercially reasonable endeavors to avoid or mitigate the amount of any Loss, to the extent such action does not prevent the Group Companies from operating the Business in the ordinary course. For the avoidance of doubt, Buyer shall not be required to cease or reduce developing, promoting, manufacturing, having manufactured, using, marketing, selling, offering for sale or importing, exporting or distributing the Group Companies’ products and services or exploiting their Intellectual Property Rights in order to mitigate Loss.

(b)    After such notice, if the Third-Party Claim may result in a claim against the Sellers and the relevant Sellers have unequivocally accepted the principle of their liability hereunder (it being provided that the amount of the Loss which should be indemnified by the Sellers shall be determined in accordance with the terms and limitations set forth in this Section 11), the Sellers Representative, on behalf of the Sellers, shall be entitled, at the risk and expense of the Sellers, to participate in the defense of such claim and consult with Buyer in any defense of such claim, it being understood that:

(c)    If the Sellers Representative, on behalf of the Sellers, has decided not to participate in the defence of such claim Third-Party Claim, the Buyer shall (i) conduct such defence in good faithand in a manner a reasonable and prudent defendant would conduct such Third-Party Claim, (ii) promptly provide the Sellers Representative with a copy of any communication or notice received by the Buyer and/or a Group Company in relation to such Third-Party Claim and (iii) keep the Sellers Representative regularly informed of the status thereof.

(d)    In all cases, the Buyer shall, and shall procure that the relevant Group Company shall, reasonably cooperate with the Sellers Representative in the negotiation, conduct, defense and/or settlement of any Third-Party Claim. Conversely, the Seller Representative shall have regard to the corporate interest of the relevant company in the context of the Third-Party Claim.

(e)    The Sellers shall not be liable for any compromise or settlement or waiver of any appeal or other remedy of any such Third-Party Claim effected without the prior written consent of the Sellers Representative (which consent shall not be unreasonably withheld, conditioned or delayed), except where more than 50% of the Loss that may be incurred by the Buyer or any Group Company absent such compromise or settlement or waiver would not be payable by the Sellers pursuant to the provisions of this Agreement. Notwithstanding the foregoing, in the event that the Sellers refuse to consent to a compromise or settlement proposed by Buyer, and it is subsequently determined pursuant to the provisions of this Agreement that the facts underlying such Third-Party Claim constituted a breach of the representations made in this Agreement, Buyer may recover for its Losses in respect of such Claim (subject to the limitations set forth in this Agreement) notwithstanding Seller’s refusal to consent to such proposed compromise or settlement, or if it is determined that Sellers’ refusal was unreasonably withheld, conditioned or delayed.

(a)    In order to confer upon Buyer the full benefit of the business and goodwill of the Group, each Seller undertakes to Buyer and each member of the Buyer Group that it shall not either alone or in conjunction with or on behalf of any other person, do any of the following during a period of three years following the Closing Date offer employment to, enter into a contract for the services of, or attempt to entice away from any of the Group Companies, any individual who is at that time, and was at the Closing Date, employed or directly engaged in a key executive or managerial position with any of the Group Companies (except a person who responds, without any form of approach or solicitation by or on behalf of any member of the Sellers Group, to a general public advertisement made in the ordinary course of business) or procure or facilitate the making of any such attempt by any other person;

(b)    In addition and in furtherance of the above, each Management Seller undertakes to Buyer and each member of the Buyer Group that it shall not either alone or in conjunction with or on behalf of any other person, do any of the following during a period of three years following the Closing Date:

(c)    The undertakings in this Section 12 are intended for the benefit of Buyer and each Group Company and apply to actions carried out by the relevant Sellers in any capacity whatsoever and whether directly or indirectly, on the Management Sellers’ or any Affiliate of the Management Sellers' own behalf, on behalf of any other person or jointly with any other person.

(d)    Each Management Seller and Seller who is a natural person agrees that the undertakings contained in this Section 12 are reasonable and necessary for the protection of Buyer’s legitimate interests in the goodwill of the Group Companies and do not prevent the relevant Management Sellers and Sellers to exercise another professional activity complying with their professional training and experience.

(e)    Without prejudice to Section (c), if any undertaking in this Section 12 is found by any court or other competent Authority to be void or unenforceable the Management Sellers, the relevant Sellers and the Buyer shall negotiate in good faith to replace such void or unenforceable undertaking with a valid provision which, as far as possible, has the same commercial effect as the provision which it replaces and the validity of the other undertakings shall not be affected.

