Certain portions of this document have been omitted pursuant to Items 601(a)(5) and 601(b)(2) of Regulation S‑K and, where applicable, have been marked with “[***]” to indicate where omissions have been made. A copy of any omitted portion will be furnished supplementally to the Securities and Exchange Commission upon request; provided, however, that Zynga may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any document so furnished.

Exhibit 2.1

Dated 31 May 2020

Share Sale and Purchase Agreement

relating to the sale and purchase of the entire issued share capital of Peak Oyun Yazılım ve Pazarlama Anonim Şirketi

between

Those persons listed in Schedule 1

as Sellers

Zynga Inc.

as Purchaser

 

 

 

 

 

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Table of Contents

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This Agreement is made on 31 May 2020

Between:

Whereas:

It is agreed:

“Accounts Date” means December 31, 2019;

“Actual Debt” means the Debt owed by the Group as at 9 am Istanbul time on the Completion Date, as calculated and determined in accordance with Part 1 of Schedule 9 (Completion Accounts);

“Actual Working Capital” means the Working Capital of the Group as at 9 am Istanbul time on the Completion Date, as calculated and determined in accordance with Part 1 of Schedule 9 (Completion Accounts);

“Agents” means, in relation to a person, that person’s directors, officers, employees, advisers, agents and representatives;

“Anti‑Bribery Laws” means, in each case to the extent that they have been applicable to a Group Company at any time prior to the date of this Agreement: (i) the UK Bribery Act 2010; (ii) the U.S. Foreign Corrupt Practices Act of 1977 (as amended); (iii) any applicable law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed on 17 December 1997; and (iv) any other applicable law, rule or regulation of similar purpose and scope in any jurisdiction, including books and records of offences relating directly or indirectly to a bribe;

“Antitrust Law” means, in each case to the extent that they have been applicable to a Group Company at any time prior to the date of this Agreement: (i) Articles 101 and 102 of the Treaty on the Functioning of the European Union and the provisions of national laws in the European Economic Area member states that are substantially similar thereto; (ii) Sections 1 and 2 of the U.S. Sherman Act, the Clayton Act, the HSR Act, and the Federal Trade Commission Act; (iii) the Act against Restraints of Competition of Germany, in particular its merger control provisions in §§ 35 pp; and (iii) any other Law of any jurisdiction, including but not limited to Law on Protection of Competition (Rekabetin Korunması Hakkında Kanun) numbered 4054 published in the Official Gazette dated 13 December 1994 and numbered 22140, intended to prohibit or regulate agreements, understandings, practices or behavior that could restrict competition or could lead to anti-competitive effects, through the merger or combination by any other means of independent businesses, or otherwise;

 

 

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“Applicable Accounting Standards” means International Financial Reporting Standards (IFRSs), International Accounting Standards and Interpretations of those standards issued by the International Accounting Standards Board and the International Financial Reporting Interpretations Committee and their predecessors and the requirements of all relevant laws.

“Auditors” means Güney Bağımsız Denetim ve Serbest Muhasebeci Mali Müşavirlik A.Ş., an affiliate of Ernst & Young in Turkey;

“Authority” means a supra-national, national or sub-national authority, commission, department, agency, regulator or regulatory body with jurisdiction in any jurisdiction whose Laws are applicable to the Group Companies;

“B, C, D and E Sellers” means all the Sellers other than the Management Seller;

“Beneficiaries” has the meaning given to it in Clause 8.1;

“Beşiktaş Branch” means the branch of the Company established on 14 February 2019, with the registered address Levazım Mahallesi Koru Sk. Zorlu Center Apt. no 2/445 Besiktas/Istanbul;

“Budget” means the operating budget for the calendar years 2020, 2021 and 2022 in the agreed terms to be adopted by the Company on Completion;

“Business” means the business of the Group comprising the development, marketing and publishing of games on mobile and online platforms as conducted by it on the date of this Agreement and from time to time thereafter;

“Business Data” means all data and information that is created or used by a Group Company, or is processed by or stored on any Company IT Asset;

“Business Day” means a day (other than a Saturday or Sunday or a public holiday) when commercial banks are open for ordinary banking business in London, United Kingdom, Istanbul, Turkey, and San Francisco, California;

“Business Domain Name” means any domain name which any of the Group Companies has or purports to have, control of or an ownership interest of any nature in (whether exclusively, jointly with another person, or otherwise);

“Business Information” means drawings, formulae, test results, reports, project reports and testing, operation and manufacturing procedures, shop practices, instruction and training manuals, tables of operating conditions, market forecasts, specifications, data, quotations, tables, lists and particulars of customers and suppliers, marketing methods and procedures, technical literature and brochures and any other technical, industrial and commercial information and techniques in any tangible form (including paper, electronically stored data, magnetic media, microfiche, film and microfilm);

“Business IP” means any Intellectual Property Right in which any of the Group Companies has or purports to have an ownership interest of any nature (whether exclusively, jointly with another person, or otherwise) or that is used, or held for use, by any Group Company;

“Business Materials” means all:

“Business Owned IP” means all:

 

 

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“Business Owned Software” means any and all Business Software in which any of the Group Companies has or purports to have an ownership interest of any nature (whether exclusively, jointly with another person, or otherwise);

“Business Plan” means the business plan and the Budget in the agreed terms to be adopted by the Company on Completion;

“Business Product” means all products, games or other offerings:

“Business Social Media Account” means any online social media or customer outreach services maintained by any of the Group Companies;

“Business Software” means all Software that is:

in each case by or on behalf of any of the Group Companies at any time, but excluding any third-party Software that is generally available on standard commercial terms and is licensed to a Group Company, in object code form and on a non-exclusive basis;

“Cash” means, in relation to the Group,

“Cause Event” means any event, act or omission that entitles any Group Company that employs the relevant Management Seller or Key Employee to terminate the employment of such Management Seller or Key Employee (i) due to a material breach by such Management

 

 

