Interpretation; Absence of Presumption. (a) It is understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Business Material Adverse Effect or Purchaser Material Adverse Effect, and no Party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule in any dispute or controversy between the Parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Business Material Adverse Effect or Purchaser Material Adverse Effect for purposes of this Agreement. (b) For the purposes of this Agreement, (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific time (as reported by Bloomberg L.P.) on the date for which such U.S. dollar amount is to be calculated; (v) the word “including” and words of similar import when used in this Agreement and the Ancillary Agreements shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement or the Ancillary Agreements; (x) references to any statute shall be deemed to refer to such statute as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof (provided, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xi) references to any Contract are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, to the extent such amendment, modification or supplement has been provided to the Party which is not a party to the applicable Contract; (xii) a reference to any Person includes such Person’s successors and permitted assigns; (xiii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xiv) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; and (xv) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean the addition of the absolute value of such negative number. If the Closing shall occur, notwithstanding anything in this Agreement to the contrary, from and after the Closing, any payment obligation of Purchaser hereunder shall be a joint and several obligation of Purchaser and the Transferred Entities. In the event of any conflict or inconsistency between the terms of this Agreement and any Ancillary Agreement, this Agreement will control. (c) Any disclosure with respect to a Section or schedule of this Agreement, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Disclosure Schedule or Purchaser Disclosure Schedule, to the extent that the relevance of such disclosure is reasonably apparent. (d) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver to Purchaser on one or more digital storage devices promptly following each of the date hereof and the Closing, and Parent shall keep such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement. (e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
Samples: Transaction Agreement (Ebay Inc)
Interpretation; Absence of Presumption. (a) It is understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Seller Disclosure Schedule or Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Business Material Adverse Effect or Purchaser Material Adverse Effect, and no Party party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Seller Disclosure Schedule or Purchaser Disclosure Schedule in any dispute or controversy between the Parties parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Seller Disclosure Schedule or Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Business Material Adverse Effect or Purchaser Material Adverse Effect for purposes of this Agreement.
(b) For the purposes of this Agreement, (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific 9:00 a.m. New York City time (as reported by Bloomberg L.P.) on the date for which such U.S. dollar amount is to be calculated; (v) the word “including” and words of similar import meaning when used in this Agreement and the Ancillary Agreements shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent the Sellers and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement or the Ancillary Agreements; (xix) references to any statute shall be deemed to refer to such statute as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof (provided, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xix) references to any Contract are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, to the extent such amendment, modification or supplement has been provided to the Party which is not a party to the applicable Contract; (xiixi) a reference to any Person includes such Person’s successors and permitted assigns; (xiiixii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xivxiii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; Day and (xvxiv) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean the addition of the absolute value of such negative number. If the Closing shall occur, notwithstanding anything in this Agreement to the contrary, from and after the Closing, any payment obligation of Purchaser hereunder shall be a joint and several obligation of Purchaser and the Transferred Entities. In the event of any conflict or inconsistency between the terms of this Agreement and any Ancillary Agreement, this Agreement will control. Net Indebtedness and Working Capital shall be determined after giving effect to the Redemption. Notwithstanding anything to the contrary herein, if the Closing occurs on December 30, 2019, for purposes of the measurement of Cash, Net Indebtedness and Working Capital, the “day immediately preceding the Closing Date” shall be deemed to be December 28, 2019.
(c) Any disclosure with respect to a Section or schedule of this Agreement, including Agreement pursuant to any Section of the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Seller Disclosure Schedule or Purchaser Disclosure Schedule, to the extent that the relevance of such disclosure is reasonably apparent.
(d) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver to Purchaser on one or more digital storage devices promptly following each of the date hereof and the Closing, and Parent shall keep such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
(e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
Interpretation; Absence of Presumption. (a) It is understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect, and no Party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule in any dispute or controversy between the Parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect for purposes of this Agreement.
