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abridged | contract_64 | provided that, solely with respect to the foregoing clause (A), none of the following Effects (and no Effect that directly results from or arises in connection with the following) shall constitute or shall be taken into account in determining whether there is a Company Material Adverse Effect to the extent resulting from or arising out of: (a) changes in or affecting the economies or general business, economic, regulatory or legislative conditions or securities, financial, credit or capital market conditions (including changes generally in prevailing interest rates, currency exchange rates, credit markets or equity price levels, trading volumes or the imposition of new or increased tariffs) anywhere in the world in which the Company and its Subsidiaries operate, (b) changes in the trading volume or trading price of Shares (provided that the facts and circumstances giving rise to such changes in such volume or price may be deemed to constitute, and may be taken into account in determining whether there is, a Company Material Adverse Effect), (c) changes in the industry in which the Company and its Subsidiaries operate, (d) national or international political conditions, acts of war (whether or not declared), the threat, commencement, continuation or escalation of a war, acts of armed hostility, sabotage, terrorism or cyber intrusion, government shutdown or other international or national calamity or any material worsening of such conditions threatened, or existing as of the Agreement Date, (e) changes (or prospective changes) in Law or GAAP (or in the interpretation thereof), (f) any failure by the Company to meet its guidance or any published analyst projections, estimates or expectations of the Company’s past or projected revenue, earnings or other financial performance or results of operations for any period, in and of itself, and any resulting analyst downgrade of the Company’s securities, or any failure by the Company to meet its internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (provided that the facts and circumstances giving rise to such failures may be deemed to constitute, and may be taken into account in determining whether there is a Company Material Adverse Effect if such facts and circumstances are not otherwise excluded under this definition), (g) any legal or related Proceedings made or brought by any of the current or former Company Stockholders (on their own behalf or on behalf of the Company) against the Company or the Company Board, relating to, in connection with, or arising out of the Merger or the other Transactions, including the Proxy Statement, (h) any Effects directly or indirectly attributable to the execution, announcement or pendency of this Agreement or the anticipated consummation of the Merger (including the identity of, or any facts or circumstances relating to, Parent as the acquirer of the Company), including the impact thereof on relationships, contractual or otherwise, with officers, employees, customers, suppliers, distributors, vendors, licensors, licensees, lenders, investors, Governmental Authorities, subcontractors or partners (including the exercise, or prospective exercise, by any party of rights that arise upon a change of control) (provided, that this clause (h) shall not apply to any representations and warranties set forth in Section 2.4 or the condition set forth in Section 5.2(a) to the extent related thereto), (i) fires, pandemics, epidemics, disease outbreaks, quarantine restrictions, earthquakes, hurricanes, tornadoes or other natural or man-made disaster or any other national or international calamity, crisis or disaster, or any escalation or worsening of any of the foregoing and including any COVID-19 Responses taken in compliance with Section 4.1 and (j) except for the obligations of the Company and its Subsidiaries set forth in the first sentence of Section 4.1, any Effects resulting from or arising out of (i) the failure by the Company or any of its Subsidiaries to take any action expressly prohibited by this Agreement or (ii) any actions taken by the Company or any of its Subsidiaries as expressly required by this Agreement or with the prior written consent, or at the prior written request, of Parent or Merger Sub after disclosure to Parent of all material facts and information; provided that, with respect to clauses (a), (c), (d), (e) and (i), only to the extent such Effect does not adversely affect the Company and its Subsidiaries, taken as a whole, in a disproportionate manner relative to other similarly situated participants in the industry in which the Company and its Subsidiaries operate (in which case only the incremental disproportionate impact or impacts may be taken into account in determining whether there has been a Company Material Adverse Effect). (Page 34) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_64 | provided that, solely with respect to the foregoing clause (A), none of the following Effects (and no Effect that directly results from or arises in connection with the following) shall constitute <omitted> a Company Material Adverse Effect to the extent resulting from or arising out of: (Page 34) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_73 | provided, however, that an effect, change, development, event or circumstance shall not be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect on the Company if such effect, change, development, event or circumstance results or arises from: (a) any adverse change in economic, financial, capital market, political or social conditions in the United States or in other locations in which the Inphi Entities have material operations that does not have a disproportionate adverse impact on the Inphi Entities relative to other participants in the semiconductor industry (it being understood that the incremental disproportionate adverse impact or impacts of such adverse change may be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect on the Company); (b) any adverse change in conditions generally affecting the semiconductor industry that does not have a disproportionate adverse impact on the Inphi Entities relative to other participants in the semiconductor industry (it being understood that the incremental disproportionate adverse impact or impacts of such adverse change may be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect on the Company); (c) changes in the stock price or trading volume of the Company Common Stock (it being understood that the facts or circumstances giving rise to any such change in stock price or trading volume may be taken into account in determining whether a Material Adverse Effect on the Company has occurred or would reasonably be expected to occur, if such facts or circumstances are not otherwise excluded from such determination pursuant to this proviso); (d) the failure of the Company to meet securities analysts’ published projections of earnings, revenues or other financial metrics or the failure of the Company to meet internal projections, forecasts or budgets of revenues, earnings or other financial metrics (it being understood, however, that the facts or circumstances giving rise to any such failure may be taken into account in determining whether a Material Adverse Effect on the Company has occurred or would reasonably be expected to occur, if such facts or circumstances are not otherwise excluded from such determination pursuant to this proviso); (e) any adverse change that is effected after the date of the Agreement in Legal Requirements or other legal or regulatory conditions, or in GAAP or other accounting standards (or the interpretation thereof), that does not have a disproportionate adverse impact on the Inphi Entities relative to other participants in the semiconductor industry (it being understood that the incremental disproportionate adverse impact or impacts of such adverse change may be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect on the Company); (f) any act of war, sabotage or terrorism that occurs, worsens or changes after the date of the Agreement in the U.S. or in other locations in which the Inphi Entities have material operations and that does not have a disproportionate adverse impact on the Inphi Entities relative to other participants in the semiconductor industry (it being understood that the incremental disproportionate adverse impact or impacts of such act of war, sabotage or terrorism may be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect on the Company); (g) any act of God, earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire or other natural disaster, weather conditions, epidemic, pandemic or disease outbreak (including the COVID-19 virus or the continuation or worsening thereof) or other force majeure event (including actions taken by Governmental Bodies in connection with such events) that occurs, worsens or changes after the date of the Agreement and that in each case does not have a disproportionate adverse impact on the Inphi Entities relative to other participants in the semiconductor industry (it being understood that the incremental disproportionate adverse impact or impacts of such event may be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect on the Company); (h) the public announcement of the Agreement or the Contemplated Transactions (including the public announcement and identification of Marvell as a Principal Party or any public communication by Marvell or any of its Affiliates regarding its plans or intentions with respect to the business of the Company or any other Inphi Entity) or any loss of customers, suppliers, distributors or other business partners or employees suffered by the Company as a result of such public announcement; or (i) any stockholder class action or derivative litigation arising from or relating to the Agreement or the Contemplated Transactions commenced against the Company after the date of the Agreement and alleging a breach of fiduciary duty of the Company’s directors relating to their approval of the Agreement or false or misleading public disclosure by the Company with respect to the Agreement. (Page 129) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_73 | provided, however, that an effect <omitted> shall not be taken into account <omitted> if such effect <omitted> results or arises from: (Page 129) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_79 | provided, however, that no Effect (by itself or when aggregated or taken together with any and all other Effects) to the extent directly or indirectly resulting from, arising out of, attributable to, or related to any of the following shall be deemed to be or constitute a “Material Adverse Effect” or shall be taken into account when determining whether a “Material Adverse Effect” has occurred or may, would or could occur: (a) general economic conditions (or changes in such conditions) or conditions in the global economy generally; (b) conditions (or changes in such conditions) in the securities markets, credit markets, currency markets or other financial markets, including (i) changes in interest rates and changes in exchange rates for the currencies of any countries and (ii) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market; (c) conditions (or changes in such conditions) in the industries or geographical areas in which such Party and its Subsidiaries operate; (d) political conditions (or changes in such conditions) or acts of war (whether or not declared), sabotage, civil disobedience, cyberattacks or terrorism (including any escalation or general worsening of any such acts of war, sabotage, civil disobedience, cyberattacks or terrorism); (e) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, pandemics (including the COVID-19 pandemic), weather conditions or other force majeure events; (f) the announcement, negotiation, execution and delivery of this Agreement or the pendency or consummation of the Transactions, including any Effect on the relationship of any Party or its Subsidiaries, contractual or otherwise, with customers, employees, unions, suppliers, distributors, financing sources, partners, Governmental Entities or similar relationship relating to the execution and delivery of this Agreement or the pendency or consummation of the Transactions (other than with respect to any representation or warranty to the extent the express purpose of such representation or warranty is to address the consequences of the execution or delivery of this Agreement or the announcement or consummation of the Transactions); (g) the