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Seller of Clause 14 (Restrictions on the Management Seller) of this Agreement or the Management Seller Employment Agreement, or (ii) due to a material breach by such Key Employee of the Key Employee Employment Agreement, or (iii) in accordance with Article 25 of the Turkish Labor Law, except for Article 25(II)(g), for so long as any such Management Seller or Key Employee’s absence does not materially impact the Company’s Business and day-to-day operations or (iv) due to such Management Seller or Key Employee (a) engaging in conduct that constitutes fraud, fraudulent misrepresentation or wilful misconduct in the performance of his or her duties and responsibilities; and (b) failing to carry out material duties of his or her position as determined under the respective Management Seller Employment Agreement or Key Employee Employment Agreement or follow lawful instructions from his or her superiors, being the Company’s board of directors or the Purchaser in the case of the Key Employees and the Company’s board of directors or the Purchaser in the case of the Management Seller; (d) engaging in or committing an unlawful act causing material breach of trust to the Company, Group Company or the Purchaser; (e) committing any willful, material violation of any Law applicable to the Group Companies, code of ethics, policies or regulation applicable to the Business of the Company and the Group Company causing material damage thereto; (f) failing (other than due to physical incapacity) to cooperate with an investigation by a Governmental Authority or the Company, Group Company or Purchaser of the Company’s Business or financial condition in violation of the applicable laws; regardless of whether such actions under (a) through (f) qualify as one of the reasons under Article 25 of the Turkish Labor Law; provided, that in each case under clause (i) through (iv), the Company provides the relevant Management Seller or Key Employee (as applicable) with written notice of the facts related to such claimed reason within 30 days of becoming aware of such claimed reason, and if such claimed reason is not cured (if capable of being curable) within 30 days after the receipt of such written notice by the relevant Management Seller or Key Employee (such 30-day period the “Company Management Cure Period”), and the Company actually terminates, or serves notice to terminate, employment for cause within 10 days after the expiration of the Company Management Cure Period (as applicable);

“Cessation Date” means the effective termination date on which the Management Seller or a Key Employee actually ceases to be an employee of the Purchaser or any Group Company;

“Change of Control Payments” means any compensation, bonuses, profit sharing, severance or other termination payments or benefits, retention payments, ‘phantom stock agreements’, stock-based or phantom equity compensation items, and other similar payments or benefits owed by a Group Company to the Workers, Key Employees and Management Seller, former employees, shareholders or contractors of any Group Company that are triggered in connection with the Transaction or the transfer of the Excluded Business following Completion and the employer portion of any Taxes resulting from such payments or benefits;

“Claim” means any Warranty Claim, Indemnity Claim, or Tax Claim;

“Code” means the United States Internal Revenue Code of 1986, as amended;

“Company” means Peak Oyun Yazılım ve Pazarlama Anonim Şirketi, further details of which are set out in Part 1 of Schedule 2;

“Company IT Assets” means all Software, databases, systems, servers, computers, Hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and other information technology or communication equipment used in the operation of the business of a Group Company;

“Completion” means completion of the sale and purchase of the Shares under this Agreement, in accordance with the provisions hereof;

“Completion Accounts” means the accounts prepared in accordance with Part 1 of Schedule 9 (Rules for Preparation of Completion Accounts);

 

 

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“Completion Date” means the fifth (5^th) Business Day after (and excluding) the day on which the last of the Conditions has been satisfied or waived in accordance with this Agreement or such other date as the Parties agree in writing;

“Conditions” means the conditions referred to in Clause 3 (Conditions);

“Connected Person” means, in relation to an Undertaking:

any nominee, trustee or agent or any other person acting on behalf of any person referred to in in this definition;

“Continuing Provisions” means Clause 1 (Interpretation), Clause 17 (Confidentiality), Clause 18 (Announcements), Clause 19 (No Assignment), Clause 21 (Entire Agreement), Clause 22 (Severance and Validity), Clause 23 (Variations), Clause 24 (Remedies and Waivers), Clause 26 (Third Party Rights), Clause 27 (Payments), Clause 28 (Costs and Expenses), Clause 31 (Notices), Clause 33 (Governing Law and Jurisdiction), Clause 34 (Agent for Service of Process) and Clause 35 (Sellers’ Representatives), all of which shall continue to apply after the termination of this Agreement pursuant to Clause 3.10 (Conditions) and Clause 7.6(c) (Completion) without limit in time;

“Control” means, in relation to a person, any person who:

 

 

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and the terms “Controlling” and “Controlled” shall be construed accordingly and any two or more persons acting together to secure or exercise Control of another person shall be viewed as Controlling that other person;

“Controller” means any entity that, alone or jointly with others, determines the purposes for which, and means by which, Personal Data are Processed;

[***];

“Data Protection Authority” means any local, national, supranational, state, governmental or quasi-governmental agency, body, department, board, official or entity exercising regulatory or supervisory authority pursuant to any Data Protection Laws;

“Data Protection Laws” means, in each case to the extent that they have been applicable to a Group Company at any time prior to the date of this Agreement: (a) all Laws applicable to the Processing of Personal Data, including, but not limited to, Regulation (EU) 2016/679, EU Directives 95/46/EC, 2002/58/EC and 2009/136/EC (each as implemented into the national laws of EU Member States), Turkish Personal Data Protection Law numbered 6698 and its secondary legislation, Federal Trade Commission Act of 1914, Children’s Online Privacy Protection Act of 1998, and California Consumer Privacy Act of 2018; and (b) all formal guidance and codes issued by any Data Protection Authority in the European Union or the United Kingdom (including guidance and codes issued by the Article 29 Working Party and the European Data Protection Board, or the Information Commissioner's Office), all formal guidance issued by Turkish Personal Data Protection Authority, all guidance and regulations issued by applicable United States federal Authorities (including, but not limited to, the Federal Trade Commission) and applicable state Authorities (including, but not limited to, any state attorney general),each to the extent in force, implemented, and applicable, and each as amended, consolidated or replaced from time to time;

“Data Room” means the electronic data room facility hosted by Merrill DatasiteOne comprising the actual copies of documents and other information relating to the Business and the Group made available to the Purchaser’s Group and its advisers, as itemised in the data room index in the agreed terms;

“Data Subject” means an individual who is the subject of the relevant Personal Data;

“Debt” means the aggregate of:

“Disclosed” means fairly and specifically disclosed in the Disclosure Letters with sufficient detail to enable the Purchaser to understand the nature and scope of the matter disclosed;

“Disclosure Letters” means (i) the First Disclosure Letter, (ii) the Second Disclosure Letter and (iii) the Updated Second Disclosure Letter;

“Draft Completion Accounts” has the meaning given in paragraph 1.1, Part 3 of Schedule 9 (Preparation, Delivery and Agreement);

 

 

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“Economic Sanctions Law” means, in each case to the extent that they have been applicable to a Group Company at any time prior to the date of this Agreement: economic or financial sanctions, restrictive measures, trade embargoes or export control Laws imposed, administered or enforced from time to time by any Sanctions Authority;

“Encumbrance” means any pledge, charge, lien, mortgage, debenture, hypothecation, security interest, pre‑emption right, option, claim, equitable right, power of sale, pledge, retention of title, right of first refusal or other third party right or security interest of any kind or an agreement, arrangement or obligation to create any of the above;