(f)    The Sellers acknowledge that the violation of any such undertakings may generate a damage to Buyer and the Group Companies of such significance that it would not be sufficiently compensated by the allocation of damages. Consequently, Buyer expressly reserve the right to request for any conservatory or enforceable measure pertaining to prohibit the conduct of any activities which violates any of the undertakings provided in this Section 12.

(b)    Each Seller hereby specifically authorizes, under Article 1161 of the French Civil Code, the Sellers Representative to act as representative of several of them for the purpose of the negotiation and execution on their behalf of any agreement or document to which such Sellers (including as applicable the Sellers Representative) are parties.

(c)    If for any reason Vincent Fert shall not be able to act as the Sellers Representative and the Sellers nominate in writing another person to fill the role of Sellers Representative, such other person as shall be so notified in writing to Buyer by the Sellers shall be the Sellers Representative in substitution for Vincent Fert from time to time.

(a)    The Parties hereto acknowledge that the mutual confidentiality agreement entered into between the Company and the Buyer on May 18, 2020 shall remain in full force and effect up to the Closing Date, it being agreed that should Closing not take place, it shall remain in force until its contractual termination date.

(b)    Except for the press releases which the Sellers Group and the Buyer's Group agree to issue on the date hereof, pending Closing, the Sellers shall not, and the Sellers shall cause each of the Company, the Subsidiary and their respective Representatives not to, directly or indirectly, issue any press release or other public statement relating to the terms of this Agreement or use Buyer’s name or refer to Buyer directly or indirectly in connection with Buyer’s relationship with the Company in any media interview, advertisement, news release, press release or professional or trade publication, or in any print media, whether or not in response to an inquiry, without the prior written approval of Buyer, unless required by Laws (in which event a satisfactory opinion of counsel to that effect shall be first delivered to Buyer prior to any such disclosure) and except as reasonably necessary for the Company to obtain the consents and approvals contemplated by this Agreement.

(c)    As soon as practicable after Closing, the Sellers Representative and Buyer shall procure that a joint announcement of the Transaction is made to the customers and suppliers of the Group by way of press release in Agreed Form.

(e)    Each Party undertakes that it shall only disclose Confidential Information to Representatives as well as its and their advisors (and, with respect to FPCI PSIM, to its members of the investment committee of its management company or of any entity managing such fund and to its own investors, shareholders, partners or members, or any Affiliates of such fund (other than companies in the portfolio of any such Affiliates) as may be otherwise required under internal rules of PSIM), for the purpose of the Transaction where it is reasonably required for the purposes of performing its obligations under the Agreement or the other Transaction Documents and only where such recipients are informed of the confidential nature of the Confidential Information and the provisions of this Section 14 and instructed to comply with this Section 14 as if they were a Party to it.

(f)    Section (b) and (d) shall not apply if and to the extent that the Party using or disclosing Confidential Information or making such announcement can demonstrate that:

(a)    The Buyer shall use all reasonable efforts to, at its own cost, promptly execute and deliver all necessary documents and do all necessary things and provide all necessary information and assistance, as Sellers may from time to time reasonably require for the purpose of giving full effect to the provisions of the Agreement.

(b)    The Sellers shall use all reasonable efforts to, at their own cost, promptly execute and deliver all necessary documents and do all necessary things and provide all necessary information and assistance, as Buyer may from time to time reasonably require for the purpose of giving full effect to the provisions of the Agreement.

(a)    Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party hereto shall 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 hereto of any one remedy shall not preclude the exercise of any other remedy and nothing herein shall be deemed a waiver by any party hereto of any right to specific performance or injunctive relief.

(c)    Save as otherwise provided in this Agreement, each Party irrevocably waive any right to terminate this Agreement under Article 1226 of the Code Civil.

(a)    This Agreement and the other Transaction Documents together constitute the entire agreement among the Parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof, except for the confidentiality agreement, which shall continue in full force and effect, and shall survive any termination of this Agreement, in accordance with its terms.

(b)    If there is any conflict between the terms of this Agreement and any other agreement, this Agreement shall prevail (as among the Parties and as among any members of the Sellers Group and any members of Buyer Group) unless (i) such other agreement expressly states that it overrides this Agreement in the relevant respect; and (ii) the Sellers and Buyer are either also parties to that other agreement or otherwise expressly agree in writing that such other agreement shall override the Agreement in that respect.