taking of any action expressly required by this Agreement (except for any obligation under this Agreement to operate in the ordinary course of business consistent with past practice (or similar obligation) pursuant to Sections 6.1 or 6.2, as applicable); (h) changes in Law or other legal or regulatory conditions, or any COVID-19 Measures or the interpretation of any such Laws, conditions or COVID-19 Measures, or changes in GAAP or other accounting standards; (i) any changes in such Party’s stock price or the trading volume of such Party’s stock, or any failure by such Party to meet any analysts’ estimates or expectations of such Party’s revenue, earnings or other financial performance or results of operations for any period, or any failure by such Party or any of its Subsidiaries to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood that the facts or occurrences giving rise to or contributing to such changes or failures may constitute, or be taken into account in determining whether there has been or will be, a Material Adverse Effect, to the extent not otherwise excluded from this definition); (j) any Transaction Litigation; or (k) with respect to a Company Material Adverse Effect or a Parent Material Adverse Effect, the identity of Parent or any of its Affiliates or the Company or any of its Affiliates, respectively; provided, that with respect to the exceptions set forth in clauses (a) through (e), if such Effect has had a disproportionate adverse effect on such Party and its Subsidiaries, taken as a whole, as compared to other companies operating in the office furniture and residential furnishing industries, then only the incremental disproportionate adverse effect of such Effect shall be taken into account when determining whether a “Material Adverse Effect” exists or has occurred. (Page 83) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_79 | provided, however, that no Effect <omitted> to the extent directly or indirectly resulting from, arising out of, attributable to, or related to any of the following shall be deemed to be or constitute a “Material Adverse Effect” (Page 83) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_87 | provided that, in determining whether a Material Adverse Effect has occurred, there shall be excluded any effect to the extent attributable to or resulting from: (A) changes in Legal Requirements and the interpretation of such Legal Requirements by courts or governmental authorities; (B) changes in GAAP or regulatory accounting requirements; (C) changes or events generally affecting banks, bank holding companies or financial holding companies, or the economy or the financial, securities or credit markets, including changes in prevailing interest rates, liquidity and quality, currency exchange rates, price levels or trading volumes in the U.S. or foreign securities markets; (D) changes in national or international political or social conditions including the engagement by the United States in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence of any military or terrorist attack upon or within the United States; (E) the effects of any quarantine, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure, safety or any other Law, order, directive, guideline, guidance or recommendation promulgated by any Governmental Entity, including the Centers for Disease Control and Prevention and including the World Health Organization, in response to or relating in any way to the novel coronavirus disease, COVID-19 virus (SARS-COV-2) (or any mutation or variation thereof or related health condition, or any related or associated epidemics, pandemics or disease outbreaks); and (F) the effects of the actions expressly permitted or required by this Agreement or that are taken with the prior written consent of the other party in contemplation of the Contemplated Transactions, including the costs and expenses associated therewith, including Transaction Costs, Severance Costs, and the response of customers, vendors, licensors, investors, or employees; except with respect to clauses (A), (B), (C), (D) and (E), to the extent that the effects of such change are materially disproportionately adverse to the financial condition, results of operations or business of such party and its Subsidiaries, taken as a whole, as compared to other companies in the industry in which such party and its Subsidiaries operate. (Page 57) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_87 | provided that, in determining whether a Material Adverse Effect has occurred, there shall be excluded any effect to the extent attributable to or resulting from (Page 57) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_88 | provided, however, that, solely for purposes of a Company Material Adverse Effect under this clause (ii), any Effect (by itself or when aggregated and taken together with any and all other Effects) to the extent directly or indirectly arising out, resulting from, attributable to or related to any of the following shall not be deemed to be or constitute a Company Material Adverse Effect or be taken into account in determining whether such a Company Material Adverse Effect has occurred or would reasonably be expected to occur (except as otherwise provided herein): (1) any change in general U.S. or global economic conditions, or conditions in the global economy generally;
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(2) any change in the general conditions of the health care, health insurance or managed care industries or any other industry in which any Company Entity operates; (3) any change in general legal, regulatory, legislative or political conditions or in securities, credit, financial, debt or other capital markets, in each case, in the United States or any foreign jurisdiction, including any change in currency exchange rate, interest rates, monetary policy or inflation; (4) any change in applicable Law, GAAP or Applicable SAP (or authoritative interpretations of any of the foregoing) after the date hereof, or any change to the extent resulting from any action taken for the purpose of complying with any of the foregoing; (5) any change in geopolitical conditions, the outbreak or escalation of hostilities, any acts of war, sabotage, civil disobedience or terrorism, or any escalation or worsening of any such acts of war, sabotage, civil disobedience or terrorism; (6) any hurricane, earthquake, flood or other natural disasters, acts of God, any change resulting from weather conditions or pandemics (including the existence and impact of the COVID-19 pandemic); (7) (A) the execution and delivery hereof, the public announcement, pendency or anticipated consummation hereof, the Merger or any other transaction contemplated hereby, including the impact thereof on the relationships with (which, for the avoidance of doubt, shall include the termination of any Contracts with) customers, suppliers, vendors, distributors, partners and other third parties with whom the Company has a business or contractual relationship, (B) the Company having performed or complied with its covenants and agreements hereunder (except for performance or compliance with Section 5.1(a)), including the failure to take any action specifically prohibited hereunder (and for which Parent has declined to consent) or (C) the taking of any action at the written request of or with the prior written consent of Parent; (8) any decline, in and of itself, in the trading price or trading volume of the Company Common Stock or any failure by the Company to meet any internal or published projections, forecasts, estimates or predictions of revenues, earnings or other financial or operating metrics for any period or any reduction in the credit rating of the Company or any Company Subsidiary (provided that any Effect giving rise to or contributing to such decline, failure or reduction that is not otherwise excluded by the foregoing clauses (1)–(7) may be a Company Material Adverse Effect and may be taken into account in determining whether a Company Material Adverse Effect has occurred or whether a Company Material Adverse Effect would reasonably be expected to occur); or
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(9) any Company Stockholder Litigation; provided, however, that any Effect directly or indirectly arising from, resulting from or related to the matters referred to in the foregoing clauses (1)–(6) may be taken into account in determining whether a Company Material Adverse Effect has occurred or whether a Company Material Adverse Effect would reasonably be expected to occur, in each case, to the extent that such Effect has a disproportionate adverse effect on the Company Entities, taken as a whole, relative to the adverse effects thereof on other similarly situated companies operating in the industries in which the Company Entities operate. (Pages 38-39) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_88 | provided, however, that, solely for purposes of a Company Material Adverse Effect under this clause (ii), any Effect <omitted> to the extent directly or indirectly arising out, resulting from, attributable to or related to any of the following shall not be deemed to be or constitute a Company Material Adverse Effect (Pages 38-39) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_90 | “Company Material Adverse Effect” shall mean any state of fact, event, change, effect, circumstance, occurrence or development that is materially adverse <omitted> , excluding any event, change, effect, circumstance, occurrence or development that results from or arises out of: (a) changes after the date of this Agreement in GAAP or the authoritative interpretation thereof; (b) changes after the date of the Agreement in applicable Legal Requirements; (c) general economic, business, financial, capital market or political conditions; (d) changes generally affecting the industry in which the Company and its Subsidiaries participates; (e) the outbreak or escalation of hostilities, any acts of war, sabotage, terrorism or military actions (or any escalation or worsening of any such hostilities, acts of war, sabotage, terrorism or military actions), or the continuation or worsening of the COVID-19 pandemic; (f) the negotiation, announcement or pendency of this Agreement, the Merger or the other transactions contemplated by this Agreement (provided that this clause “(f)” shall not apply to any representation or warranty in Section 2.19 to the extent that the purpose of such representation or warranty is to address the consequences resulting from the execution and delivery of this Agreement or the consummation of the Merger); (g) the Company’s failure to meet public estimates or forecasts of revenues, earnings or other financial metrics, in and of itself, or the failure to meet internal projections, forecasts or budgets of revenues, earnings or other financial metrics, in and of itself, provided that in each case the underlying cause or causes may be taken into account in determining whether there has been or would reasonably be expected to be a Company Material Adverse Effect, to the extent otherwise permitted by this definition; (h) any decline in the Company’s stock price or any decline in the market price or trading volume of the Company Common Stock on Nasdaq, in and of itself, or the suspension of trading in or delisting of the Company Common Stock on Nasdaq, provided, that in each case the underlying cause or causes may be taken into account in determining whether there has been or would reasonably be A-3