“Escrow Account” means the deposit account to be opened in the name of the Escrow Agent and operated in accordance with the Escrow Agreement;

“Escrow Agent” means JPMorgan Chase Bank, N.A.;

“Escrow Agreement” means the escrow agreement to be entered into on or around the date of this Agreement between the Escrow Agent, the Purchaser and the Sellers;

“Escrow Amount” means the amount of US$120,000,000;

“Estimated Debt” means the Management Seller's good faith estimate of (i) the aggregate Debt to be owed by the Group as at 9 am Istanbul time on the Completion Date; (ii) all Change of Control Payments; and (iii) all Transaction Expenses, as notified to the Purchaser in writing not less than (five) 5 Business Days prior to Completion, together with such supporting evidence in written form as is reasonably necessary for the Purchaser to understand the estimate;

“Estimated Working Capital” means the Working Capital estimated by the Management Seller in good faith to be held by the Group as at 9 am Istanbul time on the Completion Date, as notified to the Purchaser in writing not less than (five) 5 Business Days prior to Completion, together with such supporting evidence in written form as is reasonably necessary for the Purchaser to understand the estimate;

“Excluded Business” means the [***] business unit of the Group and all projects being carried out by that business unit, together with all Intellectual Property Rights owned by a Group Company and used, or held for use, exclusively in that business unit and any working furniture, fixtures, Hardware or Software, in each case used, or held for use, exclusively in that business unit, details of which are set out in Schedule 8 (Excluded Business);

“Excluded Business Entity” means the entity to which the Excluded Business will be transferred on the Excluded Business Transfer Terms;

“Excluded Business Transfer” means the transfer of the Excluded Business on the Excluded Business Transfer Terms;

“Excluded Business Transfer Terms” means the terms on which it is proposed to transfer the Excluded Business to a third party between the signing of this Agreement and three (3) months following the Completion Date, including details of any transitional services agreement under which it is intended that the Company should provide [***] services to the purchaser of the Excluded Business;

“Existing Shareholders’ Agreement” means the shareholders’ agreement relating to the Company, dated 22 December 2017;

“Expert” has the meaning given in paragraph 2.1, Part 3 of Schedule 9 (Preparation, Delivery and Agreement);

“First Disclosure Letter” means the letter of today’s date from the Management Seller to the Purchaser in the agreed terms and delivered to the Purchaser before the execution of this Agreement in respect of the Management Warranties;

 

 

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“Fundamental Warranties” means the Warranties set out in Part 1 of Schedule 4 (Warranties);

“Fundamental Warranty Claim” means any claim for breach of a Fundamental Warranty;

“General Loan Agreements” means the general loan agreements entered into by the Company [***];

“Good Leaver” means any Key Employee or Management Seller who becomes a Leaver by reason of: (i) his or her termination of employment by a Group Company other than as a result of a Cause Event; or (ii) his or her resignation for a Good Reason;

“Good Reason” means any of the following actions being undertaken by the Company's board of directors or general assembly or by any person other than the Management Seller authorised or directed by the Company's board of directors or general assembly to undertake the same without the relevant Management Seller’s or Key Employee’s prior written consent (as applicable): (a) the Company requiring the relevant Management Seller or Key Employee (as applicable) to relocate to a facility or location more than 50 kilometres from the location at which he or she was primarily located immediately prior to such requirement; (b) any reduction in the relevant Management Seller's or Key Employee’s (as applicable) base salary or target bonus, or any significant reduction in their benefits (other than a reduction consented to by such Management Seller/Key Employee) (for the avoidance of doubt, this excludes equity-based awards granted by the Purchaser or one-time payments or awards paid or granted in connection with the Transaction without limiting the Management Seller's or Key Employee’s rights to receive a one-time grant of RSUs under Clause 8 (Post-Completion Stock Awards) of this Agreement); (c) any significant reduction in the Management Seller’s and/or any Key Employee’s title, role and responsibilities by the Company’s board of directors or general assembly (without the Management Seller's prior written consent); (d) employment of any employee to the Group Companies, without the Management Seller's prior written consent not to be unreasonably withheld, delayed or conditioned; (e) the assignment of any duties materially inconsistent in any respect with the relevant Management Seller's or Key Employee’s (as applicable) role and responsibilities or any other action by the Company resulting in a material detriment to the participant’s position, authority, duties or responsibilities; (f) any other circumstances constituting unlawful termination (haksız fesih) in Turkey of the relevant Management Seller or Key Employee (as applicable); (g) any material breach by the Purchaser of this Agreement or any material breach by the Purchaser or the Company of the Management Seller Employment Agreement or Key Employee Employment Agreement; (h) any dissolution or liquidation of the Company; (i) with respect to the Management Seller only, any disposition or exclusive license of any material non-cash asset of the Company to any party (except for the permitted assignees and dispositions with respect to the Excluded Business) without the Management Seller’s prior written consent; or (j) adoption and modification of any internal directive and signature circular which cause any significant reduction in the Management Seller’s and/or any Key Employee’s authority, provided, in each case (a) through (j), that the relevant Key Employee or the Management Seller provides the Company with written notice of the existence of the change, breach or condition described above within 30 days of the Management Seller or the relevant Key Employee becoming aware of its occurrence, and the change, breach or condition is not cured (if curable) within 30 days after the Purchaser’s receipt of such written notice (such 30-day period the “Company Cure Period”), and the Management Seller or the relevant Key Employee (as applicable) actually terminates, or serves notice to terminate, employment for Good Reason within 10 days after the expiration of the Company Cure Period (as applicable);

“Governmental Authority” means any federal, national, supranational, state, provincial, local or similar government, governmental, regulatory or administrative authority, branch, agency or commission or any court, tribunal, or arbitral or judicial body;

 

 

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“Group” means the Company and its Subsidiary and the expression “Group Company” shall be construed accordingly;

“Hardware” means any and all:

“Harmful Code” means “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” or “worm” (as such terms are commonly understood in the software industry) or any similar mechanism or device, or any other code designed or intended to have, or intended to be capable of performing, any of the following functions: (a) disrupting, disabling, harming, or otherwise impeding in any manner the operation of, or providing unauthorised access to, a computer system or network or other device on which such code is stored or installed; or (b) damaging or destroying any data or file, in each case, without the user’s consent;

“HSR Act” means the Hart Scott Rodino Antitrust Improvements Act of 1976, 15 U.S.C. § 18a et seq., as amended, and the rules and regulations promulgated thereunder;