(b) For the purposes of this Agreement, : (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific 9:00 a.m. New York City time (as reported by Bloomberg L.P.) ), on the date for which such U.S. dollar amount is to be calculated, except as otherwise provided herein; (v) the word “including” and words of similar import when used in this Agreement and the Ancillary Agreements shall mean “including including, without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent Seller and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement or the Ancillary Agreements; (xix) references to any statute shall be deemed to refer to such statute as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof (providedprovided that, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xix) references to any Contract are to that Contract Contract, as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, to the extent such amendment, modification or supplement has been provided to the Party which is not a party to the applicable Contract; (xiixi) a reference to any Person includes such Person’s successors and permitted assigns; (xiiixii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xivxiii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; and (xvxiv) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean means the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean means the addition of the absolute value of such negative number. If ; (xv) the Closing shall occur, notwithstanding anything phrases “delivered” or “made available,” when used in this Agreement Agreement, means that the information referred to has been physically or electronically delivered to the contraryrelevant parties at least one (1) calendar day prior to the date hereof (including, from in the case of “made available” to Purchaser, material that has been posted, retained and after thereby made available to Purchaser through the Closingon-line “virtual data room” established by Seller or its Representatives); (xvi) the term “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, any payment obligation and such phrase shall not mean simply “if”; and (xvii) “ordinary course of Purchaser hereunder shall be a joint and several obligation business” means the ordinary course of Purchaser and the Transferred Entitiesbusiness consistent with past practice. In the event of any conflict or inconsistency between the terms of this Agreement and any Ancillary Agreement, this Agreement will control.
(c) Any disclosure with respect to a Section or schedule of this Agreement, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Disclosure Schedule or Purchaser Disclosure Schedule, to the extent that the relevance of such disclosure is reasonably apparent.
(d) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver to Purchaser on one or more digital storage devices promptly following each of the date hereof and the Closing, and Parent shall keep such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
(e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
Interpretation; Absence of Presumption. (a) It is understood and agreed The parties acknowledge that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Seller Material Adverse Effect, Business Material Adverse Effect or Purchaser Material Adverse Effect, and no Party party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule in any dispute or controversy between the Parties parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Seller Material Adverse Effect, Business Material Adverse Effect or Purchaser Material Adverse Effect for purposes of this Agreement.
(b) For the purposes of this Agreement, : (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific 9:00 a.m., New York City time (as reported by Bloomberg L.P.) on the date for which such U.S. dollar amount is to be calculated; (v) the word “including” and words of similar import when used in this Agreement and the Ancillary Agreements shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall need not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement or the Ancillary Agreements; (xix) references to any statute shall be deemed to refer to such statute as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof (provided, provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xix) references to any Contract are to that Contract this Agreement shall mean this Agreement as amended, modified or supplemented from time to time in accordance with the terms hereof and thereofhereof; (xi) references to any Contract (other than this Agreement) shall mean such Contract as amended, modified or supplemented prior to the extent such amendmentdate hereof, modification or supplement has been provided to the Party which is not a party to the applicable Contractunless otherwise specified; (xii) a reference to any Person includes such Person’s successors and permitted assigns; (xiii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xiv) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; and (xv) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean the addition of the absolute value of such negative number. If ; and (xvi) any document or item will be deemed “delivered”, “provided” or “made available” to Purchaser within the Closing shall occur, notwithstanding anything in meaning of this Agreement if such document or item is (A) included in the “Project Paris” electronic data room hosted by Venue Client Services (the “Data Room”) as of 5:00 p.m. New York City time at least one (1) Business Days prior to the contrary, from and after the Closing, any payment obligation of date hereof or (B) actually delivered or provided to Purchaser hereunder shall be a joint and several obligation of Purchaser and the Transferred Entities(including by email). In the event of any conflict or inconsistency between the terms of this Agreement and any Ancillary Agreement, this Agreement will control.
(c) Any disclosure with respect to a Section or schedule of this Agreement, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Disclosure Schedule or Purchaser Disclosure Schedule, to the extent that the relevance of such disclosure is reasonably apparent.
(d) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver to Purchaser on one or more digital storage devices promptly following each of the date hereof and the Closing, and Parent shall keep such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
(e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
Interpretation; Absence of Presumption. (a) It is understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Business Material Adverse Effect or Purchaser Material Adverse Effect, and no Party party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule in any dispute or controversy between the Parties parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Business Material Adverse Effect or Purchaser Material Adverse Effect for purposes of this Agreement.
