Construction of Certain Phrases (a) For purposes of this Agreement, references to the “Company” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that if Indemnitee is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, Indemnitee shall stand in the same position under the provisions of this Agreement with respect to the resulting or surviving corporation as Indemnitee would have with respect to such constituent corporation if its separate existence had continued.
(b) For purposes of this Agreement, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on Indemnitee with respect to an employee benefit plan; and references to “serving at the request of the Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants, or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement.
Notification of Certain Events Prior to the expiration of this Warrant pursuant to Section 8, in the event that the Company shall authorize:
(a) the issuance of any dividend or other distribution on the capital stock of the Company (other than (i) dividends or distributions otherwise provided for in Section 6, (ii) repurchases of common stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries upon termination of their employment or services pursuant to agreements providing for the right of said repurchase; (iii) repurchases of common stock issued to or held by employees, officers, directors or consultants of the Company or its subsidiaries pursuant to rights of first refusal or first offer contained in agreements providing for such rights; or (iv) repurchases of capital stock of the Company in connection with the settlement of disputes with any stockholder ), whether in cash, property, stock or other securities;
(b) the voluntary liquidation, dissolution or winding up of the Company; or
(c) any transaction resulting in the expiration of this Warrant pursuant to Section 8(b); the Company shall send to the Holder of this Warrant at least ten (10) calendar days prior written notice of the date on which a record shall be taken for any such dividend or distribution specified in clause (a) or the expected effective date of any such other event specified in clause (b) or (c), as applicable. The notice provisions set forth in this section may be shortened or waived prospectively or retrospectively by the consent of the Holder of this Warrant.
Notification of Certain Matters The Company shall give prompt notice to Parent, and Parent shall give prompt notice to the Company, of (i) the occurrence or non-occurrence of any event, the occurrence or non-occurrence of which is likely to cause any representation or warranty of the Company and Parent, respectively, contained in this Agreement to be untrue or inaccurate at or prior to the Effective Time and (ii) any failure of the Company or Parent, as the case may be, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder; provided, however, that the delivery of any notice pursuant to this Section 5.9 shall not limit or otherwise affect any remedies available to the party receiving such notice.
Construction of Certain References References to:
(a) the records of Euroclear and Clearstream, Luxembourg shall be to the records that each of Euroclear and Clearstream, Luxembourg holds for its customers which reflect the amount of such customers’ interests in the Notes;
(b) other capitalised terms not defined in this Agreement are to those terms as defined in the Conditions;
(c) principal and interest shall be construed in accordance with Condition 5; and
(d) costs, charges, remuneration or expenses include any value added, turnover or similar tax charged in respect thereof.
Assumption of Certain Liabilities (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Purchaser agrees to cause the Designated Purchasers to assume, pay, perform and discharge when due, all liabilities or obligations listed in this Section 2.03, and only such liabilities or obligations listed in this Section 2.03 (except as otherwise specifically provided in this Agreement), whether arising before or after the Closing and whether known or unknown, fixed or contingent (the "Assumed Liabilities"):
(i) all liabilities set forth on the Closing Date Balance Sheet, other than any such liabilities that are Excluded Liabilities;
(ii) all liabilities and obligations of Sellers arising under or pursuant to the Acquired Contracts, the Permits, the Acquired Intellectual Property and the Acquired Know-how;
(iii) all liabilities and obligations relating to employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee, but only to the extent such liabilities and obligations are expressly assumed by any Designated Purchaser pursuant to Article VII of this Agreement;
(iv) the Specified Contingent Liabilities in an amount equal to (and no amounts in excess of) the aggregate amount (the "Contingent Reserve Amount") of the Contingency Reserves reflected or shown on the Closing Date Balance Sheet; and
(v) all other liabilities and obligations of Parent and Sellers to the extent relating to the Business other than the Excluded Liabilities; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, the Designated Purchasers shall only assume that portion of such liability or obligation that is allocable to the Business on a pro rata basis.
