Compliance with Laws; Licenses. (a) The Company, each of the Retained Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement. (b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole. (c) Except as would not be materially adverse to the Retained Business taken as a whole: (i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B). (ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate. (iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 8 contracts
Samples: Merger Agreement, Agreement and Plan of Merger (Fox Corp), Amended and Restated Agreement and Plan of Merger (New Fox, Inc.)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has January 1, 2012 have not been, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations regulation (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained its Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreementtheir respective businesses.
(bii) (A) Section 3.10(b5.1(j)(ii)(A) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (AI) each License that is issued or granted by the FCC (each, an “FCC License”) to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”)Subsidiaries, (BII) each License that is issued or granted by a Foreign Regulator (each, a “Foreign License”) to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”)Subsidiaries, and (CIII) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business frequencies (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained BusinessCompany and its Subsidiaries, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (AI) against the Company or any of its Subsidiaries relating to the Retained BusinessSubsidiaries, (BII) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business Company’s and its Subsidiaries’ business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (CIII) that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 4 contracts
Samples: Merger Agreement, Merger Agreement, Merger Agreement (At&t Inc.)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is not being, been conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or statute, ordinance, common lawrule, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, order, injunction, rulingdecree, writarbitration award, award agency requirement, license or decree permit of any Governmental Entity (collectively, “Order”"Laws"), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no No investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the knowledge of the date officers of this Agreementthe Company, threatened, nor has any Governmental Entity indicated an intention to conduct the same, same except for such investigations or reviews that would not, individually or in the outcome aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its Subsidiaries each has all governmental permits, licenses, franchises, variances, exemptions, orders issued or granted by a Governmental Entity and all other authorizations, consents and approvals issued or granted by a Governmental Entity ("Licenses") necessary to conduct its business as presently conducted, except those the absence of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect (the "Material Licenses").
(ii) Section 5.1(i)(ii) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of (A) all Material Licenses and, to the extent not otherwise constituting Material Licenses, all Licenses issued or granted to the Company or any of its Subsidiaries by the FCC ("FCC Licenses") (other than point to point microwave licenses), all Licenses issued or granted to the Company or any of its Subsidiaries by State Commissions regulating telecommunications businesses ("State Licenses"), and all Licenses issued or granted to the Company or any of its Subsidiaries by foreign Governmental Entities regulating telecommunications businesses (together with the Material Licenses, FCC Licenses and State Licenses, the "Company Licenses"); (B) all pending applications for Licenses that would be Company Licenses if issued or granted; and (C) all pending applications by the Company or any of its Subsidiaries for modification, extension or renewal or any Company License. Except Each of the Company and its Subsidiaries is in compliance with its obligations under each of the FCC Licenses and the rules and regulations of the FCC, and with its obligations under each of the Licenses and State Licenses, in each case except for such failures to be in compliance as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge knowledge of the officers of the Company, threatened before the FCC or a Foreign Regulator FCC, the Federal Aviation Administration (the "FAA") or any other Governmental Entity, Entity any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, forfeiture or complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Company Licenses, including in each case, except as would not individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The FCC actions granting all FCC Licenses, together with all underlying construction permits, have not been reversed, stayed, enjoined, annulled or suspended, and there is not pending or, to the knowledge of the officers of the Company, threatened, any application, petition, objection or other pleading with the FCC, the FAA or any other Governmental Entity which challenges or questions the validity of or any rights of the holder under any such proceedingLicense, noticein each case, order, inquiry, action, complaint except as would not individually or investigation reasonably likely to result in the revocationaggregate, suspension, cancellation, rescission or modification reasonably be expected to have a Material Adverse Effect.
(iii) All of any material RemainCo Communications License or other impairment the cell sites and microwave paths of the Company and its Subsidiaries in any material respect of which a filing with the operation FCC or the FAA was required have been constructed and are currently operated in all respects as represented to the FCC or the FAA in currently effective filings, and modifications to such cell sites and microwave paths have been preceded by the submission to the FCC or the FAA of the Retained Business as it is conducted as of the date of this Agreementall required filings, in each case, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(civ) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which All transmission towers located on property owned or leased by the Company and its Subsidiaries operate or have operated. Since the Applicable Date, are obstruction-marked and lighted to the Knowledge extent required by, and in accordance with, the rules and regulations of the CompanyFAA (the "FAA Rules") (except as would not, individually or in the Companyaggregate, its Subsidiaries and/or their respective officers, directors, employees and agents reasonably be expected to have not paid, offered a Material Adverse Effect). Appropriate notification to the FAA has been made for each transmission tower located on property owned or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which leased by the Company and its Subsidiaries operateSubsidiaries, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Cingular Wireless LLC), Merger Agreement (At&t Wireless Services Inc), Merger Agreement (SBC Communications Inc)
Compliance with Laws; Licenses. (a) The Company, each businesses of the Retained such Party and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”)Law, except for such violations that as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the CompanyEffect on such Party.
(b) Except with respect to regulatory matters covered by Section 7.5, no investigation or review by any Governmental Entity with respect to the Company, the Retained such Party or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this Agreementsuch Party, threatenedthreatened in writing, nor has any Governmental Entity indicated an intention to conduct the same, nor has such Party received any notice or communication of noncompliance with any such Laws that has not been cured or in the process of being cured as of the date of this Agreement, in each case, except for such investigations or reviews the outcome of which as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Effect on such Party.
(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect on such Party, after giving effect to the Separation, the Company (i) such Party and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), has obtained and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications all Licenses necessary for it to own, lease or operate its properties, rights and the rules other assets and regulations of the Governmental Entities issuing to conduct its business and operations as currently conducted, (ii) all such RemainCo Communications LicensesLicenses are in full force and effect, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There (iii) there is not pending orcurrently threatened any suspension, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspensiontermination, cancellationnon-renewal, rescission adverse modification or modification cancellation of any material RemainCo Communications License and (iv) no event has occurred which, with notice or other impairment in the lapse of time or both, would constitute a default or violation of any material respect term, condition or provision of the operation of the Retained Business any License.
(d) Except as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear Effect on the face of the RemainCo Communications Licensessuch Party, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Companysuch Party, its Subsidiaries and, to the Knowledge of the Companysuch Party, their respective officersRepresentatives, directorsare, employees and agents are in compliance in with and since the Applicable Date Date, have complied been, in compliance with: (Ai) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, §§78dd-l. et seq.) (“FCPA”) to the extent ), as if its foreign payments provisions were fully applicable to the Companysuch Party, its Subsidiaries and such officers, directors, employees and agentsRepresentatives, and (Bii) the provisions of applicable all anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company such Party and its Subsidiaries operate or have operated. Since the Applicable Dateoperated and in which any agent thereof is conducting or has conducted business involving such Party.
(e) Neither such Party nor any of its Subsidiaries, nor, to the Knowledge of such Party, any of their Representatives, since the CompanyApplicable Date (i) has been or is a Person that is (x) listed on any list of designated or blocked persons related to trade, economic and financial sanctions Laws, regulations, embargoes, and restrictive measures, including those administered, enacted or enforced by the United States (including the Department of Treasury, Office of Foreign Assets Control), the CompanyEuropean Union and enforced by its member states, its Subsidiaries and/or their respective officersthe United Nations or His Majesty’s Treasury (collectively, directors“Sanctions”); (y) a Governmental Entity of, employees and agents have not paid, offered or promised to paylocated, or authorized organized or ratified resident in, a country or region that is the payment, directly or indirectly, target of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or comprehensive Sanctions (as of the government date of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea region and so-called Donetsk People’s Republic and Luhansk People’s Republic of Ukraine but subject to obtain such changes as take place over time); or retain business, (z) 50% or direct business to more owned or controlled by any person one or to secure any other improper benefit or advantage, in each case in violation of any more of the FCPA foregoing, individually or any Laws described in clause the aggregate (Bcollectively, a “Sanctioned Person”).
; (ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
has (iii) Neither the Company nor any acting for or on behalf of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company such Party or any of its Subsidiaries Subsidiaries) transacted business with or for the benefit of a Sanctioned Person or otherwise violated applicable Sanctions; or (iii) has committed a violation of any applicable Laws, rules and regulations relating to export, re-export, transfer or import controls (including the FCPA Export Administration Regulations administered by the U.S. Department of Commerce, and customs and import Laws administered by U.S. Customs and Border Protection), except as, individually or any other anti-briberyin the aggregate, anti-corruption or anti-money laundering Lawswould not reasonably be expected to have a Material Adverse Effect on such Party.
Appears in 4 contracts
Samples: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Nextier Oilfield Solutions Inc.), Merger Agreement (Nextier Oilfield Solutions Inc.)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations regulation (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. To the Knowledge of the Company, no No investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained its Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct their respective businesses, since the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is Applicable Date have been in compliance with the RemainCo Communications Licenses all terms and the rules and regulations conditions of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating no such Licenses are subject to any of the RemainCo Communications Licensesactual or possible revocation, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocationwithdrawal, suspension, cancellation, rescission termination or modification modification, and since the Applicable Date have not received written notice from any Governmental Entity alleging a conflict with or breach of any material RemainCo Communications License License. Notwithstanding the foregoing, this Section 5.1(j) shall not apply with respect to Taxes, which shall be covered exclusively by Section 5.1(n) or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this AgreementEnvironmental Laws, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably which shall be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held covered exclusively by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a wholeSection 5.1(m).
(cii) Except as would not be materially adverse to the Retained Business taken as a whole:
(iA) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date July 1, 2012 have complied in all material respects with: (AI) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (BII) the provisions of all applicable anti-bribery, anti-corruption and corruption, anti-money laundering and sanctions Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operatedoperated and in which any agent thereof is conducting or has conducted business involving the Company or any of its Subsidiaries. Since July 1, 2012, the Applicable DateCompany, its Subsidiaries and, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (BII).
(ii) The Company . Since July 1, 2012, the Company, its Subsidiaries, and, to the Knowledge of the Company, their respective officers, directors, employees and its Subsidiaries agents have instituted and maintain policies and procedures reasonably designed to ensure compliance not engaged directly or indirectly in transactions connected with the FCPA and other anti-briberyany government, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminalcountry, or administrative actionsother individual or entity that is the target of U.S. economic sanctions administered by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) or the target of any other applicable sanctions Laws, suitsincluding any transactions with specially designated nationals or blocked persons designated by OFAC. For purposes of this provision, demands“Government Official” means any official, claimsofficer, hearings, notices of violation, investigations, proceedings, demand letters, settlementsemployee, or enforcement actionsrepresentative of, or made any voluntary disclosures to Person acting in an official capacity for or on behalf of, any Governmental Entity, involving the Company and includes any official or employee of any directly or indirectly government-owned or -controlled entity, and any officer or employee of its Subsidiaries relating to the FCPA a public international organization, as well as any person acting in an official capacity for or on behalf of any other anti-briberysuch government or department, anti-corruption agency, or anti-money laundering Lawsinstrumentality, or for or on behalf of any such public international organization.
Appears in 3 contracts
Samples: Voting Agreement (Newhouse Broadcasting Corp), Merger Agreement (Discovery Communications, Inc.), Voting Agreement (Discovery Communications, Inc.)
Compliance with Laws; Licenses. (ai) The Company, each businesses of the Retained Subsidiaries and the Retained Business since the Applicable Date has Company have not been, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would notthat, individually or in the aggregate, are not reasonably be expected likely to have a Company Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge consummation of the Company, no Merger and the other transactions contemplated by this Agreement. No investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business Company is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an intention to conduct the same. To the Knowledge of the Company, except for such investigations or reviews the outcome of which would not, individually or no material change is required in the aggregateCompany’s processes, reasonably be expected to have a Company Material Adverse Effect. Except as would notproperties or procedures in connection with any such Laws, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, and the Company has not received from any Governmental Entity any notice or communication of any material noncompliance with any such Laws that has not been cured as of the date hereof. The Company has obtained and the Retained Subsidiaries possess each permitbusiness of the Company has not been, licenseand are not being, certificationconducted in violation of or inconsistent with all material permits, approvallicenses, registrationcertifications, consentapprovals, authorizationregistrations, franchiseconsents, concessionauthorizations, varianceenrollments, exemption accreditations, franchises, variances, waivers, exemptions and order orders issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct its business as presently conducted. To the Retained Business as it is conducted as Knowledge of the date Company, there exists no grounds for revocation, suspension or limitation of this Agreementany License (including, but not limited to, as a result of the Merger) and no notices have been received by the Company, its officers or managing employees with respect to any threatened, pending or possible termination, revocation, suspension or limitation of any License.
(bii) Each product that is sold by the Company for commercial distribution or is in current commercial distribution (a “Company Product”) is in compliance in all material respects with all applicable requirements of the Food and Drug Administration (“FDA”) or any other relevant Governmental Entity and all Licenses, permissions, clearances, authorizations, notified body certificates of compliance or consents required for placing and continuing to place the Company Products on the market in the United States and Canada. Specifically, the Company’s facility is registered and each Company Product is listed with the FDA under Section 3.10(b510 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (the “FD&C Act”), and the applicable rules and regulations thereunder, except to the extent not required by the FD&C Act to be so listed. Each Company Product in current commercial distribution that is a Class II medical device as defined under Section 513(a)(1) of the FD&C Act and applicable rules and regulations thereunder was first marketed under, and is covered by, a premarket notification in compliance with Section 510(k) of the FD&C Act and the applicable rules and regulations thereunder, or is exempt from such premarket notification in accordance with Section 510(l) or (m) of the FD&C Act and applicable rules and regulations thereunder. The Company Disclosure Letter sets is currently in compliance in all material respects with, and each Company Product in current commercial distribution is designed, manufactured, prepared, assembled, packaged, labeled, stored, installed, serviced, and processed in compliance in all material respects with the FD&C Act and the applicable rules and regulations thereunder. The Company is in compliance with all applicable written procedures, record-keeping and reporting requirements of the FD&C Act and the applicable rules and regulations thereunder, including those set forth a complete in 21 C.F.R. Parts 803 and accurate list, as of 806. Since first receiving 510(k) clearance through the date of this Agreement, of (A) each License that is issued the FDA has not inspected the Company’s premises or granted its records. The Company has not introduced in commercial distribution during the five calendar year period immediately preceding the date hereof any products which were upon their shipment by the FCC to Company adulterated or misbranded in violation of Section 301 of the FD&C Act. Any modifications by the Company to any product marketed by the Company have obtained requisite FDA approvals and clearances or have otherwise been made in accordance with applicable Law. All manufacturing facilities are operated in compliance in all material respects with the FDA’s Quality System Regulation requirements at 21 C.F.R. Part 820, as applicable.
(iii) Except as disclosed in Section 5.1(i)(iv) of the Company Disclosure Letter, in the last three years, none of the Company’s products have been recalled or subject to FDA correction or removal requirements, and the Company has not received notice, either completed or pending, of any proceeding seeking a corrective action, recall, suspension or seizure of any products. The Company has not received any order, demand or other formal proceedings from any competent authority or notified body for medical devices to undertake any form of withdrawal from the market of any of its Subsidiaries that is material to the conduct products or any product recall and has notified any competent authority or notified body of the Retained Business as it is conducted as of the date of this Agreement (eachintent to conduct a market withdrawal, a “RemainCo FCC License”)product recall or field correction, (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCCand, to the Knowledge of the Company, no RemainCo Communications License held by the Company facts or circumstances have occurred that are reasonably likely to give rise to any Subsidiary of the such corrective action, recall, suspension or seizure.
(iv) The Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as not included on FDA’s AIP list.
(v) As of the date of this Agreementhereof, except for failures to comply that individually or in neither the aggregate would not be materially adverse Company nor, to the Retained Business taken as a wholeCompany’s Knowledge, any of its employees, agents or consultants retained to assist with product license submissions, has been disqualified or debarred by the FDA, pursuant to 21 U.S.C. §§ 335(a) or (b), or for any purpose, been charged with or convicted under United States Law for conduct relating to the development, approval, marketing or sale of drugs or devices or otherwise relating to the regulation of any drug product under the Generic Drug Enforcement Act of 1992 or any other relevant Law or been disbarred, disqualified or convicted under or for any equivalent or similar applicable foreign Laws.
(cvi) Except The Company has complied in all material respects with all applicable information security and privacy obligations under all business associate agreements or other similar Contracts with their customers who are Covered Entities or Business Associates of a Covered Entity, as would not be materially adverse those terms are defined in 45 C.F.R. § 160.103, which obligations relate to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to security and privacy regulations regarding protected health information under the Knowledge of the Company, their respective officers, directors, employees Health Insurance Portability and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Accountability Act of 19771996, Pub. L. No. 104-191, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPAHIPAA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents), and (B) the provisions of regulations promulgated thereunder and all applicable anti-bribery, anti-corruption state patient confidentiality and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operatedother applicable privacy Laws. Since the Applicable Date, to To the Knowledge of the Company, the Company Products contain technical security mechanisms, which are reasonably capable of protecting the confidentiality, integrity, and availability of the data stored or transmitted by such products, and include, without limitation, access controls, audit controls, mechanisms to verify the integrity of the data or images, person and/or entity authentication, and transmission security mechanisms. The Company has not received (A) from any person, or has been made aware of, any written complaints or concerns regarding the Company’s or any Company Product’s noncompliance with obligations under the Company’s customer Contracts or business association agreements that relate to HIPAA, any regulations promulgated thereunder, or any applicable state privacy Laws and (B) from any customer, or has been made aware of, any notice relating to the Company’s obligation to indemnify customers for civil liabilities resulting or arising from the Company’s breach of any business associate agreement or its HIPAA-related obligations under any customer Contract. To the extent that the Company represents or has represented to a customer of the Company that its products and/or services comply with any privacy or security Laws, regulations, rules, and/or standards, the Company has undertaken all activities reasonably necessary to comply in all material respects with such Laws, regulations, rules, and/or standards.
(vii) To the Knowledge of the Company, neither it nor its Subsidiaries and/or their respective officersdirectors or executive officers (A) has violated any federal, directorsstate or local statutes, employees and agents have not paidrules, offered or promised to payordinances, or authorized regulations or ratified the paymentpermit requirements relating to fraud and abuse, directly or indirectlyanti-kickback, of any monies or anything of value to any nationalself-referral, provincial, municipal fee-splitting or other Government Official or any political party or candidate for political office for applicable Laws that regulate healthcare providers and others, including: (t) the purpose of corruptly influencing any act or decision of such official or applicable Medicare and Medicaid fraud and abuse provisions of the government federal Social Security Act and other federal Laws, including any activity which is prohibited under the Federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b, et seq.), (u) the physician self-referral provisions of the Sxxxx Law (42 U.S.C. § 1395nn), (v) the False Claims Act (31 U.S.C. § 3729), (w) the Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), (x) Mail and Wire Fraud (18 U.S.C. §§ 1341-1343), (y) False Statements Relating to Health Care Matters (18 U.S. C. § 1035), and (z) Health Care Fraud (18 U.S.C. § 1347) or (B) has engaged in a pattern or practice of making payments intended to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of induce patient referrals for any of the FCPA or any Laws described in clause (B)their operations.
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 3 contracts
Samples: Merger Agreement (Sterling Venture Partners L P), Merger Agreement (Visicu Inc), Merger Agreement (Cardinal Health Partners Lp)
Compliance with Laws; Licenses. (ai) The Company, each business of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, law or any rule or rule, regulation, including the Export and Sanctions Regulations (collectivelyguideline, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. To the Knowledge of the Company, no No investigation or review by any Governmental Entity with respect to the Company or any of its Subsidiaries is, to the Knowledge of the Company, the Retained Subsidiaries pending or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews that would not, individually or in the outcome aggregate, reasonably be likely to have a Company Material Adverse Effect; provided, that such exception shall not apply to such investigations or reviews by the FCC or the Department of Justice. The Company and its Subsidiaries each has obtained and is in compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except those the absence of which would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except as would not, individually or in Effect (the aggregate, reasonably be expected to have a Company “Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement).
(bii) Section 3.10(bSchedule 3.2(h)(ii) of the Company Seller Disclosure Letter sets forth a true and complete and accurate list, as of the date of this Agreementhereof, of (A) each License that is issued or granted by the FCC all Material Licenses and, to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (eachextent not otherwise constituting Material Licenses, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material by the FCC and all leases for the use of wireless spectrum licensed to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entityother FCC licensees (such licenses and leases, authorizing “FCC Licenses”) (other than point to point microwave licenses, business radio licenses, experimental licenses and Section 214 certificates), all Licenses issued or granted to the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media servicesby PUCs regulating telecommunications businesses (“State Licenses”), and/or own, operate and all Licenses issued or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material granted to the conduct Company or any of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business its Subsidiaries by foreign Governmental Entities regulating telecommunications businesses (collectively with the RemainCo Material Licenses, FCC Licenses and the RemainCo Foreign State Licenses, the “RemainCo Communications Licenses”); (B) all pending applications for Licenses that would be Communications Licenses if issued or granted; and (C) all pending applications by the Company or any of its Subsidiaries for modification, extension or renewal of any Communications License. Each of the Company and its Subsidiaries is in compliance with its obligations under each of the RemainCo Communications FCC Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications FCC, and with its obligations under each of the FCC Licenses and State Licenses, in each case, except for such failures to comply be in compliance with Licenses that arewould not, individually and or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. To the Knowledge of the Company, there is not material pending or threatened before the FCC, the Federal Aviation Administration (the “FAA”) or any other Governmental Entity any proceeding, notice of violation, order of forfeiture or complaint or investigation against the Company or any of its Subsidiaries relating to any of the Retained BusinessCommunications Licenses, taken as in each case, except that would not, individually or in the aggregate, reasonably be likely to have a wholeCompany Material Adverse Effect. There The FCC actions granting all FCC Licenses, together with all underlying construction permits, have not been reversed, stayed, enjoined, annulled or suspended, and there is not pending or, to the Knowledge of the Company, threatened before any application, petition, objection or other pleading with the FCC or a Foreign Regulator FCC, the FAA or any other Governmental Entity, any material proceeding, notice Entity that challenges or questions the validity of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any rights of the RemainCo Communications Licenses, including holder under any such proceedingFCC License, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreementeach case, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect.
