Legal Compliance; Permits. (a) Except as set forth on Section 3.08(a) of the Disclosure Schedule, the Company and its Subsidiaries are in compliance in all material respects with all Laws applicable to them or the operation of their business. Except as set forth on Section 3.08(a) of the Disclosure Schedule, during the three (3)-year period immediately preceding the date hereof, the Company and its Subsidiaries have not received any written or, to the Knowledge of the Company, oral notice, Order or complaint from any Person that the Company or any of its Subsidiaries is not in compliance in any material respect with any Law applicable to it or the operation of its business. (b) The Company and its Subsidiaries currently are, and during the five (5)-year period immediately preceding the date hereof have been, in compliance with all applicable Anti-Bribery and Anti-Corruption Laws in all jurisdictions. The Company and its Subsidiaries (including any of their officers, directors, employees, or to the Knowledge of the Company, agents or other Person acting on its behalf) have not during the five (5)-year period immediately preceding the date hereof, directly or indirectly, in each case in violation of Anti-Bribery and Anti-Corruption Laws used any funds for unlawful contributions, gifts, services of value, entertainment or other unlawful expenses; made, offered, authorized, or promised to make any unlawful payment or provided, offered, authorized, or promised to provide anything of value to any Person including but not limited to any foreign or domestic Government Official; made, or promised to make any contribution, bribe, rebate, gift, payoff, influence payment, kickback or other similar unlawful payment or other advantage; or taken any action which would cause the Company or any of its Subsidiaries to be in violation of the Anti-Bribery and Anti-Corruption Laws. During the five (5)-year period immediately preceding the date hereof, the Company and its Subsidiaries (including any of their officers, directors, employees or, to the Knowledge of the Company, other Person associated with or acting on its behalf) have not, directly or indirectly, requested or agreed to receive or accepted any unlawful contributions, gifts, services of value, advantage, entertainment or other unlawful expenses, contribution, bribe, rebate, gift, payoff, influence payment, kickback or other similar unlawful payment, or similar incentive which would cause it to be in violation of any Anti-Bribery and Anti-Corruption Laws. There are no pending or, to the Company’s Knowledge, threatened claims in writing, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company with respect to any Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have not during the five (5)-year period immediately preceding the date hereof received any allegation, whistleblower complaint, or conducted any investigation regarding noncompliance with the Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have established and maintained a compliance program and sufficient internal controls and procedures reasonably designed to ensure compliance with the Anti-Bribery and Anti-Corruption Laws and there are no false, fictitious, or materially inaccurate entries in the Company’s or any its Subsidiaries’ books and records. (c) Except as set forth on Section 3.08(c) of the Disclosure Schedule, the Company and its Subsidiaries (and their Affiliates (but not including limited partners (in their capacities as such) or portfolio companies of any such Person that is a venture, private equity or investment fund), officers, directors, employees, or to the Knowledge of the Company, agents, distributors, or other Persons acting on their behalf) have during the three (3)-year period immediately preceding the date hereof conducted its export and import transactions in accordance with all applicable Export and Import Control Laws. Without limiting the foregoing, except as set forth on Section 3.08(c) of the Disclosure Schedule: (i) during the three (3)-year period immediately preceding the date hereof, the Company and its Subsidiaries have obtained and are in compliance with the terms of all applicable Export and Import Approvals; (ii) there are no pending or, to the Company’s Knowledge, threatened claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company or its Subsidiaries with respect to such Export and Import Approvals; (iii) there are no actions, conditions or circumstances pertaining to the Company’s or its Subsidiaries’ export or import transactions that would reasonably be expected to give rise to any future claims, charges, investigations, violations, settlements, civil or criminal actions, lawsuits, or other court actions under the Export and Import Control Laws; (iv) no approval from a Governmental Authority for the transfer of Export and Import Approvals to the Company or their Subsidiaries is required or cannot be obtained without material cost. (d) Except as set forth on Section 3.08(d) of the Disclosure Schedule, neither the Company nor its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, any agent or other person acting on behalf of the Company or its Subsidiaries, is currently the subject or target of any Sanctions nor are they owned fifty percent or more or effectively controlled as that term is applied by a U.S. sanctioning authority by any individual or entity that is currently the subject or target of any Sanctions, nor is located, organized or resident in a country or territory that is the subject of comprehensive Sanctions (i.e., Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) (a “Sanctioned Country”), nor are they designated as a ‘specially designated national’, ‘blocked person’ or any other such term used in Sanctions to