Attached files
Exhibit 2.3
WAIVER OF ASSET TRANSFER AND AMENDMENT
THIS WAIVER OF ASSET TRANSFER AND AMENDMENT (this “Waiver”) is made effective as of January 21, 2016, by and among ADOBE SYSTEMS INCORPORATED, a Delaware corporation (“Adobe”); ADOBE SOFTWARE TRADING COMPANY LIMITED, an Ireland limited liability company and wholly owned subsidiary of Adobe (“AILP”); ADOBE SYSTEMS SOFTWARE IRELAND LIMITED, an Ireland limited liability company and wholly owned subsidiary of Adobe (“ADIR”); COMSCORE, INC., a Delaware corporation (“comScore”); COMSCORE B.V., a Dutch private limited liability company (besloten vennootschap) and wholly owned subsidiary of comScore (“comScore-Netherlands”); and CSWORLDNET INTERNATIONAL C.V., a Dutch limited partnership and wholly owned subsidiary of comScore (“comScore-CI”). This Waiver references that certain Asset Purchase Agreement dated as of November 5, 2015, by and among the parties hereto (the “Purchase Agreement”). Capitalized terms used herein without definition shall have the meanings ascribed to such terms in the Purchase Agreement.
RECITALS
WHEREAS, Section 1.1(c)(i)(B) of the Purchase Agreement requires that the Sellers sell or cause to be sold, assigned, transferred, conveyed and delivered to Adobe any and all rights of each of the Seller-Related Parties under each of the Contracts set forth on Schedule 1.1(c)(i)(B) (other than any such Contract included in the Excluded Assets);
WHEREAS, five of the Contracts listed on Annex 1.1(c)(i)(B) (incorporated into Schedule 1.1(c)(i)(B) of the Purchase Agreement by reference) were included in error and should not be included in the Transferred Customer Contracts;
WHEREAS, certain other Contracts listed on Annex 1.1(c)(i)(B) were also listed or referenced in Schedule 1.2 of the Purchase Agreement, which sets forth the Excluded Assets; and
WHEREAS, Item 11 in Schedule 1.2 (Excluded Assets) contains a clerical error and refers to “Key Customers,” an undefined term, instead of the defined term “Key Business
Customers.”
WAIVER AND AMENDMENT
NOW, THEREFORE, each party to the Purchase Agreement hereby waives and releases all rights and obligations of Sellers or any of their Affiliates to sell or cause to be sold, assigned, transferred, conveyed, or delivered to Purchasers or any of their Affiliates the following Contracts:
NED-15-06568 | Stichting KijkOnderzoek (SKO) - Netherlands |
NED-15-06567 | Stichting KijkOnderzoek (SKO) - Netherlands |
NED-12-05334-C | MMS AB |
NED-15-09426 | Mediapulse AG |
13-12299-A YR3 | Stichting KijkOnderzoek (SKO) - Netherlands |
Additionally, in furtherance and not in limitation of Section 1.2 of the Purchase Agreement, each party acknowledges that the Contracts set forth on Schedule 1 to this Waiver are Excluded Assets, not Transferred Business Assets, notwithstanding that such Contracts were mistakenly listed on Annex 1.1(c)(i)(B) to the Purchase Agreement (incorporated into Schedule 1.1(c)(i)(B) of the Purchase Agreement by reference). For the avoidance of doubt, it is understood that the list of Contracts set forth on Schedule 1 to this Waiver may not be an exhaustive list of all Contracts listed on Annex 1.1(c)(i)(B) to the Purchase Agreement that constitute Excluded Assets, and that neither this provision nor Annex 1 hereto shall be deemed to modify or limit the definition of “Excluded Assets” under the Purchase Agreement or the effect of Section 1.2 and Schedule 1.2 of the Purchase Agreement, or to preclude any other Contract listed on Annex 1.1(c)(i)(B) to the Purchase Agreement from constituting an Excluded Asset.
Additionally, each party to the Purchase Agreement agrees that Item 11 in Schedule 1.2 is hereby amended to replace the term “Key Customers” with the term “Key Business Customers.”
This Waiver may be signed in counterparts and may be signed by facsimile signature, each of which shall be deemed to be an original, and all of which together shall constitute one and the same document.