(iii) Except for immaterial matters, Seller validly holds the FCC Licenses and the FCC Licenses are validly issued in the name of the Company or one of its Subsidiaries. The FCC Licenses are in full force and effect and are free and clear of all Encumbrances or any restrictions which might, individually or in the aggregate, limit the full operation of the FCC Licenses in any material respect.
(iv) All of the currently operating cell sites and microwave paths of the Company and its Subsidiaries in respect of which a filing with the FCC was required have been constructed and are currently operated as represented to the FCC in currently effective filings, and modifications to such cell sites and microwave paths have been preceded by the submission to the FCC of all required filings, in each case, except as would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect.
(v) All transmission towers owned or leased by the Company and its Subsidiaries are obstruction-marked and lighted by the Company or its Subsidiaries to the extent required by, and in accordance with, the rules and regulations of the FAA (the “FAA Rules”), except that would not, individually or in the aggregate, reasonably be likely to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain Appropriate notification to the RemainCo FCC Licenses under generally applicable rules of FAA has been made for each transmission tower owned or leased by the FCC, Company and its Subsidiaries to the Knowledge of the Company, no RemainCo Communications License held extent required to be made by the Company or any Subsidiary of its Subsidiaries by, and in accordance with, the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this AgreementFAA Rules, in each case, except for failures to comply that would not, individually or in the aggregate would not aggregate, reasonably be materially adverse likely to the Retained Business taken as have a wholeCompany Material Adverse Effect.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iiivi) Neither the Company nor any of its Subsidiaries are subject holds any FCC Licenses through a partnership, joint venture or other Person that is not a Subsidiary of the Company.
(vii) The Company does not hold any License to offer, and does not offer, any actualservices or features other than wireless voice and data services and features, pending civiland any ancillary services or features thereto. The Company and its Subsidiaries do not conduct any business other than the Business.
(viii) No representation or warranty is made in this Section 3.2(h) with respect to Tax matters, criminalwhich shall be governed exclusively by Sections 3.2(g) (Employee Benefits) and 3.2(l) (Taxes), or administrative actionsenvironmental matters, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Lawswhich shall be governed exclusively by Section 3.2(k) (Environmental Matters).
Appears in 3 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement, Stock Purchase Agreement (At&t Inc.)
Compliance with Laws; Licenses. (a) The CompanyExcept as set forth in the SEC Reports filed with the Commission prior to the date hereof, each neither the Company nor any of its Subsidiaries in the Retained Subsidiaries and the Retained Business conduct of its business, is, or since the Applicable Date December 31, 2011, has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common lawRequirement of Law, or any rule judgments, orders, rulings, injunctions or regulation, including the Export and Sanctions Regulations decrees of a Governmental Authority (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “OrderDecrees”), applicable thereto or to the employees conducting such business, except for such violations that would notthat, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company.
(b) The Company and its Subsidiaries as applicable, no investigation have obtained or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending ormade, as of the date of this Agreementcase may be, threatenedall permits, nor has any licenses, authorizations, orders and approvals, and all filings, applications and registrations with, all Governmental Entity indicated an intention Authorities (“Licenses”), that are required to conduct the same, businesses of the Company and its Subsidiaries in the manner and to the full extent as currently conducted or currently contemplated to be conducted except for where such investigations failure to obtain or reviews the outcome of which would notmake, individually or in the aggregate, reasonably would not be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect materially adverse to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as Company. None of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all such Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which that limits or would reasonably be expected to limit in any material way the full operation of the Retained Business Company or its Subsidiaries as it is currently conducted as or currently contemplated to be conducted. Each of the date of this AgreementLicenses has been duly obtained, except for failures to comply that individually or is valid and in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees full force and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agentseffect, and (B) the provisions of applicable anti-briberyis not subject to any pending or threatened proceeding to limit, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Datecondition, to the Knowledge of the Companysuspend, the Companycancel, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to paysuspend, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of declare such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) License invalid. Neither the Company nor any of its Subsidiaries are subject is in default in any material respect with respect to any actualof the Licenses, pending civil, criminaland to the knowledge of the Company no event has occurred which constitutes, or administrative actionswith due notice or lapse of time or both may constitute, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving a default by the Company or any of its Subsidiaries relating to the FCPA or such Subsidiary under any other anti-bribery, anti-corruption or anti-money laundering LawsLicense.
Appears in 3 contracts
Samples: Securities Purchase Agreement (You on Demand Holdings, Inc.), Securities Purchase Agreement (Beijing Sun Seven Stars Culture Development LTD), Securities Purchase Agreement (You on Demand Holdings, Inc.)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunctionlegally imposed duty (such as tort duties), rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such those violations that would notthat, individually or in the aggregate, would not reasonably be expected to have be material and adverse to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole. To the Knowledge of the Company, no No investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that their employees or independent contractors is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or threatened, nor has any other Governmental Entity, any material proceeding, Entity delivered notice of violation, order of forfeiture, inquiry, administrative action, complaint an intention in writing to conduct the same. The Company has not received any written notice or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification communication of any material RemainCo Communications License noncompliance with any such Laws (including with respect to its employees or other impairment in any material respect of the operation of the Retained Business as it is conducted independent contractors) that has not been cured as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the . The Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, each of their respective officers, directors, employees or independent contractors have obtained and agents are in compliance with all material Licenses necessary to conduct its business as presently conducted except for non-compliance that, individually or in with the aggregate, would not reasonably be expected to be material and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) adverse to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate Subsidiaries, taken as a whole. As used in this Agreement, “Licenses” means all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any granted by a Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws.
Appears in 2 contracts
Samples: Debt Conversion and Purchase and Sale Agreement (B. Riley Financial, Inc.), Debt Conversion and Purchase and Sale Agreement (Bebe Stores, Inc.)
Compliance with Laws; Licenses. (a) The Company, each of the Retained Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that Except as would not, individually or in the aggregate, be reasonably be expected to have a Company Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge ability of Company to consummate the Merger or the other Transactions, the businesses of the CompanyCompany and the Company Subsidiaries have not been, no and are not being, conducted in violation of any Law applicable to the Company or any of the Company Subsidiaries. No investigation or review by any Governmental Entity with respect to the Company, Company or any of the Retained Company Subsidiaries or the Retained Business is pending or, as of to the date of this AgreementCompany’s Knowledge, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, be reasonably be expected to have a Company Material Adverse EffectEffect or prevent, materially delay or materially impair the ability of the Company to consummate the Merger or the other Transactions. To the Company’s Knowledge, none of the Company or any of the Company Subsidiaries has received any written notice or communication of any noncompliance with any such Laws that has not been cured that would be material to the Company and the Company Subsidiaries, taken as a whole. Except as would not, individually or in the aggregate, be reasonably be expected to have a Company Material Adverse EffectEffect or prevent, after giving effect materially delay or materially impair the ability of the Company to consummate the SeparationMerger or the other Transactions, the Company and the Retained Company Subsidiaries possess each permithas obtained, licenseis in compliance with and holds all licenses, certificationpermits, approvalcertifications, registrationapprovals, consentconsents, authorizationauthorizations, franchisefranchises, concessionvariances, variance, exemption exemptions and order issued or granted by a orders from applicable Governmental Entity (collectively, “Licenses”) necessary to Entities required for the conduct the Retained Business of their respective businesses as it is conducted as of the date of this Agreementpresently conducted.
(b) Section 3.10(b) To the Company’s Knowledge, none of the Company, any of the Company Disclosure Letter sets forth a complete and accurate listSubsidiaries, as or any other Person acting on behalf of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct Company Subsidiaries, including, any director, officer, agent, employee or controlled Affiliate of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its the Company Subsidiaries that is acting in such capacity, has at any time during the past three (3) years (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or to influence official action, (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or (iii) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment. To the Company’s Knowledge, the Company and the Company Subsidiaries (i) are in compliance and have been in compliance, in each case, in all material to respects, with the conduct of United States Foreign Corrupt Practices Act (the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign LicenseCorrupt Practices Act”), ) and any other United States or foreign Laws concerning corrupt payments or bribery and (Cii) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued Company has not been investigated by any Governmental Entity with respect to, or granted to been given notice by a Governmental Entity of, any violation by the Company or any of its the Company Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act or any other United States or foreign Laws concerning corrupt payments or bribery. The Company and the Company Subsidiaries (x) keep books, records, and accounts that accurately and fairly reflect in all material respects transactions and the distribution of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries ’s and such officers, directors, employees and agentsthe Company Subsidiaries’ assets, and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are properly recorded in accordance with the Foreign Corrupt Practices Act or any other United States or foreign Laws concerning corrupt payments or bribery and (By) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its the Company Subsidiaries operate or have operated. Since the Applicable Datedisclosure controls and procedures and an internal accounting controls system that were prepared and have been maintained to prevent, to the Knowledge detect and deter violations of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA Foreign Corrupt Practices Act or any other anti-United States or foreign Laws concerning corrupt payments or bribery, anti-corruption or anti-money laundering Laws.
Appears in 2 contracts
Samples: Merger Agreement (Consolidated Graphics Inc /Tx/), Merger Agreement (RR Donnelley & Sons Co)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the CompanyExcept with respect to regulatory matters covered by Section 6.5, no material investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business any Benefit Plan is pending or, as to the Knowledge of the date Company, threatened with respect to the Company or any of this Agreementits Subsidiaries. Each of the Company and its Subsidiaries has obtained and is in compliance with all permits, threatenedcertifications, nor has any approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity indicated an intention (“Licenses”) necessary to conduct the sameits business as presently conducted, except for such investigations or reviews those the outcome absence of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would notThere are no material civil, individually criminal or in the aggregateadministrative actions, reasonably be expected to have a Company Material Adverse Effectsuits, after giving effect to the Separationclaims, the Company and the Retained Subsidiaries possess each permithearings, licensearbitrations, certificationinvestigations, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued inquiries or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not proceedings pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to Subsidiaries, that (a) question or contest the Retained Businessvalidity of, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in seeks the revocation, suspensionnonrenewal, cancellationdeactivation, rescission or modification suspension of any material RemainCo Communications License or other impairment in (b) seek the imposition of any material condition, administrative sanction, modification or amendment with respect to any License. Section 5.1(i) of the operation Company Disclosure Letter sets forth a true and complete list of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications all material Licenses, and except all applications required to have been filed for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws renewal of each jurisdiction in which the Company and its Subsidiaries operate or such License have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance been duly filed on a timely basis with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any appropriate Governmental Entity, involving and all other filings required to have been made with respect to each such License have been duly made on a timely basis with the Company appropriate Governmental Entity. This Section 5.1(i) does not apply to compliance with Health Care Laws or any of its Subsidiaries relating to the FCPA or any other anti-briberyLicenses, anti-corruption or anti-money laundering Lawswhich is addressed in Section 5.1(s) hereunder.
Appears in 2 contracts
Samples: Merger Agreement (ReAble Therapeutics Finance LLC), Merger Agreement (Djo Inc)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable international, federal, state, local, local or foreign or transnational law, statute or ordinance, common law, constitution, treaty, convention or any rule or rule, regulation, including the Export and Sanctions Regulations (collectivelyresolution, “Laws”) or any orderdirective, code, ruling, edict, standard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit or other similar requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity (collectively, “OrderLaws”), except for such violations that have not had and would notnot reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as contemplated by Section 5.1(i)(i) of the Company Disclosure Letter and as of the date hereof, no investigation or review by any Governmental Entity with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company, threatened, nor has the Company or any of its Subsidiaries received written notice from any Governmental Entity stating an intention of such Governmental Entity to conduct the same, except for those the outcome of is not and which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Since the Applicable Date, each of the Company and its Subsidiaries has obtained and is in compliance with all permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to own, lease or operate their properties and to conduct their businesses as presently conducted, each of which is valid and in full force and effect and is not subject to any pending or, to the Knowledge of the Company, threatened Proceedings to revoke, cancel, suspend, adversely modify, not renew or declare any such License invalid, except, in each case, which is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice from any Governmental Entity alleging any violation by the Company or any of its Subsidiaries of any Licenses or the failure to have any required Licenses, that remains outstanding or unresolved, except for violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date hereof, the Company and its Subsidiaries are not conducting and do not have pending any investigation in connection with which outside legal counsel has been retained with respect to any actual, potential or alleged violation of any applicable Laws, except as to which, if any such violation under investigation in fact existed, such violation (or the remedy thereof) is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(ii) None of the Company, any of its Subsidiaries or any officer, director, agent, employee or other Person acting on their behalf, has, directly or indirectly (A) taken any action that would cause them to be in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended (the “Foreign Corrupt Practices Act”) or other Anti-Corruption and Anti-Bribery Laws, (B) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (C) made, offered or authorized any unlawful payment, or other thing of value, to foreign or domestic government officials or employees or (D) made, offered or authorized any bribe, rebate, payoff, influence payment, kickback or similar payment in violation of the FCPA or other Anti-Corruption and Anti-Bribery Laws. “Anti-Corruption and Anti-Bribery Laws” shall mean the FCPA, as amended, any rules or regulations thereunder, or any other applicable United States or foreign anti-corruption or anti-bribery Laws or regulations (including the UK Bribery Act 2010). Neither the Company nor any of its Subsidiaries has at any time during the past five (5) years committed any violation of any Export and Import Control Laws, except as is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. “Export and Import Control Laws” means all applicable Laws, regulations, or orders of any jurisdiction, including but not limited to the United States, related to imports, exports controls, boycotts, economic sanctions or trade embargoes. To the Knowledge of the Company and as of the date of this Agreement, neither the Company nor any of its Subsidiaries is or has been within the past five (5) years the target of any inquiry, investigation, settlement, plea agreement or enforcement action by a Governmental Entity involving an alleged or suspected violation of the FCPA, any other Anti-Corruption and Anti-Bribery Laws or any Export and Import Control Laws, except for such inquiries, investigations, settlements, plea agreements or enforcement actions that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither neither the Company nor any of its Subsidiaries are subject has a customer or supplier relationship with or is a party to any actualContract with any person or entity that is (a) on the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”) list of specially designated nationals and blocked persons (the “SDN List”), pending civil(b) owned or controlled or acting on behalf of a Person on the SDN List, criminal(c) otherwise the target of economic sanctions administered by OFAC or owned or controlled by, or administrative actionsacting on behalf of, suits, demands, claims, hearings, notices such Person that is otherwise the target of violation, investigations, proceedings, demand letters, settlementseconomic sanctions administered by OFAC, or enforcement actions(d) listed on the U.S. Department of Commerce’s Denied Persons List or Entity List. To the Knowledge of the Company, or made any voluntary disclosures to any Governmental Entity, involving neither the Company or nor any of its Subsidiaries has a customer or supplier relationship with or is a party to any Contract with any person or entity that (i) has its principal place of business or the majority of its business operations (measured by revenues) located in a country subject to comprehensive sanctions (currently, Cuba, the Crimea Region of Ukraine, Iran, and North Korea); (ii) has been convicted of or charged with a felony relating to the FCPA money laundering; or (iii) is under investigation by any other anti-bribery, anti-corruption or anti-Governmental Entity for money laundering Lawslaundering.
Appears in 2 contracts
Samples: Bid Conduct Agreement (ARRIS International PLC), Bid Conduct Agreement (CommScope Holding Company, Inc.)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, have been conducted in violation of any applicable accordance with federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or regulationLaws, including Laws enforced by the Export United States Food and Sanctions Regulations Drug Administration (collectively, “LawsFDA”) or any ordersimilar state or foreign regulatory or Governmental Entities in all material respects. The Company is not debarred under the Federal Food, judgmentDrug and Cosmetic Act or otherwise excluded from or restricted in any manner from participation in, injunctionany government program related to pharmaceutical products and, rulingto its Knowledge, writ, award does not employ or decree use the services of any Governmental Entity (collectivelyindividual or entity that is or, “Order”)during the time when such individual or entity was employed by or providing services to the Company or any of its Subsidiaries, except for such violations that would not, individually was debarred or in the aggregate, reasonably be expected to have a Company Material Adverse Effectotherwise excluded or restricted. To the Knowledge of the Company, no No investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which that would notnot have, and would not reasonably be expected to have, either individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the .
(b) The Company and the Retained its Subsidiaries possess each permithas all governmental permits, licenselicenses, certificationfranchises, approvalvariances, registrationexemptions, consentorders issued or granted by a Governmental Entity and all other authorizations, authorization, franchise, concession, variance, exemption consents and order approvals issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each business of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licensesas presently conducted, except for failures those the absence of which would not have, and would not reasonably be expected to comply that arehave, either individually and or in the aggregate, not material to a Company Material Adverse Effect (the Retained Business, taken as a whole“Material Licenses”). There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, Entity any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, forfeiture or complaint or investigation (A) against the Company or any of its Subsidiaries relating to any Material License, in each case, except as would not have, and would not reasonably be expected to have, either individually or in the Retained Businessaggregate, a Company Material Adverse Effect.
(Bc) relating Each of the products, product candidates and active pharmaceutical ingredients of the Company and its Subsidiaries is being, and at all times since January 1, 2003, as applicable, has been, developed, tested, manufactured, handled, distributed, and stored, as applicable, in compliance in all material respects with all applicable Laws.
(d) The Company has filed and made available to Parent each annual report filed by any of the RemainCo Communications Licenses, including Company and its Subsidiaries with the FDA and any such proceeding, notice, order, inquiry, action, complaint similar state or investigation reasonably likely foreign regulatory or Governmental Entity with respect to result in the revocation, suspension, cancellation, rescission or modification any products of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries any similar state or (C) that would notforeign Governmental Entity since January 1, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole2003.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iiie) Neither the Company nor any of its Subsidiaries are is subject to any actualpending or, pending civilto the Knowledge of the Company, criminalthreatened, investigation by: (A) the FDA pursuant to its “Fraud, Untrue Statements of Material Facts, Bribery, and Illegal Gratuities,” set forth in 56 Fed. Reg. 46191 (September 10, 1991); (B) Department of Health and Human Services Officer of Inspector General or administrative actionsDepartment of Justice pursuant to the Federal Anti-Kickback Statute (42. U.S.C. Section 1320a-7(b)) or the Federal False Claims Act (31 U.S.C. Section 3729 et seq.); or (C) any equivalent statute of any country in the European Union. Neither the Company nor any of its Subsidiaries, suitsnor, demandsto the Knowledge of the Company, claims(1) any officer or employee of the Company or any of its Subsidiaries, hearings, notices (2) any authorized agent of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries or (3) any principal investigator or sub-investigator of any clinical investigation sponsored by the Company or any of its Subsidiaries has, in the case of each of (1) through (3) on account of actions taken for or on behalf of the Company or any of its Subsidiaries, been convicted of any crime under 21 U.S.C. Section 335a(a) or any similar state or foreign Law or under 21 U.S.C. Section 335a(b) or any similar state or foreign Law.
(f) Since January 1, 2003, no clinical trial of a product of the Company or any of its Subsidiaries has been suspended, put on hold or terminated prior to completion.
(g) There are no third party manufacturers or suppliers of the Company’s products, product candidates and active pharmaceutical ingredients.
(h) The Company has made available to Parent (A) complete and accurate copies of each Investigational New Drug application (“IND”), and each similar state or foreign regulatory filing made by or on behalf of the Company and its Subsidiaries, including all supplements and amendments, (B) any correspondence received from the FDA and similar state and foreign Governmental Entities that concerns a product of the Company or its Subsidiaries covered by an IND described in clause (A) above, and (C) all existing written records relating to all material discussions and all meetings between the FCPA Company or its Subsidiaries and the FDA or similar foreign regulatory or Governmental Entities.
(i) Since January 1, 2003, the clinical trials, animal studies and other preclinical tests conducted by or on behalf of the Company or its Subsidiaries were, and if still pending, are, being conducted in all material respects in accordance with all experimental protocols, informed consents, procedures and controls of the Company and its Subsidiaries and applicable FDA requirements including, but not limited to, good clinical practice and good laboratory practice regulations. Neither the Company nor any of its Subsidiaries has received any written notice from the FDA or any other regulatory or Governmental Entity requiring the material modification of any animal study, preclinical study or clinical trial conducted by or on behalf of the Company or any Subsidiary.
(j) Neither the Company nor any of its Subsidiaries or its Affiliates, nor, to the Knowledge of the Company, any of its third party suppliers (with respect to a facility producing materials for the Company or its Subsidiaries) has received a FDA Form 483 notice or similar notice with respect to any production plants. A true and correct copy of any item set forth on Section 5.5(j) of the Company Disclosure Schedule has been made available to Parent.
(k) Neither the Company nor its Subsidiaries has knowingly or willfully solicited, received, paid or offered to pay any remuneration, directly or indirectly, overtly or covertly, in cash or kind for the purpose of making or receiving any referral which violated any applicable anti-briberykickback or similar Law, including the Federal Anti-Kickback Statute, or any applicable state anti-corruption kickback Law.
(l) The Company and its Subsidiaries have not failed to comply with any applicable security and privacy standards regarding protected health information under the Health Insurance Portability and Accountability Act of 1996, including the regulations promulgated thereunder or anti-money laundering any applicable state privacy Laws, except for any such failures to comply, that have not had, and would not reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect.
(m) With respect to all third party manufacturers and suppliers of key raw materials used by the Company or its Subsidiaries (each a “Third Party Manufacturer”), the Company has inspected all Third Party Manufacturers and to its Knowledge, each such Third Party Manufacturer:
(i) has complied and is complying in all material respects with all applicable Laws, including Laws enforced by the FDA and any similar state or foreign regulatory or Governmental Entities;
(ii) has all permits to perform its obligations as Third Party Manufacturer and all such permits are in full force and effect, except as either individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect; and
(iii) has not been debarred under the Federal Food, Drug and Cosmetic Act or similar law of any other jurisdiction or otherwise excluded from or restricted in any manner from participation in, any government program related to pharmaceutical products and does not employ or use the services of any individual or entity that is or, during the time when such person or entity was providing services as a Third Party Manufacturer to the Company or any of its Subsidiaries, was debarred or otherwise excluded or restricted.
(n) All inventory of key starting material, reagents, active pharmaceutical ingredient and/or product have been manufactured, handled, stored and distributed in accordance with applicable Laws, including good manufacturing practice in all material respects. The Company has sufficient inventory of key starting materials, reagents, active pharmaceutical ingredients and/or products in order to operate business in the ordinary course.