(a)    Unless otherwise specifically provided, a failure or delay by a Party to exercise any right or remedy provided under the Agreement or by Law, whether by conduct or otherwise, shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by Law, whether by conduct or otherwise, shall preclude or restrict the further exercise of that or any other right or remedy.

(b)    Unless otherwise specifically provided, a waiver of any right, provision, condition, consent or remedy or any discharge of any obligation or liability under the Agreement shall only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.

(c)    No variation or amendment of the Agreement shall be valid unless it is in writing and duly executed by or on behalf of Buyer and the Sellers Representative. Unless expressly agreed, no variation or amendment shall constitute a general waiver of any provision of the Agreement, nor shall it affect any rights or obligations under or pursuant to the Agreement which have already accrued up to the date of variation or amendment and the rights and obligations under or pursuant to the Agreement shall remain in full force and effect except and only to the extent that they are varied or amended.

(b)    Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.

(c)    Save in the event of an assignment by Buyer of the benefit of the Agreement and/or of any other Transaction Document as provided in Section (a) all rights (including that to bring a Claim to the Sellers) and obligations of Buyer will remain with Buyer notwithstanding the assignment of any or all of the Transferred Securities or the assets of any of the Group Companies.

(a)    All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing, in English, and shall be deemed to have been given (a) when personally delivered, upon delivery (b) when transmitted via email to the email address set out below (subject to confirmation of delivery by a delivery receipt), upon delivery or (c) when delivered by registered letter with acknowledgment of receipt or by an internationally recognized express overnight delivery service, upon the first presentation. All notices, demands and other communications, in each case to the respective Parties, shall be sent to the applicable address set forth below, unless another address has been previously specified in writing by such party:

(c)    Any notice to be given to or by all of the Sellers under the Agreement shall be deemed to have been properly given if it is given to or by the Sellers Representative.

(a)    This Agreement and any non-contractual rights or obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of France.

(b)    The Parties hereto irrevocably submit to the exclusive jurisdiction of the Commercial Court of Paris any disputes, and waive any objection to proceedings before such courts on the grounds of venue or on the grounds that such proceedings have been brought in an inappropriate forum.

(c)    For the purposes of this Clause, dispute means any dispute, controversy, claim or difference of whatever nature arising out of, relating to, or having any connection with the Agreement, including a dispute regarding the existence, formation, validity, interpretation, performance or termination of the Agreement or the consequences of its nullity and also including any dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with the Agreement.

(a)    involves or is likely to involve expenditure in 2020 and/or for the future by any Group Company in excess of 100 000 € per annum or an aggregate consideration payable by a Group Company in excess of 100 000 €;

(b)    involves any Group Company borrowing any money (other than by bank overdraft or similar facility in the ordinary course of business) including entering into any foreign exchange contracts, interest rate swaps or other derivative instruments for an aggregate amount in 2020 and/or for the future in excess of 100 000 € per annum;

(c)    is entered with the United States, France or any other Authority; except confidentiality agreements

(d)    involving an annual consideration in excess of 200 000€ in 2020 and for the future and which cannot be performed within its terms within 12 months after the date on which it is entered into or undertaken or cannot be terminated on less than 12 months’ notice;

(e)    involving an annual consideration in excess of 200 000€ in 2020 and for the future and which may be terminated as a result of any Change of Control of any of the Group Companies;

(f)    any contract (A) pursuant to which any other party is granted exclusive rights or “most favoured party” rights with respect to any of the Business or Intellectual Property Rights of the Group, rights of first refusal, rights of first negotiation to any party; (B) containing any non-competition covenants relating to the Business or Intellectual Property Rights of the Group; and (C) in which a Group Company has expressly agreed to limitations on its ability to engage or participate in any line of business, market or geographic area;

(g)    requires a Group Company to pay any base commission, finders’ fee, or royalty associated to any person;

(h)    grants any license or authorizes any third party to manufacture, market, sell or reproduce any of the Intellectual Property Rights owned by a Group Company;

(i)    is entered with the top 5 customers (by revenues generated from such customers on a consolidated basis for the 12-month period ended December 31, 2020) and the top 15 suppliers of the Company and/or the Subsidiary (by volume of purchases other than relating to rental and administrative expenses by the Company and the Subsidiary on a consolidated basis for the 12-month period ended December 31, 2020) provided that execution of sale quotes with associated terms and conditions are not considered as a material contract and will not be listed in this schedule; or

(j)    is entered with any investment banker, broker, advisor or similar party retained by any of the Group Company in connection with this Agreement and the Transaction contemplated hereby.