“IFRS Accounts” means the audited consolidated financial statements of the Group, prepared based on the Applicable Accounting Standards, for the accounting reference period ended on the Accounts Date and for each of the three (3) previous accounting reference periods, together with, in each case, the auditors’ and directors’ reports and the notes to the audited financial statements, such financial statements comprising, in each case, a balance sheet, a profit and loss account and a cash flow statement;

“Indemnities” means the indemnities given by the Sellers in Clause 13 (Specific Indemnities);

“Indemnity Claim” means any claim under the Indemnities;

“Intellectual Property Right” means (i) patents, all reissues, divisions, renewals, extensions, continuations and continuations in part thereof, rights in inventions and invention disclosures and utility models, (ii) trademarks, service marks, trade and business names, trade dress, rights in get-up, goodwill, any right to sue for passing-off, rights in and to domain names, (iii) registered designs, design rights, (iv) copyright and neighbouring rights, rights in Software, works of authorship (whether copyrightable or not) and mask works, (v) database rights, (vi) rights in Business Information, trade secrets, know-how and confidential information of all kinds and (vii) any other intellectual property rights or industrial property rights or proprietary rights which may subsist now or in the future, in each case of (i) through (vii) in any part of the world and whether or not registered, issued or granted, or subject to a pending application for registration, issuance or grant, and including, any registration of and application (and rights to apply) for, registration, issuance or grant, or renewals or extensions of, and all rights to claim priority from, any of the foregoing;

“Interest Rate” means interest at the rate of two per cent. (2%) per annum above the LIBOR, calculated and compounded quarterly, provided if the LIBOR is negative then it should be considered as zero for the purposes of calculation of the Interest Rate;

“Issued Shares” means all shares of Purchaser’s Common Stock issued to any of the Sellers in accordance with this Agreement in satisfaction of the Purchaser’s obligation to pay the Total Purchase Consideration;

 

 

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“IT Contracts” means all written and oral agreements and arrangements relating to any of the Company IT Assets or under which any third party provides or is obliged to provide any element of, or services relating to, any of the Company IT Assets;

“Key Employee” means each of [***];

“Key Employee Employment Agreements” means the employment agreements or employment agreement amendments, which include non-competition and non-solicitation restrictive covenants applicable both for the term of employment and post termination, in the agreed terms to be entered into on Completion between the Company and each of the Key Employees;

“Knowledge” means (i) with respect to the Management Seller, such Seller’s actual knowledge and the knowledge that such Seller would reasonably be expected to have obtained if such Seller had made reasonable enquiries of the Key Employees, (ii) with respect to the B, C, D and E Sellers, such Seller’s actual knowledge, and (iii) with respect to all Sellers, including any knowledge such Seller has obtained as a result of having served as or appointed a director to the board of directors of the Company (if applicable);

“Law” means any statute, law, ordinance, rule or regulation of any Governmental Authority;

“Leased Properties” means the leased land and premises currently owned, used or occupied by the Group, details of which are set out in Part 1 of Schedule 7 (Properties);

“Leaver” means the Management Seller or a Key Employee in relation to whom a Cessation Date has occurred;

“LIBOR” means the London Inter-Bank Offered Rate administered by ICE Benchmark Administration Limited (or any other person who takes over the administration of that rate) giving an average rate at which a leading bank can obtain unsecured funding for a given period in a given currency in the London market displayed on pages LIBOR01 or LIBOR 02 of the Thomson Reuters screen (or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters);

“Long Stop Date” means 31 August 2020, subject to an automatic extension of one (1) month to the extent that the Merger Conditions have not been satisfied by such date, provided that such failure is not due to any act or omission of the Purchaser, or such other date as the Parties may agree in writing;

“Loss” or “Losses” means any and all direct or indirect or consequential (in each case only to the extent reasonably foreseeable and not remote) losses, liabilities (including Tax), actions and claims, including charges, costs, damages, fines, penalties, interest and all legal and other professional fees and expenses (as long as reasonable and documented) including, in each case, all related Taxes, but in each case excluding any punitive, exemplary or special damages;

“Management Accounts” means the unaudited balance sheet of the Group Companies as at April 30, 2020 and the unaudited profit and loss account and unaudited cash flow statement of the Group Companies for the period ended on such date;

“Management Seller” means Sidar Şahin;

“Management Seller Certificate” means a certificate signed by the Management Seller and dated on the Completion Date confirming that (i) other than as Disclosed in the First Disclosure Letter or the Second Disclosure Letter (if applicable), the Non-Material Warranties are true and accurate in all material respects as at the Completion Date and (ii) the Company has performed and complied with each of the covenants and obligations under this Agreement required to be performed and complied with by it as of the Completion Date;

 

 

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“Management Seller Employment Agreement” means the employment agreement, which includes post termination non-competition and non-solicitation restrictive covenants, in the agreed terms to be entered into on Completion between the Company and the Management Seller;

“Management Seller Payments” means any payments owed by the Management Seller to the Workers, Key Employees, former employees, shareholders or contractors of any Group Company in connection with the Transaction or the transfer of the Excluded Business following Completion;

“Management Warranties” means the Warranties set out in Part 2 of Schedule 4 (Warranties);

“Management Warranty Claim” means any claim for breach of a Management Warranty;

“Material Contract” means the agreements set out under paragraph 5.1 of Schedule 4 (Warranties);

“Material Effect” means where the Losses arising as a result of, or in connection with, any Fundamental Warranties and/or Material Warranties not being true and accurate would exceed, or could reasonably be expected to exceed, US$[***] in aggregate, except where the breach of the Fundamental Warranties or Material Warranties arises from general political, economic or financial events that do not disproportionately affect the Group taken as a whole;

“Material Warranties” means the following Management Warranties set out at paragraphs 7.1, 9, 10.1, 16.3, 16.6, 16.7, 16.10, 16.11, 16.12, 16.14, 16.15, 16.16, 16.17, 16.20(a), 16.21, 16.23, 16.27, 16.28, 16.29, 17.2, 17.4 (IP); and 18.1, 18.14 (Data Protection);

“Non‑Acceptance Notice” has the meaning given in paragraph 1.2(b), Part 3 of Schedule 9 (Preparation, Delivery and Agreement);

“Non-Exclusive Software Licences” means non-exclusive licences to third-party software that:

“Non-Material Warranties” means the Management Warranties that are not Material Warranties;

“Open Source Code” (a) means any software (including libraries) that (i) consists of, contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software or open source software or (ii) requires as a condition of its use, modification or distribution that it, or other software incorporated into it, linked with it, distributed with it, or derived from it, be disclosed or distributed in source code form or made available at no charge; and (b) includes any and all software (including libraries) licensed under the GNU General Public License (GPL), the GNU Lesser/Library GPL, the Mozilla Public License, or any other licence listed at www.opensource.org;