designate an individual or entity subject to Sanctions. Neither the Company nor any of its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, other person acting on behalf of the Company or any of its Subsidiaries, have knowingly engaged in during the three (3)-year period immediately preceding the date hereof, and are not now engaged in any dealings or transactions with any person, or with the property of any Person, that, at the time of the dealing or transaction, is or was the subject or target of Sanctions, or with any Sanctioned Country, in each case in violation of Sanctions. (e) The Company and its Subsidiaries are in compliance with all material consent, license, permit, grant, approval, certificate, accreditation, filing or other authorization which is required for the operation of the Company’s or any of its Subsidiaries’ business as currently conducted and the ownership of the assets and property thereof (collectively, the “Permits”), each of which has been issued or granted to the Company or such Subsidiary and is in full force and effect, except for any failure to so comply or be in effect that would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No suspension, cancellation, modification, revocation or nonrenewal of any such Permit is pending or, to the Knowledge of the Company, threatened, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. All Permits required for the conduct of the business of the Company and its Subsidiaries as currently conducted will continue in full force and effect immediately after giving effect to the transactions contemplated hereby, except where the failure of such Permits to so continue would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Legal Compliance; Permits. (a) Except as set forth on Section 3.08(a) of the Disclosure ScheduleThe Company Entities are and have been since June 1, the Company and its Subsidiaries are 2020 in compliance in all material respects with all Laws applicable to them or the operation of their businessCompany Entities. Except as set forth on Section 3.08(a4.09(a) of the Disclosure ScheduleSchedules since June 1, during the three (3)-year period immediately preceding the date hereof2020, neither any Seller nor any of the Company and its Subsidiaries Entities have not received any written notice or, to the Knowledge of the CompanyTarget Entities, oral notice, Order or complaint other communication from any Person that the Company Governmental Authority or any other Person regarding (i) any actual or alleged material violation of, or failure to comply with, any Laws or (ii) any actual or alleged obligation on the part of its Subsidiaries is not a Company Entity to undertake, or to bear all or any portion of the cost of, any remedial action of any nature in compliance in any material respect connection with any Law applicable to it such Company Entity or the operation of its businessthe Business as currently conducted. To the Knowledge of Target Entities, no Company Entity is currently in material violation of, or is currently failing to comply with, any Laws with respect to any Company Entity or the Business.
(b) The Section 4.09(b)(i) of the Disclosure Schedules sets forth an accurate and complete list of all material Permits which have been issued to the Company Entities (the “Material Permits”). Except as set forth on Section 4.09(b)(i) of the Disclosure Schedules, the Material Permits constitute all Permits, including Permits required pursuant to Environmental Laws, required or necessary for each Company Entity to operate its respective Business as operated on the date hereof. Each Material Permit is validly issued and its Subsidiaries currently arein full force and effect and is not subject to any current Action (other than routine compliance proceedings or rulemakings and administrative proceedings of general applicability) and, to the Knowledge of Target Entities, no Action has been threatened which in either case, would reasonably be expected to result in the revocation, cancellation, suspension, lapse, adverse modification or termination of any of the Material Permits. Except as set forth in Section 4.09(b)(ii) of the Disclosure Schedules, each of the Company Entities is in compliance in all material respects with each Permit issued to it, and during all material fees and charges with respect to such Permits that are due and payable have been paid in full. Except as set forth on Section 4.09(b)(ii) of the five Disclosure Schedules, neither any Seller nor any Company Entity has received any written notice or, to the Knowledge of Target Entities, other communication (5)-year period immediately preceding whether oral or written) from any Governmental Authority or any other Person regarding any (i) actual or alleged violation of or failure to hold or comply with any material term or requirement of any Permit or (ii) actual or proposed revocation, cancellation, suspension, lapse, adverse modification or termination of any Permit and, to the date hereof Knowledge of Target Entities, there are no facts, conditions or circumstances that would reasonably be expected to result in revocation, cancellation, suspension, lapse, adverse modification or termination of any Permit. Accurate and complete copies of each of the Material Permits have beenbeen Made Available to Buyer. Each Company Entity has made all material filings required under applicable Laws, tariffs and rules with relevant Governmental Authorities, regional transmission organizations, independent system operators, NERC, or regional entity under NERC as designated by FERC, in compliance with all applicable Anti-Bribery each case necessary for the operation, ownership, and Anti-Corruption Laws in all jurisdictions. The maintenance of its Project.
