CERTAIN IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT PURSUANT TO ITEM 601(a)(6) OF REGULATION S-K BECAUSE DISCLOSURE OF SUCH INFORMATION WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY. OMISSIONS ARE IDENTIFIED AS...
EXHIBIT 10.25EXECUTION VERSION
CERTAIN IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THIS EXHIBIT PURSUANT TO ITEM 601(a)(6) OF REGULATION S-K BECAUSE DISCLOSURE OF SUCH INFORMATION WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY. OMISSIONS ARE IDENTIFIED AS [***].
by and among
XXXX PUMPING SERVICES, INC.,
RPC 123, LLC,
SPINNAKER OILWELL SERVICES LLC, and
CATAPULT ENERGY SERVICES GROUP, LLC
(in its capacity as the Members’ Representative and Paying Agent hereunder)
Dated as of June 30, 2023
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TABLE OF CONTENTS
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SCHEDULES
Schedule 1.1-PLPermitted Liens
Schedule 1.7(b)Paid-Off Closing Debt; Transaction Expenses
Schedule 1.9(a)(vii)Resignations
Schedule 1.9(a)(xiv)Third-Party Consents, Notices and Approvals
Schedule 1.10Settlement Statement Methodology; Pro Rata Percentages
Schedule 1.11(b)Allocation Principles
Schedule 2.1Organizational Status; Authorization
Schedule 2.2(a)No Conflicts (Company)
Schedule 2.2(b)Consents and Approvals (Company)
Schedule 2.3(a)Capitalization
Schedule 2.3(b)Agreements with Respect to the Membership Interests
Schedule 2.3(c)Subsidiaries
Schedule 2.4Financial Statements
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Schedule 2.5Absence of Undisclosed Liabilities
Schedule 2.6(a)Facilities
Schedule 2.6(b)Real Property Leases
Schedule 2.6(c)Personal Property Leases
Schedule 2.7Material Contracts
Schedule 2.8(a)Employee Benefit Plans
Schedule 2.8(j)Transaction Bonuses
Schedule 2.9(a)Company’s Intellectual Property
Schedule 2.9(c)Customized Software
Schedule 2.10(a)(i)Compliance with Required Governmental Authorizations
Schedule 2.10(a)(ii)Required Governmental Authorizations
Schedule 2.10(b)Compliance with Laws
Schedule 2.11Litigation
Schedule 2.12Taxes
Schedule 2.13Absence of Certain Changes
Schedule 2.14Environmental Matters
Schedule 2.15(a)(i)Company Employees
Schedule 2.15(a)(ii)Company Individual Service Providers
Schedule 2.15(a)(iii)Compliance with Laws Relating to Labor
Schedule 2.15(e)Severance Arrangements
Schedule 2.15(g)Work Authorization
Schedule 2.16Brokers (Company)
Schedule 2.17Insurance
Schedule 2.18Title, Condition and Sufficiency of Assets
Schedule 2.19Banking Facilities; Powers of Attorney
Schedule 2.20(a)Accounts Receivable
Schedule 2.20(b)Accounts Payable
Schedule 2.20(c) Inventory
Schedule 2.21Rebates
Schedule 2.22Material Customers and Suppliers
Schedule 2.23Affiliate Transactions
Schedule 3.2(a)No Conflicts (Members)
Schedule 3.2(b)Consents and Approvals (Members)
Schedule 4.2No Conflicts; Consents and Approvals
Schedule 4.6Brokers (Parent)
Schedule 5.7(a)Accrued Bonuses
Schedule 9.3Affiliate Services
EXHIBITS
Exhibit ADefinitions
Exhibit BForm of Transmittal Letter
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THIS MERGER AGREEMENT (this “Agreement”), dated as of June 30, 2023 (the “Closing Date”), is entered into by and among Xxxx Pumping Services, Inc., a Delaware corporation (“Parent”), RPC 123, LLC, a Delaware limited liability company (“Merger Sub”), Spinnaker Oilwell Services LLC, a Delaware limited liability company (the “Company”), and Catapult Energy Services Group, LLC, a Delaware limited liability company, solely in its capacity as the Members’ representative as set forth in forth in Section 10.17 (“Members’ Representative”) and in its capacity as Paying Agent. Each of the foregoing is referred to herein as a “Party” and collectively are referred to as the “Parties.”
RECITALS
WHEREAS, Parent has formed Merger Sub solely for the purpose of merging it with and into the Company, as more specifically set forth below, with the Company continuing as the surviving limited liability company and as a wholly-owned subsidiary of Parent (the “Merger”);
WHEREAS, Parent desires to acquire the Company, which is engaged in the business of oil and gas cementing services in Texas, New Mexico, Oklahoma, Kansas and Arkansas (the “Business”), through the Merger;
WHEREAS, the board of managers and the Members of the Company holding at least a majority of the Company Membership Interests have (i) approved this Agreement and declared that it is advisable to enter into this Agreement providing for the merger of the Merger Sub with and into the Company, with the Company as the surviving entity, in accordance with the Delaware Limited Liability Company Act (as amended, the “Act”), upon the terms and subject to the conditions set forth herein and; (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, in accordance with the Act, upon the terms and conditions contained herein;
WHEREAS, the Members of the Company holding at least a majority of the Company Membership Interests have executed and delivered to the Company letters of transmittal with respect to the membership interests of the Company held thereby, in the form of Exhibit B attached hereto (the “Transmittal Letters”);
WHEREAS, the requisite number of directors of Parent and the sole member of Merger Sub have (i) approved this Agreement and declared that it is advisable and in the best interests of Parent to enter into this Agreement providing for the merger of the Merger Sub with and into the Company, with the Company as the surviving entity, in accordance with the Act, upon the terms and subject to the conditions set forth herein and (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, in accordance with the Act, upon the terms and conditions contained herein;
WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection with the transactions contemplated by this Agreement; and
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WHEREAS, capitalized terms used herein but not otherwise defined herein shall have the meanings ascribed to them in Exhibit A attached hereto.
