false 0001640428 0001640428 2023-08-01 2023-08-01
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): August 1, 2023
EverQuote, Inc.
(Exact Name of Registrant as Specified in its Charter)
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Delaware |
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001-38549 |
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26-3101161 |
(State or Other Jurisdiction of Incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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210 Broadway Cambridge, Massachusetts |
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02139 |
(Address of Principal Executive Offices) |
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(Zip Code) |
Registrant’s telephone number, including area code: (855) 522-3444
(Former Name or Former Address, if Changed Since Last Report)
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 (see General Instruction A.2. below):
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☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Class A Common Stock, $0.001 par value per share |
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EVER |
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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. |
Purchase and Sale Agreement
On August 1, 2023, EverQuote, Inc. (the “Company”) entered into a Purchase and Sale Agreement (the “Purchase Agreement”) with MyPlanAdvocate Insurance Solutions Inc. (the “Buyer”), a Delaware corporation, pursuant to which the Company agreed to sell to the Buyer assets relating to its health insurance vertical (as further described in the Purchase Agreement, the “Disposed Assets”), by selling to the Buyer all of the issued and outstanding membership interests of its subsidiary, Eversurance, LLC, an Indiana limited liability company, for cash consideration of $13.2 million, subject to customary post-closing adjustments (collectively, the “Transaction”). The Transaction closed concurrently with execution of the Purchase Agreement.
The Purchase Agreement contains customary representations and warranties by the Company, on the one hand, and the Buyer, on the other hand. It also contains customary covenants, including covenants preventing the Company, together with its direct and indirect subsidiaries, from engaging in the operation of a direct to consumer agency for the sale of health insurance and Medicare plans to consumers, subject to certain exceptions, for a period of three years following the closing.
The Purchase Agreement provides for customary post-closing indemnification by each party of certain liabilities specified in the Purchase Agreement, subject to customary limitations.
The foregoing description of the Purchase Agreement is qualified in its entirety by reference to the full text of the Purchase Agreement, which is attached as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.
The Purchase Agreement has been attached as an exhibit to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company, the Disposed Assets or the Buyer. The representations, warranties and covenants contained in the Purchase Agreement were made only for the purposes of such agreement and as of specified dates, were solely for the benefit of the parties to such agreement and may be subject to limitations agreed upon by the contracting parties. The representations and warranties may have been made for the purposes of allocating contractual risk between the parties to the Purchase 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 Purchase Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, the Disposed Assets or the Buyer or any of their respective subsidiaries or affiliates. In addition, the assertions embodied in the representations and warranties contained in the Purchase Agreement are qualified by information in a confidential disclosure schedule that the parties have exchanged. Accordingly, investors should not rely on the representations and warranties as characterizations of the actual state of facts, since (i) they were made only as of the date of such agreement or a prior, specified date, (ii) in some cases they are subject to qualifications with respect to materiality, knowledge and/or other matters, and (iii) they may be modified in important part by the underlying disclosure schedule. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Purchase Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.
Loan and Security Modification Agreement (August 1, 2023)
On August 1, 2023, the Company entered into a Loan and Security Modification Agreement (the “Consent and Release”) with Western Alliance Bank (the “Lender”), which modified the Amended and Restated Loan and Security Agreement, dated August 7, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) between the Company and the Lender. Pursuant to the Consent and Release, the Lender consented to the Transaction and released its security interests in the Disposed Assets arising under the Loan Agreement.
The foregoing description of the Consent and Release is qualified in its entirety by reference to the full text of the Consent and Release, which is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Loan and Security Modification Agreement (August 7, 2023)
On August 7, 2023, the Company entered into an additional Loan and Security Modification Agreement (the “Loan Amendment”) with the Lender, which further modified the Loan Agreement (the Loan Agreement, as amended by the Loan Amendment, the “Amended Loan Agreement”).
The Loan Amendment (i) eliminates the term loan availability, (ii) decreases the revolving line of credit under the Amended Loan Agreement from $35.0 million to $25.0 million, (iii) updates the interest rate for borrowings under the revolving line of credit from (A) the greater of 4.25% and the prime rate to (B) the greater of 7.00% and the prime rate and (iv) updates certain financial and other covenants.
Pursuant to the Loan Amendment, the existing minimum asset coverage ratio, fixed charge coverage ratio and leverage ratio covenants under the Amended Loan Agreement have been eliminated and replaced with a minimum adjusted quick ratio of 1.10 to 1.00 (defined as (1) the sum of (x) unrestricted cash and cash equivalents held at the Lender plus (y) net accounts receivable reflected on the Company’s balance sheet to (2) current liabilities, including all borrowings outstanding under the Amended Loan Agreement, but excluding the current portion of deferred revenue, in each case determined in accordance with U.S. generally accepted accounting principles) (the “Adjusted Quick Ratio”). At any time when the Adjusted Quick Ratio is less than 1.30 to 1.00, the Lender shall have the ability to use the Company’s cash receipts to repay outstanding obligations until such time as the Adjusted Quick Ratio is equal to or greater than 1.30 to 1.00 for two consecutive months.
The foregoing description of the Loan Amendment is qualified in its entirety by reference to the full text of the Loan Amendment, which is attached as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 2.01 |
Completion of Acquisition or Disposition of Assets. |
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 2.02 |
Results of Operations and Financial Condition. |
On August 7, 2023, the Company issued a press release reporting financial results for the fiscal quarter ended June 30, 2023. The full text of the press release is furnished as Exhibit 99.3 to this Current Report on Form 8-K.
The information contained in Item 2.02 in this Current Report on Form 8-K (including Exhibit 99.1) 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 the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Amended Loan Agreement is incorporated by reference into this Item 2.03.
Item 7.01 |
Regulation FD Disclosure. |
On August 7, 2023, the Company posted an investor presentation to its website (www.everquote.com). A copy of the investor presentation is furnished as Exhibit 99.4 to this Current Report on Form 8-K.
The information contained in Item 7.01 in this Current Report on Form 8-K (including Exhibit 99.4) shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
EXHIBIT INDEX
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Exhibit No. |
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Description |
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2.1 |
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Purchase and Sale Agreement, dated August 1, 2023, by and between MyPlanAdvocate Insurance Solutions Inc. and the Company. |
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99.1 |
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Loan and Security Modification Agreement, dated August 1, 2023, by and between Western Alliance Bank and the Company. |
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99.2 |
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Loan and Security Modification Agreement, dated August 7, 2023, by and between Western Alliance Bank and the Company. |
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99.3 |
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Press release dated August 7, 2023 |
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99.4 |
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Investor Presentation dated August 7, 2023 |
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104 |
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Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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EVERQUOTE, INC. |
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Date: August 7, 2023 |
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By: |
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/s/ Julia Brncic |
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Julia Brncic |
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Secretary and General Counsel |
Exhibit 2.1
Execution Version
PURCHASE AND SALE AGREEMENT
BY
AND BETWEEN
EVERQUOTE, INC.
and
MYPLANADVOCATE INSURANCE
SOLUTIONS INC.
August 1, 2023
THIS DOCUMENT IS NOT INTENDED TO CREATE NOR WILL IT BE DEEMED TO CREATE A LEGALLY BINDING OR ENFORCEABLE OFFER,
ACCEPTANCE OF AN OFFER OR AGREEMENT OF ANY TYPE OR NATURE, UNLESS AND UNTIL AGREED TO AND EXECUTED BY ALL PARTIES
TABLE OF CONTENTS
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PAGE |
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ARTICLE I EQUITY INTEREST PURCHASE AND SALE |
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1 |
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1.1 |
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Sale and Transfer of Equity Interests |
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1 |
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1.2 |
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The Closing |
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1 |
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1.3 |
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Post-Closing Adjustment |
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3 |
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1.4 |
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Further Assurances |
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7 |
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1.5 |
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Withholding |
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7 |
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ARTICLE II REPRESENTATIONS AND WARRANTIES OF PARENT |
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8 |
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2.1 |
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Organization, Qualification and Corporate Power |
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8 |
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2.2 |
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Capitalization |
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10 |
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2.3 |
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Authority |
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10 |
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2.4 |
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Noncontravention |
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11 |
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2.5 |
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Subsidiaries |
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11 |
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2.6 |
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Financial Statements; No Undisclosed Liabilities; Accounts Receivable |
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12 |
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2.7 |
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Absence of Changes |
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12 |
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2.8 |
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Tax Matters |
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13 |
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2.9 |
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Tangible Personal Property |
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15 |
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2.10 |
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Real Property |
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15 |
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2.11 |
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Intellectual Property |
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16 |
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2.12 |
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Contracts |
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18 |
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2.13 |
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Litigation |
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19 |
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2.14 |
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Labor Matters |
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19 |
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2.15 |
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Employee Benefits |
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20 |
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2.16 |
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Legal Compliance |
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22 |
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2.17 |
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Privacy |
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22 |
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2.18 |
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Permits |
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23 |
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2.19 |
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Insurance |
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24 |
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2.20 |
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Business Relationships with Affiliates |
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24 |
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2.21 |
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Environmental Matters |
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24 |
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2.22 |
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Brokers Fees |
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25 |
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF BUYER |
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25 |
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3.1 |
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Organization |
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25 |
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3.2 |
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Authorization of Transaction |
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25 |
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3.3 |
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Noncontravention |
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25 |
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3.4 |
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Brokers Fees |
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26 |
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3.5 |
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Litigation |
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26 |
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3.6 |
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Investment Intent |
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26 |
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3.7 |
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Solvency |
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26 |
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3.8 |
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No Other Representations or Warranties |
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26 |
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ARTICLE IV INDEMNIFICATION |
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27 |
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4.1 |
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Indemnification by Parent |
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27 |
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4.2 |
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Indemnification by Buyer |
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28 |
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4.3 |
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Claims for Indemnification |
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29 |
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4.4 |
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Survival |
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30 |
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4.5 |
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Limitations |
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31 |
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4.6 |
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Treatment of Indemnification Payments |
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33 |
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ARTICLE V TAX MATTERS |
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33 |
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5.1 |
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Preparation and Filing of Tax Returns; Payment of Taxes |
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33 |
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5.2 |
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Allocation of Certain Taxes |
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34 |
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5.3 |
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Refunds and Carrybacks |
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34 |
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5.4 |
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Cooperation on Tax Matters; Tax Audits |
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34 |
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5.5 |
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Post Closing Actions |
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35 |
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5.6 |
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Purchase Price Allocation |
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35 |
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5.7 |
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Tax Treatment |
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35 |
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ARTICLE VI FURTHER AGREEMENTS |
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36 |
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6.1 |
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Access to Information; Record Retention; Cooperation |
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36 |
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6.2 |
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Covenant Not to Compete; Covenant Not to Solicit |
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38 |
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6.3 |
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Disclosure Generally |
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39 |
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6.4 |
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Resignations |
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40 |
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6.5 |
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Employee Benefit Plan Matters |
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40 |
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6.6 |
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Transitional Period for Corporate Names and Related Matters |
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41 |
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6.7 |
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Transition Services |
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41 |
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6.8 |
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Release |
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43 |
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ARTICLE VII MISCELLANEOUS |
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43 |
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7.1 |
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Press Releases and Announcements |
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43 |
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7.2 |
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No Third Party Beneficiaries |
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43 |
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7.3 |
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Action to be Taken by Affiliates |
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43 |
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7.4 |
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Entire Agreement |
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43 |
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7.5 |
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Succession and Assignment |
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44 |
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7.6 |
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Counterparts and Signature |
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44 |
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7.7 |
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Headings |
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44 |
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7.8 |
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Notices |
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44 |
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7.9 |
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Governing Law |
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45 |
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7.10 |
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Amendments and Waivers |
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45 |
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7.11 |
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Severability |
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46 |
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7.12 |
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Specific Performance |
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46 |
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7.13 |
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Submission to Jurisdiction |
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46 |
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7.14 |
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Bulk Transfer Laws |
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46 |
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7.15 |
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Construction; Certain Definitions |
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47 |
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7.16 |
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Waiver of Jury Trial |
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47 |
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7.17 |
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Incorporation of Exhibits and Schedules |
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48 |
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ii
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Schedules: |
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Disclosure Schedule |
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Schedule I |
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Pre-Closing Transactions |
Schedule 1.2(b)(viii) |
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Closing Indebtedness |
Schedule 1.3(a) |
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Working Capital Methodology |
Schedule 1.3(a)(v) |
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Specified Carriers |
Schedule 1.4 |
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P&C Carrier Contracts |
Schedule 4.2 |
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Assumed Contracts |
Schedule 5.6 |
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Proposed Allocation |
Schedule 6.1(d)(i) |
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Record Production |
Schedule 6.2(f) |
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Permitted Activities |
Schedule 6.3(a) |
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Parent Knowledge Persons |
Schedule 6.3(b) |
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Buyer Knowledge Persons |
Schedule 6.7 |
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Services |
iii
TABLE OF DEFINED TERMS
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Defined Term |
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Section |
Accounting Principles |
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1.3(b) |
Acquired Company |
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Introduction |
Acquired Company IP |
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2.11(a) |
Acquired Company Released Persons |
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6.8 |
Adjusted Purchase Price |
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1.3(j) |
Adjustment Threshold |
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1.3(i) |
Affiliate |
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2.1(b) |
Agreement |
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Preliminary Statement |
Assumed Liabilities |
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4.2 |
Balance Sheet |
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2.6(a) |
Bankruptcy and Equity Exception |
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2.3 |
Business Day |
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1.3(a)(ii) |
Business Material Adverse Effect |
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2.1(b) |
Business |
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Introduction |
Buyer |
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Preliminary Statement |
Buyer Material Adverse Effect |
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3.3(b) |
Cap |
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4.5(a)(i) |
Claim Notice |
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4.3(b) |
Claimed Amount |
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4.3(b) |
Closing |
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1.2(a) |
Closing Cash |
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1.3(a)(iii) |
Closing Date |
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1.2(a) |
Closing Indebtedness |
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1.3(a)(iv) |
Code |
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2.8(d) |
Commissions Receivable Adjustment |
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1.3(a)(v) |
Commissions Receivable Factor |
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1.3(a)(vi) |
Competitive Business |
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6.2 |
Covered Individual |
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6.2 |
COVID-19 |
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2.1(b) |
COVID-19 Measures |
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2.1(b) |
COVID-19 Responses |
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2.1(b) |
Damages |
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4.1; 4.3(a) |
Deductible |
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4.5(a)(ii) |
Designated Contracts |
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2.12(b) |
Designated Intellectual Property |
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2.11(a) |
Disclosing Party |
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6.1(e) |
Disclosure Schedule |
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Article II |
Dispute Notice |
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1.3(d) |
Employee Benefit Plan |
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2.15(a) |
Environmental Laws |
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2.21(a) |
Equity Interests |
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Introduction |
ERISA |
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2.15(a) |
iv
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Defined Term |
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Section |
ERISA Affiliate |
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2.15(a) |
Estimated Closing Statement |
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1.3(b) |
Estimated Purchase Price |
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1.3(b) |
Excluded Liabilities |
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4.1 |
Final Closing Statement |
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1.3(c) |
Final Purchase Price |
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1.3(c) |
Fraud |
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4.5(a) |
Fundamental Representations |
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4.4(a)(i) |
Governmental Entity |
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2.4(b) |
Hazardous Materials |
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2.21(a) |
Indemnified Party |
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4.3(a) |
Indemnifying Party |
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4.3(a) |
Information |
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6.1(a) |
Insurance Policies |
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2.19 |
Intellectual Property Registrations |
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2.11(b) |
Intellectual Property Rights |
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2.11(a) |
IT Assets |
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2.17(b) |
Leases |
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2.10(b) |
Liabilities |
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4.1 |
Neutral Accountant |
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1.3(e) |
Noncompetition Party |
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6.2 |
Noncompetition Period |
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6.2 |
Outstanding Transaction Expenses |
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1.3(a)(vii) |
Parent |
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Preliminary Statement |
Parent 401(k) Plan |
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6.5(a) |
Parent Health and Welfare Plans |
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6.5(b) |
Party, Parties |
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Preliminary Statement |
Patents |
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2.11(a) |
Permits |
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2.18 |
Personal Information |
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2.17(a) |
Personal Information Obligations |
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2.17(a) |
Pre-Closing Transactions |
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Introduction |
Preliminary Closing Statement |
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1.3(c) |
Preliminary Purchase Price |
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1.3(c) |
Privacy Laws |
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2.17(a) |
Proposed Allocation |
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5.6 |
Purchase Price |
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1.3(a)(i) |
Receiving Party |
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6.1(e) |
Retained Marks |
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6.6(a) |
Retention Period |
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6.1(d)(i) |
Securities Act |
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2.2(a) |
Security Interest |
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2.2(c) |
v
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Defined Term |
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Section |
Service |
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6.8(a) |
Software |
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2.11(a) |
Target Working Capital |
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1.3(a)(viii) |
Tax Audit |
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5.4(b) |
Tax Returns |
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2.8(a) |
Taxes |
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2.8(a) |
TCPA Laws |
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4.1(f) |
Trademarks |
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2.11(a) |
Transfer Taxes |
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5.1(d) |
Transition Support Period |
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6.8(e) |
Working Capital |
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1.3(a)(ix) |
vi
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this Agreement) is entered into as of August 1, 2023 by and between EverQuote, Inc.,
a Delaware corporation (Parent), and MyPlanAdvocate Insurance Solutions Inc., a Delaware corporation (Buyer). Parent and Buyer are sometimes referred to herein individually as a
Party and together as the Parties.
INTRODUCTION
1. Parent is engaged, among other things, in the business of operating a direct to consumer agency serving the Medicare and Under
65 health insurance market by selling health insurance plans to consumers (the Business).
2. Parent owns all of
the outstanding membership interests (the Equity Interests) in Eversurance, LLC, an Indiana limited liability company (the Acquired Company).
3. Parent shall, prior to Closing (as defined in Section 1.2(a)), effectuate the reorganization described on
Schedule I (the Pre-Closing Transactions).
4. On the terms and subject to the
conditions of this Agreement and after giving effect to the Pre-Closing Transactions, Parent desires to sell to Buyer, and Buyer desires to purchase from Parent, the Equity Interests.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
ARTICLE I
EQUITY INTEREST PURCHASE AND SALE
1.1 Sale and Transfer of Equity Interests. On the terms and subject to the conditions of this Agreement, on the Closing Date (as
defined in Section 1.2(a)), Parent shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, accept the transfer of and acquire from Parent, the Equity Interests, free and clear of any Security
Interests other than applicable securities law restrictions.
1.2 The Closing.
(a) Time and Location. The closing of the transactions contemplated by this Agreement (the Closing) shall take place
via the electronic exchange of documents and signatures, commencing at 10:00 a.m., Eastern time, on the date of this Agreement, or on such other date and/or time as Buyer and Parent may mutually agree. The date on which the Closing actually
occurs is referred to herein as the Closing Date.
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(b) Actions at the Closing. At the Closing:
(i) Parent shall deliver to Buyer an instrument of assignment from Parent assigning all of the Equity Interests to Buyer;
(ii) Parent shall deliver to Buyer a certificate from the secretary (or other authorized officer) of each of Parent and the Acquired Company
certifying as to (A) correct and complete copies of its organizational documents, (B) the incumbency and signatures of the officers executing this Agreement and the other documents to which such entity will be a party and
(C) resolutions of the board of directors (or equivalent governing body) of such entity, authorizing (x) the execution and delivery of this Agreement and the other documents to which such entity will be a party and (y) the
consummation of the transactions contemplated herein and therein;
(iii) Parent shall deliver to Buyer a good standing or similar
certificate with respect to Parent issued by the Secretary of State of the State of Delaware, and a certificate of existence or similar certificate with respect to the Acquired Company issued by the Secretary of State of the State of Indiana;
(iv) Parent shall deliver to Buyer a resignation from such position from each director and officer of the Acquired Company that is required
to resign pursuant to Section 6.4 (which, for the avoidance of doubt, shall not constitute a resignation of employment);
(v) Parent shall deliver to Buyer an IRS Form W-9 properly completed and executed by Parent;
(vi) Parent shall deliver, or cause to be delivered, such instruments of conveyance as necessary to effect the consummation of the Pre-Closing Transactions;
(vii) Buyer shall pay the Outstanding Transaction Expenses (as defined in
Section 1.3(a)(vii));
(viii) Buyer shall pay, on behalf of the Acquired Company, the Closing Indebtedness set
forth on Schedule 1.2(b)(viii) with such payment being made to the holders of such Closing Indebtedness pursuant to payoff letters in a customary form;
(ix) In consideration for the sale and transfer of the Equity Interests, Buyer shall pay (or cause to be paid) to Parent the Estimated
Purchase Price (as defined in Section 1.3(b)) in cash by wire transfer of immediately available funds to an account designated by Parent; and
(x) the Parties shall execute and deliver to each other a cross-receipt evidencing the transactions referred to above.
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1.3 Post-Closing Adjustment.
(a) In consideration for the sale, conveyance, assignment, transfer and delivery of the Equity Interests pursuant hereto, Buyer shall pay to
Parent the Purchase Price in accordance with Sections 1.2(b)(vii) through 1.2(b)(ix) and this Section 1.3. For purposes of this Agreement:
(i) Purchase Price means an amount equal to (i) the product of $13,500,000 multiplied by the Commissions
Receivable Factor (as defined in Section 1.3(a)(vi)), plus (ii) the amount by which Working Capital (as defined in Section 1.3(a)(ix)) exceeds Target Working Capital (as defined in
Section 1.3(a)(viii)), if any, minus (iii) the amount by which Target Working Capital exceeds Working Capital, if any, plus (iv) Closing Cash (as defined in
Section 1.3(a)(iii)), minus (v) Closing Indebtedness (as defined in Section 1.3(a)(iv)), minus (vi) Outstanding Transaction Expenses, in each case, as adjusted pursuant to
this Section 1.3.
(ii) Business Day shall be any day other than (i) a Saturday or
Sunday or (ii) a day on which banking institutions located in Boston, Massachusetts are permitted or required by law, executive order or governmental decree to remain closed.
(iii) Closing Cash means the amount of all cash and cash equivalents (including marketable securities, bank deposits and
other short-term investments convertible to cash within 90 days) held by the Acquired Company as of 11:59 p.m., Eastern time, on the day immediately prior to the Closing Date, determined in accordance with the Accounting Principles (as defined in
Section 1.3(b)), which shall (A) be calculated net of issued but uncleared checks and drafts and (B) include checks and drafts deposited or available for deposit for the account of the Acquired Company.
(iv) Closing Indebtedness means any liability or obligation, including all obligations in respect of principal, accrued
interest, penalties, fees and premiums, of the Acquired Company as of immediately prior to the Closing (before taking account of the consummation of the transactions contemplated at the Closing) (A) for borrowed money (including amounts
outstanding under overdraft facilities), (B) evidenced by notes, bonds, debentures or other similar obligations, (C) constituting obligations under leases that are required to be capitalized in accordance with GAAP (but excluding the Commercial
Lease, dated August 31, 2020, by and between Welborn Plaza LLC and Eversurance LLC (as successor to Crosspointe Insurance & Financial Services, LLC), as amended, relating to the Evansville, Indiana facility and any obligations
thereunder), (D) constituting obligations for the deferred and unpaid purchase price of property or services (other than trade payables or accruals incurred in the Ordinary Course of Business (as defined in Section 2.2(c)),
but including any deferred and unpaid purchase price Liabilities (as defined in Section 4.1), earnouts, installment payments, seller notes, promissory notes, or similar Liabilities, in each case, related to past
acquisitions and, for the avoidance of doubt, in each case, whether due or to become due), (E) with respect to any off-balance sheet arrangements (as defined in Item 303(a)(4)(ii) of Regulation S-K promulgated under the Securities Act (as defined in Section 2.2(a)), (F) with respect to amounts which are drawn on letters of credit as of such date, and (G) in the nature of
guarantees of the obligations described in clauses (A) through (F) above of any other person or entity, in each case as determined in accordance with the Accounting Principles.
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(v) Commissions Receivable Adjustment means the aggregate portion of the
commissions receivable, calculated in accordance with Parents past practices, that the carriers set forth on Schedule 1.3(a)(v) refuse to pay during the 90 day period immediately following the Closing, with respect to the contracts and up to
the maximum amounts set forth on Schedule 1.3(a)(v).