expected to be a Company Material Adverse Effect, to the extent otherwise permitted by this definition; (i) any action taken or omitted to be taken at the written request of Parent or the taking of any action required by this Agreement; (j) any lawsuit commenced by a stockholder of the Company (in his, her or its capacity as a stockholder) alleging breach of fiduciary duty in connection with the execution of the Agreement or the consummation of the transactions contemplated by the Agreement, except, in the case of each of clauses “(a),” “(b),” “(c),” “(d),” and “(e)” of this proviso, to the extent that such changes have a disproportionate adverse impact on the Company and its Subsidiaries relative to other participants in the industries in which the Company and its Subsidiaries operate, in which case the incremental disproportionate impact or impacts may be taken into account in determining whether there has been or would reasonably be expected to be a Company Material Adverse Effect. (Pages 81-82) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_90 | “Company Material Adverse Effect” shall mean any <omitted> effect <omitted> that is materially adverse <omitted> , excluding any <omitted> change <omitted> that results from or arises out of (Pages 81-82) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_92 | excluding any effect, change, condition, state of fact, development, occurrence or event to the extent resulting from or arising out of (i) general economic or political conditions in the United States or any foreign jurisdiction in which RemainCo or any of its RemainCo Subsidiaries or Minority Investment Entities conduct business or in securities, credit or financial markets, including changes in interest rates and changes in exchange rates, (ii) changes or conditions generally affecting the industries, markets or geographical areas in which the Company or any of its Subsidiaries or Minority Investment Entities operates, (iii) any rulemakings or Proceedings before the FCC that generally affect the broadcast television industry, (iv) outbreak or escalation of hostilities, acts of war (whether or not declared), terrorism or sabotage, or other changes in geopolitical conditions, including any material worsening of such conditions threatened or existing as of the date hereof, (v) any epidemics, pandemics (including the COVID-19 or any COVID-19 Measures), natural disasters (including hurricanes, tornadoes, floods or earthquakes) or other force majeure events or any escalation or worsening of any of the foregoing, (vi) any failure by RemainCo or its RemainCo Subsidiaries or Minority Investment Entities to meet any internal or published (including analyst) projections, expectations, forecasts or predictions in respect of the Company’s revenue, earnings or other financial performance or results of operations, or any failure by the Company to meet its internal budgets, plans or forecasts of its revenue, earnings or other financial performance or results of operations 4
(provided that the underlying effect, change, condition, state of fact, development, occurrence or event giving rise to or contributing to such failure shall be included and considered), (vii) changes after the date hereof in GAAP or the interpretation thereof or the adoption, implementation, promulgation, repeal, modification, amendment, reinterpretation, change or proposal of any Law applicable to the operation of the business of the Company or any of its Subsidiaries or Minority Investment Entities, (viii) the taking of any action by the Company expressly required by, or the Company’s failure to take any action expressly prohibited by, this Agreement, (ix) any change in the market price or trading volume of the Company’s securities (provided that the underlying effect, change, condition, state of fact, development, occurrence or event giving rise to or contributing to such change shall be considered), and (x) other than, in each case, with respect to any representation, warranty, or covenant set forth in this Agreement that is intended to address the consequences of the execution or delivery of this Agreement or the announcement or consummation of the transactions contemplated hereby, including, but not limited to, the representations and warranties set forth in Section 3.3, Section 3.4, and the conditions set forth in Section 8.2(a) to the extent relating to such representations and warranties, the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, or the public announcement or pendency of this Agreement or the Merger, including any resulting loss or departure of officers or other employees of RemainCo or any of its RemainCo Subsidiaries or Minority Investment Entities, or the termination or reduction (or potential reduction) or any other resulting negative development in RemainCo’s or any of its RemainCo Subsidiaries’ or Minority Investment Entities’ relationships, contractual or otherwise, with any of its advertisers, customers, suppliers, distributors, licensees, licensors, lenders, business partners, employees or regulators, including the FCC (in each case excluding any breach of this Agreement by the Company or its Affiliates); provided that in the cases of clauses (i), (ii), (iii), (iv), (v) and (vii), any effect, change, condition, development, or event may be considered to the extent it disproportionately affects the Company and the RemainCo Subsidiaries and the Minority Investment Entities relative to the other participants in the television broadcast industry. (Pages 8-9) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_92 | excluding any effect, change, condition, state of fact, development, occurrence or event to the extent resulting from or arising out of (Pages 8-9) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_85 | provided, however, that none of the following, nor any fact, circumstance, effect, change, event or development to the extent arising out of or relating to the following, shall constitute or be taken 65
into account in determining whether a “Company Material Adverse Effect” has occurred or may, would or could occur under the foregoing clause (b) only: (i) general economic or political conditions or securities, credit, financial or other capital markets conditions, in each case, in the United States or any foreign jurisdiction, (ii) any failure, in and of itself, by the Company to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the facts or occurrences giving rise to or contributing to such failure may be deemed to constitute, or be taken into account in determining whether there has been or will be, a Company Material Adverse Effect to the extent permitted by this definition and not otherwise excepted by a clause of this proviso), (iii) the execution and delivery of this Agreement or the public announcement or pendency of the Transactions, including (x) the impact thereof on the relationships, contractual or otherwise, of the Company or any Company Subsidiary, as applicable, with employees, labor unions, customers, suppliers or partners and (y) any stockholder litigation with respect thereto, (iv) any change, in and of itself, in the market price or trading volume of the securities of the Company or in the credit ratings of the Company (it being understood that the facts or occurrences giving rise to or contributing to such change may be deemed to constitute, or be taken into account in determining whether there has been or will be, a Company Material Adverse Effect to the extent permitted by this definition and not otherwise excepted by a clause of this proviso), (v) any change in applicable Law, regulation or GAAP (or authoritative interpretation thereof), (vi) geopolitical conditions, the outbreak or escalation of hostilities, any acts of war, sabotage, cyberattack or terrorism, or any escalation or worsening of any such acts of war, sabotage, cyberattack or terrorism threatened or underway as of the date of this Agreement, (vii) any epidemic, pandemic (including COVID-19) or other outbreak of illness or public health event, any COVID-19 Measures, (viii) any hurricane, tornado, flood, fire, earthquake or other natural or manmade disaster, (ix) changes or conditions generally affecting the industries, businesses or segments thereof, in which the Company or any Company Subsidiary operate (x) any taking of any action (or omitting to take any action) at the request of the other party hereto or (xi) any breach of this Agreement or any taking of any action (or omitting to take any action) by Parent or any of its Subsidiaries; except, in the case of clauses (i), (v), (vi), (vii), (viii) and (ix), to the extent such fact, circumstance, effect, change, event or development has a materially disproportionate effect on the Company and the Company Subsidiaries, taken as a whole, relative to others in the industries and regions in which the Company and the Company Subsidiaries operate in respect of the businesses conducted in such industries in such regions. (Pages 70-71) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_85 | provided, however, that none of the following, <omitted> arising out of or relating to the following, shall constitute <omitted> a “Company Material Adverse Effect” (Pages 70-71) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_86 | provided, however, that none of the following, and no Effect arising out of or resulting from the following shall constitute or be taken into account in determining whether there has been, a “Company Material Adverse Effect”: (a) the entry into this Agreement, the announcement or pendency of this Agreement or the Transactions, the performance of this Agreement or the pendency or consummation of the Transactions, in each case, including (i) by reason of the identity of, or any facts or circumstances relating to, Parent, Sub or any of their respective affiliates and (ii) the impact of any of the foregoing on any of the Company’s or any of the Company Subsidiaries’ relationships (contractual or otherwise) with respect to customers, suppliers, vendors, business partners or employees (it being understood and agreed that this clause (a) shall not apply with respect to any representation or warranty the purpose of which is to address the consequences of the execution and delivery o f this Agreement or the consummation of the transactions contemplated hereby, or the performance of obligations hereunder or thereunder); (b) any Effect affecting the economy or the financial, credit or securities markets in the United States or elsewhere in the world (including interest rates and exchange rates or any changes therein), or any Effect affecting any business or industries in which the Company or any of the Company Subsidiaries operates; (c) the suspension of trading in securities generally on Nasdaq (but not the underlying cause of such suspension, unless such underlying cause would otherwise be excepted from this definition); (d) any development or change in applicable Law (after the date of this Agreement), including COVID-19 Measures, or GAAP or other applicable accounting standards or the interpretation of any of the foregoing (it being understood and agreed that this clause (d) shall not apply with respect to any representation or warranty the purpose of which is to address compliance with applicable Laws or GAAP); (e) any action taken by the Company or any of the Company Subsidiaries at the written request of Parent that is not expressly required to be taken by the terms of this Agreement, the taking of any action expressly required by the terms of this Agreement (other than pursuant to clause (1) or (2) of Section 5.01), or the failure of the Company to take any action that the Company is expressly prohibited by the terms of the Agreement from taking; (f) the commencement, occurrence, continuation or escalation of any armed hostilities, sabotage or acts of war (whether or not declared) or terrorism, or any escalation or worsening of acts of terrorism, armed hostilities or war; (g) any actions or claims made or brought by any of the current or former shareholders of the Company (or on their behalf or on behalf of the Company, but in any event only in their capacities as current or former shareholders) arising out of this Agreement or any of the Transactions; (h) the existence, occurrence, continuation or escalation of any acts of God, force majeure events, any earthquakes, floods, hurricanes, tropical storms, fires or other natural disasters or weather-related events or any national, international or regional calamity or any civil unrest or any disease outbreak, pandemic or epidemic, including COVID-19; (i) any public comments or other public communications by Parent or Sub of its express intentions with respect to the Company or any Company Subsidiary, including any public communications to any employees of the Company or any Company Subsidiary; or (j) any changes in the market price or trading volume of the Shares, in and of itself, or any changes in the ratings or the ratings outlook for the Company or any of the Company Subsidiaries by any applicable rating agency or changes in any analyst’s recommendations or ratings with respect to the Company or any of the Company Subsidiaries, or any failure of the Company or any Company Subsidiary to meet any internal or external projections, budgets, guidance, forecasts or estimates of revenues, earnings or other financial results or metrics for any period, in and of itself (but not, in each case of this clause (j), the underlying cause of any such change or failure, unless such underlying cause would otherwise be excepted from this definition) (provided, that this clause (j) shall not be construed as implying