AGREEMENT
NOW, THEREFORE, in consideration of these recitals and the respective representations, warranties and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
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Member, as contemplated by this Section 1.6, such Member’s Company Membership Interests shall be deemed at any time after the Closing to represent only the right to receive the amounts determined pursuant to this Section 1.6 and Section 5.12, if any, subject to the delivery of the Transmittal Letter. If a Member delivers to the Paying Agent a Transmittal Letter after the Closing, the Paying Agent shall promptly, but no later than five (5) days after its receipt of the Transmittal Letter, provide a copy of such executed Transmittal Letter to Parent in accordance with the notice provisions in Section 10.5; provided, that for purposes of this sentence, notice may be provided solely by electronic mail. Any portion of the amount paid to the Paying Agent pursuant to this Agreement that remains unclaimed by any Member one (1) year after the Closing shall, to the extent permitted by applicable Law, be returned to Parent, and any Member who has not submitted a Transmittal Letter to receive its applicable consideration prior to such time shall thereafter look only to Parent for payment thereof without any interest thereon (subject to abandoned property, escheat or similar Laws). Notwithstanding any provision of this Agreement to the contrary, neither Parent, the Surviving Company, the Paying Agent nor the Members’ Representative shall be liable to any Member in respect of any Company Membership Interest or monetary obligation derived therefrom that has been delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.
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Transaction Expenses, to the accounts designated on the Funds Flow Memorandum;
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The Company represents and warrants to Parent and Merger Sub that the statements contained in this Article II with respect to the Company are true and correct as of the date hereof, except as set forth in the Disclosure Schedules.
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Notwithstanding anything to the contrary herein, (x) this Section 2.12, Section 2.13(o), and, to the extent expressly referencing the Code, Section 2.8 (collectively, the “Tax Reps”) constitute the sole and exclusive representations of the Company regarding any and all Tax matters, including the compliance with Tax-related Laws, the payment (or nonpayment) of any Taxes and the filing (or non-filing) of any Tax Returns, and (y) neither the Company nor any Member is making any, and none of the Tax Reps or any representations or warranties of Article III are to be considered or interpreted as, representations or warranties (1) regarding the availability, amount or accuracy of any Tax benefit or asset for any taxable period (or portion thereof) beginning after the Closing or (2) as to any taxable period(s) or portion(s) thereof beginning after the Closing.
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Notwithstanding any of the representations and warranties contained elsewhere in this Agreement, all liabilities or obligations arising under Environmental Laws or relating to Environmental Liabilities, Hazardous Substances, or any other environmental matter shall be governed exclusively by this Section 2.14.
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Each Member, severally and not jointly and severally, represents and warrants to Parent and Merger Sub that the statements contained in this Article III with respect to such Member are true and correct as of the date hereof , except as set forth in the Disclosure Schedules.
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Parent represents and warrants to the Company and to the Members, that the statements contained in this Article IV with respect to Xxxxxx Sub and Parent, as applicable, are true and correct as of the date hereof.
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(b) if sent by reputable overnight air courier (such as DHL or Federal Express), one (1) Business Day after mailing; (c) if sent by electronic mail so long as also given by another means permitted hereby, when transmitted and receipt is confirmed in writing by the recipient; or (d) if otherwise actually personally delivered, when delivered, and shall be delivered as follows:
If to the Company (prior to Closing) or Members’ Representative:
Catapult Energy Services Group, LLC
0000 Xxxx Xxx Xxxx., Xxxxx 000
Houston, TX 77056
E-mail: [***]
Attention: [***]
With a copy (which shall not constitute notice) to:
Xxxxx Lord LLP
600 Xxxxxx, Suite 2800
Houston, Texas 77002
E-mail: XXxxxx@xxxxxxxxx.xxx
Attention: Xxxxx Xxxxx
and
NGP Energy Capital
0000 X. Xxxxxxx Xxxxxx, 00xx Floor
Dallas, Texas 75201
E-mail: [***]
Attention: [***]
If to Parent, Merger Sub, or the Surviving Company:
Xxxx Pumping Services, Inc.
c/o RPC, Inc.
0000 Xxxxxx Xxxxxxx XX, Xxxxx 000
Atlanta, Georgia 30329
Email: [***]
Attention: [***]
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxx Xxxxxxx LLP
000 00xx Xxxxxx, XX, Xxxxx 0000
Atlanta, Georgia 30363
E-mail: xxxx.xxxxxxx@xxx.xxx
Attention: Xxxx X. Xxxxxxx, Esq.
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or to such other address or to such other Person as any Party hereto has last designated by written notice to the other parties.
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With respect to all such matters, all of the Members will be bound by the actions taken by the Members’ Representative. The Members’ Representative may resign at any time, and may be removed for any reason or no reason by the vote or written consent of a majority in interest of the Members according to each Member’s Pro Rata Percentage (the “Majority Holders”). In the event of the death, incapacity, resignation or removal of Members’ Representative, a new Members’ Representative shall be appointed by the vote or written consent of the Majority Holders. Notice of such vote or a copy of the written consent appointing such new Members’ Representative shall be sent to Parent, such appointment to be effective upon the later of the date indicated in such consent or the date such notice is received by Parent.
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(Signatures appear on following pages.)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Closing.
PARENT:
XXXX PUMPING SERVICES, INC.
By:
Name:
Title:
MERGER SUB:
RPC 123, LLC
By:
Name:
Title:
COMPANY:
SPINNAKER OILWELL SERVICES LLC
By:
Name:
Title:
MEMBERS’ REPRESENTATIVE
and
PAYING AGENT:
CATAPULT ENERGY SERVICES GROUP, LLC
By:
Name:
Title:
EXHIBIT A
DEFINITIONS
“Accounts Receivable” means: (a) all trade accounts receivable and other rights to payment from customers of the Company and the full benefit of all security for such accounts or debts, including all trade accounts receivable representing amounts receivable in respect of goods shipped or products sold or services rendered to customers; (b) all other accounts or notes receivable and the full benefit of all security for such accounts or notes; and (c) any claims, remedies and other rights related to any of the foregoing.
“Affiliate” means, with respect to any specified Person, a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. For purposes of this definition, “control” (including the correlative terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting equity interest, by contract or otherwise.
“Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010, and other applicable Laws concerning or relating to bribery or corruption.
“Assets and Properties” of any Person means all assets and/or properties of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible, whether absolute, accrued, contingent, fixed or otherwise and wherever situated), including the goodwill related thereto, operated, owned or leased by such Person, including, without limitation, cash, cash equivalents, accounts and notes receivable, chattel paper, documents, instruments, general intangibles, real estate, equipment, Inventory, goods and Intellectual Property.
“Business Day” means any day other than Saturday, Sunday or any day on which banks located in Houston, Texas are authorized to be closed for the conduct of regular banking business.
“CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136) and any administrative or other guidance published with respect thereto by any Governmental Authority applicable to the Company.
“Catapult” means Catapult Energy Services Group, LLC, a Delaware limited liability company.