(b) For the purposes of this Agreement, (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific time (as reported by Bloomberg L.P.) on the date for which such U.S. dollar amount is to be calculated; (v) the word “including” and words of similar import when used in this Agreement and the Ancillary Agreements shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement or the Ancillary Agreements; (x) references to any statute shall be deemed to refer to such statute as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof (provided, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xi) references to any Contract are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, thereof to the extent such amendment, modification or supplement has been provided to the Party which is not a party Purchaser on or prior to the applicable Contractdate hereof; (xii) a reference to any Person includes such Person’s successors and permitted assigns; (xiii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xiv) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; and (xv) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean the addition of the absolute value of such negative number. If the Closing shall occur, notwithstanding anything in this Agreement to the contrary, from and after the Closing, any payment obligation of Purchaser hereunder shall be a joint and several obligation of Purchaser and the Transferred Entities. In the event of any conflict or inconsistency between the terms of this Agreement and any Ancillary Agreement, this Agreement will control.
(c) Any disclosure with respect to a Section or schedule of this Agreement, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Disclosure Schedule or Purchaser Disclosure Schedule, to the extent that the relevance of such disclosure is reasonably apparent.
(d) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver to Purchaser on one or more digital storage devices promptly following each of the date hereof and the Closing, and Parent shall keep such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
(e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ebay Inc)
Interpretation; Absence of Presumption. (a) It is understood and agreed The parties hereto acknowledge that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Seller Material Adverse Effect, Business Material Adverse Effect or Purchaser Material Adverse Effect, and no Party party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule in any dispute or controversy between the Parties parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Seller Material Adverse Effect, Business Material Adverse Effect or Purchaser Material Adverse Effect for purposes of this Agreement.
(b) For the purposes of this Agreement, : (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific 9:00 a.m., New York City time (as reported by Bloomberg L.P.) on the date for which such U.S. dollar amount is to be calculated; (v) the word “including” and words of similar import when used in this Agreement and the Ancillary Agreements Agreement shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall need not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements Agreement and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements Agreement shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement or the Ancillary AgreementsAgreement; (x) references to any statute Law shall be deemed to refer to such statute Law as amended or supplemented through the date hereof and to any rules rules, Orders, directives, or regulations promulgated thereunder as amended through the date hereof (provided, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute Law shall be deemed to refer to such statute Law and any rules rules, Orders, directives or regulations promulgated thereunder as amended or supplemented through such specific date); (xi) references to any Contract are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, to the extent such amendment, modification or supplement has been provided to the Party which is not a party to the applicable Contract; (xii) a reference to any Person includes such Person’s successors and permitted assigns; (xiii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xiv) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; and (xv) amounts used in any calculations for purposes document or item will be deemed “delivered”, “provided” or “made available” to Purchaser within the meaning of this Agreement may be either positive if such document or negativeitem is (A) included in the electronic data room, it being understood that (B) actually delivered or provided to Purchaser or any of Purchaser’s Representatives (including by email) or (C) made available upon request, including at Parent or the addition of a negative number Transferred Entities’ offices and (xvi) the word “extent” in the phrase “to the extent” shall mean the subtraction of the absolute value of degree to which a subject or other thing extends, and such negative number and the subtraction of a negative number phrase shall not mean the addition of the absolute value of such negative numbersimply “if”. If the Closing shall occur, notwithstanding anything in this Agreement to the contrary, from and after the Closing, any payment obligation of Purchaser hereunder shall be a joint and several obligation of Purchaser and the Transferred Entities. Any reference in this Agreement to a specified date shall mean 9:00 a.m., New York City time on such date (unless another time is specified). In the event of any conflict or inconsistency between the terms of this Agreement and any the Ancillary Agreement, this Agreement will control.
(c) Any disclosure with respect For the avoidance of doubt, each representation and warranty shall have independent significance. Where specific language is used to clarify by example a Section or schedule of this Agreementgeneral statement contained herein, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, such specific language shall not be deemed to be disclosed for other Sections and schedules of this Agreementmodify, including limit or restrict in any Section manner the construction of the Parent Disclosure Schedule general statement to which it relates. If any party has breached any representation, warranty, covenant or Purchaser Disclosure Scheduleagreement contained in this Agreement in any respect, the fact that there exists another representation, warranty, covenant or agreement relating to the extent that the relevance of such disclosure is reasonably apparent.
same subject matter (d) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver to Purchaser on one or more digital storage devices promptly following each regardless of the date hereof and relative levels of specificity) which such party has not breached shall not detract from or mitigate the Closing, and Parent shall keep fact that such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier party is in breach of the Closing first representation, warranty, covenant or the termination of this Agreementagreement.