(c) None of the Company and its Subsidiaries (including any Entities, and, to the Knowledge of Target Entities, none of their respective officers, directors, employeesmanagers, shareholders, members or to the Knowledge of the Company, agents or other Person acting on its behalfhas: (i) have not during the five (5)-year period immediately preceding the date hereof, directly or indirectly, in each case in violation of Anti-Bribery and Anti-Corruption Laws used any funds for unlawful contributions, gifts, services of value, entertainment or other unlawful expenses; made, offered, authorized, offered or promised to make any unlawful payment or providedtransfer of anything of value, offereddirectly, authorizedindirectly or through a third party, to officers, employees or other representatives of any Governmental Authority (including employees of a government owned or controlled entity or public international organization and including any political party or candidate for public office), in violation of the United States Foreign Corrupt Practices Act of 1977 (the “FCPA”), or promised any applicable Law of similar effect in any jurisdiction to provide anything which such Person is subject; (ii) made or paid any unlawful contributions, commissions, fees, gifts, entertainment, travel or other unlawful expenses relating to political activity; (iii) received any payments, services or gratuities which were not legal to receive or which a Company Entity, or any of its directors, managers, shareholders, members, officers or agents should have known were not legal for the payor or the provider to make or provide; (iv) made any unlawful payments or given or agreed to give any gift or similar benefit of more than nominal value to governmental officials in their individual capacities for the purpose of assisting a Company Entity in securing or retaining any Person including but not limited business opportunity, contract, permit or license or in conducting its usual and customary operations; (v) made any payment to customers for the sharing of fees or to customers or suppliers for rebating of charges; (vi) engaged in any foreign or domestic Government Official; madeother reciprocal practices that violate any Laws, or promised made any illegal consideration to make purchasing agents or other representatives of customers in respect of sales made or to be made by a Company Entity; (vii) made any contribution, bribe, rebate, gift, illegal payoff, influence payment, kickback or other similar unlawful payment payment, using funds of a Company Entity or other advantageotherwise on behalf of a Company Entity; or (viii) otherwise taken any action which would cause the any Company or any of its Subsidiaries Entity to be in violation of the Anti-Bribery and Anti-Corruption Laws. During the five (5)-year period immediately preceding the date hereof, the Company and its Subsidiaries (including any of their officers, directors, employees or, to the Knowledge of the Company, other Person associated with or acting on its behalf) have not, directly or indirectly, requested or agreed to receive or accepted any unlawful contributions, gifts, services of value, advantage, entertainment or other unlawful expenses, contribution, bribe, rebate, gift, payoff, influence payment, kickback or other similar unlawful paymentFCPA, or any applicable Law of similar incentive effect in any jurisdiction to which would cause it to be in violation of any Anti-Bribery and Anti-Corruption Laws. There are no pending or, to the Company’s Knowledge, threatened claims in writing, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company with respect to any Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have not during the five (5)-year period immediately preceding the date hereof received any allegation, whistleblower complaint, or conducted any investigation regarding noncompliance with the Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have established and maintained a compliance program and sufficient internal controls and procedures reasonably designed to ensure compliance with the Anti-Bribery and Anti-Corruption Laws and there are no false, fictitious, or materially inaccurate entries in the Company’s or any its Subsidiaries’ books and records.
(c) Except as set forth on Section 3.08(c) of the Disclosure Schedule, the Company and its Subsidiaries (and their Affiliates (but not including limited partners (in their capacities as such) or portfolio companies of any such Person that is a venture, private equity or investment fund), officers, directors, employees, or to the Knowledge of the Company, agents, distributors, or other Persons acting on their behalf) have during the three (3)-year period immediately preceding the date hereof conducted its export and import transactions in accordance with all applicable Export and Import Control Laws. Without limiting the foregoing, except as set forth on Section 3.08(c) of the Disclosure Schedule: (i) during the three (3)-year period immediately preceding the date hereof, the Company and its Subsidiaries have obtained and are in compliance with the terms of all applicable Export and Import Approvals; (ii) there are no pending or, to the Company’s Knowledge, threatened claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company or its Subsidiaries with respect to such Export and Import Approvals; (iii) there are no actions, conditions or circumstances pertaining to the Company’s or its Subsidiaries’ export or import transactions that would reasonably be expected to give rise to any future claims, charges, investigations, violations, settlements, civil or criminal actions, lawsuits, or other court actions under the Export and Import Control Laws; (iv) no approval from a Governmental Authority for the transfer of Export and Import Approvals to the Company or their Subsidiaries is required or cannot be obtained without material costsubject.
(d) Except as set forth on Section 3.08(d) None of the Disclosure Schedule, neither the Company nor its Subsidiaries, nor any director, officer, employeeEntities, or, to the Knowledge of the CompanyTarget Entities, any agent none of their respective officers, directors or other person acting on behalf of the Company or its Subsidiaries, managers is currently the subject or target of any Sanctions nor are they owned fifty percent or more or effectively controlled as that term is applied by a U.S. sanctioning authority by any individual or entity that is currently the subject or target of any Sanctions, nor is located, organized or resident in a country or territory that is the subject of comprehensive Sanctions (i.e., Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) (a “Sanctioned Country”), nor are they designated as a ‘specially designated national’, ‘blocked person’ or any other such term used in Sanctions to designate an individual or entity subject to Sanctions. Neither the Company nor any of its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, other person acting on behalf of the Company or any of its Subsidiaries, have knowingly engaged in during the three (3)-year period immediately preceding the date hereof, and are not now engaged in any dealings or transactions with any person, or with the property of any Person, that, at the time of the dealing or transaction, is or was the subject or target of Sanctions, or with any Sanctioned Country, in each case in violation of SanctionsRestricted Party.
(e) The Company and its Subsidiaries Entities are in compliance with all material consent, license, permit, grant, approval, certificate, accreditation, filing or other authorization which is required for the operation applicable Sanctions and Trade Compliance Laws. Each of the Company’s or any of its Subsidiaries’ business as currently conducted Company Entities has instituted and the ownership maintains policies and procedures, including appropriate controls, reasonably designed to promote compliance by those Company Entities and their directors, officers, employees, and authorized agents with all applicable Laws relating to bribery, corruption, and money laundering.