(vi) Commissions Receivable Factor means the quotient of
(A) the difference of (1) the commissions receivable of the Business, calculated in accordance with Parents past practices, minus (2) the Commissions Receivable Adjustment, divided by (B) $31,497,685.67.
(vii) Outstanding Transaction Expenses means any unpaid
out-of-pocket fees and expenses incurred at or prior to the Closing relating to the negotiation, execution, and delivery of any letter of intent or term sheet, this
Agreement and the transactions contemplated hereby that are payable by or charged to the Acquired Company, including (A) all legal, tax advisor or accountant fees, any brokerage fees, commissions, finders fees, investment banking fees or
financial advisory fees and other advisory and consulting fees, (B) the payment of any assignment or consent fees, and (C) any obligations or agreements of the Acquired Company for incentive bonuses relating to a change of control of the
Acquired Company, stay bonuses, transaction retention, or similar obligations or payments that may be owed or are otherwise payable to any person (but excluding, for the avoidance of doubt, any Liabilities contained in the offer letters
issued by Buyer or its Affiliates to any employees previously employed by or with respect to the Business).
(viii) Target
Working Capital means $90,000.
(ix) Working Capital means the balance as of the Closing Date of the
consolidated assets of the Acquired Company identified on Schedule 1.3(a), minus the consolidated liabilities of the Acquired Company identified on Schedule 1.3(a), calculated using only the line item categories identified on Schedule 1.3(a)
and in each case measured as of 11:59 p.m., Eastern time, on the day immediately prior to the Closing Date (each as determined in accordance with the Accounting Principles).
(b) Prior to the Closing, Parent shall have delivered to Buyer a statement setting forth Parents good faith estimate of the Purchase
Price, including each component thereof (such amount, the Estimated Purchase Price and such statement, the Estimated Closing Statement). The Estimated Closing Statement, Preliminary Closing Statement and Final
Closing Statement shall be prepared in accordance with the definitions set forth in this Agreement, Schedule 1.3(a) and, to the extent not inconsistent therewith United States generally accepted accounting principles in effect from time to
time (the Accounting Principles). The Parties agree that the purpose of the Estimated Closing Statement, Preliminary Closing Statement and Final Closing Statement and the related Purchase Price adjustments contemplated by this
Section 1.3 is to validate the estimates used in calculating the Estimated Purchase Price, and such processes are not intended to (i) permit the introduction of different judgments, accounting methods, policies,
principles, practices, procedures, classifications or estimation methodologies for the purpose of determining the Working Capital, Closing Cash, Closing
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Indebtedness, Outstanding Transaction Expenses or the Commissions Receivable Factor, or (ii) except as expressly set forth herein, include any changes in Working Capital, Closing Cash,
Closing Indebtedness, Outstanding Transaction Expenses, the Commissions Receivable Factor and the related Purchase Price adjustments contemplated by this Section 1.3 as a result of purchase accounting adjustments or other
changes arising from or resulting as a consequence of the Closing, including the payment of amounts due hereunder.
(c) Within 90 days
after the Closing Date, Buyer shall prepare and deliver to Parent a statement (the Preliminary Closing Statement) setting forth Buyers calculation of the Purchase Price, including each component thereof (such amount, the
Preliminary Purchase Price). After delivery of the Preliminary Closing Statement, Buyer shall give Parent and its representatives reasonable access to review Buyers and the Acquired Companys non-privileged books and records and work papers related to the preparation of the Preliminary Closing Statement. Parent and its representatives may make reasonable inquires of Buyer and the Acquired Company and
their respective accountants regarding questions concerning or disagreements with the Preliminary Closing Statement arising in the course of its review thereof, and Buyer shall, and shall cause the Acquired Company to, use their respective
reasonable best efforts to cause any such accountants to cooperate with and respond to such inquiries.
(d) If Parent agrees in writing to
Buyers Preliminary Purchase Price, as proposed in Buyers Preliminary Closing Statement, then such Preliminary Purchase Price shall be deemed for all purposes of this Agreement to be the Final Purchase Price, such Preliminary
Closing Statement shall be deemed for all purposes of this Agreement to be the Final Closing Statement and each shall be final and binding on the Parties. If Parent in good faith disputes the Preliminary Purchase Price as shown on the
Preliminary Closing Statement, Parent shall deliver to Buyer, within 30 days after receipt of the Preliminary Closing Statement, a statement (the Dispute Notice) setting forth Parents calculation of the correct Purchase
Price and describing in reasonable detail the basis for the determination of such different Purchase Price (provided that such 30-day period shall be extended by one (1) day for each day that Buyer is in
breach of its access obligations under Section 1.3(c)). The Parties shall use reasonable efforts to resolve such differences regarding the determination of the Purchase Price for a period of 30 days after Parent has
delivered the Dispute Notice. If the Parties resolve such differences, the Purchase Price agreed to by the Parties shall be deemed for all purposes of this Agreement to be the Final Purchase Price, the corresponding statement calculating
such Final Purchase Price shall be deemed for all purposes of this Agreement to be the Final Closing Statement and each shall be final and binding on the Parties.
(e) If the Parties do not reach a final resolution on the Purchase Price within 30 days after Parent has delivered the Dispute Notice, unless
the Parties mutually agree in writing to continue their efforts to resolve such differences, KPMG LLP or, if KPMG LLP is unavailable, Grant Thornton LLP or another independent internationally recognized accounting firm selected in writing by Parent
and Buyer (KPMG LLP, Grant Thornton LLP or such independent internationally recognized accounting firm, as applicable, the Neutral Accountant) shall resolve such differences, pursuant to the Neutral Accountants standard
terms and conditions for similar engagements (unless otherwise agreed by the Parties) to be set forth in an engagement agreement executed by the Parties and the Neutral Accountant, in the manner
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provided below. The Parties shall each be entitled to make a presentation to the Neutral Accountant, pursuant to procedures to be agreed to among Parent, Buyer and the Neutral Accountant (or, if
they cannot agree on such procedures, pursuant to procedures determined by the Neutral Accountant), regarding such Partys calculation of the Purchase Price; and the Neutral Accountant shall be required to resolve the differences between the
Parties and determine the Purchase Price within 20 Business Days thereafter. The Purchase Price determined by the Neutral Accountant shall be deemed for all purposes of this Agreement to be the Final Purchase Price, and the corresponding
statement calculating such Final Purchase Price shall be deemed for all purposes of this Agreement to be the Final Closing Statement. Such determination by the Neutral Accountant shall be conclusive and binding upon the Parties, absent
fraud or manifest error.
(f) The Neutral Accountant shall act as an expert and not as an arbitrator and shall not be authorized or
permitted to:
(i) determine any questions or matters whatsoever under or in connection with this Agreement except for the resolution of
differences between the Parties regarding the determination of the Purchase Price in accordance with this Section 1.3;
(ii) resolve any such differences by making an adjustment to any component of the calculation of the Purchase Price that is outside of the
range defined by amounts as proposed by the Parties in the Preliminary Closing Statement or the Dispute Notice; or
(iii) apply any
accounting methods, treatments, principles or procedures other than as described in the definitions set forth in this Agreement, Schedule 1.3(a) and, to the extent not inconsistent therewith, the Accounting Principles.
(g) The costs, fees and expenses related to final determination of the Purchase Price by the Neutral Accountant, including the costs relating
to any negotiations with the Neutral Accountant with respect to the terms and conditions of such Neutral Accountants engagement, will be paid by Buyer, on the one hand, and Parent, on the other hand, on an inversely proportional basis, based
upon the relative portions of the amounts in dispute that have been submitted to the Neutral Accountant for resolution that ultimately are awarded to each of Buyer and Parent (e.g., if $100,000 is in dispute, and of that amount the Neutral
Accountant awards $75,000 to Buyer and $25,000 to Parent, then Buyer will be responsible for 25%, and Parent will be responsible for 75%, of the costs, fees and expenses of the Neutral Accountant).
(h) The Parties agree that the procedure set forth in this Section 1.3 for resolving disputes with respect to the
Purchase Price shall be the sole and exclusive method for resolving any such disputes, provided that this provision shall not prohibit either Party from instituting litigation to enforce the ruling of the Neutral Accountant.
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(i) If the Final Purchase Price determined in accordance with this
Section 1.3 is less than the Estimated Purchase Price by an amount in excess of $90,000 (the Adjustment Threshold), then Parent shall pay to Buyer an amount equal to the difference between the Estimated
Purchase Price and the Final Purchase Price. If the Final Purchase Price determined in accordance with this Section 1.3 is more than the Estimated Purchase Price by an amount in excess of the Adjustment Threshold, then
Buyer shall pay to Parent an amount equal to the difference between the Final Purchase Price and the Estimated Purchase Price. If the Final Purchase Price determined in accordance with this Section 1.3 is either
(A) less than the Estimated Purchase Price by an amount equal to or less than the Adjustment Threshold, or (B) more than the Estimated Purchase Price by an amount equal to or less than the Adjustment Threshold, then the Estimated Purchase
Price shall be deemed to be equal to the Final Purchase Price. Any payment pursuant to this Section 1.3(i) shall be made in cash by wire transfer of immediately available funds into an account designated by Buyer or Parent,
as the case may be, within five Business Days after the date on which the Final Purchase Price is determined pursuant to this Section 1.3.
(j) For purposes of this Agreement, Adjusted Purchase Price means the Estimated Purchase Price plus, if applicable,
the amount of the payment required to be made by Buyer to Parent pursuant to the second sentence of Section 1.3(i) or minus, if applicable, the amount of the payment required to be made by Parent to Buyer pursuant to
the first sentence of Section 1.3(i).
1.4 Further Assurances. At any time and from time to time after
the Closing Date, as and when requested by either Party and at the requesting Partys expense, the other Party shall promptly execute and deliver, or cause to be executed and delivered, all such documents, instruments and certificates and shall
take, or cause to be taken, all such further or other actions as are necessary to evidence and effectuate the transactions contemplated by this Agreement, provided that the foregoing shall not enlarge the Parties respective obligations under
this Agreement. In addition, (a) the Parties shall perform their respective obligations set forth under the heading Deferred Items on Schedule I, to the extent applicable, (b) Buyer will reasonably cooperate with Parent, at
Parents request and expense, to obtain consent to assign, and to complete the assignment from the Acquired Company to Parent (or a designated Affiliate) of, the agreements identified on Schedule 1.4 as promptly as practicable following the
Closing and (c) as promptly as practicable, and in any event within 30 days following the Closing, Buyer will replace Joshua Mushlock (i) as Designated Responsible Licensed Producer for the Acquired Company in each applicable state and
(ii) as carrier principal for the Acquired Company for each applicable carrier.
1.5 Withholding. Notwithstanding any other
provision in this Agreement to the contrary, Buyer and the Acquired Company, as applicable, shall be entitled to deduct and withhold from any amounts otherwise payable (directly or indirectly) pursuant to this Agreement such amounts as Buyer or the
Acquired Company is required to deduct and withhold with respect to the making of such payment under applicable law; provided, however, if Buyer or the Acquired Company determines that any amounts are required to be deducted or
withheld (other than any deduction or withholding with respect to any payments constituting compensation for services), Buyer or the Acquired Company, as applicable, shall use commercially reasonable efforts to provide Parent with written notice of
the intent to make such deduction or withholding prior to such deduction or withholding and to provide Parent with the opportunity to submit documentation that no withholding or deduction is required or that a reduced rate of withholding
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is permitted. To the extent that amounts are so deducted or withheld and such amounts are paid over to the applicable Governmental Entity, such deducted or withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the applicable payee in respect of which such deduction and withholding was made.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to Buyer that, after giving effect to the Pre-Closing Transactions and
except as set forth in the disclosure schedule provided by Parent to Buyer (the Disclosure Schedule):
2.1
Organization, Qualification and Corporate Power.
(a) Parent. Parent is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and is duly qualified to conduct business under the laws of each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its activities,
in each case as they relate exclusively to the Business, makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to materially impair the ability of Parent to consummate the transactions
contemplated by this Agreement. Parent has all requisite corporate power and authority to carry on the business in which it is now engaged and to own and use the properties now owned and used by it.
(b) Acquired Company. The Acquired Company is an entity duly organized, validly existing and, where applicable as a legal concept, in
good standing (or equivalent) under the laws of its jurisdiction of organization and is duly qualified to conduct business under the laws of each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its
activities makes such qualification necessary, except for any such failures to be qualified that would not reasonably be expected to result in a Business Material Adverse Effect (as defined below). Such jurisdictions where the Acquired Company is
qualified to conduct business as a foreign company are set forth on Section 2.1(b) of the Disclosure Schedule. The Acquired Company has all requisite corporate or comparable power and authority to carry on the business in which it is now
engaged and to own and use the properties now owned and used by it. For purposes of this Agreement, Business Material Adverse Effect means any change, effect or circumstance that has a material adverse effect on the business,
financial condition or results of operations of the Business, taken as a whole; provided, however, that a Business Material Adverse Effect shall not include any adverse change, effect or circumstance directly or indirectly
resulting from or arising out of (i) actions taken by the Parties as required or expressly contemplated by this Agreement (including the Pre-Closing Transactions) or at the request of or with the consent
of Buyer, or the failure to take any action prohibited by this Agreement, (ii) the negotiation, execution, announcement, pendency or performance of this Agreement or the transactions contemplated hereby, the consummation of the transactions
contemplated by this Agreement or any communications with a third party by either Party (whether or not intentional) regarding this Agreement or the transactions contemplated hereby, including, in any such case, the impact thereof on relationships,
contractual or otherwise, with customers, suppliers, vendors,
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investors or employees and the identity of Buyer and its Affiliates, (iii) changes in the Business industry or in markets generally, (iv) changes in economic conditions or
financial markets in any country or region or globally, including changes in interest or exchange rates and changes in currency and credit markets, (v) changes in general legal, tax, regulatory, political or business conditions in any country
or region, (vi) acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any such acts of war, armed hostilities, sabotage or terrorism threatened or underway as of the date of this Agreement, (vii) any
failure by the Business to meet any projections, guidance, estimates, forecasts or milestones for or during any period ending on or after the date hereof (provided that the underlying causes of such failures (subject to the other provisions
of this definition) shall not be excluded), (viii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions, epidemics, pandemics or disease outbreaks (including SARS-CoV-2 or the COVID-19 virus and any evolutions or mutations thereof
(COVID-19), or any quarantine, shelter in place, stay at home, workforce reduction, social distancing, shut down, closure, sequester or any other law, regulation,
rule, order, directive, guideline or recommendation of any Governmental Entity (as defined in Section 2.4(b)) or industry group in connection with or in response to COVID-19,
including the Coronavirus Aid, Relief, and Economic Security Act (COVID-19 Measures) or any action or inaction, including the establishment of any policy, procedure or protocol, by Parent or
any of its subsidiaries that Parent or any of its subsidiaries determines in its sole discretion is necessary, advisable or prudent in connection with (x) mitigating the adverse effects of COVID-19 or
applicable COVID-19 Measures, (y) ensuring compliance by Parent or any of its subsidiaries with COVID-19 Measures applicable to any of them and/or (z) in
respect of COVID-19, protecting the health and safety of employees or other persons with whom Parent or any of its subsidiaries and their personnel come into contact with during the course of business
operations (COVID-19 Responses), or (ix) changes in law or other legal or regulatory conditions (or the interpretation thereof) or changes in accounting standards (or the interpretation
thereof), except to the extent any such change, effect or circumstance resulting from, arising out of or attributable to the matters described in clauses (iii), (iv), (v), (vi), (viii) and (ix) above has a materially disproportionate adverse
effect on the Business, taken as a whole, as compared to other similarly situated companies that conduct business in the countries and regions in the world and in the industries and markets in which the Business is conducted by Parent and its
subsidiaries (in which case, such change, effect or circumstance shall be taken into account only to the extent it is materially disproportionate when determining whether a Business Material Adverse Effect has occurred or may, would or could occur).
For purposes of this Agreement, Affiliate shall have the meaning assigned to it in Rule 12b-2 under the Securities Exchange Act of 1934, as amended.
(c) Organizational Documents. Parent has made available to Buyer correct and complete copies of the certificate of formation and
limited liability company agreement or similar organizational documents (as amended to the date of this Agreement) of the Acquired Company. The Acquired Company is not in material violation of any provision of its certificate of formation or limited
liability company agreement or similar organizational documents.
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2.2 Capitalization.
(a) The capitalization of the Acquired Company is set forth on the Disclosure Schedule. All of the issued and outstanding Equity Interests are
duly authorized, validly issued, fully paid and nonassessable, in each case where such concept is applicable as a legal concept. Except for the Equity Interests, there are no outstanding equity interests of the Acquired Company. There are no
outstanding or authorized options, warrants, rights, agreements or commitments to which Parent or any of its subsidiaries is a party or which are binding upon Parent or any of its subsidiaries providing for the issuance, disposition or acquisition
of any equity interests of the Acquired Company. There are no outstanding or authorized stock appreciation, phantom stock or similar rights (i) providing for the issuance, disposition or acquisition of any equity interests of the Acquired
Company or (ii) that give any person the right to receive any benefits or rights similar to any rights enjoyed by or accruing to the holders of equity interests of the Acquired Company. There are no agreements, voting trusts or proxies with
respect to the voting, or registration under the Securities Act of 1933, as amended (the Securities Act), of the Equity Interests.
(b) All of the issued and outstanding Equity Interests are owned of record and beneficially by Parent, and Parent has good title to the Equity
Interests, free and clear of any Security Interest (as defined in Section 2.2(c)), contractual restriction or covenant, option or other adverse claim (whether arising by contract or by operation of law), other than
applicable securities law restrictions.
(c) For purposes of this Agreement, Security Interest means any mortgage,
pledge, security interest, encumbrance, charge or other lien (whether arising by contract or by operation of law), other than (i) mechanics, materialmens, landlords and similar liens, (ii) liens arising under
workers compensation, unemployment insurance, social security, retirement and similar legislation, (iii) liens on goods in transit incurred pursuant to documentary letters of credit, in each case arising in the Ordinary Course of
Business, (iv) liens for Taxes not yet due and payable, (v) liens for Taxes which are being contested in good faith and by appropriate proceedings, (vi) liens relating to capitalized lease financings that have been entered into in the
Ordinary Course of Business (as defined below), (vii) non-exclusive licenses to intellectual property, (viii) liens arising under applicable securities laws, (ix) zoning, entitlement, building and
other land use regulations imposed by Governmental Entities, which are not violated in any material respect, (x) liens arising solely by action of Buyer, and (xi) liens which do not materially and adversely impair the use of the assets of
the Acquired Company or the Equity Interests. For purposes of this Agreement, Ordinary Course of Business means the ordinary course of business consistent in all material respects with past practice, taking into account any acts
or omissions that have been or may be taken to comply with COVID-19 Measures or any COVID-19 Response.
2.3 Authority. Parent has all requisite corporate power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement by Parent, the performance by Parent of its obligations hereunder and the consummation by Parent of the transactions contemplated hereby have been duly and validly authorized by all
necessary corporate or comparable action on the part of Parent. This Agreement has been duly and validly executed and delivered by Parent and, assuming this Agreement constitutes the valid and binding obligations of Buyer, constitutes the valid and
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binding obligations of Parent, enforceable against Parent in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws relating to or affecting the rights of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief and other equitable remedies and those
providing for equitable defenses (the Bankruptcy and Equity Exception).
2.4 Noncontravention. Except as set
forth on Section 2.4 of the Disclosure Schedule, neither the execution and delivery by Parent of this Agreement, nor the consummation by Parent of the transactions, including the Pre-Closing Transactions,
contemplated hereby, will:
(a) conflict with or violate any provision of the charter or bylaws or similar organizational documents of the
Acquired Company or Parent;
(b) require on the part of the Acquired Company or Parent any filing with, or any permit, authorization,
consent or approval of, any court, arbitrational tribunal, administrative agency or commission or other governmental or regulatory authority or agency (a Governmental Entity), except for any filing, permit, authorization, consent
or approval which if not obtained or made would not reasonably be expected to be material to the Business, taken as a whole;
(c) conflict
with, result in a breach of, constitute (with or without due notice or lapse of time or both) a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice, consent or
waiver under, any contract, lease, sublease, license, sublicense, franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of indebtedness or Security Interest to which the Acquired Company or Parent is a party or by which
the Acquired Company or Parent is bound or to which any of their respective assets is subject, except for any conflict, breach, default, acceleration, right to accelerate, termination, modification, cancellation, notice, consent or waiver that would
not reasonably be expected to be material to the Business, taken as a whole; or
(d) violate any order, writ, injunction or decree
specifically naming, or statute, rule or regulation applicable to, the Acquired Company or Parent or any of their respective properties or assets, except for any violation that would not reasonably be expected to be material to the Business, taken
as a whole.
2.5 Subsidiaries. The Acquired Company does not control, directly or indirectly, or have any direct or indirect equity
participation in, any corporation, limited liability company, partnership, trust or other business association (other than in a money market, mutual fund or other short-term investment).
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2.6 Financial Statements; No Undisclosed Liabilities; Accounts Receivable
(a) Attached as Section 2.6(a) of the Disclosure Schedule is an unaudited balance sheet as of June 30, 2023 of the Business (the
Balance Sheet). The Balance Sheet (i) has been prepared in good faith and in accordance with Parents regular accounting policies, practices and methodologies applied on a consistent basis for the purposes of this
Agreement based on the books and records of Parent and its Affiliates and (ii) does not materially misstate the financial position of the Business as of the date thereof. Notwithstanding the foregoing, the Balance Sheet and the representations
and warranties in this Section 2.6(a) are qualified by the fact that (i) the Business has not operated on a separate standalone basis and historically has not been separately reported within Parents and its Affiliates
consolidated financial statements, (ii) the Balance Sheet was prepared solely for purposes of this Agreement and does not include all of the assets necessary for the Business to operate as a separate standalone business or entity,
(iii) the Balance Sheet is not necessarily indicative of what the financial position of the Business will be in the future and (iv) the Balance Sheet may be subject to the absence of any normal and recurring
year-end adjustments.
(b) The Acquired Company does not have any Liabilities except Liabilities
(i) reflected on the face of the Balance Sheet, (ii) incurred since the date of the Balance Sheet in the Ordinary Course of Business, (iii) constituting Outstanding Transaction Expenses and included in the calculation of the Purchase
Price, (iv) for performance obligations under executory contracts or (v) that would not, individually or in the aggregate, reasonably be expected to be material to the Business, taken as a whole.
(c) The commissions receivable reflected on the Balance Sheet and commissions receivable arising subsequent to the date of the Balance Sheet
and prior to the Closing Date (excluding, however, any such receivables that have already been collected prior to the date hereof) represent arms length transactions carried out in accordance with applicable laws in the Ordinary Course of
Business.
2.7 Absence of Changes. Since December 31, 2022, there has not been any Business Material Adverse Effect. Except as
set forth on Section 2.7 of the Disclosure Schedule (other than actions and conduct related to the transactions contemplated by this Agreement), the Acquired Company has operated in the Ordinary Course of Business in all material respects, and
the Acquired Company has not:
(a) incurred any indebtedness for borrowed money or mortgaged, pledged, or subjected any of its material
tangible or intangible assets to any Security Interest;
(b) sold, assigned, transferred, leased, or licensed any of its assets in excess
of $50,000, other than pursuant to the Pre-Closing Transactions or the sale of products and services in the Ordinary Course of Business;
(c) sold, assigned, or transferred any patents, registered trademarks, trade names, registered copyrights, trade secrets, or other Acquired
Company IP (as defined in Section 2.11(a)) (excluding, for the avoidance of doubt, non-exclusive licenses granted in the Ordinary Course of Business);
(d) knowingly and expressly waived any rights of material value with respect to any period after the Closing under any Designated Contract (as
defined in Section 2.12(b));
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(e) issued any of its equity securities, securities convertible into its equity securities,
or warrants, options, or other rights to acquire its equity securities;
(f) made any capital investment in, or any loan to, any other
person or entity, other than the advancement of expenses in the Ordinary Course of Business;
(g) made any capital expenditures or
commitments therefor in excess of $25,000 in the aggregate, except pursuant to an existing capital expenditure budget;
(h) paid, loaned,
or advanced (other than the payment of compensation and benefits or the payment, advancement, or reimbursement of expenses in the Ordinary Course of Business) any amounts to, or sold, transferred, or leased any of its assets to, or entered into any
other material transactions with, any of its Affiliates, or made any loan to, or entered into any other material transaction (other than the payment of compensation and benefits) with, any of its directors, managers, officers or employees, outside
the Ordinary Course of Business;
(i) declared or made any payment or distribution of cash or other property to its equityholders with
respect to its equity securities, or purchased or redeemed any of its equity securities;
(j) made any material change in its accounting
or Tax reporting principles, methods, or policies, except in each case to conform to changes in United States generally accepted accounting principles or applicable law;
(k) (i) made, changed, or revoked any Tax election or settled or compromised any Tax claim or Liability or entered into a settlement or
compromise, or (ii) prepared or filed any income or other Tax Return (or any amendment thereof) unless such Tax Return will have been prepared or filed in a manner consistent with past practice;
(l) amended its organizational documents; or
(m) agreed to do any of the foregoing.