Appears in 2 contracts
Samples: Merger Agreement (Sirna Therapeutics Inc), Merger Agreement (Merck & Co Inc)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable federal, state, local, foreign foreign, international or transnational law, statute or statute, ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunctiondetermination, rulingorder, writ, award injunction, decree, arbitration award, treaty, agency requirement, authorization, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge ability of the Company, no Company to consummate the Merger or the other transactions contemplated by this Agreement.
(b) No investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business any of their employees or independent contractors is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an intention to conduct the same. To the Knowledge of the Company, except for such investigations or reviews the outcome of which would not, individually or no material change is required in the aggregateCompany’s or any of its Subsidiaries’ processes or properties or procedures or policies in connection with any such Laws, reasonably be expected and the Company has not received any notice or communication of any material noncompliance with any such Laws (including with respect to its employees or independent contractors) that has not been cured as of the date of this Agreement.
(c) The Company and each of its Subsidiaries and each of their employees or independent contractors have obtained and are in compliance in all material respects with all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders, permissions, qualifications, designations and declarations issued or granted by a Company Material Adverse EffectGovernmental Entity, including the SEC, FINRA, the Commodity Futures Trading Commission, the Securities Investor Protection Corporation, the Municipal Securities Rulemaking Board, the National Futures Association, any SROs and any state or local securities commissions (“Licenses”) necessary to conduct their respective businesses as presently conducted. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect no Licenses shall cease to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by be effective as a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as result of the date consummation of the Merger or the other transactions contemplated by this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 2 contracts
Samples: Merger Agreement (FBR & Co.), Merger Agreement (B. Riley Financial, Inc.)
Compliance with Laws; Licenses. (a) The CompanyExcept as would not have, individually or in the aggregate, a Material Adverse Effect or would not reasonably be expected to prevent or materially impair the consummation of the transactions contemplated by this Agreement, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, since December 31, 2011, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign non-United States national, provincial or transnational local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including directive, decree, or treaty provision applicable to the Export Company and Sanctions Regulations (collectivelyits Subsidiaries, “Laws”) or any orderJudgment, judgment, injunction, ruling, writ, award agency requirement license or decree permit of any Governmental Entity (collectively, “OrderLaws”). No investigation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation audit or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or threatened, nor has any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against Entity notified the Company or any of its Subsidiaries relating intention to conduct the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreementsame, except for (xi) proceedings to amend the Communications Laws not directed at the Company such investigations, audits or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) reviews that would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect and/or (ii) any investigation or review related to the Merger. Except for restrictions or conditions that appear on the face As of the RemainCo Communications Licensesdate hereof, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by neither the Company nor any of its Subsidiaries has received any written notice or communication of any Subsidiary of the Company is subject to material noncompliance with any restriction or condition which would limit the operation of the Retained Business as it is conducted applicable Laws that has not been cured as of the date of this Agreementhereof.
(b) The Company and its Subsidiaries each has made applications for or obtained, renewed and is in compliance with all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business in all material respects as presently conducted, except for failures to comply that as would not have, individually or in the aggregate would not be materially adverse to the Retained Business taken as aggregate, a wholeMaterial Adverse Effect.
(c) Except as would not be materially adverse to have, individually or in the Retained Business taken as aggregate, a whole:
(i) The CompanyMaterial Adverse Effect, neither the Company nor any of its Subsidiaries andis subject to any pending or, to the Knowledge of the Company, their respective officersthreatened, directorsinvestigation by any other Governmental Entity in the PRC or elsewhere pursuant to applicable anti-corruption Laws (including the PRC Law on Anti-Unfair Competition adopted on September 2, employees 1993, if applicable, and agents are the Interim Rules on Prevention of Commercial Bribery issued by the PRC State Administration of Industry and Commerce on November 15, 1996, if applicable) with respect to corrupt practices in compliance in with and since the Applicable Date have complied with: (A) procurement by Governmental Entities. Neither the provisions Company nor any of its Subsidiaries has, nor, to the Knowledge of the U.S. Company, has any officer or employee of the Company or any of its Subsidiaries, been convicted of any violation of such anti-corruption Laws. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has solicited, received, paid or offered to pay any remuneration, directly or indirectly, overtly or covertly, in cash or kind for the purpose of making or receiving any referral which violated such anti-corruption Law. Neither the Company, nor its Subsidiaries, nor, to the Knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its Subsidiaries, has taken any action, directly or indirectly, that could result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended amended, and the rules and regulations thereunder (15 U.S.C. § 78dd-1, et seq.) (the “FCPA”), including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) to or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the FCPA. The Company and its Subsidiaries operate or have operated. Since the Applicable Datehave, to the Knowledge of the Company, the Company, its Subsidiaries and/or conducted their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, businesses in each case in violation of any of compliance with the FCPA or any Laws described in clause (B)all material respects.
(iid) The Company is aware of, and has been advised as to, the content of the Rules on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors jointly promulgated by the PRC Ministry of Commerce, the State Assets Supervision and Administration Commission, the State Tax Administration, the State Administration of Industry and Commerce, the China Securities Regulatory Commission (the “CSRC”) and the State Administration of Foreign Exchange (“SAFE”) on August 8, 2006 (the “M&A Rules”). The Merger and the consummation of the transactions contemplated by this Agreement are not and will not be at the Closing Date affected by the M&A Rules or any official clarifications, guidance, interpretations or implementation rules in connection with or related to the M&A Rules, including the guidance and notices issued by the CSRC on September 8 and September 21, 2006 (collectively, the “M&A Rules and Related Clarifications”). As of the date hereof, the M&A Rules and Related Clarifications did not and do not require the Company to obtain the approval of the CSRC prior to the Effective Time, or the consummation of the transactions contemplated by this Agreement.
(e) The Company and its Subsidiaries have instituted taken all reasonable steps to comply with, and maintain policies to cause their respective shareholders to comply with, any applicable rules and procedures reasonably designed regulations of the PRC Tax authority, including taking reasonable steps to ensure compliance with the FCPA require their shareholders to complete any registration and other anti-briberyprocedures required under applicable rules and regulations of the PRC Tax authority.
(f) To the extent applicable, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operatehave taken all required steps to comply with any applicable rules and regulations on foreign exchange control.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 2 contracts
Samples: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Compliance with Laws; Licenses. (a) The CompanyExcept as would not have, individually or in the aggregate, a Material Adverse Effect or would not reasonably be expected to prevent or materially impair the consummation of the transactions contemplated by this Agreement, the businesses of each of the Retained Subsidiaries Company Representors and the Retained Business since the Applicable Date has Seller Representors have not been, since December 31, 2012, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign non-United States national, provincial or transnational local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including directive, decree, or treaty provision applicable to the Export Company Representors and Sanctions Regulations (collectivelySeller Representors, “Laws”) or any order, judgment, injunction, ruling, writ, award agency requirement license or decree permit of any Governmental Entity (collectivelyAuthority. No investigation, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation audit or review by any Governmental Entity Authority with respect to the Company, the Retained Subsidiaries or the Retained Business Company Representors and Seller Representors is pending or, as to the Knowledge of the date of this AgreementCompany Representor, threatened, nor has any Governmental Entity indicated an Authority notified the Company Representors and Seller Representors of its intention to conduct the same, except for (i) such investigations investigations, audits or reviews the outcome of which that would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse EffectEffect and/or (ii) any investigation or review related to the Merger. Except As of the date hereof, neither the Company Representor nor Seller Representor has received any written notice or communication of any material noncompliance with any applicable Laws that has not been cured as of the date hereof. The Company Representor and the Seller Representor each has made applications for or obtained, renewed and is in compliance with all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Authority (“Licenses”) necessary to conduct its business in all material respects as presently conducted, except as would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Silicon Motion Technology CORP)
Compliance with Laws; Licenses. (ai) The CompanyExcept as set forth on Section 5.1(g) of the Company Disclosure Letter, the businesses of each of the Retained Company and its Subsidiaries are not being (and the Retained Business have not been since the Applicable Date has not beenDecember 31, and is not being2006), conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, determination, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected to (x) have a Company Material Adverse Effect or (y) prevent or materially impair or materially delay the ability of the Company to perform its obligations under this Agreement. No written notice, charge, claim, action or assertion has been received by the Company or any if its Subsidiaries or, to the Knowledge of the Company, filed, commenced or threatened in writing against the Company or any if its Subsidiaries alleging any such non-compliance.
(ii) The Company and each of its Subsidiaries has obtained and is in compliance with all permits, certifications, clearances, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted and all such Licenses are in full force and effect, except those the absence of which or the failure of which to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To Effect or prevent or materially impair or materially delay the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) ability of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of to perform its obligations under this Agreement, . No suspension or cancellation of (A) each License that any Licenses is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before threatened, and no such suspension or cancellation will result from the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of transactions contemplated by this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company for suspensions or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) cancellations that would not, individually or in the aggregate, reasonably be expected to (x) have a Company Material Adverse Effect. Except for restrictions Effect or conditions that appear on (y) prevent or materially impair or materially delay the face ability of the RemainCo Communications LicensesCompany to perform its obligations under this Agreement.
(iii) Since December 31, and except for restrictions or conditions that pertain to 2005, neither the RemainCo FCC Licenses under generally applicable rules of the FCCCompany nor, to the Knowledge of the Company, no RemainCo Communications License held by any of the Subsidiaries or any third party acting on behalf of the Company or any Subsidiary of its Subsidiaries, has taken or failed to take any action that would cause it to be in violation of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended amended, or any rules or regulations thereunder, except for any such violation that would not, individually or in the aggregate, reasonably be expected to (15 U.S.C. § 78dd-1, et seq.x) have a Company Material Adverse Effect or (“FCPA”y) to prevent or materially impair or materially delay the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions ability of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and to perform its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B)obligations under this Agreement.
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ust Inc), Merger Agreement (Altria Group, Inc.)
Compliance with Laws; Licenses. (ai) The CompanyExcept as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, since December 31, 2010, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign non-United States national, provincial or transnational local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including directive, treaty provision applicable to the Export Company and Sanctions Regulations (collectivelyits Subsidiaries, “Laws”) Judgment, agency requirement, license or any order, judgment, injunction, ruling, writ, award or decree permit of any Governmental Entity (collectively, “OrderLaws”). No investigation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation audit or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before threatened, nor has any Governmental Entity notified the FCC or a Foreign Regulator or any other Governmental EntityCompany of its intention to conduct the same, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation except for (A) against such investigations or reviews the Company or any outcome of its Subsidiaries relating which would not reasonably be expected to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would nothave, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions Effect and/or (B) such investigations or conditions that appear on reviews in the face of trading in the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary securities of the Company is subject related to any restriction or condition which would limit the operation Merger. As of the Retained Business as it is conducted date hereof, neither the Company nor any of its Subsidiaries has received any notice or communication of any material noncompliance with any applicable Laws that has not been cured as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B)hereof.
(ii) The Company and its Subsidiaries have instituted each has made application or obtained, renewed and maintain policies and procedures reasonably designed to ensure is in compliance with all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business in all material respects as presently conducted, except for any such License the FCPA and other antiabsence of non-briberyrenewal of which has not or is not reasonably likely to have, anti-corruption and anti-money laundering Laws individually or in each jurisdiction in which the Company and its Subsidiaries operateaggregate, a Material Adverse Effect.
(iii) Except as has not or is not,, individually or in the aggregate, reasonably like to have a Material Adverse Effect, neither the Company nor any of its Subsidiaries is subject to any pending or, to the Knowledge of the Company, threatened, investigation by any Governmental Entity in the PRC or elsewhere pursuant to anti-corruption Laws (including the PRC Law on Anti-Unfair Competition adopted on September 2, 1993, if applicable, and the Interim Rules on Prevention of Commercial Bribery issued by the PRC State Administration of Industry and Commerce on November 15, 1996, if applicable) with respect to corrupt practices in the procurement by Governmental Entities. Neither the Company nor any of its Subsidiaries are subject has, nor, to the Knowledge of the Company, has any actual, pending civil, criminal, officer or administrative actions, suits, demands, claims, hearings, notices employee of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or Subsidiaries, been convicted of any other anti-bribery, violation of such anti-corruption Laws. To the Knowledge of the Company after due inquiry, neither the Company nor any of its Subsidiaries has solicited, received, paid or offered to pay any remuneration for the purpose of making or receiving any referral which violated such anti-money laundering Lawscorruption Law. None of the Company, its Subsidiaries, and to the Knowledge of the Company, any director, officer, agent or employee of the Company or any of its Subsidiaries, has taken any action that could result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, except for such violations that has not or is not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. To the Knowledge of the Company after due inquiry, the Company and its Subsidiaries have conducted their businesses in compliance with the FCPA in all material respects and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (China GrenTech CORP LTD), Merger Agreement (China GrenTech CORP LTD)
Compliance with Laws; Licenses. (a) The Company, each of the Retained Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is be material to the conduct of the Retained SiC Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is , (i) the SiC Entities are not pending in default under or in violation of, any applicable Law and (ii) since the Applicable Date, none of the SiC Entities have received any written notice or, to the Knowledge of the Company, threatened before the FCC other communication from any Governmental Authority regarding any violation of, or a Foreign Regulator or any other Governmental Entityfailure to comply with, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation Law.
(Ab) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business Except as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain be material to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained SiC Business taken as a whole, (i) the SiC Entities are in possession of all Licenses required to operate the SiC Business and (ii) all such Licenses are in all respects valid and in full force and effect and are not subject to any administrative or judicial proceeding that would reasonably be expected to result in modification, termination or revocation thereof.
(c) Except as would not not, individually or in the aggregate, reasonably be materially adverse expected to be material to the Retained SiC Business taken as a whole:
(i) The Company, its Subsidiaries andsince the Applicable Date, none of the SiC Entities nor, to the Knowledge of the CompanyCompany and solely to the extent when acting on behalf of the SiC Entities, their respective officersany director, directorsofficer, employees and agents are in compliance in with and since the Applicable Date have complied with: or employee thereof, has:
(i) (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977made any unlawful contributions, as amended (15 U.S.C. § 78dd-1gifts, et seq.) (“FCPA”) entertainment or other unlawful expenses relating to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and political activity; (B) the provisions of applicable anti-briberymade, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate offered, promised or have operated. Since the Applicable Dateauthorized any unlawful payment to any government official; (C) made, offered, promised or authorized any unlawful bribe, rebate, payoff, influence payment, kickback or other similar unlawful payment, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office Person for the purpose of corruptly influencing gaining an improper business advantage; or (D) otherwise violated any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).Anti-Bribery Law;
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance been a Sanctioned Person or transacted any business with or for the FCPA and other anti-briberybenefit of any Sanctioned Person in violation of applicable Sanctions, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.or otherwise materially violated applicable Sanctions;
(iii) Neither violated any applicable Ex-Im Laws or Anti-Money Laundering Laws; or
(iv) been the Company nor subject of any of its Subsidiaries are subject allegation, voluntary disclosure, or investigation, prosecution, enforcement action or other Proceeding related to any actualactual or alleged violation of any applicable Anti-Bribery Laws, pending civilSanctions, criminalEx-Im Laws, or administrative actionsAnti-Money Laundering Laws.
(d) Other than items classified under Export Administration Regulations Export Control Classification Numbers (“ECCNs”) 3C005, suits3E001, demandsand 3E003.f, claimsthe US operations of the SiC Business and of the SiC Entities do not include the production, hearingsdesign, notices of violationtesting, investigationsmanufacture, proceedings, demand letters, settlementsfabrication, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any development of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws“critical technologies” as that term is defined in 31 C.F.R. § 800.215.
Appears in 2 contracts
Samples: Investment Agreement (Coherent Corp.), Investment Agreement (Coherent Corp.)
Compliance with Laws; Licenses. (a) The Company, each of the Retained Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries in the conduct of its business, is, or since December 31, 2011, has been, in violation of any Requirement of Law, or any judgments, orders, rulings, injunctions or decrees of a Governmental Authority (collectively, “Decrees”), applicable thereto or to the employees conducting such business, except for violations that, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.
(b) The Company and its Subsidiaries as applicable, have obtained or made, as the case may be, all permits, licenses, authorizations, orders and approvals, and all filings, applications and registrations with, all Governmental Authorities (“Licenses”), that are required to conduct the businesses of the Company and its Subsidiaries in the manner and to the full extent as currently conducted or currently contemplated to be conducted except where such failure to obtain or make, individually or in the aggregate, would not be materially adverse to the Company. None of such Licenses is subject to any actualrestriction or condition that limits or would reasonably be expected to limit in any material way the full operation of the Company or its Subsidiaries as currently conducted or currently contemplated to be conducted. Each of the Licenses has been duly obtained, is valid and in full force and effect, and is not subject to any pending civilor threatened proceeding to limit, criminalcondition, suspend, cancel, suspend, or administrative actionsdeclare such License invalid. Neither the Company nor any of its Subsidiaries is in default in any material respect with respect to any of the Licenses, suits, demands, claims, hearings, notices and to the knowledge of violation, investigations, proceedings, demand letters, settlementsthe Company no event has occurred which constitutes, or enforcement actionswith due notice or lapse of time or both may constitute, or made any voluntary disclosures to any Governmental Entity, involving a default by the Company or any of its Subsidiaries relating to the FCPA or such Subsidiary under any other anti-bribery, anti-corruption or anti-money laundering LawsLicense.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Wecast Network, Inc.), Securities Purchase Agreement (Wecast Network, Inc.)
Compliance with Laws; Licenses. (a) The CompanyExcept as set forth in the SEC Reports filed with the Commission prior to the date hereof or as set forth on Schedule 3.10(a), each neither the Company nor any of its Subsidiaries in the Retained Subsidiaries and the Retained Business conduct of its business, is, or since the Applicable Date December 31, 2009, has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common lawRequirement of Law, or any rule judgments, orders, rulings, injunctions or regulation, including the Export and Sanctions Regulations decrees of a Governmental Authority (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “OrderDecrees”), applicable thereto or to the employees conducting such business, except for such violations that would notthat, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company.
(b) The Company and its Subsidiaries as applicable, no investigation have obtained or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending ormade, as of the date of this Agreementcase may be, threatenedall permits, nor has any licenses, authorizations, orders and approvals, and all filings, applications and registrations with, all Governmental Entity indicated an intention Authorities (“Licenses”), that are required to conduct the same, businesses of the Company and its Subsidiaries in the manner and to the full extent as currently conducted or currently contemplated to be conducted except for where such investigations failure to obtain or reviews the outcome of which would notmake, individually or in the aggregate, reasonably would not be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect materially adverse to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as Company. None of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all such Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which that limits or would reasonably be expected to limit in any material way the full operation of the Retained Business Company or its Subsidiaries as it is currently conducted as or currently contemplated to be conducted. Each of the date of this AgreementLicenses has been duly obtained, except for failures to comply that individually or is valid and in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees full force and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agentseffect, and (B) the provisions of applicable anti-briberyis not subject to any pending or threatened proceeding to limit, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Datecondition, to the Knowledge of the Companysuspend, the Companycancel, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to paysuspend, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of declare such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) License invalid. Neither the Company nor any of its Subsidiaries are subject is in default in any material respect with respect to any actualof the Licenses, pending civil, criminaland to the knowledge of the Company no event has occurred which constitutes, or administrative actionswith due notice or lapse of time or both may constitute, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving a default by the Company or any of its Subsidiaries relating to the FCPA or such Subsidiary under any other anti-bribery, anti-corruption or anti-money laundering LawsLicense.
Appears in 2 contracts
Samples: Series E Preferred Stock Purchase Agreement (You on Demand Holdings, Inc.), Series D Preferred Stock Purchase Agreement (You on Demand Holdings, Inc.)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Subsidiaries NSGP and, to Seller’s Knowledge, NSLP and the Retained Business their respective Subsidiaries, have not been since the Applicable Date has not beenNovember 12, 2013, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually do not constitute a Seller Material Adverse Effect or in the aggregate, reasonably be expected to have a Company NSGP/NSLP Material Adverse Effect. To the Seller’s Knowledge of the Company, (a) no investigation or review by any Governmental Entity with respect to the Company, the Retained either of NSGP or NSLP or any of their respective Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, or has been threatened, nor (b) has any Governmental Entity indicated informed NSGP or NSLP or any of their respective Subsidiaries, an intention to conduct the same, except except, in each case, for such investigations or reviews the outcome of which would not, individually does not constitute a Seller Material Adverse Effect or in the aggregate, reasonably be expected to have a Company NSGP/NSLP Material Adverse Effect. Except None of NSGP or, to Seller’s Knowledge, NSLP and their respective Subsidiaries, has received written notice of any non-compliance with Law not cured as would notof the date hereof, individually which constitutes a Seller Material Adverse Effect or in the aggregate, reasonably be expected to have a Company NSGP/NSLP Material Adverse Effect. Each of NSGP and, after giving effect to the SeparationSeller’s Knowledge, the Company NSLP and the Retained Subsidiaries possess each permittheir respective Subsidiaries, licensehas obtained and is in compliance with all permits, certificationlicenses, approvalcertifications, registrationapprovals, consentregistrations, authorizationconsents, franchiseauthorizations, concessionfranchises, variancevariances, exemption exemptions and order orders issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct its business as presently conducted, except those the Retained Business as it is conducted as absence of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satelliteswhich, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures failure to comply that arewith which, individually and in the aggregate, does not material to the Retained Business, taken as constitute a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC Seller Material Adverse Effect or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company NSGP/NSLP Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 2 contracts
Samples: Purchase Agreement, Purchase Agreement (New Source Energy Partners L.P.)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenJanuary 1, 2012, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have be material to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole. To the Knowledge of the CompanyExcept with respect to regulatory matters covered by Section 4.5, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect be material to the Separation, the Company and the Retained its Subsidiaries, taken as a whole. The Company and its Subsidiaries possess each permithas obtained and is in compliance with all permits, licensecertifications, certificationapprovals, approvalregistrations, registrationconsents, consentauthorizations, authorizationfranchises, franchisevariances, concession, variance, exemption exemptions and order orders issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business its business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licensespresently conducted, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain be material to the RemainCo FCC Licenses under generally applicable rules of the FCCCompany and its Subsidiaries, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(cii) Except Without limiting the other provisions of this Section 3.1(i), and except as would not have and would not be materially reasonably likely to, individually or in the aggregate, have a material adverse to effect on the Retained Business business of the Company and its Subsidiaries taken as a whole:
(i) The Company, the Company and its Subsidiaries are and, to the Knowledge of the Companysince January 1, their respective officers2012, directors, employees and agents are have been in compliance in with all statutory and since regulatory requirements under the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. §§ 78dd-1, et seq.), the Anti-Kickback Act of 1986, as amended, the Organization for Economic Cooperation and Development Convention Against Bribery of Foreign Officials in International Business Transactions and all legislation implementing such convention and all other applicable international anti-bribery conventions, and all other applicable anti-corruption, bribery, money laundering and similar Laws and orders (including any applicable written standards, requirements, directives or policies of any Governmental Entity) (the “FCPAAnti-Bribery Laws”) ). Since January 1, 2012, neither the Company nor any of its Subsidiaries has received any written, or, to the extent applicable to knowledge of the Company, oral communication from any Governmental Entity or from any third Person that alleges that the Company, any of its Subsidiaries or any employee or agent thereof is in material violation of any Anti-Bribery Laws.