“Charter Documents” means, with respect to any Entity at any time, in each case as amended, modified and supplemented at that time, (i) the articles or certificate of formation, incorporation or organization (or the equivalent organizational documents) of that Entity, (ii) the bylaws, regulations or limited liability company agreement or regulations (or the equivalent governing documents) of that Entity and (iii) each document setting forth the designation, amount and relative rights, limitations and preferences of any class or series of that Entity’s capital stock or of any rights in respect of that Entity’s capital stock.
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“Closing Cash” means the aggregate cash and cash equivalents of the Company as of the Closing, as determined in accordance with GAAP.
“Closing Date Merger Consideration” shall mean (i) the Base Price, (ii) plus the amount of the Estimated Closing Cash, (iii) minus the amount of the Estimated Closing Debt, and (iv) minus the amount of the Estimated Transaction Expenses.
“Closing Debt” means the difference between (i) Indebtedness of the Company as of the Closing, minus (ii) the Prepaid Capital Lease Payments.
“Code” means the Internal Revenue Code of 1986, as amended.
“Comerica Letters of Credit” means (i) that certain Letter of Credit No. OSB20037T, dated October 13, 2021, as amended, and (ii) that certain Letter of Credit No. OSB22126T, dated September 30, 2022, as amended, each issued by Comerica Bank in favor of Zurich American Insurance Company.
“Company Capital Leases” means that certain Master Equipment Lease Agreement No. 21647, dated October 11, 2018, as may be amended from time to time, and that certain Master Equipment Lease Agreement No. 32077, dated as of September 16, 2019, by and between Liberty Commercial Finance LLC and the Company, as supplemented by that certain Equipment Schedule No. 1, dated September 18, 2019, by and between Liberty Commercial Finance LLC and the Company.
“Company Data” means the Company’s proprietary, confidential data, including customer data and Personal Data held by the Company.
“Company Fundamental Representation” means, with respect to the Company, those representations and warranties in Section 2.1 (Organizational Status; Authorization), Section 2.2(a)(i) (No Conflicts; Consent and Approvals), Section 2.3 (Capitalization of the Company) and Section 2.16 (Brokers).
“Company Guarantees” means those guaranties, letters of credit, bonds, sureties and other forms of credit support or assurances provided by any Member or any of their respective Affiliates in support of obligations of the Company or with respect to the Business.
“Confidential Information” means, with respect to any Person, all trade secrets, know-how and other confidential, nonpublic or proprietary information of that Person, including any such information derived from reports, investigations, research, studies, work in progress, codes, marketing, sales or service programs, customer lists, records relating to past service provided to customers, capital expenditure projects, cost summaries, equipment or production system designs or drawings, pricing formulae, contract analyses, financial information, projections, present and future business plans, agreements with vendors, joint venture agreements, confidential filings with any Governmental Authority and all other confidential, nonpublic concepts, methods, techniques or processes of doing business, ideas, materials or information prepared or performed for, by or on behalf of that Person.
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“Contract” means, any written or oral agreement, contracts, binding arrangements, bonds, notes, indentures, mortgages, debt instruments, licenses, franchises, leases and other instruments of any kind, including any amendments and other modifications thereto.
“COVID-19” means the infectious disease known as coronavirus disease 2019, or COVID-19, caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), and any evolutions thereof or related or associated epidemics, pandemics or disease outbreaks.
“COVID-19 Legal Requirement” shall mean the CARES Act, the Families Coronavirus Response Act of 2020, any U.S. presidential memorandum or executive order, or any other Legal Requirement intended to address the consequences of COVID-19 and applicable to the Company.
“COVID-19 Measures” means any quarantine, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure, sequester, safety or similar law promulgated by any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19 and applicable to the Company, including any COVID-19 Legal Requirement.
“COVID-19 Subsidy Benefit” means any subsidy, loan, rebate or abatement of taxes, or deferral of taxes or Social Security payments (to the extent not quantified at Closing and included in the definition of Indebtedness) issued or granted by any Governmental Authority to the Company pursuant to any economic relief program or law enacted as a result of the COVID-19 pandemic anywhere in the world, including the Paycheck Protection Program administered by the U.S. Small Business Administration and the CARES Act.
“Data Security Requirements” means, collectively, all of the following to the extent relating to the access, collection, use, import, export, processing, storage, sharing, distribution, transfer, disclosure, security, destruction, or disposal of any Personal Data (whether in electronic or any other form or medium) or otherwise relating to personal information data protection, privacy, security, or security breach notification requirements and to the extent applicable to the Company, to the conduct of the Business, or to any of the Information Systems or any Company Data: (i) the Company’s own rules, policies, and procedures; (ii) all applicable Laws, including to the extent applicable HIPAA Part 2, and state medical privacy laws; (iii) industry standards applicable to the industry in which the Business operates; and (iv) Contracts into which the Company has entered or by which the Company is otherwise bound.
“Disclosure Schedules” means the disclosure schedules delivered by the Company to Parent and Merger Sub concurrently with the execution and delivery of this Agreement.
“Employee Benefit Plan” shall mean (i) any “employee welfare benefit plan” or “employee pension benefit plan” as defined in Sections 3(1) and 3(2) of ERISA, respectively, whether or not subject to ERISA, including, but not limited to, a plan that provides retirement income or results in deferrals of income by employees for periods extending to their terminations of employment or beyond, and a plan that provides medical, surgical or hospital care benefits or benefits in the event of sickness, accident, disability, death or unemployment, and (ii) any other benefit plan, agreement, policy, program or arrangement, including without limitation, any deferred compensation, profit
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sharing, incentive, bonus, stock option, stock purchase, stock or stock-based award, phantom equity, golden parachute , retention, severance pay, indemnity, change in control, dependent care assistance, Code Section 125 cafeteria, employee assistance, scholarship, employment, consulting, vacation, sick pay or paid time off (PTO), fringe benefit, or other similar benefit plan, agreement, policy, program or arrangement, whether or not reduced to writing and whether funded or unfunded.
“Entity” means any sole proprietorship, corporation, partnership of any kind having a separate legal status, limited liability company, business trust, unincorporated organization or association, mutual company, joint stock company or joint venture.
“Environmental Laws” means any applicable international, federal, state, or local law, rules, regulations, codes, ordinances, decrees, and orders and principles of Common Law relating to, governing, or regulating pollution, protection of human health and the environment, or exposure to Hazardous Substances, including, without limitation, any of the foregoing relating to the use, generation, transport, treatment, storage, release, or disposal of any Hazardous Substance or laws relating to emissions, discharges or releases of any Hazardous Substance into air, surface water, groundwater or land.