2.8 Tax Matters.
(a)
The Acquired Company has timely filed or had timely filed on its behalf all income Tax Returns and other material Tax Returns (as defined below) that it was required to file (separately or as part of a consolidated, combined or unitary group) and
all such Tax Returns were correct and complete and prepared in compliance with all applicable laws, except for any error or omission that would not reasonably be expected to result in a Business Material Adverse Effect. The Acquired Company has paid
(or had paid on its behalf) on a timely basis all Taxes (as defined below) due and payable, except for any such Taxes with respect to which the failure to pay would not reasonably be expected to result in a Business Material Adverse Effect. All
Taxes that the Acquired Company is or was required by law to withhold or collect have been duly withheld or collected and, to the extent required, have been paid to the proper Governmental Entity, except for any such Taxes with respect to which the
failure to withhold, collect or pay would not reasonably be expected to result in a Business Material Adverse Effect.
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For purposes of this Agreement, Taxes means all taxes, charges, fees, duties, contributions, levies or other similar assessments, including income, gross receipts, corporation,
ad valorem, premium, value-added, net worth, capital stock, capital gains, documentary, recapture, alternative or add-on minimum, disability, registration, recording, excise, real property, personal property,
escheat, unclaimed property, sales, use, license, lease, service, service use, transfer, withholding, employment, unemployment, insurance, social security, business organization, environmental, workers compensation, payroll, profits, severance,
stamp, occupation, windfall profits, customs duties, estimated, franchise and other taxes of any kind whatsoever imposed by the United States or any state, local or non-United States government, or any agency
thereof, or other political subdivision of the United States or any such government, and any interest, penalties, assessments or additions to tax resulting from, attributable to or incurred in connection with any tax or any contest or dispute
thereof. For purposes of this Agreement, Tax Returns means all reports, returns, declarations, statements, forms or other information required to be filed with a taxing authority in connection with Taxes.
(b) No examination or audit of any Tax Return of the Acquired Company by any Governmental Entity is, on the date of this Agreement, in
progress. As of the date of this Agreement, the Acquired Company has not been notified in writing by any jurisdiction that the jurisdiction believes that the Acquired Company was required to file any Tax Return that was not filed. The Acquired
Company has not waived any statute of limitations for the period of assessment or collection of any Taxes or agreed to any extension of time for filing any Tax Return or with respect to any Tax assessment, prior Tax reporting period or deficiency
that has not yet been either paid or resolved, which waiver or extension is currently in effect. There is no material Tax deficiency outstanding, assessed, or proposed in writing against the Acquired Company. No adjustment relating to any Tax Return
filed by the Acquired Company has ever been proposed in writing by any Governmental Entity.
(c) The Acquired Company has not been a
member of a group with which it has filed or been included in a combined, consolidated or unitary income Tax Return other than a group the common parent of which was Parent or a subsidiary of Parent. With the exception of contracts that are not
primarily related to Taxes entered into in the Ordinary Course of Business and Liabilities thereunder, the Acquired Company is not liable for the Taxes of any taxpayer other than Parent and its subsidiaries under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, or by contract for any taxable period (or portion thereof) ending on or before the Closing Date.
(d) The Acquired Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the
Internal Revenue Code of 1986, as amended (the Code), during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. Parent is not a foreign person as that term is used in Treas. Reg. § 1.1445-2.
(e) There are no material liens with respect to Taxes upon any of the assets of
the Acquired Company, other than with respect to Taxes not yet due and payable or Taxes being contested in good faith by appropriate proceedings.
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(f) The Acquired Company has not engaged in a reportable transaction as set
forth in Treas. Reg. § 1.6011-4(b).
(g) Since inception, the Acquired Company has been
properly treated as an entity disregarded as separate from its owner under Treas. Reg. § 301.7701-3(b)(1)(ii) for United States federal income tax purposes.
(h) The Acquired Company has never (i) had a permanent establishment in any country other than the country in which it is organized and
resident, or (ii) engaged in a trade or business in any country other than the country in which it is organized and resident that subjected it to Tax in such country.
(i) Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that (i) no representation or warranty is
made by Parent in this Agreement in respect of Tax matters, other than the representations and warranties set forth in this Section 2.8, (ii) the representations and warranties of Parent in this
Section 2.8 refer only to activities prior to the Closing and shall not serve as representations and warranties regarding, or a guarantee of, nor can they be relied upon with respect to, Taxes attributable to any Tax period
(or portion thereof) beginning, or Tax positions taken, after the Closing Date, and (iii) no representations or guarantees are made with respect to the amount or availability of Tax attributes of the Acquired Company for any taxable period (or
portion thereof) beginning after the Closing Date.
2.9 Tangible Personal Property. The Acquired Company has good title to, a valid
leasehold (or other equivalent) interest in or a valid license to use all the material tangible personal property purported to be owned, leased or licensed by it, free and clear of all Security Interests. Except for (i) rights granted to Buyer
under this Agreement and the other agreements and instruments contemplated hereby, (ii) any technology required to operate the Business (without limiting Section 6.7), and (iii) any assets providing consumer
traffic, and assuming Buyer (or one or more of its Affiliates) has the ability to provide to the Business all corporate-level services currently provided to the Business by Parent and its Affiliates (including general and administrative services,
such as legal, accounting, back-office and compliance functions), the assets owned or leased by the Acquired Company, whether real or personal, tangible or intangible, when utilized by a labor force substantially similar to that employed by the
Acquired Company and Parent and its Affiliates during the first six months of 2023 in connection with the Business, constitute assets sufficient to conduct the Business, in all material respects, as presently conducted.
2.10 Real Property.
(a)
Owned Real Property. The Acquired Company does not own any real property.
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(b) Leased Property. Section 2.10(b) of the Disclosure Schedule lists all real
property leased or subleased to the Acquired Company. Parent has made available to Buyer correct and complete copies of the leases, subleases and other occupancy agreements (including all amendments, extensions and modifications thereto) listed
therein (the Leases). With respect to each such Lease:
(i) the Lease is a valid, binding and enforceable obligation of
the Acquired Company and, to Parents knowledge, each other party to such Lease, except as enforceability may be limited by the Bankruptcy and Equity Exception;
(ii) none of the Acquired Company or, to Parents knowledge, any other party to the Lease is in material breach or default and, to
Parents knowledge, no event has occurred which, with notice or lapse of time or both, would constitute a material breach or default or permit termination, material modification or material acceleration thereunder;
(iii) the other party to each Lease is not an Affiliate of, and otherwise does not have any material economic interest not contemplated by
the Lease in, the Acquired Company;
(iv) all buildings, structures, improvements and fixtures located on the leased real property are in
good operating condition, subject to ordinary wear and tear, and are suitable for the operation of the Business as presently conducted thereon, except as would not reasonably be expected to be material to the Business, taken as a whole; and
(v) the Acquired Company has not assigned (including, without limitation, collaterally assigned), transferred, conveyed, mortgaged, deeded in
trust or encumbered any interest (including by means of granting a Security Interest) in the leasehold or subleasehold to the Lease.
2.11
Intellectual Property.
(a) For the purposes of this Agreement: (i) Intellectual Property Rights means any and
all intellectual, proprietary, and industrial property rights, recognizable in any jurisdiction, including all rights pertaining to or deriving from: (a) patents (including any and all provisionals, continuations,
continuations-in-part, divisionals, re-examinations, reissues and the like) (collectively, Patents); (b)
copyrights, mask works, and works of authorship; (c) computer software and programs (both source code and object code form), all proprietary rights in the computer software and programs and all documentation and other materials related to the
computer software and programs (collectively, Software); (d) trademarks, trade names, service marks, trade dress, and the goodwill associated therewith (collectively, Trademarks); (e) trade secrets, confidential
information, and know-how (including methods, specifications, processes); (f) domain names, phone numbers, and social media accounts and handles; (g) data (whether sourced, Acquired Company-generated or
otherwise), databases, data compilations and all documentation relating to the foregoing; and (h) any applications for or registrations of any of the foregoing; and (ii) Acquired Company IP means all Intellectual Property
Rights owned, in whole or part, by the Acquired Company (including all Intellectual Property Rights which an employee or other third party is obligated by contract, statute or otherwise to assign to Acquired Company).
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(b) Section 2.11(b) of the Disclosure Schedule contains a complete and accurate list of:
(i) all Acquired Company IP that is subject to any issuance, registration, or application by or with any Governmental Entity or authorized private registrar in any jurisdiction (collectively, Intellectual Property
Registrations) specifying as to each, as applicable: the title or mark; the owner of record; the jurisdiction; the issue, registration, or application number; the issue, registration, or filing date; and (ii) all material unregistered
Trademarks included in the Acquired Company IP; and (iii) all Software included in the Acquired Company IP.
(c) The Acquired Company
solely and exclusively owns all right, title, and interest in and to, and is the owner of record of, the Intellectual Property Registrations. The Acquired Company solely and exclusively owns all right, title, and interest in and to the Acquired
Company IP, and has the valid and enforceable right to use and exploit all Intellectual Property Rights used or held for use in, or necessary for, the conduct of the Business, in each case free and clear of all Security Interests, except as would
not reasonably be expected to be material to the Business, taken as a whole. The Acquired Company IP, together with the Intellectual Property Rights licensed under the Designated Contracts, includes all of the Intellectual Property Rights that are
used in or necessary for the conduct of the Business as currently conducted, except as would not reasonably be expected to be material to the Business, taken as a whole.
(d) To Parents knowledge, (i) each item of Acquired Company IP, and the Acquired Companys rights therein, is valid,
subsisting and enforceable, and (ii) there are no facts that would render the Acquired Company IP, or the Acquired Companys rights therein, invalid or unenforceable. No claim is pending or, to Parents knowledge, threatened, that
challenges the Acquired Companys ownership or use of any Acquired Company IP or to the effect that any Acquired Company IP is or will be invalid or unenforceable by the Acquired Company, and, to Parents knowledge, there is no basis for
any such claim (whether or not pending or threatened).
(e) All Intellectual Property Registrations are maintained in good standing, and
all applications within the Intellectual Property Registrations are being diligently prosecuted in the respective offices in accordance with applicable laws. To the extent small entity fees were paid for any Patent in the Intellectual
Property Registrations, such reduced fees were then appropriate.
(f) The conduct of the Business and use of the Acquired Company IP as
utilized in the Business prior to the Closing does not infringe upon, misappropriate, or otherwise violate, and has not infringed upon, misappropriated, or otherwise violated, the Intellectual Property Rights or proprietary rights of any other
person. No person has made any offer for license to the Acquired Company, and no claim is pending or, to Parents knowledge, threatened to the effect that the conduct of the Business or any Acquired Company IP infringes upon, misappropriates,
or otherwise violates the rights of any other person or entity.
(g) To Parents knowledge, no person is engaging or has engaged in
any activity that infringes, misappropriates, or otherwise violates any Acquired Company IP; and the Acquired Company has not asserted any claims relating to, or made any offer for license related to, such activity against any person.
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(h) The Acquired Company has taken reasonable measures to protect the confidentiality of all
trade secrets and confidential information included in the Acquired Company IP. No such person is or is suspected to be in violation of any material term of such agreement. No confidential information that is material to the Business as currently
conducted or any trade secret has been disclosed or authorized to be disclosed to any person, other than pursuant to a written non-disclosure agreement or similar instrument.
2.12 Contracts.
(a) As
of the date hereof, except as set forth in Section 2.12 of the Disclosure Schedule, the Acquired Company is not (or had the Pre-Closing Transactions occurred prior to the date hereof, would not be) a
party to any:
(i) agreement (or group of related written agreements with the same person or entity) for the lease of personal property
from or to third parties providing for lease payments the remaining unpaid balance of which is in excess of $50,000, other than agreements that can be terminated by the Acquired Company on 90 or fewer days notice without payment by the
Acquired Company of any material penalty;
(ii) agreement (or group of related written agreements with the same person or entity) for the
purchase or sale of products or the furnishing or receipt of services under which the undelivered balance of such products and services is in excess of $50,000, other than any purchase orders relating to the supply of goods and services to the
Business in the Ordinary Course of Business;
(iii) agreement for capital expenditures, which requires the Acquired Company to make
aggregate future payments in excess of $50,000;
(iv) agreement establishing a partnership or joint venture;
(v) agreement (or group of related written agreements with the same person or entity) under which it has created, incurred, assumed or
guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money (other than intercompany indebtedness that will be eliminated prior to the Closing) or under which it has imposed a Security Interest on any of its material
assets, tangible or intangible;
(vi) agreement that contains exclusivity or non-competition
restrictions with respect to the Acquired Company or otherwise prohibits the Business or the Acquired Company from competing in any line of business anywhere in the world or geographic area;
(vii) contract or agreement with any Affiliate of the Acquired Company;
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(viii) agreement for the employment in the Business of any individual on a full-time or
part-time basis involving annual compensation in excess of $100,000;
(ix) individual severance, retention, stay-pay or termination agreement with any employee of the Business;
(x) agreement for the sale of any assets or properties of the Acquired Company, other than agreements for the sale of goods and services in
the Ordinary Course of Business and other than pursuant to the Pre-Closing Transactions; and
(xi) agreement for the acquisition by the Acquired Company of any operating business or equity interests of any other person (other than
pursuant to the Pre-Closing Transactions);
provided, however, that Leases are not required to be
disclosed in response to any provision of this Section 2.12 and shall not constitute Designated Contracts (as defined in Section 2.12(b)).
(b) Parent has made available to Buyer a correct and complete copy of each agreement (as amended to the date of this Agreement) listed in
Section 2.12 of the Disclosure Schedule (the Designated Contracts). Each Designated Contract is a valid, binding and enforceable obligation of the Acquired Company and, to Parents knowledge, of each other party thereto
(except as the foregoing may be limited by the Bankruptcy and Equity Exception), and there exists no defaults of the Acquired Company or, to Parents knowledge, any other party thereto, except for any such failures to be valid, binding and
enforceable or defaults that would not reasonably be expected to result in a Business Material Adverse Effect.
2.13 Litigation.
Section 2.13 of the Disclosure Schedule lists each (a) material judgment, order, decree, stipulation or injunction specifically naming the Acquired Company or any of its property or business and (b) material complaint, action, suit,
proceeding, hearing or investigation before any Governmental Entity or arbitrator to which the Acquired Company is a party or, to Parents knowledge, which has been overtly threatened against the Acquired Company, in each case that has arisen
or been threatened in writing since January 1, 2022.
2.14 Labor Matters. Section 2.14 of the Disclosure Schedule lists,
as of the date of this Agreement, each collective bargaining agreement relating to the Business to which the Acquired Company is a party or is bound. The Acquired Company has not experienced since January 1, 2021, any material strikes,
grievances, claims of unfair labor practices or other collective bargaining disputes with respect to any persons employed with respect to the Business. The Acquired Company is in material compliance with all applicable laws regarding labor and
employment, including terms and conditions of employment, health and safety, and wages and hours, child labor, immigration, employment discrimination, harassment, disability rights or benefits, equal opportunity, plant closures and layoffs,
affirmative action, workers compensation, labor relations, employee leave issues, and worker classification. No suits, charges, or administrative proceedings relating to any such laws or regulation are pending, and, to Parents knowledge,
since January 1, 2021, no suit, charge, or administrative investigation alleging a violation of any such applicable law has been threatened. Since January 1, 2021, any
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individual performing services for the Acquired Company who has been classified as an independent contractor has been correctly so classified and is not a common law employee of the Acquired
Company, except for any classification which if determined to be incorrect would not reasonably be expected to be material to the Business, taken as a whole.
2.15 Employee Benefits.
(a) Section 2.15(a) of the Disclosure Schedule contains a complete and accurate list, as of the date of this Agreement, of all Employee
Benefit Plans (as defined below) maintained, or contributed to, by the Acquired Company or any ERISA Affiliate (as defined below) for the benefit of employees of the Business (and their beneficiaries). For purposes of this Agreement,
Employee Benefit Plan means any employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (ERISA)) and any other material employee
benefit plan, program or arrangement that the Acquired Company or any ERISA Affiliate maintains, sponsors, or contributes to or for the benefit of any employee or former employee (or their beneficiaries) of the Acquired Company, whether written or
oral, and whether or not subject to ERISA, including, but not limited to, deferred compensation, medical, vision, prescription drug, dental or disability insurance plans, fringe benefits, leave policies, workers compensation, bonus, commission
and incentive plans, severance or separation benefits, retirement plans, equity-based compensation plans, and change of control benefits. For purposes of this Agreement, ERISA Affiliate means any entity which is a member of
(i) a controlled group of corporations (as defined in Section 414(b) of the Code), (ii) a group of trades or businesses under common control (as defined in Section 414(c) of the Code), or (iii) an affiliated service group
(as defined under Section 414(m) of the Code or the regulations under Section 414(o) of the Code), any of which includes the Acquired Company. Each Employee Benefit Plan has been administered in accordance with its terms and the Acquired
Company has met its obligations with respect to such Employee Benefit Plan, except for any failure to so administer or so meet its obligations that would not reasonably be expected to result in any liability that would reasonably be expected to
result in a Business Material Adverse Effect. The Acquired Company and each Employee Benefit Plan is in compliance with the currently applicable provisions of ERISA, the Code, and all other applicable laws, except for any failure to so comply that
would not reasonably be expected to result in a Business Material Adverse Effect. Neither the Acquired Company nor Parent has any Liability under ERISA or the Code as a result of its being a member of a group described in Sections 414(b), (c), (m)
or (o) of the Code.
(b) With respect to the Employee Benefit Plans, all required contributions and premium payments of the Acquired
Company due on or before the Closing have been made or properly accrued to the extent required by GAAP on or before the Closing.
(c) As
of the date of this Agreement, there are no termination proceedings by Governmental Entities or other claims (except claims for benefits payable in the normal operation of the Employee Benefit Plans and proceedings with respect to qualified domestic
relations orders), suits or proceedings against or involving any Employee Benefit Plan or asserting any rights or claims to benefits under any Employe Benefit Plan, or, to Parents knowledge, investigations by any Governmental Entity involving
any Employee Benefit Plan.
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(d) The Employee Benefit Plans that are intended to be qualified under Section 401(a)
of the Code have received determination, advisory or opinion letters from the Internal Revenue Service to the effect that such Employee Benefit Plans are qualified and the plans and the trusts related thereto are exempt from federal income Taxes
under Sections 401(a) and 501(a), respectively, of the Code.
(e) None of the Employee Benefit Plans is (i) an employee
pension plan as defined in Section 3(2) of ERISA and subject to Title IV of ERISA or Section 302 of the Code, (ii) a multiemployer plan (as defined in Section 3(37) of ERISA), (iii) a multiple employer
welfare arrangement (as defined in Section 3(40) of ERISA), (iv) a multiple employer plan (as defined in Section 413(c) of the Code), (v) a welfare benefit trust or voluntary employees beneficiary
association within the meaning of Sections 419, 419A or 501(a)(9) of the Code, or (vi) a plan that provides for medical or life insurance benefits to retired or former employees of the Company (other than as required under
Section 4980B of the Code or similar state law). The Acquired Company is not a participating or contributing employer in any multiemployer plan (as defined in Section 3(37) of ERISA) with respect to employees of the Acquired
Company, nor has the Acquired Company incurred any withdrawal liability with respect to any multiemployer plan or any liability in connection with the termination or reorganization of any multiemployer plan.
(f) There are no unfunded obligations under any Employee Benefit Plan providing welfare benefits after termination of employment to any
employee of the Business (or to any beneficiary of any such employee), excluding continuation of health coverage required to be continued under Section 4980B of the Code or other applicable laws or severance, if applicable.
(g) Except as set forth in Section 2.15(g) of the Disclosure Schedule, neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby (either alone or together with any other event), directly or indirectly, will (i) result in or cause the accelerated timing of payment, vesting, funding or delivery of any compensation or
equity-based awards or benefits to any current or former employee, officer, director or consultant of the Acquired Company, (ii) trigger any payment (whether in cash, property, or the vesting of property) or benefit, increase the amount of any
payment or benefit or trigger any other obligation under any Employee Benefit Plan (other than, where applicable, severance or other termination payments), or (iii) entitle any current or former employee, officer, director, or consultant of the
Acquired Company to any severance pay or other compensation or benefits under any Employee Benefit Plan or otherwise. The Acquired Company has no obligation to gross-up, reimburse or indemnify any individual
with respect to any Taxes, including those imposed pursuant to Section 4999 of the Code.
(h) No act or omission has occurred and no
condition exists with respect to any Employee Benefit Plan maintained by the Acquired Company, any of its Affiliates or any ERISA Affiliate that would subject the Acquired Company or any ERISA Affiliate to any fine, penalty, Tax or liability of any
kind imposed under ERISA or the Code (other than liabilities for benefits accrued under Employee Benefit Plans for employees of the Acquired Company, and each of their beneficiaries), except for any fine, penalty, Tax or liability that would not
reasonably be expected to result in a Business Material Adverse Effect.
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(i) Each Employee Benefit Plan that constitutes in any part a nonqualified deferred
compensation plan (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in compliance with, and is in documentary compliance with, Section 409A of the Code. The
Acquired Company has no obligations to gross-up, reimburse or indemnify any individual with respect to any Taxes, including any excise Tax imposed under Section 409A of the Code.
2.16 Legal Compliance. The Acquired Company is, and has been since September 1, 2020, in material compliance with all applicable
laws of any Governmental Entity currently in effect with respect to the Business. As of the date of this Agreement, the Acquired Company has not received written notice of, and, to Parents knowledge, there are not, any pending action, suit,
proceeding, hearing, investigation, claim, demand or notice relating to the Business alleging any material failure to so comply.
2.17
Privacy. Except as set forth in Section 2.17 of the Disclosure Schedule:
(a) The Acquired Company currently is, and at all
times since September 1, 2020 has been, in material compliance with all Privacy Laws and Personal Information Obligations (each as defined below). The Acquired Company has not received any written notice from any person or entity (including,
without limitation, a Governmental Entity) alleging any material non-compliance with any Privacy Laws or Personal Information Obligations. For purposes of this Agreement, Personal
Information means information that identifies, relates to, describes, is reasonably capable of being associated with or linked to, directly or indirectly, a particular individual. Personal Information includes, without
limitation, information that is subject to restrictions under laws relating to data security, privacy, or the processing or use of personal information in any form. Personal Information Obligations means each of the Acquired
Companys privacy policies or notices, terms of use, terms and conditions, contracts, any binding guidance and the Payment Card Industry Data Security Standard, in each case, regarding processing of Personal Information, privacy, or data
security. Privacy Laws means all applicable laws that relate to data privacy, data protection, data security, data transfer, confidentiality, breach notification, marketing, or the processing of Personal Information, in each case,
as applicable from time to time, including, to the extent applicable, the Health Insurance Portability and Accountability Act of 1996; the Health Information Technology for Economic and Clinical Health Act; the EUs General Data Protection
Regulation, the Telephone Consumer Protection Act; the CAN-SPAM Act of 2003; Section 5 of the Federal Trade Commission Act of 1914; the California Consumer Privacy Act of 2018; and all equivalent or
comparable privacy, security and data breach notification laws, and the requirements set forth in any applicable regulations thereunder or any binding consent orders.