(iii) Without limiting the other provisions of this Section 3.1(i), each of the Company and its Subsidiaries is and will remain in compliance in all material respects with all United States economic sanctions, laws, executive orders, and implementing regulations as promulgated by the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”), and all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it. None of the Company or any of its Subsidiaries (A) is a Person designated by the United States government on the list of the Specially Designated Nationals and Blocked Persons (the “SDN List”) with which a United States Person cannot deal with or otherwise engage in business transactions, (B) is a Person who is otherwise the target of United States economic sanctions laws such officersthat a United States Person cannot deal or otherwise engage in business transactions with such Person, directorsor (C) is controlled by (including by virtue of such Person being a director or owning voting shares or interests), employees or acts, directly or indirectly, for or on behalf of, any Person on the SDN List or a foreign government that is the target of United States economic sanctions prohibitions.
(iv) Without limiting the other provisions of this Section 3.1(i), each of the Company and agentsits Subsidiaries is in compliance in all material respects with (A) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and (B) the USA PATRIOT ACT (Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)).
(v) Without limiting the other provisions of applicable anti-briberythis Section 3.1(i), anti-corruption and anti-money laundering Laws of each jurisdiction in which except as would not reasonably be expected to be material to the Company and its Subsidiaries operate or have operated. Since the Applicable DateSubsidiaries, taken as a whole, to the Knowledge of the Company, since January 1, 2012, each of the Company’s suppliers, its Subsidiaries and/or their respective officers, directors, employees distributors and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political third-party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or contractors and service providers has conducted all tasks on behalf of the government Company in compliance in all material respects, with all applicable state, federal and local laws, rules and regulations and guidelines and the Company has instituted and maintained policies and procedures with respect to obtain or retain business, or direct business such parties designed to any person or to secure any other improper benefit or advantage, in each case in violation provide reasonable assurance of any of the FCPA or any Laws described in clause (B)continued compliance therewith.
(iivi) The Company and its Subsidiaries have instituted and maintain policies and procedures Without limiting the other provisions of this Section 3.1(i), except as would not, individually or in the aggregate, reasonably designed be expected to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which be material to the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject Subsidiaries, taken as a whole, each individual who renders services to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating subsidiaries who is classified by the Company or such subsidiary, as applicable, as having the status of an independent contractor or other non-employee status for any purpose (including for purposes of taxation and tax reporting and under the Benefit Plans) is properly so characterized, and each individual who renders services to the FCPA Company or any other anti-briberyof its subsidiaries who has been classified by the Company or such subsidiary, anti-corruption or anti-money laundering Lawsas applicable, as “exempt” from overtime requirements is properly so classified.
Appears in 2 contracts
Samples: Merger Agreement (XPO Logistics, Inc.), Merger Agreement (Con-Way Inc.)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in any violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderlegally binding standard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement or decree License of any Governmental Entity (collectively, “OrderLaws”), ) except for such violations that have not had and would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To Except with respect to regulatory matters that are the Knowledge subject of the CompanySection 6.3 hereof, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date Company, threatened in writing, nor, to the Knowledge of this Agreementthe Company, threatened, nor has any Governmental Entity indicated in writing an intention to conduct the samesame or alleged in writing that Company or any of its Subsidiaries is not in compliance with any applicable Law or License held by the Company or any of its Subsidiaries or which challenges or questions the validity of any rights of the holder of any such License, except for such investigations investigations, reviews or reviews allegations, the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, Each of the Company and the Retained its Subsidiaries possess each permithas obtained and possesses and is in compliance with all permits, licensecertifications, certificationapprovals, approvalregistrations, registrationclearances, consentconsents, authorizationauthorizations, franchisefranchises, concessionvariances, variance, exemption exemptions and order orders issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as enable it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate operate, lease or install broadcasting and/or audio-visual media networks otherwise hold its properties and facilities, including satellites, or assets and to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business its business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licensespresently conducted, except for failures to comply that arethose the absence of which have not had and would not have, individually and or in the aggregate, not material to the Retained Businessa Company Material Adverse Effect. Such Licenses are in full force and effect, taken as a whole. There and no suspension or cancellation of such Licenses is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreementwriting, except (x) proceedings where such failure to amend the Communications Laws be in full force and effect, suspension or cancellation has not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that had and would notnot have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 2 contracts
Samples: Purchase Agreement (Ovation Acquisition I, L.L.C.), Purchase Agreement (Energy Future Competitive Holdings Co LLC)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained American and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is not being, been conducted in violation of any applicable material federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations standard, judgment, order, writ, injunction, decree, arbitration award, agency requirement, license or permit, of any Governmental Entity (collectively, “Laws”) or any orderapplicable operating certificates, judgmentcommon carrier obligations, injunction, ruling, writ, award or decree of any Governmental Entity airworthiness directives (collectively, “OrderADs”), Federal Aviation Regulations (“FARs”) or any other rules, regulations, directives or policies of the FAA, DOT, FCC, DHS or any other Governmental Entity, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company result in an American Material Adverse Effect. To the Knowledge Except as set forth in Section 3.1(i)(i) of the CompanyAmerican Disclosure Letter, no investigation or review by any Governmental Entity with respect to the Company, the Retained American or any of its Subsidiaries or the Retained Business is pending or, as of the date of this Agreementto American’s Knowledge, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for any such investigations or reviews that would not, individually or in the outcome aggregate, reasonably be expected to result in an American Material Adverse Effect. Except as set forth in Section 3.1(i)(i) of the American Disclosure Letter, each of American and its Subsidiaries has obtained and is in substantial compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders required, issued or granted by the FAA, DOT or any other Governmental Entity applicable to it (“Licenses”) necessary to conduct its business as presently conducted, except for any failures to have or to be in compliance with such Licenses which would not, individually or in the aggregate, reasonably be expected to have a Company result in an American Material Adverse Effect. Except as The representations and warranties contained in this Section 3.1(i) shall not apply to the following applicable Laws to the extent applicable to American and its Subsidiaries (or Licenses required under such applicable Laws): (i) ERISA and other applicable Laws regarding employee benefit matters, which are exclusively governed by Section 3.1(h), (ii) applicable Laws regarding Taxes, which are exclusively governed by Section 3.1(h) and Section 3.1(n), (iii) Environmental Laws, which are exclusively governed by Section 3.1(m), and (iv) applicable Laws regarding labor matters, which are exclusively governed by Section 3.1(o).
(ii) Each of American and its Subsidiaries is in compliance with the rules and regulations of the Governmental Entity issuing such Licenses, except in each instance for any failures to be in compliance which would not, individually or in the aggregate, reasonably be expected to have a Company result in an American Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the CompanyAmerican’s Knowledge, threatened before the FCC or a Foreign Regulator FAA, DOT or any other Governmental Entity, Entity any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, forfeiture or complaint or investigation (A) against the Company American or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including except for any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) foregoing that would not, individually or in the aggregate, reasonably be expected to have a Company result in an American Material Adverse Effect. Except for restrictions or conditions that appear on the face The actions of the RemainCo Communications Licensesapplicable Governmental Entities granting all Licenses have not been reversed, stayed, enjoined, annulled or suspended, and except for restrictions there is not pending or, to American’s Knowledge, threatened, any material application, petition, objection or conditions that pertain to other pleading with the RemainCo FCC Licenses under generally applicable rules FAA, DOT or any other Governmental Entity which challenges or questions the validity of or any rights of the FCCholder under any License, to the Knowledge except as set forth in Section 3.1(i)(ii) of the CompanyAmerican Disclosure Letter and except, no RemainCo Communications License held by the Company or for any Subsidiary of the Company is subject to any restriction or condition which foregoing, that would limit the operation of the Retained Business as it is conducted as of the date of this Agreementnot, except for failures to comply that individually or in the aggregate would not aggregate, reasonably be materially adverse expected to the Retained Business taken as a wholeresult in an American Material Adverse Effect.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 2 contracts
Samples: Merger Agreement (Us Airways Group Inc), Merger Agreement (Amr Corp)
Compliance with Laws; Licenses. (a) The CompanyExcept as would not be reasonably expected to have a Material Adverse Effect, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that . Except as would not, individually or in the aggregate, not be reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of , to the Company’s Knowledge, no investigation or review by any Governmental Entity with respect to the CompanyCompany or any of its Subsidiaries is pending or threatened, other than any such investigation or review arising after the Retained Subsidiaries date of this Agreement and related to this Agreement or the Retained Business is pending ortransactions contemplated by this Agreement. Except as would not be reasonably expected to have a Material Adverse Effect, as of the date of this Agreement, neither the Company nor any of its Subsidiaries has received any notice or communication of any material noncompliance with any such Laws that has not been cured as of the date of this Agreement.
(b) Each of the Company and its Subsidiaries has obtained and is in compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (the “Licenses”) necessary to conduct its business as presently conducted and used, except those the absence of which would not be reasonably expected to have a Material Adverse Effect. The operation of the business of the Company and its Subsidiaries as presently conducted is not, and has not been since the Applicable Date, in violation of, nor is the Company or its Subsidiaries in default or violation under, any License, and, to the Company’s Knowledge, no event has occurred since the Applicable Date which, with notice or the lapse of time or both, would constitute a default or violation of any material terms, condition or provision of any License, except where such default or violation of such License would not be reasonably expected to have a Material Adverse Effect. There are no Actions pending or, to the Company’s Knowledge, threatened, that seek the revocation, cancellation or adverse modification of any License, except where such revocation, cancellation or adverse modification would not be reasonably expected to have a Material Adverse Effect.
(c) Section (10)(c) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list of all the material Licenses necessary for the Company and each of its Subsidiaries to conduct their respective businesses, in each case as presently conducted and used.
(d) Except as would not be reasonably expected to have a Material Adverse Effect, neither the Company nor any of its Subsidiaries or any other Person acting on behalf of the Company or any of its Subsidiaries, including any director, officer, agent, employee or Affiliate of the Company or any of its Subsidiaries, to the Company’s Knowledge since the Applicable Date, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or to influence official action, (ii) made any direct or indirect unlawful payment to any foreign or domestic Government Official or employee from corporate funds, (iii) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment, (iv) violated or is in violation of any provision of (A) Applicable Anti-Corruption Laws, or (B) any other Law that prohibits corruption or bribery, and, in each case, the Company and its Subsidiaries have instituted and maintain policies and procedures designed to ensure compliance therewith, or (v) been or is being investigated by a Governmental Entity, or has been or is the subject of any allegations, with respect to conduct within the scope of the foregoing clauses (i) through (iv).
(e) Except as would not be reasonably expected to have a Material Adverse Effect, neither the Company nor any of its Subsidiaries is, or since the Applicable Date has been, in default under or violation of, or is being or, since the Applicable Date, has been charged by any Governmental Entity with, or to the Company’s Knowledge, investigated for, a violation of any Antitrust Law applicable to the Company or any of its Subsidiaries or any settlement agreement in respect of a violation or alleged violation of any such Antitrust Law. As of the date of this Agreement, to the Company’s Knowledge, no investigation or review by any Governmental Entity under any Antitrust Law or any settlement agreement in respect of a violation or alleged violation thereof with respect to the Company or any of its Subsidiaries is pending or threatened, nor has any Governmental Entity indicated an intention to conduct any such investigation or review. The representations and warranties in this Section 10(e) do not apply to matters relating to this Agreement or the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted transactions contemplated by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 2 contracts
Samples: Arrangement Agreement (Catamaran Corp), Arrangement Agreement (Unitedhealth Group Inc)
Compliance with Laws; Licenses. (a) The CompanySince the Applicable Date, the businesses of each of the Retained Company and its Subsidiaries have been and the Retained Business since the Applicable Date has not been, and is not being, are being conducted in violation of any applicable compliance in all material respects with all federal, state, locallocal and foreign laws, foreign or transnational law, statute or ordinancestatutes and ordinances, common lawlaws, and any rules, regulations, standards, judgments, orders, writs, injunctions, decrees, arbitration awards, agency requirements, licenses or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree permits of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected . Except with respect to have a Company Material Adverse Effect. To the Knowledge of the Companyregulatory matters covered by Section 7.4(e), no investigation material investigation, review or review enforcement action by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatenedthreatened in writing, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the .
(b) The Company and the Retained each of its Subsidiaries possess each permithave obtained all permits, licenselicenses, certificationcertifications, approvalapprovals, registrationregistrations, consentconsents, authorizationauthorizations, franchisefranchises, concessionvariances, variance, exemption exemptions and order orders issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business its respective business as it is presently conducted as in all material respects, including all such Licenses of the date of this Agreement.
United States Food and Drug Administration (bthe “FDA”) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of other applicable U.S. or foreign drug regulatory authority necessary to conduct its Subsidiaries that is business as presently conducted in all material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”)respects, and (C) all of such Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licensescollectively, the “RemainCo Communications Regulatory Licenses”). Each of the Company and its Subsidiaries is ) are in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a wholefull force. There has not occurred any material revocation or termination of any Regulatory License, and no proceeding is not pending or, to the Knowledge of the Company, threatened before in writing to materially revoke, suspend, cancel, terminate or adversely modify any such Regulatory License.
(c) Neither the FCC or a Foreign Regulator or any other Governmental EntityCompany, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or its Subsidiaries nor any of its Subsidiaries relating to the Retained Businesstheir respective directors, (B) relating to any of the RemainCo Communications Licensesofficers, including any such proceedingor employees, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCCnor, to the Knowledge of the Company, no RemainCo Communications License held by any of its agents or distributors or any other person acting on behalf of the Company or any Subsidiary of its Subsidiaries has at any time since the Company is subject to Applicable Date, in any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreementmaterial respect, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge violated or is in violation of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended 1977 (15 U.S.C. § 78dd-1, et seq.) (the “FCPA”), (ii) to the extent violated or is in violation of any applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each Law enacted in any jurisdiction in which connection with or arising under the Company and its Subsidiaries operate OECD Convention Combating Bribery of Foreign Public Officials in International Business Transactions (the “OECD Convention”), (iii) violated or have operated. Since the Applicable Date, to the Knowledge is in violation of any provision of the CompanyUK Bribery Act of 2010 (the “UK Bribery Act”), the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid(iv) made, offered or to make, promised to pay, make or authorized the payment or ratified the paymentgiving of, directly or indirectly, any bribe, rebate, payoff, influence payment, kickback or other unlawful payment or gift of any monies money or anything of value prohibited under any applicable Law addressing matters comparable to those addressed by the FCPA, the UK Bribery Act, or the OECD Convention implementing legislation concerning such payments or gifts in any jurisdiction (any such payment, a “Prohibited Payment”), (v) been subject to any national, provincial, municipal or other Government Official or investigation by any political party or candidate for political office for the purpose of corruptly influencing Governmental Entity with regard to any act or decision of such official or of the government to obtain or retain businessProhibited Payment, or direct business to any person (vi) violated or to secure any other improper benefit or advantage, in each case is in violation of any other Laws regarding use of the FCPA funds for political activity or any Laws described in clause (B)commercial bribery.
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iiid) Neither the Company nor any of its Subsidiaries are subject has Knowledge of any actual or threatened material enforcement action by the FDA or any comparable agency or organization in another jurisdiction, and, since the Applicable Date, none has received notice of any pending or threatened material claim or investigation by the FDA or any comparable agency or organization in another jurisdiction, and the Company and its Subsidiaries have no Knowledge or reason to believe that any actualGovernmental Entity is considering such action.
(e) Since the Applicable Date, pending civilall material reports, criminaldocuments, claims and notices required to be filed, maintained, or administrative actionsfurnished to the FDA or any comparable agency or organization in another jurisdiction have been so filed, suitsmaintained or furnished.
(f) Since the Applicable Date, demandsthe Company and its Subsidiaries have not received any material FDA Form 483, claimsWarning Letter, hearingsuntitled letter or other similar correspondence or notice from the FDA or any other similar foreign Governmental Entity alleging or asserting noncompliance with any applicable Laws or Regulatory Licenses.
(g) Since the Applicable Date, notices all studies, tests and preclinical and clinical trials being conducted by the Company or its Subsidiaries have been and are being conducted in material compliance with applicable experimental protocols, procedures and controls pursuant to accepted professional scientific standards and applicable Laws and guidance, including, but not limited to the applicable requirements of violationGood Laboratory Practices or Good Clinical Practices, investigationsas applicable. Since the Applicable Date, proceedingsthe Company and its Subsidiaries have not received any written notices, demand letterscorrespondence or other communication from any institutional review board, settlements, the FDA or enforcement actions, or made any voluntary disclosures to any other similar foreign Governmental Entity, involving recommending or requiring the termination, suspension or material modification of any ongoing or planned clinical trials conducted by, or on behalf of, the Company or any its Subsidiaries. For the purposes of its Subsidiaries relating to this Agreement, (i) “Good Clinical Practices” means the FCPA or any other antiFDA’s standards for the design, conduct, performance, monitoring, auditing, recording, analysis, and reporting of clinical trials contained in 21 C.F.R. Parts 50, 54, 56 and 312 and (ii) “Good Laboratory Practices” means the FDA’s standards for conducting non-bribery, anti-corruption or anti-money laundering Lawsclinical laboratory studies contained in 21 C.F.R. Part 58.
Appears in 2 contracts
Samples: Merger Agreement (Cubist Pharmaceuticals Inc), Merger Agreement (Optimer Pharmaceuticals Inc)
Compliance with Laws; Licenses. (a) The CompanyExcept as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or would not reasonably be expected to prevent or materially impair the consummation of the transactions contemplated by this Agreement, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, since December 31, 2010, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign non-United States (including BVI or transnational PRC) national, provincial or local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectivelydirective, “Laws”) treaty provision, or any orderapplicable Judgment, judgmentagency requirement, injunction, ruling, writ, award license or decree permit of any Governmental Entity (collectively, “OrderLaws”). No investigation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation audit or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before threatened, nor has any Governmental Entity notified the FCC Company of its intention to conduct the same, except for (A) such investigations or reviews that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and/or (B) any investigation or review related to the Merger. As of the date hereof, neither the Company nor any of its Subsidiaries has received any notice or communication of any material noncompliance with any applicable Laws that has not been cured as of the date hereof.
(b) The Company and its Subsidiaries each has made application or obtained, renewed and is in compliance with all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except for any such License the absence or non-renewal of which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(c) There are no: (i) written agreements, consent agreements, memoranda of understanding, commitment letters, cease and desist orders, or similar undertakings to which the Company or a Foreign Regulator Company Subsidiary is a party, on the one hand, and any Governmental Entity is a party or addressee, on the other hand, (ii) orders or directives of or supervisory letters from a Governmental Entity specifically with respect to the Company, or (iii) resolutions or policies or procedures adopted by the Company or any other Company Subsidiary at the request of a Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation that (A) against limit in any material respect the ability of the Company or any Company Subsidiary to conduct its business as currently being conducted, (B) in any manner impose any requirements on the Company or any Company Subsidiary in respect of the provision of its products, services and/or business that materially add to or otherwise materially modify in any respect the requirements imposed under applicable Laws, (C) require the Company or any of its Subsidiaries relating or divisions to make capital contributions or make loans to another division or affiliate of the Company (except as contemplated by this Agreement) or (D) in any manner relate to the Retained Business, (B) relating to any ability of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries any Company Subsidiary to pay dividends or (y) proceedings otherwise materially restrict the conduct of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face business of the RemainCo Communications Licenses, and except for restrictions Company or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge any Company Subsidiary in any respect.
(d) Each of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this AgreementSubsidiaries, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, each employee of the Company or any Company Subsidiary who is legally required to be licensed by a Governmental Entity in order to perform his or her duties with respect to his or her employment with the Company or such Company Subsidiary, holds all material permits, licenses, franchises, grants, authorizations, consents, exceptions, variances, exemptions, orders and other authorizations of Governmental Entities, certificates, consents and approvals necessary to lawfully conduct the Company’s or the Company Subsidiaries’ respective business as presently conducted, and to own, lease and operate the Company’s or the Company Subsidiaries’ respective assets and properties (collectively, the “Company Permits”). The Company shall have provided to Parent true, correct and complete copies of all material Company Permits as of the Closing Date. All of the Company Permits are in full force and effect, and no suspension or cancellation of any of the Company Permits is pending or, to the Company’s knowledge, threatened. The Company and the Company Subsidiaries are not in violation in any material respect of the terms of any Company Permit.
