DEFINITIONS from Alliance Agreement
This Strategic Marketing Alliance Agreement (this Agreement) is made as of this day of March, 2016 (the Effective Date), by and between Napo Pharmaceuticals, Inc., a Delaware corporation, and its successors and assigns (collectively, Napo) and SmartPharma, LLC, a New Jersey limited liability company (SP) (each of Napo and SP may be referred to as a Party and, collectively, the Parties).
DEFINITIONS. Audited Sales means sales based upon IMS Health National Sales Perspective, NSP or Symphony Health Solutions PHAST Integrated audit. Annual Budget is defined in Section 9.2. ARRA is defined in Section 8.2(d). Business of each Party is defined in the Preliminary Statements. Change of Control Event means (A) any transaction resulting in the sale of (i) all, substantially all, or more than fifty percent (50%) of the assets of Napo (ii) all, substantially all, or more than fifty percent (50%) of the equity of Napo, (B) any merger, acquisition, recapitalization or other form of entity restructuring, (C) another form of sale, merger or divestiture not delineated herein, and/or (D) the divestiture of any drug or related formula or compound that SP has worked on or for with Napo pursuant to this Agreement in the three (3) years prior to such Change of Control Event. Change of Control Event shall not include a roll-up, acquisition or merger, of Napo with, by or into Jaguar Animal Health, Inc.a Delaware corporation. Claim or Claims means claims, demands, charges, complaints, suits, hearings, investigations, judgments, orders, decrees, stipulations, injunctions, actions, regulatory, legislative, or judicial proceedings or investigations, or other proceedings. COGS means all costs related to raw material, manufacturing and packaging of finished goods of Fulyzaq/Crofelemer and includes, but is not limited to: (a) the direct labor costs incurred in the manufacture of each tablet, or other medium of delivery, of Fulyzaq/Crofelemer; (b) the cost of materials used in such manufacture (including raw materials, intermediate compounds, active compounds, excipients, components and packaging materials, and including shipping and taxes therefor); (c) the cost of shipping each tablet and the raw materials, intermediate compounds and active compounds for incorporation therein; (d) a reasonable allocation of overhead, facilities expense (including depreciation over the expected life of the buildings and equipment), and costs for administration and for management of material procurement and other manufacturing activities performed directly in support of the manufacture or acquisition of each tablet, calculated in accordance with reasonable cost accounting methods that comply with GAAP; and (e) amounts paid (net of rebates or discounts, if any, and not including amounts paid as royalties) to non-Affiliate contract manufacturers or service providers to acquire each tablet, or other medium of delivery, or in connection with the manufacture of each tablet, or other medium of delivery. Commercialization Third Party or Commercialization Third Parties means a third-party service provider performing at least one (1) or more commercialization support services on behalf of Napo. Services provided by a Commercialization Third Party may include, but are not limited to, third-party logistics (including, but not limited to, warehousing and distribution services), pharmacovigilance, regulatory services/support, medical affairs support, or managed care contracts and rebates support. Confidential Information includes (in any medium) any confidential or proprietary information of a Party (including, with respect to Napo, the Data), including but not limited to, any trade secrets, processes, formulas, data, documentation, flow-charts, drawings, correspondence, know-how, improvements, Inventions, patents, trademarks, copyrights and other intellectual property, techniques, concepts, technologies, software, hardware, formulae, equipment, programs, sketches, designs, personnel records and files, former client and customer lists, current client and customer lists, potential client and customer lists, rental-related information, product or service specifications, debt arrangements, equity structures, fees, litigation, customer contracts, sales records (historical and projected), rates, marketing plans, developments and strategies, distribution methods and processes, projections, financial information, terms governing actual or anticipated relationships, internal accounting statistics, financial projects, business plans (whether current or not), pricing and bidding policies and practices, costing information, salaries, proposals to customers, any data, computer records, software, confidential information or property entrusted to a Party or any Affiliate by any customers, confidential information concerning customers, employees of a Party or any Affiliate and any other information passing between the Parties pursuant to the Purpose. Confidential Information shall not, however, include any information that (i) can be demonstrated to be generally known in the industry or to the public other than through breach of a Receiving Partys obligations to a Disclosing Party; (ii) was already known by the Receiving Party at the time of its disclosure hereunder as evidenced by written records; (iii) is independently obtained by the Receiving Party from a third party that d
DEFINITIONS from Amended and Restated
The Campbell Soup Company Supplemental Retirement Plan (the "Plan") is designed for Eligible Executives of Campbell Soup Company to provide an additional method of planning for retirement and other significant saving needs with respect to amounts deferred or vested after 2004. The Plan is intended to (1) comply with section 409A of the Internal Revenue Code (the "Code") and official guidance issued thereunder, and (2) with respect to Eligible Executives who are employed by the Company, be an "unfunded" plan maintained for the purpose of providing deferred compensation to a select group of management or highly compensated employees for purposes of Title I of the Employee Retirement Income Security Act of 1974. Notwithstanding any other provision of this Plan, this Plan shall be interpreted, operated, and administered in a manner consistent with these intentions.