“Paid Change of Control Payments” means the Change of Control Payments that have been satisfied on or before Completion and included in the Estimated Debt;

 

 

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“Parent Undertaking” means an Undertaking which, in relation to another Undertaking, a “Subsidiary Undertaking”:

and an Undertaking shall be treated as the Parent Undertaking of any Undertaking in relation to which any of its Subsidiary Undertakings is, or is to be treated as, the Parent Undertaking, and Subsidiary Undertaking shall be construed accordingly;

“Party” means a party to this Agreement and “Parties” shall mean the parties to this Agreement;

“Personal Data” means any information relating to an identified or identifiable natural person;

“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed;

“Preliminary Seller Certificates” means: (a) a certificate signed by each Seller and delivered to the Purchaser no later than 3 Business Days before the Completion Date confirming that other than as Disclosed in the First Disclosure Letter, the Fundamental Warranties in respect of that Seller are true and accurate in all material respects as at the date of the certificate; and (b) a certificate signed by the Management Seller and delivered to the Purchaser no later than 3 Business Days before the Completion Date confirming that other than as Disclosed in the First Disclosure Letter, the Material Warranties are true and accurate in all material respects as at the date of the certificate, in each case except for the actions, situations, circumstances or events which occur between the date of this Agreement and the date of the certificates, information in respect of which is set out in the certificate with sufficient detail to enable the Purchaser to understand the nature and scope of the information provided;

“Privacy and Data Security Policies” means: (1) all of the privacy policies and procedures of the Group Companies; and (2) all of the policies and procedures of the Group Companies relating to data security; that have been adopted and implemented at any time, whether such policies or procedures are formal or informal or written or unwritten;

“Pro Rata Portion” means, in relation to a Seller, the percentage figure specified opposite that Seller’s name in column 3 of Schedule 1 (The Sellers);

“Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, including but not limited to: collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction;

“Processor” means any person or entity that Processes Personal Data on behalf of a Controller (other than an employee of the Controller);

“Prohibited Person” means any person, organisation or vessel: (i) listed on, or owned or controlled (as such terms, including any applicable ownership and control requirements, are defined and construed in the applicable Economic Sanctions Law or in any related official

 

 

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guidance) by a person or organisation listed on, a Sanctions List; (ii) a government of a Sanctioned Territory; (iii) an agency or instrumentality of, or an entity directly or indirectly owned or controlled by, a government of a Sanctioned Territory; (iv) resident or located in, operating from, or incorporated under the laws of, a Sanctioned Territory; or (v) otherwise a target of any Economic Sanctions Law, or is acting on behalf of any of the persons listed in paragraphs (i) to (v) above, for the purpose of evading or avoiding, or having the intended effect of or intending to evade or avoid, or facilitating the evasion or avoidance of any Economic Sanctions Law;

“Properties” means the Leased Properties;

“Purchaser’s Common Stock” means the Class A common stock, par value US$0.00000625 per share of the Purchaser listed on the NASDAQ Global Select Market;

“Purchaser’s Common Stock Price” means the volume-weighted average closing price per share rounded to four decimal places of the Purchaser’s Common Stock as reported on the NASDAQ Global Select Market during the thirty (30) consecutive trading day period immediately prior to the signing date of this Agreement (as adjusted to reflect any stock split, reverse stock split, stock dividend or similar transaction impacting the Purchaser’s Common Stock which may be made by the Purchaser after the date of this Agreement);

“Purchaser’s Group” means the Purchaser, its Subsidiary Undertakings, any Parent Undertaking of the Purchaser and all other Subsidiary Undertakings of any such Parent Undertaking as the case may be from time to time (and including, after Completion, the Group);

“Purchaser’s Lawyers” means White & Case LLP of 5 Old Broad Street, London EC2N 1DW and GKC Partners of Ferko Signature, Büyükdere Caddesi No: 175 Kat: 10, 34394 Levent, İstanbul;

“Purchaser’s Warranties” means the warranties referred to in Clause 10.1 (Purchaser's Warranties);

“Refund Amount” has the meaning given to it in paragraph 8.4, Schedule 12 (Tax Covenant);

“Registered Business IP Right” means any Intellectual Property Right that is the subject matter of a grant, issuance or registration, or of an application for any of the foregoing, and in which any of the Group Companies has or purports to have an ownership interest of any nature (whether exclusively, jointly with another person, or otherwise);

“Regulation” means Council Regulation (EC) 139/2004;

“Related Persons” has the meaning given in Clause 21.4;

“Relevant Party’s Group” means in relation to the Purchaser, the Purchaser’s Group; in relation to a Seller, the Sellers and their Related Persons;

“Relevant Portion of W&I Premium” means the proportion of W&I Premium to be paid by each of the Sellers based on its Pro Rata Portion;

“Relevant Sale Shares” means, in relation to a Seller, the Shares set out against that Seller’s name in Schedule 1;

“Relief” means any relief, loss, allowance, credit, set-off, deduction or exemption for any Tax purposes and any right to repayment of Tax; and:

 

 

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“Reports” means the legal due diligence report dated 30 May 2020 prepared by the Purchaser’s Lawyers and the tax due diligence report dated 27 May 2020 prepared by [***], each addressed to the Purchaser;

“RSUs” has the meaning given in Clause 8.1;

“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such rule may be amended time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such rule;

“Sanctioned Territory” means any country or other territory subject to a general export, import, financial or investment embargo under any Economic Sanctions Law, which, as of the date of this Agreement, include Crimea, Cuba, Iran, North Korea, Sudan and Syria;

“Sanctions” means any laws or regulations relating to economic or financial sanctions or trade embargoes or related restrictive measures imposed, administered or enforced from time to time by a Sanctions Authority;

“Sanctions Authority” means: (i) the United States; (ii) the United Nations Security Council; (iii) the European Union or any member state thereof; (iv) the United Kingdom; or (v) the respective governmental institutions of any of the foregoing including, without limitation, OFAC, the U.S. Department of Commerce, the U.S. Department of State, any other agency of the U.S. government, and Her Majesty’s Treasury;

“Sanctions List” means any of the lists of designated or sanctioned individuals or entities (or equivalent) issued by any Sanctions Authority, each as amended, supplemented or substituted from time to time, including, without limitation, the List of Specially Designated Nationals and Blocked Persons, Foreign Sanctions Evaders List, Sectoral Sanctions Identifications List, and List of Persons Identified as Blocked Solely Pursuant to Executive Order 13599, each administered by OFAC; the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions; and the Consolidated List of Financial Sanctions Targets in the UK, each administered by Her Majesty’s Treasury;