(e) Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, neither the Company nor any of its Subsidiaries is subject to any pending or, to the Knowledge of the Company, threatened, investigation by any Governmental Entity in the PRC or elsewhere pursuant to applicable anti-corruption Laws (including the PRC Law on Anti-Unfair Competition adopted on September 2, 1993, if applicable, and the Interim Rules on Prevention of Commercial Bribery issued by the PRC State Administration of Industry and Commerce on November 15, 1996) with respect to corrupt practices in the procurement by Governmental Entities. Neither the Company nor any of its Subsidiaries has, nor, to the Knowledge of the Company, has any officer or employee of the Company or any of its Subsidiaries, been convicted of any violation of such applicable anti-corruption Laws. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has solicited, received, paid or offered to pay any remuneration, directly or indirectly, overtly or covertly, in cash or kind for the purpose of making or receiving any referral which violated such anti-corruption Law. Neither the Company nor its Subsidiaries nor, to the Knowledge of the Company, any of their respective directors, officers, directorsagents, employees and agents are or affiliates has taken any action, directly or indirectly, that could result in compliance in with and since the Applicable Date have complied with: (A) the provisions a violation by such persons of the U.S. Foreign Corrupt Practices Act of 1977, as amended amended, and the rules and regulations thereunder (15 U.S.C. § 78dd-1, et seq.) (the “FCPA”), including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) to or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the FCPA. The Company and its Subsidiaries operate or have operated. Since the Applicable Datehave, to the Knowledge of the Company, the Company, its Subsidiaries and/or conducted their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, businesses in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operateall material respects.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Samples: Merger Agreement (EastBridge Investment Group Corp)
Compliance with Laws; Licenses. (a) The Company, each of the Retained its Subsidiaries and the Retained Business since the Applicable Date has not beentheir respective officers, directors and Employees, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by each of its and its Subsidiaries’ other Representatives are, and since the Applicable Date have been, in compliance in all respects material to the Company and its Subsidiaries with all applicable Laws. Since the Applicable Date, neither the Company nor any of its Subsidiaries has received any written or, to the Knowledge of the Company, oral allegation any written notice from any Governmental Entity regarding any failure to comply with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the sameLaw, except for such investigations or reviews the outcome of which as would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected material to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permitits Subsidiaries, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by taken as a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreementwhole.
(b) The Company and each of its Subsidiaries has obtained, holds and is in compliance with all Licenses and registrations necessary to conduct their respective businesses as presently conducted except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. Except as would not be reasonably expected to be material to the Company and its Subsidiaries, taken as a whole, all Licenses are valid and in full force and effect and are not subject to any Proceeding that would reasonably be likely to result in any modification, termination or revocation thereof. (c) Section 3.10(b3.11(c) of the Company Disclosure Letter sets forth a correct and complete list of each License and identifies each Company Gaming License. The Company has made available to Parent prior to the date hereof true, complete and accurate list, as copies of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iiie) Neither the Company nor any of its Subsidiaries are operates as a charitable organization in any state. (f) No material Licenses will be varied, suspended, revoked or cease to be effective as a result of the Transactions. There is no fact or circumstance that is reasonably expected to cause any License to be revoked, suspended, subject to any actual, pending civil, criminala variation during its current term, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures not to any Governmental Entity, involving be renewed on terms which are no less advantageous to the Company or any its relevant Subsidiary than the current terms of such License, and each action necessary to be undertaken by the Company and its Subsidiaries relating to enable the FCPA renewal or any other anti-bribery, anti-corruption or anti-money laundering Lawsextension of each License that is subject to expiration has been duly taken.
Appears in 1 contract
Samples: Merger Agreement (DraftKings Inc.)
Compliance with Laws; Licenses. (ai) The Company, each business of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, law or any rule or rule, regulation, including the Export and Sanctions Regulations (collectivelyguideline, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. To the Knowledge of the Company, no No investigation or review by any Governmental Entity with respect to the Company or any of its Subsidiaries is, to the Knowledge of the Company, the Retained Subsidiaries pending or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews that would not, individually or in the outcome aggregate, reasonably be likely to have a Company Material Adverse Effect; provided, that such exception shall not apply to such investigations or reviews by the FCC or the Department of Justice. The Company and its Subsidiaries each has obtained and is in compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except those the absence of which would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except as would not, individually or in Effect (the aggregate, reasonably be expected to have a Company “Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement).
(bii) Section 3.10(bSchedule 3.2(h)(ii) of the Company Seller Disclosure Letter sets forth a true and complete and accurate list, as of the date of this Agreementhereof, of (A) each License that is issued or granted by the FCC all Material Licenses and, to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (eachextent not otherwise constituting Material Licenses, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material by the FCC and all leases for the use of wireless spectrum licensed to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entityother FCC licensees (such licenses and leases, authorizing “FCC Licenses”) (other than point to point microwave licenses, business radio licenses, experimental licenses and Section 214 certificates), all Licenses issued or granted to the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business by PUCs regulating telecommunications businesses (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications State Licenses”). Each of the Company , and its Subsidiaries is in compliance with the RemainCo Communications all Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures issued or granted to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to by foreign Governmental Entities regulating telecommunications businesses (collectively with the Retained BusinessMaterial Licenses, (B) relating to any of FCC Licenses and State Licenses, the RemainCo “Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws;
Appears in 1 contract
Samples: Stock Purchase Agreement
Compliance with Laws; Licenses. (ai) The CompanySince the Applicable Date, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federallaw, state, local, foreign or transnational lawcode, statute or ordinance, common law, or any rule or rule, regulation, including judgment, writ, injunction, decree, agency guidance (the Export and Sanctions Regulations failure with which to comply would result in criminal sanctions or liability in excess of $5,000,000) or requirement or Order or other governmental restriction, in each case enacted, issued, adopted or promulgated by any Governmental Entity or Educational Agency (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would notthat, individually or in the aggregate, have not had, and would not reasonably be expected to have have, a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject has received any written or, to any actualthe knowledge of the Company, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to other notice from any Governmental EntityEntity or Educational Agency alleging any actual or possible violation of any applicable Law, involving Order or License, other than violations that have been or are reasonably expected to be cured or remedied without resulting in any material Liability to the Company or any of its Subsidiaries.
(ii) Each of the Company and its Subsidiaries relating has obtained and is in compliance with all licenses, permits, certifications, accreditations, approvals, registrations, consents, authorizations, franchises, variances, exemptions, identification numbers, concessions, grants, directives, guidelines, policies, requirements, and Orders issued or granted by a Governmental Entity or Educational Agency (“Licenses”) necessary to lawfully own, lease and operate their respective properties and assets and to lawfully conduct their respective businesses as presently conducted, except those the absence of which or noncompliance with which, individually or in the aggregate, has not been and would not reasonably be expected to be material to the FCPA Company and its Subsidiaries, taken as a whole. Except as would not be reasonably expected to have a Material Adverse Effect, no suspension or cancellation of any of such Licenses is pending or, to the knowledge of the Company, threatened. To the knowledge of the Company, all Licenses of the Company and its Subsidiaries (other anti-briberythan Educational Approvals) are in full force and effect and, anti-corruption or anti-money laundering Lawssubject to obtaining the Company Required Government Approvals, will remain in full force and effect notwithstanding, and will not be materially adversely affected by, the consummation of the Merger and the Transactions.
Appears in 1 contract
Compliance with Laws; Licenses. (a) The CompanyExcept as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect or would not reasonably be expected to prevent or materially impair the consummation of the transactions contemplated by this Agreement, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, since December 31, 2010, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign non-United States national, provincial or transnational local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including directive, treaty provision applicable to the Export Company and Sanctions Regulations (collectivelyits Subsidiaries, “Laws”) Judgment, agency requirement, license or any order, judgment, injunction, ruling, writ, award or decree permit of any Governmental Entity (collectively, “OrderLaws”). No investigation, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation audit or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before threatened, nor has any Governmental Entity notified the FCC or a Foreign Regulator or any other Governmental EntityCompany of its intention to conduct the same, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation except for (A) against the Company such investigations or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) reviews that would notnot reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and/or (B) any investigation or review related to the Merger. As of the date hereof, neither the Company nor any of its Subsidiaries has received any notice or communication of any material noncompliance with any applicable Laws that has not been cured as of the date hereof.
(b) The Company and its Subsidiaries each has made application or obtained, renewed and is in compliance with all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except for any such License the absence or non-renewal of which would not reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenseshave, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as aggregate, a wholeMaterial Adverse Effect.
(c) Except as would not reasonably be materially adverse expected to have, individually or in the Retained Business taken as aggregate, a whole:
(i) The CompanyMaterial Adverse Effect, neither the Company nor any of its Subsidiaries andis subject to any pending or, to the Knowledge of the Company, threatened, investigation by any Governmental Entity in the PRC or elsewhere pursuant to applicable anti-corruption Laws (including the PRC Law on Anti-Unfair Competition adopted on September 2, 1993, if applicable, and the Interim Rules on Prevention of Commercial Bribery issued by the PRC State Administration of Industry and Commerce on November 15, 1996) with respect to corrupt practices in the procurement by Governmental Entities. Neither the Company nor any of its Subsidiaries has, nor, to the Knowledge of the Company, has any officer or employee of the Company or any of its Subsidiaries, been convicted of any violation of such applicable anti-corruption Laws. To the Knowledge of the Company, neither the Company nor any of its Subsidiaries has solicited, received, paid or offered to pay any remuneration, directly or indirectly, overtly or covertly, in cash or kind for the purpose of making or receiving any referral which violated such anti-corruption Law. Neither the Company nor its Subsidiaries nor, to the Knowledge of the Company, any of their respective directors, officers, directorsagents, employees and agents are or affiliates has taken any action, directly or indirectly, that could result in compliance in with and since the Applicable Date have complied with: (A) the provisions a violation by such persons of the U.S. Foreign Corrupt Practices Act of 1977, as amended amended, and the rules and regulations thereunder (15 U.S.C. § 78dd-1, et seq.) (the “FCPA”), including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) to or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the FCPA. The Company and its Subsidiaries operate or have operated. Since the Applicable Datehave, to the Knowledge of the Company, the Company, its Subsidiaries and/or conducted their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, businesses in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operateall material respects.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (a) The CompanySince the Applicable Date, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is not being, been conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, not reasonably be expected likely to have a Company Material Adverse Effect. To Since the Knowledge Applicable Date, each of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained its Subsidiaries possess each permithas obtained and is in compliance with all permits, licenselicenses, certificationcertifications, approvalapprovals, registrationregistrations, consentconsents, authorizationauthorizations, franchisefranchises, concessionvariances, variance, exemption exemptions and order orders issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct its business as presently conducted, except those the Retained Business as it is conducted as absence of the date of this Agreementwhich would not reasonably be likely to have a Material Adverse Effect.
(b) Section 3.10(b) of Since the Applicable Date, neither the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or nor any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (eachSubsidiaries, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending ornor, to the Knowledge of the Company, threatened before the FCC any director, officer, employee, agent or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice representative of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or of any of its Subsidiaries relating Subsidiaries, has taken any action in furtherance of an offer, payment, promise to pay, or authorization of the Retained Businesspayment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value directly, or indirectly through an intermediary, to any “government official” (B) relating to including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the RemainCo Communications Licensesforegoing, including or any such proceeding, notice, order, inquiry, action, complaint political party or investigation reasonably likely party official or candidate for political office) in order to influence official action which would result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect a violation by such persons of the operation of the Retained Business as it is conducted as of the date of this AgreementForeign Corrupt Practices Act, except (x) proceedings to amend the Communications Laws as would not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on The Company and its Subsidiaries and Affiliates have conducted their businesses in compliance with all applicable anti-corruption laws, including, without limitation, the face of the RemainCo Communications LicensesForeign Corrupt Practices Act, and have instituted and maintain and will continue to maintain policies and, procedures that are designed to provide reasonable assurance of compliance with such laws, in each case, except for restrictions or conditions that pertain as would not reasonably be likely to have a Material Adverse Effect.
(c) Neither the RemainCo FCC Licenses under generally applicable rules Company nor any of the FCCits Subsidiaries, nor, to the Knowledge of the Company, no RemainCo Communications License held by any of their directors, officers, employees, agents or representatives of the Company or any Subsidiary of the Company its Subsidiaries, is, or is subject to any restriction 50% or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply more owned or controlled by one or more Persons that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied withare: (A) the provisions subject of any sanctions administered by the U.S. Department of Treasury’s Office of Foreign Corrupt Practices Act Assets Control (OFAC) or the U.S. Department of 1977State, as amended the United Nations Security Council, the European Union, or other relevant sanctions authority (15 U.S.C. § 78dd-1collectively, et seq.) (“FCPASanctions”) to the extent applicable to the Company), its Subsidiaries and such officers, directors, employees and agents, and or (B) located, organized or resident in a country or territory that is the provisions subject of applicable anti-briberySanctions (including, anti-corruption without limitation, Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate Syria), except as (i) otherwise authorized pursuant to Sanctions or (ii) would not reasonably be likely to have operated. a Material Adverse Effect.
(d) Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither neither the Company nor any of its Subsidiaries are subject to has engaged in, directly or indirectly, any actual, pending civil, criminaldealings or transactions with any Person, or administrative actionsin any country or territory, suitsthat, demandsat the time of the dealing or transaction, claimsis or was the subject of Sanctions, hearingsexcept as (i) otherwise authorized pursuant to Sanctions or (ii) would not reasonably be likely to have a Material Adverse Effect.
(e) Since the Applicable Date, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of and its Subsidiaries relating have been in compliance with, and have not been penalized for, have not been under investigation with respect to the FCPA and have not been threatened in writing to be charged with or given written notice of any other anti-briberyviolation of, anti-corruption any applicable Sanctions or anti-money laundering Lawsexport controls laws, except as would not reasonably be likely to have a Material Adverse Effect.
Appears in 1 contract
Samples: Stock Purchase Agreement (Navistar International Corp)
Compliance with Laws; Licenses. (a) The Company, each of the Retained Subsidiaries and the Retained Business since the Applicable Date has Except as would not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect: the conduct of the business of each of the Company, Evercore LP and the Company Subsidiaries has not violated, and as presently conducted does not violate, any Laws or Orders, nor has the Company, Evercore LP or any of the Company subsidiaries received any notice of any such violation which remains outstanding, except for those listed in Section 4.11(a)(i) of the Disclosure Schedule.
(b) Except as set forth in Section 4.11(b) of the Disclosure Schedule, each of the Company, Evercore LP and the Company Subsidiaries is in possession of all material licenses, permits, consents, authorizations, registrations and approvals of, with or from Governmental Entities necessary to own, lease and operate their respective properties or to carry on their respective businesses as they are now being conducted (“Licenses”), and all such Licenses are valid and in full force and effect, except where the failure to have, or the suspension or cancellation of, or failure to be valid or in full force and effect of, any of the Licenses would not reasonably be expected to have a Material Adverse Effect. To Except for examinations conducted by a Governmental Entity in the Knowledge ordinary course of business (i) no Governmental Entity has initiated any proceeding or, to the knowledge of the Company, threatened in writing any investigation into the business or operations of the Company, Evercore LP or any Company Subsidiary and (ii) there is no investigation unresolved violation or review exception by any Governmental Entity with respect to any report or statement delivered in writing to the Company relating to any examinations of the Company, Evercore LP or any Company Subsidiary. Since the Retained Subsidiaries or the Retained Business is pending or, as enactment of the date Xxxxxxxx-Xxxxx Act of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation2002 (“SOX”), the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption of its officers and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete directors have been and accurate list, as of the date of this Agreement, of are in compliance in all material respects with (A) each License that is issued or granted by the FCC to applicable provisions of SOX and the Company or any of its Subsidiaries that is material to related rules and regulations promulgated thereunder and under the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), Exchange Act and (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), applicable listing and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the corporate governance rules and regulations of the Governmental Entities issuing such RemainCo Communications LicensesNew York Stock Exchange, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.Inc.
(c) Except as would not reasonably be materially adverse expected to have a Material Adverse Effect, the Retained Business taken operation of each Fund has been conducted in compliance with applicable Law. None of the Funds are registered or required to be registered as an investment company under the Investment Company Act. Except as would not reasonably be expected to have a whole:
Material Adverse Effect, (i) The Companyeach Fund has sold its Fund Interests in accordance with applicable Laws, its Subsidiaries andand (ii) there is no Action pending or, to the Knowledge knowledge of the Company, their respective officers, directors, employees and agents are threatened in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, writing against any Fund alleging violations of any monies applicable Law regulating xxxxxxx xxxxxxx, money laundering, fraudulent or anything of value to any national, provincial, municipal deceptive activities or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B)practices.
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency Table of Contents requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would notthat, individually or in the aggregate, are not reasonably be expected to have a Company Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement. Except with respect to regulatory matters covered by Section 6.5, to the Company’s Knowledge, no investigation investigation, audit or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, or threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews reviews, the outcome of which would is not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or, subject to the qualifications set forth in clauses (G), (L) and (M) of the definition of “Company Material Adverse Effect”, reasonably be expected to prevent, materially delay or materially impair the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement. Except The Company and each of its Subsidiaries has obtained and is in compliance with all licenses, permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity necessary to conduct its business as would notpresently conducted, except those the absence of which, individually or in the aggregate, are not reasonably be expected to have a Company Material Adverse EffectEffect or prevent, after giving effect to materially delay or materially impair the Separation, ability of the Company to consummate the Merger and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted other transactions contemplated by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “Order”"Laws"), except for violations that, individually or in the aggregate, are not reasonably likely to have a Company Material Adverse Effect. Except with respect to regulatory matters covered by Section 6.5, no investigation or review by any Governmental Entity with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company, threatened, nor has the Company or any of its Subsidiaries received written notice from any Governmental Entity stating an intention of such violations that would Governmental Entity to conduct the same, except for those the outcome of which are not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Each of the Company and its Subsidiaries has obtained and is in compliance with all permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity ("Licenses") necessary to conduct its business as presently conducted, except those the absence of which or the non-compliance with which are not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect.
(ii) The Company and each of its Subsidiaries, as applicable, is, and has been at all times since the date thereof, in compliance in all respects with (A) the terms of the Consent Decree between the Company and the United States of America (for the Federal Trade Commission) dated October 12, 2005 and (B) the terms of the Cease & Desist Order No. CD-3175 by the United States Postal Service in the matter of the Complaint Against Puritan's Pride, Inc. and Nature's Bounty Inc, except, in each case, for such failures to comply that, individually or in the aggregate, are not reasonably likely to have a Company Material Adverse Effect.
(iii) Neither the Company nor any of its Subsidiaries, has at any time during the past five (5) years committed any knowing and willful violation of U.S. Laws governing international business activities, including export control laws, trade and economic sanctions, or the Foreign Corrupt Practices Act of 1977, as amended (the "Foreign Corrupt Practices Act"), except for violations that, individually or in the aggregate, are not reasonably likely to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, Company and as of the date of this Agreement, threatenedneither the Company nor any of its Subsidiaries is currently or has been within the past five years the target of any inquiry, nor has any investigation, settlement, plea agreement or enforcement action by a U.S. Governmental Entity indicated involving an intention to conduct alleged or suspected violation of U.S. Laws governing international business activities, including export control laws, trade and economic sanctions, or the sameForeign Corrupt Practices Act, except for such investigations inquiries, investigations, settlements, plea agreements or reviews the outcome of which would notenforcement actions that, individually or in the aggregate, are not reasonably be expected likely to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Samples: Merger Agreement (Nbty Inc)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is not being, been conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. To the Knowledge of the Company, no No investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the knowledge of the date officers of this Agreementthe Company, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for any such investigations or reviews that would not, individually or in the outcome aggregate, reasonably be expected to result in a Material Adverse Effect. Each of the Company and its Subsidiaries has obtained and is in substantial compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except for any failures to have or to be in compliance with such Licenses which would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, .
(ii) Each of the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is in compliance in all material to the conduct of the Retained Business respects with each FCC License and State License (each as it is conducted as of the date of this Agreement (eachdefined in Section 6.1(ii) and, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licensescollectively, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with (A) its obligations under each of the RemainCo Communications Company Licenses (as defined in Section 6.1(ii)) and (B) the rules and regulations of the Governmental Entities Entity issuing such RemainCo Communications Company Licenses, except for any failures to comply that arebe in compliance which would not, individually and or in the aggregate, not material reasonably be expected to the Retained Business, taken as result in a wholeMaterial Adverse Effect. There is not pending or, to the Knowledge knowledge of the officers of the Company, threatened before the FCC or a Foreign Regulator FCC, the Federal Aviation Administration (“FAA”) or any other Governmental Entity, Entity any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, forfeiture or complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Company Licenses, except, in the case of Company Licenses other than Communications Licenses, including for any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) foregoing that would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face The actions of the RemainCo Communications Licensesapplicable Governmental Entities granting all Company Licenses have not been reversed, stayed, enjoined, annulled or suspended, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCCthere is not pending or, to the Knowledge knowledge of the officers of the Company, no RemainCo Communications License held by threatened, any material application, petition, objection or other pleading with the Company FCC, the FAA or any Subsidiary other Governmental Entity which challenges or questions the validity of or any rights of the holder under any Company is subject to License, except, in the case of Company Licenses other than Communications Licenses, for any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreementforegoing that would not, except for failures to comply that individually or in the aggregate would not aggregate, reasonably be materially adverse expected to result in a Material Adverse Effect.
(iii) All of the microwave paths of the Company and its Subsidiaries in respect of which a filing with the FCC or the FAA was required have been constructed and are currently operated in all respects as represented to the Retained Business FCC or the FAA in currently effective filings, and modifications to such microwave paths have been preceded by the submission to the FCC or the FAA of all required filings, in each case, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(iv) Except as would not, individually or in the aggregate, reasonably be expected to result in a non-de minimis adverse effect on the operation of transmission towers by the Company and its Subsidiaries, taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) all transmission towers located on property owned or leased by the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) Company and its Subsidiaries are obstruction-marked and lighted to the extent applicable to required by, and in accordance with, the Company, its Subsidiaries rules and such officers, directors, employees and agentsregulations of the FAA (the ”FAA Rules”), and (B) appropriate notification to the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of FAA has been made for each jurisdiction in which transmission tower located on property owned or leased by the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B)Subsidiaries.
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has January 1, 2010 have not been, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunctiondetermination, rulingorder, writ, award decree, injunction, arbitration award, license, authorization, agency requirement, treaty or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except as would notnot reasonably be likely to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained its Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreementtheir respective businesses.
(bii) The Company and its Subsidiaries conduct their operations in a manner which is in conformity in all material respects with the ITU Radio Regulations, the ITU Table of Frequency Allocations and the ITU plan for use of frequencies by satellites in the broadcasting-satellite service and related feeder links in Region 2.