(b) The Acquired Company has implemented and maintained commercially reasonable technical, organizational, administrative, and physical
safeguards to protect the availability, confidentiality, integrity, and security of the IT Assets (as defined below) (and all data and other information and transactions stored or contained therein or processed or
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transmitted thereby), including against any unauthorized use, access, disclosure, interruption, modification, processing, and any loss, corruption, or interruption. The Acquired Companys
safeguards include, but are not limited to, (i) an information security program that includes documented policies and procedures, (ii) the implementation of commercially reasonable data backup, disaster avoidance and recovery procedures
and business continuity procedures, and (iii) procedures for identifying and responding to data security incidents (including the unauthorized use or access to Personal Information or the IT Assets). To Parents knowledge, there has been
no material unauthorized use, access, or security breaches of, or disruptions or outages to, any IT Assets (or any loss, modification, or corruption of, or unauthorized access to or processing of, any data stored, processed or transmitted thereby),
in each case, that would have given rise to an obligation under applicable law to notify consumers or customers of any such incident. IT Assets means servers, software, computer firmware, computer hardware, electronic data
processing equipment, websites, databases, circuits, networks, network equipment, peripherals, computer systems, and other computer, communications, and telecommunications devices and equipment, and data or information contained therein or
transmitted thereby.
(c) Neither the execution nor delivery of this Agreement, the contemplated transactions, nor the performance of the
Acquired Companys obligations hereunder will violate in any material respect any applicable Privacy Laws or any of the Personal Information Obligations, or require any material notice to or consent of any person or entity for the continued
processing of Personal Information. The Acquired Company has all material authorizations, consents, and rights required to (i) process any Personal Information in the manner in which the Acquired Company has previously processed such
information and (ii) permit access to, deliver, or transfer Personal Information to Buyer as may be contemplated in or necessary for this Agreement.
(d) Neither the Acquired Company nor, to Parents knowledge, any person who processes Personal Information on behalf of the Acquired
Company, has experienced any material loss, damage, unauthorized access, unauthorized disclosure, improper alteration, misuse, unauthorized processing, or breach of the privacy or security of any IT Assets or any Personal Information in the Acquired
Companys possession, custody, or control, or that is processed on behalf of the Acquired Company that would have given rise to an obligation under applicable law to notify consumers or customers of any such incident.
2.18 Permits. Section 2.18 of the Disclosure Schedule lists all material permits, licenses, franchises or authorizations from any
Governmental Entity required for the operation of the Business as presently conducted (collectively, the Permits), and such Permits are sufficient to conduct the Business as presently conducted in all material respects. All such
Permits are in good standing, and the Acquired Company is not, and has not since September 1, 2020 been, in material violation of or material default under any such Permits, and no such Permit will be revoked, terminated prior to its normal
expiration date or not renewed solely as a result of the consummation of the transactions contemplated by this Agreement.
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2.19 Insurance. Section 2.19 of the Disclosure Schedule contains a list of all
material current (i.e., policies whose policy period includes the date hereof) insurance policies maintained by the Acquired Company (the Insurance Policies, which exclude, for the avoidance of doubt, policies maintained by
Parent, regardless of whether the Acquired Company is a named insured), and a list and description of all material claims made by the Acquired Company against the Insurance Policies since September 1, 2020. All Insurance Policies are in full
force and effect, and the Acquired Company is not in material default with respect to its obligations under any of the Insurance Policies. No written notice of cancellation or termination has been received by the Acquired Company with respect to any
of the Insurance Policies.
2.20 Business Relationships with Affiliates. Section 2.20 of the Disclosure Schedule lists any
written intercompany agreements with respect to the Business whereby Parent or any of its subsidiaries (other than the Acquired Company) directly or indirectly (a) owns any property or right, tangible or intangible, which is used in and
material to the Business, taken as a whole, (b) has any material claim or cause of action against the Acquired Company, or (c) owes any money to, or is owed any money by, the Acquired Company, in each case other than the agreements and
instruments contemplated by the Pre-Closing Transactions.
2.21 Environmental Matters.
(a) For purposes of this Agreement, Environmental Laws means all United States federal, state or local law, statute, rule
or regulation as in effect on the Closing Date concerning public health and safety, worker health and safety, pollution or protection of the environment, including without limitation all those relating to the presence, use, production, generation,
handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any Hazardous Materials. Hazardous Material means any material
substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade, that is listed or defined as a hazardous substance, hazardous waste, or
toxic substance or is otherwise hazardous, acutely hazardous, toxic or words of similar import or regulatory effect under any Environmental Law, and includes all pollutants, pesticides, contaminants or industrial, toxic, hazardous or
petroleum-based substances or wastes, waste waters or byproducts, including asbestos in any form, polychlorinated biphenyls, urea formaldehyde and per- and poly-fluoroalkyl substances.
(b) The Acquired Company complies and since September 1, 2020 has complied with all applicable Environmental Laws in all material
respects, and no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced (with notice to Parent) or, to Parents knowledge, threatened against the Acquired Company alleging any
material failure to so comply. The Acquired Company has obtained and is and has since September 1, 2020 been in compliance with all material permits required pursuant to Environmental Laws for the occupation of the leased real property and the
operation of its business.
(c) Since September 1, 2020, the Acquired Company has not received any written notice of any actual,
alleged or potential violation or failure of the Acquired Company to comply with any Environmental Laws with respect to any real property subject to the Leases, including any investigatory, remedial or corrective obligations.
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(d) There has been no release of Hazardous Materials with respect to the Business or assets
of the Acquired Company or any real property subject to the Leases which has resulted in a material violation of any Environmental Laws by the Acquired Company.
2.22 Brokers Fees. The Acquired Company does not have any liability or obligation to pay any fees or commissions to
any broker, finder or agent with respect to the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Parent that:
3.1 Organization. Buyer is a corporation duly organized, validly existing and, where applicable as a legal concept, in good standing (or
equivalent) under the laws of the state of its incorporation.
3.2 Authorization of Transaction. Buyer has all requisite corporate
power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement by Buyer, the performance by Buyer of its obligations hereunder and the consummation by Buyer of the
transactions contemplated hereby have been duly and validly authorized by all necessary corporate or comparable action on the part of Buyer. This Agreement has been duly and validly executed and delivered by Buyer and, assuming this Agreement
constitutes the valid and binding obligations of Parent, constitutes the valid and binding obligations of Buyer, enforceable against Buyer in accordance with its terms, except as enforceability may be limited by the Bankruptcy and Equity Exception.
3.3 Noncontravention. Neither the execution and delivery by Buyer of this Agreement, nor the consummation by Buyer of the
transactions contemplated hereby, will:
(a) conflict with or violate any provision of the charter or bylaws of Buyer;
(b) require on the part of Buyer any filing with, or any permit, authorization, consent or approval of, any Governmental Entity, except for
any filing, permit, authorization, consent or approval which if not obtained or made would not reasonably be expected to prevent, or materially impair or delay, the ability of Buyer to consummate the transactions contemplated by this Agreement (a
Buyer Material Adverse Effect);
(c) conflict with, result in a breach of, constitute (with or without due notice or
lapse of time or both) a default under, result in the acceleration of, create in any party any right to accelerate, terminate, modify or cancel, or require any notice, consent or waiver under, any contract, lease, sublease, license, sublicense,
franchise, permit, indenture, agreement or mortgage for borrowed money, instrument of indebtedness or Security Interest to which Buyer is a party or by which Buyer is bound or to which any of its assets are subject, except for any conflict, breach,
default, acceleration, right to accelerate, termination, modification, cancellation, notice, consent or waiver which would not reasonably be expected to result in a Buyer Material Adverse Effect; or
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(d) violate any order, writ, injunction or decree specifically naming, or statute, rule or
regulation applicable to, Buyer or any of its properties or assets, except for any violation which would not reasonably be expected to result in a Buyer Material Adverse Effect.
3.4 Brokers Fees. Buyer has no liability or obligation to pay any fees or commissions to any broker, finder or
agent with respect to the transactions contemplated by this Agreement.
3.5 Litigation. There are no material actions, suits,
claims or legal, administrative or arbitrational proceedings pending against, or, to Buyers knowledge, threatened against, Buyer.
3.6 Investment Intent. Buyer is acquiring the Equity Interests for investment for its own account and not with a view to the
distribution of any part thereof. Buyer acknowledges that the Equity Interests have not been registered under U.S. federal or any applicable state securities laws or the laws of any other jurisdiction and cannot be resold without registration under
such laws or an exemption therefrom. Buyer further acknowledges that (a) it has knowledge and experience in financial and business matters, that it is capable of evaluating the merits and risks of an investment in the Equity Interests, and that
it can bear the economic risk of an investment in the Equity Interests and (b) it has had the opportunity to conduct an independent due diligence review of the Business.
3.7 Solvency. Buyer is not entering into this Agreement with the actual intent to hinder, delay or defraud either present or future
creditors of Buyer or any of their respective Affiliates or the Acquired Company. Immediately after giving effect to the transactions contemplated by this Agreement and the payment to Parent of the Estimated Purchase Price at the Closing, Buyer and
the Acquired Company will be solvent.
3.8 No Other Representations or Warranties. Buyer hereby acknowledges and agrees that,
except for the representations and warranties set forth in Article II (each as qualified by the Disclosure Schedule), (a) neither Parent nor any of its subsidiaries, nor any of their respective stockholders, directors, officers, employees,
agents, representatives or advisors, nor any other person or entity, has made or is making any express or implied representation or warranty with respect to the Business, the Acquired Company or the Equity Interests, including with respect to any
information provided or made available to Buyer or any of its Affiliates, stockholders, directors, officers, employees, agents, representatives or advisors, or any other person or entity, and (b) except as otherwise expressly set forth herein,
neither Parent nor any of its subsidiaries, nor any of their respective stockholders, directors, officers, employees, agents, representatives or advisors, nor any other person or entity, will have or be subject to any liability or indemnification or
other obligation of any kind or nature to Buyer or any of its Affiliates, stockholders, directors, officers, employees, agents, representatives or advisors, or any other person or entity, resulting from the delivery, dissemination or any other
distribution to Buyer or any of its Affiliates, stockholders, directors, officers, employees, agents, representatives or advisors, or any other person or entity, or the use by Buyer or any of its Affiliates, stockholders, directors, officers,
employees, agents, representatives or advisors, or any other person or entity, of any such information provided or made available to any of them by Parent or any of its subsidiaries, or any of their respective stockholders, directors, officers,
employees, agents, representatives or
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advisors, or any other person or entity, including any information, documents, estimates, projections, forecasts or other forward-looking information, business plans or other material provided or
made available to Buyer or any of its Affiliates, stockholders, directors, officers, employees, agents, representatives or advisors, or any other person or entity, in data rooms, confidential information memoranda or management
presentations, whether in anticipation or contemplation of the transactions contemplated by this Agreement or otherwise, and (subject to the express representations and warranties of Parent set forth in Article II or in any certificate,
document or instrument delivered at the Closing pursuant to the terms of this Agreement (in each case as qualified and limited by the Disclosure Schedule)) neither Buyer nor any of its Affiliates, stockholders, directors, officers, employees,
agents, representatives and advisors, or any other person or entity, has relied on any such information (including the accuracy or completeness thereof).
ARTICLE IV
INDEMNIFICATION
4.1
Indemnification by Parent. Subject to the terms and conditions of this Article IV, from and after the Closing, Parent shall indemnify Buyer in respect of, and hold Buyer harmless against, any and all Liabilities, losses, damages,
fines, fees, penalties, judgments, costs and expenses (including reasonable attorneys fees and expenses reasonably incurred in investigating, preparing or defending against any litigation or claim, action, suit, proceeding, or demand)
(collectively, Damages) incurred or suffered by Buyer or any Affiliate to the extent resulting from or constituting:
(a) any breach of a representation or warranty of Parent contained in this Agreement;
(b) any failure by Parent to perform any covenant contained in this Agreement;
(c) any unpaid Closing Indebtedness or Outstanding Transaction Expenses of the Acquired Company or Parent solely to the extent not accounted
for in the Estimated Closing Statement, Preliminary Closing Statement or Final Closing Statement;
(d) any Excluded Liability (as defined
below)
(e) any (i) Taxes for any taxable period (or portion thereof) ending on or prior to the Closing Date due and payable by the
Acquired Company, (ii) Taxes for which the Acquired Company has any liability as a transferee or successor, pursuant to any contractual obligation or otherwise, which Tax is related to the operations of the Acquired Company on or prior to the
Closing Date or an event or transaction occurring prior to the Closing Date, and (iii) any Transfer Taxes (as defined in Section 5.1(d)) for which Parent is liable pursuant to Section 5.1(d),
other than, in each case, Taxes that are included in Working Capital; or
(f) any third-party claim against Buyer or its Affiliates
resulting from a breach committed by Parent or its subsidiaries (including the Acquired Company but solely to the extent such breach was committed (or was alleged to have been committed) on or prior to the Closing) of the Telephone Consumer
Protection Act, 42 U.S.C. §§ 227 et seq., as amended, the CAN-SPAM Act of 2003, 15 U.S.C. 7701, et seq., as amended, and Do Not Call List requirements (collectively, the TCPA
Laws).
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For purposes of this Agreement, Excluded Liability means any of the following:
(i) all liabilities and obligations of the Acquired Company for costs and expenses incurred in connection with this Agreement or the consummation of the transactions contemplated by this Agreement; (ii) all obligations and liabilities
assumed by, or which are otherwise expressly the responsibility of, Parent pursuant to this Agreement and (iii) all other liabilities and obligations of the Acquired Company or arising out of or related to the conduct of the Business prior to
Closing, to the extent not (i) an Assumed Liability (as defined in Section 4.2), or (ii) related to Taxes indemnified under Section 4.1(e). For purposes of this Agreement,
Liabilities means any liability or obligation of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
4.2 Indemnification by Buyer. Subject to the terms and conditions of this Article
IV, from and after the Closing, Buyer shall indemnify Parent in respect of, and hold Parent harmless against, any and all Damages incurred or suffered by Parent, any Affiliate or Joshua Mushlock to the extent resulting from or constituting:
(a) any breach of a representation or warranty of Buyer contained in this Agreement;
(b) any failure by Buyer to perform any covenant contained in this Agreement;
(c) any Assumed Liability (as defined below); or
(d) any third-party claim against Parent or its Affiliates resulting from a breach committed by Buyer or any of its subsidiaries (including
the Acquired Company solely to the extent such breach was committed (or was alleged to have been committed) after the Closing) of the TCPA Laws.
For
purposes of this Agreement, Assumed Liability means and is limited to the following: (i) all Liabilities to the extent arising out of or relating to the conduct of the Business by Buyer following the Closing; (ii) all
Liabilities set forth on the Balance Sheet, to the extent they have not been paid or discharged prior to the Closing, (iii) all Liabilities that have arisen after the date of the Balance Sheet from the operation of the Business in the Ordinary
Course of Business, (iv) all Liabilities under contracts of the Acquired Company set forth on Schedule 4.2 and (v) Liabilities designated as Assumed Liabilities under Section 6.1(d)(iii).
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4.3 Claims for Indemnification.
(a) Third-Party Claims. Subject to the provisions of Article V, all claims for indemnification made under this Agreement
resulting from, related to or arising out of a third-party claim against an Indemnified Party (as defined in this Section 4.3(a)) shall be made in accordance with the following procedures. A person or entity entitled to
indemnification under this Article IV (an Indemnified Party) shall give written notification to the Party from whom indemnification is sought (the Indemnifying Party) as promptly as practicable, and in
any event within 30 days, after receipt by the Indemnified Party of notice of the commencement of any action, suit or proceeding relating to a third-party claim for which indemnification may be sought or, if earlier, upon the assertion of any such
claim by a third party, and shall describe in reasonable detail (to the extent then known by the Indemnified Party) the facts constituting the basis for such claim, the amount of the claimed Damages and any other material details pertaining thereto;
provided, however, that the failure to timely give such notice shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party shall have been actually prejudiced by such failure.
Within 60 days after delivery of such notification, the Indemnifying Party may, upon written notice thereof to the Indemnified Party, assume control of the defense of such action, suit, proceeding or claim with counsel reasonably satisfactory to the
Indemnified Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall control such defense. The Party not controlling such defense may participate therein at its own expense; provided that if the
Indemnifying Party assumes control of such defense and the Indemnifying Party and the Indemnified Party have conflicting interests that cannot be waived with respect to such action, suit, proceeding or claim, the reasonable fees and expenses of
counsel to the Indemnified Party solely in connection therewith shall be considered Damages for purposes of this Agreement; provided, however, that in no event shall the Indemnifying Party be responsible for the fees
and expenses of more than one counsel for all Indemnified Parties. The Party controlling such defense shall keep the other Party advised of the status of such action, suit, proceeding or claim and the defense thereof and shall consider
recommendations made by the other Party with respect thereto. The Indemnified Party shall not agree to any settlement or compromise of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party. The
Indemnifying Party shall not agree to any settlement or compromise of such action, suit, proceeding or claim that does not include a complete release of the Indemnified Party from all liability with respect thereto or that imposes any liability or
obligation on the Indemnified Party without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided that, if the Indemnifying Party assumes the defense of a
third-party claim and is in good faith contesting such third-party claim, the Indemnifying Party may agree to any settlement, compromise or discharge of a third-party claim that by its terms (a) is limited to one or more monetary payments (and
does not include any injunctive or similar equitable relief or other restrictions or constraints for the Indemnified Party or any of its Affiliates), (b) obligates the Indemnifying Party to pay the full amount of Damages in connection with such
third-party claim, (c) irrevocably and unconditionally releases the Indemnified Party and its Affiliates in connection with such third-party claim, and (d) does not contain any admission of fault, guilt or wrongdoing by the Indemnified
Party or any of its Affiliates. Upon making any indemnification payment, the Indemnifying Party shall, to the extent of such payment, be subrogated to all rights of the Indemnified Party against any third party in respect of the Damages to which the
payment relates. The Indemnified Party shall, upon request, (x) execute all agreements, instruments and documents and take all other actions as may be reasonably necessary to evidence, perfect and enforce such subrogation rights and
(y) provide reasonable assistance to the Indemnifying Party in connection with the Indemnifying Partys pursuit of any claims against such third party.
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(b) Procedure for Other Claims. An Indemnified Party wishing to assert a claim for
indemnification under this Article IV which is not subject to Section 4.3(a) shall deliver to the Indemnifying Party a written notice (a Claim Notice) which contains (i) a description and the
amount (the Claimed Amount) of any Damages incurred by the Indemnified Party, (ii) a statement that the Indemnified Party is entitled to indemnification under this Article IV and a reasonable explanation of the basis
therefor, and (iii) a demand for payment in the amount of such Damages. The Indemnified Party shall allow the Indemnifying Party and its representatives to investigate the matter or circumstance alleged to give rise to such claim, and whether
and to what extent any amount is payable in respect of such claim. If the Indemnifying Party contests the payment of all or part of the Claimed Amount, the Indemnifying Party and the Indemnified Party shall use good faith efforts to resolve such
dispute. If such dispute is not resolved within 60 days following the delivery by the Indemnified Party of the applicable Claim Notice, the Indemnifying Party and the Indemnified Party shall each have the right to submit such dispute to a court of
competent jurisdiction in accordance with the provisions of Section 7.13.
(c) Procedures for Tax Audits.
Notwithstanding anything to the contrary in this Agreement, to the extent there is a conflict between the provisions of this Section 4.3 and Section 5.4 with regard to any Tax Audit (as defined in
Section 5.4), Section 5.4 shall govern.
4.4 Survival.
(a) The Parties agree that:
(i) the representations and warranties of Parent and Buyer set forth in this Agreement shall survive the Closing and the consummation of the
transactions contemplated hereby and shall continue until the date that is fifteen (15) months following the Closing Date, at which time they shall expire; provided that the representations and warranties set forth in
Section 2.1 (Organization, Qualification and Corporate Power), Section 2.2 (Capitalization), Section 2.3 (Authority), Section 2.4(a)
(Noncontravention of Organizational Documents), Section 2.5 (Subsidiaries), Section 2.8 (Tax Matters), Section 2.22 (Brokers Fees),
Section 3.1 (Organization), Section 3.2 (Authorization of Transaction), Section 3.3(a) (Noncontravention of Organizational Documents),
Section 3.4 (Brokers Fees) and Section 3.7 (Solvency) (the Fundamental Representations) shall survive until thirty (30) days following the expiration of the applicable
statute of limitations period;
(ii) none of the covenants or other agreements contained in this Agreement shall survive the Closing (and
each such covenant or other agreement shall expire at the Closing) other than those which by their terms contemplate performance after the Closing Date, and each such surviving covenant and agreement shall survive the Closing until the expiration of
the term of the undertaking set forth in such covenant or agreement, at which time it will expire;
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(iii) subject to Section 4.4(b), no Party shall have any
obligation or liability of any nature with respect to any representation, warranty, agreement or covenant after the expiration or termination thereof; and
(iv) it is the express intent of the Parties that (A) if the applicable survival period as contemplated by this Agreement for an item is
shorter than the statute of limitations that would otherwise have been applicable to such item then, by contract, the applicable statute of limitations with respect to such item shall be reduced to the shortened survival period contemplated herein,
and (B) the 20-year statute of limitations contemplated by 10 Del. C. §8106(c) shall not apply to this Agreement.
(b) If an indemnification claim is properly asserted in writing pursuant to Section 4.3 prior to the expiration as
provided in Section 4.4(a) of the representation, warranty, covenant or agreement that is the basis for such claim, then such claim shall survive such expiration until, but only for the purpose of, the resolution of such
claim.
4.5 Limitations.
(a) Notwithstanding anything to the contrary contained in this Agreement, each of the following limitations shall apply:
(i) The amount of Damages that may be recovered from Parent under each of Section 4.1(a) (other than with respect to
Damages resulting from any breach of the Fundamental Representations made by Parent) and Section 4.1(f) shall not exceed $2,025,000 (the Cap); and
(ii) Buyer shall not be permitted to recover any Damages under Section 4.1(a) (other than with respect to Damages
resulting from any breach of the Fundamental Representations) until such Damages exceed $135,000 (the Deductible), at which point Buyer shall be permitted to recover only such Damages in excess of the Deductible.
The limitations of this Section 4.5(a) (including the Deductible and the Cap) shall not apply (i) to any claim described in
Section 4.1(b), Section 4.1(c), Section 4.1(d), Section 4.1(e) or (ii) in the case of Fraud (as defined below); provided,
however, that, except in the case of Fraud or any claim described in Section 4.1(d), the aggregate liability of Parent for all Damages under this Article IV shall not exceed the Adjusted Purchase Price;
provided, further, that in the event Damages related to the Business result from matters that are expressly the subject of any representation or warranty of Parent contained in this Agreement, such Damages shall be subject to the
limitations of this Section 4.5(a) with respect to such representation and warranty, as applicable, notwithstanding the fact that such Damages may also relate to a claim described in
Section 4.1(d). For purposes of this Agreement, Fraud means knowing and intentional common law fraud under the laws of the State of Delaware with respect to the giving of any representation or warranty in
Article II or Article III hereof, as applicable.
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(b) Subject to Section 7.12 and except in the case of Fraud and
claims made pursuant to Article V, from and after the Closing, the rights of the Indemnified Parties under this Article IV, shall be the sole and exclusive remedies of the Indemnified Parties and their respective Affiliates with
respect to claims resulting from any breach of representation or warranty or failure to perform any covenant or agreement contained in this Agreement or otherwise relating to the transactions that are the subject of this Agreement. Other than the
rights of the Indemnified Parties under this Article IV (which shall not be deemed limited by this sentence), Buyer hereby waives and releases (on behalf of the Acquired Company) any claim that the Acquired Company may have against Parent or any of
its Affiliates arising at any time at or prior to the Closing. Subject to Section 7.12, from and after the Closing, the rights of the Parties under Article V shall be the sole and exclusive remedy of the Parties with
respect to the subject matter of Article V. Without limiting the generality of the foregoing, in no event shall Buyer, its successors or permitted assigns be entitled to claim or seek rescission of the transactions consummated under this
Agreement.