(f) None of the assets and property thereof (collectivelyCompany Entities and, to the Knowledge of Target Entities, none of their respective officers, directors or managers, shareholders or members is, or has been in the past five years, the “Permits”)subject of any action or investigation by any Governmental Authority related to potential violations of Sanctions or Trade Compliance Laws, each or violated, been convicted or charged under, or settled, any actual or alleged violation of which has been issued Sanctions or granted to the Company or such Subsidiary and Trade Compliance Laws.
(g) Each Seller is in full force and effect, except for any failure compliance with all Laws which would affect its ability to so comply perform its obligations under this Agreement or be in effect that would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholetransactions contemplated hereby. No suspension, cancellation, modification, revocation or nonrenewal of any such Permit There is no Action pending or, to the Knowledge of Target Entities, threatened against any Seller or any of its Affiliates that would affect the Company, threatened, except as would not reasonably be expected ability of such Seller to be material to the Company and perform its Subsidiaries, taken as a whole. All Permits required for the conduct of the business of the Company and its Subsidiaries as currently conducted will continue in full force and effect immediately after giving effect to obligations under this Agreement or the transactions contemplated hereby, except where the failure of such Permits to so continue would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Ormat Technologies, Inc.)
Legal Compliance; Permits. (a) Except as set forth on Section 3.08(a) of the Disclosure ScheduleSchedule 4.14(a), the Company each Issuer Party is, and its Subsidiaries are since January 1, 2019 has been, in compliance in all material respects with all applicable Laws applicable to them or the operation of their businessand Permits. Except as set forth on Section 3.08(a) of the Disclosure ScheduleSchedule 4.14(a), during the three (3)-year period immediately preceding the date hereof, the Company and its Subsidiaries have not neither any Issuer Party nor any Issuer Party has received any written or, to the Knowledge of the Company, oral notice, Order notice or complaint other communication from any Person Governmental Authority at any time since January 1, 2019 alleging that the Company or any of its Subsidiaries Issuer Party is not in compliance in any material respect with any Law applicable to it Laws or the operation of its businessPermits.
(b) The Company Issuer and those individuals conducting the Business on its Subsidiaries currently arebehalf have all requisite Permits required for the conduct of its business, including without limitation licenses required by the applicable insurance regulatory authorities and during the five (5)-year period immediately preceding the date hereof have been, in compliance with all applicable Anti-Bribery and Anti-Corruption Laws in all jurisdictionslocal business licenses. The Company Permits listed on Schedule 4.14(b) constitute all of the Permits necessary to conduct the Business as presently conducted and its Subsidiaries sets forth for each such Permit the lines of business currently conducted by the Issuer under such Permit (including or otherwise specifies the nature of such Permit) and, where applicable, specifies the expiration date of such Permit. Such Permits are in full force and effect and are not subject to any restrictions or conditions that would limit the Business as presently conducted in any material respect.
(c) No Issuer Party, nor any Issuer Party’s directors, officers or employees, has ever been convicted of or, to the knowledge of the Issuer Parties, investigated with respect to, any violation of Law related to fraud, theft, embezzlement, breach of fiduciary responsibility, financial misconduct, obstruction of an investigation, or controlled substances, or is currently involved in any pending criminal or civil action or civil proposed debarment, exclusion or other sanctioning action. No Issuer Party, nor any of their officers, its directors, officers or employees, or to the Knowledge knowledge of the CompanyIssuer Parties, agents or any other Person Person, acting on its behalfbehalf of any Issuer, (i) have not during the five (5)-year period immediately preceding the date hereof, directly has used or indirectly, in each case in violation of Anti-Bribery and Anti-Corruption Laws used is using any organizational funds for any unlawful contributions, gifts, services of value, entertainment or other expenses relating to political activity, (ii) has used or is using any organizational funds for any direct or indirect unlawful expenses; madepayments (regardless of form, offeredwhether in money, authorized, property or promised to make any unlawful payment or provided, offered, authorized, or promised to provide anything of value to any Person including but not limited services) to any foreign or domestic Government Official; madegovernmental officials or employees, (iii) has violated or is violating any provision of the United States Foreign Corrupt Practices Act of 1977 or any similar Laws of other jurisdictions, (iv) has established or maintained, or promised to make is maintaining, any contributionunlawful fund of organizational monies or other properties, or (v) has made any bribe, unlawful rebate, gift, unlawful payoff, influence payment, kickback or other similar unlawful payment (regardless of form, whether in money, property or other advantage; or taken any action which would cause the Company or any of its Subsidiaries to be in violation of the Anti-Bribery and Anti-Corruption Laws. During the five (5)-year period immediately preceding the date hereof, the Company and its Subsidiaries (including any of their officers, directors, employees or, to the Knowledge of the Company, other Person associated with or acting on its behalfservices) have not, directly or indirectly, requested or agreed to receive or accepted any unlawful contributions, gifts, services of value, advantage, entertainment or other unlawful expenses, contribution, bribe, rebate, gift, payoff, influence payment, kickback or other similar unlawful payment, or similar incentive which would cause it to be in violation of any Anti-Bribery and Anti-Corruption Laws. There are no pending or, to the Company’s Knowledge, threatened claims in writing, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company with respect to any Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have not during the five (5)-year period immediately preceding the date hereof received any allegation, whistleblower complaint, or conducted any investigation regarding noncompliance with the Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have established and maintained a compliance program and sufficient internal controls and procedures reasonably designed to ensure compliance with the Anti-Bribery and Anti-Corruption Laws and there are no false, fictitious, or materially inaccurate entries in the Company’s or any its Subsidiaries’ books and records.