(A) Section 3.10(b5.1(k)(iii)(A) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (AI) each License that is issued or granted by the FCC (each a “FCC License”) to the Company or any of its Subsidiaries that is material Subsidiaries, (II) each License issued or granted by state PUCs regulating telecommunications, broadband, and/or satellite delivered video, audio businesses or services (each a “State License”) to the conduct Company or any of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”)its Subsidiaries, (BIII) each License that is issued or granted by a Foreign Regulator (each, a “Foreign License”) to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”)Subsidiaries, and (CIV) all Licenses (other than the RemainCo FCC Licenses, the State Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide telecommunications, broadband, and/or broadcasting and/or audio-visual media services, including direct broadcast satellite services, and/or own, operate or install telecommunications and broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business frequencies (collectively with the RemainCo FCC Licenses, the State Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo (x) each of its Communications Licenses and (y) the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply with respect to Foreign Licenses and Foreign Regulators that are, individually and in the aggregate, not material immaterial to the Retained Business, taken as a wholeCompany and each of its Subsidiaries. There is not pending or, to the Knowledge of the Company, threatened before the FCC FCC, a PUC or a Foreign Regulator Regulator, the Federal Aviation Administration (“FAA”) or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (AI) against the Company or any of its Subsidiaries relating to the Retained Business, or (BII) relating to any of the RemainCo Communications LicensesLicenses or Company Satellites, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business Company’s and its Subsidiaries’ business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws, Utilities Laws or Foreign Regulatory Laws not directed at to the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) satellite industry, for any of the foregoing that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. .
(B) Section 5.1(k)(iii)(B) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of (w) all pending applications for Licenses by the Company or any of its Subsidiaries that, if issued or granted, would be Communications Licenses, (x) all pending applications by the Company or any of its Subsidiaries for modification, extension or renewal of any Communications Licenses, or waiver of any condition thereto, and (y) any agreements to acquire a License that, upon acquisition by the Company, would become Communications Licenses.
(C) For each Communications License, Section 5.1(k)(iii)(C) of the Company Disclosure Letter shows the frequencies authorized under such Communications License, if applicable, as well as the issuance and expiration dates, the name of the Person holding such Communications License and the services authorized to be provided with such spectrum.
(D) Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, including those pertaining to satellite and common carrier radio licenses, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business Company’s and its Subsidiaries’ business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(civ) Except as would not be materially adverse to the Retained Business taken as a whole:
(iA) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective owners, officers, directors, employees and agents are in compliance in with and since the Applicable Date January 1, 2010 have complied in all material respects with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent ), as if its foreign payments provisions were fully applicable to the Company, its Subsidiaries and such owners, officers, directors, employees employees, and agents, and (B) the provisions of applicable all anti-bribery, anti-corruption and anti-money laundering Laws laws of each jurisdiction in which the Company and its Subsidiaries operate or have operatedoperated and in which any agent thereof is conducting or has conducted business involving the Company. Since the Applicable DateJanuary 1, 2010, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective owners, officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, advantage in each case in violation of in any material respect of the FCPA or and any Laws laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery. For purposes of this provision, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor “Government Official” means any of its Subsidiaries are subject to any actualofficial, pending civilofficer, criminalemployee, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlementsrepresentative of, or enforcement actionsany Person acting in an official capacity for or on behalf of, or made any voluntary disclosures to any Governmental Entity, involving the Company and includes any official or employee of any directly or indirectly government-owned or -controlled entity, and any officer or employee of its Subsidiaries relating to the FCPA a public international organization, as well as any person acting in an official capacity for or on behalf of any other anti-briberysuch government or department, anti-corruption agency, or anti-money laundering Lawsinstrumentality, or for or on behalf of any such public international organization.
Appears in 1 contract
Samples: Merger Agreement (Directv)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”)Law, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatenedthreatened in writing, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained its Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order Order issued or granted by a Governmental Entity (each, a “License” and collectively, the “Licenses”) necessary to own, lease and operate their properties and assets, and to conduct their respective businesses as currently conducted or as may be required under applicable Law. Notwithstanding the Retained Business as it is conducted as of the date of foregoing, this AgreementSection 4.11 shall not apply with respect to compliance with Tax Laws, which shall be covered exclusively by Section 4.15 or compliance with Environmental Laws, which shall be covered exclusively by Section 4.14.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each Each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”)is, and (C) all Licenses (other than since the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental EntityApplicable Date has been, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually valid and in the aggregatefull force and effect and has not been suspended, not material to the Retained Businessrevoked, taken as a whole. There cancelled or adversely modified, and is not pending orand has not been the subject of a written notice or Proceeding threatening (and, to the Knowledge of the Company, threatened before the FCC no such threat has been received) to suspend, revoke, cancel or a Foreign Regulator or adversely modify any other Governmental Entitysuch License, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to except where any of the RemainCo Communications Licensesforegoing has not had and would not reasonably be expected to have, including any such proceeding, notice, order, inquiry, action, complaint individually or investigation reasonably likely to result in the revocationaggregate, suspensiona Company Material Adverse Effect. There has not been any change, cancellationevent, rescission occurrence, development, circumstance or modification of condition that would preclude any material RemainCo Communications License or other impairment from being renewed in any material respect of the operation of ordinary course (to the Retained Business as it extent that such License is conducted as of the date of this Agreementrenewable by its terms), except where the failure thereof to be renewed has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(xc) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the licensee of each License is, and since the Applicable Date has been, in compliance with such License and has fulfilled and performed all of its obligations in all respects with respect thereto, no event has occurred which, with or without notice or the lapse of time or both, would constitute a default or violation of any License, and the Company has not received any written notice of a violation of any License. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licensesas would not, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not aggregate, reasonably be materially adverse expected to have a Company Material Adverse Effect, since the Retained Business taken as a wholeApplicable Date, neither the Company nor any of its Subsidiaries has received written notice or communication of any noncompliance or alleged noncompliance with any Licenses.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(id) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees employees, consultants and agents and any other Person acting on its or their behalf are in compliance in all material respects with and since the Applicable Date have complied in all material respects with: (Ai) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees employees, consultants and agents, agents and any other Person acting on its or their behalf and (Bii) the provisions of applicable all anti-bribery, bribery and anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operatedoperated in since the Applicable Date and in which any agent thereof is conducting or has conducted business involving the Company or any of its Subsidiaries. Since the Applicable Date, the Company, its Subsidiaries and, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees employees, consultants and agents and any other Person acting on its behalf have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value (including any gift, bribe, rebate, payoff or kickback) to any national, provincial, municipal or other Governmental Entity or Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or to direct business to any person person, to improperly obtain or retain favorable treatment or to secure any other improper benefit or advantage, in each case in violation of in any material respect of the FCPA or any Laws described in clause (Bii).
(iie) To the Knowledge of the Company, none of the Company, any of its Subsidiaries any of their respective officers, directors, employees, consultants and agents or any other Person acting on its or their behalf have established or maintained, or are maintaining, any unlawful fund of corporate monies or other properties or have used or are using any corporate funds for any illegal contributions, gifts, entertainment, travel or other unlawful expenses, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(f) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, bribery and anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iiig) Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, manager or employee of the Company or any of its Subsidiaries are (in his or her capacity as a director, manager or employee of the Company or any of its Subsidiaries), is, or since the Applicable Date has been, subject to any actual, pending civilpending, criminalor, or administrative actionsto the Knowledge of the Company, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, threatened Proceedings or made any voluntary disclosures to any Governmental Entity, Entity involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, bribery and anti-corruption Laws.
(h) Neither the Company nor any of its Subsidiaries has, or anti-money laundering Lawssince the Applicable Date has been, engaged directly or indirectly in any transaction: (i) with any government, country, individual, or entity that was, at the time, the target of U.S. economic sanctions administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), including any transactions with specially designated nationals or blocked persons designated by OFAC, or (ii) prohibited by any Law administered by OFAC or by any other applicable economic or trade sanctions Law.
(i) Neither the Company nor any of its Subsidiaries has applied for or received any relief under the CARES Act, including under the Paycheck Protection Program under the CARES Act.
Appears in 1 contract
Samples: Merger Agreement (Covetrus, Inc.)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is not being, been conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. To the Knowledge of the Company, no No investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the knowledge of the date officers of this Agreementthe Company, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for any such investigations or reviews that would not, individually or in the outcome aggregate, reasonably be expected to result in a Material Adverse Effect. Each of the Company and its Subsidiaries has obtained and is in substantial compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except for any failures to have or to be in compliance with such Licenses which would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, .
(ii) Each of the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is in compliance in all material to the conduct of the Retained Business respects with each FCC License and State License (each as it is conducted as of the date of this Agreement (eachdefined in Section 6.1(ii) and, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licensescollectively, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with (A) its obligations under each of the RemainCo Communications Company Licenses (as defined in Section 6.1(ii)) and (B) the rules and regulations of the Governmental Entities Entity issuing such RemainCo Communications Company Licenses, except for any failures to comply that arebe in compliance which would not, individually and or in the aggregate, not material reasonably be expected to the Retained Business, taken as result in a wholeMaterial Adverse Effect. There is not pending or, to the Knowledge knowledge of the officers of the Company, threatened before the FCC or a Foreign Regulator FCC, the Federal Aviation Administration (“FAA”) or any other Governmental Entity, Entity any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, forfeiture or complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Company Licenses, except, in the case of Company Licenses other than Communications Licenses, including for any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) foregoing that would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face The actions of the RemainCo Communications Licensesapplicable Governmental Entities granting all Company Licenses have not been reversed, stayed, enjoined, annulled or suspended, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCCthere is not pending or, to the Knowledge knowledge of the officers of the Company, no RemainCo Communications License held by threatened, any material application, petition, objection or other pleading with the Company FCC, the FAA or any Subsidiary other Governmental Entity which challenges or questions the validity of or any rights of the holder under any Company is subject to License, except, in the case of Company Licenses other than Communications Licenses, for any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreementforegoing that would not, except for failures to comply that individually or in the aggregate would not aggregate, reasonably be materially adverse expected to result in a Material Adverse Effect.
(iii) All of the microwave paths of the Company and its Subsidiaries in respect of which a filing with the FCC or the FAA was required have been constructed and are currently operated in all respects as represented to the Retained Business FCC or the FAA in currently effective filings, and modifications to such microwave paths have been preceded by the submission to the FCC or the FAA of all required filings, in each case, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(iv) Except as would not, individually or in the aggregate, reasonably be expected to result in a non-de minimis adverse effect on the operation of transmission towers by the Company and its Subsidiaries, taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) all transmission towers located on property owned or leased by the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) Company and its Subsidiaries are obstruction-marked and lighted to the extent applicable to required by, and in accordance with, the Company, its Subsidiaries rules and such officers, directors, employees and agentsregulations of the FAA (the “FAA Rules”), and (B) appropriate notification to the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of FAA has been made for each jurisdiction in which transmission tower located on property owned or leased by the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B)Subsidiaries.
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Samples: Merger Agreement (At&t Corp)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “Order”"Laws"), except for such violations that would notthat, individually or in the aggregate, are not reasonably be expected to have a Company Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement. Except with respect to regulatory matters covered by Section 6.5, to the Company's Knowledge, no investigation investigation, audit or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, or threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews reviews, the outcome of which would is not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect or, subject to the qualifications set forth in clauses (G), (L) and (M) of the definition of "Company Material Adverse Effect", reasonably be expected to prevent, materially delay or materially impair the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement. Except The Company and each of its Subsidiaries has obtained and is in compliance with all licenses, permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity necessary to conduct its business as would notpresently conducted, except those the absence of which, individually or in the aggregate, are not reasonably be expected to have a Company Material Adverse EffectEffect or prevent, after giving effect to materially delay or materially impair the Separation, ability of the Company to consummate the Merger and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted other transactions contemplated by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, since December 31, 2009, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign non-United States national, provincial or transnational local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including directive, treaty provision legally binding on the Export Company and Sanctions Regulations (collectivelyits Subsidiaries, “Laws”) Judgment, agency requirement, license or any order, judgment, injunction, ruling, writ, award or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would notincluding Laws enforced by the State Food and Drugs Administration of China (“SFDA”), except, individually or in the aggregate, reasonably be expected to as would not have a Company Material Adverse Effect. To Effect or prevent or materially impair the Knowledge consummation of the Companytransactions contemplated by this Agreement. Neither the Company nor any of its Subsidiaries is debarred under the Law of the PRC on the Administration of Pharmaceuticals (the “Pharmaceutical Law”) or otherwise excluded from or restricted in any manner from participation in, no investigation any government program related to pharmaceutical products. No investigation, audit or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an notified the Company of its intention to conduct the same, except for such investigations or reviews the outcome of which are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect or prevent or materially impair the consummation of the transactions contemplated by this Agreement. As of the date hereof, neither the Company nor any of its Subsidiaries has received any written notice or communication of any material noncompliance with any applicable Laws that has not been cured as of the date of this Agreement.
(ii) The Company and its Subsidiaries each has made application or obtained, renewed and is in compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except those the absence of which would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse EffectEffect or prevent or materially impair the consummation of the transactions contemplated by this Agreement. Except There is no reasonable basis for the Company and any of its Subsidiaries to believe that any National Drugs Standard (as would notdefined below) for its products, individually where application for such standard is currently pending, will not be granted or in the aggregateobtained, free from any condition or requirement, compliance with which could reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to Effect on the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to which the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, could not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have be able to satisfy. “National Drugs Standard” means the final state production standard for a Company Material Adverse Effect. Except for restrictions medicine required under the Administrative Measures of Medicine Registration dated February 28, 2005 or conditions that appear on the face of the RemainCo Communications LicensesJuly 10, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held 2007 issued by the Company or any Subsidiary of the Company SFDA, whichever is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a wholeapplicable.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (a) The Company, each of the Retained Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Lawsor
Appears in 1 contract
Samples: Merger Agreement
Compliance with Laws; Licenses. (a) The Company, each of the Retained Subsidiaries and the Retained Business since the Applicable Date has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations Except with respect to matters that would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries are not in violation of and, since the Applicable Date have not breached or violated, any federal, state, local or foreign law, statute or ordinance, or any rule, regulation, judgment, order, writ, decree or other court orders (collectively, “Laws”). To the Knowledge of the CompanyExcept as otherwise would not reasonably be expected to have a Company Material Adverse Effect, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatened. Each of the Company and its Subsidiaries has obtained all material permits, nor has any licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity indicated an intention (“Licenses”) necessary to conduct the sameits business as presently conducted, except for such investigations or reviews those the outcome absence of which has not had, and would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect. Except as with respect to matters that would not, individually or in the aggregate, not reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and its Subsidiaries are in compliance with the Retained Subsidiaries possess terms of each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this AgreementLicense.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to To the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business except as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws would not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither neither the Company nor any of its Subsidiaries are subject (nor any of their respective officers, directors or employees) (i) has made or agreed to make any actualcontribution, pending civilpayment, criminalgift or entertainment to, or administrative actionsaccepted or received any contributions, suitspayments, demandsgifts or entertainment from, claimsany government official, hearingsemployee, notices of violationpolitical party or agent or any candidate for any federal, investigationsstate, proceedings, demand letters, settlementslocal or foreign public office, or enforcement actionsany individual or entity in a position to give the Company a commercial business advantage where either the contribution, payment or gift or the purpose thereof was illegal under the Laws of any federal, state, local or foreign jurisdiction, (ii) has established or maintained any unrecorded fund or asset or made any voluntary disclosures to false entries on any Governmental Entitybooks or records for any purpose, involving or (iii) has engaged in or otherwise participated in, assisted or facilitated any transaction that is prohibited by any applicable embargo or related trade restriction imposed by the Company or any United States Office of its Subsidiaries relating to the FCPA Foreign Assets Control or any other anti-bribery, anti-corruption or anti-money laundering Lawsagency of the United States government.
Appears in 1 contract
Samples: Merger Agreement (Immucor Inc)
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDate, and is are not being, conducted in violation of any applicable international, federal, state, local, local or foreign or transnational law, statute or ordinance, common law, constitution, treaty, convention or any rule or rule, regulation, including the Export and Sanctions Regulations (collectivelyresolution, “Laws”) or any orderdirective, code, ruling, edict, standard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit or other similar requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity (collectively, “OrderLaws”), except for such violations that have not had and would notnot reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as contemplated by Section 5.1(i)(i) of the Company Disclosure Letter and as of the date hereof, no investigation or review by any Governmental Entity with respect to the Company or any of its Subsidiaries is pending or, to the Knowledge of the Company, threatened, nor has the Company or any of its Subsidiaries received written notice from any Governmental Entity stating an intention of such Governmental Entity to conduct the same, except for those the outcome of is not and which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Since the - 21 - Applicable Date, each of the Company and its Subsidiaries has obtained and is in compliance with all permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to own, lease or operate their properties and to conduct their businesses as presently conducted, each of which is valid and in full force and effect and is not subject to any pending or, to the Knowledge of the Company, threatened Proceedings to revoke, cancel, suspend, adversely modify, not renew or declare any such License invalid, except, in each case, which is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has received any written notice from any Governmental Entity alleging any violation by the Company or any of its Subsidiaries of any Licenses or the failure to have any required Licenses, that remains outstanding or unresolved, except for violations that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date hereof, the Company and its Subsidiaries are not conducting and do not have pending any investigation in connection with which outside legal counsel has been retained with respect to any actual, potential or alleged violation of any applicable Laws, except as to which, if any such violation under investigation in fact existed, such violation (or the remedy thereof) is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(ii) None of the Company, any of its Subsidiaries or any officer, director, agent, employee or other Person acting on their behalf, has, directly or indirectly (A) taken any action that would cause them to be in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended (the “Foreign Corrupt Practices Act”) or other Anti-Corruption and Anti-Bribery Laws, (B) used any corporate funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (C) made, offered or authorized any unlawful payment, or other thing of value, to foreign or domestic government officials or employees or (D) made, offered or authorized any bribe, rebate, payoff, influence payment, kickback or similar payment in violation of the FCPA or other Anti-Corruption and Anti-Bribery Laws. “Anti-Corruption and Anti-Bribery Laws” shall mean the FCPA, as amended, any rules or regulations thereunder, or any other applicable United States or foreign anti-corruption or anti-bribery Laws or regulations (including the UK Bribery Act 2010). Neither the Company nor any of its Subsidiaries has at any time during the past five (5) years committed any violation of any Export and Import Control Laws, except as is not and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. “Export and Import Control Laws” means all applicable Laws, regulations, or orders of any jurisdiction, including but not limited to the United States, related to imports, exports controls, boycotts, economic sanctions or trade embargoes. To the Knowledge of the Company and as of the date of this Agreement, neither the Company nor any of its Subsidiaries is or has been within the past five (5) years the target of any inquiry, investigation, settlement, plea agreement or enforcement action by a Governmental Entity involving an alleged or suspected violation of the FCPA, any other Anti-Corruption and Anti-Bribery Laws or any Export and Import Control Laws, except for such inquiries, investigations, settlements, plea agreements or enforcement actions that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither neither the Company nor any of its Subsidiaries are subject has a customer or supplier relationship with or is a party to any actualContract with any person or entity that is (a) on the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”) list of specially designated nationals and blocked persons (the “SDN List”), pending civil(b) owned or controlled or acting on behalf of a Person on the SDN List, criminal(c) otherwise the target of economic sanctions administered by OFAC or owned or controlled by, or administrative actionsacting on behalf of, suits, demands, claims, hearings, notices such Person that is otherwise the target of violation, investigations, proceedings, demand letters, settlementseconomic sanctions administered by OFAC, or enforcement actions(d) listed on the U.S. Department of Commerce’s Denied Persons List or Entity List. To the Knowledge of the Company, or made any voluntary disclosures to any Governmental Entity, involving neither the Company or nor any of its Subsidiaries has a customer or supplier relationship with or is a party to any Contract with any person or entity that (i) has its principal place of business or the majority of its business operations (measured by revenues) located in a country subject to comprehensive sanctions (currently, Cuba, the Crimea Region of Ukraine, Iran, and North Korea); (ii) has been convicted of or charged with a felony relating to the FCPA money laundering; or (iii) is under investigation by any other anti-bribery, anti-corruption or anti-Governmental Entity for money laundering Lawslaundering.
Appears in 1 contract
Samples: Bid Conduct Agreement
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenJuly 31, 2015, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would notthat, individually or in the aggregate, have not had and would not be reasonably be expected likely to have a Company Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge consummation of the CompanyMerger and the other transactions contemplated by this Agreement. As of the date of this Agreement, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would notnot be, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse EffectEffect or prevent, materially delay or materially impair the consummation of the Merger and the other transactions contemplated by this Agreement. Except The Company and each of its Subsidiaries has obtained and is in compliance with all permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to own, lease and operate their properties and assets and conduct their businesses as presently conducted, except those the absence of which would notnot be, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all All Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is are in compliance full force and effect, no default (with the RemainCo Communications Licenses and the rules and regulations or without notice, lapse of the Governmental Entities issuing such RemainCo Communications Licensestime, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (Aboth) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including has occurred under any such proceedingLicense, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification and none of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw, modify or (y) proceedings of general applicability decline to the broadcasting and/or audio-visual media services industries or (C) that renew any such License, in each case, except as would notnot be, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (a) The Company, each of the Retained Subsidiaries and the Retained Business since the Applicable Date has Except with respect to matters that have not been, and is had or would not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would notreasonably be likely to have, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, since January 1, 2010, the Company and its Subsidiaries have not been and are not in violation of any federal, state, local or foreign law, statute or ordinance, or any rule, regulation, judgment, order, writ, decree or other court orders (collectively, “Laws”). To the Knowledge of the Company, no investigation or review by any Governmental Entity Except with respect to the Company, the Retained Subsidiaries matters that have not had or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention would not reasonably be likely to conduct the same, except for such investigations or reviews the outcome of which would nothave, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separationsince January 1, 2010, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each operations of the Company and its Subsidiaries is have been and are in compliance with the RemainCo terms and conditions of the Communications Licenses Act of 1934, as amended by the Telecommunications Act of 1996 (the “Communications Act”) and the rules published rules, regulations and regulations policies promulgated by the Federal Communications Commission (“FCC”), and neither the Company nor its Subsidiaries have knowingly taken any action or failed to take any action that reasonably could be expected to cause the loss of any material License. No petition, Action, notice of violation or apparent liability, notice of forfeiture, order to show cause or complaint seeking to revoke, reconsider the grant of, cancel, suspend, or modify any of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There Licenses is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity. Since January 1, 2010, no written notices have been received by and, no claims have been filed by any material proceeding, notice Governmental Entity against or to the Knowledge of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Businessthreatened against, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries alleging a failure to hold any material requisite permits, regulatory approvals, licenses or other authorizations.
