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ITEM 1.01 | Entry into Material Agreement. |
As previously disclosed, on December 22, 2021, Criteo S.A. (the “Company”) entered into a Framework Purchase Agreement (the “Purchase Agreement”), by and among the Company, IPONWEB Holding Limited (“IPONWEB”), Exezars Limited (a subsidiary of IPONWEB and collectively with IPONWEB, the “Sellers”), Mr. Ljubisa Bogunovic, in his capacity as trustee of the “IW General Management Trust” (the “Trustee”) and Mr. Boris Mouzykantskii, founder and Chief Executive Officer of IPONWEB (the “Founder”). The Purchase Agreement contemplated the acquisition of the business of IPONWEB by the Company (the “Acquisition”).
On August 1, 2022, the Company, Sellers, Trustee and Founder entered into an amended and restated Framework Purchase Agreement (the “A&R Purchase Agreement”), amending and restating the Purchase Agreement, to reflect revisions to its structure, including to exclude IPONWEB’s subsidiary in Russia, to account for laws and regulations adopted around the world in connection with Russia’s invasion of Ukraine and to reflect the change in the macro-economic and geopolitical environment since its execution.
The Company is funding the purchase price of the Acquisition with (i) approximately $180 million of cash on hand, which is subject to certain adjustments including for working capital, other current assets and current liabilities and net indebtedness and (ii) treasury shares of the Company corresponding to a total value at closing of approximately $70 million, in an amount which shall not exceed 4.9% of the Company’s share capital and voting rights. The A&R Purchase Agreement, also provides for contingent consideration payable in cash to the Founder in an amount up to $100 million, conditioned upon the achievement of certain net revenue targets by the Company for the 2022 and 2023 fiscal years (the “Contingent Consideration”).
Consummation of the Acquisition, which occurred on August 1, 2022, was subject to receipt of antitrust clearance in the United States, as well as certain other customary conditions to closing. The A&R Purchase Agreement also contains customary representations and warranties, as well as customary covenants. Under the A&R Purchase Agreement, following consummation of the Acquisition, Sellers are obligated to transfer certain employees of IPONWEB’s Russian subsidiary, which was not acquired by the Company, to certain entities acquired by the Company pursuant to the Acquisition no later than June 30, 2023 (the “Specific Reorganization”).
Pursuant to the terms of the A&R Purchase Agreement, the Sellers, the Trustee and the Founder shall indemnify the Company for, among other things, losses arising as a consequence of breaches of representations and warranties or certain other specified matters, including the Specific Reorganization, which indemnification obligations are secured by escrowed funds.
The foregoing description of the A&R Purchase Agreement is qualified in its entirety by reference to the full text of the A&R Purchase Agreement, which is attached as Exhibit 2.1 and incorporated herein by reference in its entirety.
The A&R Purchase Agreement has been filed to provide actual and potential security holders of the Company with information regarding its terms. It is not intended to provide any other factual information about the Company, IPONWEB or their respective subsidiaries and affiliates. The A&R Purchase Agreement contains or references various representations, warranties and covenants by the parties to the A&R Purchase Agreement. These representations, warranties and covenants were made solely for the benefit of the other parties to the A&R Purchase Agreement and (i) are not intended to be treated as categorical statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate, (ii) may have been qualified by confidential disclosure schedules or other documents that were delivered to the other party in connection with the A&R Purchase Agreement and which contain information that modifies, qualifies and creates exceptions to the representations, warranties and covenants set forth in the A&R Purchase Agreement, (iii) may be subject to standards of materiality applicable to the parties that differ from what might be viewed as material to stockholders and (iv) were made only as of the date of the A&R Purchase Agreement or such other date or dates as may be specified in the A&R Purchase Agreement. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the A&R Purchase Agreement, which subsequent information may or may not be fully reflected in public disclosures by the Company. Accordingly, you 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 or IPONWEB.