“Environmental Liabilities” means any loss, liability (including STRICT LIABILITY), claim, damage, expense, or cost relating to any fines, penalties, damages, remediation costs, natural resource damages, or any environmental response obligation arising from or under any Environmental Laws or any Environmental Permits.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” means any Person that is treated as a single employer together with the Company under Section 414 of the Code.
“Escrow Agent” means U.S. Bank National Association, a national banking association.
“Escrow Agreement” means that certain Escrow Agreement, dated of even date herewith, by and among the Parent, Members’ Representative and Escrow Agent.
“Escrow Amount” means an amount equal to the sum of the Merger Consideration Escrow Amount and the Indemnity Escrow Amount.
“Exempted Losses” means Indemnity Losses for which Parent Indemnified Parties are entitled to indemnification from the Members as contemplated by this Agreement due to (a) any breach of, or inaccuracy in, any Fundamental Representations, (b) any breach of, or inaccuracy in, any representation or warranty (other than the Fundamental Representations) to the extent of (and in the amount up to) Fundamental Payout Amounts, and (c) claims based on Fraud.
“Export Control Laws” means the Arms Export Control Act, International Traffic in Arms Regulations, Export Administration Regulations and Laws administered and implemented by the Office of Foreign Assets Control (“OFAC”), Foreign Trade Regulations, and any other U.S. or
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foreign Law related to the exportation or importation of supplies or services, including any export or import declaration filing and payment of customs duties.
“Family Member” means, with respect to any natural Person, (a) such Person’s spouse, (b) any children or siblings of such Person or such Person’s spouse and (c) any other natural Person who resides with such Person.
“Final Closing Date Balance Sheet” means the final consolidated balance sheet of the Company as of the Closing Date, as determined pursuant to Section 1.10(b)(ii) or 1.10(b)(iii).
“Final Working Capital Negative Adjustment” means the amount by which the Final Working Capital is less than $10,000,000.00.
“Final Working Capital Positive Adjustment” means the amount by which the Final Working Capital is greater than $10,500,000.00.
“Fraud” means an intentional and willful misrepresentation by a Party with respect to the making of any representation or warranty expressly contained herein; provided, the Party making such representation or warranty had actual knowledge that the applicable representation or warranty (as qualified by the Disclosure Schedules, if applicable) was false at the time it was made, it was made with the intention that the other Party rely thereon to its detriment and the other Party did so rely thereon to its detriment. For the avoidance of doubt, “Fraud” does not include (a) constructive fraud, statutory fraud, equitable fraud, negligent misrepresentation or omission or promissory fraud or (b) any fraud based on constructive knowledge, negligent misrepresentation or recklessness.
“Fundamental Payout Amounts” means with respect to any Indemnity Losses, to the extent that the coverage limit under the R&W Policy is exceeded, the amount of Indemnity Losses that would have been paid from the R&W Policy if not for the amounts previously paid under the R&W Policy for Fundamental Representations.
“Fundamental Representations” means the Company Fundamental Representations and the Member Fundamental Representations.
“Funds Flow Memorandum” means that certain Funds Flow Memorandum, dated as of the Closing Date, by and among Parent, Merger Sub, Members’ Representative and the Company, which shall include the Estimated Settlement Statement.
“GAAP” means the prevailing generally accepted accounting principles in the United States, in effect from time to time.
“Governmental Authority” means any federal, state, local or foreign judicial, legislative, executive or regulatory authority or agency.
“Governmental Authorizations” means approvals, licenses, permits, consents, authorizations, qualifications, orders and certificates from Governmental Authorities necessary to conduct the Business and own and operate the assets of the Business.
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“Hazardous Substance” means any pollutant, contaminant, chemical, waste, material or substance that (i) is defined as toxic or hazardous by, or otherwise regulated or restricted under any Environmental Law because of its actual or potential adverse effects upon health or the environment, or (ii) that causes or may cause injury to persons, property, human health, or the environment and subjects the Company to an Environmental Liability. “Hazardous Substances” specifically includes but is not limited to: (i) petroleum and petroleum products, including crude oil and any fractions thereof; (ii) natural gas, synthetic gas, and any mixtures thereof; (iii) polychlorinated biphenyls; (iv) asbestos or asbestos-containing materials; and (v) (to the extent regulated under Environmental Laws) per- and polyfluoroalkyl substances, a/k/a “PFAS”.
“Indebtedness” of any Person means any obligations of such Person (a) for borrowed money (whether by loan or the issuance and sale of debt securities or otherwise), (b) evidenced by notes, bonds, indentures or similar instruments, (c) for the deferred purchase price of goods and services (other than trade payables incurred in the Ordinary Course of Business) and all deferred purchase price obligations related to past acquisitions, whether contingent or otherwise (including any “earn-out” or similar payments or obligations at the maximum amount payable in respect thereof), (d) obligations (contingent or otherwise) in respect of any credit agreement, letters of credit or similar instruments issued or accepted by banks and other financial institutions (other than the Comerica Letters of Credit), (e) all deferred revenue and collections in excess of earnings, (f) to the extent not included as a Transaction Expense or in the calculation of Final Working Capital, all employee obligations related to deferred compensation, pensions, retention agreements, transaction bonus agreements, phantom stock obligations or any similar types of payments (other than base salaries payable), including, without limitation, severance, bonus or change of control payments, including the employer portion of any payroll Taxes associated with these payments, (g) under capital leases, but, for the avoidance of doubt, excluding all ground leases and operating leases and determined without regard to the implementation of ASC 842, and (h) in the nature of guarantees of the obligations described in clauses (a) through (g) above of any other Person, and (i) any interest, principal, breakage costs, prepayment or other premiums, penalties and other fees, costs and expenses associated with prepayment or redemption or tender for any of the foregoing; provided, that Indebtedness shall not include any (x) accounts payable to trade creditors, purchase commitments incurred in the Ordinary Course of Business, or accrued expenses and deferred revenues, in each case to the extent included as Working Capital Liabilities in the calculation of Final Working Capital, or (y) Taxes other than as expressly set forth above in clause (f) of this definition, which amount shall not be less than zero for any jurisdiction.