(yb) proceedings of general applicability The Company and its Subsidiaries own or possess all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to the broadcasting and/or audio-visual media services industries or (C) that would notconduct their respective businesses as presently conducted. Each such License has been duly obtained, individually or is valid and in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licensesfull force and effect, and except for restrictions or conditions that pertain is not subject to the RemainCo FCC Licenses under generally applicable rules of the FCCany pending or, to the Knowledge of the Company, no RemainCo Communications threatened administrative or judicial proceeding to revoke, cancel, suspend or declare any such License held by the Company invalid in any respect, except, in each case, as has not had or any Subsidiary of the Company is subject would not reasonably be likely to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreementhave, except for failures to comply that individually or in the aggregate would not be materially adverse aggregate, a Company Material Adverse Effect. The Licenses are sufficient and adequate in all material respects to permit the Retained Business taken continued lawful conduct of the business of the Company and its Subsidiaries as presently conducted, and none of the operations of the Company or its Subsidiaries is being conducted in a wholemanner that violates in any material respects any of the terms or conditions under which any License was granted.
(c) Except as with respect to matters that have not had or would not reasonably be materially adverse likely to have, individually or in the Retained Business taken as aggregate, a whole:
(i) The CompanyCompany Material Adverse Effect, since January 1, 2010, the Company and its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees have been and agents are in compliance in with all statutory and since regulatory requirements under the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, all anti-corruption and anti-money laundering or bribery Laws of each jurisdiction in jurisdictions in which the Company and its Subsidiaries operate or have operatedare operating. Since the Applicable Date, to the Knowledge The Company is unaware of any facts that would constitute a violation of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or anti-bribery provisions of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B)Foreign Corrupt Practices Act.
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would are not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse EffectEffect or prevent, materially delay or materially impair the consummation of the transactions contemplated by this Agreement. To the Knowledge knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained any of its Subsidiaries or the Retained Business Benefit Plans is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated to the Company an intention to conduct the same. To the knowledge of the Company, except for such investigations or reviews the outcome of which would not, individually or no material change is required in the aggregateCompany’s or any of its Subsidiaries’ processes, reasonably be expected to have a properties or procedures in connection with any such Laws, and the Company Material Adverse Effecthas not received any notice or communication of any material noncompliance with any such Laws that has not been cured as of the date hereof. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, Each of the Company and its Subsidiaries has obtained and the Retained businesses of each of the Company and its Subsidiaries possess each permithave not been, licenseand are not being, certificationconducted in violation of or inconsistent with all permits, approvallicenses, registrationcertifications, consentapprovals, authorizationregistrations, franchiseconsents, concessionauthorizations, varianceenrollments, exemption accreditations, franchises, variances, waivers, exemptions and order orders issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business its business as it is conducted presently conducted. There exists no grounds for revocation, suspension or limitation of any License (including, but not limited to, as a result of the date Merger) and no notices have been received by the Company, its officers or managing employees with respect to any threatened, pending or possible termination, revocation, suspension or limitation of this Agreementany License.
(bii) Section 3.10(b) All of the Company Disclosure Letter sets forth a complete Company’s and accurate list, as its Subsidiaries’ products are in compliance in all material respects with all applicable requirements of the date of this Agreement, of Food and Drug Administration (A“FDA”) each License that is issued or granted by the FCC to the Company or any other relevant Governmental Entity and all Licenses, permissions, authorizations, notified body certificates of its Subsidiaries that is material to compliance or consents required for placing the conduct of products on the Retained Business as it is conducted as of market in the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted United States and Canada. Any modifications by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against product marketed by the Company or any of its Subsidiaries relating to have been made in accordance with applicable Law. All manufacturing facilities are operated in compliance in all material respects with the Retained BusinessFDA’s Quality System Regulation requirements at 21 C.F.R. Part 820, as applicable.
(Biii) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint Any and all preclinical and clinical trials conducted or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at supervised by the Company or any of its Subsidiaries or have been conducted in substantial compliance with all applicable Laws, including, but not limited to, FDA good clinical practice and good laboratory practice requirements.
(yiv) proceedings Except as disclosed in Section 5.1(i)(iv) of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would notCompany Disclosure Letter, individually or in the aggregatelast three years, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face none of the RemainCo Communications LicensesCompany’s or its Subsidiaries’ products have been recalled or subject to FDA correction or removal requirements, and except the Company and each of its Subsidiaries have not received notice, either completed or pending, of any proceeding seeking a corrective action, recall, suspension or seizure of any products. Neither the Company nor any of its Subsidiaries have received any order, demand or other formal proceedings from any competent authority or notified body for restrictions medical devices to undertake any form of withdrawal from the market of any of their products or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules any product recall and have notified any competent authority or notified body of the FCCintent to conduct a market withdrawal, product recall or field correction, and, to the Knowledge knowledge of the Company, no RemainCo Communications License held by the Company facts or any Subsidiary of the Company is subject circumstances have occurred that are reasonably likely to give rise to any restriction such corrective action, recall, suspension or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a wholeseizure.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iiiv) Neither the Company nor any of its Subsidiaries are subject to any actualincluded on FDA’s AIP list.
(vi) As of the date hereof, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving neither the Company or nor any of its Subsidiaries Subsidiaries, nor, to the Company’s knowledge, any of its employees, agents or consultants retained to assist with product license submissions, have been disqualified or debarred by the FDA, pursuant to 21 U.S.C. §§ 335(a) or (b), or for any purpose, been charged with or convicted under United States law for conduct relating to the FCPA development, approval, marketing or sale of drugs or devices or otherwise relating to the regulation of any drug product under the Generic Drug Enforcement Act of 1992 or any other anti-briberyrelevant law or been disbarred, anti-corruption disqualified or anti-money laundering Lawsconvicted under or for any equivalent or similar applicable foreign laws.
Appears in 1 contract
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations regulation (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect or a Plastics Material Adverse Effect. To the Knowledge As of the Companydate of this Agreement, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatenedthreatened in writing, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect or a Plastics Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained its Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreementtheir respective businesses.
(bii) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and their respective officers, directors, employees and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in all material respects with and since the Applicable Date have complied in all material respects with: (AI) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (BII) the provisions of applicable all anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, Date the Company, its Subsidiaries and/or their respective officers, directors, employees and and, to the Knowledge of the Company, agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any material respect of the FCPA or any Laws described in clause (BII).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery. For purposes of this provision, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor “Government Official” means any of its Subsidiaries are subject to any actualofficial, pending civilofficer, criminalemployee, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlementsrepresentative of, or enforcement actionsany Person acting in an official capacity for or on behalf of, or made any voluntary disclosures to any Governmental Entity, involving the Company and includes any official or employee of any directly or indirectly government-owned or -controlled entity, and any officer or employee of its Subsidiaries relating to the FCPA a public international organization, as well as any person acting in an official capacity for or on behalf of any other anti-briberysuch government or department, anti-corruption agency, or anti-money laundering Lawsinstrumentality, or for or on behalf of any such public international organization.
Appears in 1 contract
Samples: Merger Agreement (Univar Inc.)
Compliance with Laws; Licenses. (a) The CompanyExcept where the failure to be, each of the Retained Subsidiaries and the Retained Business since the Applicable Date or to have been, in compliance with such Laws has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To , the Knowledge businesses of each of the CompanyCompany and its Subsidiaries are not, no investigation or review by and have not been since January 1, 2019, conducted in violation of any Governmental Entity applicable Law. Neither the Company nor any of its Subsidiaries has received any written notice of any material noncompliance with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, any such Laws that has not been cured as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention .
(b) Except with respect to conduct the same, except for such investigations regulatory matters covered by Section 7.3 or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued no investigation or granted review by a any Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC with respect to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before threatened, nor has any Governmental Entity indicated an intention to conduct the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation same.
(Ac) against the The Company or any and each of its Subsidiaries relating has obtained and is in compliance in all material respects with all material Licenses necessary to the Retained Business, (B) relating conduct their respective businesses as presently conducted. No Licenses shall cease to any be effective as a result of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect consummation of the operation of the Retained Business as it is conducted as of the date of this AgreementTransactions, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. .
(d) Except for restrictions as would not, individually or conditions that appear on in the face aggregate, reasonably be expected to be material to the Company or its Subsidiaries, taken as a whole, since January 1, 2019: (i) neither the Company nor any of its Subsidiaries, nor any of their respective managers, employees or officers, or to the Knowledge of the RemainCo Communications LicensesCompany any of their respective agents, and except for restrictions Representatives, or conditions that pertain any person acting on their behalf has violated any applicable anti-corruption Law, including the FCPA, the U.K. Bribery Act, or any Law enacted to implement the RemainCo FCC Licenses under generally applicable rules OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions (collectively, “Anti-Corruption Laws”); (ii) neither the FCCCompany nor any of its Subsidiaries, nor any of their respective managers, employees or officers or, to the Knowledge of the Company, no RemainCo Communications License held by the Company any of their respective agents, Representatives, or any Subsidiary person acting on their behalf has paid, offered, promised, or authorized the payment of money or anything of value, directly or indirectly, to any government official, government employee, political party, political party official, candidate for public office, or officer or employee of a public international organization for the purpose of influencing any official act or decision or to secure any improper advantage; (iii) each of the Company is subject and its Subsidiaries has implemented and maintains effective internal controls reasonably designed to any restriction or condition which would limit the operation prevent and detect violations of all applicable Anti-Corruption Laws; and (iv) each of the Retained Business Company and its Subsidiaries has recorded and maintained accurate books and records in compliance with applicable Anti-Corruption Laws.
(e) Except as it is conducted as of the date of this Agreementwould not, except for failures to comply that individually or in the aggregate would not aggregate, reasonably be materially adverse expected to be material to the Retained Business Company or its Subsidiaries, taken as a whole, since January 1, 2019, the Company and each of its Subsidiaries has been and currently is in compliance with relevant International Trade Laws. Neither the Company nor any of its Subsidiaries, nor any of their respective managers, employees or officers, or to the Knowledge of the Company, any of their respective consultants, Representatives, agents or Affiliates, is (i) a person that is designated on, or is owned or controlled by a person that is designated on any list of sanctioned parties maintained by the United States, Canada, the United Kingdom, or the European Union, including the list of Specially Designated Nationals and Blocked Persons maintained by OFAC (a “Sanctioned Person”); or (ii) located or organized in a country or territory that is or whose government is, or has been in the past five years, the target of comprehensive sanctions imposed by the United States, Canada, European Union or United Kingdom (including Cuba, Iran, North Korea, Sudan, Syria, Venezuela, and Crimea) (a “Sanctioned Jurisdiction”). Since January 1, 2019, neither the Company nor any of its Subsidiaries, nor any of their respective managers, employees or officers, or to the Knowledge of the Company, any of their consultants, Representatives, agents or Affiliates, have participated or otherwise engaged, directly or indirectly, in any transaction or dealing with any such Sanctioned Person or Sanctioned Jurisdiction.
(cf) Except as would not be materially adverse to the Retained Business taken as a whole:
Since January 1, 2019, (i) The Company, neither the Company nor its Subsidiaries andhas conducted an internal investigation or made a voluntary disclosure to any Governmental Entity with respect to any alleged act or omission arising under International Trade Laws or Anti-Corruption Laws, and (ii) no Governmental Entity has initiated, or, to the Knowledge of the Company, their respective threatened to initiate, a Proceeding against the Company or any of its officers, directorsmanagers, employees and employees, consultants, Representatives, agents are or Affiliates asserting that the Company or Affiliate is not in compliance in with and since the Applicable Date International Trade Laws or Anti-Corruption Laws.
(g) Since January 1, 2019, (i) no allegations of sexual harassment, discrimination or retaliation have complied with: (A) the provisions been made against any employee of the U.S. Foreign Corrupt Practices Act Company or any of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officerswith the title of director, directors, employees and agents, and (B) vice president or above through the provisions anonymous employee hotline of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since any other formal human resources communication channels at the Applicable DateCompany and its Subsidiaries, and (ii) there are no Proceedings against the Company or its Subsidiaries pending or, to the Knowledge of the Company, threatened related to any allegations of sexual harassment, discrimination or retaliation by any employee of the Company, Company or any of its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-briberytitle of vice president or above. Since January 1, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither 2019, neither the Company nor any of its Subsidiaries are subject has entered into any settlement agreements related to allegations of sexual harassment, discrimination or retaliation by any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices employee of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to with the FCPA title of vice president or any other anti-bribery, anti-corruption or anti-money laundering Lawsabove.
Appears in 1 contract
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, since December 31, 2019, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign or transnational PRC or other national, provincial or local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including directive, treaty provision legally binding on the Export Company and Sanctions Regulations (collectivelyits Subsidiaries, “Laws”) Judgment, agency requirement, license or any order, judgment, injunction, ruling, writ, award or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations including the Law on the Protection of Consumer Rights and Interests as amended by the Standing Committee of the National People’s Congress that would nottook effect on March 15, 2014, except, individually or in the aggregate, reasonably be expected to as would not have a Company Material Adverse Effect. To Effect or prevent or materially impair the Knowledge consummation of the Companytransactions contemplated by this Agreement. No investigation, no investigation audit or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an notified the Company of its intention to conduct the same, except for such investigations or reviews the outcome of which are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect or prevent or materially impair the consummation of the transactions contemplated by this Agreement. As of the date hereof, neither the Company nor any of its Subsidiaries has received any written notice or communication of any material noncompliance with any applicable Laws that has not been cured as of the date of this Agreement.
(ii) The Company and its Subsidiaries each has made application or obtained, renewed and is in compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except those the absence of which would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse EffectEffect or prevent or materially impair the consummation of the transactions contemplated by this Agreement.
(iii) Neither the Company nor any of its Subsidiaries is subject to any pending or, to the Knowledge of the Company, threatened, investigation by any Governmental Entity in the PRC or elsewhere pursuant to anti- corruption Laws. Except Neither the Company nor any of its Subsidiaries has, nor, to the Knowledge of the Company, has any officer or employee of the Company or any of its Subsidiaries, been convicted of any violation of such anti-corruption Laws. Neither the Company nor any of its Subsidiaries has Knowledge that it has solicited, received, paid or offered to pay any remuneration, directly or indirectly, overtly or covertly, in cash or kind for the purpose of making or receiving any referral which violated any applicable anti-corruption Law. None of the Company, its Subsidiaries and, to the Knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of its Subsidiaries, has taken any action, directly or indirectly, that would result in a violation by such persons of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA, except for such violations, if any, as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the The Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending orhave, to the Knowledge of the Company, threatened before conducted their businesses in compliance with the FCC or a Foreign Regulator or any other Governmental EntityFCPA in all material respects and have instituted and maintain policies and procedures designed to ensure, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation and which are reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licensescontinue to ensure, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a wholecontinued compliance therewith.
(civ) Except The Company is aware of, and has been advised as would to, the content of the Rules on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors jointly promulgated by the PRC Ministry of Commerce, the State Assets Supervision and Administration Commission, the State Tax Administration, the State Administration of Industry and Commerce, the China Securities Regulatory Commission (the “CSRC”) and the State Administration of Foreign Exchange (“SAFE”) on August 8, 2006 and as further amended by the PRC Ministry of Commerce on June 22, 2009 (the “M&A Rules”). The Merger and the consummation of the transactions contemplated by this Agreement are not and will not be materially adverse at the Closing Date affected by the M&A Rules or any official clarifications, guidance, interpretations or implementation rules in connection with or related to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B)M&A Rules.
(iiv) The Company and its Subsidiaries have instituted taken all reasonable steps to comply with, and maintain policies to cause their respective shareholders to comply with, any applicable rules and procedures reasonably designed to ensure compliance with regulations of the FCPA and other anti-briberyPRC Tax authority.
(vi) To the extent applicable, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operatehave taken all reasonable steps to comply with any applicable rules and regulations of the SAFE.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (a) The CompanyExcept as would not have, individually or in the aggregate, a Material Adverse Effect, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, since December 31, 2010, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign non-United States national, provincial or transnational local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including decree, treaty provision applicable to the Export Company and Sanctions Regulations its Subsidiaries, or any Judgment or agency requirement having the force of law (collectively, “Laws”) or any order). No investigation, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation audit or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before threatened, nor has any Governmental Entity notified the FCC or a Foreign Regulator or any other Governmental EntityCompany of its intention to conduct the same, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation except for (A) against the Company investigations or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) reviews that would notnot have, individually or in the aggregate, reasonably be expected a Material Adverse Effect and/or (B) any investigation or review related to have the Merger. As of the date hereof, neither the Company nor any of its Subsidiaries has received any notice or communication of any material noncompliance with any applicable Laws that has not been cured as of the date hereof.
(b) The Company and its Subsidiaries each has made applications for or obtained, renewed and is in compliance with all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Company Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except for any such License the absence or non-renewal of which would not have, individually or in the aggregate, a Material Adverse Effect. Except for restrictions or conditions that appear on .
(c) Neither the face of the RemainCo Communications LicensesCompany, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCCnor, to the Knowledge of the Company, no RemainCo Communications License held by the Company any agent or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge other person acting on behalf of the Company, their respective officers, directors, employees and agents are has violated in compliance in with and since the Applicable Date have complied with: (A) the provisions any material respect any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1amended, et seq.) (“FCPA”) to the extent or any similar anti-corruption Laws applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Samples: Merger Agreement (Camelot Information Systems Inc.)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business have not been since the Applicable Date has not beenDecember 31, 2014, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would notthat, individually or in the aggregate, have not had and would not be reasonably be expected likely to have a Company Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge consummation of the CompanyMerger and the other transactions contemplated by this Agreement. Except as set forth on Section 5.1(i) of the Company Disclosure Letter, as of the date of this Agreement, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the Knowledge of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would notnot be, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect or prevent, materially delay or materially impair the consummation of the Merger and the other transactions contemplated by this Agreement. The Company and each of its Subsidiaries has obtained and is in compliance with all permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to own, lease and operate their properties and assets (other than the Excluded Assets) and conduct their businesses as presently conducted, except those the absence of which would not be, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect. Except All Licenses of the Company and its Subsidiaries are in full force and effect, no default (with or without notice, lapse of time, or both) has occurred under any such License, and none of the Company or its Subsidiaries has received any written notice from any Governmental Entity threatening to suspend, revoke, withdraw, modify or decline to renew any such License, in each case, except as would notnot be, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (a) The CompanyExcept with respect to (i) compliance with Laws concerning employee matters (as to which certain representations and warranties are made pursuant to Section 3.12 and Section 3.13, each of the Retained Subsidiaries (ii) compliance with Environmental Laws (as to which certain representations and the Retained Business warranties are made pursuant to Section 3.11), (iii) compliance with Laws concerning Taxes (as to which certain representations and warranties are made pursuant to Section 3.14), and (iv) compliance with Educational Laws (as to which certain representations and warranties are made pursuant to Section 3.22, no DVU Transferred Entity is, nor since the Applicable Date June 30, 2012 has not been, and in conflict with, default under or violation of, or to Seller’s knowledge is not being, conducted in violation of any applicable federalor has been, state, local, foreign or transnational law, statute or ordinance, common law(A) investigated for, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”B) or any order, judgment, injunction, ruling, writ, award or decree of charged by any Governmental Authority with a violation of, any Law applicable to such DVU Transferred Entity (collectively, “Order”)or by which any property or asset of such DVU Transferred Entity is bound or affected, except for such violations that would notconflicts, defaults, violations, investigations or charges that, individually or in the aggregate, have not resulted and would not reasonably be expected to have result in material Liability to the DVU Transferred Entities, taken as a Company Material Adverse Effect. To whole, or otherwise materially interfere with the Knowledge conduct of the CompanyUniversity in substantially the manner currently conducted. Except as set forth on Schedule 3.08(a), no investigation or review by any Governmental Entity Authority with respect to the Company, the Retained Subsidiaries or the Retained Business any DVU Transferred Entity is pending or, as of the date of this Agreementto Seller’s knowledge, threatened, nor has any Governmental Entity Authority indicated an intention to conduct any such investigation or review.
(b) The DVU Transferred Entities possess all licenses, permits, certifications, approvals, registrations, consents, authorizations, franchises, variances, concessions, grants, directives, guidelines, policies, requirements, and Orders issued or granted by a Governmental Authority necessary for the sameoperation of the University as currently conducted (the “Licenses”), except for when the failure to possess or noncompliance with any such investigations or reviews the outcome of which License would notnot reasonably be expected, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or result in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect material Liability to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained BusinessDVU Transferred Entities, taken as a whole. There is not pending or, to or otherwise materially interfere with the Knowledge conduct of the Company, threatened before University in substantially the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the manner currently conducted. No revocation, suspension, cancellation, rescission or materially adverse modification of any material RemainCo Communications License or other impairment in any material of such Licenses is pending or, to the knowledge of Seller, threatened, and all fees and charges with respect of the operation of the Retained Business as it is conducted to such Licenses as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or hereof have been paid in the aggregate, reasonably be expected to have a Company Material Adverse Effectfull. Except for restrictions or conditions that appear on the face All such Licenses of the RemainCo Communications LicensesDVU Transferred Entities are in full force and effect and, subject to obtaining the Regulatory Approvals (as described in Section 5.03), will remain in full force and effect notwithstanding, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would will not be materially adverse adversely affected by, the consummation of the transactions contemplated by this Agreement. Schedule 3.08(b) hereof includes a list of all current material Licenses issued to the Retained Business taken as a wholeDVU Transferred Entities, including the names of the Licenses and their respective dates of issuance and expiration. For the avoidance of doubt, no representation or warranty is made in this Section 3.08(b) with respect to Educational Approvals or Educational Consents.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The CompanySince June 30, its Subsidiaries and2012, no DVU Transferred Entity or any director, officer, agent, employee or, to the Knowledge knowledge of the CompanySeller, their respective officersany other Person acting for or on behalf of a DVU Transferred Entity has been in violation of, directorsor has conducted or initiated any internal investigation with respect to, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1amended, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, bribery or anti-corruption or anti-money laundering Lawslaws applicable to the DVU Transferred Entities in any manner that would reasonably be expected, individually or in the aggregate, to result in material Liability to the DVU Transferred Entities, taken as a whole, or otherwise materially interfere with the conduct of the University in substantially the manner currently conducted, including any matter disclosed to a Governmental Authority. To the knowledge of Seller, no officer, director, employee or agent acting on behalf of any DVU Transferred Entity is a Government Official.