(a)    in the case of Taxes that are either (i) based upon or related to income or receipts; or (ii) imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible), the Straddle Period Tax Liabilities shall be equal to the amount of Taxes which would be payable (after giving effect to amounts which may be deducted from or offset against such Taxes) if the fiscal year ended immediately prior to the Closing Date; and

(b)    in the case of Taxes imposed on a periodic basis with respect to assets of any of the Group Companies, or otherwise measured by the level of any item, the Straddle Period Tax Liabilities shall be equal to such Taxes (deemed to be the amount of such Taxes for the entire Straddle Period (after giving effect to amounts which may be deducted from or offset against such Taxes) (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period)) multiplied by the number of days elapsed between the beginning of the Straddle Period and the day before the Closing Date (included) and divided by the number of days in the Straddle Period.

(a)    to a Third Party by any of the Group Companies in respect of any obligation of a member of the Sellers Group; or

(b)    to a Third Party by a member of the Sellers Group in respect of any obligation of any of the Group Companies.

(b)    There is no agreement pursuant to which each Seller could be required to assign or otherwise dispose of any Transferred Securities issued by the Company, other than the Agreement. Upon the Closing, each Transferred Security owned by each Seller will have been duly transferred to Buyer, good and transferable title to each such Transferred Security will be held by Buyer free and clear of any Encumbrances, and Buyer will be the sole record and beneficial owner of all such Transferred Securities.

(c)    Each Seller is not a party to any shareholder agreement, voting trust, proxy or other agreement or understanding with respect to the voting of any Securities that will survive the Closing.

(d)    There is no agreement prohibiting or restricting the transfer by the relevant Seller to the Buyer of the Securities resulting from the Free Shares 2018.

(b)    Except as disclosed in Schedule 22, neither any Seller nor any member of the Sellers Group:

(b)    No step has been taken to initiate any process by or under which (i) the ability of the creditors, as a whole, of any Seller to take any action to enforce their claims is suspended, restricted or prevented, (ii) some or all of the creditors of any Seller accept, by agreement or in pursuance of a court order, an amount less than the respective sums owing to them in satisfaction of those sums with a view to preventing the dissolution of such entity, (iii) a person is appointed to manage the affairs, business and assets of any Seller on behalf of its creditors; or (iv) the holder of an Encumbrance over the assets of any Seller is appointed to control its business and assets.

(c)    No process has been initiated which could lead to any Seller being dissolved and its assets being distributed among the relevant company’s creditors, shareholders or other contributors. No Encumbrance on the assets of the Sellers has been enforced and there are no circumstances likely to cause any such Encumbrances to be enforced.

(a)    Each of the Company and the Subsidiary is duly incorporated and validly existing. . Each of the Company and the Subsidiary is in good standing under the laws of its jurisdiction of organization and has the corporate power to own, operate, use, distribute and lease its properties and to conduct the Business and is duly licensed or qualified to do business and is in good standing in each jurisdiction. Copies of the Organizational Documents of the Company and the Subsidiary, and all amendments thereto, delivered to Buyer before the date of this Agreement are true, accurate and complete as of the date of this Agreement and there have not been and are not any breaches by the Company and/or the Subsidiary of their respective Organizational Documents.

(b)    The Securities constitute the whole of the issued and outstanding share capital of the Company and are fully paid. The Company has not issued any other securities and there is no agreement for the Company to issue other securities, except for any issuance as a result of the vesting of the Free Shares 2018 and of the exercise of the Options or the warrants (BSA ratchets).

(c)    The Company has not granted to any Person any power of attorney in respect of any of its assets.

(f)    All dividends or distributions declared, made or paid by any of the Group Companies, with respect to the last three years, have been declared, made or paid in accordance with its articles of association or any other constitutional and corporate documents, all applicable Laws and any agreements or arrangements made with any Third Party regulating the payment of dividends and distributions.