(e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
Interpretation; Absence of Presumption. (a) It is understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect, and no Party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule in any dispute or controversy between the Parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect for purposes of this Agreement.
(b) For the purposes of this Agreement, : (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific 9:00 a.m. New York City time (as reported by Bloomberg L.P.) ), on the date for which such U.S. dollar amount is to be calculated, except as otherwise provided herein; (v) the word “including” and words of similar import when used in this Agreement and the Ancillary Agreements shall mean “including including, without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent Seller and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement or the Ancillary Agreements; (xix) references to any statute shall be deemed to refer to such statute as amended through the date hereof Execution Date and to any rules or regulations promulgated thereunder as amended through the date hereof Execution Date (providedprovided that, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xix) references to any Contract are to that Contract Contract, as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, to the extent such amendment, modification or supplement has been provided to the Party which is not a party to the applicable Contract; (xiixi) a reference to any Person includes such Person’s successors and permitted assigns; (xiiixii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xivxiii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; and (xvxiv) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean the addition of the absolute value of such negative number. If the Closing shall occur, notwithstanding anything in this Agreement to the contrary, from and after the Closing, any payment obligation of Purchaser hereunder shall be a joint and several obligation of Purchaser and the Transferred Entities. In the event of any conflict or inconsistency between the terms of this Agreement and any Ancillary Agreement, this Agreement will control.
(c) Any disclosure with respect to a Section or schedule of this Agreement, including any Section of the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Seller Disclosure Schedule or the Purchaser Disclosure Schedule, to the extent that the relevance of such disclosure is reasonably apparent.
(d) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver to Purchaser on one or more digital storage devices promptly following each of the date hereof and the Closing, and Parent shall keep such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
(e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
Interpretation; Absence of Presumption. (a) It is understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Disclosure Schedule or the Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect, and no Party party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Disclosure Schedule or the Purchaser Disclosure Schedule in any dispute or controversy between the Parties parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Disclosure Schedule or the Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Business Material Adverse Effect or a Purchaser Material Adverse Effect for purposes of this Agreement.
(b) For the purposes of this Agreement, (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific 9:00 a.m. New York City time (as reported by Bloomberg L.P.) ), on the date for which such U.S. dollar amount is to be calculated, except as otherwise provided herein; (v) the word “including” and words of similar import when used in this Agreement Agreement, the Ancillary Agreements and the Ancillary Local Share Transfer Agreements shall mean “including including, without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent and Purchaser have each participated in the negotiation and drafting of this Agreement Agreement, the Ancillary Agreements and the Ancillary Local Share Transfer Agreements and if an ambiguity or question of interpretation should arise, this Agreement Agreement, the Ancillary Agreements and the Ancillary Local Share Transfer Agreements shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement Agreement, the Ancillary Agreements or the Ancillary Local Share Transfer Agreements; (x) references to any statute shall be deemed to refer to such statute as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof (provided, that that, for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xi) references to any Contract are to that Contract Contract, as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, thereof to the extent such amendment, modification or supplement has been provided made available to Purchaser prior to the Party which is not a party to the applicable Contractdate hereof; (xii) a reference to any Person includes such Person’s successors and permitted assigns; (xiii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xiv) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; and (xv) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean the addition of the absolute value of such negative number. If the Closing shall occur, notwithstanding anything in this Agreement to the contrary, from and after the Closing, any payment obligation of Purchaser hereunder shall be a joint and several obligation of Purchaser and the Transferred Entities. In the event of any conflict or inconsistency between the terms of this Agreement, any Ancillary Agreement and any Ancillary ant Local Share Transfer Agreement, this Agreement will control.
(c) Any disclosure with respect to a Section or schedule of this Agreement, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, to the extent that the relevance of such disclosure is reasonably apparentapparent on its face.