(c) In no event shall any Indemnifying Party be responsible and liable for any Damages or other amounts under this Article
IV that (i) reflect multiples of lost earnings, revenue, cash flows, or other similar financial measures or (ii) are special or punitive, except to the extent such Damages are actually awarded to a third party in connection with an
indemnification claim under this Article IV. Buyer shall (and shall cause the Acquired Company to) use commercially reasonable efforts to take actions to mitigate Damages for which indemnification is provided to Buyer by Parent under
Article IV, to the extent required by applicable law.
(d) The amount of any Damages for which indemnification is provided under
this Article IV shall be reduced by any related recoveries to which the Indemnified Party is entitled under insurance policies actually received by the Indemnified Party or any of its Affiliates or other related recoveries from third parties
or for which the Indemnified Party or any of its Affiliates is eligible on account of the matter resulting in such Damages or the payment of such Damages (net of any deductible, co-pay, or actual out-of-pocket expenses incurred in collecting such amounts, retroactive premiums and/or any increase in premium resulting from such recoveries). An Indemnified Party shall use
commercially reasonable efforts to pursue, and to cause its Affiliates to pursue, all insurance or other third-party claims to which it may be entitled in connection with any Damages indemnifiable pursuant to this Article IV it incurs, and
the Parties shall cooperate with each other in pursuing insurance or other third-party claims with respect to any Damages or any indemnification obligations with respect to Damages; provided, that Buyer shall have no obligation to seek
recovery under any such insurance or other third-party claims prior to seeking indemnification under this Agreement. If an Indemnified Party (or an Affiliate) receives any insurance or other third-party payment in connection with any claim for
Damages for which it has already received an indemnification payment from the Indemnifying Party, it shall pay to the Indemnifying Party, within 10 Business Days of receiving such insurance or other third-party payment, an amount equal to the excess
of (i) the amount previously received by the Indemnified Party under this Article IV with respect to such claim plus the amount of the insurance or other third-party payments received (net of any deductible, co-pay, or actual out-of-pocket expenses incurred in collecting such amounts, retroactive premiums and/or any increase in premium
resulting from such recoveries), over (ii) the amount of Damages with respect to such claim which the Indemnified Party has become entitled to receive under this Article IV.
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(e) Notwithstanding anything to the contrary herein, for the purposes of determining whether
a representation or warranty was breached for purposes of this Article IV and for purposes of determining the amount of any Damages that are the subject matter of a claim for indemnification under this Article IV, each representation
and warranty in Article II and Article III will be deemed made without regard to, and will be read without giving effect to, any materiality (including the word material), Business Material Adverse
Effect or similar qualifiers contained in or otherwise applicable to any such representation or warranty.
4.6 Treatment of
Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the Adjusted Purchase Price for Tax purposes to the extent permitted by law.
ARTICLE V
TAX MATTERS
5.1 Preparation and Filing of Tax Returns; Payment of Taxes.
(a) Parent shall be responsible for the preparation of all Tax Returns for Parent for all periods (including any consolidated, unitary, and
combined Tax Returns for Parent which include the operations of the Acquired Company for any period ending on or before the Closing Date) and for all Tax Returns of the Acquired Company for all taxable periods that end on or before the Closing Date.
Parent shall file or cause to be filed all such Tax Returns for Parent, shall file or cause to be filed all such Tax Returns of the Acquired Company that are required to be filed on or before the Closing Date, and shall make all payments required
with respect to any such Tax Returns. Buyer shall file or cause to be filed all such Tax Returns of the Acquired Company that are required to be filed after the Closing Date. Buyer shall promptly reimburse Parent for the amount of any Taxes paid by
Parent with respect to any such Tax Returns to the extent such Taxes are attributable (as determined under Section 5.2 hereof) to periods following the Closing Date.
(b) Buyer shall be responsible for the preparation and filing of all other Tax Returns for the Acquired Company. Buyer shall make all payments
required with respect to any such Tax Returns. Parent shall promptly reimburse Buyer for the amount of any such Taxes paid by Buyer to the extent such Taxes are attributable (as determined under Section 5.2 hereof) to
periods ending on the Closing Date.
(c) Any Tax Return of the Acquired Company to be prepared and filed for taxable periods beginning on
or before the Closing Date and ending after the Closing Date shall be prepared on a basis consistent with the last previous similar Tax Return, and Buyer shall consult with Parent concerning each such Tax Return. Buyer shall provide Parent with a
copy of each proposed Tax Return (and such additional information regarding such Tax Return as may reasonably be requested by Parent) for Parents review and approval at least 20 Business Days prior to the filing of such Tax Return.
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(d) Parent and Buyer shall each be responsible for the payment of 50% of any transfer,
sales, use, stamp, conveyance, recording, registration, documentary, filing and other non-income Taxes and administrative fees (including notary fees) (Transfer Taxes) arising in connection
with the consummation of the transactions contemplated by this Agreement. The Party required by law to file all necessary Tax Returns with respect to any Transfer Taxes shall timely prepare, with the other Partys cooperation, and file such Tax
Returns. Parent and Buyer agree to timely sign and deliver (or to cause to be timely signed and delivered) such certificates or forms as may be necessary or appropriate and otherwise to cooperate to establish any available exemption from (or
otherwise reduce) such Transfer Taxes.
5.2 Allocation of Certain Taxes.
(a) Buyer and Parent agree that if the Acquired Company is permitted but not required under applicable foreign, state or local Tax laws to
treat the Closing Date as the last day of a taxable period, Buyer and Parent shall treat such day as the last day of a taxable period.
(b) Any Taxes for a taxable period of the Acquired Company beginning on or before the Closing Date and ending after the Closing Date shall be
apportioned for purposes of Section 5.1 between Parent and Buyer (i) in the case of Taxes that are based upon or related to income or receipts or that are imposed in connection with any sale or other transfer or
assignment of property (other than Transfer Taxes described in Section 5.1(d)), as if the taxable year ended with the Closing Date, and (ii) in the case of other Taxes imposed on a periodic basis (including property
Taxes), based on the number of calendar days during the portion of such period ending on the Closing Date and the number of calendar days in the portion of such period beginning on the day following the Closing Date.
5.3 Refunds and Carrybacks.
(a) Parent shall be entitled to any refunds (including any interest paid thereon) of Taxes of the Acquired Company attributable to taxable
periods ending (or portions thereof) on or before the Closing Date (whether received in cash or credited against other Taxes).
(b) Buyer
and/or its Affiliates, as the case may be, shall be entitled to any refunds (including any interest paid thereon) of Taxes of the Acquired Company attributable to taxable periods (or portions thereof) beginning after the Closing Date (whether
received in cash or credited against other Taxes).
(c) Buyer shall promptly forward to or reimburse Parent for any refunds (including any
interest paid thereon) due to Parent after receipt or credit thereof, and Parent shall promptly forward to Buyer or reimburse Buyer for any refunds (including any interest paid thereon) due to Buyer after receipt or credit thereof.
5.4 Cooperation on Tax Matters; Tax Audits.
(a) Buyer and Parent and their respective Affiliates shall cooperate as reasonably requested in the preparation of all Tax Returns and the
conduct of all Tax Audits or other administrative or judicial proceedings for any Tax periods for which any such Party could reasonably require the assistance of another such Party in obtaining any necessary information. Buyer and Parent and their
respective Affiliates shall make their respective employees and facilities available on a mutually convenient basis to explain any information provided hereunder.
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(b) Parent shall have the right, at its own expense, to control any audit or examination by
any Governmental Entity with respect to Taxes (Tax Audit), initiate any claim for refund, contest, resolve and defend against any assessment, notice of deficiency, or other adjustment or proposed adjustment relating to any and all
Taxes for any taxable period ending on or before the Closing Date with respect to the Acquired Company. Buyer shall have the right, at its own expense, to control any other Tax Audit, initiate any other claim for refund, and contest, resolve and
defend against any other assessment, notice of deficiency, or other adjustment or proposed adjustment relating to Taxes with respect to the Acquired Company; provided that, with respect to (i) any Taxes for any taxable period beginning
on or before the Closing Date and ending after the Closing Date and (ii) any item the adjustment of which may cause Parent to become obligated to make any payment pursuant to Section 5.1 or Article V hereof,
Buyer shall consult with Parent with respect to the resolution of any issue that would affect Parent, and not settle any such issue, or file any amended Tax Return relating to such issue, without the consent of Parent.
5.5 Post Closing Actions. Buyer shall not, and shall not cause or permit any of its Affiliates (including the Acquired Company after
the Closing) to, file, amend, re-file or otherwise modify any Tax Return or Tax election, initiate any voluntary disclosure, or agree to the waiver or any extension of the statute of limitations, in each case,
with respect to the Acquired Company for any taxable period (or portion thereof) ending on or before the Closing Date, without the prior written consent of Parent.
5.6 Purchase Price Allocation. Within 90 days following the determination of the Adjusted Purchase Price, Buyer shall prepare and
deliver to Parent an allocation of the consideration payable under this Agreement to Parent (including any Assumed Liabilities to the extent properly taken into account under the Code) among the assets of the Acquired Company in accordance with
Section 1060 of the Code and the methodology set forth on Schedule 5.6 (the Proposed Allocation). Within 30 days of delivery of the Proposed Allocation, Parent shall notify Buyer in writing of any proposed changes or the
Proposed Allocation shall be final. If Parent notifies Buyer in writing of a proposed change within 30 days, Buyer and Parent agree to discuss such proposed changes to the Proposed Allocation and shall endeavor to agree on an allocation mutually
acceptable to the Parties in accordance with this Agreement. If no such agreement can be reached within 30 days following Parents written notification to Buyer of the proposed changes to the Proposed Allocation, such dispute shall be submitted
to and resolved by the Neutral Accountant pursuant to the dispute resolution mechanism set forth in Section 1.3 whereby the Neutral Accountants decision shall be final, binding, conclusive and non-appealable by the Parties absent fraud or manifest error.
5.7 Tax Treatment. The Parties
agree to treat the transactions contemplated in this Agreement as a taxable acquisition of the assets of the Acquired Company and shall not take any position inconsistent therewith unless required by applicable law.
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ARTICLE VI
FURTHER AGREEMENTS
6.1
Access to Information; Record Retention; Cooperation.
(a) Access to Information. Subject to compliance with contractual
obligations and applicable laws and regulations, following the Closing, each Party shall afford to the other Party and to the other Partys Affiliates, authorized accountants, counsel and other designated representatives reasonable access
(including using commercially reasonable efforts to give access to third parties possessing information and providing reasonable access to its own employees who are in possession of relevant information) and duplicating rights during normal business
hours in a manner so as to not unreasonably interfere with the conduct of business to all non-privileged records, books, contracts, instruments, documents, correspondence, computer data and other data and
information (collectively, Information) within the possession or control of such Party or its Affiliates, relating to the Business prior to the Closing, insofar as such access is reasonably required by the other Party. Information
may be requested under this Section 6.1(a) for, without limitation, financial reporting and accounting matters, preparing financial statements, preparing and filing any Tax Returns, prosecuting any claims for refund,
defending any Tax claims or assessment, preparing securities law or exchange filings, prosecuting, defending or settling any litigation or insurance claim, performing this Agreement and the transactions contemplated hereby, and all other proper
business purposes, but Information shall exclude personnel files and competitively sensitive information.
(b)
Access to Personnel. Subject to compliance with contractual obligations and applicable laws and regulations, following the Closing, each Party shall use commercially reasonable efforts to make available (during normal business hours and in a
manner so as not to unreasonably interfere with the conduct of business) to the other Party, upon written request, such Partys and its Affiliates officers, directors, employees and agents to the extent that such persons may reasonably be
required in connection with any legal, administrative or other proceedings in which the requesting Party may from time to time be involved relating to the Business prior to the Closing or for any other matter referred to in
Section 6.1(a).
(c) Reimbursement. A Party providing Information or personnel to another Party under
Sections 6.1(a) or (b) shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments for such amounts, relating to supplies, disbursements and other reasonable
out-of-pocket expenses, as may reasonably be incurred in providing access to such Information or personnel; provided, however, that no such reimbursements
shall be required for the salary or employee benefits pertaining to employees or directors of the providing Party or its Affiliates.
(d)
Production and Retention of Records.
(i) To assist with the operation of the Acquired Company following Closing, Parent shall
produce to Buyer the systems and records listed on Schedule 6.1(d)(i) in accordance with the process set forth on Schedule 6.1(d)(i). Except as otherwise specifically noted on Schedule 6.1(d)(i), Parent shall preserve all Information, other than the
Information
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contained in the systems and records listed on Schedule 6.1(d)(i), in its possession prior to Closing pertaining to the Business for a period
of 90 days after the Closing Date (the Retention Period). During the Retention Period, Buyer may specifically request such other discrete Information as may be reasonably necessary for the future operation of the Acquired Company,
and Parent shall produce such reasonably requested Information in its possession or control at Buyers sole cost and expense. Except as otherwise expressly provided in this Section 6.1(d)(i) and Schedule 6.1(d)(i),
Parent shall have no obligation to transfer, preserve, keep, maintain, delete, or take any other action with respect to any Information (including without limitation Healthcare Information (as defined in Section 6.1(d)(ii))
pertaining to the Business.
(ii) Buyer shall (and shall cause its Affiliates to) preserve all Healthcare Information pertaining to the
Business that is transferred by Parent to Buyer for the period required by applicable law. For purposes of this Agreement, Healthcare Information means all individually identifiable health information (as defined at 45 CFR
160.103) and the Information maintained by Parent and its Affiliates pursuant to 42 CFR 422.504(d), including without the limitation the categories of records described in 42 CFR 422.504(d)(2).
(iii) Without limiting Parents obligations under Section 6.1(d)(i), any and all Damages (including Damages
resulting from the inability to defend a claim) arising out of, or relating to, Buyers failure to preserve the Information pertaining to the Business transferred to it in accordance with Schedule 6.1(d)(i) shall constitute Assumed Liabilities
for all purposes under this Agreement.
(e) Confidentiality. Each of Buyer and Parent (each, as the case may be, a
Receiving Party) shall hold, and shall use commercially reasonable efforts to cause its Affiliates, consultants and advisors to hold, in strict confidence all Information concerning the other Party furnished to it by the other
Party (the Disclosing Party) or the Disclosing Partys Affiliates or representatives at any time prior to Closing or pursuant to this Section 6.1 (in each case, except to the extent that such
Information (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party (or its Affiliates, consultants or advisors) in violation of the terms of this
Section 6.1(e), (ii) was within the possession of the Receiving Party prior to it being furnished to the Receiving Party by or on behalf of the Disclosing Party pursuant hereto, provided that the source of such
information was not known by the Receiving Party at the time of receipt to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect
to such information, (iii) is or becomes available to the Receiving Party from a source other than the Disclosing Party (or its Affiliates or representatives), provided that such source is not, to the Receiving Partys knowledge at
the time of receipt, bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Disclosing Party or any other party with respect to such information, or (iv) was or is independently
developed by the Receiving Party without utilizing any Information or violating any of the Receiving Partys obligations under this Agreement), and the Receiving Party shall not release or disclose such Information to any other person, except
its auditors, attorneys, financial advisors, bankers and other consultants and advisors, unless compelled to disclose such Information by judicial or administrative process or by other requirements of law or so as not to violate the rules of any
stock exchange; provided, however, that in the case of
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disclosure compelled by judicial or administrative process, the Receiving Party shall (to the extent permitted by applicable law) notify the Disclosing Party promptly of the request or
requirement so that the Disclosing Party may seek, at its own expense, an appropriate protective order or waive compliance with the provisions of this Section 6.1(e). If, in the absence of a protective order or the receipt
of a waiver hereunder, the Receiving Party is compelled to disclose any Information by judicial or administration process, such Receiving Party may so disclose the Information; provided, however, that at the written request of the
Disclosing Party, the Receiving Party shall use commercially reasonable efforts to obtain, at the expense of the Disclosing Party, an order or other assurance that confidential treatment will be accorded to such portion of the Information required
to be disclosed.
6.2 Covenant Not to Compete; Covenant Not to Solicit. During the period commencing on the Closing Date and
continuing until the third anniversary of the Closing Date (the Noncompetition Period), Parent shall not (and shall cause each other Noncompetition Party (as defined in this Section 6.2) not to) engage in
the operation of a direct to consumer agency for the sale of health insurance and Medicare plans to consumers (a Competitive Business); provided, however, that the foregoing covenants shall not prohibit, or be
interpreted as prohibiting, any Noncompetition Party from:
(a) continuing anywhere in the world in any type of business conducted by any
Noncompetition Party on the date hereof (including any extensions or additions to such business), which is not part of the Business;
(b)
entering into any relationship with a person or entity not owned, managed, operated or controlled by any Noncompetition Party if the primary purpose of such relationship is unrelated to a Competitive Business;
(c) making equity investments in publicly owned companies which conduct a Competitive Business, provided such investments do not confer
control of any such Competitive Business upon any Noncompetition Party;
(d) acquiring any person or entity which conducts a Competitive
Business if either:
(i) in the calendar year prior to such acquisition, the consolidated revenues of such person or entity from its
Competitive Business do not constitute more than 50% of the total consolidated revenues of such person or entity; or
(ii) the applicable
Noncompetition Party promptly commences and thereafter pursues until the earlier to occur of the expiration of the Noncompetition Period and 12 months after such acquisition, the transfer of that portion of the business of such person or entity
as constitutes a Competitive Business upon terms and conditions and at a price determined by the applicable Noncompetition Party in its sole discretion;
(e) being acquired by any person or entity which conducts a Competitive Business;
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(f) engaging in the activities, services or businesses set forth on Schedule 6.2(f); or
(g) performing its obligations under this Agreement or otherwise taking actions in connection with the transactions contemplated hereby.
Without limiting the applicability of the foregoing, Parent agrees that for one (1) year after the Closing Date, neither Parent nor any
other Noncompetition Party will solicit or induce any person employed with respect to the Business during the 120-day period prior to the Closing Date (each a Covered Individual) to
terminate his or her relationship with Buyer or the Acquired Company, as applicable; provided, however, that the foregoing shall not prohibit Parent or any other Noncompetition Party from (A) placing general advertisements for
employees not directed at the Business and hiring or engaging any person in response to any such general advertisement, (B) engaging any recruiting firm or similar organization to identify or solicit persons for employment on its behalf, or
soliciting, hiring or engaging any person who is identified by any such recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target the Business or (C) soliciting or hiring any such Covered
Individual whose employment with Buyer or the Acquired Company, as applicable, has been terminated for at least 180 days. Buyer agrees that for one (1) year after the Closing Date, Buyer will not solicit or induce any person who (i) was
not a Covered Individual on the Closing Date and (ii) is at or above the Director level to terminate his or her relationship with Parent or any of its subsidiaries; provided, however, that the foregoing shall not prohibit Buyer from
(X) placing general advertisements for employees not directed at Parent and its subsidiaries and hiring or engaging any person in response to any such general advertisement, (Y) engaging any recruiting firm or similar organization to
identify or solicit persons for employment on its behalf, or soliciting, hiring or engaging any person who is identified by any such recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target Parent
and its subsidiaries, or (Z) soliciting or hiring any such employee or independent contractor whose employment with Parent or its subsidiaries has been terminated for at least 180 days.
For purposes of this Agreement, Noncompetition Party means Parent and any direct or indirect majority-owned subsidiaries of
Parent while (but only while) such entity is a direct or indirect majority-owned subsidiary of Parent.
6.3 Disclosure Generally.
Any information furnished in a particular section of the Disclosure Schedule shall be deemed to modify (or, as applicable, to constitute a disclosure for purposes of) (a) Parents representations and warranties that are contained in the
corresponding section of Article II of this Agreement and (b) any other representations and warranties of Parent that are contained in Article II of this Agreement if the relevance of such information to such representations and warranties is
reasonably apparent on its face. The inclusion of any information in the Disclosure Schedule shall not be deemed to be an admission or acknowledgment, in and of itself, that such information is required by the terms hereof to be disclosed, is
material to the Business, has resulted in or would result in a Business Material Adverse Effect, or is outside the Ordinary Course of Business. For purposes of this Agreement, the terms to Parents knowledge, known by
Parent or other words of similar meaning shall mean the actual knowledge on the date hereof of the persons listed on Schedule 6.3(a) to this
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Agreement, after reasonable inquiry with respect to such matter of the person with primary responsibility for such matter, and shall not refer to the knowledge of any other person or entity. For
purposes of this Agreement, the terms to Buyers knowledge, known by Buyer or other words of similar meaning shall mean the actual knowledge on the date hereof of the persons listed on Schedule 6.3(b) to this Agreement,
after reasonable inquiry with respect to such matter of the person with primary responsibility for such matter, and shall not refer to the knowledge of any other person or entity.
6.4 Resignations. Effective upon the Closing, Parent shall cause all of its own employees, directors and attorneys and all of its
subsidiaries employees, directors and attorneys to resign from the board of directors of the Acquired Company and from all positions as executive officers of the Acquired Company unless otherwise agreed by the Parties (which, for the avoidance
of doubt, shall not constitute a resignation of employment).
6.5 Employee Benefit Plan Matters.
(a) Effective immediately prior to the Closing, Parent and the Acquired Company shall execute any documents necessary to effectuate the
removal of the Acquired Company as a participating employer in the 401(k) plan maintained by Parent or one of its Affiliates (the Parent 401(k) Plan), and the Acquired Company shall not make any further contributions to the Parent
401(k) Plan with respect to any Acquired Company employees, other than (i) contributions made on behalf of such participants that are based on compensation earned before the Closing and (ii) any corrective contributions that relate to the
period ending on the day before the Closing.
(b) Effective immediately prior to the Closing, (i) Parent and the Acquired Company
shall execute any documents necessary to effectuate the removal of the Acquired Company as a participating employer in the respective health and welfare plans maintained by Parent or one of its Affiliates (the Parent Health and Welfare
Plans) and (ii) any Acquired Company employees (and their eligible dependents and beneficiaries) who are enrolled in any of the respective Parent Health and Welfare Plans shall cease to be eligible for continued coverage under such
plans, except to the extent such Acquired Company employees did not receive or accept an offer of employment with Buyer or is not otherwise transferring with the Business. For the avoidance of doubt, any claims incurred prior to the Closing under a
Parent Health and Welfare Plan by an Acquired Company employee (or his or her dependent or beneficiary) shall be submitted and subject to the terms and conditions of the applicable Parent Health and Welfare Plan.
(c) Parent shall be responsible for providing COBRA continuation coverage to all (i) employees with respect to the Business (and their
eligible dependents) who experience a COBRA qualifying event on or prior to the Closing and timely elect COBRA coverage and (ii) employees and former employees with respect to the Business (and their eligible dependents) who experience a COBRA
qualifying event on or prior to the Closing, including any M&A qualified beneficiary (as defined in Treasury Regulation Section 54.4980-9,
Q&A-4(a)), and who timely elect or elected COBRA continuation coverage.
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6.6 Transitional Period for Corporate Names and Related Matters.
(a) Subject to the following sentence, Buyer shall cease all use of each Retained Mark (as defined below) upon the Closing. Buyer shall cause
the Acquired Company to change its corporate or company name to eliminate use of the Retained Marks therefrom as promptly as possible (and in any event within five (5) Business Days) after Buyer obtains all necessary approvals for such name
change from any applicable Governmental Entities, contractual counterparties and other relevant third parties, provided that in no event shall the corporate or company name of the Acquired Company include a Retained Mark after the first
anniversary of the date hereof. Buyer shall use commercially reasonable efforts to obtain all such approvals as promptly as possible after the Closing. For purposes of this Agreement, Retained Mark means each trademark, trade name
or logo (or any contraction, abbreviation or simulation thereof) of Parent or any of its Affiliates, other than those owned by the Acquired Company. For the avoidance of doubt (and without limiting the foregoing sentence), Retained
Mark shall include each trademark, trade name or logo (or any contraction, abbreviation or simulation thereof) that includes the word or words EverQuote, Eversurance or Crosspointe.
(b) The licenses to use the Retained Marks set forth in this Section 6.6(a) shall not prohibit or limit Parent or
any of its subsidiaries from using the Retained Marks (or any similar name or logo) during the term of the license or thereafter in any manner, except that, notwithstanding the foregoing, Parent and its subsidiaries shall not use the names
Eversurance and Crosspointe during the Noncompetition Period in connection with performing any services prohibited by Section 6.2.