that the Company is making any representation or warranty with respect to any internal or external projections, budgets, guidance, forecasts or estimates of revenues, earnings or other financial results or metrics for any period); provided, further, that with respect to the foregoing clauses (b), (c), (d), (f) and (h), any such Effect shall not be prohibited from being taken into account in determining whether a Company Material Adverse Effect has occurred if it disproportionately adversely affects the Company and the Company Subsidiaries, taken as a whole, compared to other companies operating primarily in the same industries in which the Company and the Company Subsidiaries operate, (Page 30) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_86 | provided, however, that none of the following, and no Effect arising out of or resulting from the following shall constitute <omitted> a “Company Material Adverse Effect”: (Page 30) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_96 | provided, however, in no event shall any of the following events, changes, effects, developments, states of facts, conditions, circumstances or occurrences be deemed to constitute, nor be taken into account in determining whether there has been or may be, a Company Material Adverse Effect: (a) changes in or affecting general political or economic conditions (including changes in interest rates) or the financial, credit, or securities markets in the United States or elsewhere in the world; (b) changes in or conditions generally affecting the industries in which the Acquired Companies operate; or (c) resulting from or arising out of (i) the announcement of, or taking any action expressly required by this Agreement or the Transactions (provided, if any of the foregoing results in a breach of Section 3.3 or Section 3.4 of this Agreement, the effects that result from or arise out of such breach shall not be disregarded in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur), (ii) any taking of any action at the written request of Parent or Merger Sub, solely to the extent so requested, (iii) change in Law, GAAP or SAP or accounting standards or interpretations thereof after the date hereof, (iv) any outbreak or escalation of hostilities or acts of war or terrorism or epidemics or pandemics, (v) weather or climate conditions, including any earthquakes, floods, hurricanes, tropical storms, fires or other natural disasters, or (vi) any Action initiated or threatened on or after the date hereof by any stockholders of the Company against the Company, any of its Affiliates or any of their respective directors or officers arising out of this Agreement or the Transactions, (vii) any change in the price or trading volume of any securities of the Company, in the Company’s credit rating, financial strength rating or in any analyst’s recommendations, in each case in and of itself, or the failure of the Company to meet any projections or forecasts (provided in the case of this clause (vii), that the event, change, effect, development, condition, circumstance, cause or occurrence underlying such change or failure shall not be excluded and may be taken into account, in determining whether there has been or may be a Company Material Adverse Effect); provided, that any event, change, effect, development, state of facts, condition, circumstance or occurrence referred to in clauses (a), (b) or (c)(iii), (iv) or (v) shall not be excluded, and may be taken into account, in determining whether there has been or may be a Company Material Adverse Effect to the extent the Acquired Companies are adversely affected thereby in a disproportionate manner relative to other similarly- situated participants in the industries in which the Acquired Companies operate; (Page 72) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_96 | provided, however, in no event shall any of the following events <omitted> be deemed to constitute <omitted> a Company Material Adverse Effect: <omitted> (c) resulting from or arising out of (Page 72) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_97 | provided that none of the following shall constitute or be taken into 8
account in determining whether there has been, is or would be a Material Adverse Effect: (i) any change, event, occurrence or effect affecting the industries in which the Company or any of its Subsidiaries operate or in which their products are used or distributed; (ii) any change, event, occurrence or effect in global, national or regional political conditions (including any acts of war (whether or not declared), civil disobedience, political conditions (including trade practices and policies, regulatory conditions, elections and proclamations of public officials), hostilities, sabotage, terrorism, military or police actions or the escalation of any of the foregoing (whether perpetrated or encouraged by a state or non-state actor or actors)); (iii) any change, event, occurrence or effect in currency exchange, interest or inflation rates or in general economic, business, regulatory, political or market conditions or in national or global financial or capital markets; (iv) any adoption, proposal, implementation or change in Applicable Law or any interpretation of Applicable Law by any Governmental Authority; (v) any change in GAAP (or comparable applicable national accounting standards) or the implementation or interpretation thereof; (vi) any hurricane, flood, tornado, earthquake, or other weather or natural disaster, or any national or global outbreak of illness or other national or global public health event (including COVID-19) and the governmental responses thereto (including any COVID-19 Measures); (vii) any matter that has been disclosed in the Company Disclosure Schedule; (viii) any actions required to be taken or to not be taken, as the case may be, by the Company or any of its Subsidiaries pursuant to this Agreement or any action taken (or omitted to be taken) at the written request of Parent or taken with Parent’s written consent; (ix) any actions taken by Parent or any of its Affiliates or representatives; (x) the negotiation, execution, announcement or performance of this Agreement, the Support Agreements and the transactions contemplated by this Agreement, including any change related to the identity of Parent, or facts and circumstances relating thereto, any loss or 9
threatened loss of, or adverse change or threatened adverse change in, the relationship of the Company or any of its Subsidiaries with any of their current or prospective suppliers, customers, wholesalers, service providers, distributors, licensors, licensees, regulators, employees, creditors, stockholders or other third parties; provided that the exception in this clause (x) shall not apply to the term “Material Adverse Effect” as used in Section 4.04(b); (xi) any change in the market price or trading volume of any securities of the Company (it being understood that any cause underlying such change in market price (other than any change, event, occurrence or effect described in clauses (i) through (x) and clauses (xii) through (xiii)) may be taken into account in determining whether a Material Adverse Effect has occurred); (xii) the failure of the Company or its Subsidiaries to meet any internal or public projections, forecasts, guidance or estimates, including revenues or earnings (it being understood that any cause underlying such failure (other than any change, event, occurrence or effect described in clauses (i) through (xi) and clause (xiii)) may be taken into account in determining whether a Material Adverse Effect has occurred); and (xiii) any change in the credit ratings of the Company or any of its Subsidiaries (it being understood that any cause underlying such change in credit rating (other than any change, event, occurrence, or effect described in clauses (i) through (xii)) may be taken into account in determining whether a Material Adverse Effect has occurred);
provided that with respect to clauses (i) through (vi), such exclusion shall only be applicable to the extent such matter does not have a materially disproportionate effect on the Company and its Subsidiaries, taken as a whole, relative to other companies in the industries in which the Company or its Subsidiaries operate that are of a similar size to the Company and its Subsidiaries, in which case such change, event, occurrence or effect shall be taken into account only to the extent of such materially disproportionate effect on the Company and its Subsidiaries taken as a whole. (Pages 12-14) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_97 | provided that none of the following shall constitute <omitted> a Material Adverse Effect: <omitted> including any change related to <omitted> or facts and circumstances relating thereto, (Pages 12-14) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_106 | provided, however, that none of the following effects, circumstances, occurrences or changes shall be considered when determining if a Company Material Adverse Effect has occurred: (A) any change in Law or GAAP or interpretations thereof (except to the extent that, with respect to this clause (A), such effect, circumstance, occurrence or change disproportionately adversely affects the Company and its Subsidiaries compared to other companies of similar size operating in the commercial banking industry in which the Company operates, in which case only the disproportionate effect will be taken into account); (B) effects resulting from worsening of geopolitical conditions in the United States or acts of war, sabotage or terrorism (including any escalation or general worsening of any such acts of war, sabotage or terrorism) in the United States or any other country in which the Company and any of its Subsidiaries conduct material operations; (C) any change in market price or trading volume of Company Common Stock (except to the extent that, with respect to this clause (C), the facts or circumstances giving rise or contributing to such change may be deemed to constitute, or be taken into account in determining whether there has been, a Company Material Adverse Effect, except to the extent such facts or circumstances are themselves excepted from the definition of Company Material Adverse Effect pursuant to any other clause of this definition); (D) any action taken by the Company with Parent’s express written consent or any action taken by the Company that the Company was expressly required to take pursuant to the terms of this Agreement; (E) any failure, in and of itself, by the Company to meet internal or other estimates, predictions, projections or forecasts of revenue, net income or any other measure of financial performance (except to the -4-