“Indemnified Taxes” means (i) any Taxes (or the non-payment thereof) imposed on or with respect to the Company with respect to any Pre-Closing Tax Period (determined with respect to a Straddle Period in accordance with Section 9.1(a)), including any payroll taxes deferred by the Company pursuant to the CARES Act or other similar Executive Order, state, or local Law, (ii) any payments for Taxes required by the Company to be made after the Closing Date pursuant to a Tax sharing, Tax indemnity, Tax allocation or similar contracts (whether or not written) to which the Company was obligated, or was a party, on or prior to the Closing Date (and, in each case, as in effect prior to the Closing), other than any payments for Taxes pursuant to a Non-TSA except to the extent such payment was required to have been paid prior to the Closing and was not so paid in breach of such Non-TSA, (iii) any and all Taxes of any Person imposed on the Company as a transferee or successor or pursuant to any Law, rule or regulation, in each case, which Taxes relate
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to an event or transaction occurring on or prior to the Closing, (iv) all Taxes of any Member for a Pre-Closing Tax Period to the extent not arising from a breach by Parent (or any of its Affiliates) of any representation, warranty or covenant in any Transaction Document, and (v) all Taxes for which the Members are responsible pursuant to Section 9.1(d); provided, however, notwithstanding anything to the contrary herein, Indemnified Taxes will not include any Tax that is (x) taken into account in the determination of Indebtedness, Transaction Expense or Working Capital (y) otherwise withheld or deducted pursuant to Section 1.14 or (z) (i) due or payable for a tax period other than for a Pre-Closing Tax Period or (ii) arises on the Closing Date but after the Closing.
“Indemnity Escrow Amount” means an amount equal to $278,250.
“Indemnity Loss” means any damages, losses, liabilities, claims, Lien, penalties, costs, expenses, duties, deficiencies, demands, Proceedings, assessments and Taxes (including costs of investigation and defense and reasonable attorneys’ fees and expenses); provided, that (i) with respect to claims arising under Sections 8.1(a)(i), 8.1(a)(ii) and 8.1(b)(i) other than for a breach of a Fundamental Representation, Indemnity Losses shall not include any punitive or exemplary damages or any criminal fines or penalties, except to the extent (a) insurable under the applicable law of any Most Favorable Jurisdiction (as defined in the R&W Policy) and (b) awarded or assessed against the Insureds (as defined in the R&W Policy) in connection with a Third Party Claim (as defined in the R&W Policy) pursuant to (1) a final settlement consented to in writing by the Insurer or (2) a final (x) order of a government or regulatory agency, (y) judgment of a court of competent jurisdiction or (z) award of an arbitrator, arbitration panel or similar adjudicative body; provided that the Defense Costs (as defined in the R&W Policy) or Prosecution Costs (as defined in the R&W Policy) relating to the foregoing shall constitute Indemnity Loss, and (ii) other than for the claims set forth in clause (i), Indemnity Losses shall not include any Non-Reimbursable Damages.
“Independent Accounting Firm” means Deloitte.
“Information Systems” means the internal or third-party information and reporting systems of the Company (whether owned, licensed, leased or otherwise) that are used in its Business or operations, including computer hardware systems, Software and embedded systems.
“Intellectual Property” means all intellectual property, whether arising or protected under the laws of the United States or any other jurisdiction or treaty, including, without limitation: (a) Trademarks; (b) all patents (including certificates of invention, industrial rights and other patent equivalents), provisional, non-provisional, divisional, continuation, continuation in-part and reissue applications and patents issuing therefrom, any revivals, renewals, extensions, inventions and discoveries that may be patentable (collectively, “Patents”); (c) all registered and unregistered copyrights in both published works and unpublished works and applications for registration, all moral rights and all rights to register and obtain renewals and extensions of registrations; (d) all know-how, trade secrets, concepts, processes, customer lists, technical information and other confidential or proprietary information (collectively, “Trade Secrets”); (e) all user guides, manuals, instructions, forms, layouts, programmer notes or logs, source code annotations, designs, plans, drawings, process technology, plans, blue prints, documentation or materials that relate to
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any aspect of the Intellectual Property, whether in tangible, electronic or other intangible form; (f) all rights in internet web sites, FTP sites and internet domain names used, including all associated scripts, information, text, graphics and other content relating to the websites or FTP site and all derivative works thereof; (g) all versions of all software (including software programs, objects, modules, routines, algorithms and code, in source code, object code and executable form), machine readable databases and compilations, data structures and all data and collections of data and all derivative works of any such software (collectively, “Software”); and (h) all rights in mask works and similar rights protecting circuits and chip topographies and layouts.
“Inventory” or “Inventories” means all inventories of the Company, wherever located, including all finished goods, work in process, raw materials, spare parts, replacement parts and all other materials, supplies to be used or consumed by the Company in the operation of the Business.
“Knowledge of Catapult,” or any phrase of similar import means the actual knowledge of Xxxxxxx X. Xxxxx, after making reasonable investigation of such Personnel of the Company who, in light of the role of the Person in the Company, would reasonably be expected to know the subject matter of the applicable representations and warranties.
“Knowledge of the Company,” or any phrase of similar import means the actual knowledge of Xxxx Xxxxxxx and Xxxxxxxx Xxxxxxxxx, after making reasonable investigation of such Personnel of the Company who, in light of the role of the Person in the Company, would reasonably be expected to know the subject matter of the applicable representations and warranties.
“Latest Balance Sheet” means the unaudited balance sheet of the Company as of the Latest Balance Sheet Date.
“Laws” means all laws, statutes, rules, regulations, ordinances, policy, order, decree, consent decree, governmental requirement and other pronouncements in effect on the date of this Agreement having the effect of law of the United States, any foreign country or any domestic or foreign state, county, city or other political subdivision or of any Governmental Authority.
“Comerica Letters of Credit” means (i) that certain Letter of Credit No. OSB20037T, dated October 13, 2021, as amended, and (ii) that certain Letter of Credit No. OSB22126T, dated September 30, 2022, as amended, each issued by Comerica Bank in favor of Zurich American Insurance Company.
“Liens” means any liens (statutory or other), mortgages, pledges, security interests, charges, claims, options, easements, rights of way (other than easements of record) and other encumbrances of any kind or nature whatsoever, including those encumbrances set forth on any schedule hereto.