(b)    The accrued but unpaid Taxes of any Group Company do not, as of the Balance Sheet Date, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the Balance Sheet (rather than in any notes thereto) and since the Balance Sheet Date, except for liabilities taken into account in the Net Cash Amount or the Working Capital Amount, no Group Company has been involved in any transaction or arrangement which has given or may give rise to a liability for Taxes (or would have given or might give rise to a liability but for the availability of a relief) outside the ordinary course of business.

(d)    None of the Group Company will be liable to pay any additional Tax, lose any Tax advantage (including but not limited to any carry-forward Tax losses) or incur any Tax burden in relation to the transfer of the Shares arising as a result of this Agreement.

(g)    The Company is not a real estate company within the meaning of Article 726 of the French Tax Code.

(i)    Each contract, arrangement or plan that is a “nonqualified deferred compensation plan” (within the meaning of Section 409A(d) of the U.S. Tax Code) has been administered, documented and maintained in accordance with Section 409A of the U.S. Tax Code and the rules and regulations issued thereunder in all material respects, such that no Tax or interest will be due and owing after the Closing in respect of such arrangement failing to be in compliance therewith. No member of the Group Company has any obligation to “gross-up” or otherwise indemnify any individual for the imposition of the excise tax under Section 4999 of the U.S. Tax Code or under Section 409A of the U.S. Tax Code.

(j)    The exercise price of all Options granted to employees or service providers of a Group Company subject to U.S. taxes was at least equal to the fair market value of the Company shares on the date such Options were granted. All Options cover “service recipient stock” (as defined under Treasury Regulation 1.409A-1(b)(5)(iii)) with respect to the grantor thereof.

(b)    The Management Sellers have delivered to Buyer before the date of this Agreement true and complete copies of the unaudited [income statement] of each Group Company as at 31 March 2021, which have been prepared in accordance with applicable Laws and French generally accepted accounting principles.

(b)    No person who performs or has performed services for or on behalf of any Group Company has bribed another person intending to obtain or retain business or an advantage in the conduct of business for any Group Company.

(c)    Except as disclosed in Schedule 2.7, no Group Company has manufactured or sold any products which were defective or unsafe, were the subject of any voluntary or mandatory recall or product warning, did not comply in any respects with all regulations and standards applicable to such products; or did not comply with any warranties or representations made by it or on its behalf.

(d)    Except as disclosed in Schedule 2.7, all products under development or marketed by or on behalf of the Group have been researched, developed, tested, manufactured, handled, labeled, packaged, stored, supplied, distributed, imported, and exported, as applicable in compliance with applicable Laws, and all clinical trials and investigations conducted by or on behalf of the Group have been conducted in compliance with applicable protocols, procedures and applicable Laws.

(e)    All certificates issued under CLIA and local equivalents where applicable, and copies of the most recent inspection and audits reports, including a list of deficiencies, if any, and proficiency test results, have been provided to Buyer.

(f)    No Group Company or any of its respective directors, employees, agents or representatives (in each case acting in their respective capacities within the Group) has been excluded, suspended or debarred from participation in any government healthcare program or, to the Management Sellers’ Knowledge, is subject as of the date hereof to a governmental inquiry, investigation, proceeding, or other similar action, that could reasonably be expected to result in debarment, suspension, or exclusion.

(g)    None of the Company or the Subsidiary or any of their directors, employees, agents or representative (in each case acting in their respective capacities within the Group) has, since the incorporation of the Company, (i) violated any Anti-Corruption Laws or (ii) offered, given, promised to give or authorized the giving of money or anything of value, to any Authority officials or to any other Person for the purpose of corruptly influence any of their act or decision in their official capacity or (iii) been subject to any investigation or proceeding for potential corruption, fraud or violation of any Anti-Corruption Laws.

(h)    None of the Company or the Subsidiary or any of their directors, employees, agents or representative (in each case acting in their respective capacities within the Group) has violated any Anti-Money Laundering Laws or been subject to any investigation or proceeding for potential fraud or violation of any Anti-Money Laundering Laws.

(d)    Except as disclosed in Schedule 19, as of the date hereof, to the Management Sellers’ Knowledge, there is no action or proceeding by any Authority pending or threatened, seeking the revocation or suspension of any permit and there is no basis for such an action or proceeding.

(b)    Except as disclosed in Schedule 2.9, each of the Material Contracts is in full force, effect, and binding on the Group Companies party to it. As of the date hereof, no notice of termination of any Material Contract has been received or served by a Group Company.