(c) Except as set forth on Section 3.08(c) of the Disclosure Schedule, the Company and its Subsidiaries (and their Affiliates (but not including limited partners (in their capacities as such) or portfolio companies of any such Person that is a venture, private equity or investment fund), officers, directors, employees, or to the Knowledge of the Company, agents, distributors, or other Persons acting on their behalf) have during the three (3)-year period immediately preceding the date hereof conducted its export and import transactions in accordance with all applicable Export and Import Control Laws. Without limiting the foregoing, except as set forth on Section 3.08(c) of the Disclosure Schedule: (i) during the three (3)-year period immediately preceding the date hereof, the Company and its Subsidiaries have obtained and are in compliance with the terms of all applicable Export and Import Approvals; (ii) there are no pending or, to the Company’s Knowledge, threatened claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company or its Subsidiaries with respect to such Export and Import Approvals; (iii) there are no actions, conditions or circumstances pertaining to the Company’s or its Subsidiaries’ export or import transactions that would reasonably be expected to give rise to any future claims, charges, investigations, violations, settlements, civil or criminal actions, lawsuits, or other court actions under the Export and Import Control Laws; (iv) no approval from a Governmental Authority for the transfer of Export and Import Approvals to the Company or their Subsidiaries is required or cannot be obtained without material cost.
(d) Except as set forth on Section 3.08(d) of the Disclosure Schedule, neither the Company nor its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, any agent or other person acting on behalf of the Company or its Subsidiaries, is currently the subject or target of any Sanctions nor are they owned fifty percent or more or effectively controlled as that term is applied by a U.S. sanctioning authority by any individual or entity that is currently the subject or target of any Sanctions, nor is located, organized or resident in a country or territory that is the subject of comprehensive Sanctions (i.e., Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) (a “Sanctioned Country”), nor are they designated as a ‘specially designated national’, ‘blocked person’ or any other such term used in Sanctions to designate an individual or entity subject to Sanctions. Neither the Company nor any of its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, other person acting on behalf of the Company or any of its Subsidiaries, have knowingly engaged in during the three (3)-year period immediately preceding the date hereof, and are not now engaged in any dealings or transactions with any person, or with the property of any Person, that, at the time of the dealing or transaction, is or was the subject or target of Sanctions, or with any Sanctioned Countrynature, in each case in violation of Sanctions.
clauses (ei) The Company and its Subsidiaries are through (v) above in compliance connection with all material consent, license, permit, grant, approval, certificate, accreditation, filing or other authorization which is required for the operation Business. None of the Company’s or any of its Subsidiaries’ Issuer Parties conducts business as currently conducted and the ownership outside of the assets and property thereof (collectively, the “Permits”), each of which has been issued or granted to the Company or such Subsidiary and is in full force and effect, except for any failure to so comply or be in effect that would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No suspension, cancellation, modification, revocation or nonrenewal of any such Permit is pending or, to the Knowledge of the Company, threatened, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. All Permits required for the conduct of the business of the Company and its Subsidiaries as currently conducted will continue in full force and effect immediately after giving effect to the transactions contemplated hereby, except where the failure of such Permits to so continue would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a wholeUnited States.