(b) Notwithstanding anything herein to the contrary or any other writing to the contrary, Purchaser shall cause the Designated Purchasers to assume only the Assumed Liabilities, and nether the Purchaser nor any other Designated Purchaser shall assume any other liability or obligation of Parent or any Seller (or any predecessor owner of all or part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations ahll be retained by and remain obligations of Parent or Sellers (or any such predecessor owner) (all such liabilities and obligations not being assumed being herein referred to as the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following:
(i) all liabilities and obligations which are attributable to any of the Excluded Assets, or associated with the realization of the benefits of any of the Excluded Assets;
(ii) the Tax Liabilities, other than the Assumed Tax Liabilities in an amount equal to (and no amounts in excess of) the amount of any specific reserve therefor reflected or shown on the Closing Date Balance Sheet;
(iii) the Existing Seller Indebtedness, other than Capital Lease Obligations reflected on the Closing Date Balance Sheet in an amount not in excess of $100,000 in the aggregate and other than as set forth in Schedule 5.14;
(iv) all liabilities and obligations relating to compensation and any pension, deferred compensation, vacation, medical benefit, life insurance, severance of other employee health or safety matters (other than worker's compensation) and any other employee benefit plans, programs or arrangements associated with or relating to any Transferred Employee or any other employee or former employee employed in the Business and all liabilities and obligations relating to or arising from the employment or cessation of employment of any such employee (including, but not limited to, all liabilities and obligations under any severance plan or arrangement of Parent, Sellers, the Purchased Entities or their respective Affiliates), except to the extent such liabilities and obligations are expressly assumed pursuant to Article VII of this Agreement;
(v) all liabilities and obligations arising from worker's compensation claims relating to pre-Closing events;
(vi) all Specified Contingent Liabilities to the extent the aggregate amount of Specified Contingent Liabilities exceeds the Contingent Reserve Amount;
(vii) all liabilities and obligations to the extent arising from the Excluded Joint Ventures;
(viii) all liabilities and obligations covered, but only to the extent covered, by any insurance policy maintained by Parent, Sellers, the Purchased Entities or any of their respective Affiliates; and
(ix) all other liabilities and obligations of Parent and Sellers to the extent not relating to the Business; provided, however, that with respect to any such other liability or obligation not relating exclusively to the Business, Parent and Sellers shall only retain that portion of such liability or obligation that is not allocable to the Business on a pro rata basis.
(c) Notwithstanding anything to the contrary in this Section 2.03, to the extent a liability is included in the calculation of Closing Date Net Tangible Asset Value (as finally determined in accordance with Section 2.05), such liability shall (in an amount equal to (and no amount in excess of) the amount included in such calculation) be deemed to be an Assumed Liability, whether or not such liability is listed as an Excluded Liability under Section 2.03(b).
Allocation of Certain Taxes (a) The Equityholders and Buyer will, to the extent permitted by Applicable Law, elect with the appropriate Taxing Authorities to close the Taxable periods of the Company as of and including the Closing Date. In any case where Applicable Law does not require or permit such a Taxable period of the Company to be closed as of and including the Closing Date, any Tax described in Section 8.01(a) and pertaining to a period that begins on or before the Closing Date and ends after the Closing Date (a “Straddle Period”) shall be determined in accordance with the applicable provisions of Section 8.02(b) hereof.
(b) In the case of any Tax described in Section 8.01(a) that is based on income, sales, revenue, production or similar items, or other Taxes not described in the next sentence, such Tax pertaining or attributable to the Company for the Pre-Closing Period shall be determined assuming that the Company uses the accrual method of Tax accounting and the portion of such Tax pertaining or attributable to the Pre-Closing Period of any Straddle Period shall be determined on the basis of an interim closing of the books as of and including the Closing Date; provided, that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions), other than with respect to property placed in service after the Closing, shall be allocated between the Pre-Closing Period and the period after the Closing Date in proportion to the number of days in each period. For purposes of this Section 8.02, the liability for any Taxes not described in the preceding sentences, including any real or personal property Taxes or a flat minimum dollar Tax, the total amount of such Taxes allocable to the Pre-Closing Period of a Straddle Period shall be the product of (i) such Tax for the entirety of such Straddle Period, multiplied by (ii) a fraction, the numerator of which is the number of days for such Tax period included in the Pre-Closing Period and the denominator of which is the total number of days in such Tax period.