“Second Disclosure Letter” means the letter from the Management Seller to the Purchaser delivered to the Purchaser no later than three (3) Business Days before the Completion Date of any action, situation, circumstance or event occurring between the date of this Agreement and the Completion Date and which (i) would result in a Non-Material Warranty failing to be true and accurate as at the date of Completion in all material respects and/or (ii) is an update to the matters previously Disclosed in the First Disclosure Letter;

“Seller Certificates” means: (a) a certificate signed by each Seller and delivered to the Purchaser on the Completion Date confirming that other than as Disclosed in the First Disclosure Letter, the Fundamental Warranties in respect of that Seller are true and accurate in all material respects as at the date of the certificate; and (b) a certificate signed by the Management Seller and delivered to the Purchaser on the Completion Date confirming that other than as Disclosed in the First Disclosure Letter, the Material Warranties are true and accurate in all material respects as at the date of the certificate, in each case substantially in the same form as the Preliminary Seller Certificates save for any actions, situations, circumstances or events that have arisen or became known to the relevant Seller between the date of the Preliminary Seller Certificates and the Completion Date, information in respect of which is set out in the certificate with sufficient detail to enable the Purchaser to understand the nature and scope of the information provided;

“Seller’s Designated Bank Account” means (i) the relevant bank account details set out next to each Seller in Schedule 1 or (other bank account details to be notified by the relevant Seller

 

 

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to the Purchaser in writing by no later than three (3) Business Days before the Completion Date);

“Sellers’ Lawyers” means Esin Attorney Partnership and Baker McKenzie LLP;

“Sellers’ Portion of Transfer Taxes” means 50% of the total amount of the stamp duties to be paid by the Purchaser in connection with this Agreement and the Escrow Agreement and as deducted from the Total Purchase Consideration of each Seller in the amounts set out in Schedule 1;

“Sellers’ Representatives” means the persons designated by each of the Sellers to serve as its representative in accordance with Clause 35 (Sellers’ Representatives);

“Shares” means the 28,593,128 ordinary shares of TL 1.00 each comprising the entire issued share capital of the Company as at the date of this Agreement and as at Completion, together with any other share options, warrants, convertible securities or any other rights to acquire shares (or interests in shares) in the capital of the Company in existence at Completion;

“Software” means any and all (i) computer code and computer programs, including all application programming interfaces (APIs), whether in Source Code, object code or other form, (ii) electronic databases and other electronic compilations and collections of data and information, and all data and information included in any of the foregoing, (iii) screens and user interfaces; (iv) descriptions, flow-charts, diagrams, user requirements, specifications, algorithms and other materials used to design, plan, organize and develop any of the foregoing, and (v) source code annotations and other documentation (including user, installation and other manuals) relating to any of the foregoing;

“Source Code” means software programming code (including flash .swf source code, C++ server source code and JAVA source code) expressed in human readable language;

“Statutory Books” means all statutory books and records of the Company, including, (i) for the Company: journal (yevmiye defteri), book of final entry (defter-i kebir), inventory book (envanter defteri), fixed asset ledger (amortisman defteri), general assembly resolution book (genel kurul karar defteri), board of directors resolution book (yönetim kurulu karar defteri), share book (pay defteri); and (ii) for the Subsidiary: shareholders’ register, special register, board of directors and shareholders’ resolutions, annual reports, and financials;

“Subsidiary” means Peak Games Inc., further details of which are set out in Part 2 of Schedule 2;

“Target Working Capital” means US$[***];

“Tax” or “Taxation” means: (i) any form of tax, levy, impost, or duty, including net income, alternative or add-on minimum, gross income, estimated, gross receipts, sales, use, ad valorem, VAT, digital, advertising, entertainment, transfer, franchise, fringe benefit, capital stock, profits, license, registration, resource utilization support fund, special consumption, special transaction, banking and insurance transaction, recycling contribution fee, withholding, payroll, social security, employment, unemployment, disability, excise, severance, stamp, occupation, premium, property (real, tangible, or intangible), environmental or windfall profit tax, custom duty or other tax, governmental fee or other similar assessment or charge, together with any interest or any penalty, imposed, collected or assessed by, or payable to, a Taxation Authority; (ii) any liability for the payment of any amounts of the type described in clause (i) of this sentence as a result of being a member of an affiliated, consolidated, combined, unitary or aggregate group for any period; and (iii) any liability for the payment of any amounts of the type described in clause (i) or (ii) of this sentence as a result of being a transferee of or successor to any person or as a result of any contract (other than an ordinary commercial agreement);

 

 

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“Tax Authority Claim” means any claim, demand, assessment, letter or other document issued, or action taken, by or on behalf of any Taxation Authority or person;

“Tax Claim” means any Tax Covenant Claim or Tax Warranty Claim;

“Tax Covenant” means the tax covenant set out in Schedule 12;

“Tax Covenant Claim” means any claim by the Purchaser under the Tax Covenant;

“Tax Warranties” means the Warranties set out in paragraph 22 of Schedule 4 (Warranties);

“Tax Warranty Claim” means any claim for breach of a Tax Warranty;

“Taxation Authority” means any government, federal, state, local, or foreign tax service, agency, municipality, customs office, competition authority, social security institution, office, commission, department, bureau, court or similar organization with authority to assess, assert, or otherwise impose Tax or collect unpaid Taxes of any Party;

“TCC” means the Turkish Commercial Code No. 6102 (Türk Ticaret Kanunu) published in the Official Gazette dated 14 February 2011 and numbered 27846;

“Termination Agreement” means the termination agreement of the Existing Shareholders’ Agreement in agreed form to be entered into on Completion;

“TFRS” means Turkish Accounting Standards and Turkish Financial Reporting Standards issued by the Turkish Public Oversight Accounting and Auditing Standards Authority in accordance with the TCC and the Public Oversight, Accounting and Auditing Standards Authority’s Organization and Responsibilities Decree numbered 660 published on 2 November 2011;

“TFRS Accounts” means the audited consolidated financial statements of the Group prepared based on the TFRS, for the accounting reference period ended on the Accounts Date and for each of the three (3) previous accounting reference periods, together with, in each case, the auditors’ and directors’ reports and the notes to the audited financial statements, such financial statements comprising, in each case, a balance sheet, a profit and loss account and a cash flow statement;

“Total Purchase Consideration” has the meaning given to it in Clause 4.1;

“Transaction” has the meaning given to it in Recital (B);