6.7 Transition Services.
(a) Services. During the Transition Support Period (as defined in Section 6.7(e)) and subject to the terms
set forth in this Section 6.7, Parent (or an Affiliate of Parent designated by Parent for this purpose) shall provide, or cause such designated Affiliate to provide, to the Business the services set forth in Schedule 6.8
(individually, a Service and collectively, the Services) for the respective periods contemplated in Schedule 6.8, unless any such Service is earlier terminated by Buyer in accordance with
Section 6.7(f).
(b) Level of Services. The Services shall be provided to the Business using
Parents and its Affiliates existing assets and personnel (and Parent shall not be obligated to perform any Service that would require it or its Affiliates to acquire or use any other assets, equipment or software or employ, whether as
employees or contractors, additional personnel) and shall be substantially similar in scope, quality and nature to those provided to, or provided on behalf of, the Business during the six months prior to the date hereof. Buyer agrees to use (and to
cause the Acquired Company to use) the Services solely to the extent necessary to conduct the Business in the Ordinary Course of Business, consistent with past practice, and for substantially the same purposes and in substantially the same manner as
Parent and the Acquired Company had used such Service to conduct the Business during the six months prior to the date hereof. Buyer shall (and shall cause the Acquired Company to) comply with any terms of use imposed on Parent or its Affiliates for
the use of any third party software made available through the Services.
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(c) Third Party Services. Parent shall have the right to engage the services of
independent contractors, subcontractors, vendors or other third party providers to deliver or assist Parent and its Affiliates in the delivery of Services contemplated by this Section 6.7.
(d) Services Pricing. The Services shall be provided at no cost to Buyer for 60 days following the Closing. Thereafter, Buyer shall be
charged the third-party costs and expenses incurred by Parent (or any of its Affiliates) on behalf of the Business in providing the Services. If Parent incurs costs or expenses on behalf of the Business as well as other businesses operated by Parent
or its Affiliates in connection with the provision of such Services, Parent shall allocate any such costs or expenses in good faith between the relevant businesses exercising reasonable judgment. The costs and expense payable by Buyer pursuant to
this Section 6.7(d) shall be exclusive of any sales, use, excise, VAT or similar Taxes now or hereinafter imposed on the performance or delivery of Services or the costs incurred in providing such Services. Any such Taxes
imposed on the performance or delivery of Services or costs incurred in providing such Services shall be the responsibility of Buyer. Buyer shall pay all amounts due under this Section 6.7(d) no later than 30 days following
receipt of an invoice.
(e) Unless earlier terminated in accordance with Section 6.7(f), this
Section 6.7 shall begin in effect from the date hereof until the earlier to occur of (i) 180 days after the date hereof or (ii) the expiration of the last of the Services, as described in Schedule 6.7 (the
Transition Support Period). Buyer understands that the Services provided hereunder are transitional in nature and are provided solely for the purpose of accommodating the transfer of the Business to Buyer. Buyer understands and
agrees that neither Parent nor any of its Affiliates is in the business of providing the Services to third parties and that Parent shall be not obligated to continue (or to cause its Affiliates or any third party to continue), (a) any Service beyond
the term of such Service (as set forth in Schedule 6.7) or (b) the Transition Support Period. During the Transition Support Period, Buyer agrees to work diligently and to use its commercially reasonable efforts to enable a transition to its own
internal organization (or employ directly the services of contractors, subcontractors, vendors or other third party providers) for the provision of the Services and to reduce or eliminate its and its Affiliates dependency on Parent or any of
its Affiliates or any of its or their respective third party providers provision of the Services as soon as is reasonably practicable.
(f) Early Termination. Any particular Service may be terminated prior to the expiration of such Service (as set forth in
Section 6.7), by Buyer, provided that Buyer complies with the Early Termination Notice Period set forth in Schedule 6.7, after which notice period Parent shall cease (or cause its designated Affiliate to
cease) providing such Service. Buyer shall also be responsible to Parent for any non-refundable or non-cancellable costs or expenses incurred prior to such early
termination by or on behalf of Parent (or any of its Affiliates) in connection with the provision or anticipated provision of such Service.
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(g) Relationship of the Parties. The parties shall for all purposes of this
Section 6.7 be considered independent contractors with respect to each other, and neither shall be considered an employee, employer, agent, principal, partner or joint venturer of the other.
6.8 Release.
Effective
as of the Closing, in consideration of the mutual covenants and agreements contained herein, including the consideration to be received by Parent, Parent hereby irrevocably releases and forever discharges the Acquired Company and its past and
present directors, managers, officers, members, partners, agents, employees and their respective successors, heirs, assigns, executors and administrators of or to the foregoing (collectively, the Acquired Company Released
Persons), of and from any and all manner or causes of action and actions, claims, suits, debts, sums of money, setoffs, counterclaims, damages and judgments whatsoever, at law or in equity, which Parent has ever had, now has or which
Parent hereafter can, will or may have, against the Acquired Company Released Persons, whether known or unknown, matured or unmatured, fixed or contingent, for, upon or by reason of any matter relating to the Acquired Company and arising at any time
at or prior to the Closing, and the Acquired Company Released Persons will not have any Liability with respect thereto. Notwithstanding anything to the contrary herein, Parent does not waive, release or discharge any Acquired Company Released Person
from any amounts due, obligations owed or other covenant or agreement under the terms and provisions of this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 Press Releases and Announcements. Neither Party shall issue (and each Party shall cause its Affiliates not to issue) any press
release or public disclosure relating to the subject matter of this Agreement without the prior written approval of the other Party; provided, however, that (a) either Party may make any public disclosure it believes in good faith is required
by law, regulation or stock exchange rule (in which case the disclosing Party shall, if permitted by applicable law, advise the other Party and the other Party shall, if practicable, have the right to review such public disclosure prior to its
publication) and (b) no such prior approval shall be required in connection with any press release or public disclosure by a Party or any subsidiary of a Party if the contents of such press release or public disclosure that relate to the
transactions contemplated by this Agreement are limited to information that previously has been publicly disclosed in accordance with the terms of this Agreement.
7.2 No Third Party Beneficiaries. Except as provided by applicable law or otherwise expressly provided herein, this Agreement shall not
confer any rights or remedies upon any person or entity other than the Parties and their respective successors and permitted assigns and, to the extent specified herein, their respective Affiliates.
7.3 Action to be Taken by Affiliates. The Parties shall cause their respective Affiliates to comply with all of the obligations
specified in this Agreement to be performed by such Affiliates. Prior to the Closing, the Acquired Company will be deemed, for purposes of this Agreement, to be both an Affiliate and a subsidiary of Parent and not of Buyer. From and after the
Closing, the Acquired Company will be deemed, for purposes of this Agreement, to be both an Affiliate and a subsidiary of Buyer and not of Parent.
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7.4 Entire Agreement. This Agreement (including the Schedules and Exhibits hereto;
the EverQuote Mutual Nondisclosure Agreement, dated as of June 14, 2023, by and between Parent and AdirVentures LLC; and the documents and instruments referred to herein) constitutes the entire agreement between the Parties and supersedes any
prior statements, understandings, agreements or representations by or between the Parties, whether written or oral, with respect to the subject matter hereof, and the Parties specifically disclaim reliance on any such prior statements,
understandings, agreements or representations to the extent not expressly embodied in this Agreement.
7.5 Succession and
Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns. Neither Party may assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other Party, provided, however, that either Party may, in its sole discretion, assign and delegate any of its rights, interests and obligations under this Agreement, in
whole or in part, to any of its Affiliates, and Buyer may, in its sole discretion, assign and delegate any of its rights, interests and obligations under this Agreement, in whole or in part, (a) to any of its lenders as collateral security or
(b) in connection with a merger or consolidation involving Buyer, or in connection with a sale of substantially all of the equity or assets of Buyer or other disposition of substantially all of the Acquired Companies business, but no such
assignment or delegation will relieve such Party of its obligations under this Agreement if such assignee does not perform such obligations.
7.6 Counterparts and Signature. This Agreement may be executed in two counterparts (including by facsimile or by an electronic scan or
other electronic signature (including DocuSign) delivered by electronic mail), each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been
signed by each Party and delivered to the other Party, it being understood that each Party need not sign the same counterpart. This Agreement may be executed and delivered by facsimile or by an electronic scan delivered by electronic mail.
7.7 Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.8 Notices. All notices, requests, demands, claims and other communications
hereunder shall be in writing. Any notice, request, demand, claim or other communication hereunder shall be deemed duly delivered (a) one (1) Business Day after it is sent by a reputable courier service guaranteeing delivery within one
(1) Business Day, or (b) when delivered by email, which email must state that it is being delivered pursuant to this Section 7.8 and which notice will not be effective unless either (1) a duplicate copy of
such email notice is promptly given by one of the other methods described in this Section 7.8 or (2) the receiving party delivers a written confirmation of receipt for such notice either by email (excluding out
of office or similar automated replies) or any other method described in this Section 7.8 or (c) on the date of delivery if delivered personally, in each case to the intended recipient as set forth below:
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|
|
|
If to Buyer:
MyPlanAdvocate Insurance Solutions, Inc. 460 West 50th North, Suite 500 Salt Lake City, UT 84101
Attention: Kyal Moody Email:
kyal.moody@myplanadvocate.com |
|
Copy (which shall not constitute notice) to:
Fredrikson & Byron, P.A. 60 South Sixth Street, Suite
1500 Minneapolis, MN 55402 Attention: Jonathan Vessey; Soobin
Kim Email: jvessey@fredlaw.com; skim@fredlaw.com |
|
|
If to Parent:
EverQuote, Inc. 210 Broadway
Cambridge, Massachusetts 02139
Attention: Julia Brncic Email:
julia.brncic@everquote.com |
|
Copy (which shall not constitute notice) to:
Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street
Boston, MA 02109 Telecopy: (617)
526-5000 Attention: Andrew R. Bonnes, Esq.
Email: andrew.bonnes@wilmerhale.com |
Either Party may give any notice, request, demand, claim, or other communication hereunder using any other
means (including personal delivery, expedited courier, messenger service, ordinary mail, or electronic mail), but no such notice, request, demand, claim or other communication shall be deemed to have been duly given unless and until it actually is
received by the Party for whom it is intended. Either Party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Parties notice in the manner herein set forth.
7.9 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware
without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware.
7.10 Amendments and Waivers. The Parties may mutually amend or waive any provision of this Agreement at any time. No amendment of any
provision of this Agreement shall be valid unless the same shall be in writing and signed by each of the Parties. No waiver of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the Party against whom
the waiver is to be effective. No waiver by either Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall 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 by virtue of any prior or subsequent such occurrence. No course of dealing between or among any persons having any interest in this Agreement shall be deemed effective
to modify, amend or waive any part of this Agreement or any rights or obligations of any person under or by reason of this Agreement. No failure or delay on the part of either Party in the exercise of any right hereunder will impair such right or be
construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right.
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7.11 Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any
other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Parties agree that the body making the determination of invalidity or unenforceability shall
have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
7.12 Specific Performance. The Parties agree that if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and that the Parties shall be entitled to an injunction, specific performance or
other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, in addition to any other remedy at law or in equity. The Parties further agree not to assert
that a remedy of injunctive relief, specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, nor to assert that a remedy of monetary damages would provide an adequate remedy. Each of
the Parties hereby waives (a) any defenses in any action for specific performance, including the defense that a remedy at law would be adequate and (b) any requirement under any applicable law to post a bond or other security as a
prerequisite to obtaining equitable relief.
7.13 Submission to Jurisdiction. Each Party (a) submits to the exclusive
jurisdiction of the Chancery Court of the State of Delaware or, if that court does not have jurisdiction, a federal court sitting in the State of Delaware, in any action or proceeding arising out of or relating to this Agreement, (b) agrees
that all claims in respect of such action or proceeding may be heard and determined only in any such court, and (c) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each Party waives
any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of the other Party with respect thereto. Either Party may make service on the other
Party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 7.8. Nothing in this Section 7.13,
however, shall affect the right of either Party to serve legal process in any other manner permitted by law.
7.14 Bulk Transfer
Laws. The Parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar laws of any jurisdiction in connection with the transactions contemplated by this Agreement.
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7.15 Construction; Certain Definitions. Except where expressly stated otherwise in
this Agreement, the following rules of interpretation apply to this Agreement: (i) either and or are not exclusive and include, includes and including are not limiting; (ii)
hereof, hereto, hereby, herein and hereunder and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this
Agreement; (iii) date of this Agreement or date hereof refers to the date set forth in the initial caption of this Agreement; (iv) extent in the phrase to the extent means the degree to which a subject
or other thing extends, and such phrase does not mean simply if; (v) the table of contents included herein is included for convenience only and shall not affect in any way the meaning or interpretation of this Agreement or any provision
hereof; (vi) definitions contained in this Agreement are applicable to the singular as well as the plural, and to the masculine as well as to the feminine and neuter, forms of such terms; (vii) references to a contract, agreement or other
instrument, including this Agreement, mean such contract, agreement or other instrument as amended or otherwise supplemented or modified from time to time; (viii) references to a person or entity are also to its permitted successors and
assigns; (ix) unless stated otherwise herein, references to an Article, Section, Exhibit or Schedule refer to an Article or Section of, or an Exhibit or Schedule to, this Agreement;
(x) references to $ or otherwise to dollar amounts refer to the lawful currency of the United States of America; (xi) references to a federal, state, local or foreign statute or law include any amendment thereof, any successor
thereto and any rules, regulations and delegated legislation issued thereunder; (xii) shall and will mean must, and shall and will have equal force and effect and express an obligation; (xiii) writing,
written and comparable terms refer to printing, typing and other means of reproducing in visible form; and (xiv) references to accounting terms used and not otherwise defined herein have the meaning assigned to them under United
States generally accepted accounting principles in effect from time to time. When reference is made in this Agreement to information that has been made available to Buyer, that shall include information that was contained in
Parents electronic data room no later than 1:00 p.m., Eastern Time, on July 31, 2023. The language used in this Agreement shall be deemed to be the language chosen (with the benefit of representation by legal counsel) by the Parties to
express their mutual intent, and no rule of strict construction shall be applied against either Party. All terms defined in this Agreement shall have such defined meanings when used in any certificate or other document made or delivered pursuant
hereto unless otherwise defined herein. No summary of this Agreement prepared by either Party shall affect the meaning or interpretation of this Agreement. If any date on which a Party is required to make a payment or a delivery pursuant to the
terms hereof is not a Business Day, then such Party shall make such payment or delivery on the next succeeding Business Day. Each day shall be deemed to end at 11:59 p.m., New York time, on the applicable day. Time shall be of the essence in this
Agreement.
7.16 Waiver of Jury Trial. To the extent permitted by applicable law, each Party hereby irrevocably waives all rights
to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the transactions contemplated hereby or the actions of either Party in the negotiation,
administration, performance and enforcement of this Agreement.
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7.17 Incorporation of Exhibits and Schedules. The Exhibits, Schedules and Disclosure
Schedule identified in this Agreement are incorporated herein by reference and made a part hereof.
[Remainder of page intentionally
left blank]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
above written.
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PARENT: |
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EVERQUOTE, INC. |
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/s/ Joseph Sanborn |
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Joseph Sanborn |
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Chief Financial Officer |
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BUYER: |
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MYPLANADVOCATE INSURANCE SOLUTIONS INC. |
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By: |
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/s/ Kyal Moody |
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Kyal Moody |
Print Title: |
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President & Chief Executive Officer |
[Signature Page to Purchase and Sale Agreement]
Exhibit 99.1
LOAN AND SECURITY MODIFICATION AGREEMENT
This Loan and Security Modification Agreement is entered into as of August 1, 2023, by and among WESTERN
ALLIANCE BANK, an Arizona corporation (Bank), and EVERQUOTE, INC., a Delaware corporation (Borrower).
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to,
among other documents, an Amended and Restated Loan and Security Agreement, dated August 7, 2020, by and between Borrower and Bank, as may be amended from time to time (the Loan and Security Agreement). Capitalized terms used
without definition herein shall have the meanings assigned to them in the Loan and Security Agreement.
Hereinafter, all indebtedness owing by Borrower to
Bank shall be referred to as the Indebtedness and the Loan and Security Agreement and any and all other documents executed by Borrower in favor of Bank shall be referred to as the Existing Documents.
2. DESCRIPTION OF CHANGE IN TERMS.
A.
CONSENT. Notwithstanding any provisions of the Loan and Security Agreement, including Sections 7.1 and 7.8 thereof, to the contrary, Bank hereby consents to (i) Borrower selling all of the outstanding membership interests (the
Equity Interests) in Eversurance LLC, an Indiana limited liability company (Eversurance), pursuant to the terms of that certain Purchase and Sale Agreement dated as of August 1, 2023 (the Purchase Agreement),
by and between Borrower and MyPlanAdvocate Insurance Solutions Inc., a Delaware corporation (Buyer) and (ii) Borrower and Eversurance effectuating the Pre-Closing Transactions (as defined in
the Purchase Agreement).
B. RELEASE OF EVERSURANCE. All Liens of any kind, nature or description, whenever and however arising, in
favor of Bank under each of the Existing Documents with respect to (i) the Equity Interests, and (ii) all of Borrowers right, title and interest in and to the Contracts (as defined in that certain Assignment and Assumption of
Contracts dated as of August 1, 2023 (the Contract Assignment) by and between Borrower, as assignor, and Eversurance, as assignee) are hereby released and terminated and of no further force and effect and such releases are automatic and
do not require any further action by any person or entity.
C. FILINGS AND OTHER ACTIONS. If required by Buyer, Bank shall file the
UCC-3 partial release financing statement in the form attached hereto as Annex A relating to the Equity Interests. Bank agrees to promptly execute and deliver, at Borrowers expense, any other
further documents reasonably requested by Borrower or Buyer to further confirm and evidence the release in clause (B) above.
3. CONSISTENT
CHANGES. The Existing Documents are each hereby amended wherever necessary to reflect the changes described above.
4. NO DEFENSES OF BORROWER/GENERAL RELEASE. Borrower agrees that, as of this date, they have no
defenses against the obligations to pay any amounts under the Indebtedness. Borrower (Releasing Party) acknowledges that Bank would not enter into this Loan and Security Modification Agreement without Releasing Partys assurance
that it has no claims against Bank or any of Banks officers, directors, employees or agents. Except for the obligations arising hereafter under this Loan and Security Modification Agreement, the Loan and Security Agreement and the other
Existing Documents, each Releasing Party releases Bank, and each of Banks officers, directors and employees from any known or unknown claims that Releasing Party now has against Bank of any nature, including any claims that Releasing Party,
its successors, counsel, and advisors may in the future discover they would have now had if they had known facts not now known to them, whether founded in contract, in tort or pursuant to any other theory of liability, including but not limited to
any claims arising out of or related to the Loan and Security Agreement or the transactions contemplated thereby. Releasing Party waives the provisions of California Civil Code section 1542, which states:
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, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
The provisions, waivers and releases set forth in this section are binding upon each Releasing Party and its shareholders, agents, employees, assigns and
successors in interest. The provisions, waivers and releases of this section shall inure to the benefit of Bank and its agents, employees, officers, directors, assigns and successors in interest. The provisions of this section shall survive payment
in full of the Obligations, full performance of all the terms of this Loan and Security Modification Agreement and the other Existing Documents, and/or Banks actions to exercise any remedy available under the Existing Documents or otherwise.
5. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the existing Indebtedness and providing the consents and releases set
forth herein, Bank is relying upon Borrowers representations, warranties, and agreements, as set forth in the Existing Documents. Borrower represents and warrants that the representations and warranties contained in the Loan and Security
Agreement are true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of the date of this Loan and Security Modification
Agreement (except for representations and warranties expressly referring to a specific date shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect
standard, in all respects) as of such date), and that no Event of Default has occurred and is continuing. Except as expressly modified pursuant to this Loan and Security Modification Agreement, the terms of the Existing Documents remain unchanged
and in full force and effect. Banks agreement to modifications to the existing Indebtedness pursuant to this Loan and Security Modification Agreement and the consents and releases set forth herein in no way shall obligate Bank to make any
future modifications to the Indebtedness. Nothing in this Loan and Security Modification Agreement shall constitute a satisfaction of the Indebtedness. It is the intention of Bank and Borrower to retain as liable parties all makers and endorsers of
Existing Documents, unless the party is expressly released by Bank in writing. No maker, endorser, or guarantor will be released by virtue of this Loan and Security Modification Agreement. The terms of this paragraph apply not only to this Loan and
Security Modification Agreement, but also to any subsequent loan and security modification agreements.
2
6. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; REFERENCE PROVISION. This Loan and Security
Modification Agreement constitutes a Loan Document as defined and set forth in the Loan and Security Agreement, and is subject to Sections 11 and 12 of the Loan and Security Agreement, which are incorporated by reference herein.
7. CONDITIONS PRECEDENT. As a condition to the effectiveness of this Loan and Security Modification Agreement, Bank shall have received, in form and
substance satisfactory to Bank, the following:
(a) payment of all Bank Expenses incurred through the date hereof;
(b) receipt of fully executed and effective copies of the Purchase Agreement and the Contract Assignment; and
(c) such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate.
8. NOTICE OF FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES, (B) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (C) THIS WRITTEN AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES.
9. COUNTERSIGNATURE. This Loan and Security Modification Agreement shall become effective only when executed by
Bank and Borrower.
[Signature Page to Follow]
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BORROWER: |
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BANK: |
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EVERQUOTE, INC., a Delaware corporation |
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WESTERN ALLIANCE BANK, an Arizona corporation |
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By: |
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/s/ Jayme Mendal |
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By: |
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/s/ Darren Gastrock |
Name: |
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Jayme Mendal |
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Name: |
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Darren Gastrock |
Title: |
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Chief Executive Officer |
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Title: |
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Director |
Exhibit 99.2
LOAN AND SECURITY MODIFICATION AGREEMENT
This Loan and Security Modification Agreement is entered into as of August 7, 2023, by and among WESTERN
ALLIANCE BANK, an Arizona corporation (Bank), and EVERQUOTE, INC., a Delaware corporation (Borrower).
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to,
among other documents, an Amended and Restated Loan and Security Agreement, dated August 7, 2020, by and between Borrower and Bank, as may be amended from time to time (the Loan and Security Agreement). Capitalized terms used
without definition herein shall have the meanings assigned to them in the Loan and Security Agreement.
Hereinafter, all indebtedness owing by Borrower to
Bank shall be referred to as the Indebtedness and the Loan and Security Agreement and any and all other documents executed by Borrower in favor of Bank shall be referred to as the Existing Documents.
2. MODIFICATIONS TO LOAN AND SECURITY AGREEMENT.
A. The following definitions in Section 1.1 of the Loan and Security Agreement are added or amended and restated in their entirety to
read as follows:
Adjusted Quick Ratio is a ratio of (a) Quick Assets, to (b) Current Liabilities
minus the current portion of deferred revenue, all determined in accordance with GAAP.
Credit Extension means
each Advance or any other extension of credit by Bank for the benefit of Borrower hereunder.
Current
Liabilities means, as of any applicable date, all amounts that should, in accordance with GAAP, be included as current liabilities on the consolidated balance sheet of Borrower and its Subsidiaries, as at such date, plus, to the extent not
already included therein, all outstanding Credit Extensions made under this Agreement.
Permitted Investment means:
(a) Investments existing on the Closing Date disclosed in the Schedule;
(b) (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or any State
thereof maturing within one (1) year from the date of acquisition thereof, (ii) commercial paper maturing no more than one (1) year from the date of creation thereof and currently having rating of at least A-2 or P-2 from either Standard & Poors Corporation or Moodys Investors Service, (iii) certificates of deposit maturing no more than one
(1) year from the date of investment therein issued by Bank, and (iv) Banks money market accounts;
(c) Investments
(i) in an aggregate amount not to exceed $100,000 at any time, consisting of travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees, officers or
directors relating to the purchase of equity securities of Borrower or its Subsidiaries and consistent with past practices;
(d)
Investments (i) by Borrower in Subsidiaries not to exceed Five Million Five Hundred Thousand Dollars ($5,500,000) in the aggregate in any fiscal year, and (ii) by Subsidiaries in Borrower;
(e) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and in
settlement of delinquent obligations of, and other disputes with, customers or suppliers, arising in the ordinary course of business; and
(f) Investments consisting of notes receivable of, or prepaid royalties and other credit
extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business; provided that this paragraph (f) shall not apply to Investments of Borrower in any Subsidiary.
