UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): January 13, 2021
Crescent Acquisition Corp
(Exact name of Registrant as specified in its charter)
Delaware | 001-38825 | 82-3447941 | ||
(State of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
||
11100 Santa Monica Blvd., Suite 2000 Los Angeles, CA |
90025 | |||
(Address of principal executive offices) | (Zip Code) |
(310) 235-5900
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☒ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
||
Units, each consisting of one share of Class A common stock and one-half of one redeemable Warrant | CRSAU | The NASDAQ Stock Market LLC | ||
Class A common stock, $0.0001 par value per share | CRSA | The NASDAQ Stock Market LLC | ||
Redeemable Warrants, each whole Warrant exercisable for one share of Class A common stock at an exercise price of $11.50 | CRSAW | The NASDAQ Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material Definitive Agreement.
On January 13, 2021, Crescent Acquisition Corp, a Delaware corporation (the Company), entered into an Agreement and Plan of Merger (the Merger Agreement), by and among the Company, Function Acquisition I Corp, a Delaware corporation and a direct, wholly owned subsidiary of the Company (First Merger Sub), Function Acquisition II LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of the Company (Second Merger Sub), LiveVox Holdings, Inc., a Delaware corporation (LiveVox), and GGC Services Holdco, Inc., a Delaware corporation, which provides for, among other things: (a) the merger of First Merger Sub with and into LiveVox, with LiveVox being the surviving corporation of the merger and a direct, wholly owned subsidiary of the Company as a consequence of the merger (the First Merger); and (b) immediately following the First Merger and as part of the same overall transaction as the First Merger, the merger of LiveVox with and into Second Merger Sub, with Second Merger Sub being the surviving corporation of the merger (together with the First Merger, the Mergers and, collectively with the other transactions contemplated by the Merger Agreement, the Business Combination). The Merger Agreement and the transactions contemplated thereby were unanimously approved by the board of directors of the Company and LiveVox.
The Merger Agreement
Merger Consideration
Pursuant to the Merger Agreement, the aggregate merger consideration payable to the stockholders of LiveVox will consist of (assuming no redemptions): (a) an amount in cash equal to the Closing Cash Payment Amount (as defined in the Merger Agreement), which is estimated to be approximately $218 million; and (b) shares of newly-issued Class A common stock of the Company, par value $0.0001 per share (Class A Stock), equal to the Closing Number of Securities (as defined in the Merger Agreement), which are expected to have a value of approximately $514 million based on a price of $10.00 per share. The merger consideration payable to the stockholders of LiveVox is also subject to adjustment based on LiveVoxs cash and indebtedness as of the closing date, among other adjustments contemplated by the Merger Agreement.
In addition to the consideration to be paid at the closing of the Business Combination, the stockholders of LiveVox will be entitled to receive additional earn-out payments from the Company of up to an aggregate of 5,000,000 shares of Class A Stock if the price of Class A common stock trading on the Nasdaq Capital Market exceeds certain thresholds during the seven-year period following the closing of the Business Combination. As an incentive for LiveVox to enter into the Merger Agreement, the Companys sponsor, CFI Sponsor LLC, a Delaware limited liability company (the Sponsor), has agreed that 2,743,750 shares of Class A Stock held by it and by the independent directors of the Company immediately following the closing of the Business Combination (following the automatic conversion of such shares upon the closing of the Business Combination from shares of Class F common stock of the Company, par value $0.0001 per share (Class F Stock), into shares of Class A Stock) will be held in escrow to be released only if the price of Class A Stock trading on the Nasdaq Capital Market exceeds the same thresholds during the seven-year period following the closing of the Business Combination.
Representations, Warranties and Covenants
The parties to the Merger Agreement have made representations, warranties and covenants that are customary for transactions of this nature. The representations and warranties of the respective parties to the Merger Agreement will not survive the closing of the transaction. The covenants made under the Merger Agreement generally will not survive the Closing, subject to certain exceptions, including certain covenants and agreements that by their terms are to be performed in whole or in part after the Closing.
Conditions to Consummation of the Transaction
Consummation of the Business Combination is subject to customary closing conditions, including approval by the Companys stockholders as well as expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act. In addition, each of the Companys and LiveVoxs obligation to consummate the Business Combination is subject to the Companys total cash proceeds, which includes, among other things, the cash available to the Company from its trust account and the proceeds from the Forward Purchase Agreement (as defined below) and the PIPE Investment (as defined below), equaling or exceeding $250 million.
Termination
The Merger Agreement may be terminated at any time prior to the consummation of the Business Combination (whether before or after the required Company stockholder vote has been obtained) by mutual written agreement of the Company and LiveVox and in certain other circumstances, including if the Business Combination has not been consummated by March 12, 2021, which date, if the Company obtains stockholder approval of an extension of its deadline to consummate a business combination, will automatically extend to the earlier of the date of such extension of deadline and July 13, 2021, provided that the right to terminate because such date has passed is not granted to a party whose action or failure to act has caused the delay in the closing of the Business Combination. The date may be further extended to September 13, 2021 in case all conditions to consummate the Business Combination have been satisfied or waived other than regulatory conditions and to a limited extent in case of government shutdowns.
The foregoing description of the Merger Agreement and the transactions contemplated thereby, including the Mergers, does not purport to be complete and is qualified in its entirety by the terms and conditions of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference. The Merger Agreement contains representations, warranties and covenants that the respective parties made to each other as of the date of such agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the Merger Agreement. The Merger Agreement has been attached to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company or any other party to the Merger Agreement. In particular, the representations, warranties, covenants and agreements contained in the Merger Agreement, which were made only for purposes of the Merger Agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to the Companys investors and security holders. Company investors and security holders are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Companys public disclosures.
Certain Related Agreements
Forward Purchase Agreement
On January 13, 2021, Crescent Capital Group Holdings LP (Crescent), an affiliate of the Sponsor, and the Company entered into the Forward Purchase Agreement (the Forward Purchase Agreement), pursuant to which Crescent has committed to purchase from the Company, and the Company has committed to issue and sell to Crescent, in each case, subject to the terms and conditions set forth therein, 2,500,000 shares of Class A Stock plus 833,333 redeemable warrants of the Company (the Warrants), each whole Warrant entitling the holder thereof to purchase one share of Class A Stock at a price of $11.50 per share, for an aggregate purchase price of $25,000,000 in a private placement that will close immediately prior to the closing of the Business Combination. The securities issued pursuant to the Forward Purchase Agreement will be subject to a lock-up period during which the transfer of such securities will be restricted.
The Forward Purchase Agreement provides for certain registration rights. In particular, within 30 calendar days after the consummation of the Business Combination, the Company is required to file with the Securities and Exchange Commission (the SEC) a registration statement registering the resale of the securities issued pursuant to the Forward Purchase Agreement. Additionally, the Company is required to use its commercially reasonable efforts to have the registration statement declared effective as soon as practicable after the filing thereof.
Subscription Agreements
On January 13, 2021, concurrently with the execution of the Merger Agreement, the Company entered into subscription agreements (the Subscription Agreements) with certain investors (collectively, the PIPE Investors), pursuant to, and on the terms and subject to the terms and conditions of which, the PIPE Investors have collectively subscribed for 7,500,000 shares of Class A Stock for an aggregate purchase price equal to $75,000,000 (the PIPE Investment), which, coupled with the $25,000,000 in proceeds from the Forward Purchase Agreement, will result in equity financings totaling $100,000,000 in connection with the Business Combination.
The Subscription Agreements for the PIPE Investors provide for certain registration rights. In particular, the Company is required to, within 30 calendar days after the consummation of the Business Combination, file with the SEC a registration statement registering the resale of the securities issued pursuant to the Subscription Agreements. Additionally, the Company is required to use its commercially reasonable efforts to have the registration statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 90th calendar day following the filing date thereof (or the 120th calendar day following the filing date thereof if the SEC notifies the Company that it will review the registration statement) and (ii) the 10th business day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that the registration statement will not be reviewed or will not be subject to further review.
The Subscription Agreements will terminate with no further force and effect upon the earliest to occur of: (a) such date and time as the Merger Agreement is terminated in accordance with its terms; (b) the mutual written agreement of the parties to such Subscription Agreement; (c) if any of the conditions to closing set forth in such Subscription Agreement are not satisfied on or prior to the Closing and, as a result thereof, the transactions contemplated by the Subscription Agreement fail to occur; and (d) if the consummation of the Business Transaction has not occurred by the outside date of the Merger Agreement.
Sponsor Support Agreement
On January 13, 2021, the Company entered into a Sponsor Support Agreement (the Sponsor Support Agreement), by and among the Company, LiveVox, the Sponsor and each of the parties set forth on Schedule A thereto (each such person and the Sponsor, a Supporting Party). Pursuant to the Sponsor Support Agreement, each Supporting Party agrees to, among other things, certain restrictions on the transfer of Company securities owned or beneficially owned by such Supporting Party or acquired thereafter, vote Company securities owned or beneficially owned by such Supporting Party in favor of the approval of the Business Combination and other proposals related to the Business Combination, refrain from redeeming Company securities owned or beneficially owned by such Supporting Party and waive certain other rights associated with the ownership or beneficial ownership of Company securities by such Supporting Party. As an incentive for LiveVox to enter into the Merger Agreement, the Sponsor also agreed to the cancelation of (i) 7,000,000 Warrants acquired by the Sponsor pursuant to a private placement in connection with the initial public offering of the Company at a purchase price of $1.00 per warrant and (ii) 2,725,000 shares of Class F Stock held by the Sponsor, in each case, for no consideration.
Stockholder Support Agreement
On January 13, 2021, the Company entered into a support agreement (the Stockholder Support Agreement), by and among the Company, LiveVox, GGC Services Holdco, Inc. and the sole stockholder of LiveVox (the LiveVox Stockholder). Under the Stockholder Support Agreement, the LiveVox Stockholder agreed to vote all of the outstanding capital stock of LiveVox in favor of the Business Combination.
Share Escrow Agreement
On January 13, 2021, the Company, certain independent directors of the Company and the Sponsor entered into a share escrow agreement (the Share Escrow Agreement). Pursuant to the Share Escrow Agreement, the Sponsor and such independent directors agreed, upon the closing of the Business Combination, to subject a total of 2,743,750 shares of Class A Stock (following the automatic conversion of such shares upon the closing of the Business Combination from shares of Class F Stock into shares of Class A Stock) into an escrow account to be subject to release only if the price of Class A Stock trading on the Nasdaq Capital Market exceeds certain thresholds during the seven-year period following the closing of the Business Combination. Any such securities not released during the seven-year period following the closing of the Business Combination will be forfeited.
Finders Agreement
On January 13, 2021, the Company and Neuberger Berman BD LLC, a Delaware limited liability company (Finder) entered into a finders agreement (the Finders Agreement). Pursuant to the Finders Agreement, in exchange for the Finder introducing the Company to LiveVox, the Company has agreed, following the closing of the Business Combination, to provide the Finder certain compensation and registration rights. The Finder shall not have any rights to compensation or registration rights if the Company does not consummate the Business Combination. The Finders Agreement provides that the Finder is initially eligible to receive 781,250 Class A Shares (the Initial Finder Shares) upon the earlier of (i) one year following the date of the consummation of the Business Combination (the Closing Date) and (ii) following the closing of the Business Combination (x) such time as the price of Class A common stock trading on the Nasdaq Capital Market exceeds certain thresholds or (y) subject to certain conditions, upon the completion of a liquidation, merger stock exchange or other similar transaction. Additionally, the Finder is eligible to receive up to an additional 1,943,750 shares of Class A Stock (the Additional Finder Shares) subject to the trading price of Class A Stock on the Nasdaq Capital Market exceeding certain thresholds during the seven-year period following the closing of the Business Combination.
The Finders Agreement also provides for certain registration rights. In particular, the Company is required to, within 60 calendar days after the issuance of the Initial Finder Shares or any Additional Finder Shares, file with the SEC a registration statement registering the resale of the Initial Finder Shares or any Additional Finder Shares. Additionally, the Company is required to use its commercially reasonable efforts to have the registration statement declared effective as soon as practicable after the filing thereof.
Registration Rights
The Merger Agreement contemplates that, at the Closing, the Company, Sponsor and LiveVoxs sole stockholder will enter into a registration rights agreement, pursuant to which the Company will agree to register for resale certain shares of the Company common stock that are held by the parties thereto from time to time. Pursuant to the registration rights agreement, shares of Class A Stock held by the Sponsor and by the independent directors of the Company immediately following the closing of the Business Combination (following the automatic conversion of such shares upon the closing of the Business Combination from shares of Class F Stock into shares of Class A Stock) will be subject to a lock-up period during which the transfer of such securities will be restricted.
The foregoing descriptions of the Merger Agreement, Forward Purchase Agreement, Subscription Agreements, Sponsor Support Agreement, Stockholder Support Agreement, Share Escrow Agreement, Finders Agreement and the transactions and documents contemplated thereby, is not complete and is subject to and qualified in its entirety by reference to the Merger Agreement, Forward Purchase Agreement, form of Subscription Agreement, Sponsor Support Agreement, Stockholder Support Agreement, Share Escrow Agreement and Finders Agreement, copies of which are filed with this Current Report on Form 8-K (this Current Report) as Exhibit 2.1, Exhibit 10.1, Exhibit 10.2, Exhibit 10.3, Exhibit 10.4, Exhibit 10.5 and Exhibit 10.6, respectively, and the terms of which are incorporated by reference herein.
The Merger Agreement, Forward Purchase Agreement, form of Subscription Agreement, Sponsor Support Agreement, Stockholder Support Agreement, Share Escrow Agreement and Finders Agreement have been included to provide investors with information regarding their terms. They are not intended to provide any other factual information about the Company or its affiliates. The representations, warranties, covenants and agreements contained in the Merger Agreement, Forward Purchase Agreement, form of Subscription Agreement, Sponsor Support Agreement, Stockholder Support Agreement, Share Escrow Agreement and Finders Agreement and the
other documents related thereto were made only for purposes of the Business Combination as of the specific dates therein, were solely for the benefit of the parties to the Merger Agreement, Forward Purchase Agreement, Subscription Agreements, Sponsor Support Agreement, Stockholder Support Agreement, Share Escrow Agreement and Finders Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement, Forward Purchase Agreement, Subscription Agreements, Sponsor Support Agreement, Stockholder Support Agreement, Share Escrow Agreement and Finders Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the Merger Agreement, Forward Purchase Agreement, Subscription Agreements, Sponsor Support Agreement, Stockholder Support Agreement, Share Escrow Agreement and Finders Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the Merger Agreement, Forward Purchase Agreement, Subscription Agreements, Sponsor Support Agreement, Stockholder Support Agreement, Share Escrow Agreement and Finders Agreement, as applicable, which subsequent information may or may not be fully reflected in the Companys public disclosures.
Item 1.02 Termination of a Material Definitive Agreement.
As previously disclosed by the Company, on October 5, 2020, the Company entered into the Second Amended and Restated Forward Purchase Agreement (the Prior FPA) with Crescent Capital Group LP (CCG) , pursuant to which CCG had committed to purchase from the Company, subject to the terms and conditions set forth therein, 5,000,000 shares of Class A Stock plus 1,666,6662/3 Warrants for an aggregate purchase price of $50,000,000 in a private placement that would close immediately prior to the closing of the Companys initial business combination.
On January 13, 2021, the Company and CCG mutually agreed to terminate the Prior FPA, to be effective immediately.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report is incorporated by reference herein. The shares of Class A Stock to be issued in connection with the Merger Agreement and the transactions contemplated thereby, including the First Merger and the PIPE Investment, the shares of Class A Stock and Warrants to be issued in connection with the Forward Purchase Agreement and the shares of Class A Stock to be issued in connection with the Finders Agreement, will not be registered under the Securities Act of 1933, as amended (the Securities Act), and will be issued in reliance on the exemption from registration requirements thereof provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder as a transaction by an issuer not involving a public offering.
Item 7.01 Regulation FD Disclosure.
The information in this Item 7.01, including Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3, is furnished and shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the Exchange Act), or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report on Form 8-K will not be deemed an admission as to the materiality of any information of the information contained in this Item 7.01, including Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3.
On January 14, 2021, the Company and LiveVox issued a joint press release announcing the execution of the Merger Agreement and the transactions contemplated thereby. The press release is furnished as Exhibit 99.1 to this Current Report and incorporated by reference herein.
An investor presentation for use by the Company and LiveVox during a joint investor conference call to discuss the Business Combination is furnished as Exhibit 99.2 to this Current Report and incorporated by reference herein.
The consolidated financial statements of LiveVox as of and for the years ended December 31, 2018 and 2019 are furnished as Exhibit 99.3 hereto and incorporated by reference herein.
Forward-Looking Statements
This Current Report contains certain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These statements may be made directly in this Current Report. Some of the forward-looking statements can be identified by the use of forward-looking words. Statements that are not historical in nature, including the words anticipate, expect, suggests, plan, believe, intend, estimates, targets, projects, should, could, would, may, will, forecast and other similar expressions are intended to identify forward-looking statements. All forward-looking statements are based upon management estimates and forecasts and reflect the views, assumptions, expectations, and opinions of the Company or LiveVox, as the case may be, as of the date of this Current Report, and may include, without limitation, changes in general economic conditions, including as a result of COVID-19, all of which are accordingly subject to change. Any such estimates, assumptions, expectations, forecasts, views or opinions set forth in this Current Report constitute the Companys or LiveVoxs, as the case may be, judgments and should be regarded as indicative, preliminary and for illustrative purposes only. The forward-looking statements and projections contained in this Current Report are subject to a number of factors, risks and uncertainties, some of which are not currently known to the Company or LiveVox, that may cause the Companys or LiveVoxs actual results, performance or financial condition to be materially different from the expectations of future results, performance of financial condition. Although such forward-looking statements have been made in good faith and are based on assumptions that the Company or LiveVox, as the case may be, believe to be reasonable, there is no assurance that the expected results will be achieved. The Companys and LiveVoxs actual results may differ materially from the results discussed in forward-looking statements. Additional information on factors that may cause actual results and the Companys performance to differ materially is included in the Companys periodic reports filed with the SEC, including but not limited to the Companys annual report on Form 10-K for the year ended December 31, 2019 and subsequent quarterly reports on Form 10-Q. Copies of the Companys filings with the SEC are available publicly on the SECs website at www.sec.gov or may be obtained by contacting the Company. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. These forward-looking statements are made only as of the date hereof, and neither the Company nor LiveVox undertake any obligations to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
Additional Information about the Business Combination and Where to Find It
This Current Report may be deemed solicitation material in respect of the Business Combination. The Business Combination will be submitted to the stockholders of the Company for their approval. In connection with such stockholder vote, the Company intends to file with the SEC a preliminary proxy statement on Schedule 14A and, when completed, will mail a definitive proxy statement to its stockholders in connection with the Companys solicitation of proxies for the special meeting of the stockholders of the Company to be held to approve the Business Combination. This Current Report does not contain all the information that should be considered concerning the proposed Business Combination and the other matters to be voted upon at the special meeting and is not intended to provide the basis for any investment decision or any other decision in respect of such matters. The Companys stockholders and other interested parties are urged to read, when available, the preliminary proxy statement, the amendments thereto, the definitive proxy statement and any other relevant documents that are filed or furnished or will be filed or will be furnished with the SEC carefully and in their entirety in connection with the Companys solicitation of proxies for the special meeting to be held to approve the Business Combination and other related matters, as these materials will contain important information about LiveVox and the Company and the proposed Business Combination. The definitive proxy statement will be mailed to the stockholders of the Company as of the record date to be established for voting on the proposed Business Combination and the other matters to be voted upon at the special meeting. Such stockholders will also be able to obtain copies of the proxy statement, without charge, once available, at the SECs website at http://ww.sec.gov, at the Companys website at http://www.crescentspac.com or by directing a request to Crescent Acquisition Corp, 11100 Santa Monica Blvd., Suite 2000, Los Angeles, CA 90025.
No Offer or Solicitation
This Current Report is for informational purposes only and does not constitute an offer or invitation for the sale or purchase of securities, assets or the business described herein or a commitment to the Company or the LiveVox with respect to any of the foregoing, and this Current Report shall not form the basis of any contract, nor is it a solicitation of any vote, consent, or approval in any jurisdiction pursuant to or in connection with the Business Combination or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law.
Participants in the Solicitation
The Company and LiveVox, and their respective directors and executive officers, may be deemed participants in the solicitation of proxies of the Companys stockholders in respect of the Business Combination. Information about the directors and executive officers of the Company is set forth in the Companys Form 10-K for the year ended December 31, 2019. Information about the directors and executive officers of LiveVox and more detailed information regarding the identity of all potential participants, and their direct and indirect interests, by security holdings or otherwise, will be set forth in the proxy statement for the Business Combination when available. Additional information regarding the identity of all potential participants in the solicitation of proxies to the Companys stockholders in connection with the proposed Business Combination and other matters to be voted upon at the special meeting, and their direct and indirect interests, by security holdings or otherwise, will be included in the proxy statement that the Company intends to file with the SEC. Investors may obtain such information by ready such proxy statement when it becomes available.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
* |
Certain schedules have been omitted from this filing pursuant to Item 601(a)(5) of Regulation S-K and will be furnished to the Securities and Exchange Commission upon request. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: January 14, 2021
Crescent Acquisition Corp | ||
/s/ George Hawley |
||
Name: | George Hawley | |
Title: | General Counsel and Secretary |
Exhibit 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CRESCENT ACQUISITION CORP,
FUNCTION ACQUISITION I CORP,
FUNCTION ACQUISITION II LLC,
LIVEVOX HOLDINGS, INC.,
and
GGC SERVICES HOLDCO, INC.,
IN ITS CAPACITY AS THE STOCKHOLDER REPRESENTATIVE
DATED AS OF JANUARY 13, 2021
TABLE OF CONTENTS
Page | ||||||
ARTICLE I THE CLOSING TRANSACTIONS |
3 | |||||
1.1 |
Closing |
3 | ||||
1.2 |
Closing Documents |
4 | ||||
1.3 |
Closing Transactions |
5 | ||||
ARTICLE II THE MERGERS |
6 | |||||
2.1 |
Effective Times |
6 | ||||
2.2 |
The Mergers |
6 | ||||
2.3 |
Effect of the Mergers |
7 | ||||
2.4 |
Governing Documents |
7 | ||||
2.5 |
Directors and Officers of the Surviving Corporation and the Surviving Entity |
7 | ||||
2.6 |
Merger Consideration |
8 | ||||
2.7 |
Effect of the First Merger on the Company Common Stock |
8 | ||||
2.8 |
Effect of the Second Merger |
9 | ||||
2.9 |
Surrender of Company Certificate and Disbursement of Estimated Merger Consideration and Earn Out Shares |
10 | ||||
2.10 |
Adjustment Escrow Deposit |
10 | ||||
2.11 |
Closing Calculations; Adjustment |
10 | ||||
2.12 |
Tax Treatment of the Mergers |
15 | ||||
2.13 |
Withholding Taxes |
15 | ||||
2.14 |
Taking of Necessary Action; Further Action |
16 | ||||
ARTICLE III EARN OUT |
16 | |||||
3.1 |
Delivery of Earn Out Shares |
16 | ||||
3.2 |
Procedures Applicable to the Earn Out Shares |
16 | ||||
3.3 |
Release of Earn Out Shares |
18 | ||||
3.4 |
Equitable Adjustments |
18 | ||||
3.5 |
Acceleration Event |
18 | ||||
3.6 |
Tax Treatment of Earn Out Shares |
18 | ||||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
19 | |||||
4.1 |
Organization and Qualification |
19 | ||||
4.2 |
Company Subsidiaries |
19 | ||||
4.3 |
Capitalization of the Company |
20 | ||||
4.4 |
Authority Relative to this Agreement |
21 | ||||
4.5 |
No Conflict; Required Filings and Consents |
21 | ||||
4.6 |
Compliance; Approvals |
22 | ||||
4.7 |
Financial Statements |
23 | ||||
4.8 |
No Undisclosed Liabilities. |
24 | ||||
4.9 |
Absence of Certain Changes or Events |
24 | ||||
4.10 |
Litigation |
24 | ||||
4.11 |
Employee Benefit Plans |
25 |
i
4.12 |
Labor Matters |
27 | ||||
4.13 |
Real Property; Tangible Property |
29 | ||||
4.14 |
Taxes |
30 | ||||
4.15 |
Environmental Matters |
32 | ||||
4.16 |
Brokers; Third-Party Expenses |
33 | ||||
4.17 |
Intellectual Property |
33 | ||||
4.18 |
Privacy |
35 | ||||
4.19 |
Agreements, Contracts and Commitments |
36 | ||||
4.20 |
Insurance |
39 | ||||
4.21 |
Interested Party Transactions |
39 | ||||
4.22 |
Information Supplied |
40 | ||||
4.23 |
Anti-Bribery; Anti-Corruption |
40 | ||||
4.24 |
Customs & International Trade; Sanctions |
41 | ||||
4.25 |
Indebtedness |
42 | ||||
4.26 |
Suppliers |
42 | ||||
4.27 |
Customers |
42 | ||||
4.28 |
Disclaimer of Other Warranties |
42 | ||||
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT, FIRST MERGER SUB AND SECOND MERGER SUB |
44 | |||||
5.1 |
Organization and Qualification |
44 | ||||
5.2 |
Parent Subsidiaries |
45 | ||||
5.3 |
Capitalization |
45 | ||||
5.4 |
Authority Relative to this Agreement |
47 | ||||
5.5 |
No Conflict; Required Filings and Consents |
48 | ||||
5.6 |
Compliance; Approvals |
48 | ||||
5.7 |
Parent SEC Reports and Financial Statements |
49 | ||||
5.8 |
Absence of Certain Changes or Events |
50 | ||||
5.9 |
Litigation |
50 | ||||
5.10 |
Business Activities |
50 | ||||
5.11 |
Parent Material Contracts |
50 | ||||
5.12 |
Parent Listing |
50 | ||||
5.13 |
Trust Account |
51 | ||||
5.14 |
Taxes |
52 | ||||
5.15 |
Information Supplied |
52 | ||||
5.16 |
Employees; Benefit Plans |
53 | ||||
5.17 |
Board Approval; Stockholder Vote |
53 | ||||
5.18 |
Title to Assets |
53 | ||||
5.19 |
Affiliate Transactions |
53 | ||||
5.20 |
Forward Purchase Agreement |
54 | ||||
5.21 |
PIPE Investment |
54 | ||||
5.22 |
Investment Company Act; JOBS Act |
55 | ||||
5.23 |
No Undisclosed Liabilities |
55 | ||||
5.24 |
Brokers |
55 | ||||
5.25 |
Disclaimer of Other Warranties |
55 |
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ARTICLE VI CONDUCT PRIOR TO THE CLOSING DATE |
57 | |||||
6.1 |
Conduct of Business by the Company and the Company Subsidiaries |
57 | ||||
6.2 |
Conduct of Business by Parent, First Merger Sub and Second Merger Sub |
60 | ||||
ARTICLE VII ADDITIONAL AGREEMENTS |
63 | |||||
7.1 |
Proxy Statement; Special Meeting |
63 | ||||
7.2 |
Certain Regulatory Matters |
66 | ||||
7.3 |
Other Filings; Press Release |
67 | ||||
7.4 |
Confidentiality; Communications Plan; Access to Information |
68 | ||||
7.5 |
Reasonable Best Efforts |
69 | ||||
7.6 |
No Parent Securities Transactions |
70 | ||||
7.7 |
No Claim Against Trust Account |
70 | ||||
7.8 |
Disclosure of Certain Matters |
70 | ||||
7.9 |
Securities Listing |
70 | ||||
7.10 |
No Solicitation |
71 | ||||
7.11 |
Trust Account |
72 | ||||
7.12 |
Directors and Officers Liability Insurance |
72 | ||||
7.13 |
Tax Matters |
73 | ||||
7.14 |
Section 16 Matters |
74 | ||||
7.15 |
Qualification as an Emerging Growth Company |
74 | ||||
7.16 |
Board of Directors |
74 | ||||
7.17 |
Payoff of Borrowed Indebtedness |
75 | ||||
7.18 |
Insufficient Parent Cash; Additional Purchase Right |
75 | ||||
7.19 |
Forward Purchase Transaction |
75 | ||||
7.20 |
Equity Incentive Plan |
76 | ||||
7.21 |
Release |
76 | ||||
7.22 |
Employment Matters |
76 | ||||
7.23 |
D&O Indemnification Agreements |
76 | ||||
7.24 |
Stockholders Agreement |
76 | ||||
7.25 |
PIPE Investment |
77 | ||||
7.26 |
Required Extension |
77 | ||||
ARTICLE VIII CONDITIONS TO THE TRANSACTION |
78 | |||||
8.1 |
Conditions to Obligations of Each Partys Obligations |
78 | ||||
8.2 |
Additional Conditions to Obligations of the Company |
78 | ||||
8.3 |
Additional Conditions to the Obligations of Parent, First Merger Sub and Second Merger Sub |
80 | ||||
ARTICLE IX TERMINATION |
81 | |||||
9.1 |
Termination |
81 | ||||
9.2 |
Notice of Termination; Effect of Termination |
83 | ||||
ARTICLE X NO SURVIVAL |
83 | |||||
10.1 |
No Survival |
83 | ||||
ARTICLE XI GENERAL PROVISIONS |
84 | |||||
11.1 |
Stockholder Representative |
84 | ||||
11.2 |
Notices |
86 |
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11.3 |
Interpretation |
87 | ||||
11.4 |
Counterparts; Electronic Delivery |
88 | ||||
11.5 |
Entire Agreement; Third-Party Beneficiaries |
88 | ||||
11.6 |
Severability |
88 | ||||
11.7 |
Other Remedies; Specific Performance |
89 | ||||
11.8 |
Governing Law |
90 | ||||
11.9 |
Consent to Jurisdiction; Waiver of Jury Trial |
90 | ||||
11.10 |
Independent Counsel |
91 | ||||
11.11 |
Expenses |
91 | ||||
11.12 |
Assignment |
91 | ||||
11.13 |
Amendment |
91 | ||||
11.14 |
Extension; Waiver |
91 | ||||
11.15 |
No Recourse |
92 | ||||
11.16 |
Legal Representation |
92 | ||||
11.17 |
Disclosure Letters and Exhibits |
94 |
EXHIBITS | ||
Exhibit A |
Form of Support Agreement |
|
Exhibit B |
Form of Sponsor Support Agreement |
|
Exhibit C |
Form of Parent A&R Charter |
|
Exhibit D |
Form of Parent A&R Bylaws |
|
Exhibit E |
Form of Forward Purchase Agreement |
|
Exhibit F |
Form of A&R Registration Rights Agreement |
|
SCHEDULES | ||
Schedule A | Defined Terms |
iv
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made and entered into as of January 13, 2021, by and among Crescent Acquisition Corp, a Delaware corporation (Parent), Function Acquisition I Corp, a Delaware corporation and a direct, wholly owned subsidiary of Parent (First Merger Sub), Function Acquisition II LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of Parent (Second Merger Sub), LiveVox Holdings, Inc., a Delaware corporation (the Company), and GGC Services Holdco, Inc., a Delaware corporation, solely in its capacity as the representative, agent and attorney-in-fact of the Company Stockholder hereunder (in such capacity, the Stockholder Representative). Each of the Company, Parent, First Merger Sub, Second Merger Sub and the Stockholder Representative shall individually be referred to herein as a Party and, collectively, the Parties. The term Agreement as used herein refers to this Agreement and Plan of Merger, as the same may be amended from time to time, and all schedules, exhibits and annexes hereto (including the Company Disclosure Letter and the Parent Disclosure Letter, as defined herein). Defined terms used in this Agreement are listed alphabetically in Schedule A, together with the section and, if applicable, subsection in which the definition of each such term is located.
RECITALS
WHEREAS, Parent is a special purpose acquisition company incorporated in Delaware for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses;
WHEREAS, upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the DGCL) and the General Limited Liability Company Act of the State of Delaware (the DLLCA) and other applicable Legal Requirements (collectively, as applicable based on context, the Applicable Legal Requirements), the Parties intend to enter into a business combination transaction by which: (a) First Merger Sub will merge with and into the Company (the First Merger), with the Company being the surviving corporation of the First Merger and a direct, wholly owned subsidiary of Parent as a consequence of the First Merger (the Company, in its capacity as the surviving corporation of the First Merger, is sometimes referred to as the Surviving Corporation); and (b) immediately following the First Merger and as part of the same overall transaction as the First Merger, the Surviving Corporation will merge with and into Second Merger Sub (the Second Merger and, together with the First Merger, the Mergers), with Second Merger Sub being the surviving entity of the Second Merger (Second Merger Sub, in its capacity as the surviving entity of the Second Merger, is sometimes referred to herein as the Surviving Entity);
WHEREAS, for U.S. federal income tax purposes, each of the Parties intends that the First Merger and the Second Merger, taken together, will constitute an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations, and that this Agreement be adopted as a plan of reorganization for the purposes of Section 368 of the Code and Treasury Regulations Section 1.368-2(g);
WHEREAS, the board of directors of the Company has unanimously: (a) determined that it is in the best interests of the Company and the stockholder of the Company, and declared it advisable, to enter into this Agreement providing for the Mergers in accordance with the DGCL and DLLCA, as applicable; (b) approved this Agreement and the Transactions, including the Mergers in accordance with the DGCL and DLLCA, as applicable, on the terms and subject to the conditions of this Agreement; and (c) adopted a resolution recommending the plan of merger set forth in this Agreement be adopted by the stockholder of the Company;
WHEREAS, (a) the Company Stockholder has entered into, and simultaneously with entry into this Agreement has delivered to Parent, a support agreement substantially in the form attached hereto as Exhibit A (the Support Agreement) and (b) the holder of all the shares of Company Common Stock will approve and adopt this Agreement, the First Merger and the other Transactions in accordance with Section 251 of the DGCL (the Company Stockholder Approval) and agree to be bound by all of the terms of this Agreement through a unanimous written consent pursuant to Section 228 of the DGCL, as promptly as practicable after the execution and delivery of this Agreement, and in any event within 24 hours;
WHEREAS, the board of directors of Parent (the Parent Board) has unanimously: (a) determined that it is in the best interests of Parent and the stockholders of Parent, and declared it advisable, to enter into this Agreement providing for the Mergers in accordance with the DGCL and DLLCA, as applicable; (b) approved this Agreement and the Transactions, including the Mergers in accordance with the DGCL and DLLCA, as applicable, on the terms and subject to the conditions of this Agreement; and (c) adopted a resolution recommending the plan of merger set forth in this Agreement be adopted by the stockholders of Parent (the Parent Recommendation);
WHEREAS, CFI Sponsor LLC (Sponsor), each of the other Persons set forth on Schedule A thereto, the Company and Parent have entered into, and simultaneously with entry into this Agreement have delivered to the Company, a support agreement substantially in the form attached hereto as Exhibit B (the Sponsor Support Agreement) pursuant to which, among other things, Sponsor will surrender 7,000,000 Private Placement Warrants and 2,725,000 shares of Parent Class F Stock to Parent for cancellation and vote in favor of the transactions contemplated hereby;
WHEREAS, prior to the Closing and the closing of the PIPE Investment, Parent shall: (a) subject to obtaining the approval of the Parent Stockholder Matters, adopt the Second Amended and Restated Certificate of Incorporation of Parent (the Parent A&R Charter) substantially in the form attached hereto as Exhibit C; and (b) adopt the Second Amended and Restated Bylaws of Parent (the Parent A&R Bylaws) substantially in the form attached hereto as Exhibit D, in each case, to be effective as of the Closing;
WHEREAS, Parent and Crescent Capital Group Holdings LP (Crescent) have entered into, and simultaneously with entry into this Agreement have delivered to the Company, a Forward Purchase Agreement (the Forward Purchase Agreement) substantially in the form attached hereto as Exhibit E, whereby, among other things, Crescent has agreed to acquire 2,500,000 Parent Units consisting of 2,500,000 shares of Parent Class A Stock and 833,333 warrants to purchase one share of Parent Class A Stock for an aggregate purchase price of $25 million (the Forward Purchase Investment Amount) in a private placement that will close immediately prior to the consummation of the First Merger (such transaction, the Forward Purchase Transaction);
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WHEREAS, in connection with the consummation of the First Merger, (a) Parent, the Company Stockholder, Crescent and the Sponsor will enter into an amended and restated Registration Rights Agreement (the A&R Registration Rights Agreement) substantially in the form attached hereto as Exhibit F pursuant to which, among other things, the Company Stockholder will agree to a lock-up of shares of Parent Class A Stock issued to the Company Stockholder as part of the Final Merger Consideration for a period of 180 days, subject to customary exceptions and (b) Parent, the Company Stockholder, Crescent and the Sponsor will enter into a stockholders agreement in accordance with Section 7.24 (the Stockholders Agreement);
WHEREAS, as an inducement to the Company Stockholder to enter into this Agreement, Sponsor has agreed to place 2,743,750 shares of Parent Class F Stock (or shares of Parent Class A Stock issued upon conversion of such shares) held by Sponsor, certain independent directors of Parent or its or their transferees into an escrow account to be released, if at all, on substantially the same terms as the Earn Out Shares (the Escrow Shares);
WHEREAS, on or prior to the date hereof, Parent has obtained commitments from certain investors for a private placement of at least 7,500,000 shares of Parent Class A Stock (the PIPE Investment) pursuant to the terms of one or more subscription agreements (each, a Subscription Agreement) for consideration in an aggregate amount of at least $75,000,000 (the PIPE Investment Amount), and such private placements are to be consummated prior to the consummation of the Transactions; and
WHEREAS, the Company Stockholder has provided the Initial Spreadsheet to Parent which is included as Schedule 1.1 of the Company Disclosure Letter, which Initial Spreadsheet demonstrates the allocation of cash and equity consideration to the Company Stockholder and its beneficial owners.
NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
THE CLOSING TRANSACTIONS
1.1 Closing. Upon the terms and subject to the conditions of this Agreement, the consummation of the Transactions (the Closing) shall occur by electronic exchange of documents at a time and date to be specified in writing by the Parties, which shall be no later than the third (3rd) Business Day after the satisfaction or waiver of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), or at such other time, date and location as the Parties agree in writing (the date on which the Closing occurs, the Closing Date). The Parties agree that the Closing signatures may be transmitted by email pdf files.
3
1.2 Closing Documents.
(a) At the Closing, Parent, First Merger Sub or Second Merger Sub shall, as applicable, deliver or have delivered to the Company:
(i) a certified copy of the Parent A&R Charter issued by the Secretary of State of the State of Delaware;
(ii) a certificate, dated as of the Closing Date, signed by the Secretary of Parent certifying that the bylaws of Parent attached thereto is a true and correct copy of the Parent A&R Bylaws in effect at the Closing;
(iii) a copy of the A&R Registration Rights Agreement, duly executed by Parent, Crescent and the Sponsor;
(iv) a copy of the Second Certificate of Merger, duly executed by the Second Merger Sub;
(v) copies of resolutions and actions taken by Parents, First Merger Subs and Second Merger Subs board of directors and stockholders (or managers and members, as applicable) in connection with the approval of this Agreement and the Transactions;
(vi) a copy of the Escrow Agreement, duly executed by Parent and the Escrow Agent;
(vii) a copy of the Earn Out Escrow Agreement, duly executed by Parent, the Sponsor and the Earn Out Escrow Agent;
(viii) a copy of the Stockholders Agreement, duly executed by Parent, Crescent and the Sponsor; and
(ix) (A) all other documents, instruments or certificates required to be delivered by Parent at or prior to the Closing pursuant to Section 8.2; and (B) such other documents or certificates as shall reasonably be required by the Company and its counsel in order to consummate the Transactions.
(b) At the Closing, the Company shall deliver or have delivered to Parent:
(i) a copy of the First Certificate of Merger, duly executed by the Company;
(ii) a copy of the A&R Registration Rights Agreement, duly executed by the Company Stockholder;
(iii) a copy of the Escrow Agreement, duly executed by the Stockholder Representative;
4
(iv) a copy of the Earn Out Escrow Agreement, duly executed by the Company Stockholder and the Stockholder Representative;
(v) a copy of the Stockholders Agreement, duly executed by the Company Stockholder;
(vi) a copy of the Final Spreadsheet;
(vii) copies of resolutions and actions taken by the Companys board of directors and the Company Stockholder in connection with the approval of this Agreement and the Transactions; and
(viii) (A) all other documents, instruments or certificates required to be delivered by the Company at or prior to the Closing pursuant to Section 8.3; and (B) such other documents or certificates as shall reasonably be required by Parent and its counsel in order to consummate the Transactions.
1.3 Closing Transactions. At the Closing and on the Closing Date, the Parties shall cause the consummation of the following transactions in the following order, upon the terms and subject to the conditions of this Agreement:
(a) Parent shall make any payments required to be made by Parent in connection with the Parent Stockholder Redemption;
(b) Parent shall pay, or cause to be paid, Estimated Parent Transaction Costs to the applicable payees set forth on the Parent Estimated Adjustment Statement, to the extent not paid prior to the Closing;
(c) Parent shall contribute to First Merger Sub: (i) the amount of cash remaining in the Trust Account, (ii) the Aggregate Forward Purchase Investment Amount and (iii) the PIPE Investment Amount, in each case after giving effect to the Parent Stockholder Redemption and the payment of the amounts provided for in Section 1.3(b);
(d) The certificate of merger with respect to the First Merger shall be prepared and executed in accordance with the relevant provisions of the DGCL (the First Certificate of Merger) and Parent shall cause the First Certificate of Merger to be filed with the Secretary of State of the State of Delaware and become effective;
(e) The certificate of merger with respect to the Second Merger shall be prepared and executed in accordance with the relevant provisions of the DLLCA (the Second Certificate of Merger and, together with the First Certificate of Merger, the Certificates of Merger) and Parent shall cause the Second Certificate of Merger to be filed with the Secretary of State of the State of Delaware and become effective;
(f) Parent shall deposit (or cause to be deposited) with the Escrow Agent the Adjustment Escrow Amount;
5
(g) Parent shall deposit (or cause to be deposited) with the Stockholder Representative the Stockholder Representative Expense Holdback Amount;
(h) Parent shall (on behalf of the Company) pay, or cause to be paid, all Estimated Company Transaction Costs to the extent not paid by the Company prior to the Closing, to the applicable payees as set forth on the Company Estimated Adjustment Statement by wire transfer of immediately available funds;
(i) Parent shall deliver (or cause to be delivered) to the Company Stockholder the Closing Cash Payment Amount and the Closing Number of Securities as set forth on the Final Spreadsheet; and
(j) Parent shall accept the 7,000,000 Private Placement Warrants and 2,725,000 shares of Parent Class F Stock surrendered by Sponsor for cancellation.
ARTICLE II
THE MERGERS
2.1 Effective Times. Upon the terms and subject to the conditions of this Agreement, on the Closing Date, the Company and First Merger Sub shall cause the First Merger to be consummated by filing the First Certificate of Merger with the Secretary of State of the State of Delaware, in accordance with the applicable provisions of the DGCL (the time of such filing, or such later time as may be agreed in writing by the Company and Parent and specified in the First Certificate of Merger, being the Effective Time). As soon as practicable following the Effective Time and in any case on the same day as the Effective Time, the Surviving Corporation and Second Merger Sub shall cause the Second Merger to be consummated by filing the Second Certificate of Merger with the Secretary of State of the State of Delaware, in accordance with the applicable provisions of the DLLCA (the time of such filing, or such later time as may be agreed in writing by the Company and Parent and specified in the Second Certificate of Merger, being the Second Effective Time).
2.2 The Mergers.
(a) At the Effective Time, upon the terms and subject to the conditions of this Agreement and in accordance with the applicable provisions of the DGCL, First Merger Sub and the Company shall consummate the First Merger, pursuant to which First Merger Sub shall be merged with and into the Company, following which the separate existence of First Merger Sub shall cease and the Company shall continue as the Surviving Corporation after the First Merger and as a direct, wholly owned subsidiary of Parent (provided that references to the Company for periods after the Effective Time until the Second Effective Time shall include the Surviving Corporation).
(b) At the Second Effective Time, upon the terms and subject to the conditions of this Agreement and in accordance with the applicable provisions of the DLLCA, the Surviving Corporation shall be merged with and into Second Merger Sub, following which the separate existence of the Surviving Corporation shall cease and Second Merger Sub shall continue as the
6
Surviving Entity after the Second Merger and as a direct, wholly owned subsidiary of Parent (provided that references to the Company or the Surviving Corporation for periods after the Second Effective Time shall include the Surviving Entity).
2.3 Effect of the Mergers.
(a) At the Effective Time, the effect of the First Merger shall be as provided in this Agreement, the First Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the property, rights, privileges, agreements, powers and debts, liabilities, duties and obligations of First Merger Sub and the Company shall become the property, rights, privileges, agreements, powers and debts, liabilities, duties and obligations of the Surviving Corporation, which shall include the assumption by the Surviving Corporation of any and all agreements, covenants, duties and obligations of First Merger Sub and the Company set forth in this Agreement to be performed after the Effective Time.
(b) At the Second Effective Time, the effect of the Second Merger shall be as provided in this Agreement, the Second Certificate of Merger and the applicable provisions of the DGCL and DLLCA. Without limiting the generality of the foregoing, and subject thereto, at the Second Effective Time, all the property, rights, privileges, agreements, powers and debts, liabilities, duties and obligations of Second Merger Sub and the Surviving Corporation shall become the property, rights, privileges, agreements, powers and debts, liabilities, duties and obligations of the Surviving Entity, which shall include the assumption by the Surviving Entity of any and all agreements, covenants, duties and obligations of Surviving Entity and the Surviving Corporation set forth in this Agreement to be performed after the Second Effective Time.
2.4 Governing Documents. Subject to Section 7.12, (a) at the Effective Time, by virtue of the First Merger, the certificate of incorporation of the Company shall be amended and restated to read in its entirety as the certificate of incorporation of First Merger Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be such name as is reasonably determined by the Company no later than five (5) Business Days prior to the Closing Date and (b) the parties shall take all actions necessary so that the bylaws of the Company shall be amended and restated as of the Effective Time to read in their entirety as the bylaws of First Merger Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be such name as is reasonably determined by the Company no later than five (5) Business Days prior to the Closing Date. Subject to Section 7.12, at the Second Effective Time, the certificate of formation and operating agreement of Second Merger Sub as in effect immediately prior to the Second Effective Time shall be amended to change the name of the Surviving Entity to such name as is determined by the Company no later than five (5) Business Days prior to the Closing Date, but otherwise shall continue to be the certificate of formation and operating agreement of the Surviving Entity until thereafter amended in accordance with their terms and as provided by Applicable Legal Requirements.
2.5 Directors and Officers of the Surviving Corporation and the Surviving Entity. The parties shall take all actions necessary such that immediately after the Effective Time, the board of directors and executive officers of the Surviving Corporation shall be the persons who are the board of directors and executive officers of First Merger Sub immediately prior to the Effective
7
Time. The parties shall take all actions necessary such that immediately after the Second Effective Time, the board of directors and executive officers of the Surviving Entity shall be the directors and executive officers set forth on Schedule 2.5 of the Company Disclosure Letter.
2.6 Merger Consideration.
(a) Upon the terms and subject to the conditions of this Agreement, the aggregate consideration to be paid to the Company Stockholder shall be: (i) an amount equal to the Final Merger Consideration and (ii) any amounts that may be payable from the Adjustment Escrow Amount as provided in Section 2.11(h) or the Stockholder Representative Expense Holdback Amount as provided in Section 11.1(c); and (iii) the Earn Out Shares in accordance with Article III (collectively, the Total Consideration).
(b) The Final Merger Consideration shall be paid in the form of: (i) an amount in cash equal to the Closing Cash Payment Amount; (ii) the Closing Number of Securities; and (iii) any amount in cash or shares of Parent Class A Stock payable pursuant to Section 2.11. The Company Stockholder shall be entitled to receive such consideration as is set forth in Section 2.7.
2.7 Effect of the First Merger on the Company Common Stock. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, by virtue of the First Merger and without any further action on the part of Parent, First Merger Sub, the Company, the Company Stockholder or the holders of any of the securities of Parent, the following shall occur:
(a) Each share of Company Common Stock (other than Excluded Shares) issued and outstanding immediately prior to the Effective Time will be cancelled and automatically converted into the right to receive the Total Consideration, with the Company Stockholder being entitled to receive the (i) Closing Cash Payment Amount, (ii) Closing Number of Securities, (iii) Adjustment Escrow Amount to the extent payable to the Company Stockholder pursuant to Section 2.11, (iv) Stockholder Representative Expense Holdback Amount to the extent payable to the Company Stockholder pursuant to Section 11.1(c) and (v) number of Earn Out Shares in the Final Spreadsheet, which is incorporated herein and made a part hereof, in each case, without interest, upon surrender of the stock certificate representing all of the Company Stockholders Company Common Stock (the Certificate) and delivery of the other documents and information required pursuant to Section 2.9. As of the Effective Time, the Company Stockholder shall cease to have any other rights in and to the Company or the Surviving Corporation or the Surviving Entity, and the Certificate relating to the ownership of shares of Company Common Stock (other than Excluded Shares) shall thereafter represent only the right to receive the Total Consideration set forth on the Final Spreadsheet.
(b) No fraction of a share of Parent Class A Stock will be issued by virtue of the First Merger, and if the Company Stockholder would otherwise be entitled to a fraction of a share of Parent Class A Stock in accordance with the Final Spreadsheet then the Company Stockholder shall receive from Parent, in lieu of such fractional share: (i) one share of Parent Class A Stock if the aggregate amount of fractional shares of Parent Class A Stock the Company Stockholder would otherwise be entitled to is equal to or exceeds 0.50; or (ii) no shares of Parent Class A Stock if the aggregate amount of fractional shares of Parent Class A Stock the Company Stockholder would otherwise be entitled to is less than 0.50.
8
(c) Each issued and outstanding share of common stock of First Merger Sub as of immediately prior to the Effective Time shall be converted into and become one validly issued, fully paid and non-assessable share of common stock, par value $0.0001 per share, of the Surviving Corporation, which shall constitute the only outstanding shares of capital stock of the Surviving Corporation. From and after the Effective Time, all certificates representing the common stock of First Merger Sub as of immediately prior to the Effective Time shall be deemed for all purposes to represent the number of shares of common stock of the Surviving Corporation into which they were converted in accordance with the immediately preceding sentence.
(d) Each share of Company Common Stock held in the Companys treasury prior to the Effective Time (each an Excluded Share) shall be cancelled and no consideration shall be paid or payable with respect thereto.
(e) The numbers of shares of Parent Class A Stock that the Company Stockholder is entitled to receive as a result of the First Merger and as otherwise contemplated by this Agreement shall be adjusted to reflect appropriately the effect of any stock split, split-up, reverse stock split, stock dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Class A Stock occurring on or after the date hereof and prior to the Closing. The number of Earn Out Shares that the Company Stockholder is entitled to receive as a result of the First Merger and as otherwise contemplated by this Agreement shall be equitably adjusted to reflect appropriately the effect of any stock split, split-up, reverse stock split, stock dividend or distribution (including any dividend or distribution of securities convertible into Parent Class A Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Parent Class A Stock occurring on or after the date hereof and prior to the Closing. Nothing in this Section 2.7(e) shall be construed to permit Parent to take any action with respect to its securities that is prohibited by the terms of this Agreement.
2.8 Effect of the Second Merger. Upon the terms and subject to the conditions of this Agreement, at the Second Effective Time, by virtue of the Second Merger and without any action on the part of any Party or the Company Stockholder or the holders of any shares of capital stock of Parent or the Surviving Corporation or membership interests in Second Merger Sub: (a) each share of common stock of the Surviving Corporation issued and outstanding immediately prior to the Second Effective Time shall be cancelled and shall cease to exist without any conversion thereof or payment therefor; and (b) each membership interest in Second Merger Sub issued and outstanding immediately prior to the Second Effective Time shall be converted into and become one validly issued, fully paid and non-assessable membership interest in the Surviving Entity, which shall constitute the only outstanding equity of the Surviving Entity. From and after the Second Effective Time, all certificates, if any, representing membership interests in Second Merger Sub shall be deemed for all purposes to represent the number of membership interests of the Surviving Entity into which they were converted in accordance with the immediately preceding sentence.
9
2.9 Surrender of Company Certificate and Disbursement of Estimated Merger Consideration and Earn Out Shares.
(a) Subject to this Section 2.9, at the Effective Time, Parent shall deliver, or cause to be delivered, to the Company Stockholder the Estimated Merger Consideration and the Earn Out Shares as set forth on the Final Spreadsheet and the Company Stockholder will deliver, or will cause to be delivered, the Certificate to the Parent.
(b) From and after the Effective Time, there shall be no transfers on the stock transfer books of the Company of the shares of Company Common Stock that were outstanding immediately prior to the Effective Time.
(c) Notwithstanding the foregoing, none of the Surviving Corporation, the Surviving Entity, Parent or any other Person shall be liable to the former Company Stockholder for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or similar Legal Requirements.
2.10 Adjustment Escrow Deposit. At the Closing, Parent shall deposit with the Escrow Agent an amount equal to $2,000,000 in cash (the Adjustment Escrow Amount) by wire transfer of immediately available funds in U.S. dollars into a designated non-interest bearing account (the Adjustment Escrow Account). Pursuant to an escrow agreement to be entered into on the Closing Date by and among Parent, the Stockholder Representative and the Escrow Agent in form and substance reasonably acceptable to the parties thereto (the Escrow Agreement), Parent and the Stockholder Representative will appoint the Escrow Agent to hold the Adjustment Escrow Amount until the final determination of the Final Merger Consideration and disburse the Adjustment Escrow Amount as provided herein and in the Escrow Agreement.
2.11 Closing Calculations; Adjustment.
(a) No later than four (4) Business Days prior to the Closing Date, the Company shall deliver to Parent a statement (the Company Estimated Adjustment Statement) setting forth the Companys good faith estimate of: (i) the Closing Indebtedness Amount (the Estimated Closing Indebtedness Amount); (ii) the Company Transaction Costs (the Estimated Company Transaction Costs); and (iii) the Company Cash (the Estimated Company Cash), together with (x) instructions that list the applicable bank accounts designated to facilitate payment by Parent of the Company Transaction Costs and (y) reasonable supporting documentation used by the Company in calculating such amounts, including with respect to the Company Transaction Costs, all invoices or similar documentation accounting for such costs. Parent and its Representatives shall have a reasonable opportunity to review and discuss with the Company and its Representatives the documentation provided in connection with the delivery of the Company Estimated Adjustment Statement and any relevant books and records of the Company and its Subsidiaries required for Parent to conduct its review of the Company Estimated Adjustment Statement. The Company and its Subsidiaries shall reasonably assist Parent and its Representatives in its review of such documentation and shall consider in good faith Parents comments to the Company Estimated Adjustment Statement, and if any adjustments are made to the Company Estimated Adjustment Statement prior to the Closing, such adjusted Company Estimated Adjustment Statement shall thereafter become the Company Estimated Adjustment Statement for all purposes of this Agreement; provided that Parent shall provide any such comments to the Company no later than two (2) Business Days prior to the Closing Date; provided, further, for the avoidance of doubt, that, following the Companys consideration in good faith of Parents
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comments to the Company Estimated Adjustment Statement, the Company may determine, in its sole and absolute discretion, not to make any adjustments to the Company Estimated Adjustment Statement, in which case the Company Estimated Adjustment Statement shall be the Company Estimated Adjustment Statement delivered by the Company to Parent. In no event will the determination of the amounts set forth in the Company Estimated Adjustment Statement, whether mutually agreed to or the subject of a disagreement, prejudice the rights of Parent pursuant to this Section 2.11. The Company Estimated Adjustment Statement and the determinations contained therein shall be prepared in accordance with the applicable definitions contained in this Agreement.
(b) No later than four (4) Business Days prior to the Closing Date, Parent shall deliver to the Company a statement (the Parent Estimated Adjustment Statement) setting forth Parents good faith estimate of (i) the Parent Transaction Costs (the Estimated Parent Transaction Costs), (ii) the Trust Account Interest (Estimated Trust Account Interest), (iii) the aggregate amount of cash proceeds that will be required to satisfy any exercise of the Parent Stockholder Redemptions; (iv) the estimated amount of Parent Cash as of the Closing; and (v) the number of shares of Parent Class A Stock to be outstanding as of the Closing after giving effect to the Parent Stockholder Redemptions, the issuance of shares of Parent Units pursuant to the Forward Purchase Agreement and the Subscription Agreements and any issuance of Parent Class A Stock pursuant to Section 7.17, together with (x) instructions that list the applicable bank accounts designated to facilitate payment by Parent of the Parent Transaction Cost and (y) reasonable supporting documentation used by Parent in calculating such amounts, including all invoices or similar documentation accounting for such costs. The Company and its Representatives shall have a reasonable opportunity to review and discuss with Parent and its Representatives the documentation provided in connection with the delivery of the Parent Estimated Adjustment Statement and any relevant books and records of Parent required for the Company to conduct its review of the Parent Estimated Adjustment Statement. Parent shall reasonably assist the Company and its Representatives in its review of such documentation and shall consider in good faith the Companys comments to the Parent Estimated Adjustment Statement, and if any adjustments are made to the Parent Estimated Adjustment Statement prior to the Closing, such adjusted Parent Estimated Adjustment Statement shall thereafter become the Parent Estimated Adjustment Statement for all purposes of this Agreement; provided that the Company shall provide any such comments to Parent no later than two (2) Business Days prior to the Closing Date; provided, further, for the avoidance of doubt, that, following Parents consideration in good faith of the Companys comments to the Parent Estimated Adjustment Statement, Parent may determine, in its sole and absolute discretion, not to make any adjustments to the Parent Estimated Adjustment Statement, in which case the Parent Estimated Adjustment Statement shall be the Parent Estimated Adjustment Statement delivered by Parent to the Company. In no event will the determination of the amounts set forth in the Parent Estimated Adjustment Statement, whether mutually agreed to or the subject of a disagreement, prejudice the rights of the Company pursuant to this Section 2.11. The Parent Estimated Adjustment Statement and the determinations contained therein shall be prepared in accordance with the applicable definitions contained in this Agreement.
(c) No later than two (2) Business Days prior to the Closing, the Company shall deliver a draft of the Final Spreadsheet to Parent based upon the amounts contained in the Company Estimated Adjustment Statement and the Parent Estimated Adjustment Statement, and shall provide to Parent any such documents as Parent may reasonably request evidencing the
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amounts set forth on the Final Spreadsheet. Other than as may be agreed to by Parent in writing, the Final Spreadsheet shall be prepared in accordance with, and shall not deviate in any material respect from, the principles and percentages set forth in the Initial Spreadsheet. The Company shall reasonably consider any comments timely provided by Parent to the Final Spreadsheet.
(d) Within sixty (60) days after the Closing Date, Parent will prepare, or cause to be prepared, and deliver to the Stockholder Representative an unaudited statement (the Adjustment Statement), which shall set forth Parents good faith calculation of each of:
(i) Company Cash;
(ii) the Closing Indebtedness Amount;
(iii) the Trust Account Interest; and
(iv) the Closing Transaction Costs (including a detailed breakdown of the Company Transaction Costs and the Parent Transaction Costs).
To the extent any amounts in the calculation of the foregoing are not U.S. dollars, such amounts shall be converted to U.S. dollars using the average exchange rate to U.S. dollars for the Closing Date as reported by Bloomberg L.P.
(e) Upon receipt from Parent, the Stockholder Representative shall have thirty (30) days to review the Adjustment Statement (the Adjustment Review Period). At the request of the Stockholder Representative, Parent shall: (i) reasonably cooperate and assist, and shall cause its Subsidiaries, including the Surviving Entity, and each of their respective Representatives to reasonably cooperate and assist, the Stockholder Representative and its Representatives in the review of the Adjustment Statement (including by requesting their respective accountants to deliver to the Stockholder Representative and its Representatives copies of their work papers relating to the Surviving Entity; provided that customary confidentiality and hold harmless agreements relating to access such working papers in form and substance reasonably acceptable to any auditors or independent accountants are signed by the Stockholders Representative and its Representatives, as applicable); and (ii) provide the Stockholder Representative and its Representatives with any information reasonably requested by the Stockholder Representative that is necessary for their review of the Adjustment Statement. If the Stockholder Representative disagrees with Parents computation of the Closing Transaction Costs, Company Cash, the Closing Indebtedness Amount or the Trust Account Interest (each as set forth in the Adjustment Statement), the Stockholder Representative shall, on or prior to the last day of the Adjustment Review Period, deliver a written notice to Parent (the Adjustment Notice of Objection) that sets forth the Stockholder Representatives objections to Parents calculation of the Closing Transaction Costs, Company Cash, the Closing Indebtedness Amount, and the Trust Account Interest, as applicable. Any Adjustment Notice of Objection shall specify those items or amounts with which the Stockholder Representative disagrees and shall set forth the Stockholder Representatives calculation of the Closing Transaction Costs (including a detailed breakdown of the Company Transaction Costs and the Parent Transaction Costs to the extent these differ from Parents calculation thereof), Company Cash, the Closing Indebtedness Amount or the Trust Account Interest, as applicable, based on such objections.
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(f) If the Stockholder Representative does not deliver an Adjustment Notice of Objection to Parent with respect to an item contained in the Adjustment Statement within the Adjustment Review Period, the Stockholder Representative shall be deemed to have accepted Parents calculation of the underlying item of the Closing Transaction Costs, Company Cash, the Closing Indebtedness Amount, and the Trust Account Interest, as applicable, and such calculation shall be final, conclusive and binding on the Parties. If the Stockholder Representative delivers an Adjustment Notice of Objection to Parent within the Adjustment Review Period, Parent and the Stockholder Representative shall, during the thirty (30) days following such delivery or any mutually agreed extension thereof, use their good faith efforts to reach agreement on the disputed items and amounts in order to determine the amount of the disputed Closing Transaction Costs (along with the amount of the Company Transaction Costs and the Parent Transaction Costs included therein), Company Cash, the Closing Indebtedness Amount or the Trust Account Interest, as applicable. If, at the end of such period or any mutually agreed extension thereof, Parent and the Stockholder Representative are unable to resolve their disagreements, they shall jointly retain and refer their disagreements to a nationally recognized independent accounting firm mutually acceptable to Parent and the Stockholder Representative (such firm or individual, the Independent Expert), who shall act as an independent accounting expert and not as an arbiter. The Parties shall instruct the Independent Expert promptly to review this Section 2.11, as well as the Adjustment Statement, Adjustment Notice of Objection and any other materials reasonably requested by the Independent Expert, and to determine, solely with respect to the disputed items and amounts so submitted, whether and to what extent, if any, the Closing Transaction Costs (along with the amount of the Company Transaction Costs and the Parent Transaction Costs included therein), Company Cash, the Closing Indebtedness Amount or the Trust Account Interest, as applicable, set forth in the Adjustment Statement requires adjustment pursuant to the terms of this Agreement. The Independent Expert shall base its determination solely on written submissions by Parent and the Stockholder Representative and not on an independent review. Parent and the Stockholder Representative shall make available to the Independent Expert all relevant books and records and other items reasonably requested by the Independent Expert. As promptly as practicable, but in any event in accordance with the timeline set forth in the engagement letter with the Independent Expert, the Independent Expert shall deliver to Parent and the Stockholder Representative a report that sets forth its resolution of the disputed items and amounts and its calculation of the Closing Transaction Costs (including its detailed breakdown of the Company Transaction Costs and the Parent Transaction Costs), Company Cash, the Closing Indebtedness Amount or the Trust Account Interest, as applicable; provided, however, that the Independent Expert may not assign a value to any item greater than the greatest value for such item claimed by Parent, on one hand, and the Stockholder Representative, on the other hand, nor less than the smallest value for such item claimed by Parent, on one hand, and the Stockholder Representative, on the other hand, in each case, as set forth in the Company Estimated Adjustment Statement, Parent Estimated Adjustment Statement or Adjustment Statement, as applicable. The decision of the Independent Expert shall be final, conclusive and binding on the Parties. The costs and expenses of the Independent Expert shall be allocated between Parent, on the one hand, and the Stockholder Representative (solely on behalf of the Company Stockholder), on the other hand, based upon the percentage that the portion of the aggregate contested amount not awarded to each Party bears to the aggregate amount actually contested by such Party, as determined by the Independent Expert.
(g) For purposes of this Agreement, Final Company Cash, Final Closing Indebtedness Amount, Final Trust Account Interest and Final Closing Transaction Costs
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mean the amount of such items: (i) as shown in the Adjustment Statement delivered by Parent to the Stockholder Representative pursuant to Section 2.11(d) if no Adjustment Notice of Objection with respect thereto is timely delivered by the Stockholder Representative to Parent pursuant to Section 2.11(f); or (ii) if an Adjustment Notice of Objection is so delivered: (A) as agreed by Parent and the Stockholder Representative pursuant to Section 2.11(f); or (B) in the absence of such agreement, as determined in the Independent Experts report delivered pursuant to Section 2.11(f).
(h) Within five (5) Business Days after the Final Merger Consideration has been finally determined pursuant to this Section 2.11:
(i) if the Final Merger Consideration is less than the Estimated Merger Consideration, Parent shall be entitled to receive a payment in cash out of the Adjustment Escrow Account in an amount equal to such difference; provided that if such amount exceeds the Adjustment Escrow Amount: (A) Parent shall be entitled to receive the entire Adjustment Escrow Amount; and (B) the Company Stockholder shall pay to Parent the amount of such difference, at the election of the Company Stockholder either in cash or by transfer of shares of Parent Class A Stock, with a share of Parent Class A Stock valued at $10 per share for such purpose (provided that the Company Stockholder shall not be permitted to make any payment pursuant to this Section 2.11(h)(i) by transfer of shares of Parent Class A Stock if the Stockholder Representative determines, in its sole discretion, that transferring such shares could jeopardize the qualification of the Mergers, taken together, as a reorganization within the meaning of Section 368(a) of the Code); provided, further, that if such amount is less than the Adjustment Escrow Amount, then the amount left in the Adjustment Escrow Account after payment to Parent shall be distributed to the Company Stockholder;
(ii) if the Final Merger Consideration is equal to the Estimated Merger Consideration, the Company Stockholder shall be entitled to receive the Adjustment Escrow Amount in cash; and
(iii) if the Final Merger Consideration is greater than the Estimated Merger Consideration, the Company Stockholder shall be entitled to receive the Adjustment Escrow Amount in cash; provided that if such amount exceeds the Adjustment Escrow Amount, at the election of Parent, Parent shall either issue additional shares of Parent Class A Stock valued at $10 per share for such purpose or the Surviving Entity shall pay to the Company Stockholder an amount in cash equal to the amount of such difference.
(i) Any cash payment required to be made by: (i) the Company Stockholder pursuant to this Section 2.11 shall be made by wire transfer of immediately available funds in U.S. dollars to the account of the Surviving Entity designated in writing by Parent at least one (1) Business Day prior to such transfer; and (ii) the Surviving Entity on behalf of Parent pursuant to this Section 2.11 shall be made by wire transfer of immediately available funds in U.S. dollars in accordance with instructions provided by the Company Stockholder in the letter of transmittal (which instructions may be updated in writing by the Stockholder Representative (on behalf of the Company Stockholder) at least one (1) Business Day prior to such transfer).
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(j) Any payments made pursuant to this Section 2.11 shall be treated as an adjustment to the Total Consideration by the Parties for Tax purposes, unless otherwise required by Applicable Legal Requirements.
(k) No fraction of a share of Parent Class A Stock will be issued by virtue of this Section 2.11, and if the Company Stockholder would otherwise be entitled to a fraction of a share of Parent Class A Stock shall receive from Parent, in lieu of such fractional share: (i) one share of Parent Class A Stock if the aggregate amount of fractional shares of Parent Class A Stock would otherwise be entitled to is equal to or exceeds 0.50; or (ii) no shares of Parent Class A Stock if the aggregate amount of fractional shares of Parent Class A Stock would otherwise be entitled to is less than 0.50.
2.12 Tax Treatment of the Mergers.
(a) Each of the parties hereto adopts this Agreement as a plan of reorganization within the meaning of Treasury Regulation Section 1.368-2(g) and Section 1.368-3(a). The Parties shall not take or cause to be taken any action, or fail to take or cause to be taken any action, which action or failure to act would reasonably be expected to prevent the Mergers, taken together, from constituting an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations.
(b) For U.S. federal income tax purposes (and for purposes of any applicable state or local Tax that follows the U.S. federal income tax treatment), the Parties shall prepare and file all Tax Returns consistent with the treatment of the Mergers, taken together, as an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations (and any comparable provisions of state and local Tax law) and shall not take any inconsistent position on any Tax Return, or during the course of any audit, litigation or other proceeding with respect to Taxes, except as otherwise required by a determination within the meaning of Section 1313(a) of the Code.
2.13 Withholding Taxes. Notwithstanding anything in this Agreement to the contrary, Parent, First Merger Sub, Second Merger Sub, the Company, the Surviving Corporation, the Surviving Entity and their Affiliates shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement, any amount required to be deducted and withheld with respect to the making of such payment under Applicable Legal Requirements; provided, that if Parent, First Merger Sub, Second Merger Sub or any of their respective Affiliates determine that any payment to the Company Stockholder hereunder is subject to deduction and/or withholding, then (a) Parent shall provide notice to the Company (for payments made at the Closing) or the Stockholder Representative (for payments made after the Closing) as soon as reasonably practicable after such determination and (b) each Party shall expend commercially reasonable efforts to avail itself of any available exemptions from, or any refunds, credits or other recovery of, any such Tax deductions and withholdings and shall cooperate with the other Parties in providing any information and documentation (including an Internal Revenue Service Form W-9 or other applicable Form) that may be necessary to obtain such exemptions, refunds, credits or other recovery. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
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2.14 Taking of Necessary Action; Further Action. If, at any time after the Effective Time or the Second Effective Time, any further action is necessary to carry out the purposes of this Agreement and to vest the Surviving Corporation following the First Merger and the Surviving Entity following the Second Merger with full right, title and possession to all assets, property, rights, privileges and powers of the Company, First Merger Sub and Second Merger Sub, the officers and directors (or their designees) of the Company, First Merger Sub and Second Merger Sub are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.
ARTICLE III
EARN OUT
3.1 Delivery of Earn Out Shares. At the Closing, and as additional consideration for the Mergers and the other Transactions, Parent shall issue or cause to be issued to the Company Stockholder 5,000,000 shares of Parent Class A Stock (the Earn Out Shares) in accordance with the Final Spreadsheet, which Earn Out Shares shall be subject to the conditions set forth in this Agreement and the other Transaction Agreements, to be held by the Earn Out Escrow Agent.
3.2 Procedures Applicable to the Earn Out Shares.
(a) The Company Stockholder will place the Earn Out Shares in an escrow account (the Earn Out Escrow Account) to be held by an escrow agent reasonably selected by Parent (the Earn Out Escrow Agent) in accordance with an escrow agreement in form and substance reasonably acceptable to Parent and the Company Stockholder, to be entered into on the Closing Date by and among Parent, the Stockholder Representative, the Company Stockholder, the Sponsor and the Earn Out Escrow Agent (the Earn Out Escrow Agreement). The Parties hereto agree that the Company Stockholder shall be treated as the owner of the Earn Out Shares for so long as they are in the Earn Out Escrow Account for income Tax purposes, and shall file all Tax Returns consistent with such treatment.
(b) Promptly upon the occurrence of any Earn Out Triggering Event, or as soon as practicable after Parent becomes aware of the occurrence of such Earn Out Triggering Event or receives written notice of a Earn Out Triggering Event from the Company Stockholder or the Stockholder Representative, Parent shall prepare and deliver, or cause to be prepared and delivered, a written notice to the Earn Out Escrow Agent, the Sponsor and to the Company Stockholder (a Release Notice), which Release Notice shall set forth in reasonable detail the Earn Out Triggering Event giving rise to the requested release and the specific release instructions with respect thereto (including the number of Earn Out Shares to be released).
(c) The Company Stockholder shall not, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, any of the Earn Out Shares until the date on which the relevant vesting triggers have been satisfied as described in Section 3.3 and such shares have been released to the Company Stockholder.
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(d) Other than the Escrow Shares, no additional shares of capital stock of Parent or the Company will be placed in the Earn Out Escrow Account. Upon release of all of the Earn Out Shares and Escrow Shares in the Earn Out Escrow Account in accordance with this Article III and the share escrow agreement governing the Escrow Shares (the Share Escrow Agreement), as applicable, the Earn Out Escrow Agreement shall terminate pursuant to its terms and the provisions of this Article III shall no longer have any force or effect. Notwithstanding the foregoing, any Earn Out Shares not eligible to be released from the Earn Out Escrow Account in accordance with the terms of Section 3.3 on or before the seventh (7th) anniversary of the Closing Date shall immediately thereafter be forfeited to Parent and canceled and the Company Stockholder shall not have any rights with respect thereto.
(e) Effective as of the Closing, the Company Stockholder shall have the right to vote each of the Earn Out Shares until such Earn Out Shares are forfeited as if the Company Stockholder was the owner of record of such Earn Out Shares.
(f) Until Earn Out Shares have been released or been forfeited hereunder, an amount equal to any dividends or distributions that would have been payable to the Company Stockholder if the Earn Out Shares had been released prior to the record date for such dividends or distributions shall be delivered by Parent to the Earn Out Escrow Agent for the benefit of the Company Stockholder with respect to the Earn Out Shares (the Withholding Amount). If any securities of Parent or any other Person are included in the Withholding Amount, then any dividends or distributions in respect of or in exchange for any of such securities in the Withholding Amount, whether by way of stock splits or otherwise, shall be delivered to the Earn Out Escrow Agent and included in the Withholding Amount, and will be released to the Company Stockholder upon the release of the corresponding securities. If and when the Earn Out Shares are released in accordance with this Article III, the Earn Out Escrow Agent shall release to the Company Stockholder the aggregate amount of the Withholding Amount attributable to such Earn Out Shares that have been released and, if applicable, shall continue to withhold any remaining Withholding Amount that is attributable to such Earn Out Shares that have not yet been released until such Earn Out Shares are released, in which case such remaining Withholding Amount shall be released to the Company Stockholder. If all or any portion of the Earn Out Shares are forfeited to Parent in accordance with this Article III, then the portion of the Withholding Amount attributable to the portion of the Earn Out Shares that have been forfeited to Parent shall be automatically forfeited to Parent without consideration and with no further action required of any person.