Appears in 1 contract
Samples: Stock Purchase Agreement (Adtalem Global Education Inc.)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”)Law, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatenedthreatened in writing, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained its Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order Order issued or granted by a Governmental Entity (each, a “License” and collectively, the “Licenses”) necessary to own, lease and operate their properties and assets, and to conduct their respective businesses as currently conducted or as may be required under applicable Law. Notwithstanding the Retained Business as it is conducted as of the date of foregoing, this AgreementSection 4.11 shall not apply with respect to compliance with Tax Laws, which shall be covered exclusively by Section 4.17 or compliance with Environmental Laws, which shall be covered exclusively by Section 4.16.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, directors and employees and agents are in compliance in all material respects with and since the Applicable Date have complied in all material respects with: (Ai) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, directors and employees and agents, and (Bii) the provisions of all applicable anti-bribery, bribery and anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operatedoperate. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or and their respective officers, directors, directors and employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or to the Knowledge of the Company indirectly, of any monies or anything of value (including any gift, bribe, rebate, payoff or kickback) to any national, provincial, municipal or other Government Official Governmental Entity or government official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or to direct business to any person person, to improperly obtain or retain favorable treatment or to secure any other improper benefit or advantage, in each case in violation of in any material respect of the FCPA or any Laws described in clause (Bii).
(iic) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other applicable anti-bribery, bribery and anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iiid) Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, manage or employee of the Company or any of its Subsidiaries are (in his or her capacity as a director, manager or employee of the Company or any of its Subsidiaries) is, or since the Applicable Date, has been, subject to any actual, pending civilpending, criminalor, or administrative actionsto the Knowledge of the Company, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actionsthreatened Proceedings, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other applicable anti-bribery, bribery and anti-corruption or anti-money laundering Laws.
Appears in 1 contract
Samples: Merger Agreement (Agiliti, Inc. \De)
Compliance with Laws; Licenses. (a) The CompanyExcept as set forth in the SEC Reports filed with the Commission prior to the date hereof or as set forth on Schedule 3.10(a), each neither the Company nor any of its Subsidiaries in the Retained Subsidiaries and the Retained Business conduct of its business, is, or since the Applicable Date December 31, 2009, has not been, and is not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common lawRequirement of Law, or any rule judgments, orders, rulings, injunctions or regulation, including the Export and Sanctions Regulations decrees of a Governmental Authority (collectively, “Laws”) "Decrees"), applicable thereto or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”)to the employees conducting such business, except for such violations that would notthat, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company.
(b) The Company and its Subsidiaries as applicable, no investigation have obtained or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending ormade, as of the date of this Agreementcase may be, threatenedall permits, nor has any licenses, authorizations, orders and approvals, and all filings, applications and registrations with, all Governmental Entity indicated an intention Authorities ("Licenses"), that are required to conduct the same, businesses of the Company and its Subsidiaries in the manner and to the full extent as currently conducted or currently contemplated to be conducted except for where such investigations failure to obtain or reviews the outcome of which would notmake, individually or in the aggregate, reasonably would not be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect materially adverse to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as Company. None of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all such Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which that limits or would reasonably be expected to limit in any material way the full operation of the Retained Business Company or its Subsidiaries as it is currently conducted as or currently contemplated to be conducted. Each of the date of this AgreementLicenses has been duly obtained, except for failures to comply that individually or is valid and in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees full force and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agentseffect, and (B) the provisions of applicable anti-briberyis not subject to any pending or threatened proceeding to limit, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Datecondition, to the Knowledge of the Companysuspend, the Companycancel, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to paysuspend, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of declare such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) License invalid. Neither the Company nor any of its Subsidiaries are subject is in default in any material respect with respect to any actualof the Licenses, pending civil, criminaland to the knowledge of the Company no event has occurred which constitutes, or administrative actionswith due notice or lapse of time or both may constitute, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving a default by the Company or any of its Subsidiaries relating to the FCPA or such Subsidiary under any other anti-bribery, anti-corruption or anti-money laundering LawsLicense.
Appears in 1 contract
Samples: Series E Preferred Stock Purchase Agreement (You on Demand Holdings, Inc.)
Compliance with Laws; Licenses. (a) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “OrderLaws”), except for such violations that would are not, individually or in the aggregate, reasonably be expected likely to have a Company Material Adverse Effect. To Effect or prevent, materially delay or materially impair the Knowledge consummation of the Company, no transactions contemplated by this Agreement. No investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as to the knowledge of an executive officer or the general counsel of the date of this AgreementCompany, threatened, nor has any Governmental Entity indicated in writing an intention to conduct the same, except for such investigations or reviews the outcome of which are not, individually or in the aggregate, reasonably likely to have a Company Material Adverse Effect or prevent, materially delay or materially impair the consummation of the transactions contemplated by this Agreement. To the knowledge of an executive officer or the general counsel of the Company, no material change is required in the Company’s or any of its Subsidiaries’ processes, properties or procedures in connection with any such Laws, and the Company has not received any written notice or communication of any material noncompliance with any such Laws that has not been cured as of the date hereof. Each of the Company and its Subsidiaries has obtained and is in compliance with all permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except those the absence or noncompliance of which would not, individually or in the aggregate, reasonably be expected to have result in a Company Material Adverse Effect. Except as would notEffect or prevent, individually materially delay or in materially impair the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as consummation of the date of transactions contemplated by this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licenses, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) Laws or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, or as of the date of this Agreement, threatenedthreatened in writing, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which in each case, that would not, individually or in the aggregate, reasonably be expected material to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained its Subsidiaries, taken as a whole. The Company and its Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to own, lease and operate their properties and assets, and to conduct the Retained Business their respective businesses as it is currently conducted or as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement may be required under applicable Law (each, a “RemainCo FCC License” and collectively, the “Licenses”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business except as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions The Company is not in violation of fair housing laws, Americans With Disabilities Act, building codes or conditions other federal, state or local laws governing the rental of residential properties that appear on would, individually or in the face of aggregate, reasonably be expected to have a Company Material Adverse Effect. Notwithstanding the RemainCo Communications Licensesforegoing, this Section 5.1(j) shall not apply with respect to Taxes, which shall be covered exclusively by Section 5.1(n) or Environmental Laws, which shall be covered exclusively by Section 5.1(m).
(ii) Each License is, and except for restrictions since the Applicable Date has been, valid and in full force and effect and has not been suspended, revoked, cancelled or conditions that pertain to adversely modified, and is not and has not been the RemainCo FCC Licenses under generally applicable rules subject of the FCCa written notice or Proceeding threatening (and, to the Knowledge of the Company, no RemainCo Communications License held by the Company such threat has been received) to suspend, revoke, cancel or adversely modify any Subsidiary such License, except where any of the Company is subject foregoing has not had and would not reasonably be expected to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreementhave, except for failures to comply that individually or in the aggregate aggregate, a Company Material Adverse Effect. There has not been any change, event, occurrence, development, circumstance or condition that would preclude any License from being renewed in the ordinary course (to the extent that such License is renewable by its terms), except where the failure thereof to be renewed has not had and would not reasonably be materially adverse expected to have, individually or in the Retained Business taken as aggregate, a wholeCompany Material Adverse Effect.
(ciii) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the licensee of each License is, and since the Applicable Date has been, in compliance with such License and has fulfilled and performed all of its obligations in all respects with respect thereto, no event has occurred which, with or without notice or the lapse of time or both, would constitute a default or violation of any License, and the Company has not received any written notice of a violation of any License. Except as would not, individually or in the aggregate, reasonably be materially adverse expected to have a Company Material Adverse Effect, since the Retained Business taken as a whole:Applicable Date, neither the Company nor any of its Subsidiaries has received written notice or communication of any noncompliance or alleged noncompliance with any Licenses.
(iiv) (A) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees employees, consultants and agents and any other Person acting on its or their behalf are in compliance in all material respects with and since for the Applicable Date past five (5) years have complied in all material respects with: (AI) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, them and (BII) the provisions of applicable all anti-bribery, bribery and anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees operated and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, agent thereof is conducting or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, has conducted business involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering LawsSubsidiaries.
Appears in 1 contract
Compliance with Laws; Licenses. (a) The CompanyExcept as would not have, individually or in the aggregate, a Material Adverse Effect, the businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, since December 31, 2015, and is are not being, being conducted in violation of any applicable United States federal, state, state or local, foreign non-United States national, provincial or transnational local, or multinational law, statute or ordinance, common law, or any rule or rule, regulation, including decree, treaty provision applicable to the Export Company and Sanctions Regulations its Subsidiaries, or any Judgment or agency requirement having the force of law (collectively, “Laws”) or any order). No investigation, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation audit or review by any Governmental Entity with respect to the Company, the Retained Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to conduct the Retained Business as it is conducted as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before threatened, nor has any Governmental Entity notified the FCC or a Foreign Regulator or any other Governmental EntityCompany of its intention to conduct the same, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation except for (A) against the Company investigations or any of its Subsidiaries relating to the Retained Business, (B) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation reasonably likely to result in the revocation, suspension, cancellation, rescission or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) reviews that would notnot have, individually or in the aggregate, reasonably be expected a Material Adverse Effect and/or (B) any investigation or review related to have the Merger. As of the date hereof, neither the Company nor any of its Subsidiaries has received any notice or communication of any material noncompliance with any applicable Laws that has not been cured as of the date hereof.
(b) The Company and its Subsidiaries each has made applications for or obtained, renewed and is in compliance with all material permits, licenses, certifications, approvals, registrations, consents, authorizations, franchises, variances, exemptions and orders issued or granted by a Company Governmental Entity (“Licenses”) necessary to conduct its business as presently conducted, except for any such License the absence or non-renewal of which would not have, individually or in the aggregate, a Material Adverse Effect. Except for restrictions or conditions that appear on .
(c) Neither the face of the RemainCo Communications LicensesCompany, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCCnor, to the Knowledge of the Company, no RemainCo Communications License held by the Company any agent or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a whole.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge other person acting on behalf of the Company, their respective officers, directors, employees and agents are has violated in compliance in with and since the Applicable Date have complied with: (A) the provisions any material respect any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1amended, et seq.) (“FCPA”) to the extent or any similar anti-corruption Laws applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering Laws
Appears in 1 contract
Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, local or foreign or transnational law, statute or ordinance, common law, or any rule or rule, regulation, including the Export and Sanctions Regulations (collectively, “Laws”) or any orderstandard, judgment, injunction, rulingorder, writ, award injunction, decree, arbitration award, agency requirement, license or decree permit of any Governmental Entity (collectively, “Order”"LAWS"), except for such violations that would notthat, individually or in the aggregate, are not reasonably be expected likely to have a Company Material Adverse EffectEffect or prevent, materially delay or materially impair the consummation of the transactions contemplated by this Agreement. To the Knowledge knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, as of the date of this Agreement, or threatened, nor has any Governmental Entity indicated to the Company an intention to conduct the same. To the knowledge of the Company, except for such investigations or reviews the outcome of which would not, individually or no material change is required in the aggregateCompany's or any of its Subsidiaries' processes, reasonably be expected to have a properties or procedures in connection with any such Laws, and the Company Material Adverse Effecthas not received any notice or communication of any material noncompliance with any such Laws that has not been cured as of the date hereof. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, Each of the Company and its Subsidiaries has obtained and the Retained businesses of each of the Company and its Subsidiaries possess each permithave not been, licenseand are not being, certificationconducted in violation of or inconsistent with all permits, approvallicenses, registrationcertifications, consentapprovals, authorizationregistrations, franchiseconsents, concessionauthorizations, varianceenrollments, exemption accreditations, franchises, variances, waivers, exemptions and order orders issued or granted by a Governmental Entity (collectively, “Licenses”"LICENSES") necessary to conduct its business as presently conducted, except for any violations or inconsistencies that, individually or in the Retained Business as it is conducted as aggregate, are not reasonably likely to have a Material Adverse Effect or prevent, materially delay or materially impair the consummation of the date of transactions contemplated by this Agreement. To the knowledge of the Company, there exists no grounds for revocation, suspension or limitation of any material License (including, but not limited to, as a result of the Merger) and no notices have been received by the Company, its officers or managing employees with respect to any threatened, pending or possible termination, revocation, suspension or limitation of any License.
(bii) Section 3.10(b) of Except in each case as is not reasonably likely, individually or in the Company Disclosure Letter sets forth aggregate, to have a complete and accurate listMaterial Adverse Effect, as of the date of this Agreement, of (A) each License that is issued or granted by all of the FCC to Company's and its Subsidiaries' products are in compliance with all applicable requirements of the Company Food and Drug Administration ("FDA") or any other relevant Governmental Entity and all Licenses, permissions, authorizations, notified body certificates of its Subsidiaries that is material to compliance or consents required for placing the conduct of products on the Retained Business as it is conducted as of market in the date of this Agreement (each, a “RemainCo FCC License”)United States and Canada, (B) each License that is issued or granted any modifications by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licenses, the “RemainCo Communications Licenses”). Each of the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply that are, individually and in the aggregate, not material to the Retained Business, taken as a whole. There is not pending or, to the Knowledge of the Company, threatened before the FCC or a Foreign Regulator or any other Governmental Entity, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against product marketed by the Company or any of its Subsidiaries relating to have been made in accordance with applicable Law, and (C) all manufacturing facilities are operated in compliance with the Retained BusinessFDA's Quality System Regulation requirements at 21 C.F.R. Part 820, as applicable.
(Biii) relating to any of the RemainCo Communications Licenses, including any such proceeding, notice, order, inquiry, action, complaint or investigation Except as is not reasonably likely to result in the revocationhave a Material Adverse Effect, suspension, cancellation, rescission any and all preclinical and clinical trials conducted or modification of any material RemainCo Communications License or other impairment in any material respect of the operation of the Retained Business as it is conducted as of the date of this Agreement, except (x) proceedings to amend the Communications Laws not directed at supervised by the Company or any of its Subsidiaries or have been conducted in substantial compliance with all applicable Laws, including, but not limited to, FDA good clinical practice and good laboratory practice requirements.
(yiv) proceedings of general applicability to In the broadcasting and/or audio-visual media services industries or (C) that would notlast three years, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except for restrictions or conditions that appear on the face none of the RemainCo Communications LicensesCompany's or its Subsidiaries' products have been recalled or subject to FDA correction or removal requirements, and except the Company and each of its Subsidiaries have not received notice, either completed or pending, of any proceeding seeking a corrective action, recall, suspension or seizure of any products. Neither the Company nor any of its Subsidiaries has received any order, demand or other formal proceedings from any competent authority or notified body for restrictions medical devices to undertake any form of withdrawal from the market of any of its products or conditions that pertain to any product recall, and the RemainCo FCC Licenses under generally applicable rules Company has notified any competent authority or notified body of the FCCintent to conduct a market withdrawal, product recall or field correction, and, to the Knowledge knowledge of the Company, no RemainCo Communications License held by the Company facts or any Subsidiary of the Company is subject circumstances have occurred that are reasonably likely to give rise to any restriction such corrective action, recall, suspension or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not be materially adverse to the Retained Business taken as a wholeseizure.
(c) Except as would not be materially adverse to the Retained Business taken as a whole:
(i) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees and agents are in compliance in with and since the Applicable Date have complied with: (A) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees and agents, and (B) the provisions of applicable anti-bribery, anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iiiv) Neither the Company nor any of its Subsidiaries are subject to any actualis included on FDA's AIP list.
(vi) As of the date hereof, pending civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, involving neither the Company or nor any of its Subsidiaries Subsidiaries, nor, to the Company's knowledge, any of its employees, agents or consultants retained to assist with product license submissions, has been disqualified or debarred by the FDA, pursuant to 21 U.S.C. ss.ss. 335(a) or (b), or for any purpose, been charged with xx xonvicted under United States law for conduct relating to the FCPA development, approval, marketing or sale of drugs or devices or otherwise relating to the regulation of any drug product under the Generic Drug Enforcement Act of 1992 or any other anti-briberyrelevant Law or been disbarred, anti-corruption disqualified or anti-money laundering Lawsconvicted under or for any equivalent or similar applicable foreign laws.
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Compliance with Laws; Licenses. (ai) The Company, businesses of each of the Retained Company and its Subsidiaries and the Retained Business since the Applicable Date has have not been, and is are not being, conducted in violation of any applicable federal, state, local, foreign or transnational law, statute or ordinance, common law, or any rule or regulation, including the Export and Sanctions Regulations (collectively, “Laws”) Laws or any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity (collectively, “Order”), except for such violations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect to the Company, the Retained Company or any of its Subsidiaries or the Retained Business is pending or, or as of the date of this Agreement, threatenedthreatened in writing, nor has any Governmental Entity indicated an intention to conduct the same, except for such investigations or reviews in each case, that would be material to the outcome of which would notCompany and its Subsidiaries, individually or in the aggregate, reasonably be expected to have taken as a Company Material Adverse Effectwhole. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, after giving effect to the Separation, the Company and the Retained Subsidiaries its Subsidiaries, possess each permit, license, certification, approval, registration, consent, authorization, franchise, concession, variance, exemption and order issued or granted by a Governmental Entity (collectively, “Licenses”) necessary to own, lease and operate their properties and assets, and to conduct the Retained Business their respective businesses as it is currently conducted or as of the date of this Agreement.
(b) Section 3.10(b) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of (A) each License that is issued or granted by the FCC to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement may be required under applicable Law (each, a “RemainCo FCC License”), (B) each License that is issued or granted by a Foreign Regulator to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement (each, a “RemainCo Foreign License”), ” and (C) all Licenses (other than the RemainCo FCC Licenses and the RemainCo Foreign Licenses) issued or granted to the Company or any of its Subsidiaries that is material to the conduct of the Retained Business as it is conducted as of the date of this Agreement by any Governmental Entity, authorizing the Company or any of its Subsidiaries to provide broadcasting and/or audio-visual media services, and/or own, operate or install broadcasting and/or audio-visual media networks and facilities, including satellites, or to use radio frequencies, excluding, in each case, any License that is material to the conduct of the Retained Business as conducted as of the date of this Agreement solely because of an existing television programming distribution arrangement between the Retained Business and the SpinCo Business (collectively with the RemainCo FCC Licenses and the RemainCo Foreign Licensescollectively, the “RemainCo Communications Licenses”). Each The Company is not in violation of fair housing laws, Americans With Disabilities Act, building codes or other federal, state or local laws governing the Company and its Subsidiaries is in compliance with the RemainCo Communications Licenses and the rules and regulations rental of the Governmental Entities issuing such RemainCo Communications Licenses, except for failures to comply residential properties that arewould, individually and or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Notwithstanding the foregoing, this Section 5.1(j) shall not material apply with respect to Taxes, which shall be covered exclusively by Section 5.1(n) or Environmental Laws, which shall be covered exclusively by Section 5.1(m).
(ii) Each License is, and since the Retained BusinessApplicable Date has been, taken as a whole. There valid and in full force and effect and has not been suspended, revoked, cancelled or adversely modified, and is not pending or, and has not been the subject of a written notice or Proceeding threatening (or to the Knowledge of the Company, threatened before the FCC has not received a threat) to suspend, revoke, cancel or a Foreign Regulator or adversely modify any other Governmental Entitysuch License, any material proceeding, notice of violation, order of forfeiture, inquiry, administrative action, complaint or investigation (A) against the Company or any of its Subsidiaries relating to the Retained Business, (B) relating to except where any of the RemainCo Communications Licensesforegoing has not had and would not reasonably be expected to have, including any such proceeding, notice, order, inquiry, action, complaint individually or investigation reasonably likely to result in the revocationaggregate, suspensiona Company Material Adverse Effect. There has not been any event, cancellation, rescission condition or modification of circumstance that would preclude any material RemainCo Communications License or other impairment from being renewed in any material respect of the operation of ordinary course (to the Retained Business as it extent that such License is conducted as of the date of this Agreementrenewable by its terms), except where the failure thereof to be renewed has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(xiii) proceedings to amend the Communications Laws not directed at the Company or its Subsidiaries or (y) proceedings of general applicability to the broadcasting and/or audio-visual media services industries or (C) that Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the licensee of each License is, and since the Applicable Date has been, in compliance with such License and has fulfilled and performed all of its obligations in all respects with respect thereto, no event has occurred which, with or without notice or the lapse of time or both, would constitute a default or violation of any License, and the Company has not received any written notice of a violation of any License. Except for restrictions or conditions that appear on the face of the RemainCo Communications Licensesas would not, and except for restrictions or conditions that pertain to the RemainCo FCC Licenses under generally applicable rules of the FCC, to the Knowledge of the Company, no RemainCo Communications License held by the Company or any Subsidiary of the Company is subject to any restriction or condition which would limit the operation of the Retained Business as it is conducted as of the date of this Agreement, except for failures to comply that individually or in the aggregate would not aggregate, reasonably be materially adverse expected to have a Company Material Adverse Effect, since the Retained Business taken as a wholeApplicable Date, neither the Company nor any of its Subsidiaries has received written notice or communication of any noncompliance or alleged noncompliance with any Licenses.
(civ) Except as would not be materially adverse to the Retained Business taken as a whole:
(iA) The Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors, employees employees, consultants and agents or any other Person acting on its behalf are in compliance in all material respects with and since for the Applicable Date past five (5) years have complied in all material respects with: (AI) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) to the extent applicable to the Company, its Subsidiaries and such officers, directors, employees employees, consultants and agents, agents or any other Person acting on its behalf and (BII) the provisions of applicable all anti-bribery, bribery and anti-corruption and anti-money laundering Laws of each jurisdiction in which the Company and its Subsidiaries operate or have operated. Since the Applicable Date, to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees operated and agents have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of value to any national, provincial, municipal or other Government Official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person or to secure any other improper benefit or advantage, in each case in violation of any of the FCPA or any Laws described in clause (B).
(ii) The Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance with the FCPA and other anti-bribery, anti-corruption and anti-money laundering Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(iii) Neither the Company nor any of its Subsidiaries are subject to any actual, pending civil, criminal, agent thereof is conducting or administrative actions, suits, demands, claims, hearings, notices of violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures to any Governmental Entity, has conducted business involving the Company or any of its Subsidiaries relating to the FCPA or any other anti-bribery, anti-corruption or anti-money laundering LawsSubsidiaries.
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