“Material Adverse Effect” means change, effect, fact, event, circumstance or occurrence, including any change affecting the business, customer, employee or Governmental Authority relations of the Company, which individually or in the aggregate with any one or more other changes, effects, facts, event, circumstances or occurrences has had or may reasonably be expected to have a material and adverse effect on, or a material adverse change in, as the case may be, the
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assets, financial position, or results of operations of the Company, taken as a whole; provided, however, that none of the following shall be deemed to constitute a Material Adverse Effect: (a) any adverse change, event, development or effect arising from or relating to (1) the execution, performance or public announcement of this Agreement or the transactions contemplated by this Agreement, (2) general business or economic conditions, including such conditions related to the Business and the concrete and aggregates industries (including changes in commodity prices, general market prices and regulatory changes affecting such industry generally), (3) 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 the United States or any of its territories, possessions or diplomatic or consular offices or upon any military installation, equipment or personnel of the United States, (4) financial, banking or securities markets (including any disruption thereof and any decline in the price of any security or any market index) and any fluctuations in interest, currency, or exchange rates, (5) changes in GAAP or any Law or industry standard, (6) the failure of the Company to meet, with respect to any period or periods, any internal or industry analyst, projections, forecasts, estimates of earnings or revenues, or business plans, (7) acts of God, earthquakes, hurricanes, tornados, any weather-related or other force majeure event or natural disasters, (8) crises affecting public health, safety or welfare, including any epidemic, pandemic, or disease outbreak (including the COVID-19 virus), public health emergencies, including the continuation, escalation or worsening of such conditions; (9) actions required to be taken under applicable Laws (including in compliance with Laws resulting from or relating to COVID-19 or other disease, virus, or outbreak) or Contracts; or (10) matters that arise from any actions or omissions of Parent, Merger Sub and their Affiliates; provided, however, that in the case of each of the foregoing clauses (2) through (5) and (7) through (10), any change, effect, fact, event, circumstance or occurrence may be taken into account in determining whether a Material Adverse Effect has occurred to the extent that such change, effect, fact, event, circumstance or occurrence has a disproportionate impact on the Company relative to other businesses participating in the industries in which the Company conducts its business, or (b) any action or omission of the Company or Members’ Representative or any of their respective Affiliates taken with the written consent or waiver of Parent.
“Member Fundamental Representation” means, with respect to any Member, those representations and warranties in Section 3.1 (Organizational Status; Authorization) and Section 3.2(a) (No Conflicts; Consent and Approvals).
“Members” means, collectively, the holders of Company Membership Interests.
“Merger Consideration Escrow Amount” means an amount equal to $1,000,000.00.
“Non-Reimbursable Damages” means special, punitive, exemplary, incidental, consequential or indirect damages (including any damages on account of diminution in value, lost profits or opportunities, or lost or delayed business based on valuation methodologies ascribing a decrease in value to the company member, on the basis of a multiple of a reduction in a multiple based or yield-based measure of financial performance), whether based on contract, tort, strict liability, other law or otherwise and whether or not arising from the other party’s or any of its affiliates’ or representatives’ sole, joint or concurrent negligence, strict liability or other fault;
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provided, that (i) any amounts payable to a third party pursuant to a Third-Party Claim awarded by a court of competent jurisdiction and (ii) any damages that are the reasonably foreseeable result of the underlying breach will not be deemed Non-Reimbursable Damages.
“Ordinary Course of Business” means, with respect to the Company, the ordinary and usual course of normal day-to-day operations of the business of the Company consistent with past custom and practice; provided, that in no event shall any breach of Law or Contract or violation of any Governmental Authorization be considered ordinary or usual course of normal day-to-day operations of the business of the Company.
“Paid-Off Closing Debt” means the Closing Debt set forth on Schedule 1.7(b), which will be paid off at Closing in accordance with Section 1.7(b)(i); provided, that, for purposes of calculating any per diem owed under such Paid-Off Closing Debt, Paid-Off Closing Debt will be calculated as of payoff in accordance with Section 1.7(b)(i) and not as of the Balance Sheet Time.
“Pass-Through Tax Return” means any Tax Return (such as an IRS Form 1065 and associated IRS Schedules K-1 and corresponding, and local and non-U.S. Tax Returns) of the Company with respect to which the Company is treated as a flow-through or fiscally transparent entity for purposes of such Tax Return, i.e., where items of any income, gain, losses, deductions or other Tax items of the Company reflected on such Tax Returns are allocated to, and intended to be reflected on the Tax Return(s) of, as applicable, the Company’s direct or indirect members, partners or equity owners (which shall include for this purpose any “composite,” non-resident partner withholding, or similar Tax Return and including any and all Tax Returns and elections relating to any “pass through entity” tax or similar regime). By way of example and without limitation, Tax Returns primarily concerning property Taxes, sales and use Taxes, payroll Taxes, and withholding Taxes (other than any such withholding Taxes associated with a “composite,” a non-resident partner withholding or similar Tax Return) are not Pass-Through Tax Returns.
“Payoff Letters” means pay-off letters from the holders of Paid-Off Closing Debt of the Company indicating the amounts necessary to be paid at Closing in order to repay in full all amounts owed with respect thereto, and, if such Paid-Off Closing Debt is secured, an undertaking or allowance by such holder to discharge in connection with the Closing any Lien securing such Paid-Off Closing Debt.
“Permitted Encumbrances” means (a) restrictions on any sale, assignment or transfer of securities under applicable securities Laws, (b) restrictions on any sale, assignment or transfer of the Company Membership Interests or other equity interests of the Company set forth in the Charter Documents of the Company, and (c) any Liens created by or through Parent or any of its respective Affiliates.
“Permitted Liens” means (a) statutory Liens for Taxes not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings, (b) mechanics’, carriers’, workers’, repairers’ and similar statutory Liens arising or incurred in the Ordinary Course of Business, (c) public roads and highways, (d) Liens arising under worker’s compensation, unemployment insurance, social security, retirement and similar legislation, (e) Liens and other rights reserved by or in favor of (i) any landlord or lessor under a Real Property
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Lease or (ii) any grantor under the instrument creating or vesting title in and to any Real Property, (f) other Liens arising in the Ordinary Course of Business and not incurred in connection with the incurrence of Indebtedness, (g) Liens created by Parent or its Affiliates, (h) Liens imposed by Law with respect to obligations not yet delinquent, (i) with respect to the Real Property, (i) zoning, entitlement, building and other land use regulations imposed by Governmental Authorities having jurisdiction over the Real Property, (ii) covenants, conditions, restrictions, easements and other similar matters that would be disclosed by an inspection or accurate survey of any parcel of Real Property; provided, that the same, individually and in the aggregate, do not impair in any material respect the occupancy, use or operation of any Real Property for purpose of the ownership or operation of the Business, (iii) all matters, both general and specific, that are disclosed (whether or not subsequently deleted or endorsed over) in any title policies insuring Real Property or any commitments therefor that have been made available to Parent or Merger Sub or obtained by or on behalf of Parent or Merger Sub, (iv) any easement, encroachment, restriction, right-of-way and any other defect, whether or not of record; provided, that the same, individually and in the aggregate, do not impair in any material respect the occupancy, use or operation of any Real Property for purposes of the ownership or operation of the Business, (v) permits, licenses, surface leases, sub-surface leases, grazing rights, logging rights, ponds, lakes, waterways, canals, ditches, reservoirs, equipment, pipelines, utility lines, railways, streets, roads and structures; provided, that the same, individually and in the aggregate, do not impair in any material respect the occupancy, use or operation of any Real Property for purposes of the ownership or operation of the Business, and (vi) preferential rights to purchase and similar contractual provisions and consents to or approval of or waivers respecting assignments and similar agreements, (j) Liens that shall be released, waived or otherwise terminated in connection with the Closing, and (k) those matters identified on Schedule 1.1-PL.