(c)    Except as disclosed in Schedule 2.9, as of the date hereof, no Group Company is in default under any Material Contract, and to the Management Sellers’ Knowledge, no other party to such an agreement or arrangement is in default hereunder.

(d)    Except as disclosed in Schedule 2.9, the Management Sellers confirm that any risk related to a reimbursement claim to which a customer may be entitled to under any of the Material Contracts is mitigated and accounted properly in the Accounts.

(b)    Except as disclosed in Schedule 2.10, no Group Company has any off balance sheet obligation of any nature.

(b)    No step has been taken to initiate any process by or under which (i) the ability of the creditors, as a whole, of any Group Company to take any action to enforce their claims is suspended, restricted or prevented, (ii) some or all of the creditors of any Group Company accept, by agreement or in pursuance of a court order, an amount less than the respective sums owing to them in satisfaction of those sums with a view to preventing the dissolution of such entity, (iii) a person is appointed to manage the affairs, business and assets of any Group Company on behalf of its creditors; or (iv) the holder of an Encumbrance over the assets of any Group Company is appointed to control its business and assets.

(c)    No process has been initiated which could lead to any Group Company being dissolved and its assets being distributed among the relevant company’s creditors, shareholders or other contributors. No Encumbrance on the assets of the Group Companies have been enforced and there are no circumstances likely to cause any such Encumbrances to be enforced.

(b)    All such policies are currently in full force and effect and as of the date hereof, nothing has been done or omitted to be done by any Group Company which would make any policy of insurance void or voidable. All insurance coverage applicable to the Group or the Business is in full force and effect. As of the date hereof, there is no default under any coverage nor has there been any failure to give notice by a Group Company or present any claim under any coverage in a due and timely fashion.

(c)    All premiums due and payable under all such policies have been timely paid, and the Company and the Subsidiary are otherwise in compliance with the terms of such policies. All such policies remain in full force and effect, and to the Management Sellers’ Knowledge, there are no threatened termination of, or premium increase with respect to, any of such policies.

(a)    Each of the Company and the Subsidiary has legal title, right of use or a valid leasehold interest in all of its properties, and interests in properties and assets, real and personal, reflected on the Accounts or, with respect to such leased properties and assets, valid leasehold interests in such properties and assets that afford the Company and the Subsidiary valid leasehold possession of the properties and assets that are the subject of such leases.

(c)    All licenses, consents and approvals required from the lessors and any superior lessors under the leases of the Properties and from their respective mortgagees (if any) have been obtained and the covenants on the part of the lessee contained in such licenses, consents and approvals have been duly performed and observed and, subject thereto, there are no collateral agreements, undertakings, waivers or concessions which are binding upon either the landlords or the Group Companies.

(d)    None of the Group Companies is aware of any major item of expenditure already incurred by the lessor within the last 12 months from the date hereof of any of the Properties or expected to be incurred by any such lessor within the next 12 months, which is recoverable in whole or in part from a Group Company.

(i)    The representations and warranties set forth in this Section 2.17 are the sole representations and warranties of the Management Sellers relating to infringement, misappropriation or other violation of the Intellectual Property Rights of any person and no other Warranties contained in this Agreement shall be construed to cover any such matter.

(a)    The Group Companies have taken commercially reasonable measures for the maintenance, support and disaster recovery of their IT Systems.

(b)    The Group Companies follow commercially reasonable procedures for protecting their IT Systems from infection by software viruses and from access by unauthorized persons.

(c)    During the last three years as from the date hereof, the IT Systems have not (i) failed to function in any way that has had a Material Adverse Effect, (ii) been infected by any software virus having affected the operations of a Group Company; or (iii) to the Management Sellers’ Knowledge, been accessed by any unauthorized person.

(d)    None of the Group Companies has used open source software as part of any application that it has licensed or otherwise made available to third parties in a manner that would require any Group Company to further disclose or distribute any source code owned by any of the Group Companies.

(a)    Except as disclosed in Schedule 2.19, each Group Company is and has complied at all times and in all respects in the three years prior to the date hereof, with all of the applicable Information Privacy Laws pertaining to privacy, security and data protection.

(b)    Except as disclosed in Schedule 2.19, the Group Companies have not transferred Personal Data to countries outside of the European Economic Area unless in accordance with the applicable Information Privacy Laws.