(g) Notwithstanding anything to the contrary herein, in the event that any of the Escrow Shares are released from the Earn Out Escrow Account and distributed to Sponsor, Kathleen S. Briscoe, John J. Gauthier or Jason D. Turner or any other Person for any reason, then a corresponding percentage of then outstanding Earn Out Shares shall be simultaneously released from the Earn Out Escrow Account and distributed to the Company Stockholder, and the number of shares of Parent Class A Stock eligible to be released from the Earn Out Escrow Account pursuant to this Article III shall be reduced to reflect such distribution.
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3.3 Release of Earn Out Shares. The Earn Out Shares shall be released and delivered as follows (each, an Earn Out Triggering Event):
(a) one-third (1/3) of the Earn Out Shares (and any applicable stock powers), rounded down, will be released from the Earn Out Escrow Account and distributed to or on behalf of the Company Stockholder upon receipt of the applicable Release Notice by the Earn Out Escrow Agent if the Volume Weighted Average Share Price equals or exceeds $12.50 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing on the Nasdaq or any other national securities exchange;
(b) one-third (1/3) of the Earn Out Shares (and any applicable stock powers), rounded down, will be released from the Earn Out Escrow Account and distributed to or on behalf of the Company Stockholder upon receipt of the applicable Release Notice by the Earn Out Escrow Agent if the Volume Weighted Average Share Price equals or exceeds $15.00 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing on the Nasdaq or any other national securities exchange; and
(c) the remaining Earn Out Shares (and any applicable stock powers) will be released from the Earn Out Escrow Account and distributed to or on behalf of the Company Stockholder upon receipt of the applicable Release Notice by the Earn Out Escrow Agent if the Volume Weighted Average Share Price equals or exceeds $17.50 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing on the Nasdaq or any other national securities exchange.
3.4 Equitable Adjustments. The Volume Weighted Average Share Price targets set forth in Section 3.3 and the number of shares of Parent Class A Stock to be released from the Earn Out Escrow Account pursuant to Section 3.3 shall be equitably adjusted for any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event affecting the Parent Class A Stock after the date of this Agreement.
3.5 Acceleration Event. If, on or before the seventh (7th) anniversary of the Closing Date, there is a Change of Control that will result in the holders of Parent Class A Stock receiving a per share price equal to or in excess of the applicable Volume Weighted Average Share Price required in connection with any Earn Out Triggering Event, then immediately prior to the consummation of such Change of Control: (a) any such Earn Out Triggering Event that has not previously occurred shall be deemed to have occurred; and (b) Parent shall cause the Escrow Agent to release the applicable Earn Out Shares to the Company Stockholder, and the Company Stockholder shall be eligible to participate in such Change of Control.
3.6 Tax Treatment of Earn Out Shares. The issuance of Earn Out Shares shall be treated as an adjustment to the Total Consideration by the Parties for Tax purposes, unless otherwise required by Applicable Legal Requirements.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the letter dated as of the date of this Agreement delivered by the Company to Parent, First Merger Sub and Second Merger Sub prior to or in connection with the execution and delivery of this Agreement (the Company Disclosure Letter) and as a material inducement for Parent, First Merger Sub and Second Merger Sub to enter into this Agreement, the Company hereby represents and warrants to Parent, First Merger Sub and Second Merger Sub as of the date hereof as follows (except for such representations and warranties expressly made as of a different date, which shall instead be made only as of such date):
4.1 Organization and Qualification. The Company (a) is a corporation duly incorporated, validly existing and in good standing under the Legal Requirements of the State of Delaware and (b) has all requisite corporate power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted, except in the case of this clause (b) as would not be material to the Group Companies, taken as a whole. The Company is duly qualified to do business in each jurisdiction in which it is conducting its business, or the operation, ownership or leasing of its properties, makes such qualification necessary, other than in such jurisdictions where the failure to so qualify would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole. Complete and correct copies of the Governing Documents of the Company as currently in effect, have been made available to Parent. The Company is not in violation of any of the provisions of the Companys Governing Documents.
4.2 Company Subsidiaries.
(a) The Companys direct and indirect Subsidiaries, together with their jurisdiction of incorporation or organization, as applicable, are listed on Schedule 4.2(a) of the Company Disclosure Letter (the Company Subsidiaries). The Company owns, directly or indirectly, all of the outstanding equity securities of the Company Subsidiaries, free and clear of all Liens (other than Permitted Liens). Except for the Company Subsidiaries, the Company does not own, directly or indirectly, any ownership, equity, profits or voting interest in any Person or have any agreement or commitment to purchase any such interest, and has not agreed and is not obligated to make nor is bound by any written, oral or other Contract, binding understanding, option, warranty or undertaking of any nature, as of the date hereof or as may hereafter be in effect under which it may become obligated to make, any future investment in or capital contribution to any other entity.
(b) Each Company Subsidiary is duly incorporated, formed or organized, validly existing and in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of its jurisdiction of incorporation, formation or organization and has the requisite corporate, limited liability company or equivalent power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted, except as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole. Each Company Subsidiary is duly qualified to do business in each jurisdiction in which the conduct of its business, or the operation, ownership or leasing of its
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properties, makes such qualification necessary, other than in such jurisdictions where the failure to so qualify or be in good standing would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole. Complete and correct copies of the Governing Documents of each Company Subsidiary, as amended and currently in effect, have been made available to Parent. No Company Subsidiary is in violation of any of the provisions of its Governing Documents.
(c) All issued and outstanding shares of capital stock and equity interests of each Company Subsidiary (i) have been duly authorized, validly issued, fully paid and are non-assessable (in each case, to the extent that such concepts are applicable), (ii) are not subject to, nor have been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right and (iii) have been offered, sold and issued in compliance with Applicable Legal Requirements and their respective Governing Documents.
(d) Other than as set forth on Schedule 4.2(d) of the Company Disclosure Letter, there are no subscriptions, options, warrants, equity securities, partnership interests or similar ownership interests, calls, rights (including preemptive rights), commitments or agreements of any character to which any Company Subsidiary is a party or by which it is bound obligating such Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, or repurchase, redeem or otherwise acquire, or cause the repurchase, redemption or acquisition of, any ownership interests of such Company Subsidiary or obligating such Company Subsidiary to grant, extend, accelerate the vesting of or enter into any such subscription, option, warrant, equity security, call, right, commitment or agreement.
4.3 Capitalization of the Company.
(a) As of the date of this Agreement, 1,000 shares of Company Common Stock are authorized and 1,000 shares of common stock, par value $0.01 per share, of the Company (Company Common Stock) are issued and outstanding. The information included in the Initial Spreadsheet is true and correct as of the date hereof and when such items are updated in the Final Spreadsheet shall be true and correct as of the Closing Date (without giving effect to the Mergers).
(b) All issued and outstanding shares of Company Common Stock (i) have been duly authorized, validly issued, fully paid and are non-assessable, (ii) are not subject to, nor have been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right, (iii) have been offered, sold and issued in compliance with Applicable Legal Requirements and the Companys Governing Documents and (iv) are free and clear of all Liens (other than Permitted Liens). As of the Closing Date, all issued and outstanding shares of Company Common Stock (i) will have been duly authorized, validly issued, fully paid and are non-assessable, (ii) will not be subject to, nor have been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right, (iii) will have been offered, sold and issued in compliance with Applicable Legal Requirements and the Companys then-current Governing Documents and (iv) will be free and clear of all Liens (other than Permitted Liens).
(c) Other than as set forth on Schedule 4.3(c) of the Company Disclosure Letter, there are no subscriptions, options, warrants, equity securities, partnership interests or
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similar ownership interests, calls, rights (including preemptive rights), commitments or agreements of any character to which the Company is a party or by which it is bound obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, or repurchase, redeem or otherwise acquire, or cause the repurchase, redemption or acquisition of, any ownership interests of the Company or obligating the Company to grant, extend, accelerate the vesting of or enter into any such subscription, option, warrant, equity security, call, right, commitment or agreement. There are no stock appreciation, stock option, phantom stock, stock-based performance unit, profit participation, restricted stock, restricted stock unit or other equity or equity-based compensation award or similar rights with respect to the Company or any of its subsidiaries or Company Common Stock.
(d) Except as set forth in the Companys Governing Documents and in connection with the Transactions, there are no registration rights, and there is no voting trust, proxy, rights plan, anti-takeover plan or other agreements or understandings to which the Company is a party or by which the Company is bound with respect to any ownership interests of the Company.
(e) Except as provided for in this Agreement, as a result of the consummation of the Transactions, no shares of capital stock, warrants, options or other securities of the Company are issuable and no rights in connection with any shares, warrants, options or other securities of the Company accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
4.4 Authority Relative to this Agreement. The Company has all requisite power and authority to: (a) execute, deliver and perform this Agreement and the other Transaction Agreements to which it is a party, and each ancillary document that the Company has executed or delivered or is to execute or deliver pursuant to this Agreement; and (b) carry out the Companys obligations hereunder and thereunder and to consummate the Transactions (including the Mergers). The execution and delivery by the Company of this Agreement and the other Transaction Agreements to which it is a party and the consummation by the Company of the Transactions (including the Mergers) have been duly and validly authorized by all requisite action on the part of the Company (including the approval by its board of directors and, following receipt of the Company Stockholder Approval, the Company Stockholder as required by the DGCL), and no other proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the Transactions. This Agreement and the other Transaction Agreements to which it is a party have been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery thereof by the other Parties, constitute the legal and binding obligations of the Company, enforceable against the Company in accordance with their terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally or by principles governing the availability of equitable remedies.
4.5 No Conflict; Required Filings and Consents.
(a) Subject to the receipt of the Company Stockholder Approval, the execution and delivery by the Company of this Agreement and the other Transaction Agreements to which it is a party do not, the performance of this Agreement and the other Transaction Agreements to
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which it is a party by the Company shall not, and the consummation of the Transactions will not: (i) conflict with or violate the Companys Governing Documents; (ii) assuming that the consents, approvals, orders, authorizations, registrations, filings or permits referred to in Section 4.5(b) are duly and timely obtained or made, conflict with or violate any Applicable Legal Requirements; (iii) result in any breach of or constitute a default (with or without notice or lapse of time, or both) under, or materially impair the Companys or any of its Subsidiaries rights or, in a manner adverse to any of the Group Companies, alter the rights or obligations of any third party under, or give to any third party any rights of termination, amendment, acceleration (including any forced repurchase) or cancellation under, or result in the creation of a Lien (other than any Permitted Lien) on any of the properties or assets of any of the Group Companies pursuant to, any Company Material Contracts, except, with respect to clause (iii) as would not, individually or in the aggregate, have a Company Material Adverse Effect.
(b) The execution and delivery of this Agreement by the Company, or the other Transaction Agreements to which it is a party, does not, and the performance of its obligations hereunder and thereunder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except for: (i) the filing of the First Certificate of Merger and the Second Certificate of Merger in accordance with the DGCL and DLLCA; (ii) applicable requirements, if any, of the Securities Act, the Exchange Act, blue sky laws, foreign securities laws and the rules and regulations thereunder, and appropriate documents received from or filed with the relevant authorities of other jurisdictions in which the Company is licensed or qualified to do business; (iii) the filing of any notifications required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act), any other filings required pursuant to antitrust laws, and the expiration of the required waiting periods thereunder; (iv) the consents, approvals, authorizations and permits described on Schedule 4.5(b) of the Company Disclosure Letter; and (v) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole, or reasonably be expected to prevent or materially delay or materially impair the consummation of the Transactions or the ability of the Company to perform its obligations under this Agreement or the other Transaction Agreements.
4.6 Compliance; Approvals. Each of the Group Companies has, during the last three (3) years, complied with and is not in violation of any Applicable Legal Requirements with respect to the conduct of its business, or the ownership or operation of its business, except for failures to comply or violations which, individually or in the aggregate, have not been and are not reasonably likely to be material to the Group Companies, taken as a whole. No written, or to the Knowledge of the Company, oral notice of material non-compliance with any Applicable Legal Requirements has been received by any of the Group Companies from any Governmental Entity in the last three (3) years. Each Group Company is in possession of all grants, authorizations, licenses, permits, consents, certificates, approvals and orders from Governmental Entities (Approvals) necessary to own, lease and operate the properties it purports to own, operate or lease and to carry on its business as it is now being conducted, except where the failure to have such Approvals would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole, and Schedule 4.6 of the Company Disclosure Letter sets forth a true, correct and complete list of each of such Approvals. Each Approval held by the Group Companies is valid, binding and in full force and effect. None of the Group Companies (a) are in default or violation
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(and no event has occurred that, with notice or the lapse of time or both, would constitute a default or violation) of any material term, condition or provision of any such Approval, or (b) have received any written notice from a Governmental Entity that has issued any such Approval that it intends to cancel, terminate, modify or not renew any such Approval except, in the case of clauses (a) and (b), as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole, or reasonably be expected to prevent or materially delay or materially impair the consummation of the Transactions or the ability of the Company to perform its obligations under this Agreement or the other Transaction Agreements.
4.7 Financial Statements.
(a) The Company has made available to Parent true and complete copies of: (i) the audited consolidated balance sheets of the Company and its Subsidiaries as of December 31, 2019 and December 31, 2018, and the audited consolidated statements of operation comprehensive income, changes in stockholders equity and cash flows of the Company and its Subsidiaries for each of the years ended December 31, 2019 and December 31, 2018 (the Audited Financial Statements) and (ii) the unaudited consolidated balance sheet of the Company and its Subsidiaries as of September 30, 2020, and summary of operating results, changes in stockholders equity and cash flows of the Company and its Subsidiaries for the three (3) month periods ended September 30, 2020 and September 30, 2019 (the Unaudited Financial Statements and, together with the Audited Financial Statements, the Financial Statements). The Financial Statements: (x) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries, as at the respective dates thereof, and the consolidated results of earnings, income, changes in equity and cash flows for the respective periods then ended (subject, in the case of the Unaudited Financial Statements, to normal year-end adjustments and the inclusion of footnotes); (y) were prepared in conformity with U.S. generally accepted accounting principles (U.S. GAAP) applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and, in the case of the Unaudited Financial Statements, the inclusion of footnotes); and (z) were prepared from, and are in accordance with, the books and records of the Company and its Subsidiaries.
(b) The Company has established and maintained a system of internal controls. Such internal controls are sufficient to provide reasonable assurance (i) that transactions, receipts and expenditures of the Company and its Subsidiaries are being executed and made only in accordance with appropriate authorizations of management of the Company, (ii) that transactions are recorded as necessary to permit preparation of financial statements in conformity with U.S. GAAP and to maintain accountability for assets, (iii) regarding prevention or timely detection of unauthorized acquisition, use or disposition of the assets of the Company and its Subsidiaries and (iv) that accounts, notes and other receivables and inventory are recorded accurately. Other than as set forth on Schedule 4.7(b) of the Company Disclosure Letter, the Company has not identified or been made aware of, and has not received from its independent auditors any notification of, any (x) significant deficiency in the internal controls over financial reporting of the Company and its Subsidiaries, (y) material weakness in the internal controls over financial reporting of the Company and its Subsidiaries or (z) fraud, whether or not material, that involves management or other employees of the Company and its Subsidiaries who have a role in the internal controls over financial reporting of the Company and its Subsidiaries.
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(c) There are no outstanding loans or other extensions of credit made by any of the Group Companies to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of the Company.
4.8 No Undisclosed Liabilities.
Except as disclosed on Schedule 4.8 of the Company Disclosure Letter, the Company and its Subsidiaries have no liabilities (whether direct or indirect, absolute, accrued, contingent or otherwise) of a nature required to be disclosed on a balance sheet in accordance with U.S. GAAP, except for liabilities: (a) provided for in, or otherwise disclosed or reflected in the most recent balance sheet included on the face of the Financial Statements; (b) arising in the Ordinary Course of Business since September 30, 2020; (c) incurred since September 30, 2020 pursuant to or in connection with this Agreement or the Transactions; or (d) which would not reasonably be expected to be material to the Company and its Subsidiaries, as a whole.
4.9 Absence of Certain Changes or Events. Except as disclosed on Schedule 4.9 of the Company Disclosure Letter or as contemplated by this Agreement, since December 31, 2019, each of the Group Companies has conducted its business in the Ordinary Course of Business and there has not been: (a) any Company Material Adverse Effect; (b) any purchase, redemption or other acquisition by the Company of any of the shares of Company Common Stock or any other securities of the Company or any options, warrants, calls or rights to acquire any such Company Common Stock or other securities; (c) any split, combination or reclassification of any of the shares of Company Common Stock; (d) any material change by the Company in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP (or any interpretation thereof) or Applicable Legal Requirements; (e) any change in the auditors of the Company; (f) any issuance of shares of Company Common Stock; (g) any revaluation by the Company of any of its tangible assets, including any sale of assets of the Company other than with respect to (A) sales in the Ordinary Course of Business and (B) sales of assets of any of the Group Companies that are not reasonably required for use in the businesses of any of the Group Companies and that individually or in the aggregate are not material to the Group Companies taken as a whole; or (h) any action taken or agreed upon by any of the Group Companies that would be prohibited by Section 6.1 if such action were taken on or after the date hereof without the consent of Parent.
4.10 Litigation. Except as disclosed on Schedule 4.10 of the Company Disclosure Letter or as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole, there is: (a) no pending or, to the Knowledge of the Company, threatened, Legal Proceeding against any Group Company or any of its properties or assets, or any of the directors, managers or officers of any Group Company with regard to their actions as such, and, to the Knowledge of the Company, no facts exist that would reasonably be expected to form the basis for any such Legal Proceeding; (b) no pending or, to the Knowledge of the Company, threatened in writing, audit, examination or investigation by any Governmental Entity against any Company or any of its properties or assets, or any of the directors, managers or officers of any Group Company with regard to their actions as such, and, to the Knowledge of the Company, no facts exist that would reasonably be expected to form the basis for any such audit, examination or investigation; (c) no pending or threatened Legal Proceeding by any Group Company against any third party; (d) to the Knowledge of the Company, no pending or threatened Legal Proceeding
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against any party challenging the Companys Human Call Initiator, or Intellectual Property of the Company related thereto, as an automated telephone dialing system, as such term is defined under the Telephone Consumer Protection Act of 1991, or pending or threatened Legal Proceeding that would result in a similar effect to such under federal or state law or the laws of any jurisdiction outside the United States; (e) no settlement or similar agreement that imposes any material ongoing obligation or restriction on any Group Company; and (f) no Order imposed or, to the Knowledge of the Company, threatened to be imposed upon any Group Company or any of its respective properties or assets, or any of the directors, managers or officers of any Group Company with regard to their actions as such. The Company has used commercially reasonable efforts in establishing a monitoring system to identify Legal Proceedings against any party challenging the Companys dialing systems, including the Human Call Initiator, or Intellectual Property of the Company related thereto, as an automated telephone dialing system.
4.11 Employee Benefit Plans.
(a) Schedule 4.11(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each material Employee Benefit Plan, excluding any employment or consulting agreement or offer letter that either: (i) is terminable by the Company with 30 days or less notice; or (ii) provides for notice and/or garden leave obligations as required by Applicable Legal Requirements, in each case, so long as such agreement or offer letter does not provide for: (A) severance or similar obligations; (B) transaction bonuses or change in control payments; or (C) tax gross-ups; provided that a form of such excluded agreement or offer letter is listed. Schedule 4.11(a)(ii) of the Company Disclosure Letter sets forth each Value Creation Bonus and each Option Incentive Bonus, that is outstanding under the Bonus Plans, including the name of each Value Creation Bonus holder or Option Incentive Bonus holder (as applicable) and the portion vested and unvested as of the date hereof and there are no rights or interests under the Bonus Plans except as set forth in Schedule 4.11(a)(ii) of the Company Disclosure Letter.
(b) With respect to each Employee Benefit Plan, the Company has provided a true, correct and complete copy of the following documents, to the extent applicable: (i) all plan documents, including any related trust documents, insurance contracts or other funding arrangements, and all amendments thereto; (ii) for the most recent plan years: (A) the IRS Form 5500 and all schedules thereto; (B) audited financial statements; and (C) actuarial or other valuation reports; (iii) the most recent IRS determination letter or opinion letter, as applicable; (iv) any other documents which are required to be filed with any regulatory authority together with all other tax clearances and approvals necessary to obtain favorable tax treatment for the Employee Benefit Plans; (v) any non-routine correspondence with any Governmental Entity regarding any Employee Benefits Plan during the past three (3) years, and (vi) the most recent summary plan descriptions.
(c) Each Employee Benefit Plan has been established, maintained and administered in all material respects in accordance with its terms and with all Applicable Legal Requirements. No non-exempt prohibited transaction (within the meaning of Section 406 of ERISA and Section 4975 of the Code) has occurred or is reasonably expected to occur with respect to any Employee Benefit Plan.
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(d) Each Employee Benefit Plan intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service to the effect that such Employee Benefit Plan meets the requirements of Section 401(a) of the Code and nothing has occurred with respect to the operation of the Employee Benefit Plans that would reasonably be expected to cause the denial or loss of such qualification or exemption.
(e) No Group Company sponsors, contributes to, or has any liability or has ever sponsored, contributed to or had any liability (including on account of an ERISA Affiliate) in respect of: (i) an employee pension benefit plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA (including any multiemployer plan within the meaning of Section (3)(37) of ERISA); (ii) a multiple employer plan as defined in Section 413(c) of the Code; or (iii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA.
(f) None of the Employee Benefit Plans provide for, and the Group Companies have no liability in respect of, post-retiree health, welfare or life insurance benefits or coverage for any participant or any beneficiary of a participant, except as may be required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state or other Legal Requirements, with respect to which such participant or the participants beneficiary pays the full premium cost.
(g) With respect to any Employee Benefit Plan no actions, suits, claims (other than routine claims for benefits in the Ordinary Course of Business), audits, inquiries, proceedings or lawsuits are pending, or, to the Knowledge of the Company, threatened against any Employee Benefit Plan, the assets of any of the trusts under such plans or the plan sponsor or administrator, or against any fiduciary of any Employee Benefit Plan with respect to the operation thereof. No event has occurred, and to the Knowledge of the Company, no condition exists that would, by reason of the Companys affiliation with any of its ERISA Affiliates, subject the Company to any material tax, fine, lien, penalty or other liability imposed by ERISA, the Code or other Legal Requirements.
(h) All contributions, reserves or premium payments required to be made or accrued as of the date hereof to the Employee Benefit Plans have been timely made or accrued in all material respects.
(i) Except as disclosed on Schedule 4.11(i) of the Company Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation of the Transactions will, either alone or in connection with any other event(s): (1) result in any payment or benefit becoming due to any current or former employee, contractor who is a natural person or director of the Company or its subsidiaries or under any Employee Benefit Plan; (2) increase any amount of compensation or benefits otherwise payable to any such employee, contractor or director under any Employee Benefit Plan; (3) result in the acceleration of the time of payment, funding or vesting of any benefits to any such employee, contractor or director under any Employee Benefit Plan; or (4) limit the right to merge, amend or terminate any Employee Benefit Plan.
(j) Neither the execution and delivery of this Agreement nor the consummation of the Transactions shall, either alone or in connection with any other event(s) give rise to any
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excess parachute payment as defined in Section 280G(b)(1) of the Code, any excise tax owing under Section 4999 of the Code or any other amount that would not be deductible under Section 280G of the Code.
(k) The Company maintains no obligations to gross-up or reimburse any individual for any tax or related interest or penalties incurred by such individual, including under Sections 409A or 4999 of the Code or otherwise.
(l) Each Employee Benefit Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been established, operated and maintained in compliance with Section 409A of the Code in all material respects.
(m) With respect to each Employee Benefit Plan subject to the Legal Requirements of any jurisdiction outside the United States, (i) all employer contributions to each such Employee Benefit Plan required by Applicable Legal Requirements or by the terms of such Employee Benefit Plan have been made with only immaterial exceptions; (ii) each such Employee Benefit Plan required to be registered has been registered and has been maintained in all material respects in good standing with applicable regulatory authorities and, to the Knowledge of the Company, no event has occurred since the date of the most recent approval or application therefor relating to any such Employee Benefit Plan that would reasonably be expected to adversely affect any such approval or good standing; and (iii) each such Employee Benefit Plan required to be fully funded or fully insured, is fully funded or fully insured, including any back-service obligations, (determined using reasonable actuarial assumptions) in compliance in all material respects with all Applicable Legal Requirements. Each Employee Benefit Plan subject to the laws of any jurisdiction outside the United States which provides retirement benefits is a defined contribution plan.
4.12 Labor Matters.
(a) Except as disclosed on Schedule 4.12(a) of the Company Disclosure Letter, no Group Company is a party to or bound by any labor agreement, collective bargaining agreement or other labor Contract applicable to persons employed by any Group Company. No employees of the Group Companies are represented by any labor or trade union, employee representative body or association, labor organization, or works council with respect to their employment with the Group Companies. There are no representation proceedings or petitions seeking a representation proceeding presently pending or, to the Knowledge of the Company, threatened to be brought or filed, with the National Labor Relations Board or other labor relations tribunal, nor has any such representation proceeding, petition, or demand been brought, filed, made, or, to the Knowledge of the Company, threatened within the last three (3) years. Since January 1, 2017, there have been no pending or threatened labor organizing activities involving any Group Company or with respect to any employees of the Group Companies.
(b) Since January 1, 2017, there have been no material grievances, unfair labor practice charges or other labor disputes against the Group Companies involving any employee of the Group Companies, nor are any such matters pending or, to the Knowledge of the Company, threatened.
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(c) As of the date hereof, to the Knowledge of the Company, none of the Companys officers or key employees has given notice to the Company of any intent to terminate his or her employment with the Company. The Group Companies are in compliance in all material respects and, to the Knowledge of the Company, each of their employees and consultants are in compliance in all material respects, with the terms of any employment, nondisclosure, restrictive covenant, and consulting agreements between any Group Company and such individuals.
(d) None of the Group Companies is party to a settlement agreement with a current or former officer, employee or independent contractor of any Group Company that involves allegations relating to sexual harassment by either (i) an officer of any Group Company or (ii) an employee of any Group Company at the level of Vice President or above. During the past three (3) years, no allegations of sexual harassment or sexual misconduct have been made against (i) any officer or director of any Group Company or (ii) an employee of any Group Company at the level of Vice President or above.
(e) Except as set forth on Schedule 4.12(e) of the Company Disclosure Letter, there are no material complaints, charges, proceeding, investigation or claims against the Group Companies pending or, to Knowledge of the Company, threatened to be brought or filed, with any Governmental Entity based on, arising out of, in connection with or otherwise relating to the employment or termination of employment or failure to employ by any Group Company, of any individual. Each Group Company is in material compliance with all Applicable Legal Requirements respecting employment and employment practices, including all laws respecting terms and conditions of employment, wages and hours, the Worker Adjustment and Retraining Notification Act (WARN), and any similar foreign, state or local mass layoff or plant closing laws, collective bargaining, immigration, employee benefits, labor relations, discrimination, civil rights, harassment, worker classification, wages and hours, pay equity, affirmative action, safety and health, employee leave, workers compensation and the collection and payment of withholding and/or social security taxes and any similar tax.
(f) There has been no mass layoff or plant closing (as defined by WARN) with respect to any Group Company within the six (6) months prior to the Closing.
(g) Except as set forth on Schedule 4.12(g) of the Company Disclosure Letter, the Group Companies are not and have not been: (i) a contractor or subcontractor (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246 or (iii) required to maintain an affirmative action plan.
(h) Except as set forth on Schedule 4.12(h) of the Company Disclosure Letter, no Group Company is liable for any arrears of a material amount of wages or any related penalties. All material amounts that the Group Companies are legally required to withhold from their employees wages and to pay to any Governmental Entity as required by Applicable Legal Requirements have been withheld and paid, and the Group Companies do not have any outstanding obligations to make any such withholding or payment, other than with respect to an open payroll period or as would not result in material liability to the Group Companies, taken as a whole. There are no pending, or to the Knowledge of the Company, threatened in writing Legal Proceedings against any Group Company by any employee in connection with such employees employment or termination of employment by such Group Company.
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(i) No employee or former employee of the Group Companies is owed any wages, material benefits or other compensation for past services (other than wages, benefits and compensation accrued during the current pay period and any accrued pay or benefits for services, which by their terms or under Applicable Legal Requirements, are payable in the future, such as but not limited to accrued vacation, commission payments, recreation leave and severance pay).
4.13 Real Property; Tangible Property.
(a) The Group Companies do not own any real property.
(b) Each Group Company has a valid, binding and enforceable leasehold interest for each of the real properties for which it is a lessee (the Company Leased Properties), free and clear of all Liens (other than Permitted Liens) and each of the leases, lease guarantees, agreements and documents related to any Company Leased Properties, including all amendments, terminations and modifications thereof (collectively, the Company Real Property Leases), is in full force and effect. The Company has made available to Parent true, correct and complete copies of all material Company Real Property Leases. No Group Company is in breach of or default under any Company Real Property Lease, and, to the Knowledge of the Company, no event has occurred and no circumstance exists which, if not remedied, and whether with or without notice or the passage of time or both, would result in such a default, except for such breaches or defaults as would not individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole. To the Knowledge of the Company, (i) there are no pending condemnation proceedings with respect to any of the Company Leased Properties and (ii) the current use of the Company Leased Properties does not violate any local planning, zoning or similar land use restrictions of any Governmental Entity in any material respect. No Group Company has received or given any written notice of any default or event that with notice or lapse of time, or both, would constitute a breach or default by any Group Company under any of the Company Real Property Leases and, to the Knowledge of the Company, no other party is in breach or default thereof, except for such breaches or defaults as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole. No party to any Company Real Property Lease has exercised any termination rights with respect thereto. Except as set forth on Schedule 4.13(b)(i) of the Company Disclosure Letter and except as permitted after the occurrence of an event of default thereunder or as otherwise set forth in the applicable Company Real Property Leases, no party has the right to terminate any of the Company Real Property Leases. Schedule 4.13(b)(ii) of the Company Disclosure Letter contains a true and correct list of all Company Real Property Leases. Other than the rights of lessors under the Company Real Property Leases, no Person other than the Group Companies has the right to use the Company Leased Properties.
(c) Each Group Company has good and marketable title to, or a valid leasehold interest in or right to use, all of its tangible assets, free and clear of all Liens other than: (i) Permitted Liens; (ii) the rights of lessors under any Company Real Property Lease; and (iii) the Liens specifically identified on Schedule 4.13(c)(iii) of the Company Disclosure Letter. The tangible assets (together with the Intellectual Property rights and contractual rights) of the Group Companies: (A) constitute all of the assets, rights and properties that are currently being used for the operation of the businesses of the Group Companies as they are now conducted, and taken together, are adequate and sufficient for the operation of the businesses of the Group Companies
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as currently conducted; and (B) have been maintained in all material respects in accordance with generally applicable accepted industry practice, are in good operating condition and repair, ordinary wear and tear excepted, and are adequate and suitable for the uses to which they are being put, in each case of clauses (A) and (B) except as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole.
4.14 Taxes.
(a) Except as set forth on Schedule 4.14(a) of the Company Disclosure Letter, all material Tax Returns required to be filed by or on behalf of each Group Company have been duly and timely filed with the appropriate Governmental Entity and all such Tax Returns are true, correct and complete in all material respects. All material amounts of Taxes payable by or on behalf of each Group Company (whether or not shown on any Tax Return) have been fully and timely paid.
(b) Except as set forth on Schedule 4.14(b) of the Company Disclosure Letter, each of the Group Companies has complied in all material respects with all Applicable Legal Requirements relating to the withholding and remittance of all material amounts of Taxes and withheld and paid all material amounts of Taxes required to have been withheld and paid to the appropriate Governmental Entity.
(c) Except as set forth on Schedule 4.14(c) of the Company Disclosure Letter, no claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted or assessed by any Governmental Entity in writing (nor to the Companys Knowledge is there any) against any Group Company which has not been paid or resolved.
(d) Except as set forth on Schedule 4.14(d) of the Company Disclosure Letter, no material Tax audit or other examination of any Group Company by any Governmental Entity is presently in progress, nor has the Company been notified in writing of any (nor to the Companys Knowledge is there any) request or threat for such an audit or other examination.
(e) There are no liens for Taxes (other than Permitted Liens) upon any of the assets of the Group Companies.
(f) No Group Company has any liability for a material amount of unpaid Taxes which has not been accrued for or reserved on the Companys Financial Statements, other than any liability for unpaid Taxes that has been incurred since the end of the most recent fiscal year in connection with the operation of the business of the Group Companies in the Ordinary Course of Business.
(g) Except as set forth on Schedule 4.14(g) of the Company Disclosure Letter, no Group Company: (i) has any liability for the Taxes of another Person (other than any Group Company) pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Legal Requirements) or as a transferee or a successor or by Contract (other than pursuant to commercial agreements entered into in the Ordinary Course of Business and the principal purpose of which is not related to Taxes); (ii) is a party to or bound by any Tax indemnity, Tax sharing or Tax allocation agreement (excluding commercial agreements entered into in the
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Ordinary Course of Business and the principal purpose of which is not related to Taxes); or (iii) has, within the last three (3) years, ever been a member of an affiliated, consolidated, combined or unitary group filing for U.S. federal, state or local income Tax purposes, other than a group the common parent of which was or is any Group Company.
(h) No Group Company: (i) has consented to extend the time in which any Tax may be assessed or collected by any Governmental Entity (other than pursuant to automatic extensions of time to file Tax Returns obtained in the Ordinary Course of Business), which extension is still in effect; or (ii) has entered into or been a party to any listed transaction within the meaning of Section 6707A(c)(2) of the Code for a taxable period for which the applicable statute of limitations remains open.
(i) Except as set forth on Schedule 4.14(i) of the Company Disclosure Letter, no Group Company has a permanent establishment in any country other than the country of its organization for income Tax purposes, or is subject to income Tax in a jurisdiction outside the country of its organization, in each case, where it is required to file material income Tax Returns and did not file such Tax Returns.
(j) Except as set forth on Schedule 4.14(j) of the Company Disclosure Letter, each Group Company has paid all material sales, use, value added or any similar Transfer Taxes in jurisdictions where it is required by law to pay such Taxes and has filed with the appropriate Governmental Entity all material Tax Returns required to be filed by it in respect of such Taxes, and all such Tax Returns are true, correct and complete in all material respects.
(k) No Group Company has constituted either a distributing corporation or a controlled corporation (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement.
(l) No Group Company will be required to include any material item of income in, or exclude any material item or deduction from, taxable income for any taxable period beginning after the Closing Date or, in the case of any taxable period beginning on or before and ending after the Closing Date, the portion of such period beginning after the Closing Date, as a result of: (i) an installment sale or open transaction disposition that occurred on or prior to the Closing Date; (ii) any change in method of accounting on or prior to the Closing Date, including by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign Legal Requirements); (iii) any prepaid amount received or deferred revenue recognized on or prior to the Closing Date, other than in respect of such amounts reflected in the balance sheets included in the Financial Statements, or received in the Ordinary Course of Business since the date of the most recent balance sheet included in the Financial Statements; (iv) to the Companys Knowledge, any intercompany transaction described in Treasury Regulations under Section 1502 (or any corresponding or similar provision of state or local Legal Requirements); or (v) any closing agreement pursuant to Section 7121 of the Code or any similar provision of state, local or foreign Legal Requirements.
(m) No Group Company has made an election described in Section 965(h) of the Code.
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(n) Within the last three (3) years, no claim has been made in writing (nor to the Companys Knowledge has any claim been made) by any Governmental Entity in a jurisdiction in which any Group Company does not file Tax Returns that is or may be subject to Tax by, or required to file Tax Returns in, that jurisdiction.
(o) To the Companys Knowledge, the Company has not been, is not, and immediately prior to the Effective Time will not be, treated as an investment company within the meaning of Section 368(a)(2)(F) of the Code.
(p) The Company has not taken any action, and it is not aware of any fact or circumstance that would reasonably be expected to prevent the First Merger and the Second Merger, taken together, from constituting an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations.
4.15 Environmental Matters.
(a) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Group Companies, taken as a whole:
(i) The Group Companies are and, for the past four (4) years, have been in compliance with all Environmental Laws, which compliance includes obtaining, maintaining and complying with any Order which a Group Company is subject to which arises under or is related to Environmental Laws;
(ii) (A) The Group Companies possess all governmental permits, approvals, authorizations, consents, licenses or certificates required by all applicable Environmental Laws (collectively, Environmental Permits); (B) all such Environmental Permits are valid and in full force and effect; and (C) no Group Company is in default, and, to the Knowledge of Company, no environmental condition exists at the Company Leased Properties that with lapse of time would constitute a default, under such Environmental Permits;
(iii) Neither the Company nor its Subsidiaries are party to any unresolved, pending or, to the Knowledge of the Company, threatened (in writing) complaints, claims, actions, suits, investigations, inquiries, notices, judgments, decrees, injunctions, orders, requests for information or proceedings arising under or related to Environmental Laws. To the Knowledge of the Company, no Hazardous Substances currently exist at the Company Leased Properties that would reasonably be expected to result in any of the Group Companies incurring liabilities or obligations under Environmental Laws; and
(iv) No portion of any property currently or, to the Knowledge of the Company, formerly owned, used, leased, or operated by any Group Company has been used by any Group Company for the handling, manufacturing, processing, generation, storage or disposal of Hazardous Substances in a manner other than in compliance with applicable Environmental Law and associated Environmental Permits, and no Group
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Company has released Hazardous Substances into the environment (including soil, surface water, ground water, any present or potential drinking water supply, subsurface strata or ambient air) in a manner or in quantities that would result in a violation of or give rise to a liability of any Group Company under Environmental Laws at any currently or formerly owned, used, leased or operated property or facility of any Group Company.
(b) The Group Companies have made available to Parent copies of all material environmental assessments, studies, audits, analyses or reports relating to Company Leased Properties or the Group Companies and copies of all material, non-privileged documents relating to any material and outstanding liabilities of any of the Group Companies under Environmental Law to the extent such are in the possession, custody, or reasonable control of the Group Companies.
4.16 Brokers; Third-Party Expenses. Except as set forth on Schedule 4.16 of the Company Disclosure Letter, the Group Companies have not incurred, nor will any of them incur, directly or indirectly, any liability for brokerage, finders fees, agents commissions or any similar charges in connection with this Agreement or the Transactions.
4.17 Intellectual Property.
(a) Schedule 4.17(a) of the Company Disclosure Letter sets forth a true, correct and complete list, as of the date of this Agreement, of all of the following that are material Intellectual Property used in any of the businesses of the Group Companies and owned by the Group Companies: (i) registered Patents and pending applications for Patents; (ii) registered Trademarks and pending applications for registration of Trademarks; (iii) registered Copyrights and pending applications for registration of Copyrights (the Intellectual Property referred to in clauses (i) through (iii), collectively, the Company Registered Intellectual Property); (iv) Internet domain names; and (v) social media accounts. All of the Company Registered Intellectual Property is subsisting and, to the Knowledge of the Company and excepting any pending applications included therein, valid and enforceable.
(b) One of the Group Companies is the sole and exclusive owner of all right, title and interest in and to all material Owned Intellectual Property and has a license, sublicense or otherwise possesses legally enforceable rights, to use all other Intellectual Property used in the conduct of the business of the Group Companies as presently conducted, free and clear of all Liens (other than Permitted Liens); provided that the foregoing representation and warranty does not constitute a representation and warranty of non-infringement by any Group Company. The Owned Intellectual Property and the Licensed Intellectual Property when used within the scope of the applicable Inbound License and all applicable license agreements to which such Group Company is a party include all of the material Intellectual Property necessary for each of the Group Companies to conduct its business as currently conducted; provided that the foregoing representation and warranty does not constitute a representation and warranty of non-infringement by any Group Company.
(c) Except as disclosed on Schedule 4.17(c) of the Company Disclosure Letter, to the Knowledge of the Company, the conduct of the businesses of the Group Companies has not, within the past six (6) years, infringed, misappropriated or otherwise violated and is not infringing,
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misappropriating or otherwise violating any Intellectual Property rights of any Person. To the Knowledge of the Company, no Person has infringed, misappropriated or otherwise violated or is infringing, misappropriating or otherwise violating any of the Owned Intellectual Property and no such claims have been made in writing against any third party by any of the Group Companies in the three (3) years prior to the date of this Agreement.
(d) There is no action pending or, to the Knowledge of the Company, threatened, against any of the Group Companies, and no Group Company has received in the three (3) years prior to the date of this Agreement any written notice from any Person pursuant to which any Person is: (i) alleging that the conduct of the business of any Group Company is infringing, misappropriating or otherwise violating any Intellectual Property rights of any third party; or (ii) contesting the use, ownership, validity or enforceability of any of the Owned Intellectual Property. None of the material Owned Intellectual Property is subject to any pending or outstanding injunction, order, judgment, settlement, consent order, ruling or other disposition of dispute that materially adversely restricts the use, transfer or registration of, or adversely affects the validity or enforceability of, any such Owned Intellectual Property, in each case, in any material respect.
(e) To the Knowledge of the Company, no past or present director, officer or employee of any Group Company owns (or has any claim, or any right (whether or not currently exercisable) to any ownership interest, in or to) any material Owned Intellectual Property. Each of past or present director, officer, employee, consultant or independent contractor of any of the Group Companies who are or have been engaged in creating or developing for such Group Company any material Owned Intellectual Property in the course of such Persons employment or retention thereby has executed and delivered a written agreement, pursuant to which such Person has: (i) agreed to hold all confidential information of such Group Company in confidence both during and after such Persons employment or retention, as applicable; and (ii) presently assigned to such Group Company all of such Persons rights, title and interest in and to all Intellectual Property created or developed for such Group Company in the course of such Persons employment or retention thereby. To the Knowledge of the Company, there has been no and there is currently no breach by any such Person with respect to material Intellectual Property under any such agreement.
(f) Each of the Group Companies has taken reasonable steps to maintain the secrecy, confidentiality and value of all material Trade Secrets included in the Owned Intellectual Property. No Trade Secret that is material to the business of the Group Companies, or any Trade Secret of any third party received subject to confidentiality obligations, has been authorized to be disclosed, or, to the Knowledge of the Company, has been disclosed to any of the Group Companies past or present employees or any other Person, other than subject to an agreement restricting the disclosure and use of such Trade Secret.
(g) No funding, facilities or personnel of any Governmental Entity or any university, college, research institute or other educational institution has been or is being used in any material respect to create, in whole or in part, any material Owned Intellectual Property.
(h) A Group Company owns or has a valid right to access and use pursuant to a written agreement (which, for the avoidance of doubt, shall include standard click-through agreements), all computer systems, including the Software, firmware, hardware, networks,
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interfaces, platforms and related systems, databases, websites and equipment necessary for each Group Company to process, store, maintain and operate data, information and functions that are material to the business of the Group Companies (collectively, the Company IT Systems). The Company IT Systems are adequate in all material respects for the operation of the business of the Group Companies as currently conducted. In the last three (3) years, there have been no material failures, breakdowns, continued substandard performance or other adverse events adversely affecting any such Company IT Systems that have caused a disruption or interruption in or to the business of the Group Companies in any material respect. To the Knowledge of the Company, the Company IT Systems do not contain any viruses, worms, Trojan horses, bugs, faults or other devices, errors, contaminants or effect that materially disrupt or adversely affect the functionality of the Company IT Systems or enable any Person to access without authorization any Company IT Systems.
(i) No source code for any Software currently used in the business of any Group Company that constitutes material Owned Intellectual Property (Group Company Software) has been delivered, licensed or made available to any escrow agent or other Person. None of the Group Companies has any duty or obligation (whether present, contingent or otherwise) to deliver, license or make available the source code for any Group Company Software to any escrow agent or other Person and no event has occurred and, to the Knowledge of the Company, no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, result in the delivery, license or disclosure of the source code for any Group Company Software to any other Person.
(j) None of the Group Companies has incorporated or used any Open Source Code in or with any material Software used by any of the Group Companies in a manner that requires the contribution or disclosure to any third party of any material portion of the source code of any Group Company Software. The Group Companies are in material compliance with the terms and conditions of all relevant Open Source Licenses used in the business of the Group Companies.
(k) The execution and delivery of this Agreement by the Group Companies and the consummation of the Transactions will not, on the part of the Group Companies: (i) result in the material breach of, or create on behalf of any third party the right to terminate or modify, any agreement relating to any material Owned Intellectual Property or material Licensed Intellectual Property; (ii) result in or require under any Contract to which any of the Group Companies is a party, the grant, assignment or transfer to any other Person (other than Parent, First Merger Sub, Second Merger Sub or any of their respective Affiliates) of any license or other right or interest under, to or in any material Owned Intellectual Property or any of the Intellectual Property of Parent, First Merger Sub, Second Merger Sub or any of their respective Affiliates; or (iii) cause a material loss or impairment of any material Owned Intellectual Property or material Licensed Intellectual Property.
4.18 Privacy.
(a) Each of the Group Companies and, to the Companys Knowledge, any Person acting for or on behalf of any of the Group Companies, has for the past three (3) years complied in all material respects, as applicable to such Group Company, with: (i) all applicable Privacy Laws; (ii) all of the applicable Group Companys policies and notices regarding Personal
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Data; and (iii) all of such Group Companys contractual obligations with respect to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (technical, physical and administrative), disposal, destruction, disclosure, or transfer (including cross-border) (collectively, Processing) of Personal Data. None of the Group Companies have received in the three (3) years prior to the date of this Agreement any written notice of any claims (including written notice from third parties acting on its or their behalves), of, or been charged with, the violation of, any Privacy Laws, applicable privacy policies, or contractual commitments with respect to Personal Data. None of the Group Companies is in material violation of its privacy policies or notices or contractual obligations with respect to Processing Personal Data.
(b) Each of the Group Companies has, in the past three (3) years, as applicable: (i) implemented and maintained reasonable technical, physical and administrative safeguards, procedures and practices, which safeguards, procedures and practices are consistent with practices in the industry in which the applicable Group Company operates and are appropriate to the nature of the information, to protect Personal Data and other confidential information in its possession or under its control against loss, theft, misuse or unauthorized access, use, modification or disclosure; (ii) entered into written agreements with all third-party service providers, outsourcers, processors or other third parties who Process, store or otherwise handle Personal Data for or on behalf of the applicable Group Company that obligate such Persons to comply with applicable Privacy Laws and to take reasonable steps to protect and secure Personal Data from loss, theft, misuse or unauthorized access; and (iii) to the Knowledge of the Company, any third party who has provided Personal Data to any of the Group Companies has done so in compliance with Privacy Laws applicable to it, including providing any notice and obtaining any consent required under such Privacy Laws.
(c) In the last three (3) years, there have been no breaches, security incidents or misuse of or unauthorized access to any material Company IT Systems or Personal Data in the control of any of the Group Companies or, to the Knowledge of the Company, collected, used or processed by a third party on behalf of the Group Companies, and none of the Group Companies have provided or been legally or contractually required to provide any notices to any Person in connection with any breaches, security incidents, misuse of or unauthorized access to any material Company IT Systems or Personal Data. Each of the Group Companies has implemented commercially reasonable disaster recovery and business continuity plans, and taken actions materially consistent with such plans, to the extent required, to safeguard the data and Personal Data in its possession or control. Each of the applicable Group Companies has conducted commercially reasonable privacy and data security testing or audits at reasonable intervals and have resolved or remediated in all material respects any material privacy or data security issues or vulnerabilities identified.
4.19 Agreements, Contracts and Commitments.
(a) Schedule 4.19(a) of the Company Disclosure Letter sets forth a true, correct and complete list of each Company Material Contract (as defined below) that is in effect as of the date of this Agreement. For purposes of this Agreement, Company Material Contract of the Group Companies shall mean:
(i) any Contract or purchase commitment reasonably expected to result in future payments to or by any Group Company in excess of $500,000 per annum;
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(ii) any Contract between a Group Company and one of the top 20 customers of the Group Companies operations as determined by the dollar volume of revenue and considering the Group Companies as a whole during the 12-month period prior to the date of this Agreement;
(iii) any Contract between a Group Company and one of the top 10 suppliers of the Group Companies operations (the Material Suppliers) as determined by dollar volume of payments and considering the Group Companies as a whole during the 12-month period prior to the date of this Agreement;
(iv) any material Contract with any college or other academic institution;
(v) any Contract that purports to limit (A) the localities in which the Group Companies businesses are conducted, (B) any Group Company from engaging in any line of business or (C) any Group Company from developing, marketing or selling products or services, in each case, in any manner that is material to the Group Companies, taken as a whole, including any non-compete agreements or agreements limiting the ability of any of the Group Companies to solicit customers or employees, in a manner that is material to the Group Companies, taken as a whole;
(vi) any Contract that imposes obligations on any of the Group Companies to provide most favored nation pricing to any of its customers, or that contains any take or pay or minimum requirements with any of its suppliers, right of first refusal or other similar provisions with respect to any transaction engaged in by any of the Group Companies;
(vii) any Contract that is related to the governance or operation of any joint venture, partnership or similar arrangement, other than such contract solely between or among any of the Group Companies;
(viii) any Contract for or relating to any borrowing of money by or from the Company, including the Existing Credit Agreement;
(ix) any employment, consulting (with respect to an individual, independent contractor) or management Contract providing for annual payments in excess of $200,000, excluding any such employment, consulting, or management Contract that either: (A) is terminable by the Company upon 30 days or less of notice; or (B) provides for notice and/or garden leave obligations as required by Applicable Legal Requirements, in each case, so long as such Contract does not provide for: (1) severance or similar obligations; (2) transaction bonuses or change in control payments; or (3) tax gross-ups;
(x) any Contract: (A) providing for the grant of any preferential rights to purchase or lease any asset of the Company; or (B) providing for any right (exclusive or non-exclusive) to sell or distribute any material product or service of any of the Group Companies (in the case of clauses (A) and (B), other than Contracts for the purchase or sale of inventory, or supplies entered into in the Ordinary Course of Business);
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(xi) any Contract that includes an obligation to register any Company Common Stock or other securities of any Group Company with any Governmental Entity (other than requirements of foreign Applicable Legal Requirements in the Ordinary Course of Business related to the recording with an applicable Governmental Entity of the ownership of non-U.S. Group Companies);
(xii) any Contracts for: (A) the sale of any of the business, properties or assets of any Group Company in an amount in excess of $100,000; or (B) the acquisition by any Group Company of any operating business, properties or assets, whether by merger, purchase or sale of stock or assets or otherwise (in the case of clauses (A) and (B), other than Contracts for the purchase or sale of inventory, or supplies entered into in the Ordinary Course of Business);
(xiii) any Contract that includes an obligation to make payments, contingent or otherwise, arising out of the prior acquisition of the business, assets or stock of other Persons;
(xiv) any labor agreement, collective bargaining agreement, or any other labor-related agreements with any labor or trade union, employee representative body or association, labor organization, or works council;
(xv) any Contract for the use by any of the Group Companies of any tangible property where the annual lease payments are greater than $100,000 (other than any lease of vehicles, office equipment or operating equipment made in the Ordinary Course of Business); and
(xvi) any Contract under which any of the Group Companies: (A) licenses Intellectual Property from any third party (other than licenses for Intellectual Property entered into in the Ordinary Course of Business that are (x) subject to a total fee of less than $300,000 per year or $600,000 in the aggregate, for off-the-shelf Software in object code form or (y) merely incidental to the transaction contemplated in such agreement, the commercial purpose of which is primarily for something other than such license, such as an agreement to purchase or lease equipment (e.g., a photocopier, computer, or mobile phone) that also contains a non-exclusive license of embedded Intellectual Property (Inbound License)); (B) licenses Intellectual Property to any third party (excluding any licenses granted to customers on a non-exclusive basis in the Ordinary Course of Business); (C) has acquired from or transferred to any third party any material patents or other material Intellectual Property (other than agreements with employees, consultants, or contractors entered into in the Ordinary Course of Business that assign all Intellectual Property developed by the employee, consultant, or contractor to a Group Company); or (D) otherwise permits or agrees to permit any other Person to enforce or register any material Owned Intellectual Property, including any coexistence agreements or covenants not to sue.
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(b) Each Company Material Contract is in full force and effect and represents a legal, valid and binding obligation of the applicable Group Company party thereto and, to the Knowledge of the Company, represents a legal, valid and binding obligation of the counterparties thereto, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally or by principles governing the availability of equitable remedies. True, correct and complete copies of all Company Material Contracts have been made available to Parent.
(c) Neither the Company nor, to the Knowledge of the Company, any other party thereto is in breach of or in default under, and no event has occurred which with notice or lapse of time or both would become a breach of or default under, any Company Material Contract, and no party to any Company Material Contract has given any written notice of any claim of any such breach, default or event, which, individually or in the aggregate, are reasonably likely to be material to the Group Companies, taken as a whole.
4.20 Insurance. Each of the Group Companies maintains insurance policies or fidelity or surety bonds covering its assets, business, equipment, properties, operations, employees, officers and directors (collectively, the Insurance Policies) covering all material insurable risks in respect of its business and assets, the Insurance Policies are in full force and effect, all material premiums due to date thereunder have been paid in full, and no Group Company is in default with respect to any other material obligations thereunder. The coverages provided by such Insurance Policies are usual and customary in amount and scope for the Group Companies business and operations as concurrently conducted, and sufficient to comply with any insurance required to be maintained by Company Material Contracts, and, to the Knowledge of the Company, there have been no material claims or events with respect to the business of the Group Companies that would be covered under a usual or customary insurance policy but for which coverage was not purchased by the Group Companies. No written notice of cancellation or termination has been received by any Group Company with respect to any of the effective Insurance Policies. There is no pending material claim by any Group Company against any insurance carrier under any of the existing Insurance Policies for which (i) coverage has been denied or disputed by the applicable insurance carrier or (ii) that is being handled subject to a reservation of rights notice. As of the date hereof, no Group Company has received written notice of any outstanding requirements under any existing Insurance Policy for risk improvements that are reasonably likely to give rise to a material capital expenditure after the Closing. To the Knowledge of the Company, all incidents which would reasonably be expected to result in a material claim after the Closing have been notified to the relevant insurers under the Insurance Policies.
4.21 Interested Party Transactions.
(a) Except as set forth on Schedule 4.21(a) of the Company Disclosure Letter, no (1) employee, officer or director of any Group Company, (2) Company Stockholder or holder of securities or derivative securities of any Group Company or (3) a member of any of the respective immediate families of any of the foregoing is indebted to any Group Company for borrowed money, nor are any of the Group Companies indebted for borrowed money (or committed to make loans or extend or guarantee credit) to any of such Persons, other than: (i) for payment of salary, bonuses and other compensation for services rendered; (ii) reimbursement for reasonable expenses incurred in connection with any of the Group Companies; and (iii) for other employee benefits made generally available to all employees.
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(b) Except as set forth on Schedule 4.21(b) of the Company Disclosure Letter, to the Knowledge of the Company, no officer, director, employee, Company Stockholder or holder of securities or derivative securities of the Group Companies (each, an Insider) or any member of an Insiders immediate family is, directly or indirectly, interested in any Contract with any of the Group Companies (other than such Contracts relate to any such Persons ownership of Company Common Stock or other securities of the Group Companies or such Persons employment or consulting arrangements with the Group Companies).
4.22 Information Supplied. The information relating to the Group Companies supplied by the Company for inclusion in the Proxy Statement will not, as of the date on which the Proxy Statement (or any amendment or supplement thereto) is first distributed to holders of Parent Class A Stock or at the time of the Special Meeting, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation, warranty or covenant with respect to: (a) statements made or incorporated by reference therein based on information supplied by Parent, First Merger Sub or Second Merger Sub for inclusion or incorporation by reference in the Proxy Statement or any Parent SEC Reports; or (b) any projections or forecasts included in the Proxy Statement.
4.23 Anti-Bribery; Anti-Corruption. None of the Group Companies or, to the Knowledge of any of the Company, any of the Group Companies respective directors, officers, employees, Affiliates or any other Persons acting on their behalf, at their direction or for their benefit has, within the past five (5) years, in connection with the operation of the business of the Group Companies, directly or indirectly: (a) made, offered or promised to make or offer any payment, loan or transfer of anything of value, including any reward, advantage or benefit of any kind, to or for the benefit of any government official, candidate for public office, political party or political campaign, or any official of such party or campaign, for the purpose of: (i) influencing any act or decision of such government official, candidate, party or campaign or any official of such party or campaign; (ii) inducing such government official, candidate, party or campaign or any official of such party or campaign to do or omit to do any act in violation of a lawful duty; (iii) obtaining or retaining business for or with any Person; (iv) expediting or securing the performance of official acts of a routine nature; or (v) otherwise securing any improper advantage; (b) paid, offered or agreed or promised to make or offer any bribe, payoff, influence payment, kickback, unlawful rebate or other similar unlawful payment of any nature; (c) made, offered or agreed or promised to make or offer any unlawful contributions, gifts, entertainment or other unlawful expenditures; (d) established or maintained any unlawful fund of corporate monies or other properties; (e) created or caused the creation of any false or inaccurate books and records related to any of the foregoing; or (f) otherwise violated any applicable Anti-Corruption Laws. None of the Group Companies or, to the Knowledge of the Company, any of the Group Companies respective directors, officers, employees, Affiliates or any other Persons acting on their behalf, at their direction or for their benefit (i) is or has been within the past five (5) years the subject of an unresolved claim or allegation relating to (A) any potential violation of the Anti-Corruption Laws or (B) any potentially unlawful payment, contribution, gift, bribe, rebate, payoff, influence
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payment, kickback or other payment or the provision of anything of value, directly or indirectly, to an official, to any political party or official thereof or to any candidate for political office, or (ii) has received within the past five (5) years any notice or other communication from, or made a voluntary disclosure to, any Governmental Entity regarding any actual, alleged or potential violation of, or failure to comply with, any Anti-Corruption Law. The Group Companies have had and maintained within the past five (5) years a system or systems of internal controls reasonably designed to (x) ensure compliance with the Anti-Corruption Laws and (y) prevent and detect violations of the Anti-Corruption Laws.
4.24 Customs & International Trade; Sanctions.
(a) During the past five (5) years, the Group Companies and, to the Knowledge of the Company, the Group Companies respective directors, officers, employees, Affiliates or any other Persons acting on their behalf have, in connection with the operation of the business of the Group Companies, been in material compliance with all applicable Customs & International Trade Laws. Without limiting the foregoing, during the past five (5) years to the Knowledge of the Company, (a) the Group Companies and the Group Companies respective directors, officers, employees, Affiliates or any other Persons acting on their behalf have obtained all import and export licenses and all other consents, notices, waivers, approvals, orders, authorizations, registrations, declarations, classifications and filings required for the export, deemed export, import, re-export, deemed re-export or transfer of goods, services, software and technology required for the operation of the respective businesses of the Group Companies, including the Customs & International Trade Authorizations; (b) no Governmental Entity has initiated any action or imposed any civil or criminal fine, penalty, seizure, forfeiture, revocation of a Customs & International Trade Authorization, debarment or denial of future Customs & International Trade Authorizations against any of the Group Companies or any of their respective directors, officers, employees, Affiliates, or any other Persons acting on their behalf in connection with any actual or alleged violation of any applicable Customs & International Trade Laws; and (c) there have been no actual or threatened claims, investigations or requests for information by a Governmental Entity with respect to the Group Companies or any of their respective Affiliates Customs & International Trade Authorizations and compliance with applicable Customs & International Trade Laws and no disclosures made to any Governmental Entity regarding any violation of the Customs & International Trade Laws. The Group Companies have in place adequate controls and systems reasonably designed to ensure compliance with applicable Customs & International Trade Laws in each of the jurisdictions in which the Group Companies or any of their respective Affiliates is incorporated or does or has done business.
(b) None of the Group Companies or, to the Knowledge of the Company, any of the Group Companies respective directors, officers, employees, Affiliates or any other Persons acting on their behalf, in connection with the operation of the business of the Group Companies, is a Sanctioned Person. During the past five (5) years, to the Knowledge of the Company, (a) the Group Companies and the Group Companies respective directors, officers, employees, Affiliates or any other Persons acting on their behalf have, in connection with the operation of the business of the Group Companies, been in compliance with Sanctions, (b) no Governmental Entity has initiated any action or imposed any civil or criminal fine, penalty, seizure, forfeiture, revocation of an authorization, debarment or denial of future authorizations against any of the Group Companies or any of their respective directors, officers, employees, Affiliates, or any other Persons
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acting on their behalf in connection with any actual or alleged violation of any Sanctions, and (c) there have been no actual or threatened claims, investigations or requests for information by a Governmental Entity with respect to the Group Companies or any of their respective Affiliates compliance with Sanctions and no disclosures have been made to any Governmental Entity regarding any actual or potential noncompliance with Sanctions. The Group Companies have in place adequate controls and systems reasonably designed to ensure compliance with Sanctions in each of the jurisdictions in which the Group Companies or any of their respective Affiliates is incorporated or does or has done business.
4.25 Indebtedness. Schedule 4.25 of the Company Disclosure Letter sets forth the (a) outstanding principal amount of all of the Borrowed Indebtedness, as of the date hereof, of the Group Companies and (b) amount of all of the outstanding Indebtedness, as of the date hereof, of the Group Companies, other than Borrowed Indebtedness.
4.26 Suppliers. Since January 1, 2017, no Group Company has received any written or, to the Knowledge of the Company, oral notice that any Group Company is in material breach of or material default under any Contract with any Material Supplier or that any such Material Supplier intends to cease doing business with any Group Company or materially decrease the volume of business that it is presently conducting with any Group Company.
4.27 Customers.
(a) Since January 1, 2017, no Group Company has received any written notice that any Group Company is in material breach of or material default under any Contract with any of the top 50 customers of the Group Companies operations as determined by the dollar volume of revenue and considering the Group Companies as a whole during the 12-month period prior to the date of this Agreement, or that any such customer intends to cease doing business with any Group Company, terminate any Contract with any Group Company, materially decrease the volume of business that it is presently conducting with any Group Company or materially decrease the amount of revenue it will provide to any Group Company relative to the amount of revenue it provided to such Group Company in the 12-month period prior to the date of such notice.
(b) Since January 1, 2020, no Group Company has received, to the Knowledge of the Company, any oral notice that any Group Company is in material breach of or material default under any Contract with any of the top 20 customers of the Group Companies operations as determined by the dollar volume of revenue and considering the Group Companies as a whole during the 12-month period prior to the date of this Agreement, or that any such customer intends to cease doing business with any Group Company, terminate any Contract with any Group Company, materially decrease the volume of business that it is presently conducting with any Group Company or materially decrease the amount of revenue it will provide to any Group Company relative to the amount of revenue it provided to such Group Company in the 12-month period prior to the date of such notice.
4.28 Disclaimer of Other Warranties. THE COMPANY HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN ARTICLE V, THE OTHER TRANSACTION AGREEMENTS AND THE FORWARD PURCHASE AGREEMENT (COLLECTIVELY, THE SPECIFIED REPRESENTATIONS), NONE OF PARENT, FIRST
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MERGER SUB, SECOND MERGER SUB, SPONSOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES HAS MADE, IS MAKING, OR SHALL BE DEEMED TO MAKE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, TO THE COMPANY, ANY OF ITS AFFILIATES OR REPRESENTATIVES OR ANY OTHER PERSON, WITH RESPECT TO PARENT, FIRST MERGER SUB, SECOND MERGER SUB, SPONSOR OR ANY OF THEIR RESPECTIVE BUSINESSES, ASSETS OR PROPERTIES OF THE FOREGOING, OR OTHERWISE, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUTURE RESULTS, PROPOSED BUSINESSES OR FUTURE PLANS, IN EACH CASE, IN CONNECTION WITH THE TRANSACTIONS. WITHOUT LIMITING THE FOREGOING AND NOTWITHSTANDING ANYTHING TO THE CONTRARY: (A) NONE OF PARENT, FIRST MERGER SUB, SECOND MERGER SUB, SPONSOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES SHALL BE DEEMED TO MAKE TO THE COMPANY, THE COMPANY STOCKHOLDER OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE TRANSACTIONS OTHER THAN AS EXPRESSLY MADE BY PARENT, FIRST MERGER SUB AND SECOND MERGER SUB TO THE COMPANY IN THE SPECIFIED REPRESENTATIONS; AND (B) NONE OF PARENT, FIRST MERGER SUB, SECOND MERGER SUB, SPONSOR NOR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES, HAS MADE, IS MAKING, OR SHALL BE DEEMED TO MAKE TO THE COMPANY, THE COMPANY STOCKHOLDER, OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES OR ANY OTHER PERSON ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO: (I) THE INFORMATION DISTRIBUTED OR MADE AVAILABLE TO THEM BY OR ON BEHALF OF PARENT, FIRST MERGER SUB, SECOND MERGER SUB OR SPONSOR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS; (II) ANY MANAGEMENT PRESENTATION, CONFIDENTIAL INFORMATION MEMORANDUM OR SIMILAR DOCUMENT; OR (III) ANY FINANCIAL PROJECTION, FORECAST, ESTIMATE, BUDGET OR SIMILAR ITEM RELATING TO PARENT, FIRST MERGER SUB, SECOND MERGER SUB, SPONSOR OR ANY OF THEIR RESPECTIVE BUSINESSES, ASSETS, LIABILITIES, PROPERTIES, FINANCIAL CONDITIONS, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS OF THE FOREGOING. THE COMPANY HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE TRANSACTIONS OTHER THAN THE SPECIFIED REPRESENTATIONS. THE COMPANY ACKNOWLEDGES THAT IT HAS CONDUCTED, TO ITS SATISFACTION, AN INDEPENDENT INVESTIGATION AND VERIFICATION OF PARENT, FIRST MERGER SUB, SECOND MERGER SUB AND THE BUSINESSES, ASSETS, LIABILITIES, PROPERTIES, FINANCIAL CONDITIONS, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS OF EACH OF THE FOREGOING AND, IN MAKING ITS DETERMINATION THE COMPANY HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND VERIFICATION, IN ADDITION TO THE REPRESENTATIONS AND WARRANTIES OF PARENT, FIRST MERGER SUB, AND SECOND MERGER SUB EXPRESSLY AND SPECIFICALLY SET FORTH IN THE SPECIFIED REPRESENTATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 4.28, CLAIMS AGAINST PARENT, FIRST MERGER SUB, SECOND MERGER SUB, SPONSOR OR ANY
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OTHER PERSON SHALL NOT BE LIMITED IN ANY RESPECT IN THE EVENT OF FRAUD IN THE MAKING OF THE SPECIFIED REPRESENTATIONS BY SUCH PERSON. THE COMPANY HEREBY ACKNOWLEDGES THAT NONE OF PARENT, FIRST MERGER SUB, SECOND MERGER SUB OR SPONSOR MAKES ANY REPRESENTATION, WARRANTY OR COVENANT WITH RESPECT TO (X) STATEMENTS MADE OR INCORPORATED BY REFERENCE IN ANY PARENT SEC REPORTS OR ADDITIONAL PARENT SEC REPORTS BASED ON INFORMATION SUPPLIED BY THE GROUP COMPANIES FOR INCLUSION OR INCORPORATION BY REFERENCE IN THE PROXY STATEMENT, OR (Y) ANY PROJECTIONS OR FORECASTS INCLUDED IN THE PROXY STATEMENT.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT,
FIRST MERGER SUB AND SECOND MERGER SUB
Except: (i) as set forth in the letter dated as of the date of this Agreement and delivered by Parent, First Merger Sub and Second Merger Sub to the Company on or prior to the date of this Agreement (the Parent Disclosure Letter); and (ii) as disclosed in the Parent SEC Reports filed with the SEC prior to the date of this Agreement (to the extent the qualifying nature of such disclosure is readily apparent from the content of such Parent SEC Reports) excluding disclosures referred to in Forward-Looking Statements, Risk Factors and any other disclosures therein to the extent they are of a predictive or cautionary nature or related to forward-looking statements (it being (i) understood that any matter disclosed in any Parent SEC Reports will be deemed to be disclosed in a section of the Parent Disclosure Letter only to the extent that it is readily apparent on the face of such disclosure in such Parent SEC Report that it is applicable to such section of the Parent Disclosure Letter; and (ii) acknowledged that nothing disclosed in the Parent SEC Reports will be deemed to modify or qualify the representations and warranties set forth in Section 5.3 or Section 5.8(a)), as a material inducement for the Company to enter into this Agreement, Parent, First Merger Sub and Second Merger Sub represent and warrant to the Company as of the date hereof as follows:
5.1 Organization and Qualification.
(a) Each of Parent, First Merger Sub and Second Merger Sub is a company duly incorporated or organized, validly existing and in good standing under the laws of the State of Delaware, and as of immediately prior to the Closing, will be a company duly incorporated or organized, validly existing and in good standing under the laws of the State of Delaware.
(b) Each of Parent, First Merger Sub and Second Merger Sub has the requisite corporate or limited liability power and authority to own, lease and operate its assets and properties and to carry on its business as it is now being conducted, except as would not be material to Parent, First Merger Sub and Second Merger Sub, taken as a whole.
(c) None of Parent, First Merger Sub or Second Merger Sub are in violation of any of the provisions of their respective Governing Documents.
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(d) Each of Parent, First Merger Sub and Second Merger Sub is duly qualified or licensed to do business as a foreign corporation or limited liability company and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary. Each jurisdiction in which Parent, First Merger Sub and Second Merger Sub are so qualified or licensed is listed on Schedule 5.1(d) of the Parent Disclosure Letter.
5.2 Parent Subsidiaries. Parent has no direct or indirect Subsidiaries or participations in joint ventures or other entities, and does not own, directly or indirectly, any equity interests or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated, other than First Merger Sub and Second Merger Sub. Neither First Merger Sub nor Second Merger Sub has any assets or properties of any kind, does not now conduct and has never conducted any business, and has and will have at the Closing no obligations or liabilities of any nature whatsoever, except for such obligations as are imposed under this Agreement. First Merger Sub and Second Merger Sub are entities that have been formed solely for the purpose of engaging in a business combination.
5.3 Capitalization.
(a) As of the date of this Agreement: (i) 5,000,000 shares of undesignated preferred stock, par value $0.0001 per share, of Parent (Parent Preferred Stock) are authorized and none are issued and outstanding; (ii) 500,000,000 Class A common shares of Parent, par value $0.0001 per share (Parent Class A Stock), are authorized and 25,000,000 are issued and outstanding; (iii) 25,000,000 Class F common shares of Parent, par value $0.0001 per share (Parent Class F Stock and, together with the Parent Preferred Stock and the Parent Class A Stock, the Parent Shares), are authorized and 6,250,000 are issued and outstanding, and upon the closing of the transactions contemplated by the (A) Forward Purchase Agreement, Parent has committed to issue an additional 2,500,000 shares of Parent Class A Stock and 833,333 warrants to purchase one share of Parent Class A Stock to Crescent and (B) the Subscription Agreements, Parent has committed to issue an additional 7,500,000 shares of shares of Parent Class A Stock; (iv) 7,000,000 warrants to purchase one share of Parent Class A Stock (the Private Placement Warrants) are outstanding; and (v) 12,500,000 warrants to purchase one share of Parent Class A Stock (the Public Warrants, collectively with the Private Placement Warrants, the Parent Warrants) are outstanding. All outstanding Parent Class A Stock, Parent Class F Stock, Private Placement Warrants and Public Warrants have been duly authorized, validly issued, fully paid and are non-assessable and are not subject to, nor have been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right. The Parent Warrants have been validly issued, and constitute valid and binding obligations of Parent, enforceable against Parent in accordance with their terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally or by principles governing the availability of equitable remedies.
(b) The authorized capital stock of First Merger Sub consists of 1,000 shares of common stock, par value $0.0001 per share (the First Merger Sub Common Stock). As of the date hereof, 1,000 shares of First Merger Sub Common Stock are issued and outstanding. All outstanding shares of First Merger Sub Common Stock (i) have been duly authorized, validly issued, fully paid and are non-assessable and are not subject to any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right, and (ii) are owned by Parent, free and clear of all Liens (other than Permitted Liens).
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(c) As of the date hereof, all outstanding membership interests of Second Merger Sub (i) have been duly authorized, validly issued and are not subject to any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right, and (ii) are owned by Parent, free and clear of all Liens (other than Permitted Liens).
(d) Except for the Parent Warrants, the Forward Purchase Agreement, the Subscription Agreements and the right of the Sponsor or certain of the Companys officers and directors to convert up to $1,500,000 of any working capital loans they may make into warrants to purchase one share of Parent Class A Stock (which such right has been waived pursuant to the Sponsor Support Agreement), there are no outstanding options, warrants, rights, convertible or exchangeable securities, phantom stock rights, stock appreciation rights, stock-based performance units, commitments or Contracts of any kind to which Parent, First Merger Sub or Second Merger Sub is a party or by which any of them is bound obligating Parent, First Merger Sub or Second Merger Sub to issue, deliver or sell, or cause to be issued, delivered or sold, additional Parent Shares, First Merger Sub Common Stock, Second Merger Sub membership interests or any other shares of capital stock or other interest or participation in, or any security convertible or exercisable for or exchangeable into Parent Shares, First Merger Sub Common Stock, Second Merger Sub membership interests or any other shares of capital stock or membership interests or other interest or participation in Parent, First Merger Sub or Second Merger Sub.
(e) Each Parent Share, share of First Merger Sub Common Stock and Second Merger Sub membership interests and Parent Warrant: (i) has been issued in compliance in all material respects with: (A) Applicable Legal Requirements; and (B) the Governing Documents of Parent, First Merger Sub or Second Merger Sub, as applicable; and (ii) was not issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any Applicable Legal Requirements, the Governing Documents of Parent, First Merger Sub or Second Merger Sub, as applicable or any Contract to which any of Parent, First Merger Sub or Second Merger Sub is a party or otherwise bound by.
(f) All outstanding shares of capital stock of the Subsidiaries of Parent are owned by Parent, or a direct or indirect wholly owned Subsidiary of Parent, free and clear of all Liens (other than Permitted Liens).
(g) Subject to approval of the Parent Stockholder Matters, the shares of Parent Common Stock to be issued by Parent in connection with the Transactions and the Forward Purchase Transaction, in each case, solely with respect to shares to be issued at the Closing, upon issuance in accordance with the terms of this Agreement (i) will be duly authorized, validly issued, fully paid and non-assessable, (ii) will be issued in compliance with all Applicable Legal Requirements, (iii) will not be issued in violation of any options, warrants, calls, rights (including preemptive rights), the Governing Documents of Parent or commitments or agreements to which Parent is a party or by which it is bound, and (iv) will not be subject to any preemptive rights of any other stockholder of Parent or restrictions on transfer (other than applicable federal or state securities or blue sky laws and any restrictions on transfer set forth in the A&R Registration
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Rights Agreement, the Parent A&R Charter, the Subscription Agreements and the Forward Purchase Agreement) and will be capable of effectively vesting in the Company Stockholder title to all such securities, free and clear of all Liens (other than applicable federal or state securities or blue sky laws and any restrictions on transfer set forth in the A&R Registration Rights Agreement, the Parent A&R Charter, the Subscription Agreements and the Forward Purchase Agreement). There are no securities or instruments issued by or to which Parent is a party containing anti-dilution or similar provisions that will be triggered by the consummation of the Transactions or the transactions contemplated by the Forward Purchase Agreement or the Subscription Agreements, in each case, that have not been or will be waived on or prior to the Closing Date.