Appears in 1 contract
Samples: Stock Investment and Subscription Agreement (FedNat Holding Co)
Legal Compliance; Permits. (a) Except as set forth on in Section 3.08(a4(i)(i) of the Disclosure Schedule, the each Company is, and its Subsidiaries are has been since January 1, 2002, in compliance in all material respects with all Laws applicable to them or the operation laws (including rules, regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder) of their businessfederal, state, and local governments (and all agencies thereof). Except as set forth on in Section 3.08(a4(i)(ii) of the Disclosure Schedule, during each Company holds and is, and has been since January 1, 2002, in compliance in all material respects with all permits, licenses, approvals, and authorizations of governmental authorities (each a “Governmental Authorization”) required for the three (3)-year period immediately preceding conduct of its business as currently conducted. Section 4(i)(iii) of the date hereofDisclosure Schedule contains a complete and accurate list of each Governmental Authorization that is held or used by any of the Companies. Each Governmental Authorization listed or required to be listed in Section 4(i)(iii) of the Disclosure Schedule is valid and in full force and effect. All applications required to have been filed for the renewal of the Governmental Authorizations listed or required to be listed in Section 4(i)(iii) of the Disclosure Schedule have been duly filed on a timely basis with the appropriate governmental authority and all other filings required to have been made with respect to such Governmental Authorizations have been duly made on a timely basis with the appropriate governmental authority, except where the Company delay in any such filing would not have a Material Adverse Effect. The Governmental Authorizations listed in Section 4(i)(iii) of the Disclosure Schedule collectively constitute all of the Governmental Authorizations necessary to permit the Companies to lawfully conduct and its Subsidiaries have not received any written or, operate their businesses in the manner they currently conduct and operate such businesses and to permit the Companies to own and use their assets in the manner in which they currently own and use such assets. To the Knowledge of the Seller Entities, since January 1, 2002, no Company or director, officer, agent, or employee of any Company, oral notice, Order or complaint from any Person that the Company or any other Person associated with or acting for or on behalf of its Subsidiaries is not in compliance in any material respect with any Law applicable to it or the operation of its business.
(b) The Company and its Subsidiaries currently are, and during the five (5)-year period immediately preceding the date hereof have been, in compliance with all applicable Anti-Bribery and Anti-Corruption Laws in all jurisdictions. The Company and its Subsidiaries (including any of their officers, directors, employees, or to the Knowledge of the Company, agents or other Person acting on its behalf) have not during the five (5)-year period immediately preceding the date hereof, has directly or indirectly, in each case in violation of Anti-Bribery and Anti-Corruption Laws used any funds for unlawful contributions, gifts, services of value, entertainment or other unlawful expenses; made, offered, authorized, or promised to make any unlawful payment or provided, offered, authorized, or promised to provide anything of value to any Person including but not limited to any foreign or domestic Government Official; made, or promised to make indirectly (i) made any contribution, arrangement, concession, gift, bribe, rebate, gift, payoff, influence payment, kickback kickback, or other similar unlawful payment or other advantage; given any item of value to any Person, private or taken public, regardless of form, whether in money, property, or services (A) to obtain favorable treatment in securing business, (B) to pay for favorable treatment for business secured, (C) to obtain special concessions or for special concessions already obtained, for or in respect of any action which would cause the Company or any Affiliate of its Subsidiaries to be in violation of the Anti-Bribery and Anti-Corruption Laws. During the five (5)-year period immediately preceding the date hereof, the Company and its Subsidiaries (including any of their officers, directors, employees or, to the Knowledge of the a Company, other Person associated with or acting on its behalf(D) have not, directly or indirectly, requested or agreed to receive or accepted any unlawful contributions, gifts, services of value, advantage, entertainment or other unlawful expenses, contribution, bribe, rebate, gift, payoff, influence payment, kickback or other similar unlawful payment, or similar incentive which would cause it to be in violation of any Anti-Bribery and Anti-Corruption Laws. There are no pending orlaw, to the Company’s Knowledge, threatened claims in writing, charges, investigations, violations, settlements, civil regulation or criminal enforcement actions, lawsuitsorder, or other court actions against the Company with respect to any Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have not during the five (5)-year period immediately preceding the date hereof received any allegation, whistleblower complaint, or conducted any investigation regarding noncompliance with the Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have established and maintained a compliance program and sufficient internal controls and procedures reasonably designed to ensure compliance with the Anti-Bribery and Anti-Corruption Laws and there are no false, fictitious, or materially inaccurate entries in the Company’s or any its Subsidiaries’ books and records.
(c) Except as set forth on Section 3.08(c) of the Disclosure Schedule, the Company and its Subsidiaries (and their Affiliates (but not including limited partners (in their capacities as such) or portfolio companies of any such Person that is a venture, private equity or investment fund), officers, directors, employees, or to the Knowledge of the Company, agents, distributors, or other Persons acting on their behalf) have during the three (3)-year period immediately preceding the date hereof conducted its export and import transactions in accordance with all applicable Export and Import Control Laws. Without limiting the foregoing, except as set forth on Section 3.08(c) of the Disclosure Schedule: (i) during the three (3)-year period immediately preceding the date hereof, the Company and its Subsidiaries have obtained and are in compliance with the terms of all applicable Export and Import Approvals; (ii) there are no pending or, to established or maintained any fund or asset that has not been recorded in the Company’s Knowledge, threatened claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company or its Subsidiaries with respect to such Export books and Import Approvals; (iii) there are no actions, conditions or circumstances pertaining to the Company’s or its Subsidiaries’ export or import transactions that would reasonably be expected to give rise to any future claims, charges, investigations, violations, settlements, civil or criminal actions, lawsuits, or other court actions under the Export and Import Control Laws; (iv) no approval from a Governmental Authority for the transfer of Export and Import Approvals to the Company or their Subsidiaries is required or cannot be obtained without material cost.