(Signatures appear on following page(s))
IN WITNESS WHEREOF, the parties have executed this Waiver to be effective for all purposes as of the date first set forth above.
PURCHASERS:
ADOBE SOFTWARE TRADING COMPANY LIMITED
By: /S/ Richard Rowley
Name: Richard Rowley
Title: Director
SELLERS:
COMSCORE, Inc.
By: /s/ Melvin Wesley, III
Name: Melvin Wesley, III
Title: Chief Financial Officer
COMSCORE B.V.
By: /s/ Melvin Wesley, III
Name: Melvin Wesley, III
Title: Director
CS WORLDNET INTERNATIONAL C.V.
By: comScore Holdings LLC
Its: General Partner
By: /s/ Melvin Wesley, III
Name: Melvin Wesley, III
Title: Director
SCHEDULE 1
CERTAIN EXCLUDED ASSETS
Annex 1 is hereby incorporated into this schedule be reference.
Legal Contract Company Name DAx or CM Entity
Initial
Annex 1 to
Waiver of Asset Transfer and Amendment
Legal Contract | Company Name | Dax or CM | Entity | Initial Delivery Date | Final Delivery Date |
12-12713 YR3 | OTTO BV | DAx only | B.V. | 12/30/14 | 12/29/15 |
13-09316b | HealthiNation | DAx only | United States | 09/01/13 | 10/31/16 |
14-04437 y2 | Comcast Corporation | DAx only | United States | 08/01/15 | 07/01/16 |
14-06315 | Activision Blizzard Inc | DAx only | United States | 06/01/14 | 10/31/17 |
14-06315-A | Activision Blizzard Inc | DAx only | United States | 01/06/15 | 10/31/17 |
14-08037 | Cox Communications | DAx only | United States | 12/31/14 | 12/30/15 |
14-121078 | STAR India Pvt Ltd | DAx Only | India | 12/15/14 | 12/15/15 |
15-06681 | Microsoft Corporation - US | DAx only | United States | 07/01/15 | 06/30/16 |
NED-13-12663 B | OTTO (GmbH & Co KG) | DAx Only | Germany | 01/01/15 | 12/31/15 |
NED-13-12663-A | OTTO (GmbH & Co KG) | DAx only | Germany | 07/01/14 | 12/31/15 |
NED-13-12663YR2 | OTTO (GmbH & Co KG) | DAx only | Germany | 01/01/15 | 12/31/15 |
NED-14-03525YR2 | ItaliaOnline (ex Libero) | DAx only | B.V. | 01/01/15 | 12/31/15 |
NED-14-09286 | OTTO (GmbH & Co KG) | DAx only | Germany | 09/01/14 | 12/31/15 |
NED-14-10423 | ITV plc | DAx only | United Kingdom | 10/23/14 | 10/22/15 |
NED-14-10489 | ITV plc | DAx only | United Kingdom | 10/27/14 | 10/26/15 |
NED-14-12298 | OTTO BV | DAx only | B.V. | 12/31/14 | 12/30/15 |
NED-14-12299 | OTTO BV | DAx only | B.V. | 12/31/14 | 12/30/15 |
NED-14-12323 | OTTO (GmbH & Co KG) | DAx only | Germany | 12/01/14 | 12/31/15 |
NED-14-12610 | OTTO (GmbH & Co KG) | DAx only | Germany | 12/08/14 | 12/31/15 |
NED-15-03491 | British Broadcasting Corporation | DAx only | B.V. | 03/17/15 | 03/16/16 |
NED-15-03803 | ITV plc | DAx only | B.V. | 03/30/15 | 03/29/16 |
NED-15-04303 | ITV plc | DAx only | B.V. | 04/20/15 | 04/19/16 |
NED-15-06627 | ITV plc | DAx only | B.V. | 06/01/15 | 06/30/16 |
NED-15-06801 | OTTO (GmbH & Co KG) | DAx only | B.V. | 06/04/15 | 12/31/15 |
NED-15-06823 | ITV plc | DAx only | B.V. | 06/01/15 | 06/30/16 |
NED-15-06824 | ITV plc | DAx only | B.V. | 06/01/15 | 06/30/16 |
NED-15-07093 | ITV plc | DAx only | B.V. | 05/19/15 | 05/18/16 |