(h) Each holder of any of the Parent Shares initially issued to the Sponsor in connection with Parents initial public offering: (i) is obligated to vote all of such Parent Shares in favor of approving the Transactions; and (ii) is not entitled to elect to redeem any of such holders Parent Shares pursuant to the Parent Organizational Documents.
(i) Except as set forth in the Parent Organizational Documents or the Current Registration Rights Agreement or in connection with the Transactions, there are no registration rights, and there is no voting trust, proxy, rights plan, anti-takeover plan or other agreements or understandings to which Parent is a party or by which Parent is bound with respect to any ownership interests of Parent.
(j) The holders of the Parent Class F Stock have waived any adjustment to the Initial Conversion Ratio (as defined in the Parent Charter).
5.4 Authority Relative to this Agreement. Each of Parent, First Merger Sub and Second Merger Sub has the requisite power and authority to: (a) execute, deliver and perform this Agreement and the other Transaction Agreements to which it is a party, and each ancillary document that it has executed or delivered or is to execute or deliver pursuant to this Agreement; and (b) carry out its obligations hereunder and thereunder and to consummate the Transactions (including the Mergers). The execution and delivery by Parent, First Merger Sub and Second Merger Sub of this Agreement and the other Transaction Agreements to which each of them is a party, and the consummation by Parent, First Merger Sub and Second Merger Sub of the Transactions (including the Mergers) have been duly and validly authorized by all necessary corporate or limited liability company action on the part of each of Parent, First Merger Sub and Second Merger Sub, and no other proceedings on the part of Parent, First Merger Sub or Second Merger Sub are necessary to authorize this Agreement or the other Transaction Agreements to which each of them is a party or to consummate the transactions contemplated thereby, other than approval of the Parent Stockholder Matters. This Agreement and the other Transaction Agreements to which each of them is a party have been duly and validly executed and delivered by Parent, First Merger Sub and Second Merger Sub and, assuming the due authorization, execution and delivery thereof by the other Parties, constitute the legal and binding obligations of Parent, First Merger Sub and Second Merger Sub (as applicable), enforceable against Parent, First Merger Sub and Second Merger Sub (as applicable) in accordance with their terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally or by principles governing the availability of equitable remedies.
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5.5 No Conflict; Required Filings and Consents.
(a) Subject to the approval by the stockholders of Parent of the Parent Stockholder Matters, neither the execution, delivery nor performance by Parent, First Merger Sub and Second Merger Sub of this Agreement or the other Transaction Agreements to which each of them is a party, nor the consummation of the Transactions shall: (i) conflict with or violate their respective Governing Documents; (ii) assuming that the consents, approvals, orders, authorizations, registrations, filings or permits referred to in Section 5.5(b) are duly and timely obtained or made, conflict with or violate any Applicable Legal Requirements; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or materially impair their respective rights or alter the rights or obligations of any third party under, or give to others any rights of consent, termination, amendment, acceleration or cancellation of, or result in the creation of a Lien (other than any Permitted Lien) on any of the properties or assets of Parent or any of its Subsidiaries pursuant to, any Contracts, except, with respect to clause (iii), as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.
(b) The execution and delivery by each of Parent, First Merger Sub and Second Merger Sub of this Agreement and the other Transaction Agreements to which it is a party, does not, and the performance of its obligations hereunder and thereunder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except: (i) for the filing of the Certificates of Merger in accordance with the DGCL and DLLCA, as applicable; (ii) for applicable requirements, if any, of the Securities Act, the Exchange Act, blue sky laws, foreign securities laws and the rules and regulations thereunder, and appropriate documents received from or filed with the relevant authorities of other jurisdictions in which Parent is qualified to do business; (iii) for the filing of any notifications required under the HSR Act, any filings required pursuant to antitrust laws and the expiration of the required waiting periods thereunder; and (iv) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to be material to Parent or reasonably be expected to prevent or materially delay or materially impair the consummation of the Transactions or the ability of Parent to perform its obligations under this Agreement or the other Transaction Agreements.
5.6 Compliance; Approvals. Since its incorporation or organization, as applicable, each of Parent, First Merger Sub and Second Merger Sub has complied in all material respects with and has not been in violation of any Applicable Legal Requirements with respect to the conduct of its business, or the ownership or operation of its business. Since the date of its incorporation or organization, as applicable, to the Knowledge of Parent, no investigation or review by any Governmental Entity with respect to Parent or any of its Subsidiaries has been pending or threatened. No written, or to the Knowledge of Parent, oral notice of non-compliance with any Applicable Legal Requirements has been received by any of Parent, First Merger Sub or Second Merger Sub. Each of Parent, First Merger Sub and Second Merger Sub is in possession of all Approvals necessary to own, lease and operate the properties it purports to own, operate or lease and to carry on its business as it is now being conducted, except where the failure to have such Approvals would not, individually or in the aggregate, reasonably be expected to be material to Parent, First Merger Sub and Second Merger Sub, taken as a whole. Each Approval held by Parent, First Merger Sub and Second Merger Sub is valid, binding and in full force and effect. None of
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Parent, First Merger Sub or Second Merger Sub: (a) are in default or violation (and no event has occurred that, with notice or the lapse of time or both, would constitute a default or violation) of any material term, condition or provision of any such Approval; or (b) have received any notice from a Governmental Entity that has issued any such Approval that it intends to cancel, terminate, modify or not renew any such Approval.
5.7 Parent SEC Reports and Financial Statements.
(a) Parent has filed all forms, reports, schedules, statements and other documents required to be filed or furnished by Parent with the SEC under the Exchange Act or the Securities Act since Parents incorporation to the date of this Agreement, together with any amendments, restatements or supplements thereto (all of the foregoing filed prior to the date of this Agreement, the Parent SEC Reports), and will have filed all such forms, reports, schedules, statements and other documents required to be filed subsequent to the date of this Agreement through the Closing Date (the Additional Parent SEC Reports). All Parent SEC Reports, Additional Parent SEC Reports, any correspondence from or to the SEC or Nasdaq (other than such correspondence in connection with the initial public offering of Parent) and all certifications and statements required by: (i) Rule 13a-14 or 15d-14 under the Exchange Act; or (ii) 18 U.S.C. § 1350 (Section 906) of the Sarbanes-Oxley Act with respect to any of the foregoing (collectively, the Certifications) are available on the SECs Electronic Data-Gathering, Analysis and Retrieval system (EDGAR) in full without redaction. Parent has heretofore furnished to the Company true and correct copies of all amendments and modifications that have not been filed by Parent with the SEC to all agreements, documents and other instruments that previously had been filed by Parent with the SEC and are currently in effect. The Parent SEC Reports were, and the Additional Parent SEC Reports will be, prepared in all material respects in accordance with the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations thereunder. The Parent SEC Reports did not, and the Additional Parent SEC Reports will not, at the time they were or are filed, as the case may be, with the SEC contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The Certifications are each true and correct in all material respects. Parent maintains disclosure controls and procedures required by Rule 13a-15(e) or 15d-15(e) under the Exchange Act. Each director and executive officer of Parent has filed with the SEC on a timely basis all statements required with respect to Parent by Section 16(a) of the Exchange Act and the rules and regulations thereunder. As used in this Section 5.7(a), the term file shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC or Nasdaq.
(b) The financial statements and notes of Parent contained or incorporated by reference in the Parent SEC Reports fairly present in all material respects, and the financial statements and notes of Parent to be contained in or to be incorporated by reference in the Additional Parent SEC Reports will fairly present in all material respects the financial condition and the results of operations, changes in stockholders equity and cash flows of Parent as at the respective dates of, and for the periods referred to, in such financial statements, all in accordance with: (i) U.S. GAAP; and (ii) Regulation S-X or Regulation S-K, as applicable, subject, in the case of interim financial statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material) and the omission of notes to the extent permitted
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by Regulation S-X or Regulation S-K, as applicable. Parent has no off-balance sheet arrangements that are not disclosed in the Parent SEC Reports. No financial statements other than those of Parent are required by U.S. GAAP to be included in the consolidated financial statements of Parent.
5.8 Absence of Certain Changes or Events. Except as set forth in Parent SEC Reports filed prior to the date of this Agreement, and except as contemplated by this Agreement, since December 31, 2019, there has not been: (a) any Parent Material Adverse Effect; (b) any declaration, setting aside or payment of any dividend on, or other distribution in respect of, any of Parents capital stock, or any purchase, redemption or other acquisition by Parent of any of Parents capital stock or any other securities of Parent or any options, warrants, calls or rights to acquire any such shares or other securities; (c) any split, combination or reclassification of any of Parents capital stock; (d) any material change by Parent in its accounting methods, principles or practices, except as required by concurrent changes in U.S. GAAP (or any interpretation thereof) or Applicable Legal Requirements; (e) any change in the auditors of Parent; (f) any issuance of capital stock of Parent; (g) any revaluation by Parent of any of its assets, including any sale of assets of Parent other than in the Ordinary Course of Business; or (h) any action taken or agreed upon by Parent or any of its Subsidiaries that would be prohibited by Section 6.2 if such action were taken on or after the date hereof without the consent of the Company.
5.9 Litigation. There are no Legal Proceedings pending or, to the Knowledge of Parent, threatened in writing against or otherwise relating to Parent or any of its Subsidiaries, before any Governmental Entity: (a) challenging or seeking to enjoining, alter or materially delay the Transactions or (b) that would, individually or in the aggregate, reasonably be expected to be material to Parent.
5.10 Business Activities. Since their respective dates of incorporation, none of Parent, First Merger Sub or Second Merger Sub has conducted any business activities other than activities: (a) in connection with its organization; (b) in connection with its initial public offering; or (c) directed toward the accomplishment of a business combination. Except as set forth in the Parent Organizational Documents, there is no Contract or Order binding upon Parent, First Merger Sub or Second Merger Sub or to which any of them is a party which has or could reasonably be expected to have the effect of prohibiting or materially impairing any business practice of it, any acquisition of property by it or the conduct of business by it as currently conducted or as currently contemplated to be conducted (including, in each case, following the Closing).
5.11 Parent Material Contracts. Schedule 5.11 of the Parent Disclosure Letter sets forth a true, correct and complete list of each material contract (as such term is defined in Regulation S-K) to which Parent, First Merger Sub or Second Merger Sub is party (the Parent Material Contracts), other than any such Parent Material Contract that is listed as an exhibit to Parents annual report on Form 10-K for the year ended December 31, 2019.
5.12 Parent Listing. The Parent Units are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the Nasdaq Capital Markets (Nasdaq) under the symbol CRSAU. The issued and outstanding shares of Parent Class A Stock are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol CRSA. The issued and outstanding Parent Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on Nasdaq under the symbol CRSAW.
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Parent is a member in good standing with Nasdaq. Parent has complied in all material respects with all applicable listing and corporate governance rules and regulations of Nasdaq, including the requirements for continued listing of the Parent Units, Parent Class A Stock and Parent Warrants on Nasdaq. There is no action or proceeding pending or, to the Knowledge of Parent, threatened in writing against Parent by Nasdaq or the SEC with respect to any intention by such entity to deregister the Parent Units, the shares of Parent Class A Stock or Parent Warrants or to terminate the listing of Parent on Nasdaq. None of Parent or any of its Affiliates has taken any action in an attempt to terminate the registration of the Parent Units, the Parent Class A Stock or Parent Warrants under the Exchange Act.
5.13 Trust Account.
(a) As of December 31, 2020, Parent had $253,628,041.09 in a trust account (the Trust Account), maintained and invested pursuant to that certain Investment Management Trust Agreement (the Trust Agreement) effective as of March 7, 2019, by and between Parent and Continental Stock Transfer & Trust Company, a New York corporation (Continental) for the benefit of its public stockholders, with such funds invested in United States Government securities or money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended. As of December 31, 2020, Parent held $306,625.77 in cash or cash equivalents outside of the Trust Account. Other than pursuant to the Trust Agreement and the Forward Purchase Agreement, the obligations of Parent under this Agreement are not subject to any conditions regarding Parents, its Affiliates, or any other Persons ability to obtain financing for the consummation of the Transactions.
(b) The Trust Agreement has not been amended or modified and, to the Knowledge of Parent with respect to Continental, is valid and in full force and effect and is enforceable in accordance with its terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally or by principles governing the availability of equitable remedies. Parent has complied in all material respects with the terms of the Trust Agreement and is not in breach thereof or default thereunder and there does not exist under the Trust Agreement any event that, with the giving of notice or the lapse of time, would constitute such a breach or default by Parent or, to the Knowledge of Parent, Continental. There are no separate Contracts, side letters or other understandings (whether written or unwritten, express or implied): (i) between Parent and Continental that would cause the description of the Trust Agreement in the Parent SEC Reports to be inaccurate in any material respect; or (ii) to the Knowledge of Parent, that would entitle any Person (other than stockholders of Parent holding Parent Class A Stock sold in Parents initial public offering who shall have elected to redeem their shares of Parent Class A Stock pursuant to Parents Governing Documents or the underwriters of the initial public offering with respect to any deferred underwriting compensation) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released except: (A) to pay income and taxes from any interest income earned in the Trust Account; and (B) to redeem Parent Class A Stock in accordance with the provisions of Parents Governing Documents. There are no Legal Proceedings pending or, to the Knowledge of Parent, threatened in writing with respect to the Trust Account.
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5.14 Taxes.
(a) All material Tax Returns required to be filed by or on behalf of Parent, First Merger Sub and Second Merger Sub have been duly and timely filed with the appropriate Governmental Entity and all such Tax Returns are true, correct and complete in all material respects. All material amounts of Taxes payable by or on behalf of Parent, First Merger Sub and Second Merger Sub (whether or not shown on any Tax Return) have been fully and timely paid.
(b) No claim, assessment, deficiency or proposed adjustment for any material amount of Tax has been asserted or assessed by any Governmental Entity in writing (or otherwise to the Knowledge of Parent) against Parent, First Merger Sub and Second Merger Sub which has not been paid or resolved. No material Tax audit or other examination of Parent, First Merger Sub or Second Merger Sub by any Governmental Entity is presently in progress, nor has Parent been notified in writing of (nor to the Knowledge of Parent has there been) any request or threat for such an audit or other examination. There are no liens for Taxes (other than Permitted Liens) upon any of the assets of Parent, First Merger Sub or Second Merger Sub. Neither Parent, First Merger Sub nor Second Merger Sub has: (i) consented to extend the time in which any material amount of Tax may be assessed or collected by any Governmental Entity (other than pursuant to extensions of time to file Tax Returns obtained in the Ordinary Course of Business), which extension is still in effect; or (ii) has entered into or been a party to any listed transaction within the meaning of Section 6707A(c)(2) of the Code. Neither Parent, First Merger Sub nor Second Merger Sub has constituted either a distributing corporation or a controlled corporation (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code in the two (2) years prior to the date of this Agreement. Neither Parent, First Merger Sub nor Second Merger Sub has any liability for the Taxes of another Person (other than the Parent, First Merger Sub or Second Merger Sub) pursuant to Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Legal Requirements) or as a transferee or a successor or by Contract (other than pursuant to the Transaction Agreements or pursuant to commercial agreements entered into in the Ordinary Course of Business and the principal purpose of which is not related to Taxes).
(c) Parent has not taken any action and is not aware of any fact or circumstance that would reasonably be expected to prevent the First Merger and the Second Merger, taken together, from constituting an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations.
(d) All of the membership interests in Second Merger Sub are owned by Parent, and Second Merger Sub is, and has been since formation, disregarded as an entity (within the meaning of Section 301.7701-3 of the Treasury Regulations) separate from Parent for United States federal income tax purposes.
5.15 Information Supplied. None of the information supplied or to be supplied by Parent for inclusion or incorporation by reference in the Proxy Statement will, at the date mailed to stockholders of Parent or at the time of the Special Meeting, 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 are made, not misleading. Notwithstanding the foregoing, Parent makes no representation, warranty or covenant with respect to: (a) statements made or incorporated by reference therein based on information supplied by the Group Companies for inclusion or incorporation by reference in the Proxy Statement; or (b) any projections or forecasts included in the Proxy Statement.
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5.16 Employees; Benefit Plans. Other than any former officers or as described in the Parent SEC Reports, Parent has never had any employees. Other than reimbursement of any out-of-pocket expenses incurred by Parents officers and directors in connection with activities on Parents behalf in an aggregate amount not in excess of the amount of cash held by Parent outside of the Trust Account, Parent has no unsatisfied material liability with respect to any employee. Parent does not currently maintain or have any direct liability under any benefit plan, and neither the execution and delivery of this Agreement or the other Transaction Agreements nor the consummation of the Transactions will: (a) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any director, officer or employee of Parent; or (b) result in the acceleration of the time of payment or vesting of any such benefits.
5.17 Board Approval; Stockholder Vote. The Parent Board (including any required committee or subgroup of the Parent Board) has, as of the date of this Agreement, unanimously: (a) approved and declared the advisability of this Agreement, the other Transaction Agreements and the consummation of the Transactions; and (b) determined that the consummation of the Transactions is in the best interest of the stockholders of Parent. Other than the approval of the by the stockholders of Parent of the Parent Stockholder Matters, no other corporate proceedings on the part of Parent are necessary to approve the consummation of the Transactions.
5.18 Title to Assets. Subject to the restrictions on use of the Trust Account set forth in the Trust Agreement, Parent owns good and marketable title to, or holds a valid leasehold interest in, or a valid license to use, all of the assets used by Parent in the operation of its business and that are material to Parent, free and clear of any Liens (other than Permitted Liens).
5.19 Affiliate Transactions. Except for equity ownership or employment relationships (including any employment or similar Contract) expressly contemplated by this Agreement, any non-disclosure or confidentiality Contract entered into in connection with the wall-crossing of Parents stockholders, any Transaction Agreement, or as set forth in Section 5.19 of the Parent Disclosure Letter, (a) there are no transactions or Contracts, or series of related transactions or Contracts, between Parent, on the one hand, and any Related Party of Parent, Sponsor, Crescent, any beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of five percent (5%) or more of Parent Shares or, to the Knowledge of Parent, any of their respective associates or immediate family members (as such terms are defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act), on the other hand, nor is any Indebtedness owed by or to Parent, on the one hand, to or by Sponsor, Crescent or any such Related Party, beneficial owner, associate or immediate family member, and (b) none of the officers or directors (or members of a similar governing body) of Parent, Sponsor, Crescent, any beneficial owner of five percent (5%) or more of Parent Shares or, to the Knowledge of Parent, their respective associates or immediate family members owns directly or indirectly in whole or in part, or has any other material interest in, (i) any material tangible or real property that Parent or uses, owns or leases (other than through any equity interest in Parent) or (ii) any customer, vendor or other material business relation of Parent, Sponsor or Crescent.
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5.20 Forward Purchase Agreement. Parent has delivered to the Company and the Stockholder Representative a true, accurate and complete copy of the Forward Purchase Agreement. The Forward Purchase Agreement is in full force and effect and has not been withdrawn, terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination, amendment or modification is contemplated by Parent, and the commitments contained in the Forward Purchase Agreement have not been withdrawn, terminated or rescinded by Crescent in any respect. The Forward Purchase Agreement is a legal, valid and binding obligation of Parent and Crescent, enforceable in accordance with its terms. The Forward Purchase Agreement provides that the Company and the Stockholder Representative are third-party beneficiaries thereof and are entitled to enforce such agreement. There are no other agreements, side letters, or arrangements between Parent and any other Person (including Crescent) relating to the Forward Purchase Transaction, and, as of the date hereof, Parent does not know of any facts or circumstances that would reasonably be expected to result in any of the conditions set forth in the Forward Purchase Agreement not being satisfied, or the Forward Purchase Investment Amount not being available to Parent, on the Closing Date. The Forward Purchase Agreement contains all of the conditions precedent to the obligations of Crescent to contribute to Parent the Forward Purchase Investment Amount on the terms therein. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Crescent under any condition precedent or material term of the Forward Purchase Agreement and, as of the date hereof, Parent has no reason to believe that any of the conditions to the consummation of the Forward Purchase Transaction will not be satisfied, and, as of the date hereof, Parent is not aware of the existence of any fact or event that would or would reasonably be expected to cause such conditions not to be satisfied.
5.21 PIPE Investment.
(a) Parent has delivered to the Company and the Stockholder Representative true, correct and complete copies of each of the Subscription Agreements entered into by Parent with the applicable PIPE Investors named therein, pursuant to which such PIPE Investors have committed to provide equity financing to Parent solely for purposes of consummating the Transactions in the aggregate amount of at least the PIPE Investment Amount. With respect to each PIPE Investor, the Subscription Agreement with such PIPE Investor is in full force and effect and has not been withdrawn or terminated, or otherwise amended or modified, in any respect, and no withdrawal, termination, amendment or modification is contemplated by Parent. Each Subscription Agreement is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, each PIPE Investor, and neither the execution or delivery by any party thereto nor the performance of any partys obligations under any such Subscription Agreement violates any laws. The Subscription Agreements provide that the Company and the Stockholder Representative is a party thereto and is entitled to enforce such agreements against the PIPE Investor. There are no other agreements, side letters, or arrangements between Parent and any PIPE Investor relating to any Subscription Agreement that could affect the obligation of such PIPE Investors to contribute to Parent the applicable portion of the PIPE Investment Amount set forth in the Subscription Agreement of such PIPE Investors, and, as of the date hereof, Parent does not know of any facts or circumstances that may reasonably be expected to result in any of the conditions set forth in any Subscription Agreement not being satisfied, or the PIPE Investment Amount not being available to Parent, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent under any material term or
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condition of any Subscription Agreement and, as of the date hereof, Parent has no reason to believe that it will be unable to satisfy in all material respects on a timely basis any term or condition of closing to be satisfied by it contained in any Subscription Agreement. The Subscription Agreements contain all of the conditions precedent (other than the conditions contained in the other Transaction Agreements) to the obligations of the PIPE Investors to contribute to Parent the applicable portion of such PIPE Investors PIPE Investment Amount set forth in the Subscription Agreements on the terms therein.
(b) No fees, consideration or other discounts are payable or have been agreed by Parent or any of its Subsidiaries (including, from and after the Closing, the Company and its Subsidiaries) to any PIPE Investor in respect of such PIPE Investors PIPE Investment or, except as set forth in the Subscription Agreements.
5.22 Investment Company Act; JOBS Act. Parent is not an investment company or a Person directly or indirectly controlled by or acting on behalf of a person subject to registration and regulation as an investment company, in each case, within the meaning of the Investment Company Act. Parent constitutes an emerging growth company within the meaning of the JOBS Act.
5.23 No Undisclosed Liabilities. Parent and its Subsidiaries have no liabilities (whether direct or indirect, absolute, accrued, contingent or otherwise) of a nature required to be disclosed on a balance sheet in accordance with U.S. GAAP, except for liabilities: (a) provided for in, or otherwise disclosed or reflected in the most recent balance sheet included in Parents quarterly report on Form 10-Q for the quarterly period ended September 30, 2020; (b) arising in the Ordinary Course of Business since September 30, 2020; (c) incurred since September 30, 2020 pursuant to or in connection with this Agreement or the Transactions; (d) disclosed in this Agreement (or its schedules); or (e) which would not reasonably be expected to be material to Parent and its Subsidiaries, as a whole.
5.24 Brokers. None of Parent, First Merger Sub, Second Merger Sub, nor any of their respective Affiliates, including Sponsor, has any liability or obligation to pay, or is entitled to receive, any fees or commissions to any broker, finder or agent with respect to the Transactions.
5.25 Disclaimer of Other Warranties. PARENT, FIRST MERGER SUB AND SECOND MERGER SUB HEREBY ACKNOWLEDGE THAT, EXCEPT AS EXPRESSLY PROVIDED IN ARTICLE IV AND THE OTHER TRANSACTION AGREEMENTS, NONE OF THE COMPANY, ANY OF ITS SUBSIDIARIES, THE COMPANY STOCKHOLDER OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES HAS MADE, IS MAKING, OR SHALL BE DEEMED TO MAKE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, TO PARENT, FIRST MERGER SUB, SECOND MERGER SUB, THE SPONSOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES OR ANY OTHER PERSON, WITH RESPECT TO THE COMPANY STOCKHOLDER, ANY OTHER INSIDER, ANY OF THE GROUP COMPANIES OR ANY OF THEIR RESPECTIVE BUSINESSES, ASSETS OR PROPERTIES, OR OTHERWISE, INCLUDING ANY REPRESENTATION OR WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUTURE RESULTS, PROPOSED BUSINESSES OR FUTURE PLANS, IN EACH CASE, IN CONNECTION WITH
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THE TRANSACTIONS. WITHOUT LIMITING THE FOREGOING AND NOTWITHSTANDING ANYTHING TO THE CONTRARY: (A) NONE OF THE COMPANY, ANY OF ITS SUBSIDIARIES, THE COMPANY STOCKHOLDER OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES SHALL BE DEEMED TO MAKE TO PARENT, FIRST MERGER SUB, SECOND MERGER SUB, OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE TRANSACTIONS OTHER THAN AS EXPRESSLY MADE BY THE COMPANY OR THE COMPANY STOCKHOLDER TO PARENT, FIRST MERGER SUB, SECOND MERGER SUB AND THE SPONSOR IN ARTICLE IV AND THE OTHER TRANSACTION AGREEMENTS; AND (B) NONE OF THE COMPANY, ANY OF ITS SUBSIDIARIES, THE COMPANY STOCKHOLDER NOR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES, HAS MADE, IS MAKING, OR SHALL BE DEEMED TO MAKE TO PARENT, FIRST MERGER SUB, SECOND MERGER SUB, THE SPONSOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES OR ANY OTHER PERSON ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO: (1) THE INFORMATION DISTRIBUTED OR MADE AVAILABLE TO PARENT OR ITS REPRESENTATIVES BY OR ON BEHALF OF THE COMPANY OR THE COMPANY STOCKHOLDER IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS; (2) ANY MANAGEMENT PRESENTATION, CONFIDENTIAL INFORMATION MEMORANDUM OR SIMILAR DOCUMENT; OR (3) ANY FINANCIAL PROJECTION, FORECAST, ESTIMATE, BUDGET OR SIMILAR ITEM RELATING TO THE COMPANY, ANY OF ITS SUBSIDIARIES, THE COMPANY STOCKHOLDER AND/OR ANY OF THEIR RESPECTIVE BUSINESSES, ASSETS, LIABILITIES, PROPERTIES, FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS. EACH OF PARENT, FIRST MERGER SUB AND SECOND MERGER SUB HEREBY ACKNOWLEDGES AND AGREES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY OTHER THAN ARTICLE IV OF THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS. EACH OF PARENT, FIRST MERGER SUB AND SECOND MERGER SUB ACKNOWLEDGES AND AGREES THAT IT HAS CONDUCTED, TO ITS SATISFACTION, AN INDEPENDENT INVESTIGATION AND VERIFICATION OF THE COMPANY, ITS SUBSIDIARIES, THE COMPANY STOCKHOLDER AND THE BUSINESS, ASSETS, LIABILITIES, PROPERTIES, FINANCIAL CONDITIONS, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS OF EACH OF THE FOREGOING AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS, EACH OF PARENT, FIRST MERGER SUB AND SECOND MERGER SUB HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND VERIFICATION, IN ADDITION TO THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE COMPANY STOCKHOLDER EXPRESSLY AND SPECIFICALLY SET FORTH IN ARTICLE IV OF THIS AGREEMENT AND THE OTHER TRANSACTION AGREEMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 5.25, CLAIMS AGAINST THE COMPANY OR ANY OTHER PERSON SHALL NOT BE LIMITED IN ANY RESPECT IN THE EVENT OF FRAUD IN THE MAKING THE OF THE REPRESENTATIONS AND WARRANTIES IN ARTICLE IV AND THE OTHER TRANSACTION AGREEMENTS BY SUCH PERSON.
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ARTICLE VI
CONDUCT PRIOR TO THE CLOSING DATE
6.1 Conduct of Business by the Company and the Company Subsidiaries During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Effective Time, the Company shall, and shall cause the Company Subsidiaries to, carry on its business in the Ordinary Course of Business and in accordance with Applicable Legal Requirements, except: (a) to the extent that Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned); or (b) as expressly contemplated by this Agreement or Schedule 6.1 of the Company Disclosure Letter. Without limiting the generality of the foregoing, except as required or expressly permitted by the terms of this Agreement or the Company Disclosure Letter, or as required by Applicable Legal Requirements, without the prior written consent of Parent, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Effective Time, the Company shall not, and shall cause the Company Subsidiaries not to, do any of the following:
(a) except as otherwise required by any existing Employee Benefit Plan or Applicable Legal Requirements: (i) materially increase or grant any material increase in the compensation, bonus, fringe or other benefits of, or pay, grant or promise any material bonus to, any current or former employee, director or independent contractor except for any increases in the rate of base salary or wage that does not exceed ten percent (10%) of such Persons current base salary or wage pursuant to: (A) annual adjustments in the Ordinary Course of Business; or (B) in connection with any promotion or material increase in responsibility of any officer or employee in the Ordinary Course of Business; (ii) grant or pay any severance or change in control pay or benefits to, or otherwise increase the severance or change in control pay or benefits of, any current or former employee, director or independent contractor; (iii) enter into, amend (other than immaterial amendments) or terminate any material Employee Benefit Plan or any employee benefit plan, policy, program, agreement, trust or arrangement that would have constituted a material Employee Benefit Plan if it had been in effect on the date of this Agreement; (iv) take any action to accelerate the vesting or payment of, or otherwise fund or secure the payment of, any compensation or benefits under any Employee Benefit Plan; (v) grant any equity or equity-based compensation awards; (vi) grant any award, right, payment or other amount, contingent or otherwise, under the Bonus Plans; (vii) hire any individual as an employee or independent contractor, unless such hiring is in the Ordinary Course of Business, in each case, with individual annual base compensation not to exceed $300,000 or the equivalent thereof, or terminate the employment of any employee (other than for cause) with an individual annual base salary in excess of $300,000 or the equivalent thereof; (viii) enter into, extend, renew or amend any labor agreement, collective bargaining agreement, or any other labor-related agreements with any labor or trade union, employee representative body or association, labor organization, or works council; (ix) recognize or certify any labor or trade union, employee representative body or association, labor organization, or works council or group of employees as the bargaining representative for any employees; or (x) waive the restrictive covenant obligation of any employee with individual annual base compensation in excess of $300,000;
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(b) (i) transfer, sell, assign, license, sublicense, encumber, impair, abandon, fail to diligently maintain, transfer or otherwise dispose of any right, title or interest of the Company in any material Owned Intellectual Property or material Licensed Intellectual Property; (ii) extend, amend, waive, cancel or modify any material rights in or to any Owned Intellectual Property or Licensed Intellectual Property, in each case, that is material to any business of the Group Companies; (iii) fail to diligently prosecute the patent or trademark applications owned by the Company other than applications the Company, in the exercise of its good faith business judgment, has determined to abandon; or (iv) divulge, furnish to or make accessible, or subject to any obligation to divulge, furnish or make accessible, any Trade Secrets (including the source code for Group Company Software) within Owned Intellectual Property to any third party who is not subject to a written agreement to maintain the confidentiality of such Trade Secrets, other than, in each of (i) through (iii), in the Ordinary Course of Business; provided that in no event shall the Company license on an exclusive basis or sell, assign or otherwise transfer any material Owned Intellectual Property;
(c) modify in any material respect any of the Group Companies privacy policies, or any administrative, technical or physical safeguards related to privacy or cybersecurity, except (A) to remediate any security issue, (B) to enhance data security or integrity, (C) to comply with Applicable Legal Requirements, or (D) as otherwise directed or required by a Governmental Entity;
(d) except for transactions solely among the Company and the Company Subsidiaries: (i) declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock; (ii) repurchase, redeem or otherwise acquire, or offer to repurchase, redeem or otherwise acquire, any membership interests, capital stock or any other equity interests, as applicable, in any Group Company; (iii) grant, issue sell or otherwise dispose, or authorize to issue sell, or otherwise dispose any membership interests, capital stock or any other equity or equity-based interests (such as stock options, stock units, restricted stock or other Contracts for the purchase or acquisition of or based on such capital stock), as applicable, in any Group Company; (iv) declare, set aside or pay any dividend or make any other distribution; or (v) issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities;
(e) amend its Governing Documents, or form or establish any Subsidiary;
(f) (i) merge, consolidate or combine with any Person; or (ii) acquire or agree to acquire by merging or consolidating with, purchasing any equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof;
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(g) terminate, amend or modify in any material respect any Company Real Property Lease (other than any termination, amendment or modification of a Company Real Property Lease that will take place automatically by its terms);
(h) other than with respect to the Company Real Property Leases, sell, lease, license, sublicense, abandon, divest, transfer, assign, cancel, abandon or permit to lapse or expire, dedicate to the public, or otherwise dispose of, or agree to do any of the foregoing, or otherwise dispose of material assets or properties, other than pursuant to agreements existing on the date hereof and set forth on Schedule 6.1(h) of the Company Disclosure Letter;
(i) (i) issue or sell any debt securities or rights to acquire any debt securities of any of the Group Companies or guarantee any debt securities of another Person; (ii) make or create any loans, advances or capital contributions to, or investments in, any Person other than any of the Group Companies; (iii) create, incur, assume, guarantee or otherwise become liable for, any Indebtedness other than guarantees of any Indebtedness of any Subsidiaries or guarantees by the Company Subsidiaries of the Indebtedness of the Company; (iv) except in the Ordinary Course of Business, create any Liens on any material property or material assets of any of the Group Companies in connection with any Indebtedness thereof (other than Permitted Liens); (v) fail to comply with the terms of the Existing Credit Agreement or take any action, or omit to take any action, that would constitute or result in a default or event of default under the Existing Credit Agreement; or (vi) cancel or forgive any Indebtedness owed to any of the Group Companies;
(j) (i) fail to manage the working capital of the Group Companies in the Ordinary Course of Business; (ii) accelerate or delay in any respect material to the Company and its Subsidiaries (A) the collection of any accounts receivable or (B) payment of any accounts payable or accrued expenses, in the case of each of clauses (A) and (B), in advance or beyond the Closing Date (as calculated in accordance with the past practice of the Group Companies) except as consistent with the Ordinary Course of Business; (iii) fail to pay any material Taxes that are required to be paid by the Group Companies after the date hereof and prior to the Closing Date (as calculated in accordance with the past practice of the Group Companies (including reporting positions, elections and accounting methods) in preparing Tax Returns and calculating Taxes due or payable) except where such failure is consistent with the Ordinary Course of Business; and (iv) fail to maintain and manage inventory levels in the Ordinary Course of Business;
(k) release, assign, compromise, settle or agree to settle any Legal Proceeding material to the Group Companies or their respective properties or assets;
(l) (i) except in the Ordinary Course of Business: (A) modify, amend in a manner that is adverse to the applicable Group Company or terminate any Company Material Contract; (B) enter into any Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement; (C) waive, delay the exercise of, release or assign any material rights or claims under any Company Material Contract; or (D) incur or enter into a Contract requiring the Company to pay an increase over prior or existing commitments in excess of $500,000 in any 12-month period or (ii) modify or amend any material term under the Existing Credit Agreement or terminate or allow the termination of the Existing Credit Agreement or any commitments thereunder;
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(m) except as required by U.S. GAAP (or any interpretation thereof) or Applicable Legal Requirements, make any change in accounting methods, principles or practices;
(n) (i) make, change or revoke any material Tax election, (ii) settle or compromise any material Tax claim; (iii) change (or request to change) any method of accounting for Tax purposes; (iv) file any material amended Tax Return; (v) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of material Taxes may be issued (other than any extension pursuant to an extension to file any Tax Return); (vi) knowingly surrender any claim for a refund of Taxes; or (vii) enter into any closing agreement as described in Section 7121 of the Code (or any similar Legal Requirement) with any Governmental Entity;
(o) authorize, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, restructuring, recapitalization, dissolution or winding-up;
(p) subject to clause (a) above, enter into or amend any agreement with, or pay, distribute or advance any assets or property to, any of its officers, directors, employees, partners, stockholders or other Affiliates, other than payments or distributions relating to obligations in respect of arms length commercial transactions pursuant to the agreements set forth on Schedule 6.1(p) of the Company Disclosure Letter as existing on the date of this Agreement;
(q) engage in any material new line of business;
(r) take any action or fail to take any action that would reasonably be expected to prevent the First Merger and the Second Merger, taken together, from constituting an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations;
(s) (i) limit the rights of any Group Company: (A) to engage in any line of business or in any geographic area; (B) to develop, market or sell products or services; or (C) to compete with any Person; or (ii) grant any exclusive rights to any Person;
(t) terminate or amend, in a manner materially detrimental to any Group Company, any material insurance policy insuring the business of any Group Company;
(u) amend in a manner materially detrimental to any Group Company, terminate, permit to lapse or fail to use reasonable best efforts to maintain any Approval; or
(v) agree in writing or otherwise agree, commit or resolve to take any of the actions described in Sections 6.1(a) through (u) above.
6.2 Conduct of Business by Parent, First Merger Sub and Second Merger Sub. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Effective Time, Parent shall, and shall cause its Subsidiaries to, carry on its business in the Ordinary Course of Business and in accordance with Applicable Legal Requirements, except (a) to the extent that the Company shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned) or (b) as expressly contemplated by this Agreement (including as contemplated by the Forward Purchase
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Transaction) or Schedule 6.2 of the Parent Disclosure Letter. Notwithstanding anything to the contrary in this Section 6.2, nothing in this Agreement shall prohibit or restrict Parent from extending one or more times, in accordance with Parent Organizational Documents, the deadline by which it must complete its Parent Business Combination (an Extension), and no consent of any other Party shall be required in connection therewith, including incurring any expenses in connection therewith (including any additional amounts paid to the Trust Account in connection with such Extension). Without limiting the generality of the foregoing, except as required or permitted by the terms of this Agreement or as required by Applicable Legal Requirements, without the prior written consent of the Company, during the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms or the Closing, Parent shall not, and shall cause its Subsidiaries not to, do any of the following:
(a) declare, set aside or pay dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock (or warrant) or split, combine or reclassify any capital stock (or warrant), effect a recapitalization or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock or warrant, or effect any like change in capitalization;
(b) purchase, redeem or otherwise acquire, directly or indirectly, any equity securities of Parent or any of its Subsidiaries;
(c) other than in connection with the Forward Purchase Transaction, Subscription Agreements or Crescents right to purchase additional shares of Parent Class A Stock pursuant to Section 7.17, grant, issue, deliver, sell, authorize, pledge or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or any securities convertible into or exchangeable for shares of capital stock or other equity securities, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or any securities convertible into or exchangeable for shares of capital stock or other equity securities, or enter into other agreements or commitments of any character obligating it to issue any such shares of capital stock or equity securities or convertible or exchangeable securities;
(d) amend its Governing Documents or form or establish any Subsidiary;
(e) (i) merge, consolidate or combine with any Person; or (ii) acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest in or a portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, or enter into any joint ventures, strategic partnerships or alliances;
(f) incur any Indebtedness or guarantee any such Indebtedness of another Person or Persons, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Parent, as applicable, enter into any keep well or other agreement to maintain any financial statement condition or enter into any arrangement having the economic effect of any of the foregoing, in each case, except in the Ordinary Course of Business; provided, however, that Parent shall be permitted to incur Indebtedness from its Affiliates and stockholders
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in order to meet its reasonable capital requirements, with any such loans to be made only as reasonably required by the operation of Parent in due course on a non-interest basis and otherwise on terms and conditions no less favorable than arms length and repayable at Closing;
(g) except as required by U.S. GAAP (or any interpretation thereof) or Applicable Legal Requirements, make any change in accounting methods, principles or practices;
(h) (i) settle or compromise any material Tax claim; (ii) change (or request to change) any method of accounting for Tax purposes; (iii) file any material amended Tax Return; (iv) waive or extend any statute of limitations in respect of a period within which an assessment or reassessment of material Taxes may be issued (other than any extension pursuant to an extension to file any Tax Return); (v) knowingly surrender any claim for a refund of Taxes; (vi) enter into any closing agreement as described in Section 7121 of the Code (or any similar Legal Requirement) with any Governmental Entity or (vii) make, change or revoke any material Tax election;
(i) take any action or fail to take any action that would reasonably be expected to prevent the First Merger and the Second Merger, taken together, from constituting an integrated transaction described in Rev. Rul. 2001-46, 2001-2 C.B. 321 that qualifies as a reorganization within the meaning of Section 368(a) of the Code and the Treasury Regulations;
(j) except in the Ordinary Course of Business, create any Liens on any material property or material assets of Parent, First Merger Sub or Second Merger Sub in connection with any Indebtedness thereof (other than Permitted Liens);
(k) liquidate, dissolve, reorganize or otherwise wind up the business or operations of Parent, First Merger Sub or Second Merger Sub;
(l) commence, settle or compromise any Legal Proceeding material to Parent, First Merger Sub or Second Merger Sub or their respective properties or assets;
(m) engage in any new line of business;
(n) amend the Trust Agreement or any other agreement related to the Trust Account; or
(o) agree in writing or otherwise agree, commit or resolve to take any of the actions described in Sections 6.2(a) through (n) above.
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ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Proxy Statement; Special Meeting.
(a) Proxy Statement.
(i) As promptly as practicable following the execution and delivery of this Agreement, Parent shall, in accordance with this Section 7.1(a), prepare and file with the SEC, in preliminary form, a proxy statement in connection with the Transactions (as amended or supplemented from time to time, the Proxy Statement) to be sent to the stockholders of Parent relating to the Special Meeting, for the purpose of, among other things: (A) providing Parents stockholders with notice of the opportunity to redeem shares of Parent Class A Stock (the Parent Stockholder Redemption); and (B) soliciting proxies from holders of Parent Class A Stock to vote at the Special Meeting in favor of: (1) the adoption of this Agreement and approval of the Transactions; (2) the issuance of shares of Parent Class A Stock in connection with Section 2.6; (3) the amendment and restatement of the Parent Organizational Documents substantially in the form of the Parent A&R Charter attached hereto as Exhibit C; (4) adoption of an equity incentive plan in accordance with Section 7.20; and (5) any other proposals the Parties deem necessary or desirable to consummate the Transactions (collectively, with such changes as are mutually agreed by Parent and the Company, the Parent Stockholder Matters). Without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), the Parent Stockholder Matters shall be the only matters (other than procedural matters) which Parent shall propose to be acted on by the Parents stockholders at the Special Meeting. The Proxy Statement will comply as to form and substance with the applicable requirements of the Exchange Act and the rules and regulations thereunder. Parent shall file the definitive Proxy Statement with the SEC and cause the Proxy Statement to be mailed to its stockholders of record, as of the record date to be established by the Parent Board, as promptly as practicable following the earlier to occur of: (Y) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; and (Z) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC (such earlier date, the Proxy Clearance Date).
(ii) Prior to filing with the SEC, Parent will make available to the Company drafts of the Proxy Statement and any other documents to be filed with the SEC related to the Transactions, both preliminary and final, and any amendment or supplement to the Proxy Statement or such other document and will provide the Company with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. Parent shall not file any such documents with the SEC without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed). Parent will advise the Company promptly after it receives notice thereof of: (A) the time when the Proxy Statement has been filed; (B) in the event the preliminary Proxy Statement is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Exchange Act; (C) in the event the preliminary Proxy Statement is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC; (D) the filing of any supplement or amendment to the Proxy Statement; (E) the issuance of any stop order by the SEC; (F) any request by the SEC for amendment of the Proxy Statement; (G) any comments from the SEC relating to the Proxy Statement and responses thereto; and (H) requests by the SEC for additional information relating to the Proxy Statement. Parent shall promptly respond to any SEC comments on the Proxy Statement and shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC under the Exchange Act as promptly as practicable; provided that prior to
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responding to any requests or comments from the SEC, Parent will make available to the Company drafts of any such response and provide the Company with a reasonable opportunity to comment on such drafts.
(iii) If, at any time prior to the Special Meeting, there shall be discovered any information that should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy 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 were made, not misleading, Parent shall promptly file an amendment or supplement to the Proxy Statement containing such information. If, at any time prior to the Closing, the Company discovers any information, event or circumstance relating to the Company, its business or any of its Affiliates, officers, directors or employees that should be set forth in an amendment or a supplement to the Proxy Statement so that the Proxy 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 were made, not misleading, then the Company shall promptly inform Parent of such information, event or circumstance.
(iv) Parent shall make all necessary filings with respect to the Transactions under the Securities Act, the Exchange Act and applicable blue sky laws, and any rules and regulations thereunder. The Company agrees to promptly provide Parent with all information concerning the business, management, operations and financial condition of the Company and the Company Subsidiaries, in each case, reasonably requested by Parent for inclusion in the Proxy Statement. The Company shall cause the officers and employees of the Company and the Company Subsidiaries to be reasonably available to Parent and its counsel, auditors and other advisors in connection with the drafting of the Proxy Statement and responding in a timely manner to comments on the Proxy Statement from the SEC.
(b) Parent shall, as promptly as practicable following the Proxy Clearance Date, establish a record date (which date shall be mutually agreed with the Company) for, duly call and give notice of, the Special Meeting. Parent shall convene and hold a meeting of Parents stockholders (the Special Meeting), for the purpose of obtaining the approval of the Parent Stockholder Matters, which meeting shall be held not more than forty-five (45) days after the date on which Parent mails the Proxy Statement to its stockholders. Parent shall use its reasonable best efforts to obtain the approval of the Parent Stockholder Matters at the Special Meeting, including by soliciting proxies as promptly as practicable in accordance with Applicable Legal Requirements for the purpose of seeking the approval of the Parent Stockholder Matters. Subject to the proviso in the immediately following sentence, Parent shall include the Parent Recommendation in the Proxy Statement.
(c) The Parent Board shall not (and no committee or subgroup thereof shall) change, withdraw, withhold, qualify or modify, or publicly propose to change, withdraw, withhold, qualify or modify, the Parent Recommendation (a Change in Recommendation); provided that the Parent Board may make a Change in Recommendation in response to either a Superior Proposal or an Intervening Event if it determines in good faith, after consultation with its outside legal counsel, that a failure to make a Change in Recommendation would constitute a breach by the
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Parent Board of its fiduciary obligations to Parents stockholders under Applicable Legal Requirements; provided, further, that the Parent Board may not make Change in Recommendation in response to a Superior Proposal unless:
(i) Parent notifies the Company in writing at least four (4) Business Days before taking that action of its intention to do so (the Notice Period), and specifies the reasons therefor, including the terms and conditions of, and the identity of the Person making, such Superior Proposal, and contemporaneously furnishes a copy (if any) of the proposed Alternative Acquisition Agreement and any other relevant transaction documents (it being understood and agreed that if there is any material amendment to the financial terms (including any such material amendment (it being understood that there may be multiple extensions)) or other terms of such Superior Proposal after the commencement of the Notice Period, the Notice Period shall be extended to ensure that at least two (2) Business Days remain in the Notice Period subsequent to the date Parent notifies the Company of the material amendment); and
(ii) if the Company makes a proposal during such Notice Period to adjust the terms and conditions of this Agreement, the Parent Board, after taking into consideration the adjusted terms and conditions of this Agreement as proposed by the Company, continues to determine in good faith (after consultation with outside counsel and its financial advisor) that such Superior Proposal continues to be a Superior Proposal and that the failure to make a Change in Recommendation or terminate this Agreement, as applicable, would result in a breach of its fiduciary duties to the stockholders of Parent under Applicable Legal Requirements;
provided, further, that the Parent Board may not make a Change in Recommendation in response to an Intervening Event unless:
(iii) Parent provides the Company with written information describing such Intervening Event in reasonable detail as soon as reasonably practicable after becoming aware of it;
(iv) Parent keeps the Company reasonably informed of developments with respect to such Intervening Event;
(v) Parent notifies the Company in writing at least four (4) Business Days before making a Change in Recommendation with respect to such Intervening Event of its intention to do so and specifies the reasons therefor; and
(vi) if the Company makes a proposal during such four (4) Business Day period to adjust the terms and conditions of this Agreement, the Parent Board, after taking into consideration the adjusted terms and conditions of this Agreement as proposed by the Company, continues to determine in good faith (after consultation with outside counsel) that the failure to make such Change in Recommendation would result in a breach of its fiduciary obligations to the stockholders of Parent under Applicable Legal Requirements.
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(d) During the Notice Period prior to its effecting a Change in Recommendation, Parent shall, and shall cause its financial and legal advisors to, negotiate with the Company in good faith (to the extent the Company seeks to negotiate) regarding any revisions to the terms of the transactions contemplated by this Agreement proposed by the Company. Notwithstanding anything to the contrary contained herein, neither Parent nor any of its Subsidiaries shall enter into any Alternative Acquisition Agreement unless this Agreement has been terminated in accordance with its terms.
(e) Parent agrees that its obligation to establish a record date for, duly call, give notice of, convene and hold the Special Meeting for the purpose of seeking approval of the Parent Stockholder Matters (and its obligation to use its reasonable best efforts to obtain such approvals) shall not be affected by any Change in Recommendation, and Parent agrees to establish a record date for, duly call, give notice of, convene and hold the Special Meeting and submit for the approval of its stockholders the matters contemplated by the Proxy Statement as contemplated by this Section 7.1(e), regardless of whether or not there shall have occurred any Change in Recommendation. Notwithstanding anything to the contrary contained in this Agreement, Parent shall be entitled to postpone or adjourn the Special Meeting: (i) to ensure that any supplement or amendment to the Proxy Statement that the Parent Board has determined in good faith is required by Applicable Legal Requirements is disclosed to Parents stockholders and for such supplement or amendment to be promptly disseminated to Parents stockholders prior to the Special Meeting; (ii) if, as of the time for which the Special Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient shares of Parent Class A Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business to be conducted at the Special Meeting; (iii) to seek withdrawals of redemption requests from Parents stockholders if Parent reasonably expects the Parent Stockholder Redemption payments would cause the condition in Section 8.1(f) not be satisfied at the Closing; or (iv) in order to solicit additional proxies from stockholders for purposes of obtaining approval of the Parent Stockholder Matters; provided that unless the Company shall otherwise consent in writing in its sole discretion, Parent may not postpone or adjourn the Special Meeting more than a total of two times pursuant to clauses (ii), (iii) and (iv) of this Section 7.1(e); provided, further, that in the event of a postponement or adjournment pursuant to clauses (i) or (ii) above, the Special Meeting shall be reconvened as promptly as practicable following such time as the matters described in such clauses have been resolved.
7.2 Certain Regulatory Matters. As promptly as practicable after the date of this Agreement and in any event within ten (10) Business Days after the date of this Agreement, Parent and the Company shall each prepare and file the notification required of it under the HSR Act in connection with the Transactions (and such filings shall specifically not request early termination of the waiting period thereunder) and any other required filings under other applicable antitrust laws and shall promptly and in good faith respond to all information requested of it by the U.S. Federal Trade Commission, U.S. Department of Justice and otherwise cooperate in good faith with each other and such Governmental Entities. Each Party (other than the Stockholder Representative) will promptly furnish to the other such information and assistance as the other may reasonably request in connection with its preparation of any filing or submission that is necessary under the HSR Act or other applicable antitrust laws and will take all other actions necessary or desirable to cause the expiration or termination of the applicable waiting periods as soon as practicable. Each Party will promptly provide the other with copies of all written communications (and memoranda
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setting forth the substance of all oral communications) between each of them, any of their Affiliates and their respective agents, representatives and advisors, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement or the Transactions. Without limiting the foregoing, Parent and the Company shall: (a) promptly inform the other of any substantive communication to or from the U.S. Federal Trade Commission, the U.S. Department of Justice or any other Governmental Entity regarding the Transactions; (b) permit each other to review in advance any proposed substantive written communication to any such Governmental Entity and incorporate reasonable comments thereto; (c) give the other prompt written notice of the commencement of any Legal Proceeding with respect to such transactions; (d) not agree to participate in any substantive meeting or discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Transactions unless, to the extent reasonably practicable, it consults with the other Party in advance and, to the extent permitted by such Governmental Entity, gives the other Party the opportunity to attend; (e) keep the other reasonably informed as to the status of any such Legal Proceeding; and (f) promptly furnish each other with copies of all correspondence, filings (to the extent allowed under Applicable Legal Requirements and provided that copies of filings under the HSR Act may be redacted as necessary to protect valuation information or provided on an outside counsel basis) and written communications between such Party and their Affiliates and their respective agents, representatives and advisors, on one hand, and any such Governmental Entity, on the other hand, in each case, with respect to this Agreement and the Transactions; provided, however, that any materials shared between Parent and the Company may be redacted to preserve attorney-client privilege or protect reasonable confidentiality concerns; provided further that the Parties may limit distribution of such materials to outside counsel only. Parent, on the one hand, and the Company, on the other hand, shall each pay fifty percent (50%) of any filing fees required by Governmental Entities, including with respect to any registrations, declarations and filings required in connection with the execution and delivery of this Agreement, including filing fees in connection with filings under the HSR Act and any other applicable antitrust laws.
7.3 Other Filings; Press Release.
(a) As promptly as practicable after execution of this Agreement, Parent will prepare and file a Current Report on Form 8-K pursuant to the Exchange Act to report the execution of this Agreement, the form and substance of which shall be approved in advance in writing by the Company.
(b) Promptly after the execution of this Agreement, Parent and the Company shall also issue a joint press release announcing the execution of this Agreement.
(c) Parent shall prepare a draft Current Report on Form 8-K announcing the Closing, together with, or incorporating by reference, the financial statements prepared by the Company and its accountant, and such other information that may be required to be disclosed with respect to the Transactions in any report or form to be filed with the SEC (Closing Form 8-K), the form and substance of which shall be approved in advance in writing by the Company. Prior to Closing, Parent and the Company shall prepare a joint press release announcing the consummation of the Transactions hereunder (Closing Press Release). Substantially concurrently with the Closing, Parent shall issue the Closing Press Release. Concurrently with the Closing, or as soon as practicable thereafter, Parent shall file the Closing Form 8-K with the SEC.
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7.4 Confidentiality; Communications Plan; Access to Information.
(a) Parent and the Company acknowledge that they are parties to the Confidentiality Agreement, the terms of which are incorporated herein by reference. Following Closing, the Confidentiality Agreement shall be superseded in its entirety by the provisions of this Agreement; provided, however, that if for any reason this Agreement is terminated prior to the Closing, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms. Beginning on the date hereof and ending on the second anniversary of this Agreement, each Party agrees to maintain in confidence any non-public information received from the other Parties, and to use such non-public information only for purposes of consummating the Transactions. Such confidentiality obligations will not apply to: (i) information which was known to one Party or its agents or representatives prior to receipt from the Company or the Company Stockholder, on the one hand, or Parent, First Merger Sub or Second Merger Sub, on the other hand, as applicable; (ii) information which is or becomes generally known to the public without breach of this Agreement or an existing obligation of confidentiality; (iii) information acquired by a Party or their respective agents from a third party who was not bound to an obligation of confidentiality; (iv) information developed by such Party independently without any reliance on the non-public information received from any other Party; (v) disclosure required by Applicable Legal Requirement or stock exchange rule; or (vi) disclosure consented to in writing by Parent, First Merger Sub or Second Merger Sub (in the case of the Company Stockholder and, prior to the Closing, the Company) or the Stockholder Representative (in the case of Parent, First Merger Sub or Second Merger Sub and, following the Closing, the Company). Notwithstanding anything in this Agreement to the contrary, following Closing, the Stockholder Representative shall be permitted to disclose information as required by law or to employees, advisors, agents or consultants of the Stockholder Representative and to the Company Stockholder, in each case who have a need to know such information, provided that such persons are subject to confidentiality obligations with respect thereto.
(b) Parent and the Company shall reasonably cooperate to create and implement a communications plan regarding the Transactions (the Communications Plan) promptly following the date hereof. Notwithstanding the foregoing, none of the Parties will make any public announcement or issue any public communication regarding this Agreement, the other Transaction Agreements or the Transactions or any matter related to the foregoing, without the prior written consent of the Company, in the case of a public announcement by Parent, or Parent, in the case of a public announcement by the Stockholder Representative, any Company Stockholder or the Company (such consents, in either case, not to be unreasonably withheld, conditioned or delayed), except: (i) if such announcement or other communication is required by Applicable Legal Requirements, in which case the disclosing Party shall, to the extent permitted by Applicable Legal Requirements, first allow such other Parties to review such announcement or communication and have the opportunity to comment thereon and the disclosing Party shall consider such comments in good faith; (ii) no consent of the Stockholder Representative, the Company or the Company Stockholder shall be required with respect to announcement by Parent or its Affiliates, if such announcement or other communication is made in connection with fundraising or other investment related activities and is made to such Persons direct and indirect investors or potential investors or financing sources subject to an obligation of confidentiality; (iii) to the extent provided for in the Communications Plan, internal announcements to employees of the Group Companies; (iv) to the extent such announcements or other communications contain only information previously
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disclosed in a public statement, press release or other communication previously approved in accordance with Section 7.1(e) or this Section 7.4(b); and (v) announcements and communications to Governmental Entities in connection with registrations, declarations and filings relating to the Transactions required to be made under this Agreement. Notwithstanding anything in this Agreement to the contrary, following Closing and after the public announcement of the Mergers, the Stockholder Representative shall be permitted to publicly announce that it has been engaged to serve as the Stockholder Representative in connection with the Mergers as long as such announcement does not disclose any of the other terms of the Mergers or the other transactions contemplated herein.
(c) The Company will afford Parent and its financial advisors, accountants, counsel and other representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, books, records and personnel of the Company during the period prior to the Closing to obtain all information concerning the business, including the status of business development efforts, properties, results of operations and personnel of the Company, as Parent may reasonably request in connection with the consummation of the Transactions; provided, however, that any such access shall be conducted in a manner not to materially interfere with the businesses or operations of the Company. Parent will afford the Company and its financial advisors, underwriters, accountants, counsel and other representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, books, records and personnel of Parent during the period prior to the Closing to obtain all information concerning the business, including properties, results of operations and personnel of Parent, as the Company may reasonably request in connection with the consummation of the Transactions; provided, however, that any such access shall be conducted in a manner not to interfere with the businesses or operations of Parent.
7.5 Reasonable Best Efforts. Upon the terms and subject to the conditions set forth in this Agreement, each of the Parties (other than the Stockholder Representative) agrees to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Mergers and the other Transactions, including using reasonable best efforts to accomplish the following: (a) the taking of all commercially reasonable acts necessary to cause the conditions precedent set forth in Article VIII to be satisfied; (b) the obtaining of all necessary actions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings, including registrations, declarations and filings with Governmental Entities, if any, and any filings required pursuant to antitrust laws and the taking of all commercially reasonable steps as may be necessary to avoid any Legal Proceeding; (c) the obtaining of all consents, approvals or waivers from third parties required as a result of the Transactions, including any consents referred to on Schedule 4.5(b) of the Company Disclosure Letter (it being understood, for the avoidance of doubt, that nothing herein shall require the Company in connection therewith to incur any liability or expense or subject itself, any of its Subsidiaries or the business of the foregoing to any imposition of any limitation on the ability of any of them to conduct their business or to own or exercise control of their assets or properties); (d) the termination of each agreement set forth on Schedule 7.5(d) of the Company Disclosure Letter; (e) the defending of any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions,
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including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (f) the execution or delivery of any additional instruments reasonably necessary to consummate, and to fully carry out the purposes of, the Transactions. This obligation shall include, on the part of Parent, sending a termination letter to Continental substantially in the applicable form attached to the Trust Agreement (the Trust Termination Letter). Notwithstanding anything herein to the contrary, nothing in this Agreement shall be deemed to require Parent or the Company to agree to any divestiture by itself or any of its Affiliates of shares of capital stock or of any business, assets or property, the imposition of any limitation on the ability of any of them to conduct their business or to own or exercise control of their respective assets, properties and capital stock, or the incurrence of any liability or expense.
7.6 No Parent Securities Transactions. Neither the Company nor any of its controlled Affiliates, directly or indirectly, shall engage in any transactions involving the securities of Parent prior to the filing of the Form 8-K in accordance with Section 7.3(a). The Company shall instruct its directors, officers and employees to comply with the foregoing requirement.
7.7 No Claim Against Trust Account. For and in consideration of Parent entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, each of the Company and the Stockholder Representative hereby irrevocably waives any right, title, interest or claim of any kind it has or may have in the future in or to the Trust Account and agrees not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Agreement and any negotiations, contracts or agreements with Parent; provided that: (a) nothing herein shall serve to limit or prohibit the Companys or the Stockholder Representatives right to pursue a claim against Parent pursuant to this Agreement for legal relief against monies or other assets of Parent held outside the Trust Account or for specific performance or other equitable relief in connection with the Transactions (so long as such claim would not affect Parents ability to fulfill its obligation to effectuate any Parent Stockholder Redemption) or for Fraud in the making of the representations and warranties in Article V; and (b) nothing herein shall serve to limit or prohibit any claims that the Company or the Stockholder Representative may have in the future pursuant to this Agreement against Parents assets or funds that are not held in the Trust Account.
7.8 Disclosure of Certain Matters. Each of Parent, First Merger Sub, Second Merger Sub, the Company and the Stockholder Representative will promptly provide the other Parties with prompt written notice of any event, development or condition of which they have Knowledge that: (a) is reasonably likely to cause any of the conditions set forth in Article VIII not to be satisfied; or (b) would require any amendment or supplement to the Proxy Statement.
7.9 Securities Listing. Parent will use its reasonable best efforts to cause the shares of Parent Class A Stock issued in connection with the Transactions to be approved for listing on Nasdaq at Closing. During the period from the date hereof until the Closing, Parent shall use its reasonable best efforts to keep the Parent Class A Stock and Parent Warrants listed for trading on Nasdaq. After the Closing, Parent shall use commercially reasonable efforts to (a) continue the listing for trading of the Parent Class A Stock and Public Warrants on Nasdaq and (b) in the event any Earn Out Shares become issuable pursuant to Article III, cause such Earn Out Shares, if required, to be approved for listing on Nasdaq. Parent shall take all necessary actions and use commercially reasonable efforts to remain listed as a public company on the Nasdaq.
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7.10 No Solicitation.
(a) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Effective Time, the Company shall not, and shall cause its Subsidiaries, and shall direct its employees, agents, officers, directors, representatives and advisors (collectively, Representatives) not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than Parent, its Affiliates and their respective Representatives) concerning any merger, sale of ownership interests and/or assets (other than asset sales in the Ordinary Course of Business) of the Company, recapitalization or similar transaction, in each case other than the Transactions (each, a Company Business Combination); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a Company Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a Company Business Combination. In addition, the Company (x) shall, and shall cause its Subsidiaries and the Company Stockholder to, and shall cause their respective Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any Company Business Combination and (y) shall cause the Company Stockholder to comply with Section 11 of the Support Agreement.
(b) During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to its terms and the Effective Time, Parent, First Merger Sub and Second Merger Sub shall not, and shall direct their respective Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company and its Representatives) concerning any merger, purchase of ownership interests or assets of Parent, recapitalization or similar business combination transaction or any other Business Combination (as defined in the Parent Charter), in each case other than the Transactions (each, a Parent Business Combination); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a Parent Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a Parent Business Combination. Parent, First Merger Sub and Second Merger Sub shall, and shall cause their respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any Parent Business Combination.
(c) Each Party shall promptly (and in no event later than 24 hours after becoming aware of such inquiry, proposal, offer or submission) notify the other Parties (and in the case of Parents receipt of a Parent Business Combination proposal, Parent shall also provide notice to the Company) if it or, to its Knowledge, any of its or its Representatives receives any inquiry, proposal, offer or submission with respect to a Company Business Combination or Parent Business Combination, as applicable (including the identity of the Person making such inquiry or submitting such proposal, offer or submission), after the execution and delivery of this Agreement. If either Party or its Representatives receives an inquiry, proposal, offer or submission with respect to a Company Business Combination or Parent Business Combination, as applicable, such Party shall provide the other Parties with a copy of such inquiry, proposal, offer or submission.
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7.11 Trust Account. Upon satisfaction or waiver of the conditions set forth in Article VIII and provision of notice thereof to Continental (which notice Parent shall provide to Continental in accordance with the terms of the Trust Agreement): (a) in accordance with and pursuant to the Trust Agreement, at the Closing, Parent: (i) shall cause the documents, opinions and notices required to be delivered to Continental pursuant to the Trust Agreement to be so delivered, including providing Continental with the Trust Termination Letter; and (ii) shall use its reasonable best efforts to cause Continental to, and Continental shall thereupon be obligated to, distribute the Trust Account as directed in the Trust Termination Letter in accordance with and pursuant to the Trust Agreement; and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.
7.12 Directors and Officers Liability Insurance.
(a) Parent agrees that all rights to exculpation, indemnification and advancement of expenses now existing in favor of the current or former directors or officers, as the case may be, of Parent or any Group Company (each, together with such persons heirs, executors or administrators, a D&O Indemnified Party), as provided in their respective Governing Documents or in any indemnification agreement with Parent set forth on Schedule 7.12(a) of the Parent Disclosure Letter or any Group Company set forth on Schedule 7.12(a) of the Company Disclosure Letter shall survive the Closing and shall continue in full force and effect. For a period of six (6) years from the Closing Date, Parent and the Surviving Entity shall (i) indemnify and hold harmless each D&O Indemnified Party against any costs or expenses (including reasonable attorneys fees), judgments, fines, losses, claims, damages, liabilities or awards paid in settlement incurred in connection with any actual or threatened Legal Proceeding arising out of, relating to or in connection with matters existing or occurring at or prior to the Effective Time (including by reason of the fact that such Person is or was a director or officer of Parent, the Company or any of its subsidiaries or, while a director or officer of Parent, the Company or any of its Subsidiaries, was serving at the request of Parent, the Company or such Subsidiary as a director, officer, employee or agent of another Person (including serving at the request of Parent, the Company or any such Subsidiary with respect to any employee benefit plan), or for any acts or omissions occurring or alleged to occur prior to the Effective Time), whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that Parent or the Company would have been permitted under Applicable Legal Requirements to indemnify such Person and Parent or the Surviving Entity shall advance expenses (including reasonable legal fees and expenses) incurred by such Person in the defense of any Legal Proceeding in advance of its prior disposition, including any expenses incurred in enforcing such Persons rights under this Section 7.12, regardless of whether indemnification with respect to or advancement of such expenses is authorized under the certificate of formation or operating agreement of the Surviving Entity or the certificate of incorporation and bylaws, or equivalent organizational documents, of any Subsidiary and (ii) cause Parent and the Group Companies to maintain in effect the exculpation, indemnification and advancement of expenses provisions of Parents and such Group Companys Governing Documents as in effect immediately prior to the Closing Date or in any indemnification agreements of Parents and each Group Company with any D&O Indemnified Party as in effect immediately prior to the Closing Date, and Parent shall, and shall cause the Group Companies to, not amend,
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repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party; provided, however, that all rights to indemnification or advancement of expenses in respect of any Legal Proceedings pending or asserted or any claim made within such period shall continue until the disposition of such Legal Proceeding or resolution of such claim. From and after the Closing Date, Parent shall, and shall cause the Group Companies to, honor, in accordance with their respective terms, each of the covenants contained in this Section 7.12 without limit as to time.
(b) Prior to the Closing, Parent has obtained a tail or runoff directors and officers liability insurance policy (the D&O Tail) in respect of acts or omissions occurring prior to the Effective Time covering each such Person that is a director or officer of Parent currently covered by Parents directors and officers liability insurance policies on terms with respect to coverage, deductibles and amounts no less favorable than those of such policy in effect on the date of this Agreement for the six (6) year period following the Closing. Parent shall, and shall cause the Surviving Entity to, maintain the D&O Tail in full force and effect for its full term and cause all obligations thereunder to be honored by Parent and no other party shall have any further obligation to purchase or pay for such insurance pursuant to this Section 7.12(b).
(c) The rights of each D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such person may have under the Governing Documents of Parent or any Group Company, any other indemnification arrangement, any Legal Requirement or otherwise. The obligations of Parent and the Group Companies under this Section 7.12 shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party without the consent of such D&O Indemnified Party. The provisions of this Section 7.12 shall survive the Closing and expressly are intended to benefit, and are enforceable by, each of the D&O Indemnified Parties and their respective heirs and representatives, each of whom is an intended third-party beneficiary of this Section 7.12.
(d) If Parent or, after the Closing, any Group Company, or any of their respective successors or assigns: (i) consolidates with or merges into any other Person and shall not be the continuing or surviving entity of such consolidation or merger; or (ii) transfers or conveys all or substantially all of its properties and assets to any Person or effects any division or similar transaction, then, in each such case, proper provision shall be made so that the successors and assigns of Parent or such Group Company, as applicable, assume the obligations set forth in this Section 7.12.
7.13 Tax Matters.
(a) Parent agrees that it shall not make any election under Section 338 or 336(e) of the Code, or any similar provision of state, local or foreign Legal Requirements, with respect to the Transactions.
(b) All transfer, documentary, sales, use, stamp, registration, excise, recording, registration value added and other such similar Taxes and fees (including any penalties and interest) that become payable in connection with or by reason of the execution of this Agreement and the Transactions (collectively, Transfer Taxes) shall be borne and paid by Parent. Unless otherwise required by applicable law, Parent shall timely file any Tax Return or other document with respect to such Taxes or fees (and the Stockholder Representative and Parent shall reasonably cooperate with respect thereto as necessary).
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(c) On the Closing Date, the Company shall provide Parent with a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), 1.897-2(h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a U.S. real property interest within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2); provided that, notwithstanding anything to the contrary, Parents sole remedy in the event the Company fails to deliver such certificate shall be to make a proper withholding of Tax to the extent required by Applicable Legal Requirements.
(d) The Parties shall cooperate fully, as and to the extent reasonably requested by any other Party, in connection with the filing of Tax Returns and any audit, litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention and (upon the other Partys request) the provision of records and information which are reasonably relevant to any such Tax Return or audit and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
7.14 Section 16 Matters. Prior to the Effective Time, Parent shall take all reasonable steps as may be required or permitted to cause any acquisition or disposition of the Parent Class A Stock (including derivative securities with respect to such Parent Class A Stock) that occurs or is deemed to occur by reason of or pursuant to the Transactions by each individual who is or will be subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent to be exempt under Rule 16b-3 promulgated under the Exchange Act, including by taking steps in accordance with the No-Action Letter, dated January 12, 1999, issued by the SEC regarding such matters.
7.15 Qualification as an Emerging Growth Company. Parent shall, at all times during the period from the date hereof until the Closing: (a) take all actions necessary to continue to qualify as an emerging growth company within the meaning of the Jumpstart Our Business Startups Act of 2012 (JOBS Act); and (b) not take any action that would cause Parent to not qualify as an emerging growth company within the meaning of the JOBS Act.
7.16 Board of Directors. The Parties shall use commercially reasonable efforts to ensure that the persons listed on Schedule 7.16 of the Company Disclosure Letter and the other persons identified by the applicable Party (as if the Stockholders Agreement were in effect) following the date hereof are elected and appointed as directors of Parent effective upon or immediately after the Closing; provided that any such persons not listed on Schedule 7.16 of the Company Disclosure Letter shall be identified as promptly as practicable following the date hereof (but in no event later than the date on which the Proxy Statement is filed with the SEC).
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7.17 Payoff of Borrowed Indebtedness.
(a) At or prior to the Closing, the Company shall repay all Revolving Loans (as defined in the Existing Credit Agreement) that are outstanding (including any interest or fees payable thereon) under the Existing Credit Agreement as of the Closing Date.
7.18 Insufficient Parent Cash; Additional Purchase Right. In the event that at Closing the Parent Cash would not be sufficient to satisfy the condition in Section 8.1(f), then (a) Parent shall promptly deliver written notice thereof to the Company and Crescent and (b) Crescent (either alone or with the Sponsor) shall have the right (but not the obligation) to purchase immediately prior to the Closing additional shares of Parent Class A Stock, valued at $10 per share for such purpose up to the amount of such deficiency subject to, substantially the same terms and conditions set forth in the Forward Purchase Agreement; provided, however, such purchase right shall not include a corresponding right to purchase Forward Purchase Warrants (as defined in the Forward Purchase Agreement) or the 5 Business Day advance notice period in Section 1(a)(iv) of the Forward Purchase Agreement; provided, further, that Crescent (and the Sponsor, if applicable) shall enter into a purchase agreement in respect of such additional shares of Parent Class A Stock on terms and conditions reasonably acceptable to the Company and shall consummate such purchase of additional shares of Parent Class A Stock for cash immediately prior to the Closing (such investment amount, if any, the Incremental Forward Purchase Investment Amount).
7.19 Forward Purchase Transaction. Parent shall not permit any termination, amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacements of, the Forward Purchase Agreement or any other agreement required for the consummation of the Forward Purchase Transaction; provided, however, that, for the avoidance of doubt, this covenant shall in no way restrict Crescent from transferring or assigning its rights and obligations under the Forward Purchase Agreement pursuant to and in accordance with the terms of Section 4(b) thereof. Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Forward Purchase Agreement, on or prior to the Closing Date, on the terms and conditions described therein, including maintaining in effect the Forward Purchase Agreement and using its commercially reasonable efforts to: (i) satisfy in all material respects on a timely basis all conditions and covenants applicable to Parent in the Forward Purchase Agreement and otherwise comply with its obligations thereunder (including deliver all notices it is required to deliver under the Forward Purchase Agreement on a timely basis in order to cause Crescent to consummate the Forward Purchase Transaction concurrently with the Closing); (ii) in the event that all conditions in the Forward Purchase Agreement (other than conditions that Parent or any of its Subsidiaries control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, consummate transactions contemplated by the Forward Purchase Agreement at or prior to Closing; and (iii) take, or cause to be taken, all actions required to obtain the Forward Purchase Investment Amount, including enforce its rights under the Forward Purchase Agreement in the event that all conditions in the Forward Purchase Agreement (other than conditions that Parent or any of its Subsidiaries control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, to cause Crescent to contribute to Parent the Forward Purchase Investment Amount set forth in the Forward Purchase Agreement at or prior to the Closing. Without limiting the generality of the foregoing, Parent shall give the Company or the Stockholder Representative, prompt (and, in any event within three (3) Business Days) written notice: (A) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or
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both, could give rise to any breach or default) by any party to the Forward Purchase Agreement known to Parent; (B) of the receipt of any written notice or other written communication from any party to the Forward Purchase Agreement with respect to any actual, potential or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to the Forward Purchase Agreement or any provisions of the Forward Purchase Agreement; and (C) if Parent does not expect to receive all or any portion of the Forward Purchase Investment Amount on the terms, in the manner or from the sources contemplated by the Forward Purchase Agreement.