DEFINITIONS. Unless the context otherwise requires, the following words and phrases as used herein shall have the following meanings:SS1.1 "401(k) Plan" means the Campbell Soup Company 401(k) Retirement Plan or a successor plan.SS1.2 "Account Balance" means the total amount credited to the bookkeeping Investment Accounts in which Contributions are maintained for a Participant, including earnings thereon. The Account Balance shall include any amounts earned or vested under the Prior Plan after December 31, 2004, including earnings thereon.SS1.3 "Annual Incentive Compensation" means any Employer annual incentive program or sales incentive program which the Plan Administrator has approved for deferral under the Plan, including the Campbell Soup Company Annual Incentive Plan.SS1.4 "Beneficiary" means the person that the Participant designates to receive any unpaid portion of the Participant's Account Balance should the Participant's death occur before the Participant receives the entire Account Balance. If the Participant does not designate a beneficiary, the Participant's Beneficiary shall be his or her spouse if the Participant is married at the time of death, or the Participant's estate if he or she is unmarried at the time of death. SS1.5 "Board of Directors" means the board of directors of Campbell Soup Company.SS1.6 "Campbell Stock" means capital stock of Campbell Soup Company.SS1.7 "Campbell Stock Account" means an account in which deferred amounts are valued as if they were invested in a fund that tracks Campbell Stock.SS1.8 "Code" means the Internal Revenue Code of 1986, as amended.SS1.9 "Committee" means the Compensation and Organization Committee of the Board or a subcommittee thereof. All members of the Committee shall be "Outside Directors," as defined or interpreted for purposes of Code section 162(m), and "Non-Employee Directors" within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934 (the "1934 Act").SS1.10 "Company" means Campbell Soup Company or any successor corporation thereto.SS1.11 "Compensation" means, for purposes of the Plan, an Eligible Executive's Salary, LTIP Award, Annual Incentive Compensation and Director's Fees.SS1.12 "Contributions" mean amounts deferred under the Plan pursuant to Article III (including Elective Contributions and Non-Elective Contributions) and allocated to a Participant's Account Balance. No money or other assets will actually be contributed to such Account Balance.SS1.13 "Default Distribution Schedule" means the payment schedule described in Section 5.7 based on the total Account Balance on the later of (a) the Payment Date; or (b) the date selected pursuant to a Subsequent Deferral Election, if applicable.SS1.14 "Deferral Form" means a form, written or electronic, provided by the Committee pursuant to which an Eligible Executive may elect to defer amounts under the Plan.SS1.15 "Director" means a non-Employee member of the Board of Directors.SS1.16 "Director's Fees" means retainers, meeting attendance fees and any other renumeration received by a Director for his or her services on the Board of Directors, including LTIP Awards.SS1.17 "Elective Contributions" mean the contributions described in Section 3.1.SS1.18 "Eligible Executive" means a full-time salaried Employee who is classified as exempt under the Fair Labor Standards Act of 1938, as amended (an "exempt Employee"). Eligible Executive also means a Director.SS1.19 "Employee" means an individual who is employed by the Employer.SS1.20 "Employer" means the Company and any subsidiary designated by the corporate officer in charge of Human Resources of the Company, as set forth in Exhibit A.SS1.21 "Executive Retirement Contribution" means the benefit described in Section 3.2(c).SS1.22 "Grandfathered Amounts" means amounts that were deferred under the Prior Plan and earned and vested as of December 31, 2004. Grandfathered Amounts are subject to the distribution rules under the Prior Plan in effect on October 3, 2004.SS1.23 "Initial Distribution Election" means upon an Eligible Executive's first election to defer Compensation under the Plan made pursuant to an irrevocable Deferral Form and in accordance with the