extent that, with respect to this clause (E), the facts or circumstances giving rise or contributing to failure to meet estimates or projections may be deemed to constitute, or be taken into account in determining whether there has been, a Company Material Adverse Effect, except to the extent such facts or circumstances are themselves excepted from the definition of Company Material Adverse Effect pursuant to any other clause of this definition); (F) changes in economic conditions affecting commercial banks generally (except to the extent that with respect to this clause (F), such change in economic condition disproportionately adversely affects the Company and its Subsidiaries, compared to other companies in California of similar size operating in the commercial banking industry in which the Company operates, in which case only the disproportionate effect will be taken into account); (G) for purposes of the condition set forth in Section 6.03(e), those matters disclosed in the Company Disclosure Schedule consistent with the standard set forth in Section 4.01(a) and based on the information on those matters provided on or prior to the date hereof (for the avoidance of doubt, except to the extent of any adverse developments with respect to such matters that arise after the date hereof); or (H) changes in relationships with customers or employees of the Company and its Subsidiaries that were primarily the result of the announcement or public disclosure of this Agreement and the transactions contemplated hereby. (Pages 7-8) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_106 | provided, however, that none of the following effects, <omitted> shall be considered when determining if a Company Material Adverse Effect has occurred: <omitted> (B) effects resulting from (Pages 7-8) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_110 | provided, however, that no Effect, to the extent resulting or arising from the following, individually or in the aggregate with any one or more other Effects, shall constitute or shall be considered in determining whether there has occurred a Company Material Adverse Effect: (A) changes in general economic, regulatory, political, business, financial, congressional appropriation or market conditions in the United States or elsewhere in the world; (B) changes in the credit, debt, financial or capital markets or in interest or exchange rates, in each case, in the United States or elsewhere in the world; (C) changes in conditions generally affecting the industry in which the Company and the Company Subsidiaries operate, including changes in Governmental Entity funding level or program changes; (D) any outbreak of any military conflict, declared or undeclared war, armed hostilities, or acts of foreign or domestic terrorism (including cyber-terrorism); (E) any epidemic, plague, pandemic or other outbreak of illness or public health event (including COVID-19), hurricane, flood, tornado, earthquake or other natural disaster or act of God (or any worsening of any of the foregoing), including, in each case, the response of governmental and non-governmental entities (including COVID-19 Measures); (F) any failure by the Company or any of the Company Subsidiaries to meet any internal or external projections or forecasts, any change in the market price or trading volume of Company Common Stock or any change in the Company’s credit rating (but excluding, in each case, the underlying causes of such failure or decline, as applicable, unless such underlying causes would otherwise be excepted from this definition); (G) the public announcement, pendency or performance of the Transactions or the identity of, or any facts or circumstances relating to Parent, Merger Sub or their respective Affiliates, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, lenders, investors, licensors, licensees, venture partners or employees (other than, in each case, for purposes of any representation or warranty set forth in Section 4.4, Section 4.5 or Section 4.11(i)); (H) changes in, including any actions taken to comply with any change in, applicable Laws or the interpretation thereof; (I) changes in, including any actions taken to comply with any change in, GAAP or any other applicable accounting standards or the interpretation thereof; (J) any action required or specifically permitted to be taken by the Company pursuant to the terms of this Agreement or taken at the prior written direction of Parent or Merger Sub; (K) any breach of this Agreement by Parent or Merger Sub; or (L) any litigation or other Proceeding brought by any stockholder of the Company (or a derivative or similar claim) in connection with this Agreement or any of the Transactions to the extent asserting breach of fiduciary duty, inadequate disclosure or violations of applicable securities Law claims; provided, further, that any Effect arising out of or resulting from any change or event referred to in clause (A), (B), (C), (D), (E), (H) or (I) above may constitute, and be taken into account in determining the occurrence of, a Company Material Adverse Effect if and only to the extent that such change or event has a disproportionate adverse impact on the Company and the Company Subsidiaries as compared to any other participants that operate in the industries in which the Company and the Company Subsidiaries operate. (Page 9) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_110 | provided, however, that no Effect, to the extent resulting or arising from the following <omitted> shall be considered in determining whether there has occurred a Company Material Adverse Effect: (Page 9) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_111 | provided, however, that none of the following (by itself or when aggregated) will be deemed to be or constitute a Company Material Adverse Effect or will be taken into account when determining whether a Company Material Adverse Effect has occurred or may, would or could occur (subject to the limitations set forth below): (i) changes in general economic conditions in the United States or any other country or region in the world, or changes in conditions in the global economy generally; (ii) changes in conditions in the financial markets, credit markets or capital markets in the United States or any other country or region in the world, including (1) changes in interest rates or credit ratings in the United States or any other country; (2) changes in exchange rates for the currencies of any country; or (3) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world; (iii) changes in conditions in the industries in which the Company Group generally conducts business, including changes in conditions in the cloud computing industry; (iv) changes in regulatory, legislative or political conditions in the United States or any other country or region in the world; -5-
(v) any geopolitical conditions, outbreak of hostilities, acts of war, sabotage, terrorism or military actions (including any escalation or general worsening of any such hostilities, acts of war, sabotage, terrorism or military actions) in the United States or any other country or region in the world; (vi) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions, epidemics, pandemics or disease outbreaks (including COVID-19) and other force majeure events in the United States or any other country or region in the world; (vii) any COVID-19 Measures, including any Effect with respect to COVID-19 Measures; (viii) any Effect resulting from the announcement of this Agreement or the pendency of the Offer or the Mergers and the transactions contemplated hereby, including the impact thereof on the relationships, contractual or otherwise, of the Company Group with employees, suppliers, customers, partners, vendors or any other third Person (other than for purposes of any representation or warranty contained in Section 3.5); (ix) the compliance by any Party with the terms of this Agreement, including any action taken or refrained from being taken pursuant to or in accordance with this Agreement; (x) any action taken or refrained from being taken, in each case to which Parent I has expressly approved, consented to or requested in writing following December 11, 2020; (xi) changes or proposed changes in GAAP or other accounting standards or in any applicable laws or regulations (or the enforcement or interpretation of any of the foregoing); (xii) changes in the price or trading volume of the Company Common Stock, in and of itself (it being understood that any cause of such change may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration when determining whether a Company Material Adverse Effect has occurred); (xiii) any failure, in and of itself, by the Company Group to meet (A) any public estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period; or (B) any internal budgets, plans, projections or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood that any cause of any such failure may be deemed to constitute, in and of itself, a Company Material Adverse Effect and may be taken into consideration when determining whether a Company Material Adverse Effect has occurred); (xiv) the availability or cost of equity, debt or other financing to the Buyer Parties; (xv) any Transaction Litigation or other Legal Proceeding threatened, made or brought by any of the current or former Company Stockholders (on their own behalf or on behalf of the Company) against the Company, any of its executive officers or other employees or any member of the Company Board arising out of the Offer, the Mergers or any other transaction contemplated by this Agreement (including the Original Agreement); and (xvi) any matters expressly disclosed in the Company Disclosure Letter; except, with respect to clauses (i), (ii), (iii), (iv), (v), (vi) and (xi), to the extent that such Effect has had a materially disproportionate adverse effect on the Company relative to other companies of a similar size operating in the industries in which the Company Group conducts business, in which case only the incremental disproportionate adverse impact may be taken into account in determining whether there has occurred a Company Material Adverse Effect. (Pages 9-10) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_111 | provided, however, that none of the following (by itself or when aggregated) will be deemed to be or constitute a Company Material Adverse Effect or will be taken into account when determining whether a Company Material Adverse Effect has occurred or may, would or could occur (subject to the limitations set forth below): <omitted> (viii) any Effect resulting from (Pages 9-10) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_105 | provided, however, that no Effect to the extent, directly or indirectly, resulting or arising from or related to any of the following shall be deemed to constitute a Company Material Adverse Effect, or be taken into account, in whole or in part, in determining whether, a Company Material Adverse Effect has occurred or may, would or could occur: (i) changes generally affecting the economy, financial or securities markets, or political conditions; (ii) the announcement, or pendency or consummation of the transactions contemplated by this Agreement, including the impact thereof on relationships, contractual or otherwise, of the Company and its Subsidiaries with employees, suppliers, customers, Governmental Entities, or other third Persons (it being understood and agreed that this clause shall not apply with respect to Section 4.03(b) or Section 4.03(c)); (iii) any changes in applicable Law (including COVID-19 Measures) or GAAP or other applicable accounting standards, including interpretations thereof, (iv) acts of war, sabotage, or terrorism, or military actions, or the escalation thereof; (v) natural disasters, weather conditions, epidemics, pandemics, or disease outbreaks (including COVID-19) or public health emergencies (as declared by the World Health Organization or the Health and Human Services Secretary of the United States); (vi) general conditions in the industry in which the Company and its Subsidiaries operate; (vii) any failure, in and of itself, by the Company to meet any internal or published projections, forecasts, estimates, or predictions in respect of revenues, earnings, or other financial or operating metrics for any period (it being understood that the facts or occurrences giving rise to or contributing to such failure may be deemed to constitute, or be taken into account in determining whether there has been or would reasonably be expected to become, a Company Material Adverse Effect, to the extent permitted by this definition and not otherwise excepted by another clause of this proviso); (viii) any change, in and of itself, in the market price or trading volume of the Company’s securities or in its credit ratings (it being understood that the facts or occurrences giving rise to or contributing to such change may be deemed to constitute, or be taken into account in determining whether there has been or would reasonably be expected to become, a Company Material Adverse Effect, to the extent permitted by this definition and not otherwise excepted by another clause of this proviso); or (ix) actions taken as required by the Agreement or actions or omissions taken with Parent’s consent; provided further, however, that any Effect resulting from any event, change, and effect referred to in clauses (i), (iii), (iv), (v), or (vi) immediately above (excluding any Effect arising from, resulting from or related to COVID-19 or any COVID-19 Measure) shall be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur to the extent that such event, change, or effect has a disproportionate effect on the Company and its Subsidiaries, taken as a whole, compared to other participants in the industries in which the Company and its Subsidiaries conduct their businesses. (Page 10) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_105 | provided, however, that no Effect <omitted> resulting or arising from or related to any of the following shall be deemed to constitute a Company Material Adverse Effect (Page 10) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_112 | provided, however, that Material Adverse Effect shall not be deemed to include the impact of (a) changes, after the date hereof, in GAAP or applicable bank regulatory accounting requirements; (b) changes, after the date hereof, in laws, rules or regulations (including the Pandemic