7.20 Equity Incentive Plan. Prior to the Closing Date, Parent shall approve and adopt an incentive equity plan, the terms of which shall be mutually agreed between Parent and the Company.
7.21 Release. Effective upon and following the Closing, each of Parent and the Company, on its own behalf and on behalf of its respective Affiliates and Representatives, generally, irrevocably, unconditionally and completely releases and forever discharges each stockholder of Parent, the Company Stockholder, each of their respective Affiliates and each of their and their respective Affiliates respective Related Parties, and each of their respective successors and assigns and each of their respective Related Parties (collectively, the Stockholder Released Parties) from all disputes, claims, losses, controversies, demands, rights, liabilities, actions and causes of action of every kind and nature, whether known or unknown, arising from any matter concerning Parent or any Group Company occurring prior to the Closing Date (other than as contemplated by this Agreement), including for controlling equityholder liability or breach of any fiduciary duty relating to any pre-Closing actions or failures to act by the Stockholder Released Parties; provided, however, that nothing in this Section 7.21 shall release any Stockholder Released Parties from: (i) their obligations under this Agreement or the other Transaction Agreements; or (ii) as applicable, any disputes, claims, losses, controversies, demands, rights, liabilities, breaches of fiduciary duty, actions and causes of action arising out of such Stockholder Released Partys employment by Parent or any Group Company.
7.22 Employment Matters. Prior to the Closing, (a) the Company or its Subsidiaries may enter into employment agreements with such officers of the Company or its Subsidiaries, and on such terms, as shall be determined by the Company (provided that, for the avoidance of doubt, that failure to enter into any such employment agreements shall not be a breach of this Agreement), with such agreements to become effective as of, and subject to the occurrence of, the Closing.
7.23 D&O Indemnification Agreements. Prior to the Closing, Parent shall enter into indemnification agreements reasonably agreed upon between the Company and the persons who will serve as a director or officer of Parent immediately following the Closing, with such agreements to become effective as of, and subject to the occurrence of, the Closing; provided, however, that failure of a director nominee or officer to enter into such an indemnification agreement shall not be a breach of this Agreement.
7.24 Stockholders Agreement. Parent and the Company shall cooperate in good faith with the Company Stockholder, Crescent and Sponsor to negotiate and execute the Stockholders Agreement, which shall provide for, among other things, board composition rights (including the right of Sponsor to initially nominate two directors, each of whom shall be independent as of the Closing), and shall contain such other customary terms and conditions as may be agreed among the parties, with such agreement to become effective as of, and subject to the occurrence of, the Closing.
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7.25 PIPE Investment. Unless otherwise approved in writing by the Company, Parent shall not permit any amendment or modification to be made to, any waiver (in whole or in part) or provide consent to (including consent to termination), of any provision or remedy under, or any replacements of, any of the Subscription Agreements in a manner adverse to the Company (which consent or approval shall not be unreasonably withheld, conditioned or delayed). Parent shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms and conditions described therein, including maintaining in effect the Subscription Agreements and to: (i) satisfy in all material respects on a timely basis all conditions and covenants applicable to Parent in the Subscription Agreements and otherwise comply with its obligations thereunder, (ii) in the event that all conditions in the Subscription Agreements (other than conditions that Parent or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, consummate transactions contemplated by the Subscription Agreements at or prior to Closing; (iii) confer with the Company regarding timing of the Scheduled Closing Date (as defined in the Subscription Agreements); (iv) deliver notices to counterparties to the Subscription Agreements sufficiently in advance of the Closing to cause them to fund their obligations as far in advance of the Closing as permitted by the Subscription Agreements; and (v) without limiting the Companys rights to enforce certain of such Subscription Agreements thereunder, enforce its rights under the Subscription Agreements in the event that all conditions in the Subscription Agreements (other than conditions that Parent or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, to cause the applicable PIPE Investors to pay to (or as directed by) Parent the applicable portion of the PIPE Investment Amount, as applicable, set forth in the Subscription Agreements in accordance with their terms. Without limiting the generality of the foregoing, Parent shall give the Company, prompt written notice: (A) of any amendment to any Subscription Agreement (other than as a result of any assignments or transfers contemplated therein or otherwise permitted thereby); (B) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could give rise to any breach or default) by any party to any Subscription Agreement known to Parent; (C) of the receipt of any written notice or other written communication from any party to any Subscription Agreement with respect to any actual, potential, threatened or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement; and (D) if Parent does not expect to receive all or any portion of the PIPE Investment Amount on the terms, in the manner or from the PIPE Investors as contemplated by the Subscription Agreements. Parent shall deliver all notices it is required to deliver under the Subscription Agreements on a timely basis in order to cause the PIPE Investors to consummate the PIPE Investment concurrently with the Closing and shall take all actions required under any Subscription Agreements with respect to the timely issuance and delivery of any physical certificates evidencing the shares of Parent Class A Stock as and when required under any such Subscription Agreements.
7.26 Required Extension. Parent hereby agrees that it will seek, and use its reasonable best efforts to obtain, from Parents stockholders an Extension (the Required Extension) of Parents current deadline to consummate a Parent Business Combination by March 12, 2021, with
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such Required Extension to extend such deadline to June 30, 2021 unless otherwise consented to by the Company (such consent not to be unreasonably withheld, delayed or conditioned), or such other period as agreed by Parent and the Company. Notwithstanding the foregoing or anything else to the contrary in this Agreement, Parent may, but shall not be required to, pay additional amounts to the Trust Account in connection with any Extension.
ARTICLE VIII
CONDITIONS TO THE TRANSACTION
8.1 Conditions to Obligations of Each Partys Obligations. The respective obligations of each Party to this Agreement to effect the Mergers and the other Transactions shall be subject to the satisfaction at or prior to the Closing of the following conditions:
(a) At the Special Meeting (including any adjournments thereof), the Parent Stockholder Matters shall have been duly adopted by the stockholders of Parent in accordance with the DGCL, the Parent Organizational Documents and the Nasdaq rules and regulations, as applicable.
(b) Parent shall have at least $5,000,001 of net tangible assets following the exercise by the holders of Parent Class A Stock issued in Parents initial public offering of securities and outstanding immediately before the Closing of their right to redeem their Parent Class A Stock held by them into a pro rata share of the Trust Account in accordance with Parent Organizational Documents.
(c) All applicable waiting periods (and any extensions thereof) under the HSR Act will have expired or otherwise been terminated, and the Parties will have received or have been deemed to have received all other necessary pre-closing authorizations, consents, clearances, waivers and approvals of the Governmental Entities set forth on Section 8.1(c) of the Parent Disclosure Letter in connection with the execution, delivery and performance of this Agreement and the Transactions (or any applicable waiting period thereunder shall have expired or been terminated).
(d) No provision of any Applicable Legal Requirement prohibiting, enjoining, restricting or making illegal the consummation of the Transactions shall be in effect and no temporary, preliminary or permanent restraining Order enjoining, restricting or making illegal the consummation of the Transactions will be in effect or shall be threatened in writing by a Governmental Entity.
(e) The shares of Parent Class A Stock to be issued in connection with the Closing shall be conditionally approved for listing upon the Closing on Nasdaq subject to any requirement to have a sufficient number of round lot holders of the Parent Class A Stock.
(f) Parent Cash shall equal or exceed $250,000,000.
8.2 Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Mergers and the other Transactions shall be subject to the
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satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, exclusively by the Company:
(a) The Fundamental Representations of Parent, other than the representations of Parent in Section 5.3, shall be true and correct in all material respects (without giving effect to any limitation as to materiality or Parent Material Adverse Effect or any similar limitation contain therein) on and as of the date of this Agreement and on and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of Parent set forth in Section 5.3 shall be true and correct (without giving effect to any limitation as to materiality or Parent Material Adverse Effect or any similar limitation contained therein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis failure of such representations and warranties of Parent to be so true and correct; and all other representations and warranties of Parent set forth in Article V hereof shall be true and correct (without giving effect to any limitation as to materiality or Parent Material Adverse Effect or any similar limitation contained therein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of Parent to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Parent Material Adverse Effect.
(b) Parent, First Merger Sub and Second Merger Sub shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the Closing Date, in each case, in all material respects.
(c) Parent shall have delivered to the Company a certificate, signed by an executive officer of Parent and dated as of the Closing Date, certifying as to the matters set forth in Section 8.2(a), Section 8.2(b) and Section 8.2(d).
(d) No Parent Material Adverse Effect shall have occurred since the date of this Agreement.
(e) Unless such person is nominated as a director by Sponsor pursuant to the terms of the Stockholders Agreement, the persons listed on Schedule 8.2(e) of the Company Disclosure Letter shall have resigned from all of their positions and offices with Parent, First Merger Sub and Second Merger Sub, in each case, to be effective as of the Closing.
(f) Parent shall have delivered or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by Parent pursuant to Section 1.2(a), duly executed by Parent, First Merger Sub, Second Merger Sub, the Escrow Agent, Crescent, each FPA Transferee and the Sponsor, as applicable.
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(g) The Parent Charter shall be amended and restated substantially in the form of the Parent A&R Charter and the Parent Bylaws shall be amended and restated substantially in the form of the Parent A&R Bylaws, in each case, to be effective as of the Closing.
(h) All conditions to the funding of the Forward Purchase Investment Amount and the Incremental Forward Purchase Investment Amount, if any, shall have been satisfied, and the Forward Purchase Investment Amount shall have been delivered by the Crescent to Parent at least one (1) Business Day prior to the Closing Date in accordance with the Forward Purchase Agreement, such that the funding of the Aggregate Forward Purchase Investment Amount will be consummated immediately prior to the Closing in accordance with the terms of the Forward Purchase Agreement.
(i) All conditions to the funding of the PIPE Investment Amount shall have been satisfied, and the PIPE Investment Amount shall have been delivered by the PIPE Investors to Parent at least two (2) Business Days prior to the Closing Date in accordance with the Subscription Agreements, such that the funding of the PIPE Investment Amount will be consummated immediately prior to the Closing in accordance with the terms of the Subscription Agreements.
(j) Parent shall have made appropriate arrangements to have the Trust Account, less amounts paid and to be paid pursuant to Section 7.11, available to Parent for payment of the Closing Cash Payment Amount, the Company Transaction Costs and the Parent Transaction Costs at the Closing.
8.3 Additional Conditions to the Obligations of Parent, First Merger Sub and Second Merger Sub. The obligations of Parent, First Merger Sub, and Second Merger Sub to consummate and effect the Mergers and the other Transactions shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, exclusively by Parent:
(a) The Fundamental Representations of the Company, other than the representations of the Company in Section 4.3, shall be true and correct in all material respects (without giving effect to any limitation as to materiality or Company Material Adverse Effect or any similar limitation contained therein) on and as of the date of this Agreement and on and as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); the representations and warranties of the Company set forth in Section 4.3 shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect or any similar limitation contained therein) on and as of the date of this Agreement and on as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except for any de minimis failure of such representations and warranties of the Company to be so true and correct; and all other representations and warranties of the Company set forth in Article IV hereof shall be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect or any similar limitation contained therein) on and as of the date of this Agreement and on
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as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure of such representations and warranties of the Company to be so true and correct, individually or in the aggregate, has not had and is not reasonably likely to have a Company Material Adverse Effect.
(b) The Company shall have performed or complied with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date, in each case, in all material respects.
(c) The Company shall have delivered to Parent a certificate, signed by an executive officer of the Company and dated as of the Closing Date, certifying as to the matters set forth in Section 8.3(a), Section 8.3(b) and Section 8.3(d).
(d) No Company Material Adverse Effect shall have occurred since the date of this Agreement.
(e) The Company shall have delivered, or caused to be delivered, or shall stand ready to deliver all of the certificates, instruments, Contracts and other documents specified to be delivered by it hereunder, including copies of the documents to be delivered by the Company pursuant to Section 1.2(b), duly executed by the Company.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated at any time prior to the Closing:
(a) by mutual written agreement of Parent and the Company at any time;
(b) by either Parent or the Company if the Transactions shall not have been consummated by March 12, 2021 (the Outside Date); provided, however, that (x) if the Parents stockholders approve the Required Extension, the Outside Date will be automatically extend to the earlier of (i) such extension date and (ii) July 13, 2021 and (y) that the right to terminate this Agreement under this Section 9.1(b) shall not be available to any Party whose action or failure to act (or, in the case of Parent, of First Merger Sub or Second Merger Subs action or failure to act) has been a principal cause of or resulted in the failure of the Transactions to occur on or before such date and such action or failure to act constitutes a breach of this Agreement; provided, further, that either Parent or the Company may extend the Outside Date to September 13, 2021 if all of the conditions set forth in Section 8.1, Section 8.2 and Section 8.3 have been satisfied or waived at the Outside Date, other than the condition set forth in Section 8.1(c) and those conditions which by their terms would be satisfied at the Closing; provided, further, that to the extent a Government Shutdown prevents the consummation of the Transactions prior to the Outside Date, the Outside Date shall be automatically extended day-for-day, for each Business Day the Government Shutdown is in effect for a maximum of sixty (60) days unless otherwise mutually agreed by the Parties in writing;
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(c) by either Parent or the Company if a Governmental Entity shall have issued an Order or taken any other action, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Transactions, including the Mergers, which Order or other action is final and nonappealable;
(d) by the Company, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement on the part of Parent, First Merger Sub or Second Merger Sub, or if any representation or warranty of Parent, First Merger Sub or Second Merger Sub shall have become untrue, in either case such that the conditions set forth in Section 8.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue; provided that if such breach by Parent, First Merger Sub or Second Merger Sub is curable by Parent, First Merger Sub or Second Merger Sub prior to the Closing, then the Company must first provide written notice of such breach and may not terminate this Agreement under this Section 9.1(d) until the earlier of: (i) thirty (30) days after delivery of written notice from the Company to Parent of such breach; and (ii) the Outside Date; provided, further, that each of Parent, First Merger Sub and Second Merger Sub continues to exercise commercially reasonable efforts to cure such breach (it being understood that the Company may not terminate this Agreement pursuant to this Section 9.1(d) if: (A) it shall have materially breached this Agreement and such breach has not been cured; or (B) if such breach by Parent, First Merger Sub or Second Merger Sub is cured during such thirty (30) day period);
(e) by Parent, upon a breach of any representation, warranty, covenant or agreement set forth in this Agreement on the part of the Company or if any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 8.3 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue; provided that if such breach is curable by the Company prior to the Closing, then Parent must first provide written notice of such breach and may not terminate this Agreement under this Section 9.1(e) until the earlier of: (i) thirty (30) days after delivery of written notice from Parent to the Company of such breach; and (ii) the Outside Date; provided, further, that the Company continues to exercise commercially reasonable efforts to cure such breach (it being understood that Parent may not terminate this Agreement pursuant to this Section 9.1(e) if: (A) it shall have materially breached this Agreement and such breach has not been cured; or (B) if such breach by the Company is cured during such 30-day period);
(f) by either Parent or the Company, if, at the Special Meeting (including any adjournments thereof), the Parent Stockholder Matters are not duly adopted by the stockholders of Parent by the requisite vote under the DGCL, the Parent Organizational Document and the Nasdaq rules and regulations, as applicable; provided, that Parent shall not be permitted to terminate this Agreement pursuant to this Section 9.1(f) if the failure to obtain such approval of the Parent Stockholder Matters is proximately caused by any action or failure to act of Parent that constitutes a breach of this Agreement;
(g) by the Company, if (i) a Change in Recommendation shall have occurred, (ii) Parent shall have failed to publicly reaffirm its recommendation of the Transactions within 10 Business Days after the date any Acquisition Proposal or any material modification thereto is first commenced, publicly announced, distributed or disseminated to Parents stockholders upon a request to do so by the Company, (iii) Parent or the Parent Board shall have breached or failed to
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perform any of its obligations set forth in Sections 7.1(b), 7.1(c), 7.1(d) or 7.1(e) or (iv) Parent or the Parent Board (or any committee thereof) shall have formally resolved or publicly authorized or proposed to take any of the foregoing actions;
(h) by either Parent or the Company, if (i) the Parent Stockholder Redemption elections have resulted in the condition set forth in Section 8.1(f) becoming incapable of being satisfied at the Closing and (ii) within seven (7) Business Days after delivery of written notice thereof by Parent to Crescent in accordance with Section 7.17, Crescent does not increase (or cause to be increased) the amount of Parent Cash in accordance with Section 7.17, such that the condition set forth in Section 8.1(f) is satisfied or will be satisfied at the Closing; or
(i) by Parent, if the Company Stockholder Approval shall not have been obtained within 24 hours following the execution and delivery of this Agreement by each of the parties hereto.
9.2 Notice of Termination; Effect of Termination.
(a) Any termination of this Agreement under Section 9.1 above will be effective immediately upon the delivery of written notice of the terminating Party to the other Parties.
(b) In the event of the termination of this Agreement as provided in Section 9.1, this Agreement shall be of no further force or effect and the Transactions shall be abandoned, except for and subject to the following: (i) Section 7.4, Section 7.7, this Section 9.2, Article XI (General Provisions) and the Confidentiality Agreement shall survive the termination of this Agreement; and (ii) nothing herein shall relieve any Party from liability for any intentional breach of this Agreement or intentional and actual Fraud in the making of the representations and warranties in this Agreement.
ARTICLE X
NO SURVIVAL
10.1 No Survival. None of the representations, warranties, covenants or agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing and all rights, claims and causes of action (whether in contract or in tort or otherwise, or whether at law or in equity) with respect thereto shall terminate at the Closing. Notwithstanding the foregoing, neither this Section 10.1 nor anything else in this Agreement to the contrary shall limit: (a) the survival of any covenant or agreement of the Parties which by its terms is required to be performed or complied with in whole or in part after the Closing, which covenants and agreements shall survive the Closing in accordance with their respective terms; or (b) any claim against any Person with respect to Fraud in the making of the representations and warranties by such Person in Article IV or Article V, as applicable.
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ARTICLE XI
GENERAL PROVISIONS
11.1 Stockholder Representative.
(a) By executing the Support Agreement, voting in favor of the adoption of this Agreement, the approval of the principal terms of the Mergers, and the consummation of the Merger or participating in the Merger and receiving the benefits thereof, including the right to receive the consideration payable in connection with the Mergers, the Company Stockholder shall be deemed to have approved the designation of, and hereby designates, GGC Services Holdco, Inc. as the Stockholder Representative for all purposes in connection with this Agreement and the agreements ancillary hereto. The Stockholder Representative shall act as the representative of the Company Stockholder in respect of all matters arising under this Agreement or the Transaction Agreements, and shall be authorized to act, or refrain from acting, with respect to any actions to be taken by or on behalf of the Company Stockholder or the Stockholder Representative, including to enforce any rights granted to the Company Stockholder hereunder, in each case as the Stockholder Representative believes is necessary or appropriate under this Agreement and the Transaction Agreements, for and on behalf of the Company Stockholder. The Company Stockholder shall be bound by all such actions taken by the Stockholder Representative and the Company Stockholder shall not be permitted to take any such actions. The Stockholder Representative is serving as the Stockholder Representative solely for purposes of administrative convenience, and is not personally liable (except in its capacity as the Company Stockholder hereunder if applicable) for any of the obligations of the Company, any of its Subsidiaries or the Company Stockholder hereunder, and Parent (on behalf of itself and its Affiliates) agrees that it will not look to the Stockholder Representative or the underlying assets of the Stockholder Representative for the satisfaction of any obligations of the Company, any of its Subsidiaries or the Company Stockholder. The Stockholder Representative shall not be liable for any error of judgment, or any action taken, suffered or omitted to be taken, in connection with the performance by the Stockholder Representative of the Stockholder Representatives duties or the exercise by the Stockholder Representative of the Stockholder Representatives rights and remedies under this Agreement, any Transaction Agreement or any agreement ancillary hereto, except in the case of its Fraud, bad faith or willful misconduct. No bond shall be required of the Stockholder Representative. The Stockholder Representative may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts. The Stockholder Representative shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any Transaction Agreement. Without limiting the generality of the foregoing, the Stockholder Representative shall have the full power and authority to interpret all the terms and provisions of this Agreement and the Transaction Agreements, and to consent to any amendment hereof or thereof on behalf of the Company Stockholder and its successor. Parent shall be entitled to rely on all statements, representations, decisions of, and actions taken or omitted to be taken by, the Stockholder Representative relating to this Agreement or any Transaction Agreement.
(b) The Company Stockholder will indemnify and hold harmless the Stockholder Representative from and against any and all liabilities and Losses (including the fees
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and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) arising out of or in connection with the Stockholder Representatives execution and performance of this Agreement and the Transaction Agreement, in each case as such Loss is suffered or incurred; provided that in the event that any such Loss is finally adjudicated to have been directly caused by the Fraud, bad faith, gross negligence or willful misconduct of the Stockholder Representative, the Stockholder Representative will reimburse the Company Stockholder the amount of such indemnified Loss to the extent attributable to such Fraud, bad faith, gross negligence or willful misconduct. If not paid directly to the Stockholder Representative by the Company Stockholder, any such liabilities or Losses may be recovered by the Stockholder Representative from (i) the Stockholder Representative Expense Holdback Amount and (ii) any other funds that become payable to the Company Stockholder under this Agreement at such time as such amounts would otherwise be distributable to the Company Stockholder; provided, that while this section allows the Stockholder Representative to be paid from the aforementioned sources of funds, this does not relieve the Company Stockholder from its obligation to promptly pay such liabilities or Losses as they are suffered or incurred, nor does it prevent the Stockholder Representative from seeking any remedies available to it at law or otherwise. In no event will the Stockholder Representative be required to advance its own funds on behalf of the Company Stockholder or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of, or provisions limiting the recourse against non-parties otherwise applicable to, the Company Stockholder set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Stockholder Representative under this section. The Company Stockholder acknowledges and agrees that the foregoing indemnities will survive the resignation or removal of the Stockholder Representative or the termination of this Agreement.
(c) The Stockholder Representative Expense Holdback Amount will be used for the purposes of paying directly, or reimbursing the Stockholder Representative for, any third party expenses pursuant to this Agreement and any agreements ancillary hereto. The Company Stockholder will not receive any interest or earnings on the Stockholder Representative Expense Holdback Amount and irrevocably transfer and assign to the Stockholder Representative any ownership right that they may otherwise have had in any such interest or earnings. The Stockholder Representative will not be liable for any loss of principal of the Stockholder Representative Expense Holdback Amount other than as a result of its gross negligence or willful misconduct. The Stockholder Representative will hold these funds separate from its corporate funds, will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. As soon as practicable following the completion of the Stockholder Representatives responsibilities, the Stockholder Representative shall cause (at the Company Stockholders expense) the disbursement of any remaining balance of the Stockholder Representative Expense Holdback Amount to the Company Stockholder, except in the case of payments to employees or former employees of the Company for which employment tax withholding is required, which such amounts shall be delivered to Parent or the Surviving Corporation and paid through Parents or the Surviving Corporations payroll processing service or system. For tax purposes, the Stockholder Representative Expense Holdback Amount shall be treated as having been received and voluntarily set aside by the Company Stockholder at the time of Closing. The parties agree that the Stockholder Representative is not acting as a withholding agent or in any similar capacity in connection with the Stockholder Representative Expense Holdback Amount.
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(d) The Stockholder Representative may resign at any time by giving twenty (20) days notice to Parent and the Company Stockholder; provided, however, in the event of the resignation or removal of the Stockholder Representative, a new Stockholder Representative (who shall be reasonably acceptable to Parent) shall be appointed by the vote or written consent of a majority of the shares of Parent Common Stock, voting together as a single class (with each such share entitled to one vote), then held by the Company Stockholder.
11.2 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given: (a) on the date established by the sender as having been delivered personally; (b) one (1) Business Day after being sent by a nationally recognized overnight courier guaranteeing overnight delivery; (c) on the date delivered, if delivered by email of a pdf document; or (d) on the fifth (5th) Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications, to be valid, must be addressed as follows:
if to Parent, First Merger Sub or Second Merger Sub, to:
Crescent Acquisition Corp
11100 Santa Monica Blvd., Suite 2000
Los Angeles, CA 90025
Attention: George Hawley
Email: george.hawley@crescentcap.com
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite #1400
Palo Alto, CA 94301
Attention: Michael J. Mies
E-mail: michael.mies@skadden.com
if to the Company to:
LiveVox, Inc.
450 Sansome Street, 9th Floor
San Francisco CA 94111
Attention: Mark Mallah
E-mail: MMallah@livevox.com
and to:
Golden Gate Private Equity, Inc.
One Embarcadero Center, Suite 3900
San Francisco, CA 94111
Attention: Stephen D. Oetgen and Rishi Chandna
E-mail: rchandna@goldengatecap.com
soetgen@goldengatecap.com
legal@goldengatecap.com
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with copies (which shall not constitute notice) to:
Kirkland & Ellis LLP
555 California Street, Suite 2900
San Francisco, CA 94104
Attention: Jeremy M. Veit, P.C.; James W. Beach
Facsimile: (415) 453-1500
E-mail: jeremy.veit@kirkland.com
james.beach@kirkland.com
if to the Stockholder Representative to:
GGC Services Holdco, Inc.
One Embarcadero Center, Suite 3900
San Francisco, CA 94111
Attention: Stephen D. Oetgen and Rishi Chandna
E-mail: rchandna@goldengatecap.com
soetgen@goldengatecap.com
legal@goldengatecap.com
with copies (which shall not constitute notice) to:
Kirkland & Ellis LLP
555 California Street, Suite 2900
San Francisco, CA 94104
Attention: Jeremy M. Veit, P.C.; James W. Beach
Facsimile: (415) 453-1500
E-mail: jeremy.veit@kirkland.com
james.beach@kirkland.com
or to such other address or to the attention of such Person or Persons as the recipient Party has specified by prior written notice to the sending Party (or in the case of counsel, to such other readily ascertainable business address as such counsel may hereafter maintain). If more than one method for sending notice as set forth above is used, the earliest notice date established as set forth above shall control.
11.3 Interpretation. The words hereof, herein, hereinafter, hereunder, and hereto and words of similar import refer to this Agreement as a whole and not to any particular section or subsection of this Agreement and reference to a particular section of this Agreement will include all subsections thereof, unless, in each case, the context otherwise requires. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context shall require, any pronoun shall include the corresponding masculine, feminine and neuter forms. When a reference is made in this Agreement to an Exhibit, such reference shall be to an Exhibit to this Agreement unless otherwise indicated. When a reference is made in this Agreement to Sections or subsections, such reference shall be to a Section or subsection of this Agreement. Unless otherwise indicated the words include, includes and including when used herein shall be deemed in each case to be followed by the words without
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limitation. The words made available mean that the subject documents or other materials were included in and available at the Catalina - Legal Diligence online datasite hosted by Box, Inc. prior to the execution of this Agreement. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. When reference is made herein to the business of an entity, such reference shall be deemed to include the business of all direct and indirect subsidiaries of such entity. Reference to the subsidiaries of an entity shall be deemed to include all direct and indirect subsidiaries of such entity. The word or shall be disjunctive but not exclusive. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is a non-Business Day, the period in question shall end on the next succeeding Business Day. References to a particular statute or regulation including all rules and regulations thereunder and any predecessor or successor statute, rule, or regulation, in each case as amended or otherwise modified from time to time. All references to currency amounts in this Agreement shall mean United States dollars.
11.4 Counterparts; Electronic Delivery. This Agreement, the Transaction Agreements and each other document executed in connection with the Transactions, and the consummation thereof, may be executed in one or more counterparts, all of which shall be considered one and the same document and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Delivery by electronic transmission to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence.
11.5 Entire Agreement; Third-Party Beneficiaries. This Agreement, the other Transaction Agreements and any other documents and instruments and agreements among the Parties as contemplated by or referred to herein, including the Exhibits and Schedules hereto: (a) constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof; and (b) other than the rights, at and after the Effective Time, of Persons pursuant to the provisions of Section 7.12 and Section 11.15 (which will be for the benefit of the Persons set forth therein), are not intended to confer upon any other Person other than the Parties any rights or remedies.
11.6 Severability. In the event that any term, provision, covenant or restriction of this Agreement, or the application thereof, is held to be illegal, invalid or unenforceable under any present or future Legal Requirement: (a) such provision will be fully severable; (b) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms of such illegal, invalid or unenforceable provision as may be possible.
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11.7 Other Remedies; Specific Performance.
(a) Except as otherwise provided herein, prior to the Closing, 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. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Party shall be entitled to enforce specifically the terms and provisions of this Agreement in any court having jurisdiction pursuant to Section 11.9, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each Party hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.
(b) The parties further agree that the Company would suffer irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties to the Forward Purchase Agreement do not perform their obligations under the provisions of the Forward Purchase Agreement (including failing to take such actions as are required of them thereunder to consummate the Forward Purchase Transaction) in accordance with its specified terms or otherwise breach such provisions. The parties acknowledge and agree that (i) if the parties to the Forward Purchase Agreement do not perform their obligations under the provisions of the Forward Purchase Agreement, then (1) the Company shall have the right to either (at the Companys election) (I) on behalf of Parent, seek an injunction, specific performance, or other equitable relief, to prevent breaches of the Forward Purchase Agreement and to enforce specifically the terms and provisions thereof, without proof of damages or (II) seek an injunction, specific performance, or other equitable relief, to cause Parent to prevent breaches of the Forward Purchase Agreement and to cause Parent to enforce specifically the terms and provisions thereof, without proof of damages, in each case of the foregoing clauses (I) and (II), prior to the valid termination of this Agreement in accordance with Section 9.1, this being in addition to any other remedy to which it is entitled under this Agreement, and (2) Parent shall not object or otherwise oppose any Legal Proceeding pursuant to which the Company is exercising its rights pursuant to the foregoing clause (1), and (ii) the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and without that right, none of the parties would have entered into this Agreement.
(c) The parties further agree that the Company would suffer irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur in the event that the parties to the Subscription Agreements do not perform their obligations under the provisions of the Subscription Agreements (including failing to take such actions as are required of them thereunder to consummate the PIPE Investment) in accordance with its specified
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terms or otherwise breach such provisions. The parties acknowledge and agree that (i) if the parties to the Subscription Agreements do not perform their obligations under the provisions of the Subscription Agreements, then (1) the Company shall have the right to either (at the Companys election) (I) on behalf of Parent, seek an injunction, specific performance, or other equitable relief, to prevent breaches of the Subscription Agreements and to enforce specifically the terms and provisions thereof, without proof of damages or (II) seek an injunction, specific performance, or other equitable relief, to cause Parent to prevent breaches of the Subscription Agreements and to cause Parent to enforce specifically the terms and provisions thereof, without proof of damages, in each case of the foregoing clauses (I) and (II), prior to the valid termination of this Agreement in accordance with Section 9.1, this being in addition to any other remedy to which it is entitled under this Agreement, and (2) Parent shall not object or otherwise oppose any Legal Proceeding pursuant to which the Company is exercising its rights pursuant to the foregoing clause (1), and (ii) the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and without that right, none of the parties would have entered into this Agreement.
11.8 Governing Law. This Agreement and the consummation the Transactions, and any action, suit, dispute, controversy or claim arising out of this Agreement and the consummation of the Transactions, or the validity, interpretation, breach or termination of this Agreement and the consummation of the Transactions, shall be governed by and construed in accordance with the internal law of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.
11.9 Consent to Jurisdiction; Waiver of Jury Trial.
(a) Except as provided in Sections 2.11(f) and 7.13, each of the Parties irrevocably consents to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware (or, solely to the extent that such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware and the United States District Court for the District of Delaware), in each case in connection with any matter based upon or arising out of this Agreement, the other Transaction Agreements and the consummation of the Transactions, agrees that process may be served upon them in any manner authorized by the laws of the State of Delaware for such Person and waives and covenants not to assert or plead any objection which they might otherwise have to such manner of service of process. Each Party and any Person asserting rights as a third-party beneficiary may do so only if he, she or it hereby waives, and shall not assert as a defense in any legal dispute, that: (a) such Person is not personally subject to the jurisdiction of the above named courts for any reason; (b) such Legal Proceeding may not be brought or is not maintainable in such court; (c) such Persons property is exempt or immune from execution; (d) such Legal Proceeding is brought in an inconvenient forum; or (e) the venue of such Legal Proceeding is improper. Each Party and any Person asserting rights as a third-party beneficiary hereby agrees not to commence or prosecute any such action, claim, cause of action or suit other than before one of the above-named courts, nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action, claim, cause of action or suit to any court other than one of the above-named courts, whether on the grounds of inconvenient forum or otherwise. Each Party hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, and further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 11.2. Notwithstanding the foregoing in this
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Section 11.9, any Party may commence any action, claim, cause of action or suit in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES AND ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY MAY DO SO ONLY IF HE, SHE OR IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS AGREEMENT, EACH OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION OF THE TRANSACTIONS, AND FOR ANY COUNTERCLAIM RELATING THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. IF THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NON-COMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION OF THE TRANSACTIONS. FURTHERMORE, NO PARTY NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.
11.10 Independent Counsel. Each of the Parties agrees that it has been represented by independent counsel of its choice during the negotiation and execution of this Agreement and each Party hereto and its counsel cooperated in the drafting and preparation of this Agreement and the documents referred to herein and, therefore, waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the Party drafting such agreement or document.
11.11 Expenses. Except as otherwise expressly provided in this Agreement or the Sponsor Support Agreement, whether or not the Transactions are consummated, each Party will pay its own costs and expenses incurred in anticipation of, relating to and in connection with the negotiation and execution of this Agreement and the Transaction Agreements and the consummation of the Transactions.
11.12 Assignment. No Party may assign, directly or indirectly, including by operation of law, either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Parties. Subject to the first sentence of this Section 11.12, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
11.13 Amendment. This Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of each of the Parties.
11.14 Extension; Waiver. At any time prior to the Closing, Parent (on behalf of itself, First Merger Sub and Second Merger Sub), on the one hand, and the Company (on behalf of itself and the Company Stockholder), on the other hand, may, to the extent not prohibited by Applicable
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Legal Requirements: (a) extend the time for the performance of any of the obligations or other acts of the other Party; (b) waive any inaccuracies in the representations and warranties made to the other Party contained herein or in any document delivered pursuant hereto; and (c) waive compliance with any of the agreements or conditions for the benefit of such Party contained herein. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. Delay in exercising any right under this Agreement shall not constitute a waiver of such right. In the event any provision of any of the other Transaction Agreement in any way conflicts with the provisions of this Agreement (except where a provision therein expressly provides that it is intended to take precedence over this Agreement), this Agreement shall control.
11.15 No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement, this Agreement may only be enforced against, and any Legal Proceeding for breach of this Agreement may only be made against, the entities that are expressly identified herein as Parties to this Agreement, and no Related Party of a Party shall have any liability for any liabilities or obligations of the Parties for any Legal Proceeding (whether in tort, contract or otherwise) for breach of this Agreement or in respect of any oral representations made or alleged to be made in connection herewith. No Party shall have any right of recovery in respect hereof against any Related Party of a Party and no personal liability shall attach to any Related Party of a Party through such Party, whether by or through attempted piercing of the corporate veil, by the enforcement of any judgment, fine or penalty or by virtue of any Legal Requirement or otherwise. The provisions of this Section 11.15 are intended to be for the benefit of, and enforceable by the Related Parties of the Parties and each such Person shall be a third-party beneficiary of this Section 11.15. This Section 11.15 shall be binding on all successors and assigns of Parties. Notwithstanding anything in this Agreement to the contrary, this Section 11.15 shall not apply to Section 11.1, which shall be enforceable by the Stockholder Representative in its entirety against the Company Stockholder.
11.16 Legal Representation. i) Kirkland & Ellis LLP and Nob Hill Law Group, P.C. (together the Company Law Firms) has represented the Company, the Company Subsidiaries, the Company Stockholder and the Stockholder Representative and (b) Skadden, Arps, Slate, Meagher & Flom LLP (the Prior Parent Counsel) has represented Parent, First Merger Sub and Second Merger Sub. All of the parties recognize and agree the commonality of interest that exists and will continue to exist until Closing, and the parties agree that such commonality of interest should continue to be recognized after the Closing and the parties recognize and agree that (i) the communications between or among Company Law Firms, the Company, the Company Subsidiaries, the Company Stockholder and the Stockholder Representative are protected under certain privileges and doctrines, including the attorney-client privilege and the common interest doctrine and (ii) the communications between or among Prior Parent Counsel and Parent, First Merger Sub and Second Merger Sub are protected under certain privileges and doctrines, including the attorney-client privilege. Specifically, the parties agree that (a) (i) neither Parent nor First Merger Sub nor Second Merger Sub shall, nor shall they cause the Company to, seek to have Company Law Firms disqualified from representing the Stockholder Representative, the Company Stockholder and their respective Affiliates, and each of the foregoings respective officers, directors, managers, employees, shareholders, equityholders, agents and representatives (collectively, the Seller Parties) in connection with any dispute that may arise between the Seller Parties and Parent, First Merger Sub, Second Merger Sub or the Company and the Company
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Subsidiaries in connection with this Agreement or the transactions contemplated hereby, and the Company and the Company Subsidiaries expressly waive any claim that Company Law Firms has a conflict of interest that would preclude it from engaging in such a representation (ii) none of the Company, the Company Subsidiaries, the Company Stockholder and the Stockholder Representative shall seek to have Prior Parent Counsel disqualified from representing Parent, First Merger Sub, Second Merger Sub, the Sponsor and its respective Affiliates, and each of the foregoings respective officers, directors, managers, employees, shareholders, equityholders, agents and representatives (collectively, the Parent Parties) in connection with any dispute that may arise between the Parent Parties and Seller Parties or the Company and the Company Subsidiaries and Parent, First Merger Sub, Second Merger Sub in connection with this Agreement or the transactions contemplated hereby, and the Company and the Company Subsidiaries expressly waive any claim that Prior Parent Counsel has a conflict of interest that would preclude it from engaging in such a representation and (b) (i) in connection with any such dispute that may arise between the Seller Parties and Parent, First Merger Sub, Second Merger Sub or the Company and the Company Subsidiaries, the Stockholder Representative, the Seller Parties or their respective Affiliates involved in such dispute (and not Parent, First Merger Sub, Second Merger Sub or the Company and the Company Subsidiaries) will have the right to decide whether or not to waive the attorney-client privilege that may apply to any communications between the Company, any of the Company Subsidiaries and Company Law Firms that occurred before the Closing in connection with this Agreement and the transactions contemplated hereby and (ii) in connection with any such dispute that may arise between the Parent Parties and Seller Parties or the Company and the Company Subsidiaries and Parent, First Merger Sub, Second Merger Sub, the Parent Parties or their respective Affiliates involved in such dispute (and not the Stockholder Representative, the Seller Parties or their respective Affiliates or the Company and the Company Subsidiaries) will have the right to decide whether or not to waive the attorney-client privilege that may apply to any communications between the Parent, First Merger Sub, Second Merger Sub and their respective Affiliates and Prior Parent Counsel that occurred before the Closing in connection with this Agreement and the transactions contemplated hereby.
(a) Parent further agrees, on behalf of itself, First Merger Sub, Second Merger Sub and, after the Closing, on behalf of the Company and the Company Subsidiaries, that all communications in any form or format whatsoever between or among any of Company Law Firms, the Stockholder Representative, the Seller Parties that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or any dispute arising under this Agreement (collectively, the Company Deal Communications) shall be deemed to be retained and owned collectively by the Company Stockholders, shall be controlled by the Stockholder Representative on behalf of the Company Stockholders and shall not pass to (by operation of law or otherwise) or be claimed by Parent or the Company and the Company Subsidiaries. All Company Deal Communications that are attorney-client privileged Privileged Company Communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Stockholder Representative and the Company Stockholder, shall be controlled by the Stockholder Representative on behalf of the Company Stockholder and shall not pass to or be claimed by Parent or the Company and the Company Subsidiaries.
(b) The Company further agrees, on behalf of itself and the Company Subsidiaries, that all communications in any form or format whatsoever between or among Prior
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Parent Counsel and the Parent Parties that relate in any way to the negotiation, documentation and consummation of the transactions contemplated by this Agreement or any dispute arising under this Agreement (collectively, the Parent Deal Communications) shall be deemed to be retained and owned by the Sponsor and shall not pass to (by operation of law or otherwise) or be claimed by Parent or the Company and the Company Subsidiaries. All Parent Deal Communications that are attorney-client privileged Privileged Parent Communications shall remain privileged after the Closing and the privilege and the expectation of client confidence relating thereto shall belong solely to the Sponsor and shall not pass to or be claimed by Parent or the Company and the Company Subsidiaries.
(c) Notwithstanding the foregoing, in the event that a dispute arises between Parent or the Company and the Company Subsidiaries, on the one hand, and a third party other than the Stockholder Representative or the Seller Parties, on the other hand, Parent or the Company and the Company Subsidiaries may assert the attorney-client privilege to prevent the disclosure of (i) the Privileged Company Communications to such third party and if requested by Parent, the Company Stockholder and Stockholder Representative shall assert such privilege and (ii) the Privileged Parent Communications to such third party and if requested by Parent, the Sponsor shall assert such privilege; provided, however, that none of Parent or the Company and the Company Subsidiaries may waive such privilege without the prior written consent of the Stockholder Representative or the Sponsor, as applicable. In the event that Parent or the Company and the Company Subsidiaries is legally required by governmental order or otherwise to access or obtain a copy of all or a portion of (i) the Company Deal Communications, Parent shall immediately (and, in any event, within two (2) Business Days) notify the Stockholder Representative in writing (including by making specific reference to this Section) so that the Stockholder Representative can seek (at its expense) a protective order or (ii) the Parent Deal Communications, Parent shall immediately (and, in any event, within two (2) Business Days) notify the Sponsor in writing (including by making specific reference to this Section) so that the Sponsor can seek (at its expense) a protective order and, in each case, Parent agrees to use all commercially reasonable efforts to assist therewith.
11.17 Disclosure Letters and Exhibits. The Company Disclosure Letter and the Parent Disclosure Letter shall each be arranged in separate parts corresponding to the numbered and lettered sections and subsections contained in this Agreement, and the information disclosed in any numbered or lettered part shall be deemed to relate to and to qualify only the particular representation or warranty set forth in the corresponding numbered or lettered Section or subsection of this Agreement, except to the extent that: (a) such information is cross-referenced in another part of the Company Disclosure Letter or the Parent Disclosure Letter, as applicable; or (b) it is reasonably apparent on the face of the disclosure (without reference to any document referred to therein or any independent knowledge on the part of the reader regarding the matter disclosed) that such information qualifies another representation and warranty of the Company or Parent, as applicable, in this Agreement. Certain information set forth in the Company Disclosure Letter and the Parent Disclosure Letter is or may be included solely for informational purposes, is not an admission of liability with respect to the matters covered by the information, and may not be required to be disclosed pursuant to this Agreement. The specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Company Disclosure Letter and the Parent Disclosure Letter is not intended to imply that such amounts (or higher or lower amounts) are or are not material, and no Party shall use the
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fact of the setting of such amounts or the fact of the inclusion of any such item in the Company Disclosure Letter or the Parent Disclosure Letter in any dispute or controversy between the Parties as to whether any obligation, item, or matter not described herein or included in Company Disclosure Letter or the Parent Disclosure Letter is or is not material for purposes of this Agreement.
[Signature Page Follows]
95
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above.
CRESCENT ACQUISITION CORP | ||
By: |
/s/ Christopher G. Wright |
|
Name: | Christopher G. Wright | |
Title: | President | |
FUNCTION ACQUISITION I CORP | ||
By: |
/s/ Todd M. Purdy |
|
Name: | Todd M. Purdy | |
Title: | President | |
FUNCTION ACQUISITION II LLC | ||
By: |
/s/ Todd M. Purdy |
|
Name: | Todd M. Purdy | |
Title: | President |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above.
LIVEVOX HOLDINGS, INC. | ||
By: |
/s/ Louis Summe |
|
Name: | Louis Summe | |
Title: | President |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above.
GGC SERVICES HOLDCO, INC., solely in its capacity as the Stockholder Representative | ||
By: |
/S/ Stephen D. Oetgen |
|
Name: | Stephen D. Oetgen | |
Title: | President and Secretary |
SCHEDULE A
DEFINED TERMS
1.1 Defined Terms. Terms defined in this Agreement are organized alphabetically as follows, together with the section and, where applicable, paragraph number in which the definition of each such term is located:
A&R Registration Rights Agreement |
Recitals | |
Acquisition Proposal |
Section 1.2 of Schedule A | |
Additional Parent SEC Reports |
5.7(a) | |
Adjustment Escrow Account |
2.10 | |
Adjustment Escrow Amount |
2.10 | |
Adjustment Notice of Objection |
2.11(e) | |
Adjustment Review Period |
2.11(e) | |
Adjustment Statement |
2.11(d) | |
Affiliate |
Section 1.2 of Schedule A | |
Aggregate Forward Purchase Investment Amount |
Section 1.2 of Schedule A | |
Agreement |
Preamble | |
Alternative Acquisition Agreement |
Section 1.2 of Schedule A | |
Anti-Corruption Laws |
Section 1.2 of Schedule A | |
Applicable Legal Requirements |
Recitals | |
Approvals |
4.6 | |
Audited Financial Statements |
4.7(a) | |
Base Value |
Section 1.2 of Schedule A | |
Bonus Plan Payments |
Section 1.2 of Schedule A | |
Bonus Plans |
Section 1.2 of Schedule A | |
Borrowed Indebtedness |
Section 1.2 of Schedule A | |
Business Day |
Section 1.2 of Schedule A | |
Cash and Cash Equivalents |
Section 1.2 of Schedule A | |
Certificate |
2.7(a) | |
Certificates of Merger |
1.3(e) | |
Certifications |
5.7(a) | |
Change in Recommendation |
7.1(c) | |
Change of Control |
Section 1.2 of Schedule A | |
Closing |
1.1 | |
Closing Cash Payment Amount |
Section 1.2 of Schedule A | |
Closing Date |
1.1 | |
Closing Form 8-K |
7.3(c) | |
Closing Indebtedness Amount |
Section 1.2 of Schedule A | |
Closing Number of Securities |
Section 1.2 of Schedule A | |
Closing Press Release |
7.3(c) | |
Closing Securities Payment Amount |
Section 1.2 of Schedule A | |
Closing Transaction Costs |
Section 1.2 of Schedule A | |
Code |
Section 1.2 of Schedule A | |
Communications Plan |
7.4(b) | |
Company |
Preamble |
Sch. A-1
Company Business Combination |
7.10(a) | |
Company Cash |
Section 1.2 of Schedule A | |
Company Common Stock |
4.3(a) | |
Company Deal Communications |
11.16(b) | |
Company Disclosure Letter |
IV | |
Company Estimated Adjustment Statement |
2.11(a) | |
Company IT Systems |
4.17(h) | |
Company Law Firms |
11.16(a) | |
Company Leased Properties |
4.13(b) | |
Company Material Adverse Effect |
Section 1.2 of Schedule A | |
Company Material Contract |
4.19(a) | |
Company Real Property Leases |
4.13(b) | |
Company Registered Intellectual Property |
4.17(a) | |
Company Stockholder |
Section 1.2 of Schedule A | |
Company Stockholder Approval |
Recitals | |
Company Subsidiaries |
4.2(a) | |
Company Transaction Costs |
Section 1.2 of Schedule A | |
Confidentiality Agreement |
Section 1.2 of Schedule A | |
Continental |
5.13(a) | |
Contract |
Section 1.2 of Schedule A | |
Copyrights |
Section 1.2 of Schedule A | |
COVID Action |
Section 1.2 of Schedule A | |
Crescent |
Recitals | |
Current Registration Rights Agreement |
Section 1.2 of Schedule A | |
Customs & International Trade Authorizations |
Section 1.2 of Schedule A | |
Customs & International Trade Laws |
Section 1.2 of Schedule A | |
D&O Indemnified Party |
7.12(a) | |
D&O Tail |
7.12(b) | |
DGCL |
Recitals | |
DLLCA |
Recitals | |
Earn Out Escrow Account |
3.2(a) | |
Earn Out Escrow Agent |
3.2(a) | |
Earn Out Escrow Agreement |
3.2(a) | |
Earn Out Shares |
3.1 | |
Earn Out Triggering Event |
3.3 | |
Effective Time |
2.1 | |
Employee Benefit Plan |
Section 1.2 of Schedule A | |
Environmental Law |
Section 1.2 of Schedule A | |
Environmental Permits |
4.15(a)(ii) | |
ERISA Affiliate |
Section 1.2 of Schedule A | |
Escrow Agent |
Section 1.2 of Schedule A | |
Escrow Agreement |
2.10 | |
Escrow Shares |
Recitals | |
Estimated Closing Indebtedness Amount |
2.11(a) | |
Estimated Closing Transaction Costs |
Section 1.2 of Schedule A | |
Estimated Company Cash |
2.11(a) |
Sch. A-2
Estimated Company Transaction Costs |
2.11(a) | |
Estimated Merger Consideration |
Section 1.2 of Schedule A | |
Estimated Parent Transaction Costs |
2.11(b) | |
Estimated Trust Account Interest |
2.11(b) | |
Exchange Act |
Section 1.2 of Schedule A | |
Excluded Share |
2.7(d) | |
Existing Credit Agreement |
Section 1.2 of Schedule A | |
Extension |
6.2 | |
Final Closing Indebtedness Amount |
2.11(g) | |
Final Closing Transaction Costs |
2.11(g) | |
Final Company Cash |
2.11(g) | |
Final Merger Consideration |
Section 1.2 of Schedule A | |
Final Spreadsheet |
Section 1.2 of Schedule A | |
Final Trust Account Interest |
2.11(g) | |
Financial Statements |
4.7(a) | |
First Certificate of Merger |
1.3(d) | |
First Merger |
Recitals | |
First Merger Sub |
Preamble | |
First Merger Sub Common Stock |
5.3(b) | |
Forward Purchase Agreement |
Recitals | |
Forward Purchase Investment Amount |
Recitals | |
Forward Purchase Transaction |
Recitals | |
FPA Transferee |
Section 1.2 of Schedule A | |
Fraud |
Section 1.2 of Schedule A | |
Fundamental Representations |
Section 1.2 of Schedule A | |
Governing Documents |
Section 1.2 of Schedule A | |
Government Shutdown |
Section 1.2 of Schedule A | |
Governmental Entity |
Section 1.2 of Schedule A | |
Group Companies |
Section 1.2 of Schedule A | |
Group Company Software |
4.17(i) | |
Hazardous Substance |
Section 1.2 of Schedule A | |
HSR Act |
4.5(b) | |
Inbound License |
4.19(a)(xvi) | |
Incremental Forward Purchase Investment Amount |
7.18 | |
Indebtedness |
Section 1.2 of Schedule A | |
Independent Expert |
2.11(f) | |
Initial Spreadsheet |
Section 1.2 of Schedule A | |
Insider |
4.21(b) | |
Insurance Policies |
4.20 | |
Intellectual Property |
Section 1.2 of Schedule A | |
Intervening Event |
Section 1.2 of Schedule A | |
JOBS Act |
7.15 | |
Knowledge |
Section 1.2 of Schedule A | |
Legal Proceeding |
Section 1.2 of Schedule A | |
Legal Requirements |
Section 1.2 of Schedule A | |
Licensed Intellectual Property |
Section 1.2 of Schedule A |
Sch. A-3
Lien |
Section 1.2 of Schedule A | |
Losses |
Section 1.2 of Schedule A | |
Material Suppliers |
4.19(a)(iii) | |
Mergers |
Recitals | |
Nasdaq |
5.12 | |
Notice Period |
7.1(c)(i) | |
Open Source Code |
Section 1.2 of Schedule A | |
Open Source License |
Section 1.2 of Schedule A | |
Order |
Section 1.2 of Schedule A | |
Ordinary Course of Business |
Section 1.2 of Schedule A | |
Outside Date |
9.1(b) | |
Owned Intellectual Property |
Section 1.2 of Schedule A | |
Parent |
Preamble | |
Parent A&R Bylaws |
Recitals | |
Parent A&R Charter |
Recitals | |
Parent Board |
Recitals | |
Parent Business Combination |
7.10(b) | |
Parent Bylaws |
Section 1.2 of Schedule A | |
Parent Cash |
Section 1.2 of Schedule A | |
Parent Charter |
Section 1.2 of Schedule A | |
Parent Class A Stock |
5.3(a) | |
Parent Class F Stock |
5.3(a) | |
Parent Common Stock |
Section 1.2 of Schedule A | |
Parent Deal Communications |
11.16(c) | |
Parent Disclosure Letter |
V | |
Parent Estimated Adjustment Statement |
2.11(b) | |
Parent Material Adverse Effect |
Section 1.2 of Schedule A | |
Parent Material Contracts |
5.11 | |
Parent Organizational Documents |
Section 1.2 of Schedule A | |
Parent Parties |
11.16(a) | |
Parent Preferred Stock |
5.3(a) | |
Parent Recommendation |
Recitals | |
Parent SEC Reports |
5.7(a) | |
Parent Shares |
5.3(a) | |
Parent Stockholder Matters |
7.1(a)(i) | |
Parent Stockholder Redemption |
7.1(a)(i) | |
Parent Transaction Costs |
Section 1.2 of Schedule A | |
Parent Units |
Section 1.2 of Schedule A | |
Parent Warrants |
5.3(a) | |
Parties |
Preamble | |
Party |
Preamble | |
Patents |
Section 1.2 of Schedule A | |
Permitted Lien |
Section 1.2 of Schedule A | |
Person |
Section 1.2 of Schedule A | |
Personal Data |
Section 1.2 of Schedule A | |
PIPE Investment |
Recitals |
Sch. A-4
PIPE Investment Amount |
Recitals | |
PIPE Investor |
Section 1.2 of Schedule A | |
Prior Parent Counsel |
11.16(a) | |
Privacy Laws |
Section 1.2 of Schedule A | |
Private Placement Warrants |
5.3(a) | |
Privileged Company Communications |
11.16(b) | |
Privileged Parent Communications |
11.16(c) | |
Processing |
4.18(a) | |
Proxy Clearance Date |
7.1(a)(i) | |
Proxy Statement |
7.1(a)(i) | |
Public Warrants |
5.3(a) | |
Related Parties |
Section 1.2 of Schedule A | |
Release Notice |
3.2(b) | |
Representatives |
7.10(a) | |
Required Extension |
7.26 | |
Restricted Cash |
Section 1.2 of Schedule A | |
Retained Cash |
Section 1.2 of Schedule A | |
Sanctioned Jurisdiction |
Section 1.2 of Schedule A | |
Sanctioned Person |
Section 1.2 of Schedule A | |
Sanctions |
Section 1.2 of Schedule A | |
SEC |
Section 1.2 of Schedule A | |
Second Certificate of Merger |
1.3(e) | |
Second Effective Time |
2.1 | |
Second Merger |
Recitals | |
Second Merger Sub |
Preamble | |
Securities Act |
Section 1.2 of Schedule A | |
Seller Parties |
11.16(a) | |
Share Escrow Agreement |
3.2(d) | |
Software |
Section 1.2 of Schedule A | |
Special Meeting |
7.1(b) | |
Specified Representations |
4.28 | |
Sponsor |
Recitals | |
Sponsor Support Agreement |
Recitals | |
Stockholder Released Parties |
7.21 | |
Stockholder Representative |
Preamble | |
Stockholder Representative Expense Holdback Amount |
Section 1.2 of Schedule A | |
Stockholders Agreement |
Recitals | |
Subscription Agreement |
Recitals | |
Subsidiary |
Section 1.2 of Schedule A | |
Superior Proposal |
Section 1.2 of Schedule A | |
Support Agreement |
Recitals | |
Surviving Corporation |
Recitals | |
Surviving Entity |
Recitals | |
Tax |
Section 1.2 of Schedule A | |
Tax Return |
Section 1.2 of Schedule A | |
Taxes |
Section 1.2 of Schedule A |
Sch. A-5
Total Consideration |
2.6(a) | |
Trade Secrets |
Section 1.2 of Schedule A | |
Trademarks |
Section 1.2 of Schedule A | |
Transaction Agreements |
Section 1.2 of Schedule A | |
Transactions |
Section 1.2 of Schedule A | |
Transfer Taxes |
7.13(b) | |
Treasury Regulations |
Section 1.2 of Schedule A | |
Trust Account |
5.13(a) | |
Trust Account Interest |
Section 1.2 of Schedule A | |
Trust Agreement |
5.13(a) | |
Trust Termination Letter |
7.5 | |
U.S. GAAP |
4.7(a) | |
Unaudited Financial Statements |
4.7(a) | |
Volume Weighted Average Share Price |
Section 1.2 of Schedule A | |
WARN |
4.12(e) | |
Withholding Amount |
3.2(f) |
1.2 Additional Terms. For purposes of this Agreement, the following capitalized terms have the following meanings:
Acquisition Proposal shall mean any proposal or offer with respect to any direct or indirect acquisition or purchase or license, in one transaction or a series of transactions, and whether through any merger, reorganization, consolidation, tender offer, self-tender, exchange offer, stock acquisition, asset acquisition, binding share exchange, business combination, recapitalization, liquidation, dissolution, joint venture, licensing or similar transaction, or otherwise, of (A) assets or businesses of any Person and its Subsidiaries that generate 20% or more of the net revenues or net income (for the 12 month period ending on the last day of such Persons most recently completed fiscal quarter) or that represent 20% or more of the total assets (based on fair market value) of such Person and its Subsidiaries, taken as a whole, immediately prior to such transaction, or (B) 20% or more of any class of capital stock, other equity securities or voting power of any Person, any of its Subsidiaries or any resulting parent company of such Person, in each case other than the Transactions.
Affiliate shall mean, as applied to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with, such Person. For purposes of this definition, control (including with correlative meanings, the terms controlling, controlled by and under common control with), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
Aggregate Forward Purchase Investment Amount shall mean an amount equal to (a) the Forward Purchase Investment Amount; plus (b) the Incremental Forward Purchase Investment Amount, if any.
Alternative Acquisition Agreement shall mean any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract constituting or related to, or which is intended to or is reasonably likely to lead to, any Acquisition Proposal.
Sch. A-6
Anti-Corruption Laws shall mean the U.S. Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§78dd-1, et seq., the United Kingdom Bribery Act 2010, and any other applicable anti-corruption or anti-bribery Legal Requirements.
Base Value shall mean an amount equal to $824,375,000.
Bonus Plans shall mean, together, the Option-Based Incentive Plan and the Value Creation Incentive Plan, in each case, as amended, and any applicable award agreements thereunder.
Bonus Plan Payments shall mean the aggregate value of all Option Incentive Bonuses (as defined in the Option-Based Incentive Plan) and all Value Creation Bonuses (as defined in the Value Creation Incentive Plan) under the Bonus Plans, determined based on the terms of this Agreement and the terms of the Bonus Plans, assuming for these purposes that one hundred percent (100%) of the vesting of rights under the Bonus Plans, including the rights to payments under the Bonus Plans, have accelerated and have been paid in full in connection with the consummation of the Transactions, and each individual payment payable under the Bonus Plans, a Bonus Plan Payment.
Borrowed Indebtedness shall mean, as of the applicable date of determination, the aggregate principal amount of outstanding Indebtedness of the Group Companies under the Existing Credit Agreement.
Business Day shall mean any day other than a Saturday, a Sunday or other day on which commercial banks in New York, New York or San Francisco, CA are authorized or required by Legal Requirements to be closed.
Cash and Cash Equivalents shall mean cash and cash equivalents, including checks, money orders, marketable securities, short-term instruments, negotiable instruments, funds in time and demand deposits or similar accounts on hand, in lock boxes, in financial institutions or elsewhere, together with all accrued but unpaid interest thereon, and all bank, brokerage or other similar accounts; provided that the amount of Cash and Cash Equivalents as of any given time shall be: (a) decreased by any Restricted Cash; (b) increased by any uncleared checks, wire transfers and drafts deposited for the account of the Company or any of its Subsidiaries at such time; and (c) decreased by any issued but uncleared checks, wire transfers and drafts written or issued by the Company or any of its Subsidiaries at such time.
Change of Control shall mean any transaction or series of transactions, the result of which is: (a) the acquisition by any Person or group (as defined in the Exchange Act) of Persons of direct or indirect beneficial ownership of securities representing 50% or more of the combined voting power of the then outstanding securities of Parent; (b) a merger, consolidation, reorganization or other business combination, however effected, resulting in any Person or group (as defined in the Exchange Act) acquiring at least 50% of the combined voting power of the then outstanding securities of Parent or the surviving Person outstanding immediately after such combination; or (c) a sale of all or substantially all of the assets of Parent.
Sch. A-7
Closing Cash Payment Amount shall mean an amount equal to: (a) Parent Cash; minus (b) Estimated Closing Transaction Costs, to the extent not paid prior to the Closing; minus (c) the Retained Cash; provided that in no case shall the Closing Cash Payment Amount exceed $220,000,000 minus the Adjustment Escrow Amount.
Closing Indebtedness Amount shall mean, as of 12:01 a.m., Eastern Time, on the Closing Date, the aggregate amount of the Indebtedness of the Company.
Closing Number of Securities shall mean the number of shares of Parent Class A Stock equal to: (a) the Closing Securities Payment Amount; divided by (b) $10, as set forth in the Final Spreadsheet.
Closing Securities Payment Amount shall mean an amount equal to: (a) the Estimated Merger Consideration; minus (b) the Closing Cash Payment Amount.
Closing Transaction Costs shall mean the sum of (a) the Company Transaction Costs and (b) the Parent Transaction Costs.
Code shall mean the Internal Revenue Code of 1986, as amended.
Company Cash shall mean, as of 12:01 a.m., Eastern Time, on the Closing Date, an amount equal to all Cash and Cash Equivalents of the Group Companies.
Company Material Adverse Effect shall mean any state of facts, development, change, circumstance, occurrence, event or effect, that, individually or in the aggregate: (a) has had, or would reasonably be expected to have, a materially adverse effect on the business, assets, financial condition or results of operations of the Group Companies, taken as a whole; or (b) has prevented or materially delayed or materially impaired, or is reasonably likely to prevent or materially delay or materially impair, the ability of the Company to consummate the Transactions; provided, however, that in no event would any of the following (or the effect of any of the following), alone or in combination, be taken into account in determining whether a Company Material Adverse Effect on or in respect of the Group Companies pursuant to clause (a) or (b) has occurred: (i) acts of war, sabotage, civil unrest or terrorism, or any escalation or worsening of any such acts of war, sabotage, civil unrest or terrorism, or changes in global, national, regional, state or local political or social conditions; (ii) earthquakes, hurricanes, tornados, pandemics (including COVID-19) or other natural disasters; (iii) changes attributable to the public announcement or pendency of the Transactions (including the impact thereof on relationships with customers, suppliers or employees); (iv) changes or proposed changes in Applicable Legal Requirements, regulations or interpretations thereof or decisions by courts or any Governmental Entity after the date of this Agreement; (v) changes or proposed changes in U.S. GAAP (or any interpretation thereof) after the date of this Agreement; (vi) any downturn in general economic conditions, including changes in the credit, debt, securities, financial, capital or reinsurance markets (including changes in interest or exchange rates, prices of any security or market index or commodity or any disruption of such markets); (vii) events or conditions generally affecting the industries and markets in which the Company operates; (viii) any failure to meet any projections, forecasts, guidance, estimates, milestones, budgets or financial or operating predictions of revenue, earnings, cash flow or cash position; provided that this clause (viii) shall not prevent a determination that the underlying facts
Sch. A-8
and circumstances resulting in such failure has resulted in a Company Material Adverse Effect; or (ix) any actions required to be taken, or required not to be taken, pursuant to the terms of this Agreement; provided, however, that if any state of facts, developments, changes, circumstances, occurrences, events or effects related to clauses (i), (ii), (iv), (v), (vi) or (vii) above disproportionately and adversely affect the business, assets, financial condition or results of operations of the Group Companies, taken as a whole, relative to similarly situated companies in the industries in which the Group Companies conduct their respective operations, then such impact may be taken into account in determining whether a Company Material Adverse Effect has occurred.
Company Stockholder shall mean the sole holder of the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time.
Company Transaction Costs shall mean, in each case, to the extent unpaid as of the Closing: (a) all fees, costs and expenses to be borne by any Group Company and incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Transaction Agreements and the consummation of the Transactions, including any Company Transaction Costs which are triggered by or become payable as a result of the Closing; (b) all bonuses, change in control payments, severance payments, retirement payments, retention or similar payments or success fees payable by any Group Company solely in connection with or in anticipation of the consummation of the Transactions or any such payments or fees payable in response to any prior add-on acquisition solely to the extent such payment or fee is payable upon the consummation of the Transaction, and, in each case, the employer portion of payroll Taxes payable as a result of the foregoing amounts; (c) all Bonus Plan Payments; and (d) all transaction, deal, brokerage, financial advisory or any similar fees payable in connection with or anticipation of the consummation of the Transaction.
Confidentiality Agreement shall mean that certain Mutual Confidentiality and Non-Disclosure Agreement, dated October 13, 2020, by and between and Parent, Golden Gate Private Equity, Inc. and LiveVox, Inc., as amended and joined from time to time.
Contract shall mean any contract, subcontract, agreement, indenture, note, bond, loan or credit agreement, instrument, installment obligation, lease, mortgage, deed of trust, franchise, license, sublicense, commitment, power of attorney, guaranty or other legally binding commitment, arrangement, understanding or obligation, whether written or oral, in each case, as amended and supplemented from time to time and including all schedules, annexes and exhibits thereto.
COVID Action means any commercially reasonable action taken after the date hereof (i) that the Company reasonably determines to be necessary or prudent for the Company or its Subsidiaries to take in connection with (a) events surrounding any pandemic or public health emergency caused by COVID-19, (b) reinitiating operation of all or a portion of the Group Companies respective businesses, (c) mitigating the effects of such events, pandemic or public health emergency on the business of one or more of the Group Companies, or (d) protecting the health and safety of customers, employees, and other business relationships and to ensure compliance with any Legal Requirements and (ii) the Company shall keep Parent reasonably informed as to the actions taken or proposed to be taken and, where reasonably practicable, provide
Sch. A-9
prior notice to the Parent and a reasonable opportunity to review and comment with respect thereto (and where such prior notice has not been provided, provide notice to Parent reasonably promptly thereafter), and consult with the Parent in good faith and consider in good faith any comments by Parent in connection therewith.
Current Registration Rights Agreement shall mean the Registration Rights Agreement, dated as of March 7, 2019, by and among Parent, the Sponsor and the other parties thereto.
Customs & International Trade Authorizations shall mean any and all licenses, license exceptions, notification requirements, registrations and approvals required pursuant to the Customs & International Trade Laws for the lawful export, deemed export, re-export, deemed re-export transfer or import of goods, software, technology, technical data and services.
Customs & International Trade Laws shall mean the applicable import, customs and trade, export and anti-boycott laws of any jurisdiction in which the Company or any of its Subsidiaries is incorporated or does business, including: (i) the laws, regulations, and programs administered or enforced by U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, the U.S. Department of Commerce (International Trade Administration and Bureau of Industry and Security), the U.S. International Trade Commission, the U.S. Department of State (Directorate of Defense Trade Controls) and their predecessor agencies; (ii) the Tariff Act of 1930, as amended; (iii) the Export Administration Act of 1979, as amended; (iv) the Export Control Reform Act of 2018; (v) the Export Administration Regulations, including related restrictions with regard to transactions involving Persons on the U.S. Department of Commerce Denied Persons List, Unverified List or Entity List; (vi) the Arms Export Control Act, as amended; (vii) the International Traffic in Arms Regulations, including related restrictions with regard to transactions involving Persons on the U.S. Department of State Debarred List; (viii) the Foreign Trade Regulations pursuant to 15 C.F.R. Part 30; (ix) the anti-boycott laws and regulations administered by the U.S. Department of Commerce; and (x) the anti-boycott laws and regulations administered by the U.S. Department of the Treasury, and other corollary laws implemented by the United Kingdom and in other applicable jurisdictions.
Employee Benefit Plan shall mean each employee benefit plan (within the meaning of Section 3(3) of ERISA) and each other retirement, supplemental retirement, deferred compensation, employment, bonus, incentive compensation, stock purchase, employee stock ownership, equity-based, phantom-equity, profit-sharing, severance, termination protection, change in control, retention, employee loan, retiree medical or life insurance, educational, employee assistance, fringe benefit and all other employee benefit plan, policy, agreement, program or arrangement, whether or not subject to ERISA, whether formal or informal, oral or written, which any Group Company sponsors or maintains for the benefit of its current or former employees, individuals who provide services and are compensated as individual independent contractors or directors, or with respect to which any Group Company has any direct or indirect present or future liability, in each case other than plans or arrangements required under Applicable Legal Requirements and that do not provide benefits greater than that provided by Applicable Legal Requirements.
Environmental Law shall mean any federal, state, local or foreign law, regulation, order, decree, permit, authorization, opinion, common law or agency requirement relating to: (a) the
Sch. A-10
protection, investigation or restoration of the environment, health and safety (concerning exposure to Hazardous Substances), or natural resources; (b) the handling, use, presence, disposal, release or threatened release into the environment of any Hazardous Substance; or (c) noise (as it relates to occupational safety), odor, wetlands, pollution, contamination or any injury or threat of injury to employees, and shall include, but not be limited to, federal statues known as the Clean Air Act, Clean Water Act, Comprehensive Environmental Response, Compensation and Liability Act, Emergency Planning and Community Right-to-Know Act, Endangered Species Act, Hazardous Materials Transportation Act, Migratory Bird Treaty Act, National Environmental Policy Act, Occupational Safety and Health Act, Oil Pollution Act of 1990, Resource Conservation and Recovery Act, Safe Drinking Water Act, and Toxic Substances Control Act.
ERISA Affiliate shall mean any trade or business (whether or not incorporated) that, together with the Company or any of its subsidiaries, is treated as a single employer under Section 414 of the Code.
Escrow Agent shall mean Goldman Sachs Bank USA, or such other escrow agent as is mutually agreed upon (a) by Parent and (b) the Company (prior to the Closing) or the Stockholder Representative (following the Closing).
Estimated Closing Transaction Costs shall mean the sum of (a) the Estimated Company Transaction Costs and (b) the Estimated Parent Transaction Costs.
Estimated Merger Consideration shall mean an amount equal to: (a) the Base Value; plus (b) the Estimated Company Cash; minus (c) the Estimated Closing Indebtedness Amount; minus (d) the Estimated Closing Transaction Costs (in the case of Estimated Company Transaction Costs, to the extent not paid by the Company prior to the Closing); plus (e) the Estimated Trust Account Interest; minus (f) the Adjustment Escrow Amount; minus (g) the Stockholder Representative Expense Holdback Amount.
Exchange Act shall mean the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Existing Credit Agreement shall mean the Credit Agreement, dated as of November 7, 2016, by and among the Company, certain of its subsidiaries, as guarantors, the lenders party thereto and PNC Bank, National Association as administrative agent, as amended or otherwise modified on or prior to the date hereof and as further amended or otherwise modified following the date hereof in accordance with the terms hereof.
Final Merger Consideration shall mean an amount equal to: (a) the Base Value; plus (b) the Final Company Cash; minus (c) the Final Closing Indebtedness Amount; minus (d) the Final Closing Transaction Costs (in the case of Company Transaction Costs, to the extent not paid by the Company prior to the Closing); plus (e) the Final Trust Account Interest; minus (f) the Adjustment Escrow Amount; minus (g) the Stockholder Representative Expense Holdback Amount.
Final Spreadsheet shall mean the Initial Spreadsheet, updated as of the Closing Date to set forth, as of the Closing Date and immediately prior to the Effective Time, the calculation of the dollar amounts and shares, as applicable, payable to the Company Stockholder based on the amounts set forth in the Company Estimated Adjustment Statement and the Parent Estimated Adjustment Statement.
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FPA Transferee shall mean a Transferee as defined in the Forward Purchase Agreement.
Fraud by any party means actual and intentional fraud with respect to the specific representations and warranties in Article IV or Article V, as the case may be, (a) with the actual knowledge (as opposed to imputed or constructive knowledge, knowledge that could have been obtained after inquiry, or reckless disregard) that the applicable representation and warranty was actually untrue when made, and with the express intention that another party rely thereon to its detriment, (b) the other party did not have actual knowledge (as opposed to imputed or constructive knowledge, knowledge that could have been obtained after inquiry, or reckless disregard) that such representation or warranty was untrue as of the execution of this Agreement, (c) the other party acted or did not act in justifiable reliance on the representation or warranty made and (d) as a result of such untrue representation or warranty, the other party suffered damages.
Fundamental Representations shall mean: (a) in the case of the Company, the representations and warranties contained in: Section 4.1 (Organization and Qualification); Section 4.3 (Capitalization of the Company); Section 4.4 (Authority Relative to this Agreement); and Section 4.16 (Brokers; Third-Party Expenses); and (b) in the case of Parent, the representations and warranties contained in Section 5.1(a) (Organization and Qualification); Section 5.2 (Parent Subsidiaries); Section 5.3 (Capitalization); Section 5.4 (Authority Relative to this Agreement); Section 5.10 (Business Activities); and Section 5.24 (Brokers).
Governing Documents shall mean the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the Governing Documents of a Delaware corporation are its certificate of incorporation and bylaws.
Government Shutdown means any shutdown of or material interruption to, prior to the Outside Date, the Governmental Entities providing, approving or reviewing the applicable consents, authorizations, orders and approvals of (or filings or registrations with) relating to the Transactions, in each case that relates to the ongoing COVID-19 pandemic.
Governmental Entity shall mean: (a) any federal, provincial, state, local, municipal, national or international court, governmental commission, government or governmental authority, department, regulatory or administrative agency, board, bureau, agency or instrumentality, tribunal, arbitrator or arbitral body (public or private), or similar body; (b) any self-regulatory organization; or (c) any political subdivision of any of the foregoing.
Group Companies shall mean the Company and all of its direct and indirect Subsidiaries.
Hazardous Substance shall mean any substance, waste or material defined or listed as a pollutant, hazardous, or a contaminant under any Applicable Legal Requirements pertaining to the environment or otherwise regulated as toxic, radioactive, ignitable, corrosive, reactive or hazardous under any Applicable Legal Requirements pertaining to the environment, including petroleum, its derivatives, by-products and other hydrocarbons.