time requirements set forth in Section 5.2, the Participant may elect the time or form of payment for the portion of his or her Account Balance attributable to Elective Contributions (and earnings thereon). SS1.24 "Investment Account" means an accounting record, maintained for each Participant, valued in accordance with the performance of the investment choice in which the deferred amounts are allocated. No funds are actually contributed to an Investment Account. The Plan Administrator shall determine which Investment Accounts (including the Campbell Stock Account) are offered.SS1.25 "Key Employee" means an individual treated as a "specified employee" as of his Separation from Service under Code section 409A(a)(2)(B)(i) (i.e., a key employee, as defined in Code section 416(i) without regard to para
DEFINITIONS from Amended and Restated
Effective as of July 1, 2001, Monsanto Company established the Monsanto Company ERISA Parity Savings and Investment Plan (the "Plan") as a successor to the Pharmacia Corporation ERISA Parity Savings and Investment Plan for the benefit of certain participants in the Monsanto Company Savings and Investment Plan ("SIP").
DEFINITIONS. 3.1Except as otherwise defined herein, all words with initial capitals will have the same meaning as in SIP, whether or not such words are capitalized in SIP.(a)"2005-2009 Contribution Account" means the sub-account within a Participant's SIP Parity Account to which contributions made by the Participant and matching or other contributions made by his Employer for 2005, 2006, 2007, 2008 and 2009, and all earlier contributions that were not earned and vested before 2005-uses-in-definitions-clause" title="Click to see all January 1, 2005 (date) values">January 1, 2005, will be credited. A Participant's 2005-2009 Contribution Account will be adjusted for earnings and losses and reduced by distributions.(b)"409A Account," means, for purposes of Section 5 of the Plan, the portion of a Participant's SIP Parity Account comprised of his 2005-2009 Contribution Account and Post-2009 Contribution Account, as applicable.(c)"Affiliate" means,(i)a corporation that is a member of a controlled group of corporations (within the meaning of Code SS 414(b)) that includes an Employer;(ii)a trade or business (whether or not incorporated) that is under common control (within the meaning of Code SS 414(c)) with an Employer;(iii)an organization (whether or not incorporated) that is a member of an affiliated service group (within the meaning of Code SS 414(m)) that includes an Employer; or(iv)any other entity required to be aggregated with an Employer pursuant to regulations issued under the Code SS 414(o).(d)"Board People Committee" means the People and Compensation Committee of the Board of Directors of the Company.(e)"Code" means the Internal Revenue Code of 1986 or any successor thereto, as amended from time to time, and any applicable regulations thereunder.(f)"Committee" means the Board People Committee or the Internal People Committee, as the context may require, as more fully set forth in Section 10.(g)"Company" means Monsanto Company, a Delaware corporation that was incorporated on February 9, 2000 under the name Monsanto Ag Company and changed its name to Monsanto Company on March 31, 2000.(h)"Compensation Limitation" means the limitation on the amount of compensation that may be taken into account in a given year under SIP under Code Section 401(a)(17).(i)"Death Benefit Beneficiary" has the meaning set forth in Section 7.1.(j)"Deferral Election" means an election by a Participant, made in accordance with the provisions of Section 4 hereof, and the rules and procedures established from time to time by the Company, to have Excess Eligible Compensation deferred under the Plan.(k)"Deferral Period" means the Deferral Period elected by a Participant pursuant to Section 5.3 or Section 6.3 as part of a Subsequent Deferral Election. The Deferral Period will begin on the date on which payment would have been made to the Participant in the absence of the Subsequent Deferral Election and end on the date payment is made or commences.(l)"Deferred Payment Plan" means the Monsanto Company Deferred Payment Plan and any successor plan.