Measures) of general applicability to companies in the industries in which the party and its Subsidiaries operate, or interpretations thereof by courts or Governmental Authorities; (c) changes, after the date hereof, in global, national or regional political conditions (including the outbreak of war or acts of terrorism) or in economic or market (including equity, credit and debt markets, as well as changes in interest rates) conditions affecting the financial services industry generally and not specifically relating to the party or its Subsidiaries (including any such changes arising out of the Pandemic or any Pandemic Measures); (d) changes, after the date hereof, resulting from hurricanes, earthquakes, tornados, floods or other natural disasters or from any outbreak of any disease or other public health event (including the Pandemic); (e) public disclosure of the execution of this Agreement, or (except in the case of the representations contained in Sections 5.01(c)(ii), 5.01(d), 5.02(d)(ii) and 5.02(e)) consummation of the transactions contemplated hereby (including any effect on a party’s relationships with its customers or employees) or actions expressly required by this Agreement in contemplation of the transactions contemplated hereby; (f) a decline in the trading price of a party’s common stock, in and of itself, or the failure, in and of itself, to meet earnings projections or internal financial forecasts (it being understood that the underlying cause of such decline or failure may be taken into account in determining whether a Material Adverse Effect has occurred), and (g) the occurrence of any natural or man-made disaster; except, with respect to subclauses (a), (b), (c), (d) and (g), to the extent that the effects of the change are materially disproportionately adverse to the business, properties, assets, liabilities, results of operations or financial condition of the party and its Subsidiaries, taken as a whole, as compared to other companies in the industry in which the party and its Subsidiaries operate). (Page 8) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_112 | provided, however, that Material Adverse Effect shall not be deemed to include the impact of <omitted> (c) changes, <omitted> (including any such changes arising out of <omitted> (d) changes, <omitted> resulting from (Page 8) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_113 | provided, however, that for purposes of clause (x), any changes, effects, events, inaccuracies, occurrences, or other matters resulting from any of the following will not be deemed to constitute a Company Material Adverse Effect and will be disregarded in determining whether a Company Material Adverse Effect has occurred: (a) matters generally affecting the U.S. or foreign economies, financial or securities markets, or political, legislative, or regulatory conditions, or the industry in which the Company operates, except to the extent such matters have a materially disproportionate adverse effect on the Company relative to the impact on other companies in the industry in which the Company operates; (b) the announcement of this Agreement or the Contemplated Transactions; (c) any change in the market price or trading volume of the Shares; -56-
provided, that this exception will not preclude a determination that a matter underlying such change has resulted in or contributed to a Company Material Adverse Effect unless excluded under another clause; (d) acts of war or terrorism (including cyber attacks and computer hacking), national emergencies, natural disasters, force majeure events, weather or environmental events or health emergencies, including pandemics (including COVID-19) or epidemics (or the escalation of any of the foregoing), except to the extent such matters have a materially disproportionate adverse effect on the Company relative to the impact on other companies in the industry in which the Company operates; (e) changes in Laws or regulations, or the authoritative interpretations thereof, except to the extent such changes have a materially disproportionate adverse effect on the Company, relative to the impact on other companies in the industry in which the Company operates; (f) the performance of this Agreement and the Contemplated Transactions, including compliance with covenants set forth herein (excluding the requirement that the Company operate in the ordinary course of business), or any action taken or omitted to be taken by the Company at the request or with the prior written consent of Parent or Purchaser; (g) any adverse safety event, adverse regulatory development or other adverse development relating to or affecting the Company’s manufacturing process, clinical trials, product candidates or development timelines, except for any such events of developments arising from (i) fraud or (ii) if the FDA issues both (a) one or more orders that impose a clinical hold on the investigation of PR001 and (b) one or more orders that impose a clinical hold on the investigation of PR006, the result of which (both (a) and (b)) would reasonably be likely to result in a termination of, or a delay of 18 months or more in dosing patients in, both the PR001 program and the PR006 program; (h) the initiation or settlement of any legal proceedings commenced by or involving (A) any Governmental Body in connection with this Agreement or the Contemplated Transactions or (B) any holder of Shares (on their own or on behalf of the Company) arising out of or related to this Agreement or the Contemplated Transactions; (i) matters listed on the Company Disclosure Letter or in the Company SEC Documents, to the extent the effects or consequences thereof were known or reasonably foreseeable by Parent; or (j) any failure by the Company to meet any internal or analyst projections or forecasts or estimates of revenues, earnings, or other financial metrics for any period; provided, that, this exception will not preclude a determination that a matter underlying such failure has resulted in or contributed to a Company Material Adverse Effect unless excluded under another clause. (Pages 62-63) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_113 | provided, however, that for purposes of clause (x), any changes <omitted> resulting from any of the following will not be deemed to constitute a Company Material Adverse Effect (Pages 62-63) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_123 | provided that no events, developments, changes, effects, facts, conditions or occurrences relating to, arising out of or in connection with or resulting from any of the following shall be deemed, either alone or in combination, to constitute or contribute to a Material Adverse Effect: (i) general changes or developments in the economy or the financial, debt, capital, credit or securities markets, or in the regulatory, legislative or political conditions in the United States or elsewhere in the world, including as a result of changes in geopolitical conditions, (ii) general changes or developments in the industries in which the Company or its subsidiaries operate, (iii) the execution and delivery of this Agreement or the public announcement or pendency of the Merger or other transactions contemplated hereby, including any impact thereof on relationships, contractual or otherwise, with customers, lessors, suppliers, vendors, investors, lenders, partners, contractors or employees of the Company and its subsidiaries, or the performance of this Agreement and the transactions contemplated hereby, including compliance with the covenants set forth herein and any action taken or omitted to be taken by the Company at the express written request of or with the express written consent of Parent or Merger Sub (provided that this clause (iii) shall not apply to any representation or warranty set forth in Section 4.5 or compliance of the covenants set forth in Section 6.1) , (iv) changes or prospective changes in any applicable Laws or regulations or applicable accounting regulations or principles or interpretation or enforcement thereof, (v) any hurricane, cyclone, tornado, earthquake, flood, tsunami, wildfire, natural disaster, act of God, pandemic, epidemic or other comparable events or outbreak or escalation of hostilities or war (whether or not declared), military actions or any act of sabotage or terrorism, or national or international political or social conditions, (vi) COVID-19 or any Law or directive issued by a Governmental Entity providing for business closures, changes to business operations, “sheltering-in-place” or other restrictions that relate to, or arise out of, an epidemic, pandemic or disease outbreak (including the COVID-19 pandemic) or any change in such Law, directive or interpretation thereof following the date of this Agreement or the Company’s or any of its subsidiaries’ compliance therewith, (vii) any change in the price or trading volume of the Shares or the credit rating of the Company, in each case, in and of itself, (viii) any failure by the Company to meet any published analyst estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company to meet its internal or published projections, budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself and (ix) arising out of or relating to the identity of Parent or any of its Affiliates as the acquirer of the Company, including the impact thereof on the relationships, contractual or otherwise, of the Company and its subsidiaries with employees, suppliers, customers, partners, vendors or any other third Person (provided, that, for purposes of clauses (vii) and (viii), the facts, circumstances, events, developments, changes, effects or occurrences giving rise to or contributing to such change may be taken into account in determining whether there has been or will be a Material Adverse Effect to the extent such change or effect is not otherwise excluded from this definition of Material Adverse Effect); except in the cases of clauses (i), (ii), (iv), (v) or (vi), to the extent (and only to the extent) that the Company and its subsidiaries, taken as a whole, are disproportionately affected thereby as compared with other participants in the industries in which the Company and its subsidiaries operate (in which case only such incremental disproportionate impact may be taken into account in determining whether there has been a Material Adverse Effect); (Page 84) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_123 | provided that no events <omitted> relating to, arising out of or in connection with or resulting from any of the following shall be deemed <omitted> to constitute <omitted> a Material Adverse Effect: (Page 84) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_126 | provided, however, that no Effects to the extent resulting or arising from the following shall be deemed to constitute a Company Material Adverse Effect or shall be taken into account when determining whether a Company Material Adverse Effect exists or has occurred: (a) any changes in United States, regional, global or international economic conditions, including any changes affecting financial, credit, foreign exchange or capital market conditions; (b) any changes in conditions in the business collaboration technology industry; (c) any changes in political, geopolitical, regulatory or legislative conditions in the United States or any other country or region of the world; (d) any changes after the date hereof in GAAP or the interpretation thereof; (e) any changes after the date hereof in applicable Law or the interpretation thereof; (f) any failure by the Company to meet any internal or published projections, estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company to meet its internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (it being understood that the facts or occurrences giving rise or contributing to such failure that are not otherwise excluded from this definition of a “Company Material Adverse Effect” may be taken into account); (g) any acts of terrorism or sabotage, war (whether or not declared), the commencement, continuation or escalation of a war, acts of armed hostility, weather conditions, natural disasters, epidemics or pandemics (including the COVID-19 pandemic) or other force majeure events, including any material worsening of such conditions threatened or existing as of the date hereof; (h) the execution and delivery of this Agreement, the identity of Parent or any Parent Subsidiary, the pendency or consummation of this Agreement, the Mergers and the other Transactions, including the effect thereof on the relationships with current or prospective