“Person” means any natural person, firm, partnership, association, corporation, company, trust, business trust, Governmental Authority or other such entity.
“Personal Data” means (a) a natural person’s name, street address, telephone number, email address, passport number, credit card number, bank information, or account number, and (b) any other piece of non-publicly available information that allows the identification of such natural person.
“Personnel” means any director, manager, officer, employee, consultant, agent of such Person.
“Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date and the portion of any Straddle Period ending on the Closing Date.
“Prepaid Capital Lease Payments” means all deposits paid pursuant to the terms of the equipment schedules to the Master Equipment Lease Agreement No. 21647, dated October 11, 2018, as may be amended from time to time.
“Proceeding” means an action, arbitration, audit, hearing, litigation or suit (whether civil, criminal or administrative) commenced, brought, conducted or heard by or before any Governmental Authority or arbitrator.
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“Representatives” means with respect to any Person, its Affiliates and its and their respective officers, directors, managers, employees, counsel, accountants, financial advisers, consultants or agents.
“Retention” has the meaning set forth in the R&W Policy.
“R&W Policy” means that certain Representations and Warranties Insurance Policy, dated as of the Closing Date and issued by Travelers Excess and Surplus Lines Company to Parent.
“Securities Act” means the Securities Act of 1933, as amended.
“Subsidiary” or “Subsidiaries” shall mean, when used with reference to an entity, any other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions, or a majority of the outstanding voting securities of which, are owned directly or indirectly by such entity.
“Tax Return” means all returns and reports (including declarations, disclosures, schedules and information returns), including any amendments thereof, required to be supplied to a Tax authority relating to Taxes.
“Taxes” means all federal, state, local and foreign taxes, including without limitation, income taxes, capital gains taxes, intangible taxes, gross receipts tax, ad valorem taxes, estimated taxes, value-added taxes, windfall profits taxes, franchise taxes, withholding taxes, payroll and employment taxes, unemployment insurance taxes, social security taxes, sales and use taxes, excise taxes, real and personal property taxes, stamp taxes, transfer taxes and workers’ compensation taxes, alternative or add-on minimum taxes, and other similar taxes of any kind such as highway use, fuel or customs duties, in all cases together with all interest, penalties and additions payable with respect thereto.
“Taxing Authority” means any Governmental Authority that imposes, administers, collects or regulates Taxes in any applicable jurisdiction.
“Trademark” means all trade names, trademarks, service marks, trade dress, brand names, designs, jingles, slogans, logos, or corporate names, whether registered or unregistered, and all registrations and applications thereof (including, in each case, the goodwill associated therewith).
“Transaction Documents” means this Agreement, the Escrow Agreement, the Transition Services Agreement, the Restrictive Covenants Agreements, the Funds Flow Memorandum and any other agreement, certificate or similar document to be executed and/or delivered pursuant to this Agreement and the transactions contemplated herein.
“Transaction Expenses” means (a) all investment banking fees, costs and expenses and legal fees, costs and expenses incurred by the Members or the Company in connection with the preparation for, negotiation or consummation of the transactions contemplated by this Agreement and the other Transaction Documents, (b) 50% of all premiums, fees, costs and expenses payable at or prior to the Closing with respect to or otherwise in connection with the binding and issuance of the R&W Policy; (c) 50% of the Escrow Agent’s fee with respect to the Escrow Agreement; (d)
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all amounts payable to Catapult, its Subsidiaries, NGP X US Holdings, L.P. or NGP Energy Technology Partners II, L.P. pursuant to the Advisory Services Agreement or otherwise; and (e) any transaction, retention, or change in control bonus, or severance payments in connection with the transactions contemplated by this Agreement, or similar compensatory amounts payable to any employees or service providers of the Company that become payable by the Company pursuant to an agreement with the Company, any Member or any of their respective Affiliates (other than Parent) in whole or in part as a result of or in combination with the consummation of the transactions contemplated hereby (including, in each case, the employer’s share of any Tax withholding and any gross-up or similar payments for another Person’s Taxes required to be paid in connection therewith).
“Transaction Tax Deduction” means, any item of Tax deduction available (on a “more likely than not” or greater reporting basis) under applicable Law relating to or arising (in whole or in part) from (i) any Transaction Expenses (including for this purpose any amount that would be a Transaction Expense), (ii) any unamortized fees, deferred financing costs, or other amounts deductible as a result of the payment of or otherwise with respect to the Closing Debt, (iii) any expenses or fees paid prior to the Closing, and (iv) liabilities and similar items included in the Final Working Capital determination; provided, as and to the extent relevant, the parties agree that an election under Revenue Procedure 2011-29 will be made to apply the 70% safe harbor to any “success based fee” as defined in Treasury Regulation Section 1.263(a)-5(f) that are included as Transaction Tax Deductions.
“Unpaid Closing Taxes” means any unpaid Taxes of the Company (in each case) that have an original due date (i.e., are first due) on or after the Closing Date but which are due and payable for solely a Pre-Closing Tax Period; provided, that for purposes of determining such unpaid Taxes (i) such amounts shall be determined by following the past practices used by the Company for determining its tax payment and filing obligations; (ii) all Transaction Tax Deductions shall be allocable to taxable periods (or portions thereof in the case of Straddle Periods) ending on or prior to the Closing Date and taken into account; (iii) all available Tax credits, overpayments, and estimated payments shall be taken into account as outstanding and accrued assets and offsets to Tax liabilities; (iv) any Taxes for a Straddle Period shall be determined in accordance with Section 9.1(a); (v) any and all amounts of deferred income and/or deferred Taxes shall be excluded from such determinations and (vi) in all events, any Transfer Taxes and any Taxes arising on the Closing Date from events occurring, or income, gains or profits accruing or arising, after the Closing will be excluded from any such determination.
“WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988, as amended, and any similar state or local Law.
“Working Capital” means, as of the Closing Date, an amount (which may be positive or negative) equal to the total book value of the current assets of the Company minus the Working Capital Liabilities, determined in accordance with the policies, practices and methods set forth on Schedule 1.10; provided, however, that current assets shall not include (i) any Closing Cash, (ii) any Prepaid Capital Lease Payments or (iii) any deferred Tax assets.
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“Working Capital Liabilities” means the current liabilities of the Company, determined in accordance with the policies, practices and methods set forth on Schedule 1.10; provided, however, that Working Capital Liabilities shall not include (i) any Indebtedness, (ii) any Taxes other than Unpaid Closing Taxes, (iii) any payments by Parent pursuant to this Agreement, or (iv) any Transaction Expenses.
In addition to the terms set forth above, the following terms shall have the meanings assigned to them in the provisions of this Agreement shown in the table below:
Defined Term | Location in Agreement |
Act | Recitals |
Affiliate Transaction | Section 2.23 |
Agreement | Preamble |
Allocation Principles | Section 1.11(b) |
Balance Sheet Time | Section 1.10(a) |
Base Price | Section 1.7(a) |
Books and Records | Section 9.2(b)(i) |
Business | Recitals |
Catapult Confidential Information | Section 5.10 |
Certificate of Merger | Section 1.1 |
Claimant | Section 8.4 |
Closing | Section 1.8 |
Closing Amount | Section 1.7(b)(iv) |
Closing Date | Preamble |
Company | Preamble |
Company Benefit Plan | Section 2.8(a) |
Company Employees | Section 2.15(a) |
Company Indemnified Party | Section 5.5(a) |
Company’s Intellectual Property | Section 2.9(a) |
Company Membership Interests | Section 1.5(a) |
Continuing Employees | Section 5.7(a) |
Disagreement Notice | Section 8.5 |
Dispute Deadline | Section 1.10(b)(ii) |
Dispute Notice | Section 1.10(b)(ii) |
Due Diligence Information | Section 8.2(b)(ii) |
Effective Time | Section 1.1 |
Election Notice | Section 8.6(a) |
Environmental Permits | Section 2.14(a) |
Estimated Closing Cash | Section 1.10(a) |
Estimated Closing Date Balance Sheet | Section 1.10(a) |
Estimated Closing Debt | Section 1.10(a) |
Estimated Closing Transaction Expenses | Section 1.10(a) |
Estimated Settlement Statement | Section 1.10(a) |
Exception Claims | Section 8.6(a) |
Facilities | Section 2.6(a) |
Final Closing Cash | Section 1.10(b)(iv) |
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Final Closing Debt | Section 1.10(b)(iv) |
Final Closing Transaction Expenses | Section 1.10(b)(iv) |
Final Merger Consideration | Section 1.10(b)(iv) |
Final Working Capital | Section 1.10(b)(iv) |
Financial Statements | Section 2.4(a) |
Indemnification Cap | Section 8.8(c) |
Indemnification Deductible | Section 8.8(b) |
Indemnification Notice | Section 8.4 |
Indemnified Directors and Officers | Section 5.5(b) |
Indemnifying Party | Section 8.4 |
Indemnity Threshold | Section 8.8(a) |
Interim Financial Statements | Section 2.4(a) |
Initial Closing Date Balance Sheet | Section 1.10(b)(i) |
Initial Closing Date Cash | Section 1.10(b)(i) |
Initial Closing Date Debt | Section 1.10(b)(i) |
Initial Closing Date Items | Section 1.10(b)(i) |
Initial Closing Date Transaction Expenses | Section 1.10(b)(i) |
Initial Closing Date Working Capital | Section 1.10(b)(i) |
Latest Balance Sheet Date | Section 2.4(a) |
Leased Real Property | Section 2.6(a) |
Litigation Notice | Section 8.4 |
Majority Holders | Section 10.17(a) |
Material Contracts | Section 2.7(a) |
Material Customer | Section 2.22 |
Material Supplier | Section 2.22 |
Members Group Law Firm | Section 10.15(a) |
Member Indemnified Parties | Section 8.3 |
Members’ Representative | Preamble |
Merger | Recitals |
Merger Consideration | Section 1.7(a) |
Merger Consideration Allocation | Section 1.11(b) |
Merger Sub | Preamble |
Non-Preparing Party | Section 9.1(b) |
Non-Recourse Party | Section 10.16 |
Non-TSA | Section 2.12(g) |
Other Firm | Section 9.1(b) |
Owned Real Property | Section 2.6(a) |
Parent | Preamble |
Parent Assignee | Section 10.6 |
Parent Closing Statement | Section 1.10(b)(i) |
Parent Indemnified Parties | Section 8.1(a) |
Parent Plan | Section 5.7(b) |
Parent Prepared Return | Section 9.1(b) |
Parties | Preamble |
Party | Preamble |
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Paying Agent | Section 1.3 |
Personal Property Leases | Section 2.6(c) |
Policy | Section 2.17 |
Pre-Closing Pass-Through Tax Return | Section 9.1(b) |
Preparing Party | Section 9.1(b) |
Privileged Communications | Section 10.15(c) |
Pro Rata Percentage | Section 1.10(a) |
Property Taxes | Section 9.1(a) |
Real Property Lease | Section 2.6(b) |
Remaining Dispute Items | Section 1.10(b)(iii) |
Required Governmental Authorizations | Section 2.10(a) |
Restrictive Covenant Agreements | Section 1.9(a)(x) |
Reviewable Return | Section 9.1(b) |
Shortfall | Section 1.10(c) |
Xxxxx | Section 1.11(b) |
Xxxxx Valuation Report | Section 1.11(b) |
Straddle Period | Section 9.1(a) |
Surviving Company | Section 1.1 |
Surviving Company LLC Agreement | Section 1.3 |
Tail Coverage | Section 5.5(b) |
Tax Claim | Section 9.1(g) |
Tax Reps | Section 2.12 |
Tax Treatment | Section 1.11(a) |
Transition Date | Section 5.7(b) |
Transfer Taxes | Section 9.1(d) |
Third-Party Claim | Section 8.4 |
Transition Services Agreement | Section 1.9(a)(viii) |
Transmittal Letter | Recitals |
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