Prime Rate means the greater of seven percent (7.00%) or the Prime Rate published in the Money Rates section of
the Western Edition of The Wall Street Journal, or such other rate of interest publicly announced from time to time by Bank as its Prime Rate. Any change in the Prime Rate shall take effect at the opening of business on the day specified in the
public announcement of a change in Prime Rate.
Quick Assets means, at any date as of which the amount thereof
shall be determined, the unrestricted cash and cash-equivalents maintained by Borrower at Bank plus net accounts receivable reflected on Borrowers then current balance sheet of Borrower determined in accordance with GAAP.
Revolving Line means a credit extension of up to Twenty-Five Million Dollars ($25,000,000).
Sweep Trigger means any time Borrowers Adjusted Quick Ratio is less than 1.30 to 1.00.
Sweep Trigger Termination means, after the occurrence of each Sweep Trigger, the first date on which
Borrowers Adjusted Quick Ratio is equal to or greater than 1.30 to 1.00 for two consecutive months following such applicable Sweep Trigger.
B. The following definitions in Section 1.1 of the Loan and Security Agreement are deleted in their entirety: Term Advance,
Term Loan Amount, Term Loan Draw Period, and Term Loan Maturity Date.
C. Section 2.3(a) (Interest
Rates) of the Loan and Security Agreement is hereby amended and restated in its entirety to read as follows:
(a) Interest
Rates. Except as set forth in Section 2.3(b), the Advances under the Revolving Facility shall bear interest, on the outstanding Daily Balance thereof, at a floating rate equal to the Prime Rate.
D. Section 2.5(a) (Facility Fee) of the Loan and Security Agreement is amended and restated in its entirety to read as follows:
(a) Facility Fee. On August 7, 2023 and on each anniversary thereof, a facility fee equal to $37,500 in respect of the
Revolving Line, each of which shall be deemed fully earned and nonrefundable as of August 7, 2023; provided, that, if all of the Obligations (other than inchoate indemnity obligations, and any other obligations which, by their terms, are to
survive the termination of this Agreement) are paid in full and this Agreement is terminated prior to an anniversary payment date then no such anniversary payments occurring after the termination date shall be due or payable;
E. Section 6.3 (Financial Statements, Reports, Certificates) of the Loan and Security Agreement is amended and restated in its entirety to
read as follows:
6.3 Financial Statements, Reports, Certificates. Borrower shall deliver the following to Bank: (a) as
soon as available, but in any event within fifteen (15) days after the last day of each month whether or not any Obligations are outstanding and within three (3) days prior to any advance request when any Sweep Trigger is in effect, a
Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto, together with (A) aged listings of accounts receivable and accounts payable by invoice date, as of the last day of such month with
respect to monthly reporting, and as of three (3) days prior to any advance when any Sweep Trigger is in effect, (B) sales or billing journal and cash receipts report by invoice date, as of the last day of such month with respect to
monthly reporting, and as of three (3) days prior to any advance when any Sweep Trigger is in effect, and (C) copies of current monthly bank statements for each of Borrowers accounts, as of the last day of such month with respect to
monthly reporting, and as of three (3) days
prior to any advance when any Sweep Trigger is in effect; (b) as soon as available, but in any event within thirty (30) days after the last day of each month while any Obligations are
outstanding or when any Sweep Trigger is in effect and within thirty (30) days after the last day of each quarter when no Obligations are outstanding (provided that prior to any Credit Extension Borrowers shall deliver to Bank any prior monthly
deliverables provided for under this clause (b) for the greater of the preceding six (6) months or for all prior months to date of the most recent audited consolidated financial statements of Borrower provided to Bank prior to such Credit
Extension, in each case not previously provided on a monthly basis that would have been due had there been Obligations outstanding), a company prepared consolidated balance sheet, income statement, and cash flow statement covering Borrowers
consolidated operations during such period, prepared in accordance with GAAP, consistently applied, subject only to normal year-end audit adjustments and the absence of footnotes, in a form reasonably
acceptable to Bank and certified by a Responsible Officer, together with a Compliance Certificate signed by a Responsible Officer in substantially the form of Exhibit D hereto; (c) as soon as available, but in any event within one hundred
eighty (180) days after the end of Borrowers fiscal years 2020 and beyond, audited consolidated financial statements of Borrower prepared in accordance with GAAP, consistently applied, together with an unqualified opinion on such
financial statements of PriceWaterhouseCoopers or another independent certified public accounting firm reasonably acceptable to Bank; (d) as soon as available, but in any event no later than the earlier to occur of thirty (30) days
following the beginning of each fiscal year or the date of approval by Borrowers board of directors, an annual operating budget and financial projections (including income statements, balance sheets and cash flow statements) for such fiscal
year, presented in a monthly format, approved by Borrowers board of directors, and in a form and substance reasonably acceptable to Bank (each, a Financial Plan); (e) copies of all statements, reports and notices sent or made
available generally by Borrower to its security holders or to any holders of Subordinated Debt and, if applicable, all reports on Forms 10-K and 10-Q filed with the
Securities and Exchange Commission; (f) promptly upon receipt of notice thereof, a report of any legal actions pending or threatened in writing against Borrower or any Subsidiary that could reasonably be expected to result in damages or costs
to Borrower or any Subsidiary of Two Hundred Thousand Dollars ($200,000) or more; and (g) such budgets, sales projections, operating plans or other financial information as Bank may reasonably request from time to time.
F. Section 6.8(a) (Accounts) of the Loan and Security Agreement is amended and restated in its entirety to read as follows:
(a) Borrower shall (A) maintain and shall cause each of its Subsidiaries to maintain its primary domestic depository, operating, and
investment accounts with Bank (including accounts maintained with Bank that are also subject to Banks ICS®, the IntraFi Cash
ServiceSM of IntraFi Network LLC, service) and (B) endeavor to utilize and shall cause each of its Subsidiaries to endeavor to utilize Banks International Banking Division for any
international banking services required by Borrower, including, but not limited to, foreign currency wires, hedges, swaps, foreign exchange contracts, and letters of credit. For each account that Borrower maintains outside of Bank, Borrower shall
cause the applicable bank or financial institution at or with which any such account is maintained to execute and deliver an account control agreement or other appropriate instrument in form and substance reasonably satisfactory to Bank.
Notwithstanding, and in addition to, the foregoing, (i) at all times that any Advances are outstanding hereunder, Borrower shall maintain and shall cause each of its Subsidiaries to maintain 100% of its, and their, cash and cash equivalents in
Borrowers and its Subsidiaries accounts with Bank, and (ii) at all times that no Advances are outstanding hereunder, Borrower shall maintain and shall cause each of its Subsidiaries to maintain not less than 80% of its, and their,
cash and cash equivalents in Borrowers and its Subsidiaries accounts with Bank; provided, that, the foregoing limitations in clauses (i) and (ii) shall not apply to any cash or cash equivalents of Borrowers Irish Subsidiary
maintained in any account at or with any foreign bank or foreign financial institution other than Bank, for the purpose of paying foreign payroll obligations, and solely to the extent that all such other accounts (x) only maintain funds therein
for a period not to exceed ten (10) days in any month, and (y) have less than $500,000 in the aggregate maintained therein at any time; provided, further, that Borrower may maintain its existing deposit accounts with JPMorgan Chase Bank,
N.A., so long as (1) the aggregate balance of the deposit
accounts does not exceed Twenty-Five Thousand Dollars ($25,000.00), and (2) JPMorgan Chase Bank, N.A. has executed and delivered a Control Agreement with respect to such domestic deposit
account to perfect Banks Lien in such account in accordance with the terms hereunder which Control Agreement may not be terminated without the prior written consent of Bank.
G. Section 6.9 (Financial Covenants) of the Loan and Security Agreement is amended and restated in its entirety to read as follows:
6.9 Financial Covenants.
(a) Adjusted Quick Ratio. At all times, (i) measured quarterly when no Credit Extensions are outstanding and
(ii) measured monthly when any Credit Extensions are outstanding or if Borrowers Adjusted Quick Ratio is less than 1.30 to 1.00, an Adjusted Quick Ratio of no less than 1.10 to 1.00.
H. Section 6.14 (Lockbox and Collections Account) of the Loan and Security Agreement is amended and restated in its entirety to read as
follows:
6.14 Lockbox and Collections Account.
(i) All proceeds of Accounts shall be deposited into a post office box under Banks control (a Lockbox) or a restricted
account maintained with Bank (the Collections Account), pursuant to the terms of such lockbox and account agreements as Bank shall reasonably request from time to time (the Lockbox Agreements). Borrower shall use the Lockbox
and Collections Account address as the remit to and payment address for all proceeds of Accounts. If Borrower receives any amount despite such instructions, Borrower shall immediately deliver such payment to Bank in the form received, except for an
endorsement to the order of Bank and, pending such delivery, shall hold such payment in trust for Bank. Bank shall credit all amounts deposited into Lockbox or the Collections Account to Borrowers operating account maintained at Bank within
two (2) Business Days after clearance of such deposits; provided however that (i) upon an Event of Default that is continuing, and/or (ii) at all times after the occurrence of the Sweep Trigger through the Sweep Trigger Termination,
Bank may, at its option credit all or any portion of amounts paid into the Collections Account first against any amounts owing to Bank, and then any remaining balance of such amount shall be credited to Borrowers operating account maintained
at Bank. Bank may, in its sole discretion, send requests for verification of Accounts or notify Borrowers account debtors of the assignment of such Accounts to Bank, and take such other actions as set forth in the lockbox Agreements. Upon
Banks request, Borrower shall cause any third-party payment processors to execute and deliver an acknowledgment and payment direction letter in form and substance reasonably satisfactory to Bank.
I. Exhibit B to the Loan and Security Agreement is replaced in its entirety with the Exhibit B attached hereto.
J. Exhibit D to the Loan and Security Agreement is replaced in its entirety with the Exhibit D attached hereto.
K. The Schedule of Exceptions to the Loan and Security Agreement is replaced in its entirety with the Schedule of Exceptions attached hereto.
3. CONSISTENT CHANGES. The Existing Documents are each hereby amended wherever necessary to reflect the changes described above.
4. NO DEFENSES OF BORROWER/GENERAL RELEASE. Borrower agrees that, as of this date, they have no defenses against the obligations to pay any amounts
under the Indebtedness. Borrower (Releasing Party) acknowledges that Bank would not enter into this Loan and Security Modification Agreement without Releasing Partys assurance that it has no claims against Bank or any of
Banks officers, directors, employees or agents. Except for the obligations arising hereafter under this Loan and Security Modification Agreement, the Loan and Security Agreement and the other Existing Documents, each Releasing Party releases
Bank, and each of Banks officers,
directors and employees from any known or unknown claims that Releasing Party now has against Bank of any nature, including any claims that Releasing Party, its successors, counsel, and advisors
may in the future discover they would have now had if they had known facts not now known to them, whether founded in contract, in tort or pursuant to any other theory of liability, including but not limited to any claims arising out of or related to
the Loan and Security Agreement or the transactions contemplated thereby. Releasing Party waives the provisions of California Civil Code section 1542, which states:
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, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
The provisions, waivers and releases set forth in this section are binding upon each Releasing Party and its shareholders, agents, employees, assigns and
successors in interest. The provisions, waivers and releases of this section shall inure to the benefit of Bank and its agents, employees, officers, directors, assigns and successors in interest. The provisions of this section shall survive payment
in full of the Obligations, full performance of all the terms of this Loan and Security Modification Agreement and the other Existing Documents, and/or Banks actions to exercise any remedy available under the Existing Documents or otherwise.
5. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the existing Indebtedness, Bank is relying upon Borrowers
representations, warranties, and agreements, as set forth in the Existing Documents. Borrower represents and warrants that the representations and warranties contained in the Loan and Security Agreement are true and correct in all material respects
(or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of the date of this Loan and Security Modification Agreement (except for representations and warranties expressly
referring to a specific date shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such date), and that no Event
of Default has occurred and is continuing. Except as expressly modified pursuant to this Loan and Security Modification Agreement, the terms of the Existing Documents remain unchanged and in full force and effect. Banks agreement to
modifications to the existing Indebtedness pursuant to this Loan and Security Modification Agreement in no way shall obligate Bank to make any future modifications to the Indebtedness. Nothing in this Loan and Security Modification Agreement shall
constitute a satisfaction of the Indebtedness. It is the intention of Bank and Borrower to retain as liable parties all makers and endorsers of Existing Documents, unless the party is expressly released by Bank in writing. No maker, endorser, or
guarantor will be released by virtue of this Loan and Security Modification Agreement. The terms of this paragraph apply not only to this Loan and Security Modification Agreement, but also to any subsequent loan and security modification agreements.
6. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; REFERENCE PROVISION. This Loan and Security Modification Agreement constitutes a Loan
Document as defined and set forth in the Loan and Security Agreement, and is subject to Sections 11 and 12 of the Loan and Security Agreement, which are incorporated by reference herein.
7. CONDITIONS PRECEDENT. As a condition to the effectiveness of this Loan and Security Modification Agreement, Bank shall have received, in form and
substance satisfactory to Bank, the following:
|
(a) |
Payment of a facility fee equal to $37,500 in respect of the Revolving Line, which shall be deemed fully earned
and nonrefundable as of the date hereof; |
|
(b) |
payment of all Bank Expenses incurred through the date hereof; and |
|
(c) |
such other documents, and completion of such other matters, as Bank may reasonably deem necessary or
appropriate. |
8. REFERENCE TO AND EFFECT ON THE LOAN AND SECURITY AGREEMENT. Upon the effectiveness of this Loan
and Security Modification Agreement, each reference in the Loan and Security Agreement and in other documents describing or referencing the Loan and Security Agreement to the Agreement, Loan and Security Agreement,
hereunder, hereof, herein, or words of like import referring to the Loan and Security Agreement shall mean and be a reference to the Loan and Security Agreement, as amended hereby.
9. NOTICE OF FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES, (B) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (C) THIS WRITTEN AGREEMENT MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR
UNDERSTANDINGS OF THE PARTIES.
[Signature Page to Follow]
10. COUNTERSIGNATURE. This Loan and Security Modification Agreement shall become effective only when
executed by Bank and Borrower.
|
|
|
|
|
|
|
|
|
BORROWER: |
|
|
|
BANK: |
|
|
|
EVERQUOTE, INC., a Delaware corporation |
|
|
|
WESTERN ALLIANCE BANK, an Arizona corporation |
|
|
|
|
|
By: |
|
/s/ Joseph Sanborn |
|
|
|
By: |
|
/s/ Victor Le |
Name: |
|
Joseph Sanborn |
|
|
|
Name: |
|
Victor Le |
Title: |
|
CFO |
|
|
|
Title: |
|
Director |
EXHIBIT B
REVOLVING ADVANCE REQUEST FORM
EXHIBIT D
COMPLIANCE CERTIFICATE
Exhibit D
Exhibit 99.3
EverQuote Announces Second Quarter 2023 Financial Results
|
|
|
Second Quarter Revenue of $68.0 million |
|
|
|
Second Quarter Variable Marketing Margin of $24.7 million |
|
|
|
Company Announces Sale of Health Insurance Vertical Assets |
CAMBRIDGE, Mass., August 7, 2023 (GLOBE NEWSWIRE) EverQuote, Inc. (Nasdaq: EVER), a leading online insurance marketplace, today announced
financial results for the quarter ended June 30, 2023.
In the second quarter, EverQuote reported revenue of $68.0 million and Variable
Marketing Margin, or VMM, of $24.7 million, a record high as a percentage of revenue, said Jayme Mendal, CEO of EverQuote. During the quarter, we made a number of strategic decisions to position EverQuote to emerge from a prolonged
auto insurance downturn in a clear leadership position. We restructured our operations, eliminating approximately 30% of positions company-wide, decided to exit our health insurance vertical and its associated direct to consumer agency (DTCA), and
scaled-down our DTCA serving our auto and home insurance markets.
While the restructuring was catalyzed by the lower-for-longer auto insurance outlook, the decisions we made were the result of a deeper assessment of our operations, markets and feedback from carrier and agent partners. As we streamline our
business, we are also investing in the most capital efficient and high ROI portions of our operations. We are placing greater emphasis on leveraging our most differentiated assets to accelerate our path to providing compelling value for insurance
provider partners, consumers and shareholders, concluded Mr. Mendal.
Subsequent to the close of the second quarter, EverQuote sold certain assets
of its health insurance vertical to MyPlanAdvocate Insurance Solutions Inc., for $13.2 million in cash, subject to customary post-closing adjustments, and MyPlanAdvocates assumption of certain liabilities relating to the health insurance
vertical. The transaction closed on August 1, 2023. Included in the sale was the $32.2 million commissions receivable as of June 30, 2023, which were expected to be collected over the next seven years. We expect to take a non-cash charge in Q3
related to the sale of these assets.
Our team continues to focus on what we can control by taking decisive action to judiciously manage expenses
and strengthen our balance sheet, said Joseph Sanborn, CFO of EverQuote. By streamlining our operations and adopting a relatively more asset-light model, we believe EverQuote will be well positioned to capitalize on our market
opportunity with the normalization of the auto insurance industry.
Second Quarter 2023 Financial Highlights:
(All comparisons are relative to the second quarter of 2022)
|
|
|
Total revenue of $68.0 million, a decrease of 33%. |
|
|
|
Automotive insurance vertical revenue of $49.7 million, a decrease of 39%. |
|
|
|
Revenue from other insurance verticals, which includes home and renters, life, and health insurance, decreased
11% to $18.2 million. |
|
|
|
Variable Marketing Margin of $24.7 million, a decrease of 26%. |
|
|
|
GAAP net loss increased to a loss of $13.2 million, compared to a GAAP net loss of $3.8 million.
|
|
|
|
Adjusted EBITDA decreased to $(2.1) million, compared to Adjusted EBITDA of $1.4 million.
|
|
|
|
Due to the actions taken to reduce its workforce and the exit of its health insurance vertical the Company
incurred a $3.8 million restructuring charge in the second quarter. |
Third Quarter 2023 Outlook:
For the third quarter 2023, EverQuote anticipates revenue, Variable Marketing Margin and Adjusted EBITDA to be in the following ranges:
|
|
|
Revenue of $51 - $56 million. |
|
|
|
Variable Marketing Margin of $16 - $18 million. |
|
|
|
Adjusted EBITDA of $(6) - $(4) million. |
With respect to the Companys expectations under Third Quarter 2023 Outlook above, the Company has not reconciled the non-GAAP measure Adjusted EBITDA to the GAAP measure net income (loss) in this press release because the Company does not provide guidance for stock-based compensation expense, depreciation and amortization expense,
restructuring and other charges, acquisition-related costs, legal settlement expense, one-time severance charges, interest income, and income taxes on a consistent basis as the Company is unable to quantify these amounts without unreasonable
efforts, which would be required to include a reconciliation of Adjusted EBITDA to GAAP net income (loss). In addition, the Company believes such a reconciliation would imply a degree of precision that could be confusing or misleading to investors.
Conference Call and Webcast Information
EverQuote
will host a conference call and live webcast to discuss its second quarter 2023 financial results at 4:30 p.m. Eastern Time today, August 7, 2023. To access the conference call, dial Toll Free: +1 (800)
599-2055 for the US, or +1 (647) 362-9671 for international callers, and provide conference ID 1374717. The live webcast and replay will be available on the Investors
section of the Companys website at https://investors.everquote.com.
Safe Harbor Statement
Any statements in this press release about future expectations, plans and prospects for EverQuote, Inc. (EverQuote or the Company),
including statements about future results of operations or the future financial position of the Company, including financial targets, business strategy, plans and objectives for future operations and other statements containing the words
anticipates, believes, expects, plans, continues, will and similar expressions, constitute forward-looking statements within the meaning of The Private Securities Litigation
Reform Act of 1995. Actual results may differ materially from those indicated by such forward-looking statements as a result of various important factors, including: (1) the Companys ability to attract and retain consumers and insurance
providers using the Companys marketplace; (2) the Companys ability to maintain or increase the amount providers spend per quote request; (3) the effectiveness of the Companys growth strategies and its ability to
effectively manage growth; (4) the Companys ability to maintain and build its brand; (5) the Companys reliance on its third-party service providers; (6) the Companys ability to develop new and enhanced products and
services to attract and retain consumers and insurance providers, and the Companys ability to successfully monetize them; (7) the impact of competition in the Companys industry and innovation by the Companys competitors;
(8) the length of the continued downturn in the auto insurance industry; (9) developments regarding the insurance industry and the transition to online marketing; (10) the possible impacts of inflation; and (11) other factors
discussed in the Risk Factors sections of the Companys most recent Annual Report on Form 10-K, and Quarterly Report on Form 10-Q, each of which is on
file with the Securities and Exchange Commission. In addition, the forward-looking statements included in this press release represent the Companys views as of the date of this press release. The Company anticipates that subsequent events and
developments will cause the Companys views to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation to do so. These
forward-looking statements should not be relied upon as representing the Companys views as of any date subsequent to the date of this press release.
About EverQuote
EverQuote operates a leading online
insurance marketplace, connecting consumers with insurance providers. The companys mission is to empower insurance shoppers to better protect lifes most important assetstheir family, property, and future. Our vision is to become
the largest online source of insurance policies by using data, technology, and knowledgeable advisors to make insurance simpler, more affordable and personalized, ultimately reducing cost and risk.
For more information, visit everquote.com and follow on Twitter @everquotelife, Instagram @everquotepics,
and LinkedIn https://www.linkedin.com/company/everquote/.
Investor Relations Contact
Brinlea Johnson
The Blueshirt Group
415-489-2193
EVERQUOTE, INC.
STATEMENTS OF OPERATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
Six Months Ended June 30, |
|
|
|
2023 |
|
|
2022 |
|
|
2023 |
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands except per share) |
|
Revenue |
|
$ |
67,985 |
|
|
$ |
101,915 |
|
|
$ |
177,205 |
|
|
$ |
212,596 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost and operating expenses(1): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenue |
|
|
5,547 |
|
|
|
6,059 |
|
|
|
11,317 |
|
|
|
12,043 |
|
Sales and marketing |
|
|
58,795 |
|
|
|
87,854 |
|
|
|
149,032 |
|
|
|
184,004 |
|
Research and development |
|
|
7,450 |
|
|
|
8,245 |
|
|
|
15,377 |
|
|
|
16,441 |
|
General and administrative |
|
|
5,768 |
|
|
|
7,357 |
|
|
|
13,598 |
|
|
|
14,298 |
|
Restructuring and other charges |
|
|
3,832 |
|
|
|
|
|
|
|
3,832 |
|
|
|
|
|
Acquisition-related costs |
|
|
(37 |
) |
|
|
(3,779 |
) |
|
|
(150 |
) |
|
|
(4,671 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost and operating expenses |
|
|
81,355 |
|
|
|
105,736 |
|
|
|
193,006 |
|
|
|
222,115 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss from operations |
|
|
(13,370 |
) |
|
|
(3,821 |
) |
|
|
(15,801 |
) |
|
|
(9,519 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense): |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income |
|
|
271 |
|
|
|
37 |
|
|
|
458 |
|
|
|
45 |
|
Other income (expense), net |
|
|
(16 |
) |
|
|
28 |
|
|
|
(15 |
) |
|
|
3 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total other income, net |
|
|
255 |
|
|
|
65 |
|
|
|
443 |
|
|
|
48 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes |
|
|
(13,115 |
) |
|
|
(3,756 |
) |
|
|
(15,358 |
) |
|
|
(9,471 |
) |
Income tax expense |
|
|
(78 |
) |
|
|
|
|
|
|
(364 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(13,193 |
) |
|
$ |
(3,756 |
) |
|
$ |
(15,722 |
) |
|
$ |
(9,471 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss per share, basic and diluted |
|
$ |
(0.40 |
) |
|
$ |
(0.12 |
) |
|
$ |
(0.48 |
) |
|
$ |
(0.31 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average common shares outstanding, basic and diluted |
|
|
33,129 |
|
|
|
31,519 |
|
|
|
32,942 |
|
|
|
31,027 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
Amounts include stock-based compensation expense, as follows: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
Six Months Ended June 30, |
|
|
|
2023 |
|
|
2022 |
|
|
2023 |
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands) |
|
Cost of revenue |
|
$ |
59 |
|
|
$ |
95 |
|
|
$ |
113 |
|
|
$ |
154 |
|
Sales and marketing |
|
|
2,272 |
|
|
|
2,964 |
|
|
|
4,545 |
|
|
|
6,174 |
|
Research and development |
|
|
2,285 |
|
|
|
2,650 |
|
|
|
4,659 |
|
|
|
5,061 |
|
General and administrative |
|
|
1,391 |
|
|
|
1,891 |
|
|
|
3,199 |
|
|
|
3,741 |
|
Restructuring and other charges |
|
|
1,123 |
|
|
|
|
|
|
|
1,123 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
7,130 |
|
|
$ |
7,600 |
|
|
$ |
13,639 |
|
|
$ |
15,130 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EVERQUOTE, INC.