(c)    Except as disclosed in Schedule 2.19, the Group has taken reasonable measures to require all vendors, service providers or other Persons whose relationship with the Group involves their collection, use, disclosure, storage or processing of Personal Data on behalf of the Group to comply with all applicable Information Privacy Laws with respect to Personal Data. Except as disclosed in Schedule 2.19, to the Management Sellers’ Knowledge, as of the date hereof, none of such Persons are in breach of their contractual obligations or applicable Information Privacy Laws with respect to Personal Data of the Group.

(d)    Except as disclosed in Schedule 2.19, each Group Company has all necessary authority to receive, access, collect, use, transfer, store, handle and disclose the Personal Data in its possession or under its control in connection with the operation of the Business. Each Group Company has made all disclosures to, and obtained any necessary consents and authorizations from, users, customers, employees, contractors and other applicable Persons required by applicable Information Privacy Laws necessary to operate the Business, and has filed any required registrations (the details of which are correct for the purposes for which the applicable Group Company stores or processes the Personal Data which is the subject of them) necessary to operate the Business with the applicable data protection authority.

(e)    In the last three years prior to the date hereof (i) none of the Group Companies has received a written complaint or written objection to its collection or use of Personal Data that remains unresolved and (ii) the collection or use of Personal Data by a Group Company has not been the subject of any investigation or proceedings (whether of a criminal, civil or administrative nature).

(c)    As of the date hereof, none of the Managers or Highly Compensated Employees of the Group Companies have resigned or have informed in writing the Management Sellers or any Group Company of his/her intention to resign and none of them has been dismissed or is subject to a dismissal procedure, which is pending. To the Management Sellers’ Knowledge, no employee or independent contractor of a Group Company is in violation of any term of any employment agreement, non-competition agreement or any restrictive covenant to a former employer relating to the right of any such employee or independent contractor to be employed by or otherwise provide service to the Group Company because of the nature of the Business or to the use of trade secrets or proprietary information of others.

(e)    Each Employee Benefit Plan that is intended to be “qualified” under Section 401(a) of the Code is so qualified and no event has occurred that would reasonably be expected to adversely affect the qualified status of any such Employee Benefit Plan (or the tax-exempt status of any related trust). In addition, except as disclosed in Schedule 37, with respect to each Employee Benefit Plan intended to include a U.S. Code Section 401(k) arrangement, the applicable Group Company has made timely deposits of employee salary reduction contributions and participant loan repayments, as determined pursuant to regulations issued by the United States Department of Labor. The Group Company has made available to Buyer the Form 5500 reports filed for the last three plan years with respect to each Employee

(f)    The terms and conditions of the employment contracts between each Group Company and its employees, as well as the conditions of employment of any employee of the Group Companies, and the terms and conditions of all employee benefit plans maintained by the Group Companies comply with applicable Laws (including all applicable collective bargaining agreements).

(h)    Except for ordinary course remuneration for services, none of the Group Companies incurs any severance liability towards any of its former employees or Managers, nor is liable to make any on-going severance payments towards any of its former employees or Managers.

(k)    As of the date hereof, no Group Company is involved in any existing, pending or threatened claim or dispute by or in respect of any employee or employee representative and has not been involved in any such employment dispute in the 12-month period before the date hereof. As of the date hereof, to the Management Sellers' Knowledge, there are no facts that might suggest that there may be grounds for any such employment dispute; or that any of the provisions of the Agreement (including the identity of the Buyer) may lead to any employment dispute. As of the date hereof, no formal claims or allegations have been made against any Group Company, or any director or employee for discrimination, sexual or other harassment, or retaliation in respect of any such claims or allegations, in connection with employment with the Group Company nor, to the Management Sellers' Knowledge, are any such claims threatened or pending nor, to the Management Sellers' Knowledge, is there any reasonable basis for such a claim.

(l)    Each Group Company has over the five last years complied with its obligations to inform and/or consult with employees’ representatives bodies, including any mandatory information and/or consultation of any competent employees’ representative body (including any European and/or group works council) in relation with the proposed Transaction.

(a)    To the Management Sellers’ Knowledge, no Group Company has caused pollution of any property in a manner which is reasonably expected to give rise to any order for remedial action or claim under Environmental Laws by an Authority or Third Party.