“Transaction Documents” means this Agreement, the Termination Agreement, the Disclosure Letters, the Escrow Agreement, any arbitration clauses and/or agreements in connection with the Transaction;

“Transaction Expenses” means any fees, costs and expenses incurred or agreed to be incurred by the Group to the extent that they are specifically incurred in connection with the Transaction, including: (i) all termination, balloon or similar payments resulting from early termination of contracts or outstanding debt as a result of or in connection with the Transaction; (ii) all payments required to obtain consents, waivers, terminations or amendments under any agreement of the Company as a result of or in connection with the Transaction; (iii) the employer portion of any taxes and any withholding taxes resulting from the cash out of share options and other compensatory payments in connection with the Transaction; (iv) all premiums and other amounts payable to obtain tail coverage under the Company’s existing D&O insurance policy; (v) any other similar expenses discovered during due diligence that remain unpaid at Completion; and (vi) any and all costs, taxes that the Company will pay in connection with the Transaction, including but not limited to payables to advisors and/or bonus payments to the Workers, Key Employees and the Management Seller and/or any other employees of the Group;

 

 

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“Transfer Taxes” means all transfer, documentary, sales, use, stamp, registration, VAT, and other similar Taxes and fees (including any penalties and interest);

“U.S. GAAP” means generally accepted accounting principles in the United States as in effect as of the applicable date of determination;

“Undertaking” means a body corporate or partnership or an unincorporated association carrying on trade or business;

“Unpaid Change of Control Payments” means any Change of Control Payments that are not Paid Change of Control Payments;

"Updated Second Disclosure Letter" means the letter from the Management Seller to the Purchaser delivered to the Purchaser on the Completion Date and being in substantially the same form as the Second Disclosure Letter, save for any action, situation, circumstance or event occurring between the date of the Second Disclosure Letter and the Completion Date and which (i) would result in a Non-Material Warranty failing to be true and accurate as at the date of Completion in all material respects and/or (ii) is an update to the matters previously Disclosed in the First Disclosure Letter or the Second Disclosure Letter;

“VAT” means any Tax levied by reference to added value or any sales or turnover tax of a similar nature;

“W&I Insurance” means the buyer’s warranties and indemnity insurance policy issued to the Purchaser by VALE Insurance Partners Europe B.V. with policy number [***] together with the follow on letters signed in connection with such policy under the same terms;

“W&I Premium” means USD[***];

“Warranties” means the warranties referred to in Clause 11 (Sellers’ Warranties) and set out in Schedule 4 (Warranties);

“Warranties Condition” has the meaning given to it in Clause 3.1(c) (Conditions);

“Warranty Claim” means any claim for breach of Warranty;

“Workers” means current or former employees, directors, officers, workers, consultants and self-employed contractors of the Group; and

“Working Capital” means the aggregate working capital of the Group, being the aggregate of the Group’s Cash, current assets (including accounts receivables, other receivables and other current assets and current liabilities (including any pre-Completion taxes and accounts payable but excluding any Debt)).

 

 

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(together, the “Total Purchase Consideration”).

 

 

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provided that the prior written consent of the Purchaser shall be deemed obtained if the Purchaser does not respond to the Sellers’ request for consent within five (5) Business Days of receipt in accordance with Clause 31 (Notice). For the purposes of this Clause 6.1, each of the Purchaser’s Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Chief Administrative Officer, Chief People Officer, Chief Legal Officer or President of Publishing or such other person notified by the Purchaser to the Sellers (or the Sellers’s Representatives) in accordance with Clause 31 (Notice) shall have the authority to act on behalf of the Purchaser.

For the avoidance of doubt, B, C, D and E Sellers shall not be liable against the Purchaser, if the Company takes any actions that would breach Clause 6.1 unless such action is approved by B, C. D or E Sellers at a general assembly and/or board meeting (through the respective directors they have nominated), or such breach occurs due to B, C, D and/or E Sellers not participating to take the necessary decision(s) at a general assembly and/or board meeting (through the respective directors they have nominated).

 

 

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provided that any unvested RSU awards granted to the Management Seller or any Key Employee in connection with the transactions contemplated by this Agreement shall accelerate in full upon such person becoming a Good Leaver. For the avoidance of doubt, provided that

 

 

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in all cases, the Management Seller and Key Employees shall be entitled to the RSU awards vested until the Cessation Date.

 

 

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Any other settlement or disposition may only be made with the prior written consent of the Purchaser, which shall not be unreasonably withheld, conditioned or delayed.

 

 

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or by the mutual agreement of the Parties in writing, the rights and obligations of the Parties under this Agreement shall cease immediately without any further liability on any of the Parties, save under the Continuing Provisions.

 

 

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provided that prior written notice of any confidential information to be disclosed pursuant to Clause 17.3(b) shall be given to the other Party and their reasonable comments taken into account.

 

 

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No Party may assign, transfer, charge, create an Encumbrance over, declare a trust of or otherwise dispose of all or any part of its rights and benefits under this Agreement or any other Transaction Document (including any cause of action arising in connection with any of them) or of any right or interest in any of them without the prior written consent of the other Party.

The Parties shall from time to time and at their own cost do, execute and deliver or procure to be done, executed and delivered all such further acts, documents and things necessary in order to give full effect to this Agreement and its rights, powers and remedies under this Agreement.

If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the Law of any jurisdiction, it shall be deemed to be severed from this Agreement and the Parties shall use all reasonable endeavours to replace such provision with one having an effect as close as possible to the deficient provision. The remaining provisions will remain in full force in that jurisdiction and all provisions will continue in full force in any other jurisdiction.

No variation of this Agreement shall be effective unless in writing and signed by or on behalf of the Parties.

 

 

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The provisions of this Agreement and of the other Transaction Documents which remain to be performed following Completion shall continue in full force and effect notwithstanding Completion.

 

 

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Any and all amounts which are due and payable by one Party to another under this Agreement shall be paid in US$ and shall carry interest at the Interest Rate from the due date for payment up to and including the date of actual payment. In the case of a Claim, the due date for payment shall be treated as being settlement date among the Parties and/or final order or judgment of a court of competent jurisdiction (with all rights of appeal having been exhausted) in accordance with Schedule 5 (Sellers' Limitations on Liability).

provided that if deemed receipt of any Notice occurs after 6:00 pm or is not on a Business Day, deemed receipt of the Notice shall be 9:00 am on the next Business Day. References to time in this Clause 31 are to local time in the country of the addressee.

 

 

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Sellers: to the addresses set out under their names in Schedule 1.

Purchaser:

Name:Zynga Inc.