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Indebtedness shall mean any of the following: (a) any indebtedness for borrowed money, including the Borrowed Indebtedness and any premiums; fees and expenses related to the paydown of any Borrowed Indebtedness; (b) any obligations evidenced by bonds, debentures, notes or other similar instruments; (c) any obligations to pay the deferred purchase price or holdbacks of property, stock or services (except for any deferred purchase price up to a maximum of $10,000,000 in connection with any acquisitions approved by Parent); (d) any obligations as lessee under capitalized leases; (e) any obligations, contingent or otherwise, under acceptance, letters of credit or similar facilities to the extent drawn; (f) obligations under derivative or hedging financial instruments, including interest rate or currency swaps; (g) any guaranty of any of the foregoing; (h) any accrued interest, fees and charges in respect of any of the foregoing; and (i) any prepayment premiums and penalties actually due and payable, and any other fees, expenses, indemnities and other amounts actually payable as a result of the prepayment or discharge of any of the foregoing.
Initial Spreadsheet shall mean a spreadsheet which shall set forth the consideration payable to Company Stockholder including the percentage of the Closing Cash Payment Amount, the Closing Number of Securities and the Earn Out Shares to be allocated to each beneficial owner of the Company Stockholder, along with an illustrative sample calculation of the dollar amount and shares, as applicable, to be allocated to each such Person using the Companys good faith estimate of the Estimated Merger Consideration as of the date hereof.
Intellectual Property shall mean all rights, title and interest in or relating to intellectual property, whether protected, created or arising under the laws of the United States or any other jurisdiction, including: (a) all patents and patent applications, including provisional patent applications and similar filings and any and all substitutions, divisions, continuations, continuations-in-part, divisions, reissues, renewals, extensions, reexaminations, patents of addition, supplementary protection certificates, utility models, inventors certificates, or the like and any foreign equivalents of the foregoing (including certificates of invention and any applications therefor) (collectively, Patents); (b) all domestic and foreign copyrights, copyright registrations, copyright applications, including any of the foregoing that protect original works of authorship fixed in any tangible medium of expression, including literary works (including all forms and types of Software, including all source code, object code, firmware, development tools, files, records and data, and all documentation related to any of the foregoing), pictorial and graphic works (collectively, Copyrights); (c) all trademarks, service marks, trade names, business marks, service names, brand names, trade dress rights, logos, corporate names, trade styles, and other source or business identifiers and general intangibles of a like nature, together with the goodwill associated with any of the foregoing, along with all applications, registrations, renewals and extensions thereof (collectively, Trademarks); (d) all Internet domain names and social media accounts; (e) trade secrets, technology, discoveries and improvements, know-how, proprietary rights, formulae, confidential and proprietary information, technical information, techniques, inventions (including conceptions and/or reductions to practice), designs, drawings, procedures, processes, models, formulations, manuals and systems, whether or not patentable or copyrightable (collectively Trade Secrets); and (f) moral rights, publicity rights and all other intellectual property rights, proprietary rights, or confidential information and materials.
Intervening Event shall mean a material event or circumstance that was not known or reasonably foreseeable to the Parent Board prior to the execution of this Agreement (or if known, the consequences of which were not known or reasonably foreseeable), which event or
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circumstance, or any material consequence thereof, becomes known to the Parent Board prior to the approval of the Transactions by the stockholders of Parent that does not relate to (A) an Acquisition Proposal, (B) the Company or its Subsidiaries (including any Parent Material Adverse Effect as it relates to the Company or its Subsidiaries), (C) any actions taken pursuant to this Agreement or (D) any changes in the price of Parent Shares.
Knowledge shall mean the actual knowledge or awareness as to a specified fact or event, following reasonable inquiry, of: (a) with respect to the Company, the individuals listed on Schedule 1.2 of the Company Disclosure Letter; and (b) with respect to Parent, First Merger Sub or Second Merger Sub, the individuals listed on Schedule 1.2 of the Parent Disclosure Letter.
Legal Proceeding shall mean any action, suit, hearing, claim, charge, audit, lawsuit, litigation, investigation (formal or informal), inquiry, arbitration or proceeding (in each case, whether civil, criminal or administrative or at law or in equity) whether or not by or before a Governmental Entity.
Legal Requirements shall mean any federal, state, local, municipal, foreign or other law, statute, constitution, treaty, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling, injunction, judgment, order, assessment, writ or other legal requirement, administrative policy or guidance, or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.
Licensed Intellectual Property shall mean any Intellectual Property licensed to any of the Group Companies.
Lien shall mean any mortgage, pledge, security interest, encumbrance, lien, license, grant, restriction or charge of any kind (including, any conditional sale or other title retention agreement or lease in the nature thereof, any agreement to give any security interest and any restriction relating to use, quiet enjoyment, voting, transfer, receipt of income or exercise of any other attribute of ownership).
Losses shall mean any and all deficiencies, judgments, settlements, losses, damages, interest, fines, penalties, Taxes, costs and expenses (including reasonable legal, accounting and other costs and expenses of professionals incurred in connection with investigating, defending, settling or satisfying any and all demands, claims, actions, causes of action, suits, proceedings, assessments, judgments or appeals, and in seeking indemnification, compensation or reimbursement therefor).
Open Source Code means any Software that is distributed under open source or free software terms, such as the GPL, LGPL, Mozilla License, Apache License, Common Public License, BSD license or similar terms and including any Software distributed with any license term or condition (an Open Source License) that: (a) requires or conditions, the use or distribution of such Software on the disclosure, licensing, or distribution of any source code for any portion of such Software or any derivative work of such Software; or (b) otherwise imposes any limitation, restriction, or condition on the right or ability of the licensee of such Software to use or distribute such Software or any derivative work of such Software.
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Order shall mean any award, injunction, judgment, regulatory or supervisory mandate, order, writ, decree or ruling entered, issued, made, or rendered by any Governmental Entity that possesses competent jurisdiction.
Ordinary Course of Business shall describe any action taken by a Person if such action is (a) consistent with such Persons past practices and is taken in the ordinary course of such Persons normal day-to-day operations or (b) in the case of an action taken by the Company or any of its Subsidiaries, a COVID Action.
Owned Intellectual Property shall mean all Intellectual Property owned or purported to be owned by any of the Group Companies.
Parent Cash shall mean an amount equal to (a) the aggregate amount of cash contained in the Trust Account immediately prior to the Closing (including the Trust Account Interest); plus (b) all cash and cash equivalents held by Parent outside of the Trust Account immediately prior to the Closing; minus (c) any payments to be made in connection with the Parent Stockholder Redemption; minus (d) the Adjustment Escrow Amount; minus (e) the Stockholder Representative Expense Holdback Amount; plus (f) the Aggregate Forward Purchase Investment Amount; plus (g) the PIPE Investment Amount.
Parent Common Stock shall mean, collectively, the Parent Class A Stock.
Parent Material Adverse Effect shall mean any state of facts, development, change, circumstance, occurrence, event or effect that, individually or in the aggregate: (a) has had, or would reasonably be expected to have, a materially adverse effect on the business, assets, financial condition or results of operations of Parent, First Merger Sub and Second Merger Sub, taken as a whole; or (b) does, or would reasonably be expected to, individually or in the aggregate, prevent or materially delay or impair the ability of Parent, First Merger Sub or Second Merger Sub to perform their respective obligations under this Agreement or to consummate the Transactions or the Forward Purchase Transaction.
Parent Organizational Documents shall mean the Amended and Restated Certificate of Incorporation of Parent, dated as of March 7, 2019 (the Parent Charter), the Bylaws of Parent currently in effect (the Parent Bylaws) and any other similar organization documents of Parent, as each may be amended, modified or supplemented.
Parent Transaction Costs shall mean: (a) all fees, costs and expenses of Parent incurred prior to and through the Closing Date in connection with the negotiation, preparation and execution of this Agreement, the other Transaction Agreements and the consummation of the Transactions, whether paid or unpaid prior to the Closing and (b) any Indebtedness of Parent or its Subsidiaries owed to its Affiliates or stockholders.
Parent Units shall mean equity securities of Parent each consisting of one share of Parent Class A Stock and one-third of one Public Warrant.
Permitted Lien shall mean (a) Liens for current period Taxes not yet delinquent or for Taxes that are being contested in good faith by appropriate proceedings and in each case that are sufficiently reserved for on the Financial Statements in accordance with U.S. GAAP; (b) statutory
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and contractual Liens of landlords with respect to leased real property; (c) Liens of carriers, warehousemen, mechanics, materialmen and repairmen incurred in the Ordinary Course of Business and: (i) not yet delinquent; or (ii) that are being contested in good faith through appropriate proceedings; (d) in the case of leased real property, zoning, building, or other restrictions, variances, covenants, rights of way, encumbrances, easements and other irregularities in title, to the extent they do not, individually or in the aggregate, interfere in any material respect with the present use of or occupancy of the affected parcel by any of the Group Companies; (e) Liens securing the Indebtedness of any of the Group Companies; (f) purchase money Liens and Liens securing rental payments in connection with capital lease obligations of any of the Group Companies; (g) non-exclusive licenses and covenants not to sue with respect to Intellectual Property granted in the Ordinary Course of Business and (h) all exceptions, restrictions, easements, imperfections of title, charges, rights-of-way and other Liens of record that do not materially interfere with the present use of the assets of the Group Companies and the rights under the Company Real Property Leases, taken as a whole and do not result in a material liability to the Group Companies.
Person shall mean any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or Governmental Entity.
Personal Data shall mean any information defined as personal data, personally identifiable information, personal information or similar term under any Privacy Laws.
PIPE Investor shall mean an investor party to a Subscription Agreement.
Privacy Laws shall mean any and all Applicable Legal Requirements (including of any applicable foreign jurisdiction) relating to the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (both technical and physical), disposal, destruction, disclosure or transfer (including cross-border) of Personal Data, including the Federal Trade Commission Act, General Data Protection Regulation, Regulation 2016/679/EU on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR), California Consumer Privacy Act, California Civil Code Title 1.81.5, (CCPA), and any and all Applicable Legal Requirements relating to breach notification in connection with Personal Data, as well as the applicable version of the Payment Card Industry Data Security Standard, as adopted by the PCI Security Standards Council, LLC.
Related Parties shall mean, with respect to a Person, such Persons former, current and future direct or indirect equityholders, controlling Persons, shareholders, optionholders, members, general or limited partners, Affiliates, Representatives, and each of their respective successors and assigns.
Restricted Cash shall mean any: (i) cash deposited as collateral; (ii) cash subject to dividend blocks; (iii) cash held in trust or in escrow; (iv) deposits for rent; and (v) cash held for the purposes of meeting regulatory requirements (including cash-backed bonds or guarantees).
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Retained Cash shall mean (a) $100,000,000, minus (b) the amount by which Estimated Closing Transaction Costs (excluding for purposes of this calculation clause (c) of the definition of Company Transaction Costs) exceeds $30,000,000.
Sanctioned Jurisdiction shall mean a country, region or territory which is itself the subject or target of comprehensive Sanctions broadly prohibiting and restricting dealings in and with such country, region or territory (at the time of this Agreement, the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria).
Sanctioned Person shall mean (a) a person or entity that has been designated to the U.S. Department of the Treasurys list of Specially Designated Nationals and Blocked Persons, or any equivalent list of sanctioned persons issued by the United Kingdom, the United Nations, the European Union or European Union member states, (b) any Person operating, organized or resident in a Sanctioned Jurisdiction or (c) any Person owned or controlled by any such Person or Persons described in the foregoing clause (a) or (b).
Sanctions shall mean all applicable economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the United States, including regulations promulgated by the U.S. Department of the Treasurys Office of Foreign Assets Control, U.S. Department of Commerce or the U.S. Department of State; (b) the United Kingdom, including Her Majestys Treasury; (c) the United Nations Security Council or (d) the European Union or any European Union member state.
SEC shall mean the United States Securities and Exchange Commission.
Securities Act shall mean the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
Software means computer software (including web sites, HTML code, and firmware and other software embedded in hardware devices, whether in source code or object code form), application programming interfaces (APIs), software development kits (SDKs), software tools, and user interfaces.
Stockholder Representative Expense Holdback Amount means $100,000.
Subsidiary shall mean, with respect to any Person, any partnership, limited liability company, corporation or other business entity of which: (a) if a corporation, a majority of the total voting power of shares of capital stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; (b) if a partnership, limited liability company or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof; or (c) in any case, such Person controls the management thereof.
Superior Proposal means any unsolicited bona fide binding written Acquisition Proposal that the Parent Board determines in good faith (after consultation with outside counsel and its financial advisor), taking into account all legal, financial, regulatory and other aspects of the
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proposal and the Person making the proposal, is (a) more favorable to the stockholders of Parent from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by the Company in response to such proposal) and (b) reasonably likely of being completed on the terms proposed on a timely basis; provided, that, for purposes of this definition of Superior Proposal, references in the term Acquisition Proposal to 20% shall be deemed to be references to 50%.
Tax or Taxes shall mean any and all federal, state, local and foreign taxes, including gross receipts, income, profits, license, sales, use, estimated, occupation, value added, ad valorem, transfer, franchise, withholding, payroll, recapture, net worth, employment, escheat and unclaimed property obligations, excise and property taxes, assessments, stamp, environmental, registration, governmental charges, duties, levies and other similar charges, in each case, imposed by a Governmental Entity, (whether disputed or not) together with all interest, penalties and additions imposed by a Governmental Entity with respect to any such amounts.
Tax Return shall mean any return, declaration, report, claim for refund, or information return or statement relating to Taxes that is filed or required to be filed with a Governmental Entity, including any schedule or attachment thereto and any amendment thereof.
Transaction Agreements shall mean this Agreement, the A&R Registration Rights Agreement, the Confidentiality Agreement, the Parent A&R Charter, the Parent A&R Bylaws, the Support Agreement, the Sponsor Support Agreement, the Stockholders Agreement, the Escrow Agreement, the Earn Out Escrow Agreement, the Share Escrow Agreement and all the agreements documents, instruments and certificates entered into in connection herewith or therewith and any and all exhibits and schedules thereto.
Transactions shall mean the transactions contemplated pursuant to this Agreement, including the Mergers, and the Subscription Agreements.
Treasury Regulations shall mean the regulations promulgated by the U.S. Department of the Treasury pursuant to and in respect of provisions of the Code.
Trust Account Interest shall mean the amount of interest accrued on the amount on deposit in the Trust Account since the initial public offering of Parent contained in the Trust Account, after giving effect to the Parent Stockholder Redemption and net of any cash Taxes actually paid or required to be paid by Parent immediately prior to the Closing in respect of such interest income.
Volume Weighted Average Share Price shall mean the volume weighted average share price of the Parent Class A Stock on The Nasdaq Stock Market LLC or any other national securities exchange on which the Parent Class A Stock is listed for trading as displayed on Bloomberg (or any successor service) in respect of the period from 9:30 a.m. to 4:00 p.m. (or such hours of the trading day as the relevant market shall be open in the event of an abbreviated trading day), New York City time, on such trading day.
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Exhibit 10.1
EXECUTION VERSION
FORWARD PURCHASE AGREEMENT
This Forward Purchase Agreement (this Agreement) is entered into as of January 13, 2021, between Crescent Acquisition Corp, a Delaware corporation (the Company), and Crescent Capital Group Holdings LP, a Delaware limited partnership (the Purchaser).
Recitals
WHEREAS, the Company was formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses (a Business Combination);
WHEREAS, on January 13, 2021, the Company entered into that certain Agreement and Plan of Merger (the Merger Agreement), by and among the Company, Function Acquisition I Corp, a Delaware corporation and a direct, wholly owned subsidiary of the Company, Function Acquisition II LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of the Company, LiveVox Holdings, Inc., a Delaware corporation (LiveVox), and GGC Services Holdco, Inc., a Delaware corporation, solely in its capacity as representative, agent and attorney-in-fact of the Company Stockholder (as defined in the Merger Agreement) thereunder (in such capacity, the Stockholder Representative), which provides for, among other things, a Business Combination involving the Company and LiveVox;
WHEREAS, the Company, pursuant to a prospectus dated March 17, 2019, sold in its initial public offering (IPO) 25,000,000 units (the Public Units), at a price of $10.00 per Public Unit, each Public Unit comprised of one share of the Companys Class A common stock, par value $0.0001 per share (the Class A Shares, and the Class A Shares included in the Public Units, the Public Shares), and one-half of one redeemable warrant, where each whole redeemable warrant is exercisable to purchase one Class A Share at an exercise price of $11.50 per share (the Warrants, and the Warrants included in the Public Units, the Public Warrants);
WHEREAS, in connection with the IPO, the Companys sponsor, CFI Sponsor LLC, purchased an aggregate of 7,000,000 warrants at a price of $1.00 per warrant in a private placement that closed simultaneously with the closing of the IPO (such warrants, the Private Placement Warrants); and
WHEREAS, the parties hereto wish to enter into this agreement, pursuant to which immediately prior to the closing of the Business Combination (the Business Combination Closing), among other things, the Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, on a private placement basis, certain securities of the Company as set forth herein subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, representations, warranties and the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Agreement
1. Sale and Purchase.
(a) Forward Purchase Securities.
(i) The Company shall issue and sell to the Purchaser, and the Purchaser shall purchase from the Company, 2,500,000 Class A Shares (the Forward Purchase Shares), plus 833,333 warrants (the Forward Purchase Warrants and, together with the Forward Purchase Shares, the Forward Purchase Securities), in each case determined as set forth in clause 1(a)(ii), for an aggregate purchase price of $10.00 per unit (the Forward Purchase Price) of one Forward Purchase Share and one-third of one Forward Purchase Warrant (each, a Forward Purchase Unit), or $25,000,000 in the aggregate
Notwithstanding anything to the contrary contained herein, to the extent the Company obtains alternative financing to fund the Business Combination in substitution or replacement of the commitment(s) to purchase Forward Purchase Units hereunder (Alternative Financing), the aggregate commitments hereunder shall be reduced by the amount of the Alternative Financing solely to the extent, and on a dollar-for-dollar basis, by the amount of such Alternative Financing actually funding at the Business Combination Closing.
(ii) The Forward Purchase Units to be issued and sold by the Company and purchased by the Purchaser hereunder will, if the conditions set forth herein are satisfied, result in gross proceeds to the Company in an aggregate amount equal to the amount of funds necessary for the Company to consummate the initial Business Combination and pay related fees and expenses, less amounts available to the Company from the Trust Account (after payment of the deferred underwriting discount and after giving effect to any redemptions of Public Shares), plus any additional amounts that may be retained by the post-Business Combination company for working capital or other purposes.
(iii) Each Forward Purchase Warrant will have the same terms as each Private Placement Warrant, and will be subject to the terms and conditions of the Warrant Agreement entered into between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, in connection with the IPO on March 7, 2019 (the Warrant Agreement). Each Forward Purchase Warrant will entitle the holder thereof to purchase one Class A Share at a price of $11.50 per share, subject to adjustment as described in the Warrant Agreement, and only whole Forward Purchase Warrants will be exercisable. The Forward Purchase Warrants will become exercisable 30 days after the Business Combination Closing, and will expire five years after the Business Combination Closing or earlier upon the liquidation of the Company, as described in the Warrant Agreement. The Forward Purchase Warrants will be non-redeemable and exercisable on a cashless basis so long as they are held by the Purchaser or its Transferees (as defined below). If the Forward Purchase Warrants are held by Persons (as defined below) other than the Purchaser or its Transferees, the Forward Purchase Warrants will have the same terms as the Public Warrants, as set forth in the Warrant Agreement. Each Forward Purchase Share will have the same terms as each Public Share, except as provided herein.
(iv) The Company shall require the Purchaser to purchase the Forward Purchase Securities by delivering notice to the Purchaser, at least five (5) Business Days before the Business Combination Closing, specifying the number of Forward Purchase Shares and Forward Purchase Warrants the Purchaser is required to purchase, the date of the Business Combination Closing, the aggregate Forward Purchase Price and instructions for wiring the Forward Purchase Price. The
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closing of the sale of Forward Purchase Securities (the Forward Closing) shall be held on the same date and immediately prior to the Business Combination Closing (such date being referred to as the Forward Closing Date). At least one (1) Business Day prior to the Forward Closing Date, the Purchaser shall deliver to the Company, to be held in escrow until the Forward Closing, the Forward Purchase Price for the Forward Purchase Securities by wire transfer of U.S. dollars in immediately available funds to the account specified by the Company in such notice. Immediately prior to the Forward Closing on the Forward Closing Date, (A) the Forward Purchase Price shall be released from escrow automatically and without further action by the Company or the Purchaser, and (B) upon such release, the Company shall issue the Forward Purchase Securities to the Purchaser in book-entry form, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws or this Agreement), registered in the name of the Purchaser (or its nominee in accordance with its delivery instructions), or to a custodian designated by the Purchaser, as applicable. In the event the Business Combination Closing does not occur on the date scheduled for closing, the Forward Closing shall not occur and the Company shall promptly (but not later than one (1) Business Day thereafter) return the Forward Purchase Price to the Purchaser. For purposes of this Agreement, Business Day means any day, other than a Saturday or a Sunday, that is neither a legal holiday nor a day on which banking institutions are generally authorized or required by law or regulation to close in the City of New York, New York.
(b) Legends. Each book entry for the Forward Purchase Securities shall contain a notation, and each certificate (if any) evidencing the Forward Purchase Securities shall be stamped or otherwise imprinted with a legend, in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE TRANSFERRED IN VIOLATION OF SUCH ACT AND LAWS. THE SALE, PLEDGE, HYPOTHECATION, OR TRANSFER OF THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN FORWARD PURCHASE AGREEMENT BY AND AMONG THE HOLDER AND THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.
2. Representations and Warranties of the Purchaser. The Purchaser represents and warrants to the Company as follows, as of the date hereof and as of the Forward Closing Date:
(a) Organization and Power. The Purchaser is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation and has all requisite power and authority to carry on its business as presently conducted and as proposed to be conducted.
(b) Authorization. The Purchaser has full power and authority to enter into this Agreement. To the extent applicable, this Agreement has been approved by the applicable governing entity of the Purchaser and the Business Combination contemplated by the Merger Agreement is contemplated with a company engaged in a business that is within the investment objectives, guidelines and restrictions of the Purchaser and not in violation of any conflict of interest provisions applicable to the Purchaser. This Agreement, when executed and delivered by the Purchaser, will constitute the valid and legally binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency,
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reorganization, moratorium, fraudulent conveyance and any other laws of general application affecting enforcement of creditors rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies, or (iii) to the extent the indemnification provisions contained in the Registration Rights (as defined below) may be limited by applicable federal or state securities laws.
(c) Governmental Consents and Filings. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Purchaser in connection with the consummation of the transactions contemplated by this Agreement.
(d) Compliance with Other Instruments. The execution, delivery and performance by the Purchaser of this Agreement and the consummation by the Purchaser of the transactions contemplated by this Agreement will not result in any violation or default (i) of any provisions of its organizational documents, (ii) of any instrument, judgment, order, writ or decree to which it is a party or by which it is bound, (iii) under any note, indenture or mortgage to which it is a party or by which it is bound, (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound or (v) of any provision of federal or state statute, rule or regulation applicable to the Purchaser, in each case (other than clause (i)), which would have a material adverse effect on the Purchaser or its ability to consummate the transactions contemplated by this Agreement.
(e) Purchase Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchasers representation to the Company, which by the Purchasers execution of this Agreement, the Purchaser hereby confirms, that the Forward Purchase Securities to be acquired by the Purchaser will be acquired for investment for the Purchasers own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of any state or federal securities laws, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of law. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Forward Purchase Securities. For purposes of this Agreement, Person means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or any government or any department or agency thereof.
(f) Disclosure of Information. The Purchaser has had an opportunity to discuss the Companys business, management, financial affairs and the terms and conditions of the offering of the Forward Purchase Securities, as well as the terms of the Companys proposed Business Combination, with the Companys management.
(g) Restricted Securities. The Purchaser understands that the offer and sale of the Forward Purchase Securities to the Purchaser has not been, and will not be, registered under the Securities Act of 1933, as amended (the Securities Act), by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchasers representations as expressed herein. The Purchaser understands that the Forward Purchase Securities are restricted securities under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Forward Purchase Securities indefinitely unless they are registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company has no obligation to
4
register or qualify the Forward Purchase Securities, or any Class A Shares for which they may be exercised, for resale, except as provided herein (the Registration Rights). The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Forward Purchase Securities, and on requirements relating to the Company which are outside of the Purchasers control, and which the Company is under no obligation and may not be able to satisfy. The Purchaser acknowledges that the Company filed a registration statement on Form S-1 (File No. 333-229718) in connection with its IPO. The Purchaser understands that the offering of the Forward Purchase Securities was not and was not intended to be part of the IPO, and that the Purchaser will not be able to rely on the protection of Section 11 of the Securities Act.
(h) High Degree of Risk. The Purchaser understands that its agreement to purchase the Forward Purchase Securities involves a high degree of risk which could cause the Purchaser to lose all or part of its investment.
(i) Accredited Investor. The Purchaser is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
(j) No General Solicitation. Neither the Purchaser, nor any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including, through a broker or finder (i) engaged in any general solicitation, or (ii) published any advertisement in connection with the offer and sale of the Forward Purchase Securities.
(k) Residence. The Purchasers principal place of business is the office or offices located at the address of the Purchaser set forth on the signature page hereof.
(l) Adequacy of Financing. At the time of the Forward Closing, the Purchaser will have available to it sufficient funds to satisfy its obligations under this Agreement.
(m) OFAC/Patriot Act. The Purchaser is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury Departments Office of Foreign Assets Control (OFAC) or in any Executive Order issued by the President of the United States and administered by OFAC (OFAC List), or a person or entity prohibited by any OFAC sanctions program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank. The Purchaser agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided that the Purchaser is permitted to do so under applicable law. If the Purchaser is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001 (the PATRIOT Act), and its implementing regulations (collectively, the BSA/PATRIOT Act), the Purchaser maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required by law, it maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions programs, including the OFAC List. To the extent required by law, it maintains policies and procedures reasonably designed to ensure that the funds held by the Purchaser and used to purchase the Forward Purchase Securities were legally derived.
(n) No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 2 and in any certificate or agreement delivered pursuant hereto, none of the Purchaser nor any person acting on behalf of the Purchaser
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nor any of the Purchasers affiliates (the Purchaser Parties) has made, makes or shall be deemed to make any other express or implied representation or warranty with respect to the Purchaser and this offering, and the Purchaser Parties disclaim any such representation or warranty. Except for the specific representations and warranties expressly made by the Company in Section 3 of this Agreement and in any certificate or agreement delivered pursuant hereto, the Purchaser Parties specifically disclaim that they are relying upon any other representations or warranties that may have been made by the Company, any person on behalf of the Company or any of the Companys affiliates (collectively, the Company Parties).
3. Representations and Warranties of the Company. The Company represents and warrants to the Purchaser as follows on the date hereof and as of the Forward Closing Date:
(a) Organization and Corporate Power. The Company is a corporation duly incorporated and validly existing and in good standing as a corporation under the laws of the State of Delaware and has all requisite corporate power and authority to carry on its business as presently conducted and as proposed to be conducted. The Company has no subsidiaries.
(b) Capitalization. On the date hereof, the authorized share capital of the Company consists of:
(i) 500,000,000 Class A Shares, 25,000,000 of which are issued and outstanding.
(ii) 25,000,000 Class F common stock, par value $0.0001 per share (the Class F Shares), 6,250,000 of which are issued and outstanding as of the date hereof. All of the outstanding Class F Shares have been duly authorized, are fully paid and non-assessable and were issued in compliance with all applicable federal and state securities laws.
(iii) 5,000,000 preferred shares, none of which are issued and outstanding.
(c) Authorization. All corporate action required to be taken by the Companys Board of Directors and stockholders in order to authorize the Company to enter into this Agreement, and to issue the Forward Purchase Securities at the Forward Closing, and the securities issuable upon exercise of the Forward Purchase Warrants, has been taken or will be taken prior to the Forward Closing. All action on the part of the stockholders, directors and officers of the Company necessary for the execution and delivery of this Agreement, the performance of all obligations of the Company under this Agreement to be performed as of the Forward Closing, and the issuance and delivery of the Forward Purchase Securities and the securities issuable upon exercise of the Forward Purchase Warrants has been taken or will be taken prior to the Forward Closing. This Agreement, when executed and delivered by the Company, shall constitute the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies, or (iii) to the extent the indemnification provisions contained in the Registration Rights may be limited by applicable federal or state securities laws.
(d) Valid Issuance of Securities. The Forward Purchase Securities, when issued, sold and delivered in accordance with the terms and for the consideration set forth in this Agreement, and the securities issuable upon exercise of the Forward Purchase Warrants, when issued in accordance with the terms of the Forward Purchase Warrants and this Agreement, will be validly issued, fully paid and non-assessable, as applicable, and free of all preemptive or similar rights, taxes, liens, encumbrances and charges with respect to the issue thereof and restrictions on transfer other than
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restrictions on transfer specified under this Agreement, applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser. Assuming the accuracy of the representations of the Purchaser in this Agreement and subject to the filings described in Section 3(e) below, the Forward Purchase Securities will be issued in compliance with all applicable federal and state securities laws.
(e) Governmental Consents and Filings. Assuming the accuracy of the representations made by the Purchaser in this Agreement, no consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of the Company in connection with the consummation of the transactions contemplated by this Agreement, except for filings pursuant to applicable state securities laws, if any, and pursuant to the Registration Rights.
(f) Compliance with Other Instruments. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement will not result in any violation or default (i) of any provisions of the Companys certificate of incorporation, as it may be amended from time to time (the Charter), bylaws or other governing documents of the Company, (ii) of any instrument, judgment, order, writ or decree to which the Company is a party or by which it is bound, (iii) under any note, indenture or mortgage to which the Company is a party or by which it is bound, (iv) under any lease, agreement, contract or purchase order to which the Company is a party or by which it is bound or (v) of any provision of federal or state statute, rule or regulation applicable to the Company, in each case (other than clause (i)) which would have a material adverse effect on the Company or its ability to consummate the transactions contemplated by this Agreement.
(g) No General Solicitation. Neither the Company, nor any of its officers, directors, employees, agents or stockholders has either directly or indirectly, including, through a broker or finder (i) engaged in any general solicitation, or (ii) published any advertisement in connection with the offer and sale of the Forward Purchase Securities.
(h) No Other Representations and Warranties; Non-Reliance. Except for the specific representations and warranties contained in this Section 3 and in any certificate or agreement delivered pursuant hereto, none of the Company Parties has made, makes or shall be deemed to make any other express or implied representation or warranty with respect to the Company, this offering, the IPO or a potential Business Combination, and the Company Parties disclaim any such representation or warranty. Except for the specific representations and warranties expressly made by the Purchaser in Section 2 of this Agreement and in any certificate or agreement delivered pursuant hereto, the Company Parties specifically disclaim that they are relying upon any other representations or warranties that may have been made by the Purchaser Parties.
4. |
Registration Rights; Transfer |
(a) |
Registration Rights. |
(i) The Company agrees that it will use its commercially reasonable efforts to file with the Securities and Exchange Commission (the SEC) (at the Companys sole cost and expense), within thirty (30) calendar days after the Business Combination Closing, a registration statement (the Forward Registration Statement) registering the resale of the Forward Purchase Securities and the Class A Shares underlying the Forward Purchase Warrants (collectively, the Registrable Securities), and the Company shall use its commercially reasonable efforts to have the Forward Registration Statement declared effective as soon as practicable after the filing thereof; provided,
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however, that the Companys obligations to include the Registrable Securities in the Forward Registration Statement are contingent upon the Purchaser furnishing in writing to the Company such information regarding the Purchaser, the securities of the Company held by the Purchaser and the intended method of disposition of the Registrable Securities as shall be reasonably requested by the Company to effect the registration of the Registrable Securities, and shall execute such documents in connection with such registration as the Company may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Company shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder.
(ii) Notwithstanding anything to the contrary in this Agreement, the Company shall be entitled to delay or postpone the effectiveness of the Forward Registration Statement, and from time to time to require Purchaser not to sell under the Forward Registration Statement or to suspend the effectiveness thereof, if the Company determines that in order for the Forward Registration Statement to not contain a material misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act, or if such filing or use could materially affect a bona fide business or financing transaction of the Company or its subsidiaries or would require additional disclosure by the Company in the Forward Registration Statement of material information that the Company has a bona fide business purpose for keeping confidential (each such circumstance, a Suspension Event); provided, however, that (i) the Company may not delay or suspend the Forward Registration Statement on more than two occasions or for more than sixty (60) consecutive calendar days, or more than one hundred and twenty (120) total calendar days, in each case during any twelve-month period and (ii) the Company shall use commercially reasonable efforts to make the Forward Registration Statement available for sale by the Purchaser of its Registrable Securities as soon as practicable thereafter. Upon receipt of any written notice from the Company of the happening of any Suspension Event during the period that the Forward Registration Statement is effective or if as a result of a Suspension Event the Forward Registration Statement or related prospectus contains any untrue statement of a material fact or omits 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 (in the case of the prospectus) not misleading, Purchaser agrees that it will immediately discontinue offers and sales of the Registrable Securities under the Forward Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until Purchaser receives copies of a supplemental or amended prospectus (which the Company agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Company that it may resume such offers and sales; provided, for the avoidance of doubt, that the Company shall not include any material non-public information in any such written notice. If so directed by the Company, Purchaser will deliver to the Company or, in Purchasers sole discretion destroy, all copies of the prospectus covering the Registrable Securities in Purchasers possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Registrable Securities shall not apply (i) to the extent Purchaser is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.
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(b) |
Indemnification. |
(i) The Company shall indemnify Purchaser (to the extent a seller under the Forward Registration Statement), its officers, directors, partners, members, managers, employees, stockholders, advisers and agents, and each person who controls Purchaser (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the Exchange Act)) to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including without limitation reasonable attorneys fees) and expenses (collectively, Losses), as incurred, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Forward Registration Statement (or incorporated by reference therein), any prospectus included in the Forward Registration Statement 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 to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements or alleged untrue statements or omissions or alleged omissions, are based upon information regarding Purchaser furnished in writing to Company by Purchaser expressly for use therein.(ii) The Purchaser shall, severally and not jointly with any other selling stockholder named in the Forward Registration Statement, indemnify and hold harmless the Issuer, its directors, officers, agents and employees, and each person who controls the Issuer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Forward Registration Statement, any prospectus included in the Forward Registration Statement, 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 to state 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, but only to the extent, that such untrue statements or alleged untrue statements, or omissions, or alleged omissions, are based upon information regarding Purchaser furnished in writing to the Company by Purchaser expressly for use therein provided, however, that the indemnification contained in this Section 4(b)(ii) shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed). In no event shall the liability of Purchaser exceed the net proceeds received by Purchaser upon the sale of the Acquired Shares giving rise to such indemnification obligation. Purchaser shall notify the Issuer promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 4 of which Purchaser is aware.
(iii) If the indemnification provided under this Section 4 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the 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 to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying partys and indemnified partys relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be
9
subject to the limitations set forth in this Section 6 and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 4 from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying partys obligation to make a contribution pursuant to this Section 4(b)(iii) shall be individual, not joint and several, and in no event shall the liability of Purchaser hereunder exceed the net proceeds received by Purchaser upon the sale of the Registrable Securities giving rise to such indemnification obligation.
(c) Transfer. This Agreement and all of the Purchasers rights and obligations hereunder (including the Purchasers obligation to purchase the Forward Purchase Securities) may be transferred or assigned, at any time and from time to time, in whole or in part, to one or more third parties (each such transferee, a Transferee); provided that:
(i) the applicable Transferee shall execute and deliver to the Company a signature page to this Agreement, substantially in the form of Exhibit A hereto (the Transferee Joinder), which shall reflect the number of Forward Purchase Shares and Forward Purchase Warrants to be purchased by such Transferee (the Transferee Securities), and, upon such execution, such Transferee shall have all the same rights and obligations of the Purchaser hereunder with respect to the Transferee Securities, and references herein to the Purchaser shall be deemed to refer to and include any such Transferee with respect to such Transferee and to its Transferee Securities; provided, that any representations, warranties, covenants and agreements of the Purchaser and any such Transferee shall be several and not joint and shall be made as to the Purchaser or any such Transferee, as applicable, as to itself only; and
(ii) upon a Transferees execution and delivery of a Transferee Joinder, the number of Forward Purchase Shares and Forward Purchase Warrants to be purchased by the Purchaser hereunder shall be reduced by the total number of Forward Purchase Shares and Forward Purchase Warrants to be purchased by the applicable Transferee pursuant to the applicable Transferee Joinder, which reduction shall be evidenced by the Purchaser, the Transferee and the Company, as applicable, amending Exhibit B to this Agreement to reflect each transfer and updating the Number of Forward Purchase Shares, Number of Forward Purchase Warrants, and Aggregate Purchase Price for Forward Purchase Securities on the Purchasers signature page hereto to reflect such reduced number of Forward Purchase Securities; provided, that the Purchaser shall not be released from its obligation to purchase such Transferee Securities hereunder unless and until the Transferee satisfies it obligation in full to purchase the number of Forward Purchase Shares and Forward Purchase Warrants set forth in the Transferee Joinder and on the terms and conditions set forth in this Agreement; provided, further, that the Companys and LiveVoxs sole recourse under this Section 4(c)(ii) shall be against Purchaser. For the avoidance of doubt, this Agreement need not be amended and restated in its entirety, but only Exhibit B and the Purchasers signature page hereto need be so amended and updated and executed by each of the Purchaser, the Transferee and the Company upon the occurrence of any such transfer of Transferee Securities.
5. |
Additional Agreements and Acknowledgements of the Purchaser. |
(a) Forward Purchase Share Lock-up; Transfer Restrictions. The Purchaser agrees that it shall not Transfer (as defined below) any Forward Purchase Shares until the earlier of (i) 180 days after the Business Combination Closing or (ii) the date following the Business Combination Closing on which the Company completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the Companys stockholders having the right to exchange their common stock for cash, securities or other property. Notwithstanding the prior
10
sentence, Transfers of the Forward Purchase Shares are permitted (any such transferees, the Permitted Transferees) (A) to the Companys officers or directors, any affiliates or family members of any of the Companys officers or directors, any members of the Purchaser, or any affiliates of the Purchaser; (B) in the case of an individual, by gift to a member of the individuals immediate family, to a trust, the beneficiary of which is a member of individuals immediate family or an affiliate of such person, or to a charitable organization; (C) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (D) in the case of an individual, pursuant to a qualified domestic relations order; (E) by private sales or transfers made in connection with the consummation of a Business Combination at prices no greater than the price at which the securities were originally purchased; (F) in the event of the Companys liquidation prior to the completion of a Business Combination; (G) in the event of the Companys liquidation, merger, capital stock exchange, reorganization or other similar transaction which results in all of the Companys stockholders having the right to exchange their Class A Shares for cash, securities or other property subsequent to the completion of a Business Combination; (H) as a distribution to limited partners, members or stockholders of the Purchaser; (I) to the Purchasers affiliates, to any investment fund or other entity controlled or managed by the Purchaser or any of its affiliates, or to any investment manager or investment advisor of the Purchaser or an affiliate of any such investment manager or investment advisor; (J) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (A) through (I) above; (K) to the Purchaser or any Transferee hereunder; (L) by virtue of the laws of the Purchasers jurisdiction of formation or its organizational documents upon dissolution of the Purchaser; and (M) pursuant to an order of a court or regulatory agency; provided, however, that in the case of clauses (A) through (E) and (H) through (L), these Permitted Transferees must enter into a written agreement agreeing to be bound by these transfer restrictions. For purposes of this Section, Transfer shall mean the (x) sale or assignment of, offer to sell, contract or agreement to sell, hypothecation, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position (within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the SEC promulgated thereunder) with respect to, any of the Forward Purchase Securities (excluding any pledges in the ordinary course of business for bona fide financing purposes or as part of prime brokerage arrangements), (y) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Forward Purchase Securities, whether any such transaction is to be settled by delivery of such Forward Purchase Securities, in cash or otherwise, or (z) public announcement of any intention to effect any transaction specified in clause (x) or (y).
(b) Warrant Lock-up; Transfer Restrictions. The Purchaser agrees that it shall not Transfer any Forward Purchase Warrants (or Class A Shares issued or issuable upon the exercise of any such warrants) until 30 days after the completion of the initial Business Combination, except that Transfers of the Forward Purchase Warrants are permitted to any Permitted Transferee.
(c) Trust Account.
(i) The Purchaser hereby acknowledges that it is aware that the Company has established a trust account for the benefit of the holders of the Public Shares (the Trust Account), in an amount equal to the gross proceeds from the IPO for the benefit of its public stockholders. The Purchaser, for itself and its affiliates, hereby agrees that it has no right, title, interest or claim of any kind in or to any monies held in the Trust Account, or any other asset of the Company as a result of any liquidation of the Company, except for redemption and liquidation rights, if any, the Purchaser may have in respect of any Public Shares held by it.
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(ii) The Purchaser hereby agrees that it shall have no right of set-off or any right, title, interest or claim of any kind (Claim) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future, except for redemption and liquidation rights, if any, the Purchaser may have in respect of any Public Shares held by it. In the event the Purchaser has any Claim against the Company under this Agreement, the Purchaser shall pursue such Claim solely against the Company and its assets outside the Trust Account and not against the property or any monies in the Trust Account, except for redemption and liquidation rights, if any, the Purchaser may have in respect of any Public Shares held by it.
(d) Redemption and Liquidation. The Purchaser hereby waives, with respect to any Forward Purchase Shares held by it, any redemption rights it may have in connection with (i) the consummation of the initial Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination and (ii) any stockholder vote to approve an amendment to the Charter to modify the substance or timing of the Companys obligation to redeem 100% of the Class A Shares sold in the IPO if the Company has not consummated an initial Business Combination within 24 months from the closing of the IPO or in the context of a tender offer made by the Company to purchase Class A Shares, it being understood that the Purchaser shall be entitled to redemption and liquidation rights with respect to any Public Shares held by it.
(e) Voting. The Purchaser hereby agrees that if the Company seeks stockholder approval of a proposed initial Business Combination, then in connection with such proposed Business Combination, the Purchaser shall vote any Class F Shares and Class A Shares owned by it in favor of any proposed Business Combination and all other proposals contemplated in the Merger Agreement.
(f) No Short Sales. The Purchaser hereby agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with it, will engage in any Short Sales with respect to securities of the Company prior to the Business Combination Closing. For purposes of this Section, Short Sales shall include, without limitation, all short sales as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act, and all types of direct and indirect stock pledges (other than pledges in the ordinary course of business as part of prime brokerage arrangements), forward sale contracts, options, puts, calls, swaps and similar arrangements (including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers.
6. Listing. The Company will use commercially reasonable efforts to effect and maintain the listing of the Class A Shares and Public Warrants on The Nasdaq Capital Market (or another national securities exchange).
7. Forward Closing Conditions.
(a) The obligation of the Purchaser to purchase the Forward Purchase Securities at the Forward Closing under this Agreement shall be subject to the fulfillment, at or prior to the Forward Closing of each of the following conditions, any of which, to the extent permitted by applicable laws, may be waived by the Purchaser:
(i) The initial Business Combination shall be approved by a unanimous vote of the Companys Board of Directors;
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(ii) The initial Business Combination shall be consummated substantially concurrently with the purchase of the Forward Purchase Securities;
(iii) The Company shall have delivered to the Purchaser a certificate evidencing the Companys good standing as a Delaware corporation;
(iv) The representations and warranties of the Company set forth in Section 3 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the Forward Closing Date, as applicable, with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date), except where the failure to be so true and correct would not have a material adverse effect on the Company or its ability to consummate the transactions contemplated by this Agreement;
(v) The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Forward Closing; and
(vi) No order, writ, judgment, injunction, decree, determination, or award shall have been entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral body, and no other legal restraint or prohibition shall be in effect, preventing the purchase by the Purchaser of the Forward Purchase Securities.
(b) The obligation of the Company to sell the Forward Purchase Securities at the Forward Closing under this Agreement shall be subject to the fulfillment, at or prior to the Forward Closing of each of the following conditions, any of which, to the extent permitted by applicable laws, may be waived by the Company:
(i) The initial Business Combination shall be consummated substantially concurrently with the purchase of the Forward Purchase Securities;
(ii) The representations and warranties of the Purchaser set forth in Section 2 of this Agreement shall have been true and correct as of the date hereof and shall be true and correct as of the Forward Closing Date, as applicable, with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date), except where the failure to be so true and correct would not have a material adverse effect on the Purchaser or its ability to consummate the transactions contemplated by this Agreement;
(iii) The Purchaser shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Purchaser at or prior to the Forward Closing;
(iv) No order, writ, judgment, injunction, decree, determination, or award shall have been entered by or with any governmental, regulatory, or administrative authority or any court, tribunal, or judicial, or arbitral body, and no other legal restraint or prohibition shall be in effect, preventing the purchase by the Purchaser of the Forward Purchase Securities; and
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8. Termination. This Agreement may be terminated at any time prior to the Forward Closing:
(a) by mutual written consent of the Company and the Purchaser;
(b) automatically
(i) if the Merger Agreement is validly terminated in accordance with its terms; or
(ii) if the Company becomes subject to any voluntary or involuntary petition under the United States federal bankruptcy laws or any state insolvency law, in each case which is not withdrawn within sixty (60) days after being filed, or a receiver, fiscal agent or similar officer is appointed by a court for business or property of the Company, in each case which is not removed, withdrawn or terminated within sixty (60) days after such appointment.
In the event of any termination of this Agreement pursuant to this Section 8, the Forward Purchase Price (and interest thereon, if any), if previously paid, and all Purchasers funds paid in connection herewith shall be promptly returned to the Purchaser, and thereafter this Agreement shall forthwith become null and void and have no effect, without any liability on the part of the Purchaser or the Company and their respective directors, officers, employees, partners, managers, members, or stockholders and all rights and obligations of each party shall cease; provided, however, that nothing contained in this Section 8 shall relieve either party from liabilities or damages arising out of any fraud or willful breach by such party of any of its representations, warranties, covenants or agreements contained in this Agreement.
9. General Provisions.
(a) Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt, or (i) personal delivery to the party to be notified, (ii) when sent, if sent by electronic mail or facsimile (if any) during normal business hours of the recipient, and if not sent during normal business hours, then on the recipients next Business Day, (iii) five (5) Business Days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) Business Day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next Business Day delivery, with written verification of receipt. All communications sent to the Company shall be sent to: 11100 Santa Monica Boulevard, Suite 2000, Los Angeles, California 90025, Attention: General Counsel.
All communications to the Purchaser shall be sent to the Purchasers address as set forth on the signature page hereof, or to such e-mail address, facsimile number (if any) or address as subsequently modified by written notice given in accordance with this Section 9(a).
(b) No Finders Fees. Each party represents that it neither is nor will be obligated for any finders fee or commission in connection with this transaction. The Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finders or brokers fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Purchaser or any of its officers, employees or representatives is responsible. The Company agrees to indemnify and hold harmless the Purchaser from any liability for any commission or compensation in the nature of a finders or brokers fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.
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(c) Survival of Representations and Warranties. All of the representations and warranties contained herein shall survive the Forward Closing.
(d) Entire Agreement. This Agreement, together with any documents, instruments and writings that are delivered pursuant hereto or referenced herein, constitute the entire agreement and understanding of the parties hereto in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.
(e) Successors. All of the terms, agreements, covenants, representations, warranties, and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the parties hereto and their respective successors. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. Notwithstanding the foregoing, each of LiveVox and the Stockholder Representative shall be a third party beneficiary of this Agreement.
(f) Assignments. Except as otherwise specifically provided herein, no party hereto may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party.
(g) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument.
(h) Headings. The section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.
(i) Governing Law. This Agreement, the entire relationship of the parties hereto, and any litigation between the parties (whether grounded in contract, tort, statute, law or equity) shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of New York.
(j) Jurisdiction. The parties (i) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of New York and to the jurisdiction of the United States District Court for the Southern District of New York for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in state courts of New York or the United States District Court for the Southern District of New York, and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
(k) Waiver of Jury Trial. The parties hereto hereby waive any right to a jury trial in connection with any litigation pursuant to this Agreement and the transactions contemplated hereby.
(l) Amendments. This Agreement may not be amended, modified or waived as to any particular provision, except with the prior written consent of the Company and the Purchaser.
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(m) Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof; provided that if any provision of this Agreement, as applied to any party hereto or to any circumstance, is adjudged by a governmental authority, arbitrator, or mediator not to be enforceable in accordance with its terms, the parties hereto agree that the governmental authority, arbitrator, or mediator making such determination will have the power to modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced.
(n) Expenses. Each of the Company and the Purchaser will bear its own costs and expenses incurred in connection with the preparation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby, including all fees and expenses of agents, representatives, financial advisors, legal counsel and accountants. The Company shall be responsible for the fees of its transfer agent; stamp taxes and all The Depository Trust Company fees associated with the issuance of the Forward Purchase Securities and the securities issuable upon exercise of the Forward Purchase Warrants.
(o) Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party hereto because of the authorship of any provision of this Agreement. Any reference to any federal, state, local, or foreign law will be deemed also to refer to law as amended and all rules and regulations promulgated thereunder, unless the context requires otherwise. The words include, includes, and including will be deemed to be followed by without limitation. Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words this Agreement, herein, hereof, hereby, hereunder, and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant.
(p) Waiver. No waiver by any party hereto of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, may be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising because of any prior or subsequent occurrence.
(q) Specific Performance. The Purchaser agrees that irreparable damage may occur in the event any provision of this Agreement was not performed by the Purchaser in accordance with the terms hereof and that the Company shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as of the date first set forth above.
PURCHASER: | ||||
CRESCENT CAPITAL GROUP HOLDINGS LP | ||||
By: CRESCENT CAPITAL GP, LLC, its general partner | ||||
By: |
/s/ Jean-Marc Chapus |
|||
Name: | Jean-Marc Chapus | |||
Title: | Member |
COMPANY: | ||
CRESCENT ACQUISITION CORP | ||
By: |
/s/ Christopher G. Wright |
|
Name: | Christopher G. Wright | |
Title: | President |
[Signature Page to Amended & Restated Forward Purchase Agreement]
EXHIBIT A
FORM OF TRANSFEREE JOINDER
Number of Forward Purchase Shares:
Number of Forward Purchase Warrants:
Aggregate Purchase Price for Forward Purchase Securities: |
$ |
TO BE EXECUTED UPON ANY ASSIGNMENT IN ACCORDANCE WITH THIS AGREEMENT TO NUMBER OF FORWARD PURCHASE SHARES, NUMBER OF FORWARD PURCHASE WARRANTS AND AGGREGATE PURCHASE PRICE FOR FORWARD PURCHASE SECURITIES SET FORTH ABOVE:
Number of Forward Purchase Shares, Number of Forward Purchase Warrants and Aggregate Purchase Price for Forward Purchase Securities as of , 20[ ], accepted and agreed to as of this day of , 20[ ].
TRANSFEREE: | ||
[ ] | ||
By: |
|
|
Name: | ||
Title: | ||
COMPANY: | ||
CRESCENT ACQUISITION CORP | ||
By: |
|
|
Name: | ||
Title: |
EXHIBIT B
SCHEDULE OF TRANSFERS OF FORWARD PURCHASE SECURITIES
The following transfers of a portion of the number of Forward Purchase Shares and Forward Purchase Warrants has been made:
Date of Transfer |
Transferee |
Number
of
|
Number of
|
Purchaser Revised Forward
Purchase Share
|
Purchaser Revised Forward Purchase Warrant Amount |
|||||
TO BE EXECUTED UPON ANY ASSIGNMENT OF FORWARD PURCHASE SECURITIES:
Exhibit B as of , 20[ ], accepted and agreed to as of this day of , 20[ ] by:
TRANSFEREE: | ||
[ ] | ||
By: |
|
|
Name: | ||
Title: | ||
COMPANY: | ||
CRESCENT ACQUISITION CORP | ||
By: |
|
|
Name: | ||
Title: |
Exhibit 10.2
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this Subscription Agreement) is entered into this 13th day of January, 2021, by and among Crescent Acquisition Corp., a Delaware corporation (the Issuer), and the undersigned subscriber (Subscriber).
WHEREAS, concurrently with the execution and delivery of this Subscription Agreement, the Issuer is entering into that certain Agreement and Plan of Merger, dated as of the date of this Subscription Agreement (as may be amended or supplemented from time to time, and including all schedules and exhibits thereto, the Merger Agreement), among the Issuer, LiveVox Inc., a Delaware corporation (LiveVox), and the other parties named therein, pursuant to which, inter alia, a direct, wholly owned subsidiary of the Issuer will be merged with and into LiveVox, with LiveVox surviving as a wholly owned subsidiary of the Issuer, and immediately thereafter LiveVox will be merged with and into another direct, wholly owned subsidiary of LiveVox, with such subsidiary surviving as a wholly owned subsidiary of the Issuer (together, the Mergers), on the terms and subject to the conditions set forth therein (the Mergers, together with the other transactions contemplated by the Merger Agreement, the Transactions);
WHEREAS, in connection with the Transactions, on the terms and subject to the conditions set forth in this Subscription Agreement, Subscriber desires to subscribe for and purchase from the Issuer the number of shares of the Issuers Class A common stock, par value $0.0001 per share (the Class A Shares), set forth on the signature page hereto (the Acquired Shares) for a purchase price of $10.00 per share (the Share Purchase Price), or the aggregate purchase price set forth on the signature page hereto (the Purchase Price), and the Issuer desires to issue and sell to Subscriber on the Closing Date the Acquired Shares in consideration of the payment of the Purchase Price by or on behalf of Subscriber to the Issuer at or prior to the Closing Date; and
WHEREAS, in connection with the Transactions, certain other institutional accredited investors (as such term is defined in Rule 501 under the Securities Act of 1933 (codified at 15 U.S.C. Sec. 77a et seq., and hereinafter the Securities Act)), have entered into subscription agreements with the Issuer substantially similar to this Subscription Agreement, pursuant to which such other investors have agreed to subscribe for and purchase, and the Issuer has agreed to issue and sell to such other investors (the Other Subscribers), on the Closing Date, Class A Shares at the Share Purchase Price (the Other Subscription Agreements).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Subscription. Subject to the terms and conditions hereof, Subscriber hereby agrees to subscribe for and purchase, and the Issuer hereby agrees to issue and sell to Subscriber, upon the payment of the Purchase Price, the Acquired Shares (such subscription and issuance, the Subscription). Notwithstanding anything herein to the contrary, the consummation of the Subscription is contingent upon the subsequent occurrence of the closing of the Transactions.
2. Closing.
a. [Subject to the satisfaction or waiver of the conditions set forth in Section 2(c), the closing of the Subscription contemplated hereby (the Closing) shall occur on the date of (the Closing Date), and immediately prior to, the closing of the Transactions. Not less than five (5) business days prior to the scheduled Closing Date (the Scheduled Closing Date), the Issuer shall provide written notice to Subscriber (the Closing Notice) of the Scheduled Closing Date. Subscriber shall deliver to the Issuer at
least two (2) business days prior to the Closing Date, to be held in escrow until the Closing, the Purchase Price for the Acquired Shares by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in the Closing Notice. On the Closing Date, the Issuer shall deliver to Subscriber the Acquired Shares in book entry form, and the Purchase Price shall be released from escrow automatically and without further action by the Issuer or Subscriber. In the event the Closing does not occur within three (3) business days of the Scheduled Closing Date, the Issuer shall promptly (but not later than two (2) business days thereafter) return the Purchase Price to Subscriber, and any book-entries for the Shares shall be deemed cancelled; provided that, unless this Agreement has been terminated pursuant to Section 6 hereof, such return of funds shall not terminate this Agreement or relieve the Subscriber of its obligation to purchase the Shares at the Closing.]
[In place of the above, the below will be included for mutual funds:
Subject to the satisfaction or waiver of the conditions set forth in Section 2(c), the closing of the Subscription contemplated hereby (the Closing) shall occur on the date of (the Closing Date), and immediately prior to, the closing of the Transactions. Not less than five (5) business days prior to the scheduled Closing Date (the Scheduled Closing Date), the Issuer shall provide written notice to Subscriber (the Closing Notice) of the Scheduled Closing Date. The Subscriber shall deliver Purchase Price on the Scheduled Closing Date by wire transfer of United States dollars in immediately available funds to the account(s) specified by the Issuer in the Closing Notice. On the Closing Date and prior to the release of its Purchase Price by the Subscriber, the Issuer shall issue the Shares against payment of the Purchase Price to the Subscriber and cause the Shares to be registered in book entry form in the name of the Subscriber on the Issuers share register and will provide to the Subscriber evidence of such issuance from the Issuers transfer agent. In the event the Closing does not occur within three (3) business days of the Scheduled Closing Date, the Issuer shall promptly (but not later than two (2) business days thereafter) return the Purchase Price to Subscriber, and any book-entries for the Shares shall be deemed cancelled; provided that, unless this Agreement has been terminated pursuant to Section 6 hereof, such return of funds shall not terminate this Agreement or relieve the Subscriber of its obligation to purchase the Shares at the Closing.]
b. On the Closing Date, the Issuer shall deliver to Subscriber the Acquired Shares against and upon payment by the Subscriber in book-entry form, free and clear of any liens or other restrictions whatsoever (other than those arising under state or federal securities laws), in the name of Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by Subscriber, as applicable. Each book entry for the Acquired Shares shall contain a notation in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
c. The Closing shall be subject to the satisfaction on the Closing Date, or the waiver by each of the parties hereto, of each of the following conditions:
(i) no suspension of the qualification of the Acquired Shares for offering or sale or trading in any jurisdiction shall have occurred;
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(ii) all representations and warranties of the Issuer and Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), as the case may be, which representations and warranties shall be true and correct in all respects) at and as of the Closing Date (unless they specifically speak as of an earlier date, in which case they shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Material Adverse Effect (as defined herein), as the case may be, which representations and warranties shall be true and correct in all respects) as of such date);
(iii) the Issuer and Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing, except where the failure of such performance or compliance would not or would not reasonably be expected to prevent, materially delay, or materially impair the ability of the Issuer to consummate the Closing;
(iv) no governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation (whether temporary, preliminary or permanent) which is then in effect and has the effect of making consummation of the transactions contemplated hereby illegal or otherwise preventing or prohibiting consummation of the transactions contemplated hereby, and no governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such prevention or prohibition; and
(v) except to the extent consented to in writing by Subscriber, no amendment, modification or waiver of any provision of the Merger Agreement shall have occurred that materially and adversely affects the economic benefits that Subscriber or the Issuer would reasonably expect to receive under this Subscription Agreement.
d. At or prior to the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as the parties reasonably may deem to be practical and necessary in order to consummate the Subscription as contemplated by this Subscription Agreement.
3. Issuer Representations and Warranties. The Issuer represents and warrants to Subscriber that:
a. The Issuer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform its obligations under this Subscription Agreement.
b. The Acquired Shares have been duly authorized by the Issuer and, when issued and delivered to Subscriber against full payment for the Acquired Shares in accordance with the terms of this Subscription Agreement and registered with the Issuers transfer agent, the Acquired Shares will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under the Issuers certificate of incorporation and bylaws or under the laws of the State of Delaware.
c. This Subscription Agreement, the Other Subscription Agreements and the Merger Agreement (collectively, the Transaction Documents) have been duly authorized, executed and delivered by the Issuer and are enforceable against the Issuer in accordance with their respective terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
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d. The execution and delivery by the Issuer of the Transaction Documents, and the performance by the Issuer of its obligations under the Transaction Documents, including the issuance and sale of the Acquired Shares and the consummation of the other transactions contemplated herein, do not and will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Issuer pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Issuer is a party or by which the Issuer is bound or to which any of the property or assets of the Issuer is subject; (ii) the organizational documents of the Issuer; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties that, in the cases of clauses (i) and (iii), would reasonably be expected to have, individually or in the aggregate, a material adverse effect on (A) the business, properties, financial condition, stockholders equity or results of operations of the Issuer (a Material Adverse Effect) or materially affect the validity or enforceability of the Acquired Shares or (B) the ability or legal authority of the Issuer to (I) comply in all material respects with this Subscription Agreement and (II) consummate the transactions contemplated hereby, including the issuance and sale of the Acquired Shares.
e. There are no securities or instruments issued by or to which the Issuer is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Acquired Shares, (ii) the Class A Shares to be issued pursuant to any Other Subscription Agreement or (iii) any securities to be issued pursuant to the Forward Purchase Agreement, dated February 26, 2019 (as amended, the Forward Purchase Agreement), among the Issuer and Crescent Capital Group LP, that have not been or will not be validly waived on or prior to the Closing Date.
f. The Issuer is not in default or violation (and no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation) of any term, condition or provision of (i) the organizational documents of the Issuer, (ii) any loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, permit, franchise or license to which the Issuer is now a party or by which the Issuers properties or assets are bound or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Issuer or any of its properties, except, in the case of clauses (ii) and (iii), for defaults or violations that have not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
g. The Issuer is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority, self-regulatory organization or other person in connection with the execution, delivery and performance by the Issuer of this Subscription Agreement (including, without limitation, the issuance of the Acquired Shares), other than (i) the filing with the Securities and Exchange Commission (the Commission) of the Registration Statement (as defined below), (ii) the filings required by applicable state or federal securities laws, (iii) the filings required in accordance with Section 9(n), (iv) those required by the Nasdaq Stock Market (Nasdaq), including with respect to obtaining stockholder approval, and (v) any consent, waiver, authorization or order of, notice to, or filing or registration, the failure of which to obtain would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
h. The authorized capital stock of the Issuer as of the date hereof consists of (i) 5,000,000 shares of preferred stock, par value $0.0001 per share (Preferred Stock), (ii) 500,000,000 Class A Shares and (iii) 25,000,000 shares of Class F common stock, par value $0.0001 per share (Class F Shares). As of the date hereof: (i) no shares of Preferred Stock are issued and outstanding, (ii) 25,000,000 Class A Shares are issued and outstanding, (iii) 6,250,000 Class F Shares are issued and outstanding, (iv) 19,500,000 warrants, each of which entitles the holder thereof to purchase one Class A Share at an exercise price of $11.50 per Class A Share, are outstanding.
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i. The Issuer has not received any written communication from a governmental entity that alleges that the Issuer is not in compliance with or is in default or violation of any applicable law, except where such non-compliance, default or violation would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect.
j. The issued and outstanding Class A Shares are registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and are listed for trading on Nasdaq and, upon consummation of the Transactions, will continue to be so registered and listed. There is no suit, action, proceeding or investigation pending or, to the knowledge of the Issuer, threatened against the Issuer by Nasdaq or the Commission with respect to any intention by such entity to deregister the Class A Shares or prohibit or terminate the listing of the Class A Shares on Nasdaq. The Issuer has taken no action that is designed to terminate the registration of the Class A Shares under the Exchange Act or the listing of the Class A Shares on Nasdaq.
k. Assuming the accuracy of Subscribers representations and warranties set forth in Section 4, no registration under the Securities Act is required for the offer and sale of the Acquired Shares by the Issuer to Subscriber in the manner contemplated by this Subscription Agreement.
l. Neither the Issuer nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) in connection with any offer or sale of the Acquired Shares.
m. The Issuer has not entered into any subscription agreement, side letter or understanding, or similar agreement with any investor in connection with such investors direct or indirect investment in the Issuer other than (i) the Merger Agreement, (ii) the Other Subscription Agreements and (iii) the Forward Purchase Agreement. The Other Subscription Agreements have not been amended in any material respect following the date of this Subscription Agreement and reflect the same Share Purchase Price and material terms that are no more favorable in the aggregate to any such Other Subscriber thereunder than the terms of this Subscription Agreement.
n. The Issuer has made available to Subscriber (including via the Commissions EDGAR system) a copy of each form, report, statement, schedule, prospectus, proxy, registration statement and other document, if any, filed by the Issuer with the Commission since its initial registration of the Class A Shares (the SEC Documents), which SEC Documents, as of their respective filing dates, complied in all material respects with the requirements of the Exchange Act or the Securities Act applicable to the SEC Documents and the rules and regulations of the Commission promulgated thereunder applicable to the SEC Documents. None of the SEC Documents filed under the Exchange Act or the Securities Act (except to the extent that information contained in any SEC Document has been superseded by a later timely filed SEC Document) contained, when filed any untrue statement of a material fact or omitted to state a 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. The Issuer has timely filed each report, statement, schedule, prospectus, and registration statement that the Issuer was required to file with the Commission since its inception. There are no material outstanding or unresolved comments in comment letters from the Staff of the Commission with respect to any of the SEC Documents. The financial statements of the Issuer included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing and fairly present in all material respects the financial position of the Issuer as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.
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o. Except for such matters as have not had and would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect, there is no (i) proceeding pending, or, to the knowledge of the Issuer, threatened against the Issuer or (ii) judgment, decree, injunction, ruling or order of any governmental entity or arbitrator outstanding against the Issuer.
p. Except for placement fees payable to Credit Suisse Securities (USA) LLC and BofA Securities, Inc., in their capacities as placement agents for the offer and sale of the Acquired Shares (in such capacities, the Placement Agents), the Issuer has not paid, and is not obligated to pay, any brokerage, finders or other commission or similar fee in connection with its issuance and sale of the Acquired Shares, including, for the avoidance of doubt, any fee or commission payable to any stockholder or affiliate, as defined in Rule 144 under the Securities Act (Affiliate), of the Issuer.
q. The Issuer is not, and immediately after receipt of payment for the Acquired Shares, will not be, an investment company within the meaning of the Investment Company Act of 1940, as amended.
4. Subscriber Representations and Warranties. Subscriber represents and warrants to Issuer that:
a. Subscriber has been duly formed or incorporated and is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with the requisite power and authority to enter into, deliver and perform its obligations under this Subscription Agreement.
b. This Subscription Agreement has been duly authorized, executed and delivered by Subscriber. This Subscription Agreement is enforceable against Subscriber in accordance with its terms, except as may be limited or otherwise affected by (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
c. The execution and delivery by Subscriber of this Subscription Agreement, and the performance by Subscriber of its obligations under this Subscription Agreement, including the purchase of the Acquired Shares and the consummation of the other transactions contemplated herein, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject; (ii) the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over Subscriber or any of Subscribers properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a material adverse effect on Subscribers ability to consummate the transactions contemplated hereby.
d. Subscriber (i) is a qualified institutional buyer (as defined in Rule 144A under the Securities Act) or an institutional accredited investor (within the meaning of Rule 501(a) under the Securities Act), in each case, satisfying the applicable requirements set forth on Schedule A, (ii) is acquiring the Acquired Shares only for its own account and not for the account of others, or if Subscriber is subscribing for the Acquired Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer (as defined above) and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the
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acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Acquired Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. Subscriber has completed Schedule A following the signature page hereto and the information contained therein is accurate and complete. Subscriber is not an entity formed for the specific purpose of acquiring the Acquired Shares.
e. Subscriber understands that the Acquired Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Acquired Shares have not been registered under the Securities Act. Subscriber understands that the Acquired Shares may not be resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to the Issuer or a subsidiary thereof, (ii) to non-U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act, (iii) pursuant to Rule 144 under the Securities Act, provided that all of the applicable conditions thereof have been met or (iv) pursuant to another applicable exemption from the registration requirements of the Securities Act, and that any certificates or book-entry records representing the Acquired Shares shall contain a legend to such effect. Subscriber acknowledges that the Acquired Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Securities Act. Subscriber understands and agrees that it may be required to bear the financial risk of an investment in the Acquired Shares for an indefinite period of time. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Acquired Shares. The Issuer acknowledges and agrees that, notwithstanding anything herein to the contrary, the Acquired Shares may be pledged by Subscriber in connection with a bona fide margin agreement, provided such pledge shall be (i) pursuant to an available exemption from the registration requirements of the Securities Act or (ii) pursuant to, and in accordance with, a registration statement that is effective under the Securities Act at the time of such pledge, and Subscriber effecting a pledge of Acquired Shares shall not be required to provide the Issuer with any notice thereof; provided, however, that neither the Issuer or their counsel shall be required to take any action (or refrain from taking any action) in connection with any such pledge, other than providing any such lender of such margin agreement with an acknowledgment that the Acquired Shares are not subject to any contractual prohibition on pledging or lock up, the form of such acknowledgment to be subject to review and comment by the Issuer in all respects.
f. Subscriber understands and agrees that Subscriber is purchasing the Acquired Shares directly from the Issuer. Subscriber further acknowledges that there have been no representations, warranties, covenants and agreements made to Subscriber by the Issuer or any of its officers or directors, any Placement Agent or any of its Affiliates, or any of its or its Affiliates officers, directors, employees or representatives, or any other party to the transaction, expressly or by implication, other than those representations, warranties, covenants and agreements included in this Subscription Agreement.
g. If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974 (ERISA), Subscribers acquisition and holding of the Acquired Shares will not constitute or result in a non-exempt prohibited transaction under section 406 of ERISA, section 4975 of the Internal Revenue Code of 1986, as amended (the Code), or any applicable similar law.
h. In making its decision to subscribe for and purchase the Acquired Shares, Subscriber represents that it has relied solely upon its own independent investigation. Without limiting the generality of the foregoing, Subscriber has not relied on any statements or other information provided by any Placement Agent or any of its Affiliates, or any of its or its Affiliates officers, directors, employees or representatives, concerning the Issuer or the Acquired Shares or the offer and sale of the Acquired Shares. Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the Acquired Shares, including with
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respect to the Issuer and the Transactions. Subscriber represents and agrees that Subscriber and Subscribers professional advisor(s), if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such Subscribers professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the Acquired Shares. Subscriber has been furnished with all materials that it considers relevant to an investment in the Acquired Shares, has had a full opportunity to ask questions of and receive answers from the Issuer or any person or persons acting on behalf of the Issuer concerning the terms and conditions of the offering of the Acquired Shares to Subscriber; and that Subscriber is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, including, without limitation, the Placement Agents, except for the statements, representations and warranties contained in this Subscription Agreement.
i. Subscriber became aware of this offering of the Acquired Shares solely by means of direct contact between Subscriber and the Issuer, a representative of the Issuer, LiveVox, or the Placement Agents, and the Acquired Shares were offered to Subscriber solely by direct contact between Subscriber and the Issuer, LiveVox or the Placement Agents. Subscriber did not become aware of this offering of the Acquired Shares, nor were the Acquired Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Issuer represents and warrants that the Acquired Shares (i) were not offered to Subscriber by any form of general solicitation or general advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.
j. Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Acquired Shares. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Acquired Shares, and Subscriber has sought such accounting, legal and tax advice as Subscriber has considered necessary to make an informed investment decision.
k. Subscriber acknowledges and agrees that neither the Placement Agents nor any Affiliate of the Placement Agents (or any officer, director, employee or representative of the Placement Agents or any Affiliate thereof) has provided Subscriber with any information or advice with respect to the Acquired Shares nor is such information or advice necessary or desired. Subscriber acknowledges that the Placement Agents, any Affiliate of the Placement Agents (or any officer, director, employee or representative of the Placement Agents or any Affiliate thereof) (i) have not made any representation as to the Issuer or the quality of the Acquired Shares, (ii) may have acquired non-public information with respect to the Issuer which Subscriber agrees need not be provided to it, (iii) have made no independent investigation with respect to the Issuer or the Acquired Shares or the accuracy, completeness or adequacy of any information supplied to Subscriber by the Issuer, (iv) have not acted as Subscribers financial advisor or fiduciary in connection with the issue and purchase of the Acquired Shares and (v) have not prepared a disclosure or offering document in connection with the offer and sale of the Acquired Shares.
l. Subscriber represents and acknowledges that Subscriber has adequately analyzed and fully considered the risks of an investment in the Acquired Shares and determined that the Acquired Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscribers investment in the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists.
m. Subscriber understands and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Acquired Shares or made any findings or determination as to the fairness of an investment in the Acquired Shares.
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n. Subscriber is not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons, the Executive Order 13599 List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identification List, each of which is administered by the U.S. Treasury Departments Office of Foreign Assets Control (OFAC) (collectively OFAC Lists), (ii) owned or controlled by, or acting on behalf of, a person, that is named on an OFAC List, (iii) organized, incorporated, established, located, resident or born in, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, or any other country or territory embargoed or subject to substantial trade restrictions by the United States, (iv) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (v) a non-U.S. shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a Prohibited Investor). Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. section 5311 et seq.) (the BSA), as amended by the USA PATRIOT Act of 2001 (the PATRIOT Act), and its implementing regulations (collectively, the BSA/PATRIOT Act), Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required, it maintains policies and procedures reasonably designed to ensure compliance with OFAC-administered sanctions programs, including for the screening of its investors against the OFAC Lists. Subscriber further represents and warrants that, to the extent required, it maintains policies and procedures reasonably designed to ensure that the funds held by Subscriber and used to purchase the Acquired Shares were legally derived.
o. If Subscriber is an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include plan assets of any such plan, account or arrangement (each, a Plan) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that (i) to its knowledge, neither Issuer, nor any of its respective Affiliates that the Issuer has disclosed to Subscriber for purposes of determining compliance with this section (the Transactions Parties) has acted as the Plans fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Acquired Shares, and none of the Transactions Parties shall at any time be relied upon as the Plans fiduciary with respect to any decision to acquire, continue to hold or transfer the Acquired Shares; (ii) the decision to invest in the Acquired Shares has been made at the recommendation or direction of an independent fiduciary (Independent Fiduciary) within the meaning of US Code of Federal Regulations 29 C.F.R. section 2510.3 21(c), as amended from time to time (the Fiduciary Rule) who is (A) independent of the Transactions Parties; (B) is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies (within the meaning of the Fiduciary Rule); (C) is a fiduciary (under ERISA and/or section 4975 of the Code) with respect to Subscribers investment in the Acquired Shares and is responsible for exercising independent judgment in evaluating the investment in the Acquired Shares; and (D) is aware of and acknowledges that (I) none of the Transactions Parties is undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the purchasers or transferees investment in the Acquired Shares, and (II) the Transactions Parties have a financial interest in the purchasers investment in the Acquired Shares on account of the fees and other remuneration they expect to receive in connection with transactions contemplated hereunder.
p. Subscriber at the Closing will have sufficient funds to pay the Purchase Price pursuant to Section 2(a).