Absence of Certain Changes, Events and Conditions Since the Interim Balance Sheet Date, and other than in the ordinary course of business consistent with past practice as contemplated herein, there has not been, with respect to the Companies, any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect;
(b) amendment of such entities’ chartering documents;
(c) split, combination or reclassification of any shares of its limited liability company/membership interests, capital stock or other equity interests;
(d) except any transaction that may occur pursuant to the WSDA Agreement, issuance, sale or other disposition of any of its limited liability company/membership interests, capital stock or other equity interests, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its limited liability company/membership interests, capital stock or other equity interests;
(e) declaration or payment of any dividends or distributions on or in respect of any of its limited liability company/membership interests, capital stock or other equity interests, or redemption, purchase or acquisition of its limited liability company/membership interests, capital stock or other equity interests;
(f) material change in any method of accounting or accounting practice, except as required by GAAP or SAP or as disclosed in the notes to the Financial Statements;
(g) material change in its cash management practices and its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(h) entry into any contract that would constitute a Material Contract;
(i) incurrence, assumption or guarantee of any Indebtedness for borrowed money except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice;
(j) transfer, assignment, sale or other disposition of any material assets shown or reflected in the Interim Balance Sheet or cancellation of any debts or entitlements;
(k) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(l) material damage, destruction or loss (whether or not covered by insurance) to an asset material to it;
(m) capital investment in, or any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any Material Contract to which it is a party or by which it is bound;
(o) material capital expenditures;
(p) imposition of any Encumbrance upon its properties, capital stock or assets, tangible or intangible;
(i) grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits in respect of the Companies current or former employees, directors, officers, managers, independent contractors or consultants, other than
(A) in the ordinary course of business consistent with past practices, (B) as provided for in any written agreements or (C) as required by applicable Law, (ii) change in the terms of employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $10,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, manager, independent contractor or consultant;
(r) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy in the ordinary course of business;
(s) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, manager, independent contractor or consultant, (ii) Plan or (iii) collective bargaining or other agreement with a union, in each case whether written or oral;
(t) loan to (or forgiveness of any loan to), or entry into any other transaction with, any of its shareholders or members, or current or former directors, managers, officers and employees;
(u) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(v) except for this Agreement, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(w) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $100,000 individually (in the case of a lease, per annum) or $100,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the ordinary course of business consistent with past practice;
(x) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock or limited liability company/membership interests of, or by any other manner, any business or any Person or any division thereof;
(y) action by it to make, change or revoke any material election in respect of Taxes (except as required by Law), change an annual accounting period, adopt or change any accounting method with respect to Taxes except as may be required as a result of a change in Law, make any material agreement or settlement with respect to Taxes, file any amended Tax return, surrender any right to claim a refund of Taxes, or consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment;
(z) entry, issuance, or filing, with or without the request or consent or over the objection of it, or any order, consent order, of directive relating to any Company of or by any Applicable Regulator, or undertaking or agreement by such Company to or with any Applicable Regulator; or
(aa) Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Construction of Certain Provisions If any provision of this Agreement or any of the Loan Documents refers to any action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person, whether or not expressly specified in such provision.
Treatment of Certain Refunds If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.17 (including by the payment of additional amounts pursuant to this Section 2.17), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.17 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
Effect of Certain Events (a) If at any time the Company proposes (i) to sell or otherwise convey all or substantially all of its assets or (ii) to effect a transaction (by merger or otherwise) in which more than 50% of the voting power of the Company is disposed of (collectively, a "Sale or Merger Transaction"), in which the consideration to be received by the Company or its shareholders consists solely of cash, the Company shall give the holder of this Warrant thirty (30) days' notice of the proposed effective date of the transaction specifying that the Warrant shall terminate if the Warrant has not been exercised by the effective date of the transaction.
(b) In case the Company shall at any time effect a Sale or Merger Transaction in which the consideration to be received by the Company or its shareholders consists in part of consideration other than cash, the holder of this Warrant shall have the right thereafter to purchase, by exercise of this Warrant and payment of the aggregate Exercise Price in effect immediately prior to such action, the kind and amount of shares and other securities and property which it would have owned or have been entitled to receive after the happening of such transaction had this Warrant been exercised immediately prior thereto.