(d) Except as set forth on Section 3.08(d) records of the Disclosure Schedule, neither the Company nor its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, any agent or other person acting on behalf of the Company or its Subsidiaries, is currently the subject or target of any Sanctions nor are they owned fifty percent or more or effectively controlled as that term is applied by a U.S. sanctioning authority by any individual or entity that is currently the subject or target of any Sanctions, nor is located, organized or resident in a country or territory that is the subject of comprehensive Sanctions (i.e., Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) (a “Sanctioned Country”), nor are they designated as a ‘specially designated national’, ‘blocked person’ or any other such term used in Sanctions to designate an individual or entity subject to Sanctions. Neither the Company nor any of its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, other person acting on behalf of the Company or any of its Subsidiaries, have knowingly engaged in during the three (3)-year period immediately preceding the date hereof, and are not now engaged in any dealings or transactions with any person, or with the property of any Person, that, at the time of the dealing or transaction, is or was the subject or target of Sanctions, or with any Sanctioned Country, in each case in violation of SanctionsCompanies.
(e) The Company and its Subsidiaries are in compliance with all material consent, license, permit, grant, approval, certificate, accreditation, filing or other authorization which is required for the operation of the Company’s or any of its Subsidiaries’ business as currently conducted and the ownership of the assets and property thereof (collectively, the “Permits”), each of which has been issued or granted to the Company or such Subsidiary and is in full force and effect, except for any failure to so comply or be in effect that would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No suspension, cancellation, modification, revocation or nonrenewal of any such Permit is pending or, to the Knowledge of the Company, threatened, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. All Permits required for the conduct of the business of the Company and its Subsidiaries as currently conducted will continue in full force and effect immediately after giving effect to the transactions contemplated hereby, except where the failure of such Permits to so continue would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
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Legal Compliance; Permits. (a) Except as set forth on Section 3.08(a) of the Disclosure ScheduleSchedule 4.8(a), the Company each Acquired Entity is, and its Subsidiaries are since January 1, 2019 has been, in compliance in all material respects with all applicable Laws applicable to them or the operation of their businessand Permits. Except as set forth on Section 3.08(a) of the Disclosure ScheduleSchedule 4.8(a), during the three (3)-year period immediately preceding the date hereof, the Company and its Subsidiaries have not neither any Acquired Entity nor any Seller has received any written or, to the Knowledge of the Company, oral notice, Order notice or complaint other communication from any Person Governmental Authority at any time since January 1, 2019 alleging that the Company or any of its Subsidiaries Acquired Entity is not in compliance in any material respect with any Law applicable to it Laws or the operation of its businessPermits.
(b) The Company Each Acquired Entity and its Subsidiaries currently areemployees have all requisite Permits required for the conduct of its business, including without limitation licenses required by the applicable insurance regulatory authorities and during the five (5)-year period immediately preceding the date hereof have been, in compliance with all applicable Anti-Bribery and Anti-Corruption Laws in all jurisdictionslocal business licenses. The Company Permits listed on Schedule 4.8(b) constitute all of the Permits necessary to conduct the Business as presently conducted and its Subsidiaries sets forth for each such Permit the lines of business currently conducted by the Acquired Entities under such Permit (including or otherwise specifies the nature of such Permit) and, where applicable, specifies the expiration date of such Permit. Such Permits are in full force and effect and are not subject to any restrictions or conditions that would limit the Business as presently conducted in any material respect.
(c) No Acquired Entity, nor any of their officers, its directors, officers or employees, has ever been convicted of or, to the knowledge of the Companies, investigated with respect to, any violation of Law related to fraud, theft, embezzlement, breach of fiduciary responsibility, financial misconduct, obstruction of an investigation, or controlled substances, or is currently involved in any pending criminal or civil action or civil proposed debarment, exclusion or other sanctioning action. No Acquired Entity, nor any of its directors, officers or employees, or to the Knowledge knowledge of the CompanyCompanies, agents or any other Person Person, acting on its behalfbehalf of any Acquired Entity, (i) have not during the five (5)-year period immediately preceding the date hereof, directly has used or indirectly, in each case in violation of Anti-Bribery and Anti-Corruption Laws used is using any organizational funds for any unlawful contributions, gifts, services of value, entertainment or other expenses relating to political activity, (ii) has used or is using any organizational funds for any direct or indirect unlawful expenses; madepayments (regardless of form, offeredwhether in money, authorized, property or promised to make any unlawful payment or provided, offered, authorized, or promised to provide anything of value to any Person including but not limited services) to any foreign or domestic Government Official; madegovernmental officials or employees, (iii) has violated or is violating any provision of the United States Foreign Corrupt Practices Act of 1977 or any similar Laws of other jurisdictions, (iv) has established or maintained, or promised to make is maintaining, any contributionunlawful fund of organizational monies or other properties, or (v) has made any bribe, unlawful rebate, gift, unlawful payoff, influence payment, kickback or other similar unlawful payment (regardless of form, whether in money, property or other advantage; or taken any action which would cause the Company or any of its Subsidiaries to be in violation of the Anti-Bribery and Anti-Corruption Laws. During the five (5)-year period immediately preceding the date hereof, the Company and its Subsidiaries (including any of their officers, directors, employees or, to the Knowledge of the Company, other Person associated with or acting on its behalfservices) have not, directly or indirectly, requested or agreed to receive or accepted any unlawful contributions, gifts, services of value, advantage, entertainment or other unlawful expenses, contribution, bribe, rebate, gift, payoff, influence payment, kickback or other similar unlawful payment, or similar incentive which would cause it to be in violation of any Anti-Bribery and Anti-Corruption Laws. There are no pending ornature, to the Company’s Knowledge, threatened claims in writing, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against the Company with respect to any Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have not during the five (5)-year period immediately preceding the date hereof received any allegation, whistleblower complaint, or conducted any investigation regarding noncompliance with the Anti-Bribery and Anti-Corruption Laws. The Company and its Subsidiaries have established and maintained a compliance program and sufficient internal controls and procedures reasonably designed to ensure compliance with the Anti-Bribery and Anti-Corruption Laws and there are no false, fictitious, or materially inaccurate entries each case in the Company’s or any its Subsidiaries’ books and records.