customers, suppliers, distributors, partners, financing sources, employees or sales representatives, or the public announcement of this Agreement or the Transactions, including any litigation arising out of or relating to this Agreement or the Transactions, in each case only to the extent resulting from the execution and delivery of this Agreement, the identity of Parent or any Parent Subsidiary, the pendency or consummation of this Agreement, the Mergers and the other Transactions, or the <omitted> public announcement of this Agreement and the Transactions, as applicable (provided that this clause (h) shall not apply to any representation or warranty to the extent the purpose of such representation or warranty is to address, as applicable, the consequences resulting from the execution and delivery of this Agreement, the pendency or consummation of this Agreement, the Mergers and the other Transactions); and (i) any action or failure to take any action which action or failure to act is requested in writing by Parent or otherwise expressly required by this Agreement (other than pursuant to Section 5.1(a)); provided that with respect to the exceptions set forth in clauses (a), (b), (c), (d), (e) and (g), if such Effect has had a disproportionate adverse effect on the Company or any Company Subsidiary relative to other companies operating in the business collaboration technology industry, then only the incremental disproportionate adverse effect of such Effect shall be taken into account for the purpose of determining whether a Company Material Adverse Effect exists or has occurred. (Pages 98-99) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_126 | provided, however, that no Effects to the extent resulting or arising from the following shall be deemed to constitute a Company Material Adverse Effect (Pages 98-99) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_150 | provided, however, that with respect to clause (i) only, no Effect to the extent resulting or arising from any of the following, shall, to such extent, be deemed to constitute, or be taken into account in determining the occurrence of, a Company Material Adverse Effect: (A) general economic, political, business, financial or market conditions affecting the industry in which the Company and its Subsidiaries operate; (B) geopolitical conditions, including trade and national security policies and export controls and executive orders relating thereto, any outbreak, continuation or escalation of any military conflict, declared or undeclared war, armed hostilities, or acts of foreign or domestic terrorism (including cyber-terrorism); (C) any pandemic (including the SARS-CoV-2 virus and COVID-19 disease), epidemic, plague, or other outbreak of illness or public health event, hurricane, flood, tornado, earthquake or other natural disaster or act of God or changes resulting from weather conditions; (D) any failure by the Company or any of its Subsidiaries to meet any internal or external projections or forecasts or any decline in the price of Company Common Stock (but excluding, in each case, the underlying causes of such failure or decline, as applicable, which may themselves constitute or be taken into account in determining whether there has been, or would be, a Company Material Adverse Effect); (E) the public announcement or pendency of the Merger and the other transactions contemplated hereby, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, business partners or employees (provided that this clause (E) shall not apply to (x) any representation or warranty in Section 2.6 to the extent that the purpose of such representation or warranty is to address the consequences resulting from the execution and delivery of this Agreement or the consummation of the Merger or (y) any action or omission by the Company, any Company Subsidiary or their respective Representatives in order to comply with the Company’s obligations under Section 4.1(a)); (F) changes in applicable Legal Requirements or the interpretation thereof; (G) changes in GAAP or any other applicable accounting standards or the interpretation thereof; or (H) any action expressly required to be taken by the Company pursuant to the terms of this Agreement or at the express written direction or consent of Parent or Acquisition Sub; provided, further, that any Effect relating to or arising out of or resulting from any change or event referred to in clause (A), (C), (F) or (G) above may constitute, and be taken into account in determining the occurrence of, a Company Material Adverse Effect if and only to the extent that such change or event has a disproportionate impact on the Company and its Subsidiaries as compared to other participants that operate in the industry in which the Company and its Subsidiaries operate. (Page 102) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
abridged | contract_150 | provided, however, that with respect to clause (i) only, no Effect to the extent resulting or arising from any of the following, shall, <omitted> be deemed to constitute <omitted> a Company Material Adverse Effect (Page 102) | Based on investigation or inquiry | 0 | Constructive Knowledge-Answer | <NONE> | Knowledge Definition | 67 | Knowledge |
rare_answers | <RARE_ANSWERS> | “Knowledge” shall mean with respect to any party hereto shall mean the actual knowledge of such party’s executive officers. (Page 115) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_136 | “knowledge” with respect to an Entity means with respect to any matter in question the actual knowledge of such Entity’s executive officers. (Page 75) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “Knowledge” means (i) with respect to the Company, the actual knowledge, after reasonable inquiry, of its executive officers and (ii) with respect to Parent, the actual knowledge of the officers of Parent. (Page 6) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_81 | “Knowledge” shall mean with respect to any party hereto shall mean the actual knowledge of such party’s executive officers. (Page 106) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_145 | “Knowledge” shall mean with respect to any party hereto shall mean the actual knowledge of such party’s executive officers. (Page 115) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_55 | “Knowledge” with respect to an Entity means with respect to any matter in question the actual knowledge of such Entity’s executive officers after reasonable inquiry of their direct reports. With respect to Intellectual Property Rights, Knowledge does not require that any of such Entity’s executive officers conduct or have conducted or obtain or have obtained any freedom-to-operate opinions or similar opinions of counsel or any Registered IP clearance searches, and no knowledge of any third-party Registered IP that would have been revealed by such inquiries, opinions or searches will be imputed to such executive officers; provided, however, the foregoing shall not exclude any knowledge actually acquired from any such inquiries, opinions or searches that have been conducted or obtained prior to the Closing. (Page 11) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | (jj) “Knowledge” means, assuming due inquiry under the facts or circumstances, the actual knowledge of: (i) with respect to Nicolet, the chief executive officer, president, chief financial officer, chief credit officer or general counsel of Nicolet; or (ii) with respect to the Company, the executive officers of the Company. (Page 61) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “Knowledge” of the Company, with respect to any matter in question, shall mean the actual knowledge of such matter by any of the executive officers or directors of the Company after reasonable inquiry. With respect to matters involving Intellectual Property Rights, knowledge does not require that any of the Company’s executive officers or directors conduct or have conducted or obtain or have obtained any freedom-to-operate opinions or similar opinions of counsel or any intellectual property clearance searches, and no knowledge of any third party intellectual property that would have been revealed by such inquiries, opinions or searches will be imputed to such executive officers or directors. (Page 92) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “Knowledge” means the actual knowledge, after reasonable inquiry under the circumstances, of the executive officers. (Page 10) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “knowledge” means (i) with respect to the Company, the actual knowledge of its executive officers and (ii) with respect to Parent, the actual knowledge of any of the Chief Executive Officer, Chief Financial Officer or the General Counsel of Parent, in each case, after reasonable inquiry. (Page 10) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “to the Company’s knowledge” or “to the knowledge of the Company” means the knowledge, after reasonable inquiry to the direct report of executive officers. (Page 39) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “Knowledge” means, with respect to (a) the Company as it relates to any fact or other matter, the actual knowledge of the executive officers of the Company of such fact or matter as of the date hereof, in each case, after reasonable inquiry, and <omitted> provided that, in the case of the foregoing (a) and (b), for clarity, with respect to Intellectual Property, such inquiry is not required to include freedom to operate analyses, clearance searches, validity or noninfringement analyses or opinions, or any other similar analyses or opinions of counsel. (Page 13) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “to VEREIT’s knowledge” or “to the knowledge of VEREIT” means the actual knowledge of executive officers. (Page 48) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_43 | knowledge. “knowledge” with respect to an Entity shall mean with respect to any matter in question the actual knowledge of such Entity’s executive officers. (Page 71) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “Knowledge” means, with respect to the Company, the actual knowledge of executive officers after reasonable inquiry of such Person’s direct reports. With respect to Company Intellectual Property, “Knowledge” or “Known” includes reasonable inquiry of such Person’s direct reports but does not require the Company to conduct, have conducted, obtain, review or have reviewed any freedom to operate opinions or similar opinions of counsel. (Page 80) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
rare_answers | <RARE_ANSWERS> | “Knowledge” of (a) the Company means the actual knowledge of its executive officers after having made reasonable inquiry of those employees of the Company and the Company Subsidiaries primarily responsible for such matters and (Page 66) | No | 0 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_66 | “Knowledge” shall mean, (i) in the case of the Company, the actual knowledge, after reasonably inquiry, of the individuals listed on Section 8.13 of the Company Disclosure Schedule and (Page 84) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_106 | “Knowledge” means the actual knowledge, after reasonable inquiry under the circumstances, of the persons set forth in Section 1.02 of the Company Disclosure Schedule or Section 1.01 of the Parent Disclosure Schedule. (Page 10) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_10 | “Knowledge” means the actual knowledge of (a) for Parent, the individuals listed in Section 9.14(a) of the Parent Disclosure Schedule under the heading “Knowledge” (the “Parent Knowledge Persons”) and (b) for the Company, the individuals listed in Section 9.14(a) of the Company Disclosure Schedule under the heading “Knowledge” (the “Company Knowledge Persons”), in each case, after due inquiry; provided that none of the Parent Knowledge Persons or Company Knowledge Persons shall have any personal liability or obligations arising out of this Agreement or the transactions contemplated hereby regarding such knowledge. (Page 102) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_103 | “knowledge” (i) with respect to the Company means the actual knowledge of any of the individuals listed in Section 9.5(dd) of the Company Disclosure Schedule (Page 87) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_6 | “Knowledge” or any similar knowledge qualification in this Agreement has the following meanings: (a) AB will be deemed to have “Knowledge” of a particular fact or matter if any Executive Officer of AB or the Bank has actual knowledge of such fact or matter