BALANCE SHEET DATA
|
|
|
|
|
|
|
|
|
|
|
June 30, 2023 |
|
|
December 31, 2022 |
|
|
|
|
|
|
|
|
|
|
(in thousands) |
|
Cash and cash equivalents |
|
$ |
31,048 |
|
|
$ |
30,835 |
|
Working capital |
|
|
33,154 |
|
|
|
35,567 |
|
Total assets |
|
|
145,055 |
|
|
|
156,519 |
|
Total liabilities |
|
|
39,517 |
|
|
|
49,033 |
|
Total stockholders equity |
|
|
105,538 |
|
|
|
107,486 |
|
EVERQUOTE, INC.
STATEMENTS OF CASH FLOWS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
Six Months Ended June 30, |
|
|
|
2023 |
|
|
2022 |
|
|
2023 |
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands) |
|
Cash flows from operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss |
|
$ |
(13,193 |
) |
|
$ |
(3,756 |
) |
|
$ |
(15,722 |
) |
|
$ |
(9,471 |
) |
Adjustments to reconcile net loss to net cash provided by (used in) operating activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization expense |
|
|
1,463 |
|
|
|
1,405 |
|
|
|
2,870 |
|
|
|
2,916 |
|
Stock-based compensation expense |
|
|
7,130 |
|
|
|
7,600 |
|
|
|
13,639 |
|
|
|
15,130 |
|
Change in fair value of contingent consideration liabilities |
|
|
(37 |
) |
|
|
(3,780 |
) |
|
|
(150 |
) |
|
|
(4,672 |
) |
Provision for bad debt |
|
|
(21 |
) |
|
|
2 |
|
|
|
224 |
|
|
|
77 |
|
Unrealized foreign currency transaction (gains) losses |
|
|
7 |
|
|
|
(23 |
) |
|
|
16 |
|
|
|
(16 |
) |
Changes in operating assets and liabilities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts receivable |
|
|
17,157 |
|
|
|
9,974 |
|
|
|
7,330 |
|
|
|
(999 |
) |
Prepaid expenses and other current assets |
|
|
158 |
|
|
|
240 |
|
|
|
1,867 |
|
|
|
(47 |
) |
Commissions receivable, current and non-current |
|
|
(724 |
) |
|
|
(6,044 |
) |
|
|
(129 |
) |
|
|
(11,425 |
) |
Operating lease
right-of-use assets |
|
|
686 |
|
|
|
642 |
|
|
|
1,374 |
|
|
|
1,287 |
|
Other assets |
|
|
|
|
|
|
(1 |
) |
|
|
36 |
|
|
|
(30 |
) |
Accounts payable |
|
|
(7,816 |
) |
|
|
(9,883 |
) |
|
|
(7,812 |
) |
|
|
3,413 |
|
Accrued expenses and other current liabilities |
|
|
(583 |
) |
|
|
798 |
|
|
|
269 |
|
|
|
(2,059 |
) |
Deferred revenue |
|
|
(138 |
) |
|
|
(10 |
) |
|
|
(58 |
) |
|
|
(122 |
) |
Operating lease liabilities |
|
|
(741 |
) |
|
|
(692 |
) |
|
|
(1,643 |
) |
|
|
(1,355 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) operating activities |
|
|
3,348 |
|
|
|
(3,528 |
) |
|
|
2,111 |
|
|
|
(7,373 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Acquisition of property and equipment, including costs capitalized for development of internal-use software |
|
|
(1,015 |
) |
|
|
(1,308 |
) |
|
|
(2,022 |
) |
|
|
(1,989 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities |
|
|
(1,015 |
) |
|
|
(1,308 |
) |
|
|
(2,022 |
) |
|
|
(1,989 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock options |
|
|
53 |
|
|
|
50 |
|
|
|
340 |
|
|
|
608 |
|
Proceeds from private placement of common stock |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,000 |
|
Tax withholding payments related to net share settlement |
|
|
(102 |
) |
|
|
(51 |
) |
|
|
(232 |
) |
|
|
(51 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities |
|
|
(49 |
) |
|
|
(1 |
) |
|
|
108 |
|
|
|
15,557 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate changes on cash, cash equivalents and restricted cash |
|
|
11 |
|
|
|
(22 |
) |
|
|
16 |
|
|
|
(27 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net increase (decrease) in cash, cash equivalents and restricted cash |
|
|
2,295 |
|
|
|
(4,859 |
) |
|
|
213 |
|
|
|
6,168 |
|
Cash, cash equivalents and restricted cash at beginning of period |
|
|
28,753 |
|
|
|
46,128 |
|
|
|
30,835 |
|
|
|
35,101 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash, cash equivalents and restricted cash at end of period |
|
$ |
31,048 |
|
|
$ |
41,269 |
|
|
$ |
31,048 |
|
|
$ |
41,269 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EVERQUOTE, INC.
FINANCIAL AND OPERATING METRICS
Revenue by
vertical:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
Change |
|
|
|
2023 |
|
|
2022 |
|
|
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands) |
|
|
|
|
Automotive |
|
$ |
49,744 |
|
|
$ |
81,375 |
|
|
|
-38.9 |
% |
Other |
|
|
18,241 |
|
|
|
20,540 |
|
|
|
-11.2 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Revenue |
|
$ |
67,985 |
|
|
$ |
101,915 |
|
|
|
-33.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, |
|
|
Change |
|
|
|
2023 |
|
|
2022 |
|
|
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands) |
|
|
|
|
Automotive |
|
$ |
139,443 |
|
|
$ |
169,050 |
|
|
|
-17.5 |
% |
Other |
|
|
37,762 |
|
|
|
43,546 |
|
|
|
-13.3 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Revenue |
|
$ |
177,205 |
|
|
$ |
212,596 |
|
|
|
-16.6 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
Other financial and non-financial metrics:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
Change |
|
|
|
2023 |
|
|
2022 |
|
|
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands) |
|
|
|
|
Loss from operations |
|
$ |
(13,370 |
) |
|
$ |
(3,821 |
) |
|
|
249.9 |
% |
Net loss |
|
$ |
(13,193 |
) |
|
$ |
(3,756 |
) |
|
|
251.3 |
% |
Variable Marketing Margin |
|
$ |
24,653 |
|
|
$ |
33,091 |
|
|
|
-25.5 |
% |
Adjusted EBITDA(1) |
|
$ |
(2,121 |
) |
|
$ |
1,433 |
|
|
|
-248.0 |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Months Ended June 30, |
|
|
Change |
|
|
|
2023 |
|
|
2022 |
|
|
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands) |
|
|
|
|
Loss from operations |
|
$ |
(15,801 |
) |
|
$ |
(9,519 |
) |
|
|
66.0 |
% |
Net loss |
|
$ |
(15,722 |
) |
|
$ |
(9,471 |
) |
|
|
66.0 |
% |
Variable Marketing Margin |
|
$ |
60,246 |
|
|
$ |
67,355 |
|
|
|
-10.6 |
% |
Adjusted EBITDA(1) |
|
$ |
3,252 |
|
|
$ |
3,859 |
|
|
|
-15.7 |
% |
(1) |
Adjusted EBITDA is a non-GAAP measure. Please see EverQuote, Inc. Reconciliation of Non-GAAP
Measures to GAAP below for more information. |
To supplement the Companys financial statements presented in
accordance with GAAP and to provide investors with additional information regarding EverQuotes financial results, the Company has presented Adjusted. EBITDA as a non-GAAP financial measure. This non-GAAP financial measure is not based on any standardized methodology prescribed by GAAP and is not necessarily comparable to similarly titled measures presented by other companies.
The Company defines Adjusted EBITDA as net income (loss), excluding the impact of stock-based compensation expense; depreciation and
amortization expense; restructuring and other charges; acquisition-related costs; legal settlement expense; one-time severance charges; interest income; and income taxes. The most directly comparable GAAP measure is net income (loss). The
Company monitors and presents Adjusted EBITDA because it is a key measure used by management and the board of directors to understand and evaluate operating performance, to establish budgets and to develop operational goals for managing
EverQuotes business. In particular, the Company believes that excluding the impact of these items in calculating Adjusted EBITDA can provide a useful measure for
period-to-period comparisons of EverQuotes core operating performance.
The Company uses Adjusted EBITDA to evaluate EverQuotes operating performance and
trends and make planning decisions. The Company believes that this non-GAAP financial measure helps identify underlying trends in EverQuotes business that could otherwise be masked by the effect of the items that the Company excludes in the
calculations of Adjusted EBITDA. Accordingly, the Company believes that this financial measure provides useful information to investors and others in understanding and evaluating EverQuotes operating results, enhancing the overall
understanding of the Companys past performance and future prospects.
The Companys
non-GAAP financial measures are not prepared in accordance with GAAP and should not be considered in isolation of, or as an alternative to, measures prepared in accordance with GAAP. There are a number of
limitations related to the use of Adjusted EBITDA rather than net income (loss), which is the most directly comparable financial measure calculated and presented in accordance with GAAP. In addition, other companies may use other measures to
evaluate their performance, which could reduce the usefulness of the Companys non-GAAP financial measures as tools for comparison.
The following table reconciles Adjusted EBITDA to net income (loss), the most directly comparable financial measure calculated and presented
in accordance with GAAP.
EVERQUOTE, INC.
RECONCILIATION OF NON-GAAP MEASURES TO GAAP
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended June 30, |
|
|
Six Months Ended June 30, |
|
|
|
2023 |
|
|
2022 |
|
|
2023 |
|
|
2022 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(in thousands) |
|
Net loss |
|
$ |
(13,193 |
) |
|
$ |
(3,756 |
) |
|
$ |
(15,722 |
) |
|
$ |
(9,471 |
) |
Stock-based compensation |
|
|
6,007 |
|
|
|
7,600 |
|
|
|
12,516 |
|
|
|
15,130 |
|
Depreciation and amortization |
|
|
1,463 |
|
|
|
1,405 |
|
|
|
2,870 |
|
|
|
2,916 |
|
Restructuring and other charges |
|
|
3,832 |
|
|
|
|
|
|
|
3,832 |
|
|
|
|
|
Acquisition-related costs |
|
|
(37 |
) |
|
|
(3,779 |
) |
|
|
(150 |
) |
|
|
(4,671 |
) |
Interest income |
|
|
(271 |
) |
|
|
(37 |
) |
|
|
(458 |
) |
|
|
(45 |
) |
Income tax expense |
|
|
78 |
|
|
|
|
|
|
|
364 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDA |
|
$ |
(2,121 |
) |
|
$ |
1,433 |
|
|
$ |
3,252 |
|
|
$ |
3,859 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
![Slide 1 Slide 1](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s1g1.jpg)
Investor Presentation August 2023
Exhibit 99.4
![Slide 2 Slide 2](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s2g1.jpg)
Disclaimer This presentation contains
forward-looking statements. All statements other than statements of historical facts contained in this presentation, including statements regarding possible or assumed future results of operations, business strategies, development plans, regulatory
activities, competitive position, potential growth opportunities, & the effects of competition are forward-looking statements. These statements involve known & unknown risks, uncertainties & other important factors that may cause actual
results, performance or achievements of EverQuote, Inc. (“the Company”) to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. In some cases, you can
identify forward-looking statements by terms such as “may,” “should,” “expect,” “plan,” “project,” “estimate,” “guidance,” or “potential” or the negative
of these terms or other similar expressions. The forward-looking statements in this presentation are only predictions. The Company has based these forward-looking statements largely on its current expectations & projections about future events
& financial trends that it believes may affect the Company’s business, financial condition & results of operations. These forward-looking statements speak only as of the date of this presentation & are subject to a number of risks,
uncertainties & assumptions, some of which cannot be predicted or quantified & some of which are beyond the Company’s control. The events & circumstances reflected in the Company’s forward-looking statements may not be
achieved or occur, & actual results could differ materially from those projected in the forward-looking statements, including as a result of: (1) the Company’s ability to attract and retain consumers and insurance providers using the
Company’s marketplace; (2) the Company’s ability to maintain or increase the amount providers spend per quote request; (3) the effectiveness of the Company’s growth strategies and its ability to effectively manage growth; (4) the
Company’s ability to maintain and build its brand; (5) the Company’s reliance on its third-party service providers; (6) the Company’s ability to develop new and enhanced products and services to attract and retain consumers and
insurance providers, and the Company’s ability to successfully monetize them; (7) the impact of competition in the Company’s industry and innovation by the Company’s competitors; (8) the length of the continued downturn in the auto
insurance industry; (9) developments regarding the insurance industry and the transition to online marketing; (10) the possible impacts of inflation; and (11) the risks described in the “Risk Factors” section of the Company’s
most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q & the other filings that the Company makes with the Securities & Exchange Commission from time to time. Moreover, new risk factors & uncertainties may emerge from time
to time, & it is not possible for management to predict all risk factors & uncertainties that the Company may face. Except as required by applicable law, the Company does not plan to publicly update or revise any forward-looking statements
contained herein, whether as a result of any new information, future events, changed circumstances or otherwise. The Company’s presentation also contains estimates, projections, & other information concerning the Company’s industry,
the Company’s business & the markets for certain of the Company’s products & services, including data regarding the estimated size of those markets. Information that is based on estimates, forecasts, projections, market research,
or similar methodologies is inherently subject to uncertainties & actual events or circumstances may differ materially from events & circumstances reflected in this information. Unless otherwise expressly stated, the Company obtained this
industry, business, market & other data from reports, research surveys, studies & similar data prepared by market research firms & other third parties, from industry, general publications, & from government data & similar
sources. The Company presents Adjusted EBITDA as a non-GAAP measure, which is not a substitute for or superior to, other measures of financial performance prepared in accordance with U.S. GAAP. A reconciliation to the most directly comparable GAAP
measures is included in the Appendix to these slides.
![Slide 3 Slide 3](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s3g1.jpg)
Our vision Become the largest online
source of insurance policies by using data, technology and knowledgeable advisors to make insurance simpler, more affordable and personalized, ultimately reducing cost and risk.
![Slide 4 Slide 4](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s4g1.jpg)
Extensive distribution channels with
Carriers and Local Agent Network3 Asset-Light model well positioned for recovery of the auto insurance market Key Investment Highlights Insurance Marketplace Leader Massive Market Opportunity Proprietary Tech and Data Extensive Distribution
Attractive Business Model Leading Property and Casualty1 (”P&C”) online insurance marketplace providing compelling benefits for consumers and insurance providers $171b in annual insurance distribution spend in the early phases of
shifting online provides multi-year tailwind2 Proprietary platforms built on highly integrated machine learning assets support rapid growth and drive network effects Includes auto, home, renters and other related insurance products Source: S&P
Global Market Intelligence, Insider Intelligence and Company estimates. Includes commissions and advertising spend of broader insurance including P&C, Life, and Health markets as of 2021 Also referred to as 3rd party agent network
![Slide 5 Slide 5](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s5g1.jpg)
Company Overview One of the insurance
industry’s largest online customer acquisition and distribution platforms Highly scalable, data proprietary platform leveraging 2.5b+ consumer data points amassed over a decade1 "Hybrid Marketplace” with extensive distribution: 100+
carriers and 7,000+ 3rd party local agents Diversified distribution model serving consumers and providers across multiple P&C insurance markets Founded in 2011 with headquarters in Cambridge, MA; IPO in summer 2018 Company Snapshot Compelling
Value Proposition Providers: efficiently acquire consumers Large volume of high intent consumers Higher ROI from target-based consumer attributes Opportunity to acquire consumer referrals Consumers: saving time and money Single destination for
P&C insurance needs Personalized shopping experience Provide multiple quotes, fitting the consumer’s needs Source: estimated using Company data through 2022
![Slide 6 Slide 6](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s6g1.jpg)
Large & Expanding TAM Growth
Drivers U.S. Insurance Market: Distribution Spend1 ~13% Estimated Digital Advertising Spend Growth3 Continued shift of consumer time spent online Continued shift of acquisition spend online Continued shift to digitization of insurance products and
workflows Estimated share of Digital Advertising Spend Market ~4% Estimated share of Total Distribution Spend Market <1% $171b Total Market $10.5b Total Digital Advertising Spend Source: S&P Global Market Intelligence, Insider Intelligence
and Company estimates. Includes commissions and advertising spend of individual insurance market including P&C, Life, and Health markets as of 2021 Market share based on EverQuote’s FY 2022 revenue, which was $404 million Estimated
compound annual growth rate for 2021 to 2024. Source: Insider Intelligence Highlights2
![Slide 7 Slide 7](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s7g1.jpg)
Distribution The Customer Journey
Traffic Channels Provider Engagement Consumer Arrival Provider Matching Partnerships Performance Media Other1 SEM Clicks Marketplace Calls Consumer Routing Customer Acquisition Performance Alignment Bidding Carriers Enterprise Distribution Agent
Distribution Local Agent Network2 Other includes organic search, direct-to-site, partner exchange & other traffic sources In addition to the 3rd party agent network, EverQuote has a small 1st party agent presence Based on Company data &
representative of the insurance provider partners on the platform as of June 30, 2023 Representative Carriers3
![Slide 8 Slide 8](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s8g1.jpg)
Proprietary Platforms Strengthen
Competitive Moat Minimize Cost per Acquisition Omni-channel Automated Bidding Marketing Maximize Conversion Rates Consumer Personalized User Experiences Maximize Bind Performance Consumer Alignment Algorithms Distribution Maximize Value per
Acquisition Enterprise & Agency Campaign Management B2B Highly integrated machine learning and data assets to support growth of all verticals Over 2.5b Consumer Submitted Data Points Since Inception1 Source: estimated using Company data through
2022
![Slide 9 Slide 9](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s9g1.jpg)
The State of the Auto Insurance Market
Late Summer 2021; Auto Insurance Downturn Begins Current Outlook Cost of claims rises rapidly due to higher used car values, increased cost to repair and overall accident severity Auto carriers continue raising rates to restore adequate
profitability; progress varies considerably by carrier and state Carriers are unable to adjust and implement rates quickly due to regulatory process and policy renewal cycles Carriers face elevated claims and combined ratios; pull back significantly
on consumer acquisition spend Exact timing of the auto recovery remains uncertain; anticipated improvements in 2024 Cost of claims show some signs of stabilization, however, loss pressures persist
![Slide 10 Slide 10](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s10g1.jpg)
Significant capital and scale would
have been required to effectively compete in a highly regulated and increasingly unpredictable market2 Exiting Health Vertical in 2023 Restructuring Sale of Health Vertical Assets3 Strengthened Balance Sheet3 Strategic Exit of Health1 Completed sale
of select assets, including commissions receivable Sale of select Health Vertical assets resulted in cash proceeds of $13.2m Exiting of the health insurance vertical was approved by the Board of Directors on June 30, 2023, and announced publicly on
July 6, 2023 The health insurance vertical accounted for less than 10% of Revenue in FY22 Sale of select assets of health insurance vertical announced on August 7, 2023 Increased strategic focus on our most differentiated assets to extend
competitive moat Streamlined operations to improve financial performance
![Slide 11 Slide 11](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s11g1.jpg)
Strategic Focus Following 2023
Restructuring1 Asset-Light Model Streamlining business around the most capital efficient and high ROI parts of EVER’s operations Traffic Scale and Technology Drive greater value for carriers and agents by leveraging proprietary data, machine
learning capabilities and expanding AI applications Positioned for Auto Recovery Expected to drive significant Adjusted EBITDA expansion when auto insurance market recovers June 16, 2023, EverQuote announced restructuring that eliminated ~30% of our
positions
![Slide 12 Slide 12](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s12g1.jpg)
Financial Overview Revenue ($m)
Adjusted EBITDA ($m) Variable Marketing Margin ($m) Summary Auto carrier recovery is expected to drive a significant rebound to revenue growth Potential for incremental improvement in VMM % from traffic optimization and product expansion Adjusted
EBITDA margin expected to “snapback” to pre-downturn levels when auto insurance market substantially recovers Note: Auto insurance market downturn began in the late summer of 2021 Note: Historical financials include health insurance
vertical financials, which was exited on June 30, 2023. The health insurance vertical accounted for less than 10% of Revenue in FY22
![Slide 13 Slide 13](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s13g1.jpg)
Multiple Levers to Drive Future
Growth Attract More Consumers Explore Acquisition Opportunities Increase Provider Coverage & Budget Deepen Consumer & Provider Engagement Grow Core Verticals
![Slide 14 Slide 14](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s14g1.jpg)
NASDAQ: EVER
![Slide 15 Slide 15](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s15g1.jpg)
Appendix
![Slide 16 Slide 16](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s16g1.jpg)
Key Metrics Definitions Variable
Marketing Margin We define variable marketing margin, or VMM, as revenue, as reported in our consolidated statements of operations and comprehensive income (loss), less advertising costs (a component of sales and marketing expense, as reported in
our statements of operations and comprehensive income (loss)). We use VMM to measure the efficiency of individual advertising and consumer acquisition sources and to make trade-off decisions to manage our return on advertising.
We do not use VMM as a measure of profitability. Adjusted EBITDA We define Adjusted EBITDA as net income (loss), adjusted to exclude: stock-based compensation expense, depreciation and amortization expense, restructuring and other charges,
acquisition-related costs, legal settlement expense, one-time severance charges, interest income and the provision for (benefit from) income taxes. We monitor & present Adjusted EBITDA because it is a key measure used by our management &
board of directors to understand & evaluate our operating performance, to establish budgets & to develop operational goals for managing our business.
![Slide 17 Slide 17](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s17g1.jpg)
Reconciliation of Adjusted EBITDA -
12 Months Ended 12 Months Ended December 31, 2022 December 31, 2021 December 31, 2020 December 31, 2019 December 31, 2018 December 31, 2017 Net loss ($24,416) ($19,434) ($11,202) ($7,117) ($13,791) ($5,070) Stock-based compensation $28,986 $30,020
$24,179 $12,721 $7,121 $1,860 Depreciation & amortization $5,848 $5,072 $3,350 $2,186 $1,341 $1,360 Legal settlement - - - $1,227 - - Acquisition-related costs/earnout ($4,135) $1,065 $2,258 - - - Severance under a plan - 440 - - - - Interest
(income) expense, net ($349) ($37) (189) ($669) (121) 381 Provision for (benefit from) income taxes - ($2,510) - - - - Adjusted EBITDA $5,934 $14,616 $18,396 $8,348 ($5,450) ($1,469) ($ in Thousands)
![Slide 18 Slide 18](https://www.sec.gov/Archives/edgar/data/1640428/000119312523204965/g542443ex99_4s18g1.jpg)
Reconciliation of Adjusted EBITDA -
3 Months Ended 3 Months Ended June 30, 2023 March 31, 2023 December 31, 2022 September 30, 2022 June 30, 2022 Net loss ($13,193) ($2,529) ($8,494) ($6,451) ($3,756) Stock-based compensation $6,007 $6,509 $6,623 $7,233 $7,600 Depreciation &
amortization $1,463 $1,407 $1,522 $1,410 $1,405 Legal settlement - - - - - Acquisition-related costs/earnout ($37) ($113) $632 ($96) ($3,779) Restructuring and Other Charges 3,832 - - - - Interest (income) expense, net ($271) ($187) ($191) ($113)
($37) Provision for (benefit from) income taxes $78 $286 - - - Adjusted EBITDA ($2,121) $5,373 $92 $1,983 $1,433 ($ in Thousands)
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