(m)"Disabled" means a Participant who has been deemed, under the terms of the Monsanto Company Disability Plan ("Disability Plan"), at the time he ceases to perform services as an active Eligible Employee, to have incurred a long-term disability due to his inability to perform with or without reasonable accommodation, any reasonable occupation for which he is qualified or may become qualified by virtue of his education, training, or experience and he is eligible for benefits under the Disability Plan as a result of such long-term disability.(n)"EBPC" means the Employee Benefits Plans Committee of the Company or, to the extent necessary or appropriate in view of Sections 16(a) and 16(b) of the Securities Exchange Act of 1934, the Board People Committee.(o)"Eligible Compensation" means remuneration received by a Participant from an Employer while an Eligible Employee, as determined pursuant to the Plan provisions in effect when the remuneration is earned. Eligible Compensation will include base pay, shift differential pay, overtime pay, holiday pay, fire brigade pay, military service pay (but only in an amount equivalent to the amount of the Participant's base pay in effect on the last day worked prior to his military leave), sick leave pay, call-in pay, contract notice of termination pay, commissions, sales awards, gain sharing, and annual incentive pay. Eligible Compensation will exclude amounts attributable to the exercise of stock options; the value of any restricted stock, restricted stock units or other equity granted under any long-term incentive plan maintained by an Employer and any dividends or dividend equivalents payable thereon; amounts paid or reimbursed by an Employer for insurance or other welfare plans or benefits; pay in lieu of vacations; severance payments and other benefits received by a Participant under a severance plan or separation pay plan maintained by an Employer; ad hoc or one-time payments; and any other amounts identified in any applicable Supplement to SIP. Overtime
Definitions from Agreement and Plan of Merger
THIS AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of December 22, 2016, is made by and among Essentialis, Inc., a Delaware corporation (the Company), Capnia, Inc., a Delaware corporation (Parent), Company E Merger Sub, Inc., a Delaware corporation and direct wholly owned subsidiary of Parent (Merger Sub), and Neil Cowen (the Stockholders Representative), solely in his capacity as the representative for the Company Stockholders and only for the purposes expressly provided herein. Parent, Merger Sub and the Company, and, solely in his capacity as and solely to the extent applicable, the Stockholders Representative, shall be referred to herein from time to time as a Party and collectively as the Parties. Capitalized terms used and not otherwise defined herein have the meanings set forth in Article X below.
Definitions. For purposes hereof, the following terms when used herein shall have the respective meanings set forth below: Accredited Investor means any Company Stockholder or Other Consideration Recipient, as applicable, who is an accredited investor (as such term is defined in Rule 501 of Regulation D promulgated under the Securities Act), as determined by Parent in its reasonable discretion. Action means any legal action, suit, arbitration, investigation, claim, proceeding or other similar dispute (whether federal, state, local or foreign). Affiliate of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where control means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, Contract or otherwise. Antitrust Law means any federal, state or foreign Law, regulation or decree designed to prohibit, restrict or regulate actions for the purpose or effect of monopolization or restraint of trade or the significant impediment of effective competition. Business Day means a day which is neither a Saturday or Sunday, nor any other day on which banking institutions in San Francisco, California are authorized or obligated by Law to close. Carve-Out Plan means the Companys 2010 Key Personnel Incentive Program, effective as of August 11, 2