or if any such Person would reasonably be expected to discover or otherwise become aware of such fact or matter in the course of making a reasonable inquiry into such areas of AB’s and the Bank’s business that are under such individual’s general area of responsibility (Page 9) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_82 | “Knowledge” means, with respect to (a) the Company, the actual knowledge of those individuals set forth in Section 1.0(a) of the Company Disclosure Letter and (Page 70) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_102 | “knowledge” means (i) for OCSI, the actual knowledge of its executive officers and directors set forth in Section 9 of the OCSI Disclosure Schedule, (Page 69) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_114 | “Knowledge” means <omitted> (b) with respect to the Company, the actual knowledge of the individuals listed on Schedule A-I(b) Knowledge of the Company Disclosure Schedules. (Page 75) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_63 | “Knowledge” or any similar phrase means (a) with respect to the Company, the actual knowledge of the individuals set forth in Section 1.01 of the Company Disclosure Schedule, and (Page 7) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_48 | “Knowledge” or any similar phrase means (a) with respect to the Company, the collective actual knowledge of the individuals set forth in Section 10.15 of the Company Disclosure Letter and (Page 71) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_105 | “Knowledge” means: (a) with respect to the Company and its Subsidiaries, the actual knowledge after reasonable inquiry of each of the individuals listed in Section 1.01 of the Company Disclosure Letter; (Page 15) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_29 | “knowledge” means (i) with respect to Parent and Merger Sub, the actual knowledge of the individuals listed in Section 8.17(a) of the Company Disclosure Schedule and (ii) with respect to the Company and Company OP, the actual knowledge of the individuals listed on Section 8.17(b)(ii) of the Company Disclosure Schedule. (Page 39) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_117 | “knowledge” means the actual knowledge of, (a) in the case of the Company, the individuals listed in Schedule 1.1 of the Company Disclosure Letter and (Page 99) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_37 | “Knowledge” means <omitted> (b) with respect to the Company, the actual knowledge of the individuals listed on Section 9.5(b) of the Company Disclosure Letter, after due inquiry. (Page 40) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_110 | “Knowledge” means the actual knowledge, after reasonable inquiry, of (a) in the case of the Company and the Company Subsidiaries, the individuals listed in Section 1.1(a) of the Company Disclosure Letter and (Page 15) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_99 | “Knowledge” means (a) when used with respect to the Company and the Company Subsidiaries, the actual knowledge of the individuals listed in Section 9.6(a) of the Company Disclosure Letter (Page 91) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_108 | “knowledge” of any Party means (i) with respect to Parent, the actual knowledge of Mark Berg, Rich Dealy, Mark Kleinman and Margaret Montemayor, and (ii) with respect to the Company, the actual knowledge of Matt Gallagher, Ryan Dalton, David Dell’Osso, Stephanie Reed and Colin Roberts. (Page 109) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_146 | “Knowledge” means (a) with respect to the Company, the actual knowledge, after reasonable inquiry, of the individuals listed in Section 1.01 o f the Company Disclosure Schedule and (b) with respect to Parent or the Merger Sub, the actual knowledge, after reasonable inquiry, of David J. Winter and David S. Millstone. (Page 88) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_20 | “knowledge” means the actual knowledge of, (a) in the case of the Company, the individuals listed in Schedule 1.1 of the Company Disclosure Letter (Page 95) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_1 | “Knowledge” of Parent or the Company, as applicable means the actual knowledge of the individuals set forth on Schedule 9.3 after making reasonable inquiry of all employees of the Company reasonably likely to have knowledge of the matter and who have been informed by or on behalf of the Company of the Contemplated Transactions. (Page 37) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_60 | “Knowledge of the Company” means the actual knowledge of the individuals, in each case after reasonable inquiry, identified in Section 5.1(a)(iv) of the Company Disclosure Letter, (Page 17) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_138 | “Knowledge ” means (i) with respect to the Company, the actual knowledge of the individuals listed on Section 1.01(a)(i) of the Company Disclosure Schedule and (Page 6) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_5 | “knowledge” means (i) with respect to the Company, the actual knowledge of those individuals set forth in Section 1.01 of the Company Disclosure Schedule and (ii) with respect to Parent, the actual knowledge of those individuals set forth in Section 1.01 of the Parent Disclosure Schedule. None of the individuals set forth in Section 1.01 of the Company Disclosure Schedule or Section 1.01 of the Parent Disclosure Schedule shall have any personal liability or obligations regarding such knowledge. (Page 13) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_120 | “Knowledge” of the Company, with respect to any matter in question, means the actual knowledge of the Company’s President; Executive Vice President, Chief Financial Officer and Treasurer; Executive Vice President, Chief Legal Officer and Secretary; and Chief Information Officer. (Page 16) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_104 | “knowledge” of any Person that is not an individual means, with respect to any matter in question, the actual knowledge of such Person’s executive officers; provided that “knowledge of the Company” or “Company’s knowledge” shall also include the actual knowledge of the individuals set forth on Section 9.03(c) of the Company Disclosure Letter. (Page 88) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_83 | “Knowledge” means (i) with respect to the Company, the actual knowledge, after reasonable inquiry, of the individuals listed on Section 1.01(a) of the Company Disclosure Schedule and (ii) with respect to Parent, the actual knowledge of the officers of Parent. (Page 6) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_49 | “Company’s Knowledge” means the actual knowledge as of the date hereof (without any duty to inquire or investigate) of the individuals identified in Section 10.1 of the Company Disclosure Schedule. (Page 57) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_96 | “knowledge” when used with respect to (a) the Company, means the actual knowledge of any fact, circumstance or condition of those officers of the Company set forth on Section 8.3(iii) of the Company Disclosure Letter and (b) Parent, means the actual knowledge of any fact, circumstance or condition of those officers of Parent set forth on Section 8.3(iii) of the Parent Disclosure Letter, in each case of the foregoing clauses (a) and (b), after reasonable inquiry; (Page 75) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_9 | “Knowledge” means (i) with respect to the Company, the actual knowledge of those persons set forth in Section 8.10(b) of the Company Disclosure Schedule, (Page 37) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_121 | “Knowledge” (i) with respect to Company means the knowledge, after reasonable inquiry, of the persons named in Section 1.1(a) of the Company Disclosure Letter and (ii) with respect to Parent means the knowledge, after reasonable inquiry, of the persons named in Section 1.1(b) of the Parent Disclosure Letter. For purposes of Section 4.16 and Section 5.16, “reasonable inquiry” does not require environmental sampling or testing of any kind. (Page 7) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_140 | “to VEREIT’s knowledge” or “to the knowledge of VEREIT” means the actual knowledge of any of the individuals listed in Section 9.1(b) of the VEREIT Disclosure Letter. (Page 48) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_27 | “knowledge” means (i) with respect to Parent and its Subsidiaries, the actual knowledge of the individuals listed in Section 8.15(a) of the Parent Disclosure Letter and (ii) with respect to the Company and its Subsidiaries, the actual knowledge of the individuals listed on Section 8.15(a) of the Company Disclosure Letter. (Page 105) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_149 | “Knowledge” shall mean the actual knowledge of each of the following officers and employees of the Company or Parent, as applicable, after reasonable inquiry by each such person: (i) for the Company: William C. Johnson, Martin D. Agard, Joel H. Horn, Richard N. Caron, Jennifer Gudenkauf and Philip Dei Dolori; and (ii) for Parent: Filippo Berti and Bradford D. Willis. (Page 43) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_71 | “Knowledge of the Company” (or similar phrases) means the actual knowledge of any of the following individuals: Bob Galvin, Kyle Harmon, and John T. McClain, in each case, after reasonable inquiry of such individual’s direct reports. (Page 6) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_73 | “Knowledge” means with (a) with respect to the Company, the knowledge of the individuals identified on Part 1.1 of the Company Disclosure Schedule, after reasonable inquiry, (Page 124) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_40 | “Knowledge” means (i) with respect to the Company, the actual knowledge, as of the date hereof, of each individual listed in Section 1.1(a) of the Company Disclosure Letter (Page 14) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_45 | “Knowledge” means (i) with respect to the Company, the actual knowledge, after reasonable inquiry, of each individual listed in Section 1.1(a) of the Company Disclosure Letter (Page 16) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_14 | “knowledge” of Boston Private means the actual knowledge of any of the officers of Boston Private listed on Section 9.6 of the Boston Private Disclosure Schedule (Page 83) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_61 | “Company’s Knowledge” or similar phrases means the actual knowledge of the individuals identified in Section 9.1(a) of the Company Disclosure Schedule, or knowledge that individuals in such positions would reasonably be expected to have but without any duty to inquire or investigate. (Page 81) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_72 | “Knowledge” means, (i) with respect to the Company the actual knowledge, after reasonable inquiry, of each of Keith R. Dunleavy, M.D., Beverly Allen, Jonathan Boldt, Geoff Charron, Monica Keeneth and Ingrid E. Olsen, and (ii) with respect to Parent and Merger Sub, the actual knowledge, after reasonable inquiry, of each of Fredrik Näslund and Aditya Desaraju. (Page 15) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_70 | “Knowledge” means: (a) with respect to the Company and its Subsidiaries, the actual knowledge of each of the individuals listed in Section 9.01 of the Company’s Disclosure Letter; and (b) with respect to Parent and its Subsidiaries, the actual knowledge of each of the individuals listed in Section 9.01 of Parent’s Disclosure Letter; in each case, after due inquiry. (Page 83) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_86 | “knowledge” means, (a) with respect to the Company, the actual (but not constructive or imputed) knowledge of the individuals listed in Section 1.01 of the Company Disclosure Letter, after making reasonable inquiry, as of the date hereof (Page 32) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_116 | “Knowledge” means the actual knowledge of, in the case of the Company and the Company Subsidiaries, the individuals listed in Section 1.1 of the Company Disclosure Letter (Page 13) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
main | contract_21 | As used in this Agreement, the “knowledge” of Company means the actual knowledge of any of the officers of Company listed on Section 9.6 of the Company Disclosure Schedule (Page 68) | Yes | 1 | Knowledge Definition limited to one or more identified persons-Answer (Y/ | <NONE> | Knowledge Definition | 68 | Knowledge |
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