(d) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver to Purchaser on one or more digital storage devices promptly following each of the date hereof and the Closing, and Parent shall keep such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
(e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Servicemaster Global Holdings Inc)
Interpretation; Absence of Presumption. (a) It is understood and agreed The parties hereto acknowledge that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Seller Material Adverse Effect, Business Material Adverse Effect or Purchaser Material Adverse Effect, and no Party party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule in any dispute or controversy between the Parties parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Seller Material Adverse Effect, Business Material Adverse Effect or Purchaser Material Adverse Effect for purposes of this Agreement.
(b) For the purposes of this Agreement, : (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (iv) references to “$” shall mean U.S. dollars, and any amounts that are denominated in a foreign currency shall be deemed to be converted into U.S. dollars at the applicable 4:00 p.m. London spot exchange rate in effect at 11:59 p.m. Pacific 9:00 a.m., New York City time (as reported by Bloomberg L.P.) on the date for which such U.S. dollar amount is to be calculated; (v) the word “including” and words of similar import when used in this Agreement and the Ancillary Agreements shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall need not be exclusive; (vii) references to “written” or “in writing” include in electronic form; (viii) provisions shall apply, when appropriate, to successive events and transactions; (ix) Parent and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements shall be construed as if drafted jointly by the Parties or the parties thereto and no presumption or burden of proof shall arise favoring or burdening either Party or either party thereto by virtue of the authorship of any of the provisions in this Agreement or the Ancillary Agreements; (xix) references to any statute shall be deemed to refer to such statute as amended through the date hereof and to any rules or regulations promulgated thereunder as amended through the date hereof (provided, provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xix) references to any Contract (including this Agreement) are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof, to the extent such amendment, modification or supplement has been provided to the Party which is not a party to the applicable Contract; (xiixi) a reference to any Person includes such Person’s successors and permitted assigns; (xiiixii) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xivxiii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; and (xvxiv) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean the addition of the absolute value of such negative number; (xv) any document or item will be deemed “delivered”, “provided” or “made available” to Purchaser within the meaning of this Agreement if such document or item is (A) included in the “Project Sparta” electronic data room hosted by Venue Client Services (the “Data Room”) as of 5:00 p.m. New York City time at least one (1) Business Days prior to the date hereof or (B) actually delivered or provided to Purchaser (including by email). If the Closing shall occur, notwithstanding anything Any reference in this Agreement to the contrary, from and after the Closing, any payment obligation of Purchaser hereunder a specified date shall be a joint and several obligation of Purchaser and the Transferred Entitiesmean 9:00 a.m. New York City time on such date (unless another time is specified). In the event of any conflict or inconsistency between the terms of this Agreement and any Ancillary Agreement, this Agreement will control.
(c) Any disclosure Notwithstanding anything to the contrary contained herein, (i) to the extent any representation or warranty herein is being made by Parent with respect to a Section any Joint Venture not controlled by Parent or schedule its Representatives, such representation or warranty is being made to the Knowledge of this Agreement, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Disclosure Schedule or Purchaser Disclosure Schedule, (ii) to the extent that the relevance of such disclosure is reasonably apparent.
(d) No information any covenant or document that is agreement herein would be applicable to any Joint Venture not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Purchaser unless it was provided to Purchaser, its Subsidiaries controlled by Parent or its or its Subsidiaries’ Representatives no later than 12:00 p.m.Representatives, New York City time, on the date of this Agreement, in the electronic dataroom hosted by Parent under the title “Oak”, (the “Parent Dataroom”) a copy of which Parent shall deliver only be required to Purchaser on one use commercially reasonable efforts to cause such Joint Venture to comply with any such applicable covenant or more digital storage devices promptly following each of the date hereof and the Closing, and Parent shall keep such electronic dataroom open and accessible to Purchaser and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreementagreement.
(e) No information or document that is not otherwise publicly disclosed will be considered to have been “made available” or “disclosed” to Parent unless it was provided to Parent, its Subsidiaries or its or its Subsidiaries’ Representatives no later than 12:00 p.m., New York City time, on the date of this Agreement, in the electronic dataroom hosted by Purchaser under the title “Oak”, (the “Purchaser Dataroom”) a copy of which Purchaser shall deliver to Parent on one or more digital storage devices promptly following each of the date hereof and the Closing, and Purchaser shall keep such electronic dataroom open and accessible to Parent and its Representatives (subject to “clean team” and other restrictions and protocols) through the earlier of the Closing or the termination of this Agreement.
Appears in 1 contract