(c) Except as set forth on Section 3.08(c) of the Disclosure Schedule, the Company and its Subsidiaries (and their Affiliates (but not including limited partners (in their capacities as such) or portfolio companies of any such Person that is a venture, private equity or investment fund), officers, directors, employees, or to the Knowledge of the Company, agents, distributors, or other Persons acting on their behalf) have during the three (3)-year period immediately preceding the date hereof conducted its export and import transactions in accordance with all applicable Export and Import Control Laws. Without limiting the foregoing, except as set forth on Section 3.08(c) of the Disclosure Schedule: clauses (i) during the three through (3)-year period immediately preceding the date hereof, the Company and its Subsidiaries have obtained and are v) above in compliance connection with the terms Business. None of all applicable Export and Import Approvals; (ii) there are no pending or, to the Company’s Knowledge, threatened claims, charges, investigations, violations, settlements, civil or criminal enforcement actions, lawsuits, or other court actions against Acquired Entities conducts business outside of the Company or its Subsidiaries with respect to such Export and Import Approvals; (iii) there are no actions, conditions or circumstances pertaining to the Company’s or its Subsidiaries’ export or import transactions that would reasonably be expected to give rise to any future claims, charges, investigations, violations, settlements, civil or criminal actions, lawsuits, or other court actions under the Export and Import Control Laws; (iv) no approval from a Governmental Authority for the transfer of Export and Import Approvals to the Company or their Subsidiaries is required or cannot be obtained without material costUnited States.
(d) Except Schedule 4.8(d) sets forth a true and complete list of all regulatory certifications, notices, attestations or other filings required to be made by NCTIC with any Governmental Authority under applicable Laws in the ordinary course of its business during the 2021 calendar year (excluding, for the avoidance of doubt, any such certifications, notices, attestations or other filings required to be made by NCTIC by virtue of, or as set forth on Section 3.08(d) a consequence of, the execution of this Agreement or the consummation of the Disclosure Schedule, neither the Company nor its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, any agent or other person acting on behalf of the Company or its Subsidiaries, is currently the subject or target of any Sanctions nor are they owned fifty percent or more or effectively controlled as that term is applied by a U.S. sanctioning authority by any individual or entity that is currently the subject or target of any Sanctions, nor is located, organized or resident in a country or territory that is the subject of comprehensive Sanctions (i.e., Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) (a “Sanctioned Country”Transactions), nor are they designated as a ‘specially designated national’, ‘blocked person’ or any other such term used in Sanctions to designate an individual or entity subject to Sanctions. Neither the Company nor any of its Subsidiaries, nor any director, officer, employee, or, to the Knowledge of the Company, other person acting on behalf of the Company or any of its Subsidiaries, have knowingly engaged in during the three (3)-year period immediately preceding the date hereof, and are not now engaged in any dealings or transactions with any person, or with the property of any Person, that, at the time of the dealing or transaction, is or was the subject or target of Sanctions, or with any Sanctioned Country, in each case in violation of Sanctions.
(e) The Company and its Subsidiaries are in compliance with all material consent, license, permit, grant, approval, certificate, accreditation, filing or other authorization which is required for the operation of the Company’s or any of its Subsidiaries’ business as currently conducted and the ownership of the assets and property thereof (collectively, the “Permits”), each of which has been issued or granted to the Company or such Subsidiary and is in full force and effect, except for any failure to so comply or be in effect that would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No suspension, cancellation, modification, revocation or nonrenewal of any such Permit is pending or, to the Knowledge of the Company, threatened, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. All Permits required for the conduct of the business of the Company and its Subsidiaries as currently conducted will continue in full force and effect immediately after giving effect to the transactions contemplated hereby, except where the failure of such Permits to so continue would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole.
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