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5. Registration Rights.
a. The Issuer agrees that, within thirty (30) calendar days after the consummation of the Transactions (the Filing Date), the Issuer will file with the Commission (at the Issuers sole cost and expense) a registration statement registering the resale of the Acquired Shares (the Registration Statement), and the Issuer shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 90th calendar day (or 120th calendar day if the Commission notifies the Issuer that it will review the Registration Statement) following the Closing and (ii) the 10th business day after the date the Issuer is notified (orally or in writing, whichever is earlier) by the Commission that the Registration Statement will not be reviewed or will not be subject to further review (such earlier date, the Effectiveness Date); provided, however, that the Issuers obligations to include the Acquired Shares in the Registration Statement are contingent upon Subscriber furnishing in writing to the Issuer such information regarding Subscriber, the securities of the Issuer held by Subscriber and the intended method of disposition of the Acquired Shares as shall be reasonably requested by the Issuer to effect the registration of the Acquired Shares, and Subscriber shall execute such documents in connection with such registration as the Issuer may reasonably request that are customary of a selling stockholder in similar situations, including providing that the Issuer shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder; provided that Subscriber shall not in connection with the foregoing be required to execute any lock up or similar agreement providing contractual restrictions on the Subscribers ability to transfer the Acquired Shares. The Issuer will provide a draft of the Registration Statement to the Subscriber for review at least two (2) business days in advance of filing the Registration Statement. Unless otherwise agreed to in writing by the Subscriber, the Subscriber shall not be identified as a statutory underwriter in the Registration Statement unless requested by the Commission or another regulatory agency; provided, that if the Commission or another regulatory agency requests that a Subscriber be identified as a statutory underwriter in the Registration Statement, Subscriber will have the opportunity to withdraw from the Registration Statement upon its prompt written request to the Issuer. Notwithstanding the foregoing, if the Commission prevents the Issuer from including any or all of the shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Acquired Shares by the applicable stockholders or otherwise, such Registration Statement shall register for resale such number of Acquired Shares which is equal to the maximum number of Acquired Shares as is permitted by the Commission. In such event, the number of Acquired Shares to be registered for each selling stockholder named in the Registration Statement shall be reduced pro rata among all such selling stockholders. For purposes of clarification, any failure by the Issuer to file the Registration Statement by the Filing Date or to effect such Registration Statement by the Effectiveness Date shall not otherwise relieve the Issuer of its obligations to file or effect the Registration Statement as set forth above in this Section 5.
b. In the case of the registration, qualification, exemption or compliance effected by the Issuer pursuant to this Subscription Agreement, the Issuer shall, upon reasonable request, inform Subscriber as to the status of such registration, qualification, exemption and compliance. At its expense the Issuer shall:
(i) except for such times as the Issuer is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, use its commercially reasonable efforts to keep such registration, and any qualification, exemption or compliance under state securities laws which the Issuer determines to obtain, continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of the following: (i) Subscriber ceases to hold any Acquired Shares or (ii) the date all Acquired Shares held by Subscriber may be sold without restriction under Rule 144, including without limitation, any volume and manner of sale restrictions which may be applicable to Affiliates under Rule 144 and without the requirement for the Issuer to be in compliance with the current public information required under Rule 144(c)(1) or Rule 144(i)(2), as applicable, and (iii) two (2) years from the effective date of the Registration Statement.
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(ii) advise Subscriber, as expeditiously as possible:
(1) when a Registration Statement or any amendment thereto has been filed with the Commission and when such Registration Statement or any post-effective amendment thereto has become effective;
(2) after it shall receive notice or obtain knowledge thereof, of the issuance by the Commission of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;
(3) of the receipt by the Issuer of any notification with respect to the suspension of the qualification of the Acquired Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(4) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.
(iii) use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
(iv) upon the occurrence of any event contemplated above, except for such times as the Issuer is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement, the Issuer shall use its commercially reasonable efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Acquired Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(v) without limitation to section 3(j) above, use its commercially reasonable efforts to cause all Acquired Shares to be listed on each securities exchange or market, if any, on which the Class A Shares issued by the Issuer have been listed;
(vi) use its commercially reasonable efforts (i) to take all other steps necessary to effect the registration of the Acquired Shares contemplated hereby and (ii) to file all reports and other materials required to be filed by the Exchange Act so long as the Issuer remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144 to enable Subscriber to sell the Acquired Shares under Rule 144 for so long as the Subscriber holds Acquired Shares; and
(vii) cause the removal of all restrictive legends from all Acquired Shares, including but not limited to the legend set forth above in Section 2(b), at Subscribers request, when the Acquired Shares are sold pursuant to Rule 144 under the Securities Act or the Registration Statement or may be sold without restriction under Rule 144. In connection therewith, if required by the Issuers transfer agent, the Issuer will promptly cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent that authorize and direct the transfer agent to issue such Acquired Shares without any such legend.
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c. Notwithstanding anything to the contrary in this Subscription Agreement, the Issuer shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness thereof, if the Issuer determines that in order for the Registration Statement to not contain a material misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act, or if such filing or use could materially affect a bona fide business or financing transaction of the Issuer or its subsidiaries or would require additional disclosure by the Issuer in the Registration Statement of material information that the Issuer has a bona fide business purpose for keeping confidential (each such circumstance, a Suspension Event); provided, however, that (i) the Issuer may not delay or suspend the Registration Statement on more than two occasions or for more than sixty (60) consecutive calendar days, or more than one hundred and twenty (120) total calendar days, in each case during any twelve-month period and (ii) the Issuer shall use commercially reasonable efforts to make the Registration Statement available for sale by the Subscriber of its Acquired Shares as soon as practicable thereafter. Upon receipt of any written notice from the Issuer of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits 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 (in the case of the prospectus) not misleading, Subscriber agrees that it will immediately discontinue offers and sales of the Acquired Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until Subscriber receives copies of a supplemental or amended prospectus (which the Issuer agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by the Issuer that it may resume such offers and sales; provided, for the avoidance of doubt, that the Issuer shall not include any material non-public information in any such written notice. If so directed by the Issuer, Subscriber will deliver to the Issuer or, in Subscribers sole discretion destroy, all copies of the prospectus covering the Acquired Shares in Subscribers possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Acquired Shares shall not apply (i) to the extent Subscriber is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.
d. Subscriber may deliver written notice (an Opt-Out Notice) to the Issuer requesting that Subscriber not receive notices from the Issuer otherwise required by this Section 5; provided, however, that Subscriber may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from Subscriber (unless subsequently revoked), (i) the Issuer shall not deliver any such notices to Subscriber and Subscriber shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to Subscribers intended use of an effective Registration Statement, Subscriber will notify the Issuer in writing at least two (2) business days in advance of such intended use, and if a notice of a Suspension Event was previously delivered (or would have been delivered but for the provisions of this Section 5(d)) and the related suspension period remains in effect, the Issuer will so notify Subscriber, within one (1) business day of Subscribers notification to the Issuer, by delivering to Subscriber a copy of such previous notice of Suspension Event, and thereafter will provide Subscriber with the related notice of the conclusion of such Suspension Event immediately upon its availability.
e. For purposes of this Section 5, Acquired Shares shall mean, as of any date of determination, the Acquired Shares purchased by Subscriber pursuant to this Subscription Agreement and any other equity security issued or issuable with respect to such Acquired Shares by way of share split, dividend, distribution, recapitalization, merger, exchange, replacement or similar event, and Subscriber shall include any person to whom the rights under this Section 5 shall have been duly assigned.
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f. Issuer shall indemnify Subscriber (to the extent a seller under the Registration Statement), its officers, directors, partners, members, managers, employees, stockholders, advisers and agents, and each person who controls Subscriber (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including without limitation reasonable attorneys fees) and expenses (collectively, Losses), as incurred, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement (or incorporated by reference therein), any prospectus included in the Registration Statement 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 to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements or alleged untrue statements or omissions or alleged omissions, are based upon information regarding Subscriber furnished in writing to Issuer by Subscriber expressly for use therein.
g. Subscriber shall, severally and not jointly with any Other Subscriber, indemnify and hold harmless the Issuer, its directors, officers, agents and employees, and each person who controls the Issuer (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement, 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 to state 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, but only to the extent, that such untrue statements or alleged untrue statements, or omissions, or alleged omissions, are based upon information regarding Subscriber furnished in writing to the Issuer by Subscriber expressly for use therein provided, however, that the indemnification contained in this Section 5(g) shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of Subscriber (which consent shall not be unreasonably withheld, conditioned or delayed). In no event shall the liability of Subscriber exceed the net proceeds received by Subscriber upon the sale of the Acquired Shares giving rise to such indemnification obligation. Subscriber shall notify the Issuer promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 5 of which Subscriber is aware.
h. If the indemnification provided under this Section 5 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the 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 to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying partys and indemnified partys relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be subject to the limitations set forth in this Section 5 and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 5 from any
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person who was not guilty of such fraudulent misrepresentation. Each indemnifying partys obligation to make a contribution pursuant to this Section 5(h) shall be individual, not joint and several, and in no event shall the liability of Subscriber hereunder exceed the net proceeds received by Subscriber upon the sale of the Acquired Shares giving rise to such indemnification obligation.
6. Termination. This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) such date and time as the Merger Agreement is terminated in accordance with the terms therein, (b) upon the mutual written agreement of each of the parties hereto to terminate this Subscription Agreement, (c) if any of the conditions to Closing set forth in Section 2(c) are not satisfied on or prior to the Closing Date and, as a result thereof, the transactions contemplated by this Subscription Agreement, including, for the avoidance of doubt, the Transactions, are not consummated at the Closing or (d) on or after March 21, 2021 if the Closing has not occurred on or prior to such date (the Outside Date); provided, however, that (x) if the Issuers stockholders approve the Required Extension (as defined in the Merger Agreement), the Outside Date will be automatically extend to the earlier of (i) such extension date and (ii) July 13, 2021, provided, further, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at law or in equity to recover reasonable and documented out-of-pocket losses, liabilities or damages arising from such breach. The Issuer shall promptly notify Subscriber of the termination of the Merger Agreement promptly after the termination of such agreement.
7. Trust Account Waiver. Subscriber acknowledges that the Issuer is a blank check company with the powers and privileges to effect a merger, asset acquisition, reorganization or similar business combination involving the Issuer and one or more businesses or assets. Subscriber further acknowledges that, as described in the Issuers prospectus relating to its initial public offering dated March 7, 2019 (the Prospectus), available at www.sec.gov, substantially all of the Issuers assets consist of the cash proceeds of the Issuers initial public offering and private placements of its securities, and substantially all of those proceeds have been deposited in a trust account (the Trust Account) for the benefit of the Issuer, its public stockholders and the underwriters of the Issuers initial public offering. Except with respect to interest earned on the funds held in the Trust Account that may be released to the Issuer to pay its tax obligations, if any, the cash in the Trust Account may be disbursed only for the purposes set forth in the Prospectus. For and in consideration of the Issuer entering into this Subscription Agreement, the receipt and sufficiency of which are hereby acknowledged, Subscriber, on behalf of itself and its representatives, hereby irrevocable waives any and all right, title and interest, or any claim of any kind they have or may have in the future arising out of this Subscription Agreement, in or to any monies held in the Trust Account, and agrees not to seek recourse against the Trust Account as a result of, or arising out of, this Subscription Agreement; provided, however, that nothing in this Section 7 shall be deemed to limit any Subscribers right, title, interest or claim to the Trust Account by virtue of such Subscribers record or beneficial ownership of securities of the Issuer acquired by any means other than pursuant to this Subscription Agreement, including but not limited to any redemption right with respect to any such securities of the Issuer.
8. Exculpation of Placement Agents. Subscriber acknowledges and agrees for the express benefit of the Placement Agents and their Affiliates and their and their Affiliates respective officers, directors, employees or representatives that neither the Placement Agents nor any of their Affiliates or any of their or their Affiliates officers, directors, employees or representatives shall, absent gross negligence, fraud or willful misconduct, be liable to any Subscriber, pursuant to this Subscription Agreement or any other subscription agreement related to the private placement of the Acquired Shares, the negotiation hereof or thereof or the subject matter hereof or thereof, or the transactions contemplated hereby or thereby, for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Acquired Shares by such Subscriber.
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9. Miscellaneous.
a. Each party hereto acknowledges that the other party hereto, the Placement Agents (as third-party beneficiaries) and others will rely on the acknowledgments, understandings, agreements, representations and warranties contained in this Subscription Agreement. Prior to the Closing, each party hereto agrees to promptly notify the other party hereto and the Placement Agents if any of the acknowledgments, understandings, agreements, representations and warranties made by such party as set forth herein are no longer accurate in all material respects.
b. Each of the Issuer, Subscriber and the Placement Agents (as a third-party beneficiaries with right of enforcement) is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby to the extent required by law or by regulatory bodies.
c. Notwithstanding anything to the contrary in this Subscription Agreement, prior to the Closing, Subscriber may transfer or assign all or a portion of its rights under this Subscription Agreement; provided, that, such transferee or assignee agrees in writing to be bound by and subject to the terms and conditions of this Subscription Agreement, makes the representations and warranties in Section 4 and completes Schedule A hereto. In the event of such a transfer or assignment, Subscriber shall update Schedule B to provide the information required therein.
d. All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
e. The Issuer may request from Subscriber such additional information as the Issuer may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Acquired Shares, and Subscriber shall promptly provide such information as may be reasonably requested, to the extent readily available and to the extent consistent with its internal policies and procedures; provided, that the Issuer agrees to keep any such information provided by Subscriber confidential.
f. This Subscription Agreement may not be modified, waived or terminated except by an instrument in writing, signed by the party against whom enforcement of such modification, waiver, or termination is sought.
g. This Subscription Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.
h. Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties, covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators, successors, legal representatives and permitted assigns.
i. If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect. The parties hereto shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.
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j. This Subscription Agreement may be executed in two (2) or more counterparts (including by facsimile transmission, by e-mail delivery of a .pdf format data file or by other electronic means), all of which shall be considered one and the same agreement and shall become effective when signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart.
k. Each party shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
l. Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or telecopied, sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (a) when so delivered personally, (b) upon receipt of an appropriate electronic answerback or confirmation when so delivered by telecopy (to such number specified below or another number or numbers as such person may subsequently designate by notice given hereunder), (c) when sent, if sent on a business day prior to 5:00 p.m. New York City time, with no mail undeliverable or other rejection notice, if sent by email, or on the business day following the day when sent, if sent on a day that is not a business day or after 5:00 p.m. New York City time on a business day, with no mail undeliverable or other rejection notice, if sent by email, or (d) five (5) business days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:
(i) |
if to Subscriber, to such address or addresses set forth on the signature page hereto; |
(ii) |
if to the Issuer, to: |
Crescent Acquisition Corp.
11100 Santa Monica Blvd., Suite 2000
Los Angeles, CA 90025
Attention: George Hawley
Email: george.hawley@crescentcap.com
with a required copy to (which copy shall not constitute notice):
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite 1400 Palo Alto, CA 94301
Attn: Michael Mies
Email: michael.mies@skadden.com; and
(iii) |
if to the Placement Agents, to: |
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010
Attn:
Email:
BofA Securities, Inc.
One Bryant Park
New York, NY 10036
Attn:
Email:
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with a required copy to (which copy shall not constitute notice):
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
Attn: Harald Halbhuber
Merritt Johnson
Email: harald.halbhuber@shearman.com
merritt.johnson@shearman.com
m. This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the principles of conflicts of law thereof.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, THE SUPREME COURT OF THE STATE OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF NEW YORK IN NEW YORK COUNTY SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE DOCUMENTS REFERRED TO IN THIS SUBSCRIPTION AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR INTERPRETATION OR ENFORCEMENT HEREOF OR ANY SUCH DOCUMENT THAT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS SUBSCRIPTION AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH ACTION, SUIT OR PROCEEDING SHALL BE HEARD AND DETERMINED BY SUCH A NEW YORK STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH SUCH ACTION, SUIT OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 9(l) OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
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EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER; (III) SUCH PARTY MAKES THE FOREGOING WAIVER VOLUNTARILY AND (IV) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS SUBSCRIPTION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9(m).
n. The Issuer shall, by 9:00 a.m., New York City time, on the first (1st) business day immediately following the date of this Subscription Agreement, issue one or more press releases or file with the Commission a Current Report on Form 8-K (collectively, the Disclosure Document) disclosing all material terms of the transactions contemplated hereby, the Transactions, and any other material, nonpublic information that the Issuer has provided to Subscriber at any time prior to the filing of the Disclosure Document. From and after the issuance of the Disclosure Document, to the Issuers knowledge, Subscriber shall not be in possession of any material, nonpublic information received from the Issuer or any of its officers, directors or employees and the Subscriber shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral, with Issuer, the Placement Agents or any of their affiliates, relating to the transactions contemplated by this Subscription Agreement. Notwithstanding anything in this Subscription Agreement to the contrary, the Issuer shall not publicly disclose the name of Subscriber or any of its Affiliates or investment advisers, or include the name of Subscriber or any of its Affiliates or investment advisers in any press release or in any filing with the Commission or any regulatory agency or trading market, without the prior written consent of Subscriber, except (i) as required by the federal securities law in connection with the Registration Statement, (ii) the filing of a form Subscription Agreement with the Commission, (iii) the filing of the Schedule 14A and related proxy materials to be filed by the Issuer with respect to the Transactions and (iv) to the extent such disclosure is required by law, at the request of the Staff of the Commission or regulatory agency or under the regulations of Nasdaq, in which case the Issuer shall provide Subscriber with prior written notice of such disclosure permitted under this subclause (iv).
o. Remedies. The parties agree that irreparable damage would occur if any provision of this Subscription Agreement were not performed in accordance with the terms hereof, and accordingly, that the parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Subscription Agreement or to enforce specifically the performance of the terms and provisions of this Subscription Agreement in an appropriate court of competent jurisdiction as set forth in Section 9(m), in addition to any other remedy to which any party is entitled at law or in equity.
[Signature pages follow]
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SUBSCRIBER:
Signature of Subscriber: |
||
By: |
|
|
Name: | ||
Title: |
Date: , 2020 |
Name of Subscriber:
(Please print. Please indicate name and capacity of person signing above) |
Name in which securities are to be registered (if different): |
Email Address: __________________________ |
Subscribers EIN: _________________________ |
Address: |
|
|
Attn: _________________________________ |
Telephone No.: __________________________ |
Facsimile No.: __________________________ |
Aggregate Number of Acquired Shares
subscribed for: __________________ |
Aggregate Purchase Price: $_________________ |
You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer in the Closing Notice.
Signature Page to
Subscription Agreement
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER
This Schedule must be completed by Subscriber and forms a part of the Subscription Agreement to which it is attached. Capitalized terms used and not otherwise defined in this Schedule have the meanings given to them in the Subscription Agreement. Subscriber must check the applicable box in either Part A or Part B below and the applicable box in Part C below.
A. |
QUALIFIED INSTITUTIONAL BUYER STATUS |
(Please check the applicable subparagraphs):
☐ |
Subscriber is a qualified institutional buyer (as defined in Rule 144A under the Securities Act (a QIB)). |
☐ |
Subscriber is subscribing for the Acquired Shares as a fiduciary or agent for one or more investor accounts, and each owner of such accounts is a QIB. |
*** OR ***
B. |
INSTITUTIONAL ACCREDITED INVESTOR STATUS |
(Please check the applicable subparagraphs):
Subscriber is an institutional accredited investor (within the meaning of Rule 501(a) under the Securities Act) and has checked below the box(es) for the applicable provision under which Subscriber qualifies as such:
☐ |
Subscriber is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, a corporation, Massachusetts or similar business trust, or partnership that was not formed for the specific purpose of acquiring the securities of the Issuer being offered in this offering, with total assets in excess of $5,000,000. |
☐ |
Subscriber is a private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940. |
☐ |
Subscriber is a bank as defined in Section 3(a)(2) of the Securities Act. |
☐ |
Subscriber is a savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity. |
☐ |
Subscriber is a broker or dealer registered pursuant to Section 15 of the Exchange Act. |
☐ |
Subscriber is an insurance company as defined in Section 2(a)(13) of the Securities Act. |
☐ |
Subscriber is an investment company registered under the Investment Company Act of 1940. |
☐ |
Subscriber is a business development company as defined in Section 2(a)(48) of the Investment Company Act of 1940. |
☐ |
Subscriber is a Small Business Investment Company licensed by the U.S. Small Business Administration under either Section 301(c) or (d) of the Small Business Investment Act of 1958. |
Schedule A-1
☐ |
Subscriber is a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, and such plan has total assets in excess of $5,000,000. |
☐ |
Subscriber is an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 if the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such act, which is one of the following. |
☐ |
A bank; |
☐ |
A savings and loan association; |
☐ |
A insurance company; or |
☐ |
A registered investment adviser. |
☐ |
Subscriber is an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 with total assets in excess of $5,000,000. |
☐ |
Subscriber is an employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974 that is a self-directed plan with investment decisions made solely by persons that are accredited investors. |
☐ |
Subscriber is a trust with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered by the Issuer in this offering, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the Securities Act. |
*** AND ***
C. |
AFFILIATE STATUS |
(Please check the applicable box)
SUBSCRIBER:
☐ |
is: |
☐ |
is not: |
an affiliate (as defined in Rule 144 under the Securities Act) of the Issuer or acting on behalf of an affiliate of the Issuer.
Schedule A-2
SCHEDULE B
SCHEDULE OF TRANSFERS
Subscribers Subscription was in the amount of _ Class A Shares. The following transfers of a portion of the Subscription have been made:
Date of Transfer or Reduction |
Transferee |
Number of Transferee Acquired
|
Subscriber Revised Subscription
|
|||
Schedule B as of ______________, 20__, accepted and agreed to as of this ____ day of ____________, 20__ by:
CRESCENT ACQUISITION CORP. | ||
By: |
|
|
Name: | ||
Title: | ||
Signature of Subscriber:
[SUBSCRIBER] |
||
By: |
|
|
Name: | ||
Title: |
Schedule B-1
Exhibit 10.3
EXECUTION VERSION
SPONSOR SUPPORT AGREEMENT
This SPONSOR SUPPORT AGREEMENT (this Agreement) is made and entered into as of January 13, 2020, by and among LiveVox Holdings, Inc., a Delaware corporation (the Company), CFI Sponsor LLC, a Delaware limited liability company (Sponsor), each of the other Persons set forth on Schedule A hereto (each of such Persons and the Sponsor, a Supporting Party and, collectively, the Supporting Parties), and Crescent Acquisition Corp, a Delaware corporation (Parent).
RECITALS
A. Parent, Function Acquisition I Corp, a Delaware corporation and a direct, wholly owned subsidiary of Parent (First Merger Sub),Function Acquisition II LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of Parent (Second Merger Sub), the Company, and GGC Services Holdco, Inc., a Delaware corporation, solely in its capacity as representative, agent and attorney-in-fact of the Company Stockholder thereunder (in such capacity, the Stockholder Representative) are entering into an Agreement and Plan of Merger of even date herewith (the Merger Agreement), which provides (upon the terms and subject to the conditions set forth therein) for a business combination transaction by which: (i) First Merger Sub will merge with and into the Company (the First Merger), with the Company being the surviving corporation of the First Merger (the Company, in its capacity as the surviving corporation of the First Merger, is sometimes referred to as the Surviving Corporation); and (ii) immediately following the First Merger and as part of the same overall transaction as the First Merger, the Surviving Corporation will merge with and into Second Merger Sub (the Second Merger and, together with the First Merger, the Mergers) with Second Merger Sub being the surviving entity of the Second Merger and a wholly owned subsidiary of Parent (Second Merger Sub, in its capacity as the surviving entity of the Second Merger, is sometimes referred to as the Surviving Entity).
B. The Supporting Parties are the beneficial and record owners of such number and type of Parent equity securities as are indicated next to each Supporting Partys name on Schedule A (together with any New Subject Securities (as defined below), the Subject Securities).
C. The Supporting Parties and Parent are entering into this Agreement in order to induce the Company to enter into the Merger Agreement and cause the Transactions to be consummated.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1 or elsewhere in this Agreement.
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Associated Parties shall mean (a) each Supporting Partys predecessors, successors, executors, administrators, trusts, spouse, heirs and estate; (b) each Supporting Partys past, present and future assigns; (c) each entity that each Supporting Party, as applicable, has the power to bind (by such Supporting Partys acts or signature) or over which such Supporting Party directly or indirectly exercises control; and (d) each entity of which each Supporting Party owns, directly or indirectly, at least a majority of the outstanding equity, beneficial, proprietary, ownership or voting interests.
Claim shall mean all past, present and future Legal Proceedings, disputes, controversies, demands, rights, obligations, damages, liabilities (whether direct or indirect, absolute, accrued, contingent or otherwise), contracts and causes of action of every kind and nature (whether matured or unmatured, absolute or contingent), including any unknown, inchoate, unsuspected or undisclosed claim.
Consent shall mean any consent, approval, authorization, permit or notice.
Expiration Time shall mean the earliest to occur of (a) the Effective Time, and (b) such date and time as the Merger Agreement shall have been terminated validly in accordance with its terms.
Immediate Family shall mean any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive relationships.
Permitted Transferee shall mean: (a) with respect to any Person that is an individual, any member of such individuals Immediate Family and/or any trust, partnership, limited liability company, or other similar estate planning vehicle that such individual controls and the beneficiaries of which are only such individual or such individuals Immediate Family, and any other transferee who receives Subject Securities by will or the laws of descent and distribution; and (b) with respect to any other Person, any Affiliate or equityholder of such Person.
Releasees shall mean: (a) Parent; (b) the Group Companies; (c) Parents current and future Affiliates (including First Merger Sub, Second Merger Sub, following the First Merger, the Surviving Corporation, and, following the Second Merger, the Surviving Entity); (d) the respective Representatives of the Persons referred to in clauses (a) through (c) above; and (e) the respective successors and assigns of the Persons identified or otherwise referred to in the foregoing clauses (a) through (d).
Voting Period shall mean the period commencing on (and including) the date of this Agreement and ending on (and including) the Expiration Time.
2. Agreement to Retain the Subject Securities and Cancellation of Certain Securities.
(a) No Transfer of Subject Securities. Each Supporting Party agrees not to, directly or indirectly, at any time during the Voting Period, other than as may be required by a court order or other Legal Requirement or provided in or permitted by the Merger Agreement (including the disclosure schedules thereto), (i) sell, assign, transfer (including by operation of law), pledge, dispose of or otherwise encumber, or otherwise agree to do any of the foregoing in
2
respect of (each, a Transfer) any of the Subject Securities, (ii) deposit any Subject Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (iii) enter into any Contract, option or other arrangement or undertaking with respect to the direct or indirect sale, assignment, transfer (including by operation of law) or other disposition by such Supporting Party of any Subject Securities, or (iv) take any action that would make any representation or warranty of such Supporting Party herein untrue or incorrect in any material respect or have the effect of preventing or disabling such Supporting Party from performing such Supporting Partys obligations hereunder, except, in each case, pursuant to, or in furtherance of, the Transactions; provided, however, that any Supporting Party may transfer Subject Securities to Permitted Transferees; provided that prior to and as a condition to the effectiveness of such transfer, each Person to whom any Subject Securities or any interest in any of such Subject Securities is or may be transferred shall have executed and delivered to the Company a counterpart of this Agreement pursuant to which such Person shall be bound by all of the terms and provisions of this Agreement, and shall have agreed in writing with the Company to hold such Subject Securities or interest in such Subject Securities subject to all of the terms and provisions of this Agreement.
(b) Additional Securities. Each Supporting Party agrees that any equity securities of Parent that it purchases or otherwise hereafter acquires (including as a result of a stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event) or with respect to which it otherwise acquires sole or shared voting power after the execution of this Agreement and prior to the Expiration Time (the New Subject Securities) shall be subject to the terms and conditions of this Agreement to the same extent as if they constituted the Subject Securities set forth on Schedule A attached hereto.
(c) Unpermitted Transfers. Any Transfer or attempted Transfer of any Subject Securities or New Subject Securities in violation of any provision of this Agreement shall be void ab initio and of no force or effect.
(d) Cancellation of Certain Securities. Notwithstanding anything to the contrary, Sponsor hereby agrees to, substantially concurrent with and contingent upon the Closing, transfer, convey and assign to Parent all of its right, title and interest in and to 7,000,000 Private Placement Warrants and 2,725,000 shares of Parent Class F Stock, and Parent hereby agrees to cancel and retire such Private Placement Warrants upon receipt.
3. Agreement to Vote and Approve; No Redemption.
(a) Each Supporting Party irrevocably and unconditionally agrees that, from and after the date hereof until the Expiration Time (the Voting Period), at any meeting of the stockholders of Parent or any adjournment or postponement thereof, or in connection with any action by written consent of the stockholders of Parent, it shall: (i) appear at each such meeting or otherwise cause all Subject Securities beneficially owned which such Supporting Party has a right to vote or owned of record by such Supporting Party to be counted as present thereat for purposes of calculating a quorum; and (ii) vote (or cause to be voted), in person or by proxy, or deliver a written consent (or cause a consent to be delivered) covering, the Subject Securities beneficially owned which such Supporting Party has a right to vote or owned of record by such Supporting Party, (A) in favor of the approval of (1) the adoption of the Merger Agreement and approval of
3
the Transactions; (2) the issuance of shares of Parent Class A Stock in connection with Section 2.6 of the Merger Agreement; (3) the amendment and restatement of the Parent Charter substantially in the form of the Parent A&R Charter attached to the Merger Agreement as Exhibit C; (4) adoption of an equity incentive plan in accordance with Section 7.20 of the Merger Agreement; and (5) any other proposals or actions the Parties deem necessary or desirable to consummate the Transaction (collectively, the Transaction Proposals), (B) against any Acquisition Proposal with respect to any Person other than the Company, (C) against any action that would be a breach of Parents representations, warranties, covenants or agreements in the Merger Agreement, and (D) against the following actions (other than pursuant to, or in furtherance of, the Transactions): (1) any reorganization, recapitalization, dissolution or liquidation of Parent; (2) any change in a majority of the Parent Board; (3) any amendment to the Parent Organizational Documents (other than adoption of the Parent A&R Charter and the Parent A&R Bylaws); (4) any change in the capitalization of Parent or Parents corporate structure; and (5) any other action, proposal, agreement or transaction or proposed transaction that is intended, or would reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect the Transactions. For the avoidance of doubt, each Supporting Party, as applicable, shall retain at all times the right to vote any Subject Securities, including New Subject Securities, beneficially owned which such Supporting Party has a right to vote or owned of record by such Supporting Party in such Supporting Partys sole discretion, and without any other limitation, on any matters other than those explicitly set forth in this Agreement that are at any time or from time to time presented for consideration to Parents stockholders.
(b) Each Supporting Party irrevocably and unconditionally agrees that, during the Voting Period, such Supporting Party shall not elect to cause Parent to redeem any Subject Securities beneficially owned or owned of record by such Supporting Party in connection with the Transaction Proposals.
(c) The obligations of the Supporting Parties specified in this Agreement, including this Section 3, shall apply whether or not the Parent Board shall have effected a Change in Recommendation.
(d) During the Voting Period, no Supporting Party shall enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with this Section 3.
4. Waiver of Anti-Dilution Provision; Release.
(a) Each Supporting Party hereby waives (for itself, for its successors, heirs and assigns), to the fullest extent permitted by law, the ability to adjust the Initial Conversion Ratio (as defined in the Parent Charter) pursuant to Section 4.3(b)(ii) of the Parent Charter in connection with the issuance of additional Parent Class A Stock in the Transactionsand each Supporting Party, for the avoidance of doubt, hereby consents to such waiver. This waiver shall be applicable only in connection with the Transactions and this Agreement (and any Parent Class A Stock issued in connection with the Transactions) and shall be void and of no force and effect following the Expiration Time.
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(b) In exchange for the Companys and Parents entry into the Merger Agreement, this Agreement and agreement to consummate the Transactions, which constitute good and valuable consideration for this release of Claims, effective as of the Effective Time, each Supporting Party, on such Supporting Partys behalf and on behalf of each of the applicable Associated Parties, hereby (i) irrevocably, unconditionally and completely releases, acquits and forever discharges each of the Releasees of and from any and all Claims, and (ii) irrevocably, unconditionally and completely waives and relinquishes each and every Claim, in the case of each of clauses (i) and (ii), that such Supporting Party or any of the applicable Associated Parties may have had in the past, may now have or may have in the future against any of the Releasees to the extent relating to or arising out of such Supporting Partys or any of the applicable Associated Parties (A) employment or consulting relationship with Parent at any time up to and including the date of this Agreement, (B) current or former status as a director, officer or consultant of or to Parent at any time up to and including the date of this Agreement, or (C) current or former status as a stockholder, holder of warrants, stock options or other equity securities of Parent, including (1) Claims relating to the preparation, negotiation, execution or consummation of this Agreement, the Merger Agreement, or any other agreement, document, certificate or instrument delivered in connection with the Transactions, and (2) Claims in respect of a breach by the Parent Board or its individual directors and officers of their fiduciary obligations, including in connection with the negotiation and execution of the Merger Agreement and the consummation of the Transactions; provided, however, that (w) such Supporting Party is not releasing any rights available to it under the Merger Agreement or any other agreement entered into by such Supporting Party in connection with the Transactions, or any other amount payable pursuant to any retention or equity incentive plan established by Parent in connection with the Mergers for the benefit of such Supporting Party; (x) if (and only if) such Supporting Party is an officer or director of Parent, such Supporting Party is not releasing Supporting Partys rights, if any, to indemnification that Supporting Party may have under Parents Governing Documents or any indemnification agreement between such Supporting Party and Parent, as well as with respect to any directors and officers liability insurance policy maintained by Parent; (y) such Supporting Party is not releasing any rights set forth in Section 9 of that certain Letter Agreement, dated March 7, 2019, by and among Parent, Sponsor and each of the Parents then officers and directors, including each of the other Support Parties (the Letter Agreement); and (z) if applicable to such Supporting Party, such Supporting Party is not releasing any rights available to it to receive salaries, bonuses, benefits, accrued vacation, expense reimbursements and expenses or other compensation earned in respect of employment with, or services provided to, Parent.
(c) Each Supporting Party, on such Supporting Partys behalf and on behalf of each of the applicable Associated Parties, hereby irrevocably covenants to refrain from asserting any Claim, or commencing, instituting or causing to be commenced, any Legal Proceeding of any kind against any Releasee based upon any Claim released or purported to be released pursuant to this Section 4. If such Supporting Party (or any of the applicable Associated Parties) brings any claim, suit, action or manner of action against any Releasee in administrative proceedings, in arbitration or admiralty, at law, in equity, or mixed, with respect to any Claim released pursuant to this Section 4, then such Supporting Party shall indemnify such Releasee in the amount or value of any final judgment or settlement (monetary or other) and any related cost (including reasonable legal fees) entered against, paid or incurred by the Releasee.
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(d) Each Supporting Party, on such Supporting Partys behalf and on behalf of each of the applicable Associated Parties, expressly waives and releases any and all rights and benefits under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY.
(e) Each Supporting Party understands and acknowledges (on its own behalf and on behalf of each of the applicable Associated Parties) that it may discover facts different from, or in addition to, those which it knows or believes to be true with respect to the Claims, and agrees that this release shall be and remain effective in all respects notwithstanding any subsequent discovery of different and/or additional facts.
5. Entry into Closing Agreements. Sponsor hereby agrees that it shall execute and deliver to Parent a copy of each of the Stockholders Agreement and the A&R Registration Rights Agreement (each in substantially the form attached to the Merger Agreement) at Closing.
6. Loans and Advances. Sponsor represents and warrants to Parent that, as of the date hereof, there are no outstanding loans or advances from the Supporting Parties or their respective Affiliates to Parent or its subsidiaries. Notwithstanding anything herein to the contrary, each Supporting Party waives any rights under the Letter Agreement to convert all or any portion of any amounts loaned or advanced to Parent or its subsidiaries at any time prior to or at the Closing into warrants to purchase shares of Parent Class A Stock.
7. Representations and Warranties of the Supporting Parties. Each of the Supporting Parties hereby represents and warrants (severally and not jointly) to Parent and the Company as follows:
(a) Authorization, etc. Such Supporting Party has the power, authority and capacity to execute and deliver this Agreement and to perform such Supporting Partys obligations hereunder. This Agreement has been duly executed and delivered by such Supporting Party and constitutes a legal, valid and binding obligation of such Supporting Party, enforceable against such Supporting Party in accordance with its terms, subject only to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. To the extent that such Supporting Party is a natural person who is married and is a resident in a community property state, such Supporting Party represents and warrants that such Supporting Party has the absolute and unrestricted power, authority and capacity to execute and deliver this Agreement and to perform such Supporting Partys obligations hereunder, notwithstanding any laws related to community property. To the extent that such Supporting Party is not a natural person, including if such Supporting Party is a trust, such Supporting Party hereby further represents and warrants that: (A) such Supporting Party is duly organized, validly existing and in good standing under the laws
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of the jurisdiction in which it was organized; (B) the undersigned has the power to execute and deliver this Agreement on behalf of such Supporting Party; (C) such Supporting Party has taken all necessary action to authorize the execution, delivery and performance of this Agreement; and (D) the execution, delivery and performance of this Agreement by such Supporting Party will not violate any provision of such Supporting Partys Governing Documents. Such Supporting Party has read and understood this Agreement, including the complete release of Claims and waiver of jury trial contained herein, has consulted, or had the opportunity to consult, with such Supporting Partys legal counsel or other advisors with respect thereto, has knowingly and voluntarily elected to sign and accept this Agreement, and has not relied upon any promise, statement, or representation that is not set forth explicitly herein in deciding to sign and accept this Agreement.
(b) No Conflicts or Consents. The execution and delivery of this Agreement by such Supporting Party do not, and the performance of this Agreement by such Supporting Party will not: (i) conflict with or violate any Legal Requirement or Order applicable to such Supporting Party or by which such Supporting Party or any of such Supporting Partys assets is or may be bound or affected; or (ii) result in or constitute (with or without notice or lapse of time) any breach of or default under, or give to any other Person (with or without notice or lapse of time) any right of termination, amendment, acceleration or cancellation of, or result (with or without notice or lapse of time) in the creation of any Lien on any of the securities of Parent owned by such Supporting Party pursuant to, any Contract to which such Supporting Party is a party or by which such Supporting Party or any of such Supporting Partys Affiliates or assets is or may be bound or affected. The execution and delivery of this Agreement by such Supporting Party do not, and the performance of this Agreement by such Supporting Party will not, require any Consent of any Person.
(c) Title to Securities. As of the date of this Agreement: (i) such Supporting Party has good and valid title to and holds of record (free and clear of any Liens other than those arising under applicable securities laws or as would not otherwise restrict the performance of such Supporting Partys obligations pursuant to this Agreement) the number, class and series of shares of Subject Securities set forth next to such Supporting Partys name on Schedule A; and (ii) such Supporting Party does not own any shares of capital stock or other securities of Parent or any option, warrant, convertible note or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock or other securities of Parent, other than as set forth on Schedule A.
(d) Litigation. There is no Legal Proceeding by or before any Governmental Entity pending or, to the best of the knowledge of such Supporting Party, threatened against such Supporting Party or any of its Affiliates that challenges or would challenge the execution and delivery of this Agreement or the taking of any of the actions required to be taken by such Supporting Party under this Agreement.
8. Representations and Warranties of Parent. Parent hereby represents and warrants to the other parties hereto as follows:
(a) Authorization, etc. Parent has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by Parent and constitutes a legal, valid and binding obligation of Parent enforceable against Parent in accordance with its terms, subject only to: (i) laws of
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general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Parent hereby further represents and warrants that: (A) Parent is duly organized, validly existing and in good standing under the laws of the State of Delaware; (B) the undersigned has the power to execute and deliver this Agreement on behalf of Parent; (C) Parent has taken all necessary action to authorize the execution, delivery and performance of this Agreement; and (D) the execution, delivery and performance of this Agreement by Parent will not violate any provision of Parents Governing Documents.
(b) No Conflicts or Consents. The execution and delivery of this Agreement by Parent do not, and the performance of this Agreement by Parent will not: (i) conflict with or violate any Legal Requirement or Order applicable to Parent or by which Parent or any of its assets is or may be bound or affected; or (ii) result in or constitute (with or without notice or lapse of time) any breach of or default under, or give to any other Person (with or without notice or lapse of time) any right of termination, amendment, acceleration or cancellation of any Contract to which Parent is a party or by which Parent or any of its Affiliates or assets is or may be bound or affected. The execution and delivery of this Agreement by Parent do not, and the performance of this Agreement by Parent will not, require any Consent of any Person.
(c) Litigation. There is no Legal Proceeding by or before any Governmental Entity pending or, to the best of the knowledge of Parent, threatened against Parent or any of its Affiliates that challenges or would challenge the execution and delivery of this Agreement or the taking of any of the actions required to be taken by Parent under this Agreement.
9. Representations and Warranties of the Company. The Company hereby represents and warrants to the other parties hereto as follows:
(a) Authorization, etc. The Company has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject only to: (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. The Company hereby further represents and warrants that: (A) the Company is duly organized, validly existing and in good standing under the laws of the State of Delaware; (B) the undersigned has the power to execute and deliver this Agreement on behalf of the Company; (C) the Company has taken all necessary action to authorize the execution, delivery and performance of this Agreement; and (D) the execution, delivery and performance of this Agreement by the Company will not violate any provision of the Companys Governing Documents.
(b) No Conflicts or Consents. The execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not: (i) conflict with or violate any Legal Requirement or Order applicable to the Company or by which the Company or any of its assets is or may be bound or affected; or (ii) result in or constitute (with or without notice or lapse of time) any breach of or default under, or give to any other Person (with or without notice or lapse of time) any right of termination, amendment, acceleration or
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cancellation of any Contract to which the Company is a party or by which the Company or any of its Affiliates or assets is or may be bound or affected. The execution and delivery of this Agreement by the Company do not, and the performance of this Agreement by the Company will not, require any Consent of any Person.
(c) Litigation. There is no Legal Proceeding by or before any Governmental Entity pending or, to the best of the Knowledge of the Company, threatened against the Company or any of its Affiliates that challenges or would challenge the execution and delivery of this Agreement or the taking of any of the actions required to be taken by the Company under this Agreement.
10. No Solicitation.
(a) During the period from the date of this Agreement and continuing until the termination of this Agreement in accordance with Section 10, no Supporting Party shall, and each Supporting Party shall cause or direct, as applicable, its Affiliates and Representatives not to, directly or indirectly: (i) solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than the Company and its Representatives) concerning any merger, sale of ownership interests and/or assets of Parent, recapitalization or similar transaction or any other Business Combination (as defined in the Parent Charter), in each case other than the Transactions (each, a Parent Business Combination); (ii) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a Parent Business Combination; or (iii) commence, continue or renew any due diligence investigation regarding a Parent Business Combination. Each Supporting Party shall, and shall cause its respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person (other than the Company and its Representatives) with respect to any Parent Business Combination. Each Supporting Party agrees to promptly inform such Persons Representatives of the obligations undertaken in this Section 10(a).
(b) Each Supporting Party shall promptly (and in no event later than 24 hours after becoming aware of such inquiry, proposal, offer or submission) notify the other parties hereto if it or, to the best of its knowledge, any of its or its Representatives receives any inquiry, proposal, offer or submission with respect to a Parent Business Combination (including the identity of the Person making such inquiry or submitting such proposal, offer or submission), after the execution and delivery of this Agreement. If any Supporting Party or its Representatives receives an inquiry, proposal, offer or submission with respect to a Parent Business Combination, such Supporting Party shall provide the other parties hereto with a copy of such inquiry, proposal, offer or submission.
11. Termination. This Agreement shall terminate, and no party shall have any rights or obligations hereunder and this Agreement shall have no further effect upon the Expiration Time. No such termination, however, shall relieve any party hereto of any liability or damages to the other party hereto resulting from any deliberate breach of this Agreement prior to its termination.
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12. Capacity; Publicity.
(a) Notwithstanding anything in this Agreement to the contrary, but without limitation of any obligations under the Merger Agreement, each Supporting Party is entering into this Agreement solely in its capacity as a record holder or beneficial owner of shares of Subject Securities and not in its (or any Affiliates) capacity as an officer or director of Parent or its subsidiaries, if applicable. Notwithstanding any asserted conflict, nothing herein will limit or affect any Supporting Partys ability to act as an officer or director of Parent or its Subsidiaries.
(b) No Supporting Party nor any of such Supporting Partys Affiliates shall issue or make any press release or other public announcement concerning (or otherwise disclose to any Person the existence or terms of) this Agreement, the Merger Agreement or any of the Transactions, without Parents and the Companys prior written consent.
13. Miscellaneous.
(a) Further Assurances. From time to time and without additional consideration, Supporting Party shall use its reasonable best efforts to execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, Consents and other instruments (including the Surrender Documentation), and shall take such further actions, as Parent may reasonably request for the purpose of carrying out and furthering the intent of this Agreement and the Merger Agreement.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given: (i) on the date established by the sender as having been delivered personally; (ii) one (1) Business Day after being sent by a nationally recognized overnight courier guaranteeing overnight delivery; (iii) on the date delivered, if delivered by email of a pdf document; or (iv) on the fifth (5th) Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications, to be valid, must be addressed as follows:
if to Parent, to:
Crescent Acquisition Corp
11100 Santa Monica Blvd., Suite 2000
Los Angeles, CA 90025
Attention: George Hawley
Email: george.hawley@crescentcap.com
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite #1400
Palo Alto, CA 94301
Attention: Michael J. Mies
Email: michael.mies@skadden.com
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if to the Company, to:
LiveVox, Inc.
450 Sansome Street, 9th Floor
San Francisco CA 94111
Attention: Mark Mallah
E-mail: MMallah@livevox.com
and to:
Golden Gate Private Equity, Inc.
One Embarcadero Center, Suite 3900
San Francisco, CA 94111
Attention: Stephen D. Oetgen and Rishi Chandna
E-mail: rchandna@goldengatecap.com
soetgen@goldengatecap.com
with copies (which shall not constitute notice) to:
Kirkland & Ellis LLP
555 California Street, Suite 2900
San Francisco, CA 94104
Attention: Jeremy M. Veit, P.C.; James W. Beach
Facsimile: (415) 453-1500
E-mail: jeremy.veit@kirkland.com
james.beach@kirkland.com
if to a Supporting Party, to the address or email address of such Person set forth next to the name of such Person on Schedule A.
or to such other address or to the attention of such Person or Persons as the recipient party has specified by prior written notice to the sending party (or in the case of counsel, to such other readily ascertainable business address as such counsel may hereafter maintain). If more than one method for sending notice as set forth above is used, the earliest notice date established as set forth above shall control.
(c) Severability. In the event that any term, provision, covenant or restriction of this Agreement, or the application thereof, is held to be illegal, invalid or unenforceable under any present or future Legal Requirement: (i) such provision will be fully severable; (ii) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; and (iv) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms of such illegal, invalid or unenforceable provision as may be possible.
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(d) Entire Agreement. This Agreement, the Merger Agreement and the other Transaction Agreements, if applicable, and any other documents and instruments and agreements among the parties hereto as contemplated by or referred to herein or therein, constitute the entire agreement between the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto.
(e) Amendment. This Agreement may be amended by the parties hereto at any time by execution of an instrument in writing signed on behalf of each of the parties hereto.
(f) Assignment; Binding Effect; No Third-Party Rights. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party hereto, and any attempted or purported assignment or delegation of any of such interests or obligations shall be null and void. Subject to the preceding sentence, this Agreement shall be binding upon each of the parties hereto, their respective heirs, estates, executors and personal representatives (if applicable) and their respective successors and assigns, and shall inure to the benefit of each of the parties hereto and their respective successors and assigns. Nothing in this Agreement is intended to confer on any Person (other than Parent, the Company and the Supporting Parties and their respective successors and assigns) any rights or remedies of any nature. Notwithstanding anything to the contrary herein (including the preceding sentence), the Stockholder Representative shall be an intended third party beneficiary of this Agreement.
(g) Other Remedies; Specific Performance. Except as otherwise provided herein, prior to the Closing, any and all remedies herein expressly conferred upon a party hereto will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party hereto, and the exercise by a party hereto of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each party hereto shall be entitled to enforce specifically the terms and provisions of this Agreement in any court having jurisdiction pursuant to Section 13(i), without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the parties hereto. Each of the parties hereto hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each party hereto hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.
(h) Governing Law. This Agreement and the consummation of the Transactions, and any action, suit, dispute, controversy or claim arising out of this Agreement and the consummation of the Transactions, or the validity, interpretation, breach or termination of this Agreement and the consummation of the Transactions, shall be governed by and construed in accordance with the internal law of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.
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(i) Consent to Jurisdiction; Waiver of Jury Trial.
(i) Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of the Court of Chancery in the State of Delaware (or, to the extent that such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware and the United States District Court for the District of Delaware), in each case in connection with any matter based upon or arising out of this Agreement, the other Transaction Agreements and the consummation of the Transactions, agrees that process may be served upon them in any manner authorized by the laws of the State of Delaware for such Person and waives and covenants not to assert or plead any objection which they might otherwise have to such manner of service of process. Each party hereto and any Person asserting rights as a third-party beneficiary may do so only if he, she or it hereby waives, and shall not assert as a defense in any legal dispute, that: (A) such Person is not personally subject to the jurisdiction of the above named courts for any reason; (B) such Legal Proceeding may not be brought or is not maintainable in such court; (C) such Persons property is exempt or immune from execution; (D) such Legal Proceeding is brought in an inconvenient forum; or (E) the venue of such Legal Proceeding is improper. Each party hereto and any Person asserting rights as a third-party beneficiary hereby agrees not to commence or prosecute any such action, claim, cause of action or suit other than before one of the above-named courts, nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action, claim, cause of action or suit to any court other than one of the above-named courts, whether on the grounds of inconvenient forum or otherwise. Each party hereto hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, and further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 13(b). Notwithstanding the foregoing in this Section 13(i), any party hereto may commence any action, claim, cause of action or suit in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
(ii) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO AND ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY MAY DO SO ONLY IF HE, SHE OR IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS AGREEMENT, EACH OF THE OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION OF THE TRANSACTIONS, AND FOR ANY COUNTERCLAIM RELATING THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. IF THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY HERETO NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NON-COMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION OF THE TRANSACTIONS. FURTHERMORE, NO PARTY HERETO NOR ANY PERSON ASSERTING RIGHTS AS A
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THIRD-PARTY BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.
(j) Counterparts; Electronic Delivery. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same document and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto, it being understood that all parties hereto need not sign the same counterpart. Delivery by electronic transmission to counsel for the other parties hereto of a counterpart executed by a party hereto shall be deemed to meet the requirements of the previous sentence.
(k) Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.
(l) Extension; Waiver. At any time prior to the Closing, Parent, the Company and each Supporting Party may, to the extent not prohibited by Applicable Legal Requirements: (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto; (ii) waive any inaccuracies in the representations and warranties made to the other parties hereto contained herein or in any document delivered pursuant hereto; and (iii) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. Delay in exercising any right under this Agreement shall not constitute a waiver of such right.
(m) Independence of Obligations. The covenants and obligations of each Supporting Party set forth in this Agreement shall be construed as independent of any other Contract between such Supporting Party, on the one hand, and the Company or Parent, on the other hand. The existence of any claim or cause of action by any such Supporting Party against the Company or Parent shall not constitute a defense to the enforcement of any of such covenants or obligations against such Supporting Party. Nothing in this Agreement shall limit any of the rights or remedies of Parent or the Company under the Merger Agreement, or any of the rights or remedies of Parent or the Company or any of the obligations such Supporting Party under any agreement between such Supporting Party and Parent or the Company or any certificate or instrument executed by such Supporting Party in favor of Parent or the Company; and nothing in the Merger Agreement or in any other such agreement, certificate or instrument, shall limit any of the rights or remedies of Parent or the Company or any of the obligations of such Supporting Party under this Agreement.
(n) No Presumption Against Drafting Party. Each party hereto waives the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
(o) Interpretation. The words hereof, herein, hereinafter, hereunder, and hereto and words of similar import refer to this Agreement as a whole and not to any particular section or subsection of this Agreement and reference to a particular section of this
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Agreement will include all subsections thereof, unless, in each case, the context otherwise requires. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context shall require, any pronoun shall include the corresponding masculine, feminine and neuter forms. When a reference is made in this Agreement to an Exhibit or Schedule, such reference shall be to an Exhibit or Schedule to this Agreement unless otherwise indicated. When a reference is made in this Agreement to Sections or subsections, such reference shall be to a Section or subsection of this Agreement. Unless otherwise indicated the words include, includes and including when used herein shall be deemed in each case to be followed by the words without limitation. Reference to the subsidiaries of an entity shall be deemed to include all direct and indirect subsidiaries of such entity. The word or shall be disjunctive but not exclusive. References to a particular statute or regulation including all rules and regulations thereunder and any predecessor or successor statute, rule, or regulation, in each case as amended or otherwise modified from time to time. All references to currency amounts in this Agreement shall mean United States dollars.
The remainder of this page is intentionally left blank.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
SPONSOR | ||||
CFI SPONSOR LLC | ||||
By: |
/s/ Robert D. Beyer |
|||
Name: | Robert D. Beyer | |||
Title: | Member |
SIGNATURE PAGE TO SPONSOR SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
SUPPORTING PARTY |
/s/ Robert D. Beyer |
Robert D. Beyer |
SIGNATURE PAGE TO SPONSOR SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
SUPPORTING PARTY |
/s/ Jean-Marc Chapus |
Jean-Marc Chapus |
SIGNATURE PAGE TO SPONSOR SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
SUPPORTING PARTY |
/s/ Todd M. Purdy |
Todd M. Purdy |
SIGNATURE PAGE TO SPONSOR SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
SUPPORTING PARTY |
/s/ Christopher G. Wright |
Christopher G. Wright |
SIGNATURE PAGE TO SPONSOR SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
SUPPORTING PARTY |
/s/ George P. Hawley |
George P. Hawley |
SIGNATURE PAGE TO SPONSOR SUPPORT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
CRESCENT ACQUISITION CORP | ||||
By: |
/s/ Christopher G. Wright |
|||
Name: | Christopher G. Wright | |||
Title: | President |
SIGNATURE PAGE TO SPONSOR SUPPORT AGREEMENT
SCHEDULE A1
Name |
Notice Address |
Class A Stock | Class F Stock | Warrants | ||||
CFI Sponsor LLC |
11100 Santa Monica Blvd., Suite 2000 Los Angeles, CA 90025 Attention: George Hawley Email: george.hawley@crescentcap.com |
0 | 6,175,000 | 7,000,000 | ||||
Robert D. Beyer |
c/o CFI Sponsor LLC 11100 Santa Monica Blvd., Suite 2000 Los Angeles, CA 90025 Attention: George Hawley Email: george.hawley@crescentcap.com |
0 | 6,175,000 | 7,000,000 | ||||
Jean-Marc Chapus |
0 | 6,175,000 | 7,000,000 | |||||
Todd M. Purdy |
0 | 6,175,000 | 7,000,000 | |||||
Christopher G. Wright |
0 | 0 | 0 | |||||
George P. Hawley |
0 | 0 | 0 | |||||
TOTAL: | 0 | 6,175,000 | 7,000,000 |
1 |
Table does not include the shares of Parent Class A Stock underlying private placement warrants beneficially held or to be beneficially held by the Supporting Parties because these securities are not exercisable within 60 days of the date hereof. Sponsor is the record holder of the 6,175,000 shares of Parent Class F Stock reported herein. Crescent Capital GP, LLC, Beyer Family Interests LLC and TSJD Family LLC control the voting and investment decisions with respect to such Class F Shares held by Sponsor. Messrs. Attanasio and Chapus are managing members of Crescent Capital GP, LLC. Mr. Beyer is a managing member of Beyer Family Interests LLC. Mr. Purdy is a managing member of TSJD Family LLC. As such, Messrs. Attanasio, Chapus, Beyer and Purdy may be deemed to have beneficial ownership of the shares of Parent Class F Stock held by Sponsor. |
Exhibit 10.4
Execution Version
SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this Support Agreement) is made and entered into as of January 13, 2021, by and among Crescent Acquisition Corp, a Delaware corporation (Parent), LiveVox Holdings, Inc., a Delaware corporation (the Company), the Stockholder Representative (as defined below) and LiveVox TopCo, LLC., a Delaware limited liability company (Securityholder).
RECITALS
WHEREAS, Parent, Function Acquisition I Corp, a Delaware corporation and a direct, wholly owned subsidiary of Parent (First Merger Sub), Function Acquisition II LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of Parent (Second Merger Sub), the Company and GGC Services Holdco, Inc., a Delaware corporation, solely in its capacity as the representative, agent and attorney-in-fact of the Company Stockholder thereunder (in such capacity, the Stockholder Representative), are entering into that certain Agreement and Plan of Merger of even date herewith (the Merger Agreement), which provides (upon the terms and subject to the conditions set forth therein) for a business combination transaction by which: (a) First Merger Sub will merge with and into the Company (the First Merger), with the Company being the surviving corporation of the First Merger (the Company, in its capacity as the surviving corporation of the First Merger, is sometimes referred to as the Surviving Corporation); and (b) immediately following the First Merger and as part of the same overall transaction as the First Merger, the Surviving Corporation will merge with and into Second Merger Sub (the Second Merger and, together with the First Merger, the Mergers) with Second Merger Sub being the surviving entity of the Second Merger and a wholly owned subsidiary of Parent (Second Merger Sub, in its capacity as the surviving entity of the Second Merger, is sometimes referred to as the Surviving Entity).
WHEREAS, in connection with the Mergers, upon the terms and subject to the conditions of the Merger Agreement, all shares of Company Common Stock (Company Capital Stock) will be converted into the right to receive the consideration set forth in Section 2.7 of the Merger Agreement.
WHEREAS, Securityholder is the holder of record of 100% of the issued and outstanding Company Capital Stock.
WHEREAS, Securityholder is entering into this Support Agreement in order to induce Parent to enter into the Merger Agreement and cause the Mergers to be consummated.
NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
AGREEMENT
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Support Agreement:
(a) Capitalized terms used but not otherwise defined in this Support Agreement have the meanings assigned to such terms in the Merger Agreement. When used in this Agreement, the following terms in all of their tenses, cases and correlative forms shall have the meanings assigned to them in this Section 1 or elsewhere in this Agreement.
(b) Associated Parties shall mean (i) Securityholders predecessors, successors, executors, administrators, trusts, spouse, heirs and estate; (ii) Securityholders past, present and future assigns; (iii) each entity that Securityholder has the power to bind (by Securityholders acts or signature) or over which Securityholder directly or indirectly exercises control; and (iv) each entity of which Securityholder owns, directly or indirectly, at least a majority of the outstanding equity, beneficial, proprietary, ownership or voting interests.
(c) Claim shall mean all past, present and future Legal Proceedings, disputes, controversies, demands, rights, obligations, damages, liabilities (whether direct or indirect, absolute, accrued, contingent or otherwise), contracts and causes of action of every kind and nature (whether matured or unmatured, absolute or contingent), including any unknown, inchoate, unsuspected or undisclosed claim.
(d) Consent shall mean any consent, approval, authorization, permit or notice.
(e) Expiration Time shall mean the earliest to occur of: (i) such date and time as the Merger Agreement is validly terminated in accordance with its terms or (ii) the Effective Time.
(f) Releasees shall mean: (i) Parent; (ii) Group Companies; (iii) Parents current and future Affiliates (including First Merger Sub, Second Merger Sub, following the First Merger, the Surviving Corporation, and, following the Second Merger, the Surviving Entity); (iv) the respective Representatives of the Persons referred to in clauses (i) through (iii) above; and (v) the respective successors and assigns of the Persons identified or otherwise referred to in the foregoing clauses (i) through (iv).
(g) Subject Securities shall have the meaning set forth in Section 7.3 herein.
(h) Voting Period shall mean the period commencing on (and including) the date of this Support Agreement and ending on (and including) the Expiration Time.
SECTION 2. SUPPORT
2.1 Transfer of Securities. Securityholder agrees not to, directly or indirectly, at any time during the Voting Period, other than as may be required by a court order or other Legal Requirement, (a) sell, assign, transfer (including by operation of law), pledge, dispose of or otherwise encumber, or otherwise agree to do any of the foregoing in respect of (each, a Transfer) any of the Subject Securities, (b) deposit any Subject Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect
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thereto that is inconsistent with this Support Agreement, (c) enter into any Contract, option or other arrangement or undertaking with respect to the direct or indirect sale, assignment, transfer (including by operation of law) or other disposition by Securityholder of any Subject Securities, or (d) take any action that would make any representation or warranty of Securityholder herein untrue or incorrect in any material respect or have the effect of preventing or disabling Securityholder from performing Securityholders obligations hereunder, except, in each case, pursuant to, or in furtherance of, the Transactions. Any Transfer or attempted Transfer of any Subject Securities in violation of any provision of this Support Agreement shall be void ab initio and of no force or effect.
2.2 Voting Covenant. Securityholder hereby agrees that, during the Voting Period, at any meeting of the holder of Company Capital Stock (the Equityholder) (whether annual or special and whether or not adjourned or postponed), however called, and in any action by written consent of the Equityholder, at or pursuant to which, as applicable, any of the matters described below are submitted for the consideration and vote of the Equityholder, unless otherwise directed in writing by Parent and to the extent Securityholder is permitted to vote pursuant to the Companys Governing Documents, Securityholder shall cause the Subject Securities to be voted:
(a) in favor of (i) the Mergers and the adoption and approval of the Merger Agreement and the terms thereof, (ii) each of the other actions contemplated by the Merger Agreement and (iii) any action reasonably in furtherance of any of the foregoing as contemplated by the terms of the Merger Agreement;
(b) against any action, proposal, agreement or transaction that, to the knowledge of Securityholder, would reasonably be expected to result in a material breach of any representation, warranty, covenant or obligation of the Company in the Merger Agreement; and
(c) against the following actions (other than pursuant to, or in furtherance of, the Transactions, or transactions disclosed in the Company Disclosure Letter): (i) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company; (ii) any sale, lease, sublease, license, sublicense or transfer of a material portion of the rights or other assets of the Company; (iii) any reorganization, recapitalization, dissolution or liquidation of the Company; (iv) any change in a majority of the board of directors of the Company; (v) any amendment to the Companys Governing Documents; (vi) any change in the capitalization of the Company or the Companys corporate structure; and (vii) any other action, proposal, agreement or transaction or proposed transaction (including any possible Company Business Combination) that is intended, or would reasonably be expected, to materially impede, interfere with, delay, postpone, discourage or adversely affect the Transactions.
Notwithstanding anything to the contrary in this Section 2.2, this Section 2.2 shall not apply to any proposal submitted to any of the Equityholders holding the number of shares of Company Capital Stock required by the terms of Section 280G(b)(5)(B) of the Code, whether at a meeting or in an action by written consent, to render the parachute payment provisions of Section 280G inapplicable to any and all payments or benefits provided pursuant to Employee Benefit Plan or other Company Contracts that might result, separately or in the aggregate, in the payment of any amount or the provision of any benefit that would not be deductible by reason of Section 280G or that would be subject to an excise tax under Section 4999 of the Code.
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2.3 Other Voting Agreements. During the Voting Period, Securityholder shall not enter into any agreement or understanding with any Person to vote or give instructions in any manner inconsistent with Section 2.2.
SECTION 3. BINDING TERMS OF MERGER AGREEMENT
3.1 Securityholder hereby agrees to be bound by, observe and comply with the terms and provisions of the Merger Agreement applicable to the Company Stockholder or the Stockholder Representative acting on behalf of the Company Stockholder (including, for the avoidance of doubt, Articles II (The Mergers) and III (Earn Out) and Sections 7.7 (No Claim Against Trust Account), 7.10 (No Solicitation), 11.1 (Stockholder Representative), 11.8 (Governing Law), 11.9 (Consent to Jurisdiction; Waiver of Jury Trial) and 11.15 (No Recourse) of the Merger Agreement) as if Securityholder were a party thereto. Without limiting the generality of the foregoing, Securityholder acknowledges and agrees that:
(a) Securityholder is the Company Stockholder for all purposes of the Merger Agreement as if Securityholder were a party thereto and, as a result, agrees to be bound by the obligations (including those with respect to indemnification of the Stockholder Representative) of the Company Stockholder under the Merger Agreement in accordance with the terms thereof;
(b) the information related to Securityholder set forth in the Initial Spreadsheet is complete and accurate and in the Final Spreadsheet will be complete and accurate, Securityholder agrees that the payment of the Total Consideration to Securityholder as set forth in the Initial Spreadsheet is correct and accurate, and Securityholder is only entitled to receive the Total Consideration in accordance with the Final Spreadsheet and is not entitled to any consideration in excess of or that varies from what is set forth in the Final Spreadsheet;
(c) to the extent that Securityholder is entitled to receive Earn Out Shares as part of the Total Consideration, such Earn Out Shares shall be issued at Closing and will have trading restrictions, will be subject to cancellation in the event that certain conditions are not met, and will be subject to the terms and provisions set forth in the Merger Agreement, including, without limitation, Article III thereof;
(d) a portion of the Total Consideration to which Securityholder would otherwise be entitled under the terms of the Merger Agreement will not be paid at the Closing, but will instead be withheld by Parent in accordance with the applicable terms of the Merger Agreement, and deposited with the Escrow Agent to secure the payment of downward adjustments, if any, to the Estimated Merger Consideration required by Section 2.11(i) of the Merger Agreement. Securityholder acknowledges that in the event that such downward adjustments, if any, to the Estimated Merger Consideration equal or exceed the amount of the Adjustment Escrow Amount, Securityholder will not be entitled to receive the Adjustment Escrow Amount and, in the event the Adjustment Escrow Amount is insufficient to satisfy such adjustments, Securityholder agrees, in accordance with Section 2.11(h) of the Merger Agreement, to pay such adjustments; and
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(e) pursuant to Section 1.3(i) of the Merger Agreement, at the Closing, a portion of the Total Consideration to which Securityholder would otherwise be entitled will not be paid at the Closing, but will instead be deposited by Parent (the Stockholder Representative Expense Holdback Amount) into an account designated by the Stockholder Representative, which may be used by the Stockholder Representative to cover Charges incurred by the Stockholder Representative in the performance of its duties under the Merger Agreement. In the event the remaining Stockholder Representative Expense Holdback Amount is at any time insufficient to satisfy the Charges, then Securityholder will be obligated to pay such deficit. Upon final resolution of all liabilities and obligations of the Company Stockholders and full reimbursement of all Charges of the Stockholder Representative as provided in the Merger Agreement, in each case, as determined in the Stockholder Representatives sole discretion, the Stockholder Representative shall distribute any remaining portion of the Stockholder Representative Expense Holdback Amount to the Securityholder. Securityholder understands that, pursuant to the terms of the Merger Agreement, Securityholder may never receive or be entitled to any portion of the Stockholder Representative Expense Holdback Amount.
3.2 Securityholder hereby irrevocably nominates, constitutes and appoints the Stockholder Representative as Securityholders agent and true and lawful attorney-in-fact of Securityholder, with full power of substitution, to act in the name, place and stead of Securityholder for purposes of executing any documents and taking any actions that the Stockholder Representative may, in the Stockholder Representatives sole discretion, determine, to the extent applicable, to be necessary, desirable or appropriate in connection with the Merger Agreement or any other agreement, document or instrument referred to in or contemplated by the Merger Agreement and any Transaction or any such other agreement, document or instrument, including with respect to any claim for indemnification, compensation or reimbursement under Section 11.1 (Stockholder Representative) of the Merger Agreement or the Escrow Agreement and in connection with any arbitration proceeding or other Legal Proceeding relating in any way to the Merger Agreement or any of the Transactions, and hereby consents and agrees to, ratifies, confirms and acknowledges that (i) Securityholder shall be bound by the terms of Section 11.1 (Stockholder Representative) of the Merger Agreement, including that it shall be bound by all that the Stockholder Representative shall already have done or caused to be done and shall do or cause to be done, by virtue of its appointment as the Stockholder Representative pursuant to and in accordance with Section 11.1 (Stockholder Representative) of the Merger Agreement; and (ii) Securityholder shall be bound by any execution, delivery, acknowledgment, certification and filing on behalf of Securityholder by the Stockholder Representative of any and all documents that the Stockholder Representative may, in its sole discretion, determine to be necessary, desirable or appropriate.
3.3 Securityholder hereby agrees that, at or prior to the Closing, it will execute and deliver (or cause to be delivered) a counterpart of each of the A&R Registration Rights Agreement and the Stockholders Agreement to Parent, in each case, to be effective as of the Closing.
SECTION 4. RELEASE BY SECURITYHOLDER
4.1 In exchange for the Total Consideration, which constitutes good and valuable consideration for this release of Claims, effective as of the Effective Time, Securityholder, on
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Securityholders behalf and on behalf of each of the applicable Associated Parties, hereby, subject to Section 4.5, (a) irrevocably, unconditionally and completely releases, acquits and forever discharges each of the Releasees of and from any and all Claims, and (b) irrevocably, unconditionally and completely waives and relinquishes each and every Claim, in the case of each of clauses (a) and (b), that Securityholder or any of the applicable Associated Parties may have had in the past, may now have or may have in the future against any of the Releasees to the extent relating to or arising out of Securityholders or any of the applicable Associated Parties (i) employment or consulting relationship with the Company at any time up to and including the date of this Support Agreement, (ii) current or former status as a director, officer or consultant of or to the Company at any time up to and including the date of this Support Agreement, or (iii) current or former status as a stockholder, holder of stock options or restricted stock units of the Company, including (A) Claims relating to the preparation, negotiation, execution or consummation of this Support Agreement, the Merger Agreement, or any other agreement, document, certificate or instrument delivered in connection with the Transactions, and (B) Claims in respect of a breach by the Companys board of directors or its individual directors and officers of their fiduciary obligations, including in connection with the negotiation and execution of the Merger Agreement and the consummation of the Transactions; provided, however, (y) Securityholder is not releasing any rights available to it under the Merger Agreement or any other agreement entered into by Securityholder in connection with the Transactions including any rights thereunder it may have to the Total Consideration and (z) Securityholder is not releasing Securityholders rights, if any, to action rising under, or in connection with, any commercial agreements as between any direct or indirect portfolio companies of the Securityholder or its Affiliates and any Group Company.
4.2 Except for the matters described in Section 4.5, Securityholder, on Securityholders behalf and on behalf of each of the applicable Associated Parties, hereby irrevocably covenants to refrain from asserting any Claim, or commencing, instituting or causing to be commenced, any Legal Proceeding of any kind against any Releasee based upon any Claim released or purported to be released hereby. If Securityholder (or any of the applicable Associated Parties) brings any claim, suit, action or manner of action against any Releasee in administrative proceedings, in arbitration or admiralty, at law, in equity, or mixed, with respect to any Claim released hereby, then Securityholder shall indemnify such Releasee in the amount or value of any final judgment or settlement (monetary or other) and any related cost (including reasonable legal fees) entered against, paid or incurred by the Releasee; provided, the foregoing shall not limit any and all actions taken by Securityholder in response to any claims commenced against such Securityholder.
4.3 Securityholder, on Securityholders behalf and on behalf of each of the applicable Associated Parties, expressly waives and releases any and all rights and benefits under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASING PARTY.
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4.4 Securityholder understands and acknowledges (for Securityholder and each of the applicable Associated Parties) that it may discover facts different from, or in addition to, those which it knows or believes to be true with respect to the Claims, and agrees that this release shall be and remain effective in all respects notwithstanding any subsequent discovery of different and/or additional facts except as described in Section 4.5.
4.5 Notwithstanding the foregoing, nothing herein shall operate to relieve any Releasee of any liability to Securityholder (or any applicable Associated Party) for intentional fraud in the event such Releasee is finally determined by a court of competent jurisdiction to have committed intentional fraud against Securityholder (or such applicable Associated Party) in connection with either (a) the conduct of the Group Companies business up to the Closing or (b) the negotiation and execution of the Merger Agreement and the consummation of the Transactions.
SECTION 5. CONFIDENTIALITY; PUBLICITY
5.1 Securityholder agrees that it understands and acknowledges that it may have had access to and may have learned (a) information proprietary to the Company, (b) other information proprietary to the Company, including trade secrets, processes, patent and trademark applications, product development, price, customer and supply lists, sales, pricing and marketing plans, policies and strategies, details of client and consultant contracts, supplier, partner, merchant, lender, originator, processor, marketer, servicer and purchaser identities, operations methods, product development techniques, business acquisition plans and all other confidential information with respect to the businesses of the Company, and (c) other confidential and/or proprietary information of the Company obtained by Securityholder prior to the earlier of (i) the Effective Time and (ii) the valid termination of the Merger Agreement, including the terms of, or other facts relating to, this Support Agreement, the Merger Agreement, the Mergers and the other Transaction Agreements and the other Transactions (collectively, Proprietary Information). Securityholder agrees as to only that, except for disclosures to such its counsel and accountants or in the proper performance of its duties with the Group Companies, it (i) will keep confidential all Proprietary Information, (ii) will not, directly or indirectly, disclose any Proprietary Information to any third party or use any Proprietary Information in any way and (iii) will not, directly or indirectly, misuse, misappropriate or exploit any Proprietary Information in any way. The restrictions contained in this Section 5 shall not apply to any information which (x) is at the Closing Date or thereafter (or if the Merger Agreement is terminated, at the date of termination or thereafter) becomes generally available to the public other than as a result of a disclosure, directly or indirectly, by Securityholder, or (y) is required to be disclosed by applicable Legal Requirements; provided that in such event, Securityholder shall use reasonable efforts to give reasonable advance notice of such requirement to the Company (if prior to the Closing) or Parent (if after the Closing) to enable the Company or Parent (at its expense) to seek a protective order or other appropriate remedy with respect to such permitted disclosure. Neither Securityholder nor any of Securityholders Affiliates shall issue or make any press release or other public announcement concerning (or otherwise disclose to any Person the existence or terms of) this Support Agreement, the Merger Agreement or any of the Transactions, without Parents and the Companys prior written consent.
5.2 Notwithstanding anything herein to the contrary, any confidentiality, non-disclosure or similar provision in this Support Agreement does not prohibit or restrict
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Securityholder from initiating communications directly with, responding to any inquiry from, making disclosures that are protected under the whistleblower provisions of federal law or regulation, or providing testimony before the Department of Justice, the Securities and Exchange Commission, the Congress, any agency Inspector General, FINRA (formerly the National Association of Securities Dealers, Inc.), any other government agency or legislative body or any self-regulatory organizations or any other state or federal regulatory authority, in each case, without advance notice to Parent or the Company. Pursuant to 18 U.S.C. § 1833(b), Securityholder will not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret of the Company that (i) is made (A) in confidence to a Federal, State, or local government official, either directly or indirectly, or to such Persons attorney and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If Securityholder files a lawsuit for retaliation by Parent or the Company for reporting a suspected violation of law, Securityholder may disclose the trade secret to such Persons attorney and use the trade secret information in the court proceeding, if such Person (i) files any document containing the trade secret under seal, and (ii) does not disclose the trade secret, except pursuant to court order. Nothing in this Support Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section.