Address: 699 8^th Street, San Francisco, California 94103

For the attention of:Chief Legal Officer

Email address:[***]@zynga.com

This Agreement may be executed in counterparts and shall be effective when each Party has executed and delivered a counterpart. Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute one and the same instrument.

 

 

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In Witness Whereof each Party has executed and delivered this Agreement as a deed on the date which first appears above.

 

 

 

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Schedule 1

The Sellers¹

 

 

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Schedule 2The Group

Part 1The Company

 

 

 

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Part 2The Subsidiary

 

 

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Schedule 3Completion Arrangements

Part 1
Sellers’ Obligations

At Completion the Sellers shall:

the Transaction shall be approved, and it shall be resolved that the transfer of the Shares shall be approved for registration and (subject to satisfaction of such legal or other requirements as are necessary for the registration to be effected) the Purchaser as the owner of the Shares be registered in the share ledger of the Company and the Subsidiary; and

 

 

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Part 2
Purchaser’s Obligations

At Completion the Purchaser shall:

 

 

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Schedule 4

Warranties

Part 1
Fundamental Warranties

 

 

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either (i) it is an “accredited investor” as that term is defined in Rule 501 of Regulation D under the Securities Act or

(ii) it is not within the United States, is not a U.S. person (as defined in Regulation S) and is not purchasing the Issued Shares for the account or benefit of a U.S. person.

 

 

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Part 2Management Warranties

 

 

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Complete and accurate copies (including of any amendment, variation or extension of any such contract) are contained in the disclosure no. 4 and annex 5.1 of the First Disclosure Letter (list of agreements) and the folder no. 14.1 in the Data Room (copies of agreements) of any written contract to which a Group Company is a party which:

 

 

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Other than as Disclosed, no Group Company has applied for or received any grant, subsidy or allowance from any governmental or other body.

Other than as Disclosed, no Group Company has given any power of attorney or other representation authority which is still in force to any person to enter into any contract or commitment on its behalf.

 

 

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Registered Business IP Rights and Business Domain Names

 

 

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Business Software

 

 

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Business IP

 

 

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and to the Knowledge of the Management Seller, no such notice or complaint is likely to be received.

 

 

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Business Products

 

 

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Schedule 5

Sellers’ Limitations on Liability

For the purposes of this paragraph (b), the term “Claims” shall mean Claims in respect of which liability is admitted by the Sellers or which have been decided upon by a Court of competent jurisdiction with all rights of appeal having been exhausted; and

 

 

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provided that any such Warranty Claim (other than a Tax Warranty Claim) shall (if not previously satisfied, settled or withdrawn) be deemed to have been withdrawn unless legal proceedings in respect of it have been commenced within nine (9) months of such written notice being given to the Sellers or to the Sellers’ Representatives, except that the Sellers shall not be liable for any Claim based upon a liability which is contingent unless and until such contingent liability becomes an actual liability, save that the fact that the liability may not become an actual liability by the relevant date in this paragraph 2 of this Schedule 5 shall not exonerate or release any of the Sellers from liability in respect of any Claim properly notified before that date.

 

 

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Any other settlement or disposition may only be made with the prior written consent of the Purchaser, which shall not be unreasonably withheld, conditional or delayed.

The Purchaser shall be entitled to bring more than one Claim arising out of the same subject matter, fact, event or circumstance but shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one shortfall, damage or deficiency, irrespective of whether it gives rise to more than one Claim.

Other than in relation to Tax Claims, the Sellers shall not be liable in respect of any liability which is contingent unless and until such contingent liability becomes an actual liability.

 

 

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Other than in relation to Tax Claims and Indemnity Claims, the Sellers shall not be liable under this Agreement for any losses or damages other than the Losses of the Purchaser.

After the Completion Date, the Purchaser shall not be entitled to rescind this Agreement or treat this Agreement as terminated by reason of any breach of this Agreement or circumstances giving rise to any Claim and the Purchaser hereby waives any and all rights of rescission it may have in respect of any such matter (other than any such rights arising from the fraud of the Sellers or any of their representatives, agents or advisers).

The Sellers shall not be liable for any Claim (excluding Tax Claims) to the extent that the Loss arises or for any increase in any Claim (excluding Tax Claims) to the extent such increase is as a result of, any change in law or regulation or in its interpretation or administration by the courts or by any other monetary or regulatory authority after the date hereof.

The Sellers shall not be liable in respect of any Claim (excluding Tax Claims) to the extent that:

 

 

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The Purchaser shall not be entitled to make any Claim (excluding Tax Claims) (whether for damages or otherwise) unless the Purchaser has given written notice to the Sellers of the Claim and, to the extent that the breach is remediable, the breach is remedied within 60 days of the date on which written notice of such Claim is served on the Sellers.

Nothing in this Agreement shall or shall be deemed to relieve the Purchaser of its common law duty to mitigate any loss or damage incurred by it in respect of which it may have a claim against the Sellers.

 

 

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Schedule 6Conduct of Business

Part 1
Governing Principles

 

 

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Part 2
Negative Covenants

[***]

 

 

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Schedule 7Properties

Part 1
Leased Properties

[***]

 

 

 

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Schedule 8Excluded Business

[***]

 

 

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Schedule 9Completion Accounts

Part 1
Rules for Preparation of Completion Accounts

In each case in the format customarily used by the Company for its monthly Management Accounts;

 

 

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Part 2
Specific Accounting Treatments

 

 

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Part 3
Preparation, Delivery and Agreement

 

 

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Schedule 10



Post Completion Financial Adjustments

Part 1Adjustments

Debt

Working Capital

Exclusion of Sellers other than the Management Seller

Part 2Settlement of Adjustments

The Purchaser and the Management Seller agree that the sums that each is respectively obliged to pay pursuant to Part 1 (Adjustments) of this Schedule 10 shall be aggregated and set off against each other. Whichever of the Purchaser or the Management Seller is then left with any payment obligation thereunder shall make such aggregated payment to the other Party within ten (10) Business Days of the date on which the Completion Accounts are agreed or determined pursuant to Schedule 9 (Completion Accounts) and in accordance with Clause 27 (Payments).

 

 

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Schedule 11Escrow Account

Part 1
General

Part 2
Payments from the Escrow Account

 

 

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Schedule 12Tax Covenant

 

 

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whether or not that change purports to be effective retrospectively in whole or in part; or

 

 

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provided, however, that this limitation shall not apply to any decision not to carry back, or otherwise utilise, a Purchaser’s Relief; or

 

 

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except where any amount so saved would otherwise have given rise to a claim under this Agreement (in which event no such claim shall be made).

 

 

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.Purchaser

 

Sellers

 

 

 

 

 

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