SECTION 6. WAIVER OF APPRAISAL RIGHTS
Securityholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived and to prevent the exercise of, any rights of appraisal, any dissenters rights and any similar rights (including any notice requirements related thereto) relating to the Mergers that Securityholder or any other Person may have by virtue of, or with respect to, any shares of Company Capital Stock owned by Securityholder (including all rights under Section 262 of the DGCL).
SECTION 7. REPRESENTATIONS AND WARRANTIES OF SECURITYHOLDER
Securityholder hereby represents and warrants to Parent, the Company and the Stockholder Representative as follows:
7.1 Authorization, etc. Securityholder has the power, authority and capacity to execute and deliver this Support Agreement and to perform Securityholders obligations hereunder. This Support Agreement has been duly executed and delivered by Securityholder and constitutes a legal, valid and binding obligation of Securityholder, enforceable against Securityholder in accordance with its terms, subject only to: (a) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (b) rules of law governing specific performance, injunctive relief and other equitable remedies. Securityholder hereby further represents and warrants that: (i) Securityholder is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it was organized; (ii) the undersigned has the power to execute and deliver this Support Agreement on behalf of Securityholder; (iii) Securityholder has taken all necessary action to authorize the execution, delivery and performance of this Support Agreement; and (iv) the execution, delivery and performance of this Support Agreement by Securityholder will not violate any provision of Securityholders Governing
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Documents. Securityholder has read and understood this Support Agreement, including the complete release of Claims and waiver of jury trial contained herein, has consulted, or had the opportunity to consult, with Securityholders legal counsel or other advisors with respect thereto, has knowingly and voluntarily elected to sign and accept this Support Agreement, and has not relied upon any promise, statement, or representation that is not set forth explicitly herein in deciding to sign and accept this Support Agreement.
7.2 No Conflicts; Consents or Adverse Claims.
(a) The execution and delivery of this Support Agreement by Securityholder do not, and the performance of this Support Agreement by Securityholder will not: (i) conflict with or violate any Legal Requirement or Order applicable to Securityholder or by which Securityholder or any of Securityholders assets is or may be bound or affected; or (ii) result in or constitute (with or without notice or lapse of time) any breach of or default under, or give to any other Person (with or without notice or lapse of time) any right of termination, amendment, acceleration or cancellation of, or result (with or without notice or lapse of time) in the creation of any Lien on any of the securities of the Company owned by Securityholder pursuant to, any Contract to which Securityholder is a party or by which Securityholder or any of Securityholders Affiliates or assets is or may be bound or affected.
(b) The execution and delivery of this Support Agreement by Securityholder do not, and the performance of this Support Agreement by Securityholder will not, require any Consent of any Person.
(c) There is no Legal Proceeding by or before any Governmental Entity pending or, to the best of the knowledge of Securityholder, threatened against Securityholder or any of its Associated Parties that challenges or would challenge the execution and delivery of this Support Agreement or the taking of any of the actions required to be taken by Securityholder under this Support Agreement.
7.3 Title to Securities. As of the date of this Support Agreement: (a) Securityholder has good and valid title to and holds of record (free and clear of any Liens other than those arising under applicable securities laws, this Support Agreement or as would not otherwise restrict the performance of Securityholders obligations pursuant to this Support Agreement) 100% of the issued and outstanding shares of Company Capital Stock (along with all other securities issued in any distribution in respect of any of the foregoing, the Subject Securities) and (b) Securityholder does not own, and the Company does not have outstanding, any option, warrant, convertible note or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock or other securities of the Company other than the Subject Securities.
SECTION 8. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SECURITYHOLDER
Securityholder hereby represents and warrants to Parent, as of the date hereof, as follows:
8.1 Purchase Entirely for Own Account. This Support Agreement is made with Securityholder in reliance upon Securityholders representation to Parent, which by Securityholders execution of this Support Agreement, Securityholder hereby confirms, that the
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shares of Parent Class A Stock to be acquired by Securityholder pursuant to the Merger Agreement (collectively, the Acquired Stock) will be acquired for investment for Securityholders own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of any state or federal securities laws, and that Securityholder has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of law. By executing this Support Agreement, Securityholder further represents that Securityholder does not presently have any contract, undertaking, agreement or arrangement with any Person to sell, transfer or grant participations to such Person or to any third Person, with respect to any of the Acquired Stock.
8.2 Disclosure of Information. Securityholder has had an opportunity to discuss Parents business, management, financial affairs and the terms and conditions of the offering of the Acquired Stock with Parents management.
8.3 Restricted Securities. Securityholder understands that the offer and sale of the Acquired Stock to Securityholder has not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of Securityholders representations as expressed herein. Securityholder understands that the Acquired Stock consists of restricted securities under applicable U.S. federal and state securities laws and that, pursuant to these laws, Securityholder must hold the Acquired Stock indefinitely unless they are registered with the SEC and qualified by state authorities, or an exemption from such registration and qualification requirements is available. Securityholder acknowledges that Parent has no obligation to register or qualify the Acquired Stock, for resale, except as provided in the Registration Rights Agreement. Securityholder further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Acquired Stock, and on requirements relating to Parent which are outside of Securityholders control, and which Parent is under no obligation and may not be able to satisfy.
8.4 High Degree of Risk. Securityholder understands that its agreement to acquire the Acquired Stock involves a high degree of risk which could cause Securityholder to lose all or part of its investment.
8.5 Accredited Investor. Securityholder is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
8.6 No General Solicitation. Neither Securityholder, nor, as applicable, any of its officers, directors, employees, agents, stockholders or partners has either directly or indirectly, including, through a broker or finder (i) engaged in any general solicitation, or (ii) published any advertisement in connection with the offer and sale of the Acquired Stock.
8.7 No Ownership. Neither Securityholder nor any of its Affiliates owns any shares of capital stock of Parent or has any rights to acquire any shares of capital stock of Parent (except pursuant to the Merger Agreement).
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SECTION 9. REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to Securityholder as follows:
9.1 Authorization, etc. Parent has all necessary corporate power and authority to execute and deliver this Support Agreement and to perform its obligations hereunder. This Support Agreement has been duly executed and delivered by Parent and constitutes a legal, valid and binding obligation of Parent, enforceable against Parent in accordance with its terms, subject only to: (a) laws of general application relating to bankruptcy, insolvency and the relief of debtors; and (b) rules of law governing specific performance, injunctive relief and other equitable remedies. Parent hereby further represents and warrants that: (i) Parent is duly organized, validly existing and in good standing under the laws of the State of Delaware; (ii) the undersigned has the power to execute and deliver this Support Agreement on behalf of Parent; (iii) Parent has taken all necessary action to authorize the execution, delivery and performance of this Support Agreement; and (iv) the execution, delivery and performance of this Support Agreement by Parent will not violate any provision of Parents Governing Documents.
9.2 No Conflicts or Consents.
(a) The execution and delivery of this Support Agreement by Parent do not, and the performance of this Support Agreement by Parent will not: (i) conflict with or violate any Legal Requirement or Order applicable to Parent or by which Parent or any of its assets is or may be bound or affected; or (ii) result in or constitute (with or without notice or lapse of time) any breach of or default under, or give to any other Person (with or without notice or lapse of time) any right of termination, amendment, acceleration or cancellation of any Contract to which Parent is a party or by which Parent or any of its Affiliates or assets is or may be bound or affected.
(b) The execution and delivery of this Support Agreement by Parent do not, and the performance of this Support Agreement by Parent will not, require any Consent of any Person.
9.3 There is no Legal Proceeding by or before any Governmental Entity pending or, to the best of the knowledge of Parent, threatened against Parent or any of its Affiliates that challenges or would challenge the execution and delivery of this Support Agreement or the taking of any of the actions required to be taken by Parent under this Support Agreement.
SECTION 10. MERGER AGREEMENT CONSIDERATION.
Securityholder hereby agrees to accept the consideration allocation set forth on the Initial Spreadsheet and the allocation and amounts set forth on the Final Spreadsheet (each as adjusted under the Merger Agreement) and agrees and acknowledges that no other consideration may be claimed by Securityholder or any other Person in respect of Securityholders equity in the Company pursuant to the Governing Documents of the Company or Securityholder (as each may be amended after the date of the Merger Agreement therewith), any other Contract to which Securityholder or any other Person may be a party or Applicable Legal Requirements in respect thereof, and unconditionally and irrevocably waives and releases all rights or claims that Securityholder or any other Person might have or assert in respect of any such consideration.
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SECTION 11. ALTERNATIVE ACQUISITION PROPOSALS.
11.1 From the date hereof until the valid termination of this Support Agreement in accordance with its terms, Securityholder agrees that Securityholder shall not, and shall not authorize or permit its Representatives to, directly or indirectly, (a) solicit, initiate, enter into or continue discussions, negotiations or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to, any Person (other than Parent, its Affiliates and their respective Representatives) concerning any Company Business Combination; (b) enter into any agreement regarding, continue or otherwise participate in any discussions or negotiations regarding, or cooperate in any way that would otherwise reasonably be expected to lead to a Company Business Combination; or (c) commence, continue or renew any due diligence investigation regarding a Company Business Combination. In addition, Securityholder shall, and shall cause its Subsidiaries (if applicable) to, and each shall cause their respective Representatives to, immediately cease any and all existing discussions or negotiations with any Person with respect to any Company Business Combination. Securityholder agrees that it shall promptly inform its Representatives of the obligations undertaken in this Section 11.
SECTION 12. MISCELLANEOUS
12.1 Action in Securityholder Capacity Only. Securityholder is entering into this Support Agreement solely in its capacity as a record holder of the Subject Securities and not in any other capacity.
12.2 No Ownership Interest. Nothing contained in this Support Agreement will be deemed to vest in Parent or any of its Affiliates any direct or indirect ownership or incidents of ownership of or with respect to the Subject Securities. All rights, ownership and economic benefits of and relating to the Subject Securities will remain with, and belong to, the Securityholder and neither Parent nor any of its Affiliates will have any authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of any Group Company or exercise any power or authority to direct Securityholder in the voting of any of the Subject Securities, except as otherwise expressly provided herein or in the Merger Agreement.
12.3 Termination. The obligations of Securityholder under this Support Agreement (other than Section 5 and the provisions of this Section 12, each of which shall survive termination of this Support Agreement) shall terminate and be of no further force or effect upon the termination of the Merger Agreement prior to the Closing in accordance with its terms. Nothing in this Section 12.3 shall relieve any party of liability for any breach of this Support Agreement.
12.4 Further Assurances. From time to time and without additional consideration, Securityholder shall use its reasonable best efforts to execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, Consents and other instruments (including the Surrender Documentation), and shall take such further actions, as Parent may reasonably request for the purpose of carrying out and furthering the intent of this Support Agreement and the Merger Agreement.
12.5 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given: (a) on the date established by the sender as having been delivered
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personally; (b) one (1) Business Day after being sent by a nationally recognized overnight courier guaranteeing overnight delivery; (c) on the date delivered, if delivered by email of a pdf document; or (d) on the fifth (5th) Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications, to be valid, must be addressed as follows:
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or to such other address or to the attention of such Person or Persons as the recipient party has specified by prior written notice to the sending party (or in the case of counsel, to such other readily ascertainable business address as such counsel may hereafter maintain). If more than one method for sending notice as set forth above is used, the earliest notice date established as set forth above shall control.
12.6 Severability. In the event that any term, provision, covenant or restriction of this Support Agreement, or the application thereof, is held to be illegal, invalid or unenforceable under any present or future Legal Requirement: (a) such provision will be fully severable; (b) this Support Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (c) the remaining provisions of this Support Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Support Agreement a legal, valid and enforceable provision as similar in terms of such illegal, invalid or unenforceable provision as may be possible.
12.7 Entire Agreement. This Support Agreement, the Merger Agreement and the other Transaction Agreements, if applicable, and any other documents and instruments and agreements among the parties hereto as contemplated by or referred to herein or therein, constitute the entire agreement between the parties hereto with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings between the parties with respect thereto.
12.8 Amendment. This Support Agreement may be amended by the parties hereto at any time by execution of an instrument in writing signed on behalf of each of the parties hereto.
12.9 Assignment; Binding Effect; No Third-Party Rights. Neither this Support Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party hereto, and any attempted or purported assignment or delegation of any of such interests or obligations shall be null and void. Subject to the preceding sentence, this Support Agreement shall be binding upon each of the parties hereto, their respective heirs, estates, executors and personal representatives (if applicable) and their respective successors and assigns, and shall inure to the benefit of each of the parties hereto and their respective successors and assigns. Nothing in this Support Agreement is intended to confer on any Person (other than Parent, the Company, the Stockholder Representative and their respective successors and assigns) any rights or remedies of any nature.
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12.10 Other Remedies; Specific Performance. Except as otherwise provided herein, prior to the Closing, any and all remedies herein expressly conferred upon a party hereto will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party hereto, and the exercise by a party hereto of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Support Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each party hereto shall be entitled to enforce specifically the terms and provisions of this Support Agreement in any court having jurisdiction pursuant to Section 12.12, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the parties hereto. Each of the parties hereto hereby further acknowledges that the existence of any other remedy contemplated by this Support Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each party hereto hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.
12.11 Governing Law. This Support Agreement and the consummation of the Transactions, and any action, suit, dispute, controversy or claim arising out of this Support Agreement and the consummation of the Transactions, or the validity, interpretation, breach or termination of this Support Agreement and the consummation of the Transactions, shall be governed by and construed in accordance with the internal law of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.
12.12 Consent to Jurisdiction; Waiver of Jury Trial.
(a) Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of the Court of Chancery in the State of Delaware (or, to the extent that the such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware and the United States District Court for the District of Delaware), in each case in connection with any matter based upon or arising out of this Support Agreement, the other Transaction Agreements and the consummation of the Transactions, agrees that process may be served upon them in any manner authorized by the laws of the State of Delaware for such Person and waives and covenants not to assert or plead any objection which they might otherwise have to such manner of service of process. Each party hereto may do so only if he, she or it hereby waives, and shall not assert as a defense in any legal dispute, that: (a) such Person is not personally subject to the jurisdiction of the above named courts for any reason; (b) such Legal Proceeding may not be brought or is not maintainable in such court; (c) such Persons property is exempt or immune from execution; (d) such Legal Proceeding is brought in an inconvenient forum; or (e) the venue of such Legal Proceeding is improper. Each party hereto hereby agrees not to commence or prosecute any such
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action, claim, cause of action or suit other than before one of the above-named courts, nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action, claim, cause of action or suit to any court other than one of the above-named courts, whether on the grounds of inconvenient forum or otherwise. Each party hereto hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, and further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 12.5. Notwithstanding the foregoing in this Section 12.12, any party hereto may commence any action, claim, cause of action or suit in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO AND ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY MAY DO SO ONLY IF HE, SHE OR IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS SUPPORT AGREEMENT, EACH OF THE OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION OF THE TRANSACTIONS, AND FOR ANY COUNTERCLAIM RELATING THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. IF THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY HERETO NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NON-COMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SUPPORT AGREEMENT, THE OTHER TRANSACTION AGREEMENTS AND THE CONSUMMATION OF THE TRANSACTIONS. FURTHERMORE, NO PARTY NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY HERETO SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.
12.13 Counterparts; Electronic Delivery. This Support Agreement may be executed in one or more counterparts, all of which shall be considered one and the same document and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto, it being understood that all parties hereto need not sign the same counterpart. Delivery by electronic transmission to counsel for the other parties hereto of a counterpart executed by a party hereto shall be deemed to meet the requirements of the previous sentence.
12.14 No Presumption Against Drafting Party. Each of the parties hereto waives the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
12.15 Headings. The headings used in this Support Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.
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12.16 Extension; Waiver. At any time prior to the Closing, Parent (on behalf of itself, First Merger Sub and Second Merger Sub) with the written consent of the Company, on the one hand, and Securityholder, on the other hand, may, to the extent not prohibited by Applicable Legal Requirements: (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto; (b) waive any inaccuracies in the representations and warranties made to the other parties hereto contained herein or in any document delivered pursuant hereto; and (c) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. Delay in exercising any right under this Support Agreement shall not constitute a waiver of such right.
12.17 Independence of Obligations. The covenants and obligations of Securityholder set forth in this Support Agreement shall be construed as independent of any other Contract between Securityholder, on the one hand, and any Group Company or Parent, on the other hand. The existence of any claim or cause of action by Securityholder against any Group Company or Parent shall not constitute a defense to the enforcement of any of such covenants or obligations against Securityholder. Nothing in this Support Agreement shall limit any of the rights or remedies of Parent or the Company under the Merger Agreement, or any of the rights or remedies of Parent or any Group Company or any of the obligations of Securityholder under any agreement between such Person and Parent or any Group Company or any certificate or instrument executed by such Person in favor of Parent or any Group Company; and nothing in the Merger Agreement or in any other such agreement, certificate or instrument, shall limit any of the rights or remedies of Parent or the Company or Stockholder Representative as a third party beneficiary or any of the obligations of Securityholder under this Support Agreement.
12.18 Interpretation. The words hereof, herein, hereinafter, hereunder, and hereto and words of similar import refer to this Support Agreement as a whole and not to any particular section or subsection of this Support Agreement and reference to a particular section of this Support Agreement will include all subsections thereof, unless, in each case, the context otherwise requires. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context shall require, any pronoun shall include the corresponding masculine, feminine and neuter forms. When a reference is made in this Support Agreement to an Exhibit, such reference shall be to an Exhibit to this Support Agreement unless otherwise indicated. When a reference is made in this Support Agreement to Sections or subsections, such reference shall be to a Section or subsection of this Support Agreement. Unless otherwise indicated the words include, includes and including when used herein shall be deemed in each case to be followed by the words without limitation. Reference to the subsidiaries of an entity shall be deemed to include all direct and indirect subsidiaries of such entity. The word or shall be disjunctive but not exclusive. References to a particular statute or regulation including all rules and regulations thereunder and any predecessor or successor statute, rule, or regulation, in each case as amended or otherwise modified from time to time. All references to currency amounts in this Support Agreement shall mean United States dollars.
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IN WITNESS WHEREOF, the parties have caused this Support Agreement to be executed as of the date first written above.
CRESCENT ACQUISITION CORP | ||||
By: |
/s/ Christopher G. Wright |
|||
Name: | Christopher G. Wright | |||
Title: | President |
Signature Page to Support Agreement
LIVEVOX HOLDINGS, INC. | ||
By: |
/s/ Louis Summe |
|
Name: Louis Summe | ||
Title: President |
Signature Page to Support Agreement
GGC SERVICES HOLDCO, INC., solely in its capacity as the Stockholder Representative | ||
By: |
/S/ Stephen D. Oetgen |
|
Name: Stephen D. Oetgen | ||
Title: President and Secretary |
Signature Page to Support Agreement
IN WITNESS WHEREOF, the parties have caused this Support Agreement to be executed as of the date first written above.
LIVEVOX TOPCO, LLC | ||
By: |
/s/ Stewart M. Bloom |
|
Name: Stewart M. Bloom | ||
Title: Chairman of the Board |
Signature Page to Support Agreement
Exhibit 10.5
Execution Version
SHARE ESCROW AGREEMENT
This SHARE ESCROW AGREEMENT (this Agreement) is made and entered into as of January 13, 2021, by and among Crescent Acquisition Corp, a Delaware corporation (Parent), CFI Sponsor LLC, a Delaware limited liability company (Sponsor), Kathleen S. Briscoe, John J. Gauthier and Jason D. Turner (Jason D. Turner, together with Kathleen S. Briscoe and John J. Gauthier, the Directors). Each of the Parent, Sponsor and the Directors shall individually be referred to herein as a Party and, collectively, the Parties.
RECITALS
A. Parent, Function Acquisition I Corp, a Delaware corporation and a direct, wholly owned subsidiary of Parent, Function Acquisition II LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of Parent, LiveVox Holdings, Inc., a Delaware corporation (the Company) and GGC Services Holdco, Inc., a Delaware corporation, solely in its capacity as representative, agent and attorney-in-fact of the Company Stockholder thereunder, are entering into an Agreement and Plan of Merger of even date herewith (the Merger Agreement). Capitalized terms used and not defined herein shall have the meaning ascribed thereto in the Merger Agreement.
B. Sponsor and the Directors are entering into this Agreement in order to induce the Company to enter into the Merger Agreement and cause the Transactions to be consummated.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Escrow Shares.
(a) Immediately following and contingent upon the occurrence of the Closing, Sponsor shall place 2,687,500 shares of Parent Class A Stock converted from Parent Class F Stock (the Sponsor Escrow Shares), Kathleen S. Briscoe shall place 18,750 shares of Parent Class A Stock converted from Parent Class F Stock (the Briscoe Escrow Shares), John J. Gauthier shall place 18,750 shares of Parent Class A Stock converted from Parent Class F Stock (the Gauthier Escrow Shares) and Jason D. Turner shall place 18,750 shares of Parent Class A Stock converted from Parent Class F Stock (the Turner Escrow Shares and, together with the Sponsor Escrow Shares, Briscoe Escrow Shares and the Gauthier Escrow Shares, the Escrow Shares) into the Earn Out Escrow Account. The Parties agree that (i) Sponsor shall be treated as the owner of the unreleased Sponsor Escrow Shares for income Tax purposes until such Sponsor Escrow Shares are forfeited, (ii) Kathleen S. Briscoe shall be treated as the owner of the unreleased Briscoe Escrow Shares for income Tax purposes until such Briscoe Escrow Shares are forfeited, (iii) John J. Gauthier shall be treated as the owner of the unreleased Gauthier Escrow Shares for income Tax purposes until such Gauthier Escrow Shares are forfeited and (iv) Jason D. Turner shall be treated as the owner of the unreleased Turner Escrow Shares for income Tax purposes until such Turner Escrow Shares are forfeited, and, in each case, the Parties shall file all tax returns consistent with such treatment.
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(b) Promptly upon the occurrence of any Escrow Triggering Event, or as soon as practicable after Parent becomes aware of the occurrence of such Escrow Triggering Event or receives written notice of an Escrow Triggering Event from Sponsor or the Directors, Parent shall prepare and deliver, or cause to be prepared and delivered, a written notice to the Earn Out Escrow Agent and to Sponsor and the Directors (an Escrow Release Notice), which Escrow Release Notice shall set forth in reasonable detail the Escrow Triggering Event giving rise to the requested release and the specific release instructions with respect thereto (including the number of Escrow Shares to be released and the identity of the person(s) to whom they should be released).
(c) Neither Sponsor nor the Directors shall, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, any of the Sponsor Escrow Shares, the Briscoe Escrow Shares, the Gauthier Escrow Shares or the Turner Escrow Shares, respectively, until the date on which an Escrow Triggering Event (as defined below) has occurred and such shares have been released to Sponsor or the Directors, as applicable. Notwithstanding the foregoing, Sponsor and the Directors acknowledge that the Sponsor Escrow Shares, the Briscoe Escrow Shares, the Gauthier Escrow Shares and the Turner Escrow Shares are subject to additional restrictions with respect to the sale, transfer or disposition of such interests as set forth in the A&R Registration Rights Agreement.
(d) Any Escrow Shares not eligible to be released from the Earn Out Escrow Account in accordance with the terms of this Agreement on or before the seventh (7th) anniversary of the Closing Date shall immediately thereafter be forfeited to Parent and canceled and Sponsor, or the Directors, as applicable, shall not have any rights with respect thereto.
2. Release of Escrow Shares. The Escrow Shares shall be released and delivered as follows (each, a Escrow Triggering Event):
(a) 725,000 Sponsor Escrow Shares (and any applicable stock powers) will be released and distributed to or on behalf of Sponsor as set forth in the Escrow Release Notice, 18,750 Briscoe Escrow Shares (and any applicable stock powers) will be released and distributed to or on behalf of Kathleen S. Briscoe as set forth in the Escrow Release Notice, 18,750 Gauthier Escrow Shares (and any applicable stock powers) will be released and distributed to or on behalf of John J. Gauthier as set forth in the Escrow Release Notice and 18,750 Turner Escrow Shares (and any applicable stock powers) will be released and distributed to or on behalf of Jason D. Turner as set forth in the Escrow Release Notice from the Earn Out Escrow Account upon receipt of the applicable Escrow Release Notice by the Earn Out Escrow Agent if the Volume Weighted Average Share Price equals or exceeds $12.50 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing on the Nasdaq or any other national securities exchange;
(b) 781,250 Sponsor Escrow Shares (and any applicable stock powers) will be released and distributed to or on behalf of Sponsor as set forth in the Escrow Release Notice from the Earn Out Escrow Account upon receipt of the applicable Escrow Release Notice by the Earn Out Escrow Agent if the Volume Weighted Average Share Price equals or exceeds $15.00 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing on the Nasdaq or any other national securities exchange; and
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(c) the remaining 1,181,250 Sponsor Escrow Shares (and any applicable stock powers) will be released and distributed to or on behalf of Sponsor as set forth in the Escrow Release Notice from the Earn Out Escrow Account upon receipt of the applicable Escrow Release Notice by the Earn Out Escrow Agent if the Volume Weighted Average Share Price equals or exceeds $17.50 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing on the Nasdaq or any other national securities exchange.
(d) Notwithstanding anything to the contrary herein, in the event that any of the Earn Out Shares are released from the Earn Out Escrow Account and distributed to the Company Stockholder for any reason, then a corresponding percentage of then outstanding Sponsor Escrow Shares, the Briscoe Escrow Shares, the Gauthier Escrow Shares and the Turner Escrow Shares shall be simultaneously released from the Earn Out Escrow Account and distributed to Sponsor and each of the Directors, respectively, and the number of shares of Parent Class A Stock eligible to be released from the Earn Out Escrow Account pursuant to Section 2 shall be reduced to reflect such distribution.
3. Equitable Adjustments. The Volume Weighted Average Share Price targets set forth in Section 2 and the number of shares of Parent Class A Stock to be released from the Earn Out Escrow Account pursuant to Section 2 shall be equitably adjusted for any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event affecting the Parent Class A Stock after the date of this Agreement.
4. Acceleration Event. If, on or before the seventh (7th) anniversary of the Closing Date, there is a Change of Control that will result in the holders of Parent Class A Stock receiving a per share price equal to or in excess of the applicable Volume Weighted Average Share Price required in connection with any Escrow Triggering Event, then immediately prior to the consummation of such Change of Control: (a) any such Escrow Triggering Event that has not previously occurred shall be deemed to have occurred; and (b) Parent shall cause the Earn Out Escrow Agent to release the applicable Escrow Shares to or on behalf of Sponsor and the Directors, respectively, and Sponsor and the Directors shall be eligible to participate in such Change of Control.
5. Rights in Escrow Shares.
(a) Effective as of the Closing, (i) Sponsor shall have the right to vote the unreleased Sponsor Escrow Shares until such Sponsor Escrow Shares are forfeited as if Sponsor was the owner of record such Sponsor Escrow Shares, (ii) Kathleen S. Briscoe shall have the right to vote the unreleased Briscoe Escrow Shares until such Briscoe Escrow Shares are forfeited as if Kathleen S. Briscoe was the owner of record such Briscoe Escrow Shares, (iii) John J. Gauthier shall have the right to vote the unreleased Gauthier Escrow Shares until such Gauthier Escrow Shares are forfeited as if John J. Gauthier was the owner of record such Gauthier Escrow Shares, and (iv) Jason D. Turner shall have the right to vote the unreleased Turner Escrow Shares until such Turner Escrow Shares are forfeited as if Jason D. Turner was the owner of record such Turner Escrow Shares.
(b) Until Escrow Shares have been released or been forfeited hereunder, an amount equal to any dividends or distributions that would have been payable to a Party with respect
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to its Escrow Shares if the Escrow Shares had been released prior to the record date for such dividends or distributions shall be delivered by Parent to the Earn Out Escrow Agent for the benefit of such Party with respect to the Escrow Shares (the Withheld Amount). If any securities of Parent or any other Person are included in the Withheld Amount, then any dividends or distributions in respect of or in exchange for any of such securities in the Withheld Amount, whether by way of stock splits or otherwise, shall be delivered to the Earn Out Escrow Agent and included in the Withheld Amount, and will be released to Sponsor or the Directors, as applicable, upon the release of the corresponding securities. If and when the Escrow Shares are released in accordance with Section 2, the Earn Out Escrow Agent shall release to Sponsor or the Directors, as applicable, the aggregate amount of the Withheld Amount attributable to such Partys Escrow Shares that have been released and, if applicable, shall continue to withhold any remaining Withheld Amount that is attributable to such Partys Escrow Shares that have not yet been released until such Escrow Shares are released, in which case such remaining Withheld Amount shall be released to Sponsor or the Directors, as applicable, with respect to such Partys Escrow Shares. If all or any portion of the Escrow Shares are forfeited to Parent in accordance with Section 1, then the portion of the Withheld Amount attributable to the portion of the Escrow Shares that have been forfeited to Parent shall be automatically forfeited to Parent without consideration and with no further action required of any person.
6. Representations and Warranties. Sponsor and each of the Directors, severally and not jointly, represents and warrants to Parent as follows:
(a) To the extent each party is an entity, such Party (i) is duly incorporated or organized, validly existing and in good standing under the laws of the State of Delaware and (ii) is not in violation of any of the provisions of its Governing Documents.
(b) Such Partys Escrow Shares (i) are not subject to any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right, and (ii) are owned by such Party, free and clear of all Liens (other than Liens created under Parents Governing Documents, the A&R Registration Rights Agreement, or under applicable securities Legal Requirements).
(c) Such Party has the requisite power and authority to: (a) execute, deliver and perform this Agreement; and (b) carry out its obligations hereunder. The execution and delivery by such Party of this Agreement, and the consummation by such Party of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of such Party, and no other proceedings on the part of such Party are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Party and, assuming the due authorization, execution and delivery of this Agreement by the other Parties, constitutes the legal and binding obligations of such Party, enforceable against such Party in accordance with its terms, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally or by principles governing the availability of equitable remedies.
(d) Neither the execution, delivery nor performance by such Party of this Agreement nor the consummation of the transactions contemplated hereby shall: (i) conflict with
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or violate such Partys Governing Documents; (ii) conflict with or violate any Applicable Legal Requirements; or (iii) result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or materially impair their respective rights or alter the rights or obligations of any third party under, or give to others any rights of consent, termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the properties or assets of such Party or any of its Subsidiaries pursuant to, any Contracts, except, with respect to clause (iii), as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Party.
(e) The execution and delivery by such Party of this Agreement does not, and the performance of its obligations hereunder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to be material to such Party or reasonably be expected to prevent or materially delay or materially impair the consummation of the transactions contemplated by this Agreement or the ability of such Party to perform its obligations under this Agreement.
7. Miscellaneous.
(a) Further Assurances. From time to time and without additional consideration, each party hereto shall use its reasonable best efforts to execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, consents and other instruments, and shall take such further actions, as any party hereto may reasonably request for the purpose of carrying out and furthering the intent of this Agreement.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given: (i) on the date established by the sender as having been delivered personally; (ii) one (1) Business Day after being sent by a nationally recognized overnight courier guaranteeing overnight delivery; (iii) on the date delivered, if delivered by email of a pdf document; or (iv) on the fifth (5th) Business Day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications, to be valid, must be addressed as follows:
if to Sponsor (or, prior to the Closing, to Parent), to:
CFI Sponsor LLC
11100 Santa Monica Blvd., Suite 2000
Los Angeles, CA 90025
Attention: George Hawley
Email: george.hawley@crescentcap.com
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with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Suite #1400
Palo Alto, CA 94301
Attention: Michael J. Mies
Email: michael.mies@skadden.com
if to Parent following the Closing, to:
LiveVox, Inc.
450 Sansome Street, 9th Floor
San Francisco CA 94111
Attention: Mark Mallah
E-mail: MMallah@livevox.com
and to:
Golden Gate Private Equity, Inc.
One Embarcadero Center, Suite 3900
San Francisco, CA 94111
Attention: Stephen D. Oetgen and Rishi Chandna
E-mail: rchandna@goldengatecap.com
soetgen@goldengatecap.com
with copies (which shall not constitute notice) to:
Kirkland & Ellis LLP
555 California Street, Suite 2900
San Francisco, CA 94104
Attention: Jeremy M. Veit, P.C.; James W. Beach
E-mail: jeremy.veit@kirkland.com
james.beach@kirkland.com
if to the Directors:
c/o CFI Sponsor LLC
11100 Santa Monica Blvd., Suite 2000
Los Angeles, CA 90025
Attention: George Hawley
Email: george.hawley@crescentcap.com
or to such other address or to the attention of such Person or Persons as the recipient party has specified by prior written notice to the sending party (or in the case of counsel, to such other readily ascertainable business address as such counsel may hereafter maintain). If more than one method for sending notice as set forth above is used, the earliest notice date established as set forth above shall control.
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(c) Severability. In the event that any term, provision, covenant or restriction of this Agreement, or the application thereof, is held to be illegal, invalid or unenforceable under any present or future Legal Requirement: (i) such provision will be fully severable; (ii) this Agreement will be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom; and (iv) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms of such illegal, invalid or unenforceable provision as may be possible.
(d) Amendment. This Agreement may be amended by the parties hereto at any time by execution of an instrument in writing signed on behalf of each of the parties hereto.
(e) Assignment; Binding Effect. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party hereto, and any attempted or purported assignment or delegation of any of such interests or obligations shall be null and void. Subject to the preceding sentence, this Agreement shall be binding upon each of the parties hereto, their respective heirs, estates, executors and personal representatives (if applicable) and their respective successors and assigns, and shall inure to the benefit of each of the parties hereto and their respective successors and assigns.
(f) Other Remedies; Specific Performance. Except as otherwise provided herein, prior to the Closing, any and all remedies herein expressly conferred upon a party hereto will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party hereto, and the exercise by a party hereto of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each party hereto shall be entitled to enforce specifically the terms and provisions of this Agreement in any court having jurisdiction pursuant to Section 7(g), without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the parties hereto hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief and/or specific performance will not cause an undue hardship to the parties hereto. Each of the parties hereto hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each party hereto hereby further agrees that in the event of any action by any other party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.
(g) Governing Law. This Agreement, and any action, suit, dispute, controversy or claim arising out of this Agreement, or the validity, interpretation, breach or termination of this Agreement, shall be governed by and construed in accordance with the internal law of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.
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(h) Consent to Jurisdiction; Waiver of Jury Trial.
(i) Each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of the Court of Chancery in the State of Delaware (or, to the extent that such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware and the United States District Court for the District of Delaware), in each case in connection with any matter based upon or arising out of this Agreement, agrees that process may be served upon them in any manner authorized by the laws of the State of Delaware for such Person and waives and covenants not to assert or plead any objection which they might otherwise have to such manner of service of process. Each party hereto and any Person asserting rights as a third-party beneficiary may do so only if he, she or it hereby waives, and shall not assert as a defense in any legal dispute, that: (A) such Person is not personally subject to the jurisdiction of the above named courts for any reason; (B) such Legal Proceeding may not be brought or is not maintainable in such court; (C) such Persons property is exempt or immune from execution; (D) such Legal Proceeding is brought in an inconvenient forum; or (E) the venue of such Legal Proceeding is improper. Each party hereto and any Person asserting rights as a third-party beneficiary hereby agrees not to commence or prosecute any such action, claim, cause of action or suit other than before one of the above-named courts, nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such action, claim, cause of action or suit to any court other than one of the above-named courts, whether on the grounds of inconvenient forum or otherwise. Each party hereto hereby consents to service of process in any such proceeding in any manner permitted by Delaware law, and further consents to service of process by nationally recognized overnight courier service guaranteeing overnight delivery, or by registered or certified mail, return receipt requested, at its address specified pursuant to Section 7(b). Notwithstanding the foregoing, any party hereto may commence any action, claim, cause of action or suit in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
(ii) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO AND ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY MAY DO SO ONLY IF HE, SHE OR IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY ON ANY CLAIMS OR COUNTERCLAIMS ASSERTED IN ANY LEGAL DISPUTE RELATING TO THIS AGREEMENT, AND FOR ANY COUNTERCLAIM RELATING THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. IF THE SUBJECT MATTER OF ANY SUCH LEGAL DISPUTE IS ONE IN WHICH THE WAIVER OF JURY TRIAL IS PROHIBITED, NO PARTY HERETO NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL ASSERT IN SUCH LEGAL DISPUTE A NON-COMPULSORY COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. FURTHERMORE, NO PARTY HERETO NOR ANY PERSON ASSERTING RIGHTS AS A THIRD-PARTY BENEFICIARY SHALL SEEK TO CONSOLIDATE ANY SUCH LEGAL DISPUTE WITH A SEPARATE ACTION OR OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT BE WAIVED.
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(i) Counterparts; Electronic Delivery. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same document and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto, it being understood that all parties hereto need not sign the same counterpart. Delivery by electronic transmission to counsel for the other parties hereto of a counterpart executed by a party hereto shall be deemed to meet the requirements of the previous sentence.
(j) Headings. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof.
(k) No Presumption Against Drafting Party. Each party hereto waives the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
(l) Interpretation. The words hereof, herein, hereinafter, hereunder, and hereto and words of similar import refer to this Agreement as a whole and not to any particular section or subsection of this Agreement and reference to a particular section of this Agreement will include all subsections thereof, unless, in each case, the context otherwise requires. The definitions of the terms herein shall apply equally to the singular and plural forms of the terms defined. When a reference is made in this Agreement to Sections or subsections, such reference shall be to a Section or subsection of this Agreement. Unless otherwise indicated the words include, includes and including when used herein shall be deemed in each case to be followed by the words without limitation. The word or shall be disjunctive but not exclusive. References to a particular statute or regulation including all rules and regulations thereunder and any predecessor or successor statute, rule, or regulation, in each case as amended or otherwise modified from time to time.
The remainder of this page is intentionally left blank.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
SPONSOR | ||||
CFI SPONSOR LLC | ||||
By: |
/s/ Robert D. Beyer |
|||
Name: | Robert D. Beyer | |||
Title: | Member |
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
KATHLEEN S. BRISCOE | ||
By: |
/s/ Kathleen S. Briscoe |
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
JOHN J. GAUTHIER | ||
By: |
/s/ John J. Gauthier |
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
JASON D. TURNER | ||
By: |
/s/ Jason D. Turner |
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
CRESCENT ACQUISITION CORP | ||||
By: |
/s/ Christopher G. Wright |
|||
Name: | Christopher G. Wright | |||
Title: | President |
Exhibit 10.6
EXECUTION VERSION
FINDERS AGREEMENT
This FINDERS AGREEMENT (Agreement) is made and entered into as of January 13, 2021 (Execution Date), by and among Crescent Acquisition Corp, a Delaware corporation (SPAC) and Neuberger Berman BD LLC, a Delaware limited liability company (Finder).
WHEREAS, SPAC is a blank check company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses (Business Combination) and, in connection with such, desires to formally engage the services of Finder for its introduction of the SPAC to LiveVox, Inc. (together with its parent entity and other affiliates, the Potential Target), a company that is (or the parent company of which is) a potential candidate for such Business Combination, subject to the terms and conditions contained herein; and
WHEREAS, Finders willingness to introduce and refer the Potential Target to SPAC was upon the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, the parties hereto agree as follows:
(1) |
Referral Services |
(a) |
Finder has introduced the Potential Target to SPAC by providing contact information of the Potential Target and/or its primary stockholder. |
(b) |
Finder agrees that SPAC shall have the right, in its sole discretion, to pursue or not pursue a Business Combination with the Potential Target. |
(c) |
SPAC shall promptly notify Finder, in accordance with Section (9)(f) below, of any relationship with the Potential Target which would void its obligations to Finder, under the terms of this Agreement. |
(2) |
Compensation |
(a) |
In return for introducing the Potential Target to SPAC, SPAC agrees to compensate Finder as described and pursuant to the terms and conditions in Schedule A and provide Finder with certain registration rights as described and pursuant to the terms and conditions in Schedule B. Notwithstanding anything in this Agreement to the contrary, SPAC shall not be obligated to pay any compensation under this Agreement if SPAC does not consummate a Business Combination with the Potential Target. |
(b) |
Neither party shall reimburse the other for expenses incurred in connection with this Agreement and any Business Combination related thereto. |
(c) |
Notwithstanding anything in this Agreement to the contrary, SPAC shall not be obligated to pay any compensation hereunder if such payment would be inconsistent with applicable law. SPACs obligation to pay any compensation under this Agreement will not arise and will be suspended if at any time Finder determines, in good faith, that the payment of any compensation by SPAC, or the receipt of any compensation by Finder, may be inconsistent with any statute, rule, regulation or regulatory or self-regulatory organization interpretation to which SPAC or Finder is subject. If Finder makes such a determination, it will promptly notify SPAC to that effect in writing, and SPAC and Finder will endeavor to amend this Agreement, and to take such other actions, as necessary or appropriate, in each partys reasonable judgment, to permit, on commercially practicable terms, the payment of fees or reasonably equivalent total compensation by SPAC, and the receipt of fees by Finder, in a manner consistent with applicable laws and the requirements of all governmental authorities and self-regulatory organizations having authority over SPAC or Finder. |
(3) |
Finders Representations, Warranties and Covenants |
(a) |
Finder represents and warrants to SPAC that it has complied and hereafter will comply with all federal, state and local laws and regulations governing Finders business, including federal and state broker dealer laws and regulations, and the performance of Finders obligations hereunder, including, without limitation, obtaining and maintaining all licenses and permits required to conduct Finders business. Finder shall comply with all laws that are in effect in any jurisdiction in which it operates. |
(b) |
Finder represents, warrants and agrees that, in introducing the Potential Target to SPAC and engaging in activities under this Agreement, Finder shall act in compliance with the Securities Act of 1933, as amended (the Securities Act), the Securities Exchange Act of 1934, as amended (the Exchange Act), the Investment Advisers Act of 1940, the Investment Company Act of 1940, and the rules and regulations promulgated thereunder, and the applicable rules and regulations of each state. |
(c) |
Finder represents and warrants that it is a broker-dealer duly registered with the Securities and Exchange Commission (SEC) under the Exchange Act, a member of the Financial Industry Regulatory Authority, Inc. (FINRA) and qualified to conduct business as a broker-dealer in each of the jurisdictions in which Finder conducts business or may engage in services under this Agreement. |
(d) |
Finder represents, warrants and agrees that, in introducing the Potential Target to SPAC and engaging in activities under this Agreement, Finder shall not (i) offer, effect or facilitate the sale of securities to SPAC; (ii) participate or assist in any negotiations regarding the offer and sale of securities of the Potential Target; (iii) advise the Potential Target or SPAC regarding the merits of purchasing or selling securities or engaging in securities transactions; (iv) provide valuations to SPAC regarding securities; (v) hold, handle or control any funds or securities of SPAC; (vi) accept or direct orders for securities from SPAC; (vii) intermediate any communications between SPAC and the Potential Target other than the initial |
2
introduction; (viii) transmit any documents related to securities or securities transactions between SPAC and the Potential Target; (ix) extend or arrange for the extension of equity or debt financing to SPAC in connection with the purchase of securities, including securities to be purchased in the Business Combination; or (x) engage in any activity in violation of applicable law. |
(4) |
SPACs Representations, Warranties and Covenants |
(a) |
SPAC represents and warrants that it has the requisite power and authority to execute and deliver this Agreement and to pay the compensation contemplated hereby, including the authorization, issuance, and delivery of the Class A Shares (as defined in Schedule A). The execution and delivery of the Agreement, issuance and delivery of Class A shares and payment of such Class A Shares as compensation in accordance with the terms of the Agreement to the Finder have been duly authorized by all necessary corporate and stockholder action on the part of the SPAC and this Agreement constitutes a legal, valid and binding obligation of the SPAC. |
(5) |
Term and Termination |
(a) |
This Agreement shall take effect as of the date written above and shall continue for six (6) months from the date hereof. Thereafter, this Agreement may be extended if agreed to in writing by the Parties. |
(b) |
This Agreement may be terminated upon the mutual consent of both parties or, by either party, if the other party breaches any of its obligations under this Agreement and fails to remedy such breach within ten (10) days after written notice of such breach is provided to the other party specifying in reasonable detail the nature of such breach. |
(c) |
Following termination of this Agreement, SPAC shall have no further responsibility to Finder except to (i) pay compensation in accordance with Schedule A that is then due and (ii) pay when it becomes due, compensation in accordance with Schedule A for introduction of the Potential Target prior to termination. Except as expressly stated herein, SPAC shall have no liability to pay compensation to Finder after the effective date of termination of this Agreement. |
(6) |
Confidentiality |
(a) |
SPAC Information. Finder agrees at all times during the term of this Agreement and thereafter to hold in strictest confidence, and not to use, except in connection with Finders performance of services under this Agreement, and not to disclose to any person or entity without written authorization of SPAC, any Confidential Information of SPAC. As used herein, Confidential Information means any SPAC proprietary or confidential information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, |
3
marketing, distribution and sales methods and systems, sales and profit figures, and financial and other business information disclosed to Finder by SPAC, either directly or indirectly, in writing, orally or by drawings or inspection of documents or other tangible property. However, Confidential Information does not include any information: (i) which was lawfully in the possession of Finder without any obligation of confidentiality prior to receiving such information from SPAC; (ii) which is obtained by Finder from a source that is not prohibited from disclosing the information to Finder by an obligation of confidentiality; (iii) which is or becomes generally available to the public other than as a result of a disclosure by Finder or its agents; or (iv) which is developed independently by Finder without use of the Confidential Information or reference thereto. In the event that Finder is ordered to disclose Confidential Information pursuant to a judicial, governmental or self-regulatory organization request or an order or in a judicial or governmental proceeding (Required Disclosure), Finder shall, to the extent legally permissible: (i) promptly notify SPAC; (ii) take reasonable steps to assist SPAC in contesting such Required Disclosure or otherwise protecting SPACs rights but shall not be responsible for any costs associated with such assistance, including its own legal fees; and (iii) only disclose that portion of the Confidential Information specifically required to be disclosed pursuant to such Required Disclosure. |
(7) |
Indemnification |
(a) |
Finder agrees to indemnify and hold harmless SPAC and its affiliates and their respective officers, directors, employees and controlling persons (collectively, the SPAC Indemnified Persons) from and against any losses, claims, damages, liabilities and expenses, including reasonable attorneys fees (collectively, Losses), to which SPAC Indemnified Persons may become subject arising out of or related to Finders breach of this Agreement. Notwithstanding anything contained herein to the contrary, Finder will not indemnify any SPAC Indemnified Person for any Losses that are a result of such indemnified persons negligence, bad faith or willful misconduct. |
(b) |
SPAC agrees to indemnify and hold harmless Finder and its affiliates and their respective officers, directors, employees and controlling persons and, subject to compliance with the provisions of this Agreement, those persons or entities retained or paid by Finder to assist Finder with its duties under this Agreement (collectively, the Finder Indemnified Persons) from and against any Losses to which Finder Indemnified Persons may become subject arising out of or related to SPACs breach of this Agreement. Notwithstanding anything contained herein to the contrary, SPAC will not indemnify any Finder Indemnified Person for any Losses that are a result of such indemnified partys negligence, bad faith or willful misconduct. |
(c) |
Each indemnifying party agrees to promptly reimburse each indemnified person for all reasonable expenses (including reasonable attorney fees and reasonable expenses of legal counsel) incurred in connection with the investigation, preparation for or defense of any pending or threatened claim related to or arising in any manner out of this Agreement and the transactions contemplated hereunder |
4
for which indemnification may be sought (collectively, a Proceeding). Each indemnifying party further agrees that it will not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment in any threatened or pending Proceeding in respect of which indemnification may be sought hereunder unless such settlement, compromise or consent includes an unconditional release of the indemnified parties and holds each indemnified party harmless against all liability arising out of such Proceeding. |
(8) |
Independent Contractor Status |
(a) |
Independent Contractor Status. The parties expressly understand and agree that Finders relationship to SPAC is that of an independent contractor and not that of an employee, officer, agent or otherwise. Finder shall have no restrictions on its ability to provide similar services to companies other than SPAC, including with respect to the Potential Target . Finder has no authority to accept any order or to bind or obligate SPAC in any way. Finder will not, without specific prior written authority from SPAC, and without accepting and acknowledging the same in writing, act in any way, either directly or indirectly, as SPACs agent or representative. |
(9) |
General Provisions |
(a) |
Entire Agreement. This Agreement contains the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements and understandings. This Agreement may not be modified or amended except in writing signed by both parties to the Agreement. |
(b) |
No Waiver. Neither the failure nor any delay by either SPAC or Finder to exercise any right, remedy, power or privilege under this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver with respect to any occurrence be construed as a waiver with respect to any other occurrence. No waiver of any right, remedy, power or privilege under this Agreement shall be effective unless such waiver is in writing signed by the party to be charged thereby. |
(c) |
Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected by or rendered invalid or unenforceable because any other provision of this Agreement may be held to be invalid or unenforceable in whole or in part. |
(d) |
Capacity. Each party represents and warrants (i) that its entry into this Agreement and performance of all the terms of this Agreement will not breach any other agreement or other obligation to which it is subject or by which it is bound; and (ii) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action and, upon execution and delivery hereof, this Agreement will be a valid, binding and enforceable obligation. |
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(e) |
Choice of Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (excepting any conflicts of law provisions that would serve to defeat the operation of New York substantive law). Each party submits to the exclusive jurisdiction of federal and state courts sitting in the State of New York with respect to any dispute arising under this Agreement and waives, to the fullest extent permitted by law, any claim of inconvenient forum or other defense that would serve to defeat such jurisdiction. The prevailing party shall be entitled to recover all legal costs from the non-prevailing party arising from the enforcement of this Agreement. Notwithstanding and subject to Section (9)(g), each of Finder and SPAC expressly, knowingly and irrevocably waives any right it may have to a jury trial in the event of any dispute involving this Agreement. |
(f) |
Notices. All notices and other communications hereunder shall be deemed given upon (i) confirmed delivery by a standard overnight carrier to the recipients address set forth below, or (ii) delivery by hand to the recipients address set forth below (or, in each case, to or at such other facsimile number or address for a party as such party may specify by notice given in accordance with this Section): |
If to SPAC (prior to the consummation of the Business Combination with the Potential Target):
Crescent Acquisition Corp, Todd M. Purdy, Chief Executive Officer, 11100 Santa Monica Boulevard, Suite 2000, Los Angeles, CA 90025
Email: todd.purdy@crescentcap.com
If to SPAC (following the consummation of the Business Combination with the Potential Target):
Attention: Stephen D. Oetgen and Rishi Chandna, Golden Gate Private Equity, Inc., One Embarcadero Center, Suite 3900, San Francisco, CA 94111
Email: rchandna@goldengatecap.com; soetgen@goldengatecap.com; legal@goldengatecap.com
If to Finder:
Attention: Neuberger Berman BD LLC, Office of the Chief Financial Officer, 1290 Avenue of the Americas, New York, NY 10104
Email: ckantor@nb.com; William.arnold@nb.com, ralph.defepo@nb.com, corey.issing@nb.com
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(g) |
Disputes. Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, including, without limitation, any claim that this Agreement, or any part thereof, is invalid, illegal, or otherwise voidable or void, may be submitted to final and binding arbitration before, and in accordance with, the rules of the American Arbitration Association, and judgment upon the award may be entered in any court having jurisdiction thereof upon mutual agreement of the parties hereto; provided, however, that this clause shall not be construed to limit any rights which either party may have to bring an action in a court of law or equity. All fees and expenses for this arbitration shall be borne equally between the parties hereto; provided, however, that the prevailing party shall be entitled to be reimbursed for all reasonable fees and expenses. |
(h) |
Survival. Sections (5)(c), (6), (7), (9) and Schedule B, to the extent Finder holds Registrable Securities (as defined in Schedule B), shall survive termination of this Agreement. |
(i) |
Assignments. This Agreement shall be for the benefit of and binding upon the parties hereto and their respective successors and permitted assigns. Neither party may assign this Agreement or its rights or obligations hereunder without the prior written consent of the other party hereto, and any purported assignment in breach of this clause shall be void. The parties expressly intend and agree that there are no third party beneficiaries (other than any Indemnified Persons) of this Agreement. |
(j) |
Captions. Captions herein are for convenience only and are not of substantive effect. |
(k) |
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, which together shall constitute one and the same agreement. |
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IN WITNESS WHEREOF, the undersigned have executed this Consulting and Finder Agreement as of the date first above written.
CRESCENT ACQUISITION CORP | ||
By: |
/s/ Christopher G. Wright |
|
Name: Christopher G. Wright | ||
Title: President | ||
Neuberger Berman BD LLC | ||
By: |
/s/ Joseph V. Amato |
|
Name: Joseph V. Amato | ||
Title: President |
SCHEDULE A
Compensation
As compensation for introduction of the Potential Target to SPAC, contingent upon the occurrence of the consummation of a Business Combination with the Potential Target, SPAC shall take all required steps to issue, as compensation earned when issued, the following number of newly-issued shares of Class A common stock, par value $0.0001 per share, of the SPAC (Class A Shares) to Finder within five (5) business days of the satisfaction of the applicable following condition:
|
781,250 Class A Shares upon the Initial Milestone; |
|
781,250 Class A Shares upon the later of (i) the Initial Milestone and (ii) the first date on which the Volume Weighted Average Share Price (as defined below) has equaled or exceeded $12.50 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing; |
|
781,250 Class A Shares upon the later of (i) the Initial Milestone and (ii) the first date on which the Volume Weighted Average Share Price has equaled or exceeded $15.00 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing; and |
|
381,250 Class A Shares upon the later of (i) the Initial Milestone and (ii) the first date on which the Volume Weighted Average Share Price has equaled or exceeded $17.50 per share for twenty (20) of any thirty (30) consecutive trading days commencing after the Closing. |
Each of the above listed conditions for the issuance of Class A Shares shall be referred to as a Milestone.
Upon each Milestone, and as a condition precedent to receiving Class A Shares pursuant to such Milestone, Finder shall deliver to SPAC a validly executed Internal Revenue Service Form W-9.
The Volume Weighted Average Share Price targets set forth in each Milestone and the number of Class A Shares to be issued pursuant to each Milestone shall be equitably adjusted for any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, or any similar event affecting the Class A Shares after the date of this Agreement.
If, on or before the seventh (7th) anniversary of the Closing Date, there is a Change of Control (as defined below) that will result in the holders of Class A Shares receiving a per share price equal to or in excess of the applicable Volume Weighted Average Share Price required in connection with any Milestone, then immediately prior to the consummation of such Change of Control: (a) any such Milestone that has not previously been achieved shall be deemed to have been achieved; and (b) Parent shall issue to Finder the Class A Shares conditioned upon the achievement of such Milestone, and Finder shall be eligible to participate in such Change of Control.
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To the extent that any of the foregoing conditions has not been satisfied within seven (7) years of the Closing Date, then SPACs obligation to issue any shares in connection with the consummation of such condition shall be cancelled and Finder shall have no further right to receive any shares associated with such condition.
As used herein:
|
Change of Control means any transaction or series of transactions, the result of which is: (a) the acquisition by any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or (a) any federal, provincial, state, local, municipal, national or international court, governmental commission, government or governmental authority, department, regulatory or administrative agency, board, bureau, agency or instrumentality, tribunal, arbitrator or arbitral body (public or private), or similar body; (b) any self-regulatory organization; or (c) any political subdivision of any of the foregoing (in each case, a Person) or group (as defined in the Exchange Act) of Persons of direct or indirect beneficial ownership of securities representing 50% or more of the combined voting power of the then outstanding securities of SPAC; (b) a merger, consolidation, reorganization or other business combination, however effected, resulting in any Person or group (as defined in the Exchange Act) of Persons acquiring at least 50% of the combined voting power of the then outstanding securities of SPAC or the surviving SPAC outstanding immediately after such combination; or (c) a sale of all or substantially all of the assets of SPAC. |
|
Initial Milestone means, the earlier of (i) one year following the date of the consummation of the Business Combination (the Closing Date) and (ii) after the Closing Date, (x) if the last sale price of the Class A Shares equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any twenty (20) trading days within any thirty (30) trading day period commencing at least one hundred fifty (150) days after the Closing Date or (y) the date on which SPAC completes a liquidation, merger stock exchange or other similar transaction that results in all of SPACs stockholders having the right to exchange their Class A Shares for cash, securities or other property. |
|
Volume Weighted Average Share Price means the volume weighted average share price of the Class A Shares on The Nasdaq Stock Market LLC or any other national securities exchange on which the Class A Shares are listed for trading as displayed on Bloomberg (or any successor service) in respect of the period from 9:30 a.m. to 4:00 p.m. (or such hours of the trading day as the relevant market shall be open in the event of an abbreviated trading day), New York City time, on such trading day. |
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SCHEDULE B
Registration Rights
1) |
SPAC agrees that it will use its commercially reasonable efforts to file with the Securities and Exchange Commission (the SEC) (at SPACs sole cost and expense), within sixty (60) calendar days after any issuance of Class A Shares resulting from the achievement of a Milestone, a registration statement (the Registration Statement) registering the resale of such Class A Shares issued to Finder resulting from the achievement of such Milestone (together with any other Class A Shares issued hereunder, the Registrable Securities), and SPAC shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof; provided, however, that SPACs obligations to include the Registrable Securities in the Registration Statement are contingent upon Finder furnishing in writing to SPAC such information regarding Finder, the securities of SPAC held by Finder and the intended method of disposition of the Registrable Securities as shall be reasonably requested by SPAC to effect the registration of the Registrable Securities, and shall execute such documents in connection with such registration as SPAC may reasonably request that are customary of a selling stockholder in similar situations, including providing that SPAC shall be entitled to postpone and suspend the effectiveness or use of the Registration Statement during any customary blackout or similar period or as permitted hereunder. |
2) |
Notwithstanding anything to the contrary in this Agreement, SPAC shall be entitled to delay or postpone the effectiveness of the Registration Statement, and from time to time to require Finder not to sell under the Registration Statement or to suspend the effectiveness thereof, if SPAC determines that in order for the Registration Statement to not contain a material misstatement or omission, an amendment thereto would be needed to include information that would at that time not otherwise be required in a current, quarterly, or annual report under the Exchange Act, or if such filing or use could materially affect a bona fide business or financing transaction of SPAC or its subsidiaries or would require additional disclosure by SPAC in the Registration Statement of material information that SPAC has a bona fide business purpose for keeping confidential (each such circumstance, a Suspension Event); provided, however, that (i) SPAC may not delay or suspend the Registration Statement on more than two occasions or for more than sixty (60) consecutive calendar days, or more than one hundred and twenty (120) total calendar days, in each case during any twelve-month period and (ii) SPAC shall use commercially reasonable efforts to make the Registration Statement available for sale by Finder of its Registrable Securities as soon as practicable thereafter. Upon receipt of any written notice from SPAC of the happening of any Suspension Event during the period that the Forward Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits 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 (in the case of the prospectus) not misleading, Finder agrees that it will immediately discontinue offers and sales of the Registrable Securities under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until Finder receives copies of a supplemental or amended prospectus (which SPAC agrees to promptly prepare) that corrects the |
11
misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by SPAC that it may resume such offers and sales; provided, for the avoidance of doubt, that SPAC shall not include any material non-public information in any such written notice. If so directed by SPAC, Finder will deliver to SPAC or, in Finders sole discretion destroy, all copies of the prospectus covering the Registrable Securities in Finders possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Registrable Securities shall not apply (i) to the extent Finder is required to retain a copy of such prospectus (a) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up. |
3) |
Indemnification. |
(a) SPAC shall indemnify Finder (to the extent a seller under the Registration Statement), its officers, directors, partners, members, managers, employees, stockholders, advisers and agents, and each person who controls Finder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including without limitation reasonable attorneys fees) and expenses (collectively, Losses), as incurred, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement (or incorporated by reference therein), any prospectus included in the Registration Statement 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 to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent that such untrue statements or alleged untrue statements or omissions or alleged omissions, are based upon information regarding Finder furnished in writing to SPAC by Finder expressly for use therein.
(b) The Finder shall, severally and not jointly with any other selling stockholder named in the Registration Statement, indemnify and hold harmless SPAC, its directors, officers, agents and employees, and each person who controls SPAC (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, that arise out of or are based upon any untrue or alleged untrue statement of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement, 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 to state 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, but only to the extent, that such untrue statements or alleged untrue statements, or omissions, or alleged omissions, are based upon information regarding Finder furnished in writing to SPAC by Finder expressly for use therein provided, however, that the indemnification contained in this Schedule
12
B(3)(b) shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the consent of Finder (which consent shall not be unreasonably withheld, conditioned or delayed). In no event shall the liability of Finder exceed the net proceeds received by Finder upon the sale of the Registrable Securities giving rise to such indemnification obligation. Finder shall notify SPAC promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated by this Section 4 of which Finder is aware.
(c) If the indemnification provided under this Schedule B(3) from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the 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 to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying partys and indemnified partys relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be subject to the limitations set forth in this Schedule B(3)(c) and deemed to include any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Schedule B(3) from any person who was not guilty of such fraudulent misrepresentation. Each indemnifying partys obligation to make a contribution pursuant to this Schedule B(3)(c) shall be individual, not joint and several, and in no event shall the liability of Finder hereunder exceed the net proceeds received by Finder upon the sale of the Registrable Securities giving rise to such indemnification obligation.
13
Exhibit 99.1
LiveVox, a Leading Cloud-Based Contact Center Platform, to Merge with Crescent Acquisition
Corp to Become a Publicly Traded Company in an $840 Million Transaction
LiveVox will be only the second publicly-traded pure-play CCaaS company
Transaction includes $75 million PIPE anchored by top-tier mutual fund and institutional investors
Current LiveVox owners, led by majority shareholder Golden Gate Capital, expect to hold
approximately 59% of the newly public company
San Francisco, CA - LiveVox, a leading cloud-based provider of customer service and digital engagement tools, today announced it has entered into a merger agreement with Crescent Acquisition Corp (NASDAQ: CRSA), a publicly-traded special purpose acquisition company. Upon closing of the transaction, LiveVox will become a publicly traded company, and its common stock will be listed on NASDAQ under the symbol LVOX.
Founded in 2000, LiveVox is a next-generation contact center platform that seamlessly unifies omnichannel communications, CRM, and WFO functionality into a single cloud-based customer engagement solution. Facilitating over 14 billion interactions annually, LiveVox simplifies the customer engagement process by unifying all conversations and interactions into a single pane of glass, creating a seamless transition for agents across communication mediums. The Company distinguishes itself from its closest competitors by reducing or eliminating the greatest friction points that prospective customers face, including security, compliance, and data integration. By removing these barriers, LiveVox makes the AI and digital applications customers want easy to implement. The Company expects to generate $129 million of revenue in 2021, approximately 26% higher than its 2020 revenue.
We capitalize on the growing need for support agents to provide an unparalleled customer experience with our unique solutions platform, said Louis Summe, co-founder & CEO of LiveVox, who will continue to lead the business post-transaction. Our full-service offering allows our clients to provide their customers with the exceptional relationship management they deserve along with the safety, security and ease of integration they have long come to expect.
We believe that LiveVoxs state-of-the-art software, its visionary management and its broad enterprise customer base position it perfectly to accelerate its growth with the visibility and capital from this transaction, Robert Beyer, Executive Chairman, and Todd Purdy, CEO of Crescent Acquisition Corp, jointly said. Global conditions have pushed digital transformation to the forefront, and customer-facing businesses are anxious for a decisive leap towards a unified, cloud-based solution. We are also fortunate to have found such an exciting growth opportunity within the portfolio of an industry-leading private equity firm, Golden Gate Capital, who will remain a significant shareholder and partner and continue to guide the Companys next level of substantial growth in the public markets.
We have been incredibly impressed by LiveVoxs expansive growth since we invested in the Company seven years ago, said Rishi Chandna, Managing Director of Golden Gate Capital. LiveVoxs meaningful investment in its product portfolio and focus on building out the Companys sales and marketing efforts has transformed the business into a leading pure-play CCaaS provider with a larger total addressable market. We are excited to continue working closely with LiveVox, alongside our new partner in Crescent, to support the Companys management team in delivering mission critical, easy-to-deploy contact center software to enterprise customers.
Transaction Overview
The transaction has been unanimously approved by the Board of Directors of Crescent Acquisition Corp, as well as the Board of Directors of LiveVox and is subject to the satisfaction of customary closing conditions, including the approval of the shareholders of Crescent Acquisition Corp.
The combined entity will receive approximately $250 million from Crescents trust account, assuming no redemptions by Crescents public stockholders, as well as $75 million in proceeds from a group of institutional investors and $25 million from a forward purchase agreement entered into by Crescent Capital Group Holdings LP. Upon completion of the transaction and assuming no redemptions, Golden Gate Capital and various current minority owners of LiveVox expect to hold approximately 59% of the newly public company, subject to various purchase price adjustments. Of the total approximately $350 million of cash from Crescent and the other institutional investors, up to $220 million will be used to purchase a portion of the equity owned by existing LiveVox shareholders, an anticipated $100 million will be added to LiveVoxs balance sheet to be used to accelerate and enhance the Companys commitment to providing a superb customer experience through its next-generation contact center platform, and the remainder will be used to pay transaction expenses. Upon the closing of the transaction, Crescent Acquisition Corps name will be changed to LiveVox Holdings, Inc.
Additional information about the proposed transaction, including a copy of the merger agreement and investor presentation, will be provided in a Current Report on Form 8-K to be filed by Crescent Acquisition Corp with the Securities and Exchange Commission (SEC) and available at www.sec.gov.
Conference Call Information
Crescent Acquisition Corps investor conference call and presentation discussing the transaction can be accessed by visiting www.crescentspac.com. A telephone replay of the call is available by dialing 412-317-6671 and entering passcode 14296511. A transcript of the call will also be filed by Crescent Acquisition Corp with the SEC.
Advisors
Credit Suisse is acting as lead placement agent, financial advisor and capital markets advisor and BofA Securities, Inc. is acting as private placement agent and capital markets advisor for Crescent Acquisition Corp. Goldman Sachs & Co. LLC, Jefferies Group LLC and Stifel Financial Corp. are serving as financial advisors to LiveVox. Kirkland & Ellis LLP is acting as legal counsel to LiveVox and Skadden, Arps, Slate, Meagher & Flom LLP is acting as legal counsel to Crescent Acquisition Corp.
About LiveVox
LiveVox is a next-generation contact center platform that powers more than 14 billion transactions a year. By seamlessly integrating omnichannel communications, CRM, and WFO, LiveVox delivers exceptional agent and customer experiences, while helping to reduce compliance risk. LiveVoxs reliable, easy-to-use technology enables effective engagement strategies on channels of choice to help drive contact center performance. Founded in 2000, LiveVox is headquartered in San Francisco with offices in Atlanta, Denver, St. Louis, Colombia, and Bangalore. To learn more, visit www.livevox.com.
About Crescent Acquisition Corp
Crescent Acquisition Corp is a Special Purpose Acquisition Company formed by Crescent Capital, Robert D. Beyer and Todd M. Purdy for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses or assets.
About Golden Gate Capital
Golden Gate Capital is a San Francisco-based private equity investment firm with over $17 billion of committed capital. The principals of Golden Gate Capital have a long and successful history of investing across a wide range of industries and transaction types, including going-privates, corporate divestitures, and recapitalizations, as well as debt and public equity investments. Notable software and services investments sponsored by Golden Gate Capital include Infor, BMC, Neustar, Ensemble Health Partners, Vector Solutions, and 20-20 Technologies.
Additional Information about the Proposed Transaction and Where to Find It
This communication may be deemed solicitation material in respect of the proposed business combination between Crescent Acquisition Corp and LiveVox (the Business Combination). The Business Combination will be submitted to the stockholders of Crescent Acquisition Corp and LiveVox for their approval. In connection with such stockholder vote, Crescent Acquisition Corp intends to file with the SEC a preliminary proxy statement on Schedule 14A and, when completed, will mail a definitive proxy statement to its stockholders in connection with Crescent Acquisition Corps solicitation of proxies for the special meeting of the stockholders of Crescent Acquisition Corp to be held to approve the Business Combination. This communication does not contain all the information that should be considered concerning the proposed Business Combination and the other matters to be voted upon at the special meeting and is not intended to provide the basis for any investment decision or any other decision in respect of such matters. Crescent Acquisition Corps stockholders and other interested parties are urged to read, when available, the preliminary proxy statement, the amendments thereto, the definitive proxy statement and any other relevant documents that are filed or furnished or will be filed or will be furnished with the SEC carefully and in their entirety in connection with Crescent Acquisition Corps solicitation of proxies for the special meeting to be held to approve the Business Combination and other related matters, as these materials will contain important information about LiveVox and Crescent Acquisition Corp and the proposed Business Combination. The definitive proxy statement will be mailed to the stockholders of Crescent Acquisition Corp as of the record date to be established for voting on the proposed Business Combination and the other matters to be voted upon at the special meeting. Such stockholders will also be able to obtain copies of the proxy statement, without charge, once available, at the SECs website at http://ww.sec.gov, at the Companys website at http://www.crescentspac.com or by directing a request to Crescent Acquisition Corp, 11100 Santa Monica Blvd., Suite 2000, Los Angeles, CA 90025.
Forward-Looking Statements
This communication contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These statements may be made directly in this communication. Some of the forward-looking statements can be identified by the use of forward-looking words. Statements that are not historical in nature, including the words anticipate, expect, suggests, plan, believe, intend, estimates, targets, projects, should, could, would, may, will, forecast and other similar expressions are intended to identify forward-looking statements. All forward-looking statements are based upon management estimates and forecasts and reflect the views, assumptions, expectations, and opinions of Crescent Acquisition Corp or LiveVox, as the case may be, as of the date of this communication, and may include, without limitation, changes in general economic conditions, including as a result of COVID-19, all of which are accordingly subject to change. Any such estimates, assumptions, expectations, forecasts, views or opinions set forth in this communication constitute Crescent Acquisition Corps or LiveVoxs, as the case may be, judgments and should be regarded as indicative, preliminary and for illustrative purposes only. The forward-looking statements and projections contained in this communication are subject to a number of factors, risks and uncertainties, some of which are not currently known to Crescent Acquisition Corp or LiveVox, that may cause Crescent Acquisition Corps or LiveVoxs actual results, performance or financial condition to be materially different from the expectations of future results, performance of financial condition. Although such forward-looking statements have been made in good faith and are based on assumptions that Crescent Acquisition Corp or LiveVox, as the case may be, believe to be reasonable, there is no assurance that the expected results will be achieved. Crescent Acquisition Corps and LiveVoxs actual results may differ materially from the results discussed in forward-looking statements. Additional information on factors that may cause actual results and Crescent Acquisition Corps performance to differ materially is included in Crescent Acquisition Corps periodic reports filed with the SEC, including but not limited to Crescent Acquisition Corps annual report on Form 10-K for the year ended December 31, 2019 and subsequent quarterly reports on Form 10-Q. Copies of Crescent Acquisition Corps filings with the SEC are available publicly on the SECs website at www.sec.gov or may be obtained by contacting Crescent Acquisition Corp. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. These forward-looking statements are made only as of the date hereof, and neither Crescent Acquisition Corp nor LiveVox undertake any obligations to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
No Offer or Solicitation
This communication is for informational purposes only and does not constitute an offer or invitation for the sale or purchase of securities, assets or the business described herein or a commitment to the Company or the LiveVox with respect to any of the foregoing, and this communication shall not form the basis of any contract, nor is it a solicitation of any vote, consent, or approval in any jurisdiction pursuant to or in connection with the Business Combination or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law.
Participants in Solicitation
Crescent Acquisition Corp and LiveVox, and their respective directors and executive officers, may be deemed participants in the solicitation of proxies of Crescent Acquisition Corps stockholders in respect of the Business Combination. Information about the directors and executive officers of Crescent Acquisition Corp is set forth in the Companys Form 10-K for the year ended December 31, 2019. Information about the directors and executive officers of LiveVox and more detailed information regarding the identity of all potential participants, and their direct and indirect interests, by security holdings or otherwise, will be set forth in the proxy statement for the Business Combination when available. Additional information regarding the identity of all potential participants in the solicitation of proxies to Crescent Acquisition Corps stockholders in connection with the proposed Business Combination and other matters to be voted upon at the special meeting, and their direct and indirect interests, by security holdings or otherwise, will be included in the proxy statement that the Company intends to file with the SEC. Investors may obtain such information by ready such proxy statement when it becomes available.
Contacts
For LiveVox:
Investor Contact:
Michael Bowen and Marc Griffin
LiveVoxIR@icrinc.com
203-682-8299
Media Contact:
Katie Creaser
LiveVoxPR@icrinc.com
516-993-6584
For Crescent Acquisition Corp.:
Investor Contact:
Lasse Glassen
Addo Investor Relations
lglassen@addoir.com
424-238-6249
Media Contact:
Bill Mendel
Mendel Communications
Bill@mendelcommunications.com
For Golden Gate Capital:
Sard Verbinnen & Co
David Isaacs / Chloe Clifford
GoldenGate-SVC@sardverb.com
Exhibit 99.2 INVESTOR PRESENTATION January 2021 1Exhibit 99.2 INVESTOR PRESENTATION January 2021 1
Disclaimer This Management Presentation (this “Presentation”) has been prepared by LiveVox, Inc. and its affiliates (collectively, “LiveVox” or “Company”) and Crescent Acquisition Corp (“Crescent”) in connection with a proposed business combination involving Crescent and LiveVox as further described herein (the “Transaction”). This Presentation is for informational purposes only and does not constitute an offer or invitation for the sale or purchase of securities, assets or the business described herein or a commitment to Crescent or LiveVox with respect to any of the foregoing, and this Presentation shall not form the basis of any contract, nor is it a solicitation of any vote, consent, or approval in any jurisdiction pursuant to or in connection with the Transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. This Presentation contains certain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These statements may be made directly in this Presentation. Some of the forward-looking statements can be identified by the use of forward-looking words. Statements that are not historical in nature, including the words “anticipate,” “expect,” “suggests,” “plan,” “believe,” “intend,” “estimates,” “targets,” “projects,” “should,” “could,” “would,” “may,” “will,” “forecast” and other similar expressions are intended to identify forward-looking statements. All forward-looking statements are based upon management estimates and forecasts and reflect the views, assumptions, expectations, and opinions of Crescent or LiveVox, as the case may be, as of the date of this Presentation, and may include, without limitation, changes in general economic conditions, including as a result of COVID-19, all of which are accordingly subject to change. Any such estimates, assumptions, expectations, forecasts, views or opinions set forth in this Presentation constitute Crescent’s or LiveVox’s, as the case may be, judgments and should be regarded as indicative, preliminary and for illustrative purposes only. The forward-looking statements and projections contained in this Presentation are subject to a number of factors, risks and uncertainties, some of which are not currently known to Crescent or LiveVox, that may cause Crescent’s or LiveVox’s actual results, performance or financial condition to be materially different from the expectations of future results, performance of financial condition. Although such forward-looking statements have been made in good faith and are based on assumptions that Crescent or LiveVox, as the case may be, believe to be reasonable, there is no assurance that the expected results will be achieved. Crescent’s and LiveVox’s actual results may differ materially from the results discussed in forward-looking statements. Additional information on factors that may cause actual results and Crescent’s performance to differ materially is included in Crescent’s periodic reports filed with the Securities and Exchange Commission (“SEC”), including but not limited to Crescent’s annual report on Form 10-K for the year ended December 31, 2019 and subsequent quarterly reports on Form 10-Q. Copies of Crescent’s filings with the SEC are available publicly on the SEC’s website at www.sec.gov or may be obtained by contacting Crescent. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. These forward-looking statements are made only as of the date hereof, and neither Crescent nor LiveVox undertake any obligations to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. The historical financial data included in this Presentation is subject to audit completion and certain metrics are presented on a pro forma basis to include results of acquired businesses as if such acquisitions had been completed as of January 1 of the applicable year of the acquisition. In addition, this presentation includes references to non-GAAP financial measures, including but not limited to Gross Margin and EBITDA, please see slide 41 for a reconciliation of non-GAAP financial measures. Such non-GAAP measures should be considered only as supplemental to, and not as superior to, financial measures prepared in accordance with GAAP. Additionally, to the extent that forward-looking non-GAAP financial measures are provided, they are presented on a non-GAAP basis without reconciliations of such forward-looking non-GAAP measures due to the inherent difficulty in forecasting and quantifying certain amounts that are necessary for such reconciliation. Certain financial information and projections contained in this Presentation are in draft form and based on internal financial reports as of December 31, 2020. These figures may not include all adjustments required by GAAP under PCAOB standard. Neither Crescent nor LiveVox nor any of their respective directors, officers, employees, advisors, representatives or agents makes any representation or warranty of any kind, express or implied, as to the value that may be realized in connection with the Transaction, the legal, regulatory, tax, financial, accounting or other effects of a Transaction or the accuracy or completeness of the information contained in this Presentation, and none of them shall have any liability based on or arising from, in whole or in part, any information contained in, or omitted from, this Presentation or for any other written or oral communication transmitted to any person or entity in the course of its evaluation of the Transaction. Only those representations and warranties that are expressly made in a definitive written agreement with respect to the Transaction, if executed, and subject to the limitations and restrictions specified therein, shall have any legal effect. This Presentation contains information derived from third party sources, including research, surveys or studies conducted by third parties, information provided by customers and/or industry or general publications. While we believe that such third party information is reliable, we have not independently verified, and make no representation as to the accuracy of, such third party information. This Presentation contains financial forecasts. These projections are for illustrative purposes only and should not be relied upon as being necessarily indicative of future results. Inclusion of the prospective financial information in this presentation should not be regarded as a representation by any person that the results contained in the prospective financial information will be achieved. LTV is calculated as subscription gross margin divided by gross churn. CAC is calculated as trailing twelve months S&M expense divided by quarter 0 subscription revenue annualized less quarter 4 subscription revenue annualized. This Presentation contains references to trademarks and service marks belonging to other entities. Solely for convenience, trademarks and trade names referred to in this presentation may appear without the ® or ™ symbols, but such references are not intended to indicate, in any way, that the applicable licensor will not assert, to the fullest extent under applicable law, its rights to these trademarks and trade names. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, any other companies. 2Disclaimer This Management Presentation (this “Presentation”) has been prepared by LiveVox, Inc. and its affiliates (collectively, “LiveVox” or “Company”) and Crescent Acquisition Corp (“Crescent”) in connection with a proposed business combination involving Crescent and LiveVox as further described herein (the “Transaction”). This Presentation is for informational purposes only and does not constitute an offer or invitation for the sale or purchase of securities, assets or the business described herein or a commitment to Crescent or LiveVox with respect to any of the foregoing, and this Presentation shall not form the basis of any contract, nor is it a solicitation of any vote, consent, or approval in any jurisdiction pursuant to or in connection with the Transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. This Presentation contains certain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These statements may be made directly in this Presentation. Some of the forward-looking statements can be identified by the use of forward-looking words. Statements that are not historical in nature, including the words “anticipate,” “expect,” “suggests,” “plan,” “believe,” “intend,” “estimates,” “targets,” “projects,” “should,” “could,” “would,” “may,” “will,” “forecast” and other similar expressions are intended to identify forward-looking statements. All forward-looking statements are based upon management estimates and forecasts and reflect the views, assumptions, expectations, and opinions of Crescent or LiveVox, as the case may be, as of the date of this Presentation, and may include, without limitation, changes in general economic conditions, including as a result of COVID-19, all of which are accordingly subject to change. Any such estimates, assumptions, expectations, forecasts, views or opinions set forth in this Presentation constitute Crescent’s or LiveVox’s, as the case may be, judgments and should be regarded as indicative, preliminary and for illustrative purposes only. The forward-looking statements and projections contained in this Presentation are subject to a number of factors, risks and uncertainties, some of which are not currently known to Crescent or LiveVox, that may cause Crescent’s or LiveVox’s actual results, performance or financial condition to be materially different from the expectations of future results, performance of financial condition. Although such forward-looking statements have been made in good faith and are based on assumptions that Crescent or LiveVox, as the case may be, believe to be reasonable, there is no assurance that the expected results will be achieved. Crescent’s and LiveVox’s actual results may differ materially from the results discussed in forward-looking statements. Additional information on factors that may cause actual results and Crescent’s performance to differ materially is included in Crescent’s periodic reports filed with the Securities and Exchange Commission (“SEC”), including but not limited to Crescent’s annual report on Form 10-K for the year ended December 31, 2019 and subsequent quarterly reports on Form 10-Q. Copies of Crescent’s filings with the SEC are available publicly on the SEC’s website at www.sec.gov or may be obtained by contacting Crescent. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. These forward-looking statements are made only as of the date hereof, and neither Crescent nor LiveVox undertake any obligations to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. The historical financial data included in this Presentation is subject to audit completion and certain metrics are presented on a pro forma basis to include results of acquired businesses as if such acquisitions had been completed as of January 1 of the applicable year of the acquisition. In addition, this presentation includes references to non-GAAP financial measures, including but not limited to Gross Margin and EBITDA, please see slide 41 for a reconciliation of non-GAAP financial measures. Such non-GAAP measures should be considered only as supplemental to, and not as superior to, financial measures prepared in accordance with GAAP. Additionally, to the extent that forward-looking non-GAAP financial measures are provided, they are presented on a non-GAAP basis without reconciliations of such forward-looking non-GAAP measures due to the inherent difficulty in forecasting and quantifying certain amounts that are necessary for such reconciliation. Certain financial information and projections contained in this Presentation are in draft form and based on internal financial reports as of December 31, 2020. These figures may not include all adjustments required by GAAP under PCAOB standard. Neither Crescent nor LiveVox nor any of their respective directors, officers, employees, advisors, representatives or agents makes any representation or warranty of any kind, express or implied, as to the value that may be realized in connection with the Transaction, the legal, regulatory, tax, financial, accounting or other effects of a Transaction or the accuracy or completeness of the information contained in this Presentation, and none of them shall have any liability based on or arising from, in whole or in part, any information contained in, or omitted from, this Presentation or for any other written or oral communication transmitted to any person or entity in the course of its evaluation of the Transaction. Only those representations and warranties that are expressly made in a definitive written agreement with respect to the Transaction, if executed, and subject to the limitations and restrictions specified therein, shall have any legal effect. This Presentation contains information derived from third party sources, including research, surveys or studies conducted by third parties, information provided by customers and/or industry or general publications. While we believe that such third party information is reliable, we have not independently verified, and make no representation as to the accuracy of, such third party information. This Presentation contains financial forecasts. These projections are for illustrative purposes only and should not be relied upon as being necessarily indicative of future results. Inclusion of the prospective financial information in this presentation should not be regarded as a representation by any person that the results contained in the prospective financial information will be achieved. LTV is calculated as subscription gross margin divided by gross churn. CAC is calculated as trailing twelve months S&M expense divided by quarter 0 subscription revenue annualized less quarter 4 subscription revenue annualized. This Presentation contains references to trademarks and service marks belonging to other entities. Solely for convenience, trademarks and trade names referred to in this presentation may appear without the ® or ™ symbols, but such references are not intended to indicate, in any way, that the applicable licensor will not assert, to the fullest extent under applicable law, its rights to these trademarks and trade names. We do not intend our use or display of other companies’ trade names, trademarks or service marks to imply a relationship with, or endorsement or sponsorship of us by, any other companies. 2
Disclaimer (Cont’d) Important Information about the Transaction and Where to Find It This Presentation may be deemed solicitation material in respect of the Transaction. The Transaction will be submitted to the stockholders of Crescent for their approval. In connection with such stockholder vote, Crescent intends to file with the SEC a preliminary proxy statement on Schedule 14A and, when completed, will mail a definitive proxy statement to its stockholders in connection with Crescent’s solicitation of proxies for the special meeting of the stockholders of Crescent to be held to approve the Transaction. This Presentation does not contain all the information that should be considered concerning the proposed Transaction and the other matters to be voted upon at the annual meeting and is not intended to provide the basis for any investment decision or any other decision in respect of such matters. Crescent’s stockholders and other interested parties are urged to read, when available, the preliminary proxy statement, the amendments thereto, the definitive proxy statement and any other relevant documents that are filed or furnished or will be filed or will be furnished with the SEC carefully and in their entirety in connection with Crescent’s solicitation of proxies for the annual meeting to be held to approve the Transaction and other related matters, as these materials will contain important information about LiveVox and Crescent and the proposed Transaction. The definitive proxy statement will be mailed to the stockholders of Crescent as of the record date to be established for voting on the proposed Transaction and the other matters to be voted upon at the special meeting. Such stockholders will also be able to obtain copies of the proxy statement, without charge, once available, at the SEC’s website at http://ww.sec.gov, at Crescent’s website at http://www.crescentspac.com or by directing a request to Crescent Acquisition Corp, 11100 Santa Monica Blvd., Suite 2000, Los Angeles, CA 90025. Participants in the Solicitation Crescent and LiveVox, and their respective directors and executive officers, may be deemed participants in the solicitation of proxies of Crescent’s stockholders in respect of the Transaction. Information about the directors and executive officers of Crescent is set forth in the Crescent’s Form 10-K for the year ended December 31, 2019. Information about the directors and executive officers of LiveVox and more detailed information regarding the identity of all potential participants, and their direct and indirect interests, by security holdings or otherwise, will be set forth in the proxy statement for the Transaction when available. Additional information regarding the identity of all potential participants in the solicitation of proxies to Crescent stockholders in connection with the proposed Transaction and other matters to be voted upon at the special meeting, and their direct and indirect interests, by security holdings or otherwise, will be included in the proxy statement that Crescent intends to file with the SEC. Investors may obtain such information by ready such proxy statement when it becomes available. 3Disclaimer (Cont’d) Important Information about the Transaction and Where to Find It This Presentation may be deemed solicitation material in respect of the Transaction. The Transaction will be submitted to the stockholders of Crescent for their approval. In connection with such stockholder vote, Crescent intends to file with the SEC a preliminary proxy statement on Schedule 14A and, when completed, will mail a definitive proxy statement to its stockholders in connection with Crescent’s solicitation of proxies for the special meeting of the stockholders of Crescent to be held to approve the Transaction. This Presentation does not contain all the information that should be considered concerning the proposed Transaction and the other matters to be voted upon at the annual meeting and is not intended to provide the basis for any investment decision or any other decision in respect of such matters. Crescent’s stockholders and other interested parties are urged to read, when available, the preliminary proxy statement, the amendments thereto, the definitive proxy statement and any other relevant documents that are filed or furnished or will be filed or will be furnished with the SEC carefully and in their entirety in connection with Crescent’s solicitation of proxies for the annual meeting to be held to approve the Transaction and other related matters, as these materials will contain important information about LiveVox and Crescent and the proposed Transaction. The definitive proxy statement will be mailed to the stockholders of Crescent as of the record date to be established for voting on the proposed Transaction and the other matters to be voted upon at the special meeting. Such stockholders will also be able to obtain copies of the proxy statement, without charge, once available, at the SEC’s website at http://ww.sec.gov, at Crescent’s website at http://www.crescentspac.com or by directing a request to Crescent Acquisition Corp, 11100 Santa Monica Blvd., Suite 2000, Los Angeles, CA 90025. Participants in the Solicitation Crescent and LiveVox, and their respective directors and executive officers, may be deemed participants in the solicitation of proxies of Crescent’s stockholders in respect of the Transaction. Information about the directors and executive officers of Crescent is set forth in the Crescent’s Form 10-K for the year ended December 31, 2019. Information about the directors and executive officers of LiveVox and more detailed information regarding the identity of all potential participants, and their direct and indirect interests, by security holdings or otherwise, will be set forth in the proxy statement for the Transaction when available. Additional information regarding the identity of all potential participants in the solicitation of proxies to Crescent stockholders in connection with the proposed Transaction and other matters to be voted upon at the special meeting, and their direct and indirect interests, by security holdings or otherwise, will be included in the proxy statement that Crescent intends to file with the SEC. Investors may obtain such information by ready such proxy statement when it becomes available. 3
Today’s Presenters LiveVox Golden Gate Capital Crescent Acquisition Corp Louis Gregg Rishi Stewart Robert Todd Summe Clevenger Chandna Bloom Beyer Purdy CEO and EVP, Managing Operating Executive CEO Co-Founder Chief Financial Officer Director Executive Chairman Experience: Experience: Experience: Experience: Experience: Experience: 25+ years 30+ years 20+ years 40+ years 35+ years 20+ years Boards: Boards: Boards: 4Today’s Presenters LiveVox Golden Gate Capital Crescent Acquisition Corp Louis Gregg Rishi Stewart Robert Todd Summe Clevenger Chandna Bloom Beyer Purdy CEO and EVP, Managing Operating Executive CEO Co-Founder Chief Financial Officer Director Executive Chairman Experience: Experience: Experience: Experience: Experience: Experience: 25+ years 30+ years 20+ years 40+ years 35+ years 20+ years Boards: Boards: Boards: 4
Investment Thesis ¢ Secular shift to underpenetrated cloud CCaaS providers Massive Contact $27 Billion $83 Billion Center Software ¢ Automation of manual labor spend TAM Current 2030+ Estimate Market Rapidly ¢ Market evolving from voice-centric to Moving to Cloud omnichannel, analytics and AI ¢ Native CRM is easy to integrate and low cost for customers Differentiated 118% 8.5x ¢ Strong compliance capabilities KPIs Product Strategy Net Retention LTV to CAC ¢ High Net Promoter Score (“NPS”) ¢ Attractive operating KPIs ¢ Proven land and expand growth strategy ~2x ¢ Considerable whitespace within existing Existing ~10x Multiple Levers Product Customer customers Seat Count Whitespace for Growth Expansion Opportunity ¢ Accelerating investment in sales & Opportunity marketing behind leading unit economics 1 EV / 2021E Revenue Growth Adjusted EV / 2021E Revenue ¢ LiveVox is priced at a significant discount to our closest competitor in Five9 and 24.9x 1.4x benchmark SaaS peers Compelling Initial 17.0x 0.9x ¢ Predictable, recurring revenue business Valuation model 6.5x 0.2x Peer Peer LiveVox Five9 LiveVox Five9 Group Group 1 Growth adjusted by dividing by 2020E to 2022E Revenue CAGR. Source: Magellan Solutions Call Center Benchmarking Report, McKinsey. 5Investment Thesis ¢ Secular shift to underpenetrated cloud CCaaS providers Massive Contact $27 Billion $83 Billion Center Software ¢ Automation of manual labor spend TAM Current 2030+ Estimate Market Rapidly ¢ Market evolving from voice-centric to Moving to Cloud omnichannel, analytics and AI ¢ Native CRM is easy to integrate and low cost for customers Differentiated 118% 8.5x ¢ Strong compliance capabilities KPIs Product Strategy Net Retention LTV to CAC ¢ High Net Promoter Score (“NPS”) ¢ Attractive operating KPIs ¢ Proven land and expand growth strategy ~2x ¢ Considerable whitespace within existing Existing ~10x Multiple Levers Product Customer customers Seat Count Whitespace for Growth Expansion Opportunity ¢ Accelerating investment in sales & Opportunity marketing behind leading unit economics 1 EV / 2021E Revenue Growth Adjusted EV / 2021E Revenue ¢ LiveVox is priced at a significant discount to our closest competitor in Five9 and 24.9x 1.4x benchmark SaaS peers Compelling Initial 17.0x 0.9x ¢ Predictable, recurring revenue business Valuation model 6.5x 0.2x Peer Peer LiveVox Five9 LiveVox Five9 Group Group 1 Growth adjusted by dividing by 2020E to 2022E Revenue CAGR. Source: Magellan Solutions Call Center Benchmarking Report, McKinsey. 5
Proposed Transaction Overview Pro Forma Valuation | ($ in millions) Cash Sources & Uses | ($ in millions) Illustrative Share Price $ 10.00 Cash from Trust $ 250 Forward Purchase Agreement (“FPA”) 25 (x) Pro Forma Shares Outstanding 89.6 PIPE 75 Pro Forma Equity Value $ 896 Total Cash Sources $ 350 Less Pro Forma Net Cash $ (56) Cash to Balance Sheet $ 100 Cash to Existing Shareholders 220 Pro Forma Enterprise Value $ 840 Illustrative Transaction Fees 30 Total Cash Uses $ 350 EV / 2021E Revenue: 6.5x Valuation Multiples EV / 2022E Revenue: 5.2x Pro Forma Ownership FPA 3% PIPE 8% § Enterprise value of $840 million § Existing shareholders of LiveVox will continue to own SPAC Existing Shareholders Shareholders 59% of LiveVox 30% 59% § Transaction close expected in first half of 2021 Note: Excludes impact of (i) 13.3 million warrants from our public offering and FPA, and (ii) earnout shares. All private placement warrants (7.0 million) forfeited for no consideration. All warrants are struck at $11.50 per share. Sponsor to receive 25% of sponsor shares upfront, with 75% subject to earnout. Sponsor shares included as part of SPAC shareholders. Seller to receive 5.0 million incremental shares subject to earnout. All earnout shares vested ratably at $12.50, $15.00 and $17.50 per share. Pro forma net cash as of 12/31/20. 6Proposed Transaction Overview Pro Forma Valuation | ($ in millions) Cash Sources & Uses | ($ in millions) Illustrative Share Price $ 10.00 Cash from Trust $ 250 Forward Purchase Agreement (“FPA”) 25 (x) Pro Forma Shares Outstanding 89.6 PIPE 75 Pro Forma Equity Value $ 896 Total Cash Sources $ 350 Less Pro Forma Net Cash $ (56) Cash to Balance Sheet $ 100 Cash to Existing Shareholders 220 Pro Forma Enterprise Value $ 840 Illustrative Transaction Fees 30 Total Cash Uses $ 350 EV / 2021E Revenue: 6.5x Valuation Multiples EV / 2022E Revenue: 5.2x Pro Forma Ownership FPA 3% PIPE 8% § Enterprise value of $840 million § Existing shareholders of LiveVox will continue to own SPAC Existing Shareholders Shareholders 59% of LiveVox 30% 59% § Transaction close expected in first half of 2021 Note: Excludes impact of (i) 13.3 million warrants from our public offering and FPA, and (ii) earnout shares. All private placement warrants (7.0 million) forfeited for no consideration. All warrants are struck at $11.50 per share. Sponsor to receive 25% of sponsor shares upfront, with 75% subject to earnout. Sponsor shares included as part of SPAC shareholders. Seller to receive 5.0 million incremental shares subject to earnout. All earnout shares vested ratably at $12.50, $15.00 and $17.50 per share. Pro forma net cash as of 12/31/20. 6
Transaction Rationale 2014 Golden Gate Acquisition Today o Voice: Inbound / Outbound o Cloud-Based Outbound Product o Omnichannel Functionality o CRM/WFO o AI o Collections o Customer Care o Tele-sales Use Cases o Accounts Receivable Management (ARM) o Blended inbound/outbound cust. interactions o Business Process o BPO Target Outsourcers (BPO) o Enterprise Customers o Fortune 1,000 Financial Institutions $1B $19B Served TAM (% of ~$27B TAM) (4% of TAM) (70% of TAM) Revenue Growth 11% 20%+ 88% 119% Net Retention LiveVox’s product investments have evolved the platform from a cloud-based dialer to a full-suite offering, expanding our Served TAM ~20x since Golden Gate’s investment Source: Magellan Solutions Call Center Benchmarking Report, McKinsey. 7Transaction Rationale 2014 Golden Gate Acquisition Today o Voice: Inbound / Outbound o Cloud-Based Outbound Product o Omnichannel Functionality o CRM/WFO o AI o Collections o Customer Care o Tele-sales Use Cases o Accounts Receivable Management (ARM) o Blended inbound/outbound cust. interactions o Business Process o BPO Target Outsourcers (BPO) o Enterprise Customers o Fortune 1,000 Financial Institutions $1B $19B Served TAM (% of ~$27B TAM) (4% of TAM) (70% of TAM) Revenue Growth 11% 20%+ 88% 119% Net Retention LiveVox’s product investments have evolved the platform from a cloud-based dialer to a full-suite offering, expanding our Served TAM ~20x since Golden Gate’s investment Source: Magellan Solutions Call Center Benchmarking Report, McKinsey. 7
LiveVox OverviewLiveVox Overview
LiveVox at a Glance Massive Opportunity Differentiated Product $27B TAM in 2020 with 20x whitespace 100% Highly rated $50B+ opportunity in multi-tenant customer incremental LiveVox’s cloud platform advocacy opportunity current installed with no (NPS score 54) over next 10 base technical debt years Scale and Growth Compelling Unit Economics Expected 25%+ $129M 118% 8.5x growth LTV to CAC 2021E Revenue Net Retention 2021 & 2022 Source: Magellan Solutions Call Center Benchmarking Report, McKinsey, Customer Guru; NPS data from internal Company survey. 9LiveVox at a Glance Massive Opportunity Differentiated Product $27B TAM in 2020 with 20x whitespace 100% Highly rated $50B+ opportunity in multi-tenant customer incremental LiveVox’s cloud platform advocacy opportunity current installed with no (NPS score 54) over next 10 base technical debt years Scale and Growth Compelling Unit Economics Expected 25%+ $129M 118% 8.5x growth LTV to CAC 2021E Revenue Net Retention 2021 & 2022 Source: Magellan Solutions Call Center Benchmarking Report, McKinsey, Customer Guru; NPS data from internal Company survey. 9
$80+ Billion Opportunity That Is in the Early Innings of a Shift to the Cloud Current TAM is a Fraction of Cloud Drivers the Long-Term Opportunity Contact Center Software TAM $250 Billion Digital transformation of the Total CC Labor Enterprise Spend AI driven analytics increasingly used to support workflow and agents McKinsey believes Automation of manual labor that 22% of $250B Contact Center labor market will be automated by 2030 Friction Points to Cloud Adoption Risk Mitigation: Security and ! compliance 19% Cloud $83 Billion+ Penetration Data Integration: Many siloed $27 Billion channels, applications, and data $5 Billion Cloud Investments in Legacy 2030+ 2020 Infrastructure: 5+ year upgrade Source: Magellan Solutions Call Center Benchmarking Report, McKinsey. cycles 10$80+ Billion Opportunity That Is in the Early Innings of a Shift to the Cloud Current TAM is a Fraction of Cloud Drivers the Long-Term Opportunity Contact Center Software TAM $250 Billion Digital transformation of the Total CC Labor Enterprise Spend AI driven analytics increasingly used to support workflow and agents McKinsey believes Automation of manual labor that 22% of $250B Contact Center labor market will be automated by 2030 Friction Points to Cloud Adoption Risk Mitigation: Security and ! compliance 19% Cloud $83 Billion+ Penetration Data Integration: Many siloed $27 Billion channels, applications, and data $5 Billion Cloud Investments in Legacy 2030+ 2020 Infrastructure: 5+ year upgrade Source: Magellan Solutions Call Center Benchmarking Report, McKinsey. cycles 10
Easy to Deploy, Out-of-the-Box Solution Translates into Lower Total Cost of Ownership Existing LiveVox solutions LiveVox’s platform integrates Pre-configured omnichannel communications, CRM, integrations and WFO in a single pane of glass ü 100% Multi-Tenant platform with a modern user experience ü Scalable architecture to support Omnichannel/AI enterprise-grade deployments ü Voice, omnichannel and AI are integrated and enable consistent platform-wide reporting and analysis Modern Modern ü Differentiated approach to CRM and WFO CRM data management ü Pre-configured features and functionality reduce cost and time to value for customers 11Easy to Deploy, Out-of-the-Box Solution Translates into Lower Total Cost of Ownership Existing LiveVox solutions LiveVox’s platform integrates Pre-configured omnichannel communications, CRM, integrations and WFO in a single pane of glass ü 100% Multi-Tenant platform with a modern user experience ü Scalable architecture to support Omnichannel/AI enterprise-grade deployments ü Voice, omnichannel and AI are integrated and enable consistent platform-wide reporting and analysis Modern Modern ü Differentiated approach to CRM and WFO CRM data management ü Pre-configured features and functionality reduce cost and time to value for customers 11
LiveVox’s Omnichannel Capabilities Enable Enterprises to Engage with Customers on Their Channel of Choice VOICE IVR AI VIRTUAL AGENT EMAIL TEXT or WEB CHAT OUTBOUND CALL Inbound / Easy to incorporate Easy to configure HTML Customers or agents Inbound / Outbound Virtual Agents with a no- templates enable a initiate chat sessions Outbound IVR code AI bot unified look and feel proactively and IVR immediately when the need arises 1-Billing 2-Claim Status 3-Speak to an Agent LiveVox system has Agent researches Customer dials the Customer receives Customer texts and permission to call status of a claim and 800# and uses the an automated email receives an best and preferred verifies email interactive voice confirming the call automated response number, to verify address and response (“IVR”) to with an option to confirming claim has closure and offer to permission to follow speak with an Agent Text/SMS for status been processed assist with anything up else 12LiveVox’s Omnichannel Capabilities Enable Enterprises to Engage with Customers on Their Channel of Choice VOICE IVR AI VIRTUAL AGENT EMAIL TEXT or WEB CHAT OUTBOUND CALL Inbound / Easy to incorporate Easy to configure HTML Customers or agents Inbound / Outbound Virtual Agents with a no- templates enable a initiate chat sessions Outbound IVR code AI bot unified look and feel proactively and IVR immediately when the need arises 1-Billing 2-Claim Status 3-Speak to an Agent LiveVox system has Agent researches Customer dials the Customer receives Customer texts and permission to call status of a claim and 800# and uses the an automated email receives an best and preferred verifies email interactive voice confirming the call automated response number, to verify address and response (“IVR”) to with an option to confirming claim has closure and offer to permission to follow speak with an Agent Text/SMS for status been processed assist with anything up else 12
Our Differentiated Approach to Data Management Gives Customers a Seamless Experience at Lower TCO Salesforce is ~20% of CRM market, • Integrating multiple CRMs is a complex project for the I.T. department however ~80% of those deployments use • LiveVox’s native CRM unifies disparate, department-level systems of record to multiple systems of record, which means… present a single view to the agent, and provide great customer experiences $48B $10B 100% 90% 80% 70% Multiple 60% Other CRMs Systems 50% of Record 40% 30% 20% Salesforce 10% Salesforce Exclusive 0% CRM Market Salesforce Customers Other Vertical Specific Customer 4% of Market Systems of Record Salesforce Exclusive REPRESENTATIVE CRM INTEGRATIONS Source: Gartner; Company Survey Data. 13Our Differentiated Approach to Data Management Gives Customers a Seamless Experience at Lower TCO Salesforce is ~20% of CRM market, • Integrating multiple CRMs is a complex project for the I.T. department however ~80% of those deployments use • LiveVox’s native CRM unifies disparate, department-level systems of record to multiple systems of record, which means… present a single view to the agent, and provide great customer experiences $48B $10B 100% 90% 80% 70% Multiple 60% Other CRMs Systems 50% of Record 40% 30% 20% Salesforce 10% Salesforce Exclusive 0% CRM Market Salesforce Customers Other Vertical Specific Customer 4% of Market Systems of Record Salesforce Exclusive REPRESENTATIVE CRM INTEGRATIONS Source: Gartner; Company Survey Data. 13
LiveVox’s Differentiated Platform Makes It Easy to Deploy AI Traditional CCaaS Vendors ¢ Bespoke integration with disparate ¢ AI configured with LiveVox CRM out of CRM ecosystem required at each the box Implementation deployment Process¢ Highly scalable implementation process Cost to ~$500K avg. ~$50K avg. Implement Time to ~6 months avg. ~3 weeks avg. Implement AI implementation is prohibitively AI implementation is expensive and time consuming cost effective and painless Source: LiveVox Customer Interviews; LiveVox Survey data. 14LiveVox’s Differentiated Platform Makes It Easy to Deploy AI Traditional CCaaS Vendors ¢ Bespoke integration with disparate ¢ AI configured with LiveVox CRM out of CRM ecosystem required at each the box Implementation deployment Process¢ Highly scalable implementation process Cost to ~$500K avg. ~$50K avg. Implement Time to ~6 months avg. ~3 weeks avg. Implement AI implementation is prohibitively AI implementation is expensive and time consuming cost effective and painless Source: LiveVox Customer Interviews; LiveVox Survey data. 14
Why LiveVox Wins Account Competitors Why We Won üComplianceüIVR capabilities § Leading Bank üReportingüReliability üTotal cost of ownership üSingle pane of glass § Leading FinTech üIntegrated dataüCompliance üSingle pane of glassüReliability § Leading Mortgage Provider üIntegrated dataüEase of useüCompliance § Large RetailerüCompliance üSingle pane of glass üSingle pane of glass üIntegrated data § Large Bank üCompliance üProduct flexibility üEase of useüTotal cost of ownership LiveVox Wins by Delivering Out-of-the-Box Solutions to Problems Our Competitors Struggle to Solve 15Why LiveVox Wins Account Competitors Why We Won üComplianceüIVR capabilities § Leading Bank üReportingüReliability üTotal cost of ownership üSingle pane of glass § Leading FinTech üIntegrated dataüCompliance üSingle pane of glassüReliability § Leading Mortgage Provider üIntegrated dataüEase of useüCompliance § Large RetailerüCompliance üSingle pane of glass üSingle pane of glass üIntegrated data § Large Bank üCompliance üProduct flexibility üEase of useüTotal cost of ownership LiveVox Wins by Delivering Out-of-the-Box Solutions to Problems Our Competitors Struggle to Solve 15
Winning Larger Enterprises over Time 2016 2017 2018 2019 1H ’20 2H ’20 Top 5 BPO Top 3 Cruise Line Top 20 Bank Top 35 Bank Top 25 Bank Top 5 Bank Top 10 BPO Top 10 Retailer Top 100 Bank Top 5 Bank Top 75 Bank Top 35 Bank Top 3 Media Top 10 Fintech Top 25 BPO Top 25 Retailer Top 10 BPO Top 10 Bank Company Company Top 65 BPO Top 5 Retailer Top 10 Bank Top 5 Bank BPO Bank Media Cruise Line Fintech Retail Note: Client ranking based on publicly available data. 16Winning Larger Enterprises over Time 2016 2017 2018 2019 1H ’20 2H ’20 Top 5 BPO Top 3 Cruise Line Top 20 Bank Top 35 Bank Top 25 Bank Top 5 Bank Top 10 BPO Top 10 Retailer Top 100 Bank Top 5 Bank Top 75 Bank Top 35 Bank Top 3 Media Top 10 Fintech Top 25 BPO Top 25 Retailer Top 10 BPO Top 10 Bank Company Company Top 65 BPO Top 5 Retailer Top 10 Bank Top 5 Bank BPO Bank Media Cruise Line Fintech Retail Note: Client ranking based on publicly available data. 16
Growth and Go-to-Market OverviewGrowth and Go-to-Market Overview
Growth Strategy: Land and Expand Land New Logos Expand Seat Count Accelerate Product Penetration Expected 2x Opportunity in Invest Behind an Efficient Expected 10x Opportunity Existing Customer Base Customer Acquisition in Existing Customer Engine Base Harvest massive whitespace in customer base and capitalize on leading unit economics to drive growth through increased investment in sales and marketing 18Growth Strategy: Land and Expand Land New Logos Expand Seat Count Accelerate Product Penetration Expected 2x Opportunity in Invest Behind an Efficient Expected 10x Opportunity Existing Customer Base Customer Acquisition in Existing Customer Engine Base Harvest massive whitespace in customer base and capitalize on leading unit economics to drive growth through increased investment in sales and marketing 18
New Customer Acquisition Strategy: 5 Bundled Offers Client Needs… …LiveVox Bundles Outbound Campaigns and Compliance, Consent Tracking, OB Campaigns Compliance Bundle Omnichannel, SMS, Email, Add 2-Way Digital to Existing ACD Messaging Bundle Automated Scoring, Compliance, Speech Analytics Bundle Speech Analytics AI/Chatbots, IVR, Automation, Self- Cloud IVR Service Bundle Inbound Inbound, CX, CRM, Agent Experience Contact Center Bundle Offerings are flexible for different Marketed to 150k+ companies, üü needs of different customers based on activity-driven intents 19New Customer Acquisition Strategy: 5 Bundled Offers Client Needs… …LiveVox Bundles Outbound Campaigns and Compliance, Consent Tracking, OB Campaigns Compliance Bundle Omnichannel, SMS, Email, Add 2-Way Digital to Existing ACD Messaging Bundle Automated Scoring, Compliance, Speech Analytics Bundle Speech Analytics AI/Chatbots, IVR, Automation, Self- Cloud IVR Service Bundle Inbound Inbound, CX, CRM, Agent Experience Contact Center Bundle Offerings are flexible for different Marketed to 150k+ companies, üü needs of different customers based on activity-driven intents 19
Classic SaaS Selling Motion for Land and Expand Platform Features LiveVox makes new feature activation easy for its customers LiveVox provides clients with the ability to add desired modules to any part of their Contact Centers, giving flexibility and financial prudence to decisions 20Classic SaaS Selling Motion for Land and Expand Platform Features LiveVox makes new feature activation easy for its customers LiveVox provides clients with the ability to add desired modules to any part of their Contact Centers, giving flexibility and financial prudence to decisions 20
20x+ Whitespace Opportunity inside LiveVox’s Installed Base Within Existing Customer Base There is a Large Opportunity For…. Seat Expansion: 10x Opportunity Product Expansion: Estimated >2x Opportunity >2x ~500k 60% of customers use two or more products As of September 2020, ~40% of 10x customers still only 40% of customers use use one of our one product products Average Number of Products per Customer ~50k 3.9 2.8 Existing Total Seats within Customer Seats Existing Customers Nov-17 Nov-20 $ 1 Billion + Whitespace Opportunity Source: Company estimates. 21 Customers20x+ Whitespace Opportunity inside LiveVox’s Installed Base Within Existing Customer Base There is a Large Opportunity For…. Seat Expansion: 10x Opportunity Product Expansion: Estimated >2x Opportunity >2x ~500k 60% of customers use two or more products As of September 2020, ~40% of 10x customers still only 40% of customers use use one of our one product products Average Number of Products per Customer ~50k 3.9 2.8 Existing Total Seats within Customer Seats Existing Customers Nov-17 Nov-20 $ 1 Billion + Whitespace Opportunity Source: Company estimates. 21 Customers
Case Studies: Land and Expand Financial Services Client Retailer § Voice revenue doubles § Client’s Text, Email, and § Successful year over year Chat were previously all on upsell of SMS § Non-voice products separate solutions; and Email (Email, Messaging) LiveVox wins with unified § ~600 agents on adopted data model platform Q1 ‘19 Q1 ‘20 Q1 ’21E Q1 ‘17 Q1 ‘18 Q1 ‘19 Q1 ‘20 Q1 ’21E § LiveVox lands with § Messaging revenues § President wants all agents on a § LiveVox lands with § Continued Voice products grow 4.3x as LiveVox single pane of glass; U-CRM Voice products expansion of § ~200 agents on takes share in rolled out to additional § ~200 agents on QM / WFO platform account Customer Care and Collections platform solutions Agents § >1,000 agents on platform $1,044K $3,348K $3,329K $768K $636K $337K $660K $130K Q1 '17 Q1 '18 Q1 '19 Q1 '20 Q1 '21E Q1 '19 Q1 '20 Q1 '21E 22 Customer ARR Customer ARRCase Studies: Land and Expand Financial Services Client Retailer § Voice revenue doubles § Client’s Text, Email, and § Successful year over year Chat were previously all on upsell of SMS § Non-voice products separate solutions; and Email (Email, Messaging) LiveVox wins with unified § ~600 agents on adopted data model platform Q1 ‘19 Q1 ‘20 Q1 ’21E Q1 ‘17 Q1 ‘18 Q1 ‘19 Q1 ‘20 Q1 ’21E § LiveVox lands with § Messaging revenues § President wants all agents on a § LiveVox lands with § Continued Voice products grow 4.3x as LiveVox single pane of glass; U-CRM Voice products expansion of § ~200 agents on takes share in rolled out to additional § ~200 agents on QM / WFO platform account Customer Care and Collections platform solutions Agents § >1,000 agents on platform $1,044K $3,348K $3,329K $768K $636K $337K $660K $130K Q1 '17 Q1 '18 Q1 '19 Q1 '20 Q1 '21E Q1 '19 Q1 '20 Q1 '21E 22 Customer ARR Customer ARR
Installed Base of Highly Satisfied Enterprise Customers 90%+ of Revenue from Strong NPS Enterprise Deployments 54 8 % 47 38 25 25 15 13 92 % 11 Revenue from customers with >50 seat count Revenue from customers with <50 seat count Source: Customer Guru. 23Installed Base of Highly Satisfied Enterprise Customers 90%+ of Revenue from Strong NPS Enterprise Deployments 54 8 % 47 38 25 25 15 13 92 % 11 Revenue from customers with >50 seat count Revenue from customers with <50 seat count Source: Customer Guru. 23
Strong Unit Economics Net Retention CAC ($ in millions) LTV to CAC New Revenue Added $1mm+ customers 120% 119% 118% 114% represent 49% of ARR Sales and Marketing $ 22 CAC 13.1x $ 17 $ 17 $ 16 $ 16 8.5 x $ 11 1.3x 1.5x 0.9x FY 17A FY 18A FY 19A L3Y All $1mm+ FY17A FY18A FY19A Avg. Customers Customers 24Strong Unit Economics Net Retention CAC ($ in millions) LTV to CAC New Revenue Added $1mm+ customers 120% 119% 118% 114% represent 49% of ARR Sales and Marketing $ 22 CAC 13.1x $ 17 $ 17 $ 16 $ 16 8.5 x $ 11 1.3x 1.5x 0.9x FY 17A FY 18A FY 19A L3Y All $1mm+ FY17A FY18A FY19A Avg. Customers Customers 24
Accelerating Sales and Marketing Investment to Capture the Opportunity Ahead of LiveVox S&M Investment over Time Areas of Investment § Net new hunters and farmers § Challenger methodology § AE productivity software FY18A FY19A FY20E FY21E FY22E § Lead generating rep capacity and skill upgrade Quota Carrying Reps § Increased pay-per-click and social advertising § Incremental investment in branding § Channel and geographic FY18A FY19A FY20E FY21E FY22E expansion Hunter vs. Farmer Bookings§ Full suite of product offerings to address TAM FY18A FY19A FY20E FY21E FY22E Hunter Bookings Farmer Bookings Note: In general, hunters cover “land” bookings and the first year of “expand” bookings, and farmers cover “expand” bookings beyond that point. 25Accelerating Sales and Marketing Investment to Capture the Opportunity Ahead of LiveVox S&M Investment over Time Areas of Investment § Net new hunters and farmers § Challenger methodology § AE productivity software FY18A FY19A FY20E FY21E FY22E § Lead generating rep capacity and skill upgrade Quota Carrying Reps § Increased pay-per-click and social advertising § Incremental investment in branding § Channel and geographic FY18A FY19A FY20E FY21E FY22E expansion Hunter vs. Farmer Bookings§ Full suite of product offerings to address TAM FY18A FY19A FY20E FY21E FY22E Hunter Bookings Farmer Bookings Note: In general, hunters cover “land” bookings and the first year of “expand” bookings, and farmers cover “expand” bookings beyond that point. 25
Financial OverviewFinancial Overview
Key Financial Highlights Predictable Growth Proven Ability to Scale EBITDA Margins 118% average Net Retention 8.5x 2020E LTV to CAC üü Strong Revenue Visibility EBITDA Positive Since 2014 üü Expected 25%+ Top Line Growth ü 27Key Financial Highlights Predictable Growth Proven Ability to Scale EBITDA Margins 118% average Net Retention 8.5x 2020E LTV to CAC üü Strong Revenue Visibility EBITDA Positive Since 2014 üü Expected 25%+ Top Line Growth ü 27
Expected 25%+ Growth, with Strong Revenue Visibility Strong Projected Revenue Growth 95% Visibility into 2021E Revenue $ in millions $8mm Usage, $129 Million $ 163 $7mm New Seasonality & Opportunities COVID Recovery $ 129 Net of Churn and $6mm Booked Downsells Revenue $ 102 in Backlog $108mm Run- Rate Revenue Entering 2021E FY20E FY21E FY22E FY 21E Projected Revenue Expanding Gross Margin Re-Investing EBITDA in Growth $ in millions $ in millions % Margin % Margin 65% 66% 67% 6% 0% 2% Decision to re-invest profits to drive incremental sales and gross profit growth $109 $85 $66 $6 $3 $0 FY20E FY21E FY22E FY20E FY21E FY22E 28Expected 25%+ Growth, with Strong Revenue Visibility Strong Projected Revenue Growth 95% Visibility into 2021E Revenue $ in millions $8mm Usage, $129 Million $ 163 $7mm New Seasonality & Opportunities COVID Recovery $ 129 Net of Churn and $6mm Booked Downsells Revenue $ 102 in Backlog $108mm Run- Rate Revenue Entering 2021E FY20E FY21E FY22E FY 21E Projected Revenue Expanding Gross Margin Re-Investing EBITDA in Growth $ in millions $ in millions % Margin % Margin 65% 66% 67% 6% 0% 2% Decision to re-invest profits to drive incremental sales and gross profit growth $109 $85 $66 $6 $3 $0 FY20E FY21E FY22E FY20E FY21E FY22E 28
LiveVox Revenue Model Multi-Pronged Revenue Model • Strong contracted revenue base which enables long-term revenue visibility Contracted revenue is a combination • Mix of revenue has shifted towards of (1) per-seat per month fees, and Contracted contracted as adoption of per-seat, per (2) minimum contracted usage Revenue month modules (e.g., WFO) has accelerated billing that is billed regardless of (~2/3 Today) consumption every month • Aligns LiveVox’s economics with value Usage revenue is billed for customer customers are receiving from the platform Usage consumption above their contracted • Lack of lock-in helps drive upsell; customers Revenue minimum. Premium pricing applies to frequently move agents onto platform as a (~1/3 Today) usage revenue. “trial” and never move them back Leading customer 8.5x LTV 118% avg. metrics as a result of Net NPS of 54 to CAC customer-centric Retention 2020E approach Source: Internal Company NPS Survey. 29LiveVox Revenue Model Multi-Pronged Revenue Model • Strong contracted revenue base which enables long-term revenue visibility Contracted revenue is a combination • Mix of revenue has shifted towards of (1) per-seat per month fees, and Contracted contracted as adoption of per-seat, per (2) minimum contracted usage Revenue month modules (e.g., WFO) has accelerated billing that is billed regardless of (~2/3 Today) consumption every month • Aligns LiveVox’s economics with value Usage revenue is billed for customer customers are receiving from the platform Usage consumption above their contracted • Lack of lock-in helps drive upsell; customers Revenue minimum. Premium pricing applies to frequently move agents onto platform as a (~1/3 Today) usage revenue. “trial” and never move them back Leading customer 8.5x LTV 118% avg. metrics as a result of Net NPS of 54 to CAC customer-centric Retention 2020E approach Source: Internal Company NPS Survey. 29
Contracted Revenue Has Grown Consistently over the Past 4 Years, Including through COVID-19; Usage has Historically Been Predictable Monthly ARR since 2017 Contracted Revenue Usage Revenue Note: Monthly revenue is normalized for dialing days. 30 Jan-17 Feb-17 Mar-17 Apr-17 May-17 Jun-17 Jul-17 Aug-17 Sep-17 Oct-17 Nov-17 Dec-17 Jan-18 Feb-18 Mar-18 Apr-18 May-18 Jun-18 Jul-18 Aug-18 Sep-18 Oct-18 Nov-18 Dec-18 Jan-19 Feb-19 Mar-19 Apr-19 May-19 Jun-19 Jul-19 Aug-19 Sep-19 Oct-19 Nov-19 Dec-19 Jan-20 Feb-20 Mar-20 Apr-20 May-20 Jun-20 Jul-20 Aug-20 Sep-20Contracted Revenue Has Grown Consistently over the Past 4 Years, Including through COVID-19; Usage has Historically Been Predictable Monthly ARR since 2017 Contracted Revenue Usage Revenue Note: Monthly revenue is normalized for dialing days. 30 Jan-17 Feb-17 Mar-17 Apr-17 May-17 Jun-17 Jul-17 Aug-17 Sep-17 Oct-17 Nov-17 Dec-17 Jan-18 Feb-18 Mar-18 Apr-18 May-18 Jun-18 Jul-18 Aug-18 Sep-18 Oct-18 Nov-18 Dec-18 Jan-19 Feb-19 Mar-19 Apr-19 May-19 Jun-19 Jul-19 Aug-19 Sep-19 Oct-19 Nov-19 Dec-19 Jan-20 Feb-20 Mar-20 Apr-20 May-20 Jun-20 Jul-20 Aug-20 Sep-20
2020 Performance | ARR has Rebounded from Period of COVID-Driven Lower Usage ARR Usage based revenue Rebound affected by COVID in 1H from 2020, during period of Usage ARR COVID lows lower volumes Contracted ARR $ 93 $ 68 $ 67 $ 65 $ 62 $ 57 $ 55 $ 54 $ 51 Q3 2018 Q4 2018 Q1 2019 Q2 2019 Q3 2019 Q4 2019 Q1 2020 Q2 2020 Q3 2020 Strong bookings outperformance for Q3 2020 with strong pipeline entering 2021 Contracted 53 % 43 % 35 % 22 % 21 % 21 % 23 % 16 % 18 % Revenue YoY %Growth 312020 Performance | ARR has Rebounded from Period of COVID-Driven Lower Usage ARR Usage based revenue Rebound affected by COVID in 1H from 2020, during period of Usage ARR COVID lows lower volumes Contracted ARR $ 93 $ 68 $ 67 $ 65 $ 62 $ 57 $ 55 $ 54 $ 51 Q3 2018 Q4 2018 Q1 2019 Q2 2019 Q3 2019 Q4 2019 Q1 2020 Q2 2020 Q3 2020 Strong bookings outperformance for Q3 2020 with strong pipeline entering 2021 Contracted 53 % 43 % 35 % 22 % 21 % 21 % 23 % 16 % 18 % Revenue YoY %Growth 31
Long-Term Operating Model Long- Term % of Revenue 2017 2018 2019 2020E Model Leverage on fixed cost Gross Margin 61% 60% 63% 65% 75%+ base as revenue grows Continued investment to S&M 26% 21% 23% 28% ~30-35% drive topline growth Product-driven company requires continued R&D 17% 17% 17% 19% ~15% investment Economies of scale G&A 15% 12% 11% 12% ~5% EBITDA 3% 10% 13% 6% ~20%+ 32Long-Term Operating Model Long- Term % of Revenue 2017 2018 2019 2020E Model Leverage on fixed cost Gross Margin 61% 60% 63% 65% 75%+ base as revenue grows Continued investment to S&M 26% 21% 23% 28% ~30-35% drive topline growth Product-driven company requires continued R&D 17% 17% 17% 19% ~15% investment Economies of scale G&A 15% 12% 11% 12% ~5% EBITDA 3% 10% 13% 6% ~20%+ 32
VALUATION OVERVIEWVALUATION OVERVIEW
LiveVox Compares Favorably Against Public Peers… Enterprise Value ($B) $ 0.84 $ 12.4 $ 17.2 $ 37.6 $ 18.6 $ 4.5 No. of Customers 325 2,000 25,000 400,000 164,200 18,000 LTM Revenue per $ 317 $ 200 $ 65 $ 3 $ 6 $ 19 Customer (000s) CC, Financial CCaaS CCaaS UCaaS Support Messaging Cloud Primary Offering Crime CAC 1.3 x ~1 x ~3 x ~2 x ~2 x ~2 x ~6 x (Enterprise) LTV to CAC 8.5 x ~2 x ~4 x ~3 x ~4 x ~2 x (Commercial) >105 to 115% Net Dollar Retention 118 % 105 to 107% Not disclosed Not disclosed 111 % Mid-Market / Enterprise 2020 Revenue ($M) $ 102 $ 422 $ 1,652 $ 1,166 $ 1,024 $ 363 2021E Revenue Growth 26 % 18 % 9 % 23 % 24 % 23 % CY21E EBITDA Margin 0% 16 % 34 % 14 % 12 % 9 % Source: Market Data as of 08-Jan-2021, publicly available equity research reports, Company public filings. 34 Financial Metrics Leading KPIs Operational MetricsLiveVox Compares Favorably Against Public Peers… Enterprise Value ($B) $ 0.84 $ 12.4 $ 17.2 $ 37.6 $ 18.6 $ 4.5 No. of Customers 325 2,000 25,000 400,000 164,200 18,000 LTM Revenue per $ 317 $ 200 $ 65 $ 3 $ 6 $ 19 Customer (000s) CC, Financial CCaaS CCaaS UCaaS Support Messaging Cloud Primary Offering Crime CAC 1.3 x ~1 x ~3 x ~2 x ~2 x ~2 x ~6 x (Enterprise) LTV to CAC 8.5 x ~2 x ~4 x ~3 x ~4 x ~2 x (Commercial) >105 to 115% Net Dollar Retention 118 % 105 to 107% Not disclosed Not disclosed 111 % Mid-Market / Enterprise 2020 Revenue ($M) $ 102 $ 422 $ 1,652 $ 1,166 $ 1,024 $ 363 2021E Revenue Growth 26 % 18 % 9 % 23 % 24 % 23 % CY21E EBITDA Margin 0% 16 % 34 % 14 % 12 % 9 % Source: Market Data as of 08-Jan-2021, publicly available equity research reports, Company public filings. 34 Financial Metrics Leading KPIs Operational Metrics
…Positioned for an Attractive Valuation EV / 2021E Revenue 26.2x 24.9x Average: 17.0x 14.7x 10.0x 9.5x 6.5x Growth Adjusted EV / 2021E Revenue (‘20 to ‘22 CAGR) 1.4x 1.1x 0.9x Average: 0.9x 0.6x 0.4x 0.2x Source: Market Data as of 08-Jan-2021, Wall Street research, Company public filings. 35…Positioned for an Attractive Valuation EV / 2021E Revenue 26.2x 24.9x Average: 17.0x 14.7x 10.0x 9.5x 6.5x Growth Adjusted EV / 2021E Revenue (‘20 to ‘22 CAGR) 1.4x 1.1x 0.9x Average: 0.9x 0.6x 0.4x 0.2x Source: Market Data as of 08-Jan-2021, Wall Street research, Company public filings. 35
Concluding Highlights 1 Large TAM with strong secular tailwinds Differentiated CCaaS platform with attractive KPIs 2 Multiple levers to accelerate growth 3 Attractive entry valuation versus peer group 4 36Concluding Highlights 1 Large TAM with strong secular tailwinds Differentiated CCaaS platform with attractive KPIs 2 Multiple levers to accelerate growth 3 Attractive entry valuation versus peer group 4 36
AppendixAppendix
Strong Sales Efficiency Less More CAC Benchmarking | LiveVox vs. Peers Favorable Favorable LiveVox CAC 7.0x $ in millions New Revenue Added Sales and Marketing $ 22 6.0x CAC $ 17 $ 17 $ 16 $ 16 $ 11 5.0x 1.3x 1.5x 0.9x 4.0x FY17A FY18A FY19A 3.0x 2.0x 1.0x 0.0x Source: Wall Street Research, Company public filings. 38Strong Sales Efficiency Less More CAC Benchmarking | LiveVox vs. Peers Favorable Favorable LiveVox CAC 7.0x $ in millions New Revenue Added Sales and Marketing $ 22 6.0x CAC $ 17 $ 17 $ 16 $ 16 $ 11 5.0x 1.3x 1.5x 0.9x 4.0x FY17A FY18A FY19A 3.0x 2.0x 1.0x 0.0x Source: Wall Street Research, Company public filings. 38
Strong Retention Driven by Considerable Upsell Less More Net Dollar Retention Benchmarking | LiveVox vs. Peers Favorable Favorable LiveVox Net Dollar Retention 120% 119% 114% 145% 135% 125% FY17A FY18A FY19A 115% 105% 95% 85% Source: Wall Street Research, Company public filings. 39Strong Retention Driven by Considerable Upsell Less More Net Dollar Retention Benchmarking | LiveVox vs. Peers Favorable Favorable LiveVox Net Dollar Retention 120% 119% 114% 145% 135% 125% FY17A FY18A FY19A 115% 105% 95% 85% Source: Wall Street Research, Company public filings. 39
Large Land and Expand Opportunity through Strong LTV to CAC Less More LTV to CAC Benchmarking | LiveVox vs. Peers Favorable Favorable 18.0x LiveVox LTV to CAC 16.0x % of Total 49% 13.1x 14.0x 8.5x 12.0x All $1mm+ 10.0x Customers Customers 8.0x 6.0x 4.0x 2.0x 0.0x Source: Wall Street Research, Company public filings. Note: LTV calculated as subscription gross margin divided by gross churn. CAC is calculated as trailing twelve months S&M expense divided by quarter 0 subscription revenue annualized less quarter 4 subscription revenue annualized. 40Large Land and Expand Opportunity through Strong LTV to CAC Less More LTV to CAC Benchmarking | LiveVox vs. Peers Favorable Favorable 18.0x LiveVox LTV to CAC 16.0x % of Total 49% 13.1x 14.0x 8.5x 12.0x All $1mm+ 10.0x Customers Customers 8.0x 6.0x 4.0x 2.0x 0.0x Source: Wall Street Research, Company public filings. Note: LTV calculated as subscription gross margin divided by gross churn. CAC is calculated as trailing twelve months S&M expense divided by quarter 0 subscription revenue annualized less quarter 4 subscription revenue annualized. 40
GAAP Reconciliation Reconciliation Between GAAP Figures and Adjusted Figures $ in millions 2017A 2018A 2019A GAAP Gross Margin $ 34.4 $ 43.7 $ 54.5 (+) Adjustments 3.3 3.9 6.2 Adjusted Gross Margin $ 37.7 $ 47.6 $ 60.7 % Revenue 61 % 60 % 63 % GAAP Net Income $(3.9) $ 1.9 $(6.9) (+) Net Interest Expense 2.4 3.3 3.3 (+) Income Taxes 0.2 0.4 0.1 (+) Depreciation & Amortization 4.4 4.6 4.9 (+/-) Other Items 0.5 0.1 (0.0) GAAP Based EBITDA $ 3.5 $ 10.4 $ 1.4 (+) Pre-Acquisition Net Income (2.7) (2.6) (1.0) (+) Pre-Acquisition Interest 0.1 0.1 0.0 (+) Incentive Compensation Bonus 0.0 0.0 9.2 (+) Acquisition Fees 0.0 0.0 1.4 (+) Management & Board Fees 0.6 0.8 1.0 (+/-) Other Adjustments 0.4 (0.7) 0.1 Adjusted EBITDA $ 1.9 $ 8.0 $ 12.1 (/) Pro Forma Revenue $ 61.5 $ 78.9 $ 95.6 Adjusted EBITDA % Margin 3 % 10 % 13 % Memo: Pro Forma Adjustments $ 8.4 $ 8.7 $ 20.0 Pre-Acquisition Adjustments (2.7) (2.6) (1.0) Note: Adjustments include: Interest, Taxes, Depreciation & Amortization, one-time non-recurring costs, non-cash costs, other costs unique to private company ownership and pre-acquisition financials for periods prior to GAAP consolidation. Note historical financials are not presented pro forma for the Transaction. 41GAAP Reconciliation Reconciliation Between GAAP Figures and Adjusted Figures $ in millions 2017A 2018A 2019A GAAP Gross Margin $ 34.4 $ 43.7 $ 54.5 (+) Adjustments 3.3 3.9 6.2 Adjusted Gross Margin $ 37.7 $ 47.6 $ 60.7 % Revenue 61 % 60 % 63 % GAAP Net Income $(3.9) $ 1.9 $(6.9) (+) Net Interest Expense 2.4 3.3 3.3 (+) Income Taxes 0.2 0.4 0.1 (+) Depreciation & Amortization 4.4 4.6 4.9 (+/-) Other Items 0.5 0.1 (0.0) GAAP Based EBITDA $ 3.5 $ 10.4 $ 1.4 (+) Pre-Acquisition Net Income (2.7) (2.6) (1.0) (+) Pre-Acquisition Interest 0.1 0.1 0.0 (+) Incentive Compensation Bonus 0.0 0.0 9.2 (+) Acquisition Fees 0.0 0.0 1.4 (+) Management & Board Fees 0.6 0.8 1.0 (+/-) Other Adjustments 0.4 (0.7) 0.1 Adjusted EBITDA $ 1.9 $ 8.0 $ 12.1 (/) Pro Forma Revenue $ 61.5 $ 78.9 $ 95.6 Adjusted EBITDA % Margin 3 % 10 % 13 % Memo: Pro Forma Adjustments $ 8.4 $ 8.7 $ 20.0 Pre-Acquisition Adjustments (2.7) (2.6) (1.0) Note: Adjustments include: Interest, Taxes, Depreciation & Amortization, one-time non-recurring costs, non-cash costs, other costs unique to private company ownership and pre-acquisition financials for periods prior to GAAP consolidation. Note historical financials are not presented pro forma for the Transaction. 41
GAAP Reconciliation Reconciliation Between GAAP Figures and Adjusted Figures $ in millions 2017A 2018A 2019A GAAP Sales & Marketing Expense $ 15.2 $ 14.6 $ 23.0 (+) Adjustments 0.9 1.8 (0.7) Adjusted Sales & Marketing Expense $ 16.1 $ 16.3 $ 22.4 % Revenue 26 % 21 % 23 % GAAP Research & Development Expense $ 8.9 $ 12.4 $ 16.6 (+) Adjustments 1.4 1.4 (0.7) Adjusted Research & Development Expense $ 10.2 $ 13.8 $ 15.9 % Revenue 17 % 17 % 17 % GAAP General & Administrative Expense $ 11.2 $ 11.1 $ 18.3 (+) Adjustments (1.7) (1.5) (8.0) Adjusted General & Administrative Expense $ 9.5 $ 9.5 $ 10.3 % Revenue 15 % 12 % 11 % Note: Adjustments include: Interest, Taxes, Depreciation & Amortization, one-time non-recurring costs, non-cash costs, other costs unique to private company ownership and pre-acquisition financials for periods prior to GAAP consolidation. Note historical financials are not presented pro forma for the Transaction. 42GAAP Reconciliation Reconciliation Between GAAP Figures and Adjusted Figures $ in millions 2017A 2018A 2019A GAAP Sales & Marketing Expense $ 15.2 $ 14.6 $ 23.0 (+) Adjustments 0.9 1.8 (0.7) Adjusted Sales & Marketing Expense $ 16.1 $ 16.3 $ 22.4 % Revenue 26 % 21 % 23 % GAAP Research & Development Expense $ 8.9 $ 12.4 $ 16.6 (+) Adjustments 1.4 1.4 (0.7) Adjusted Research & Development Expense $ 10.2 $ 13.8 $ 15.9 % Revenue 17 % 17 % 17 % GAAP General & Administrative Expense $ 11.2 $ 11.1 $ 18.3 (+) Adjustments (1.7) (1.5) (8.0) Adjusted General & Administrative Expense $ 9.5 $ 9.5 $ 10.3 % Revenue 15 % 12 % 11 % Note: Adjustments include: Interest, Taxes, Depreciation & Amortization, one-time non-recurring costs, non-cash costs, other costs unique to private company ownership and pre-acquisition financials for periods prior to GAAP consolidation. Note historical financials are not presented pro forma for the Transaction. 42
Exhibit 99.3
This supplement (Supplement) is for informational purposes only to assist interested parties in making their own evaluation with respect to the proposed business combination (the Business Combination) between Crescent Acquisition Corporation (Crescent) and LiveVox Holdings, Inc. (LiveVox or the Company). The information contained herein does not purport to be all-inclusive and none of Crescent, the Company nor any of their respective affiliates nor any of its or their control persons, officers, directors, employees or representatives makes any representation or warranty, express or implied, as to the accuracy, completeness or reliability of the information contained in this Supplement. You should consult your own counsel and tax and financial advisors as to legal and related matters concerning the matters described herein, and, by accepting this Supplement, you confirm that you are not relying upon the information contained herein to make any decision. The reader shall not rely upon any statement, representation or warranty made by any other person, firm or corporation in making its investment or decision to invest in the Company. None of Crescent, the Company, nor any of their respective affiliates nor any of its or their control persons, officers, directors, employees or representatives, shall be liable to the reader for any information set forth herein or any action taken or not taken by any reader, including any investment in shares of Crescent or the Company.
The financial information and data contained in this Supplement is either audited in accordance with private company auditing standards or is unaudited and, in each case, does not conform to Regulation S-X or Public Company Accounting Oversight Board (PCAOB) standards. Accordingly, such information and data may not be included in, may be adjusted in or may be presented differently in any proxy statement/prospectus to be filed with the Securities and Exchange Commission (SEC). In particular, this Supplement includes estimates of certain financial metrics of LiveVox had they been prepared in accordance with PCAOB standards and are based on LiveVoxs historical financials that have been prepared in accordance with private company auditing standards. LiveVox actual financial metrics when prepared and audited in accordance with PCAOB standards may differ from the financial metrics included in this Supplement, including with respect to revenue recognition and amortization of goodwill.
Additional Information about the Transaction and Where to Find It
This communication relates to the Business Combination between Crescent and the Company and may be deemed to be solicitation material in respect of the Business Combination. The Business Combination will be submitted to the stockholders of Crescent for their approval. In connection with Crescents stockholder vote on the Business Combination, Crescent will file a proxy statement/prospectus with the SEC. This communication is not a substitute for the proxy statement/prospectus that Crescent will file with the SEC or any other documents that Crescent may file with the SEC or send to its stockholders in connection with the Business Combination. When completed, Crescent will mail a definitive proxy statement to its stockholders in connection with Crescents solicitation of proxies for the special meeting of Crescents stockholders to be held to approve the Business Combination. This communication does not contain all the information that should be considered concerning the Business Combination, including relevant risk factors that may be included in the preliminary or definitive proxy statement/prospectus. It is not intended to provide the basis for any investment decision or any other decision in respect to the Business Combination. Crescents stockholders and other interested persons are urged to read Crescents proxy statement/prospectus, when available and any other relevant documents that are filed or furnished or will be filed or will be furnished with the SEC, as well as any amendments or supplements to these documents, carefully and in their entirety before making any voting or investment decision with respect to the Business Combination, as these materials will contain important information about Crescent, related matters and the parties to Crescent. A copy of the definitive proxy statement/prospectus will be sent when available to all stockholders of record of Crescent seeking the required stockholder approvals. Investors and stockholders can obtain free copies of the proxy statement/prospectus, when available and other documents filed with the SEC by Crescent through the web site maintained by the SEC at www.sec.gov. In addition, investors and stockholders can obtain free copies of the proxy statement, when available from Crescent by accessing the Crescents website at https://www.crescentspac.com.
No Offer or Solicitation
This communication is for informational purposes only and is neither an offer to sell or purchase, nor the solicitation of an offer to buy or sell any securities, nor is it a solicitation of any vote, consent, or approval in any jurisdiction pursuant to or in connection with the Business Combination or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law.
Participants in the Solicitation
The Company and Crescent, and their respective directors and executive officers, may be deemed participants in the solicitation of proxies of Crescents stockholders in respect of the Business Combination. Information about the directors and executive officers of Crescent is set forth in Crescents Form 10-K for the year ended December 31, 2019. Information about the directors and executive officers of LiveVox and more detailed information regarding the identity of all potential participants, and their direct and indirect interests, by security holdings or otherwise, will be set forth in Crescents proxy statement/prospectus relating to the Business Combination. Investors may obtain additional information about the interests of such participants by reading such proxy statement/prospectus, when available.
LIVEVOX HOLDINGS, INC. AND SUBSIDIARIES
Consolidated Balance Sheet
For the years ended December 31, 2019 and 2018
ASSETS | 2019 | 2018 | ||||||
Current assets: |
||||||||
Cash |
$ | 14,909,683 | $ | 15,411,594 | ||||
Restricted Cash, current |
171,324 | | ||||||
Accounts receivable, net |
16,387,679 | 11,747,746 | ||||||
Deferred Sales Commissions, current |
1,028,327 | 708,504 | ||||||
Prepaid Expenses and other current assets |
2,430,245 | 2,229,154 | ||||||
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|
|
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Total Current Assets |
34,927,258 | 30,096,998 | ||||||
Property and equipment, net |
4,336,944 | 4,333,201 | ||||||
Goodwill |
47,461,217 | 42,257,899 | ||||||
Intangible assets, net |
22,877,452 | 20,712,423 | ||||||
Deposits and other |
536,989 | 319,105 | ||||||
Deferred Sales Commissions, net of current |
2,494,441 | 2,104,586 | ||||||
Restricted Cash, net of current portion |
1,431,677 | | ||||||
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|
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Total Assets |
$ | 114,065,978 | $ | 99,824,212 | ||||
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LIABILITIES & STOCKHOLDERS EQUITY |
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Current Liabilities: |
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Accounts payable |
2,489,626 | 1,280,872 | ||||||
Accrued expenses |
11,973,445 | 6,433,525 | ||||||
Deferred revenue, current |
738,155 | 143,450 | ||||||
Current portion of term loan |
1,152,124 | 1,125,000 | ||||||
Current portion of capital lease obligations |
739,248 | 886,610 | ||||||
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|
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Total current liabilities |
17,092,598 | 9,869,457 | ||||||
Long Term Liabilities: |
||||||||
Term Loan, net of current portion |
55,901,454 | 42,983,542 | ||||||
Capital lease obligations, net of current portion |
367,815 | 856,433 | ||||||
Deferred tax liability, net |
319,737 | 607,311 | ||||||
Other long-term liabilities |
2,105,925 | 328,083 | ||||||
Deferred revenue, net of current |
59,996 | | ||||||
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Total liabilities |
75,847,525 | 54,644,826 | ||||||
Stockholders Equity |
38,218,453 | 45,179,386 | ||||||
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Total liabilities & Stockholders Equity |
$ | 114,065,978 | 99,824,212 | |||||
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Note: LiveVox financial information shown above does not conform to Regulation S-X or PCAOB standards, and such information may not be included, may be adjusted or may be presented differently in filings made with the SEC.
LIVEVOX HOLDINGS, INC. AND SUBSIDIARIES
Consolidated Balance Sheet
For the years ended December 31, 2019 and 2018
2019 | 2018 | |||||||
Revenue |
$ | 92,755,434 | $ | 77,177,162 | ||||
Operating Expenses |
||||||||
Cost of Revenue |
38,252,838 | 33,457,106 | ||||||
Sales and marketing expense |
23,035,539 | 14,568,708 | ||||||
General and administrative expense |
16,938,490 | 9,719,851 | ||||||
Research and development expense |
16,606,936 | 12,357,350 | ||||||
Amortization of identified intangible assets |
1,387,708 | 1,357,142 | ||||||
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Total operating expense |
96,221,511 | 71,460,158 | ||||||
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|
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Income (loss) from operations |
(3,466,077 | ) | 5,717,004 | |||||
Interest expense |
3,320,235 | 3,280,795 | ||||||
Other expense (income), net |
(22,353 | ) | 144,652 | |||||
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|
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Total other expense, net |
3,297,882 | 3,425,448 | ||||||
Pre-tax income (Loss) |
(6,763,959 | ) | 2,291,557 | |||||
Provision for income taxes |
149,085 | 405,745 | ||||||
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|
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Net Income (Loss) |
$ | (6,913,044 | ) | $ | 1,885,811 | |||
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Note: LiveVox financial information shown above does not conform to Regulation S-X or PCAOB standards, and such information may not be included, may be adjusted or may be presented differently in filings made with the SEC.
LIVEVOX HOLDINGS, INC. AND SUBSIDIARIES
Consolidated Statement of Comprehensive Income (Loss)
For the years ended December 31, 2019 and 2018
2019 | 2018 | |||||||
Net Income (Loss) |
$ | (6,913,044 | ) | $ | 1,885,811 | |||
Other Comprehensive Loss |
||||||||
Change in foreign currency translation adjustment, net of tax |
(47,889 | ) | (70,123 | ) | ||||
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|
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Comprehensive Income (Loss) |
$ | (6,960,933 | ) | $ | 1,815,688 | |||
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Note: LiveVox financial information shown above does not conform to Regulation S-X or PCAOB standards, and such information may not be included, may be adjusted or may be presented differently in filings made with the SEC.
LIVEVOX HOLDINGS, INC. AND SUBSIDIARIES
Consolidated Statement of Stockholders Equity
For the years ended December 31, 2019 and 2018
Common Stock |
Additional
Paid-in |
Accumulated
Other Comprehensive |
Retained
Earnings
|
|||||||||||||||||||||
Shares | Amount | Capital | Income | Deficit) | Total | |||||||||||||||||||
Balance at December 31, 2017 |
1,000 | $ | 10 | $ | 58,618,673 | $ | (99,944 | ) | $ | (16,963,358 | ) | $ | 41,555,381 | |||||||||||
Net Reduction to opening accumulated deficit due to adoption of ASC 340 |
1,808,317 | 1,808,317 | ||||||||||||||||||||||
Foreign currency translation adjustment |
(70,123 | ) | (70,123 | ) | ||||||||||||||||||||
Net Income |
1,885,811 | 1,885,811 | ||||||||||||||||||||||
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Balance at December 31, 2018 |
1,000 | 10 | 58,618,673 | (170,067 | ) | (13,269,230 | ) | 45,179,386 | ||||||||||||||||
Foreign currency translation adjustment |
(47,889 | ) | (47,889 | ) | ||||||||||||||||||||
Net Loss |
(6,913,044 | ) | (6,913,044 | ) | ||||||||||||||||||||
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Balance at December 31, 2019 |
1,000 | $ | 10 | $ | 58,618,673 | $ | (217,956 | ) | $ | (20,182,274 | ) | $ | 38,218,453 | |||||||||||
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Note: LiveVox financial information shown above does not conform to Regulation S-X or PCAOB standards, and such information may not be included, may be adjusted or may be presented differently in filings made with the SEC.
LIVEVOX HOLDINGS, INC. AND SUBSIDIARIES
Consolidated Statement of Stockholders Equity
For the years ended December 31, 2019 and 2018
2019 | 2018 | |||||||
Cash flows provided by operating activities: |
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Net Income (Loss) |
$ | (6,913,044 | ) | $ | 1,885,811 | |||
Adjustments to reconcile net income (loss) to net cash provided by operating activities: |
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Depreciation and amortization |
1,558,900 | 1,384,419 | ||||||
Amortization of identified intangible assets |
3,334,971 | 3,258,571 | ||||||
Amortization of deferred loan origination costs |
153,761 | 224,984 | ||||||
Amortization of deferred commission costs |
889,434 | 546,926 | ||||||
Bad debt expense |
339,532 | 249,653 | ||||||
Loss on disposition of asset |
| 12,710 | ||||||
Deferred income tax benefit (expense) |
(287,573 | ) | 25,402 | |||||
Effect of foreign currency translation |
(61,900 | ) | 19,540 | |||||
Changes in Assets and Liabilities |
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Accounts receivable |
(4,438,696 | ) | (2,294,786 | ) | ||||
Prepaid expenses and other assets |
(378,983 | ) | (820,097 | ) | ||||
Deferred Sales Commissions |
(1,599,112 | ) | (1,490,094 | ) | ||||
Accounts payable |
966,295 | (435,924 | ) | |||||
Accrued expenses |
5,509,755 | 1,542,229 | ||||||
Deferred revenue |
654,701 | (54,282 | ) | |||||
Other long-term liabilities |
1,777,842 | 27,383 | ||||||
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Net cash provided by operating activities: |
1,505,883 | 4,082,445 | ||||||
Investing activities: |
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Purchases of property and equipment |
(1,139,649 | ) | (670,118 | ) | ||||
Acquisition of businesses, net of cash acquired |
(11,017,750 | ) | | |||||
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Net cash used in investing activities |
(12,157,399 | ) | (670,118 | ) | ||||
Financing activities: |
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Proceeds from borrowing on term loans |
13,635,024 | 10,170,563 | ||||||
Repayment on loan payable |
(843,750 | ) | (450,000 | ) | ||||
Repayments on capital lease obligations |
(1,038,668 | ) | (706,039 | ) | ||||
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Net cash provided by financing activities |
11,752,606 | 9,014,524 | ||||||
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Net increase in cash, cash equivalents and restricted cash |
1,101,090 | 12,426,851 | ||||||
Cash, cash equivalents, and restricted cash beginning of period |
15,411,594 | 2,984,743 | ||||||
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Cash, cash equivalents, and restricted cash end of period |
$ | 16,512,684 | $ | 15,411,594 | ||||
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Supplemental disclosure of cash flow information: |
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Interest paid |
$ | 3,328,675 | $ | 3,124,667 | ||||
Income taxes paid |
227,564 | 111,249 | ||||||
Supplemental schedule of noncash investing activities: |
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Equipment and software acquired under capital lease obligations |
$ | 402,688 | $ | 1,167,275 | ||||
Non-Cash Consideration held back in Acquisition |
1,603,001 | |
Note: LiveVox financial information shown above does not conform to Regulation S-X or PCAOB standards, and such information may not be included, may be adjusted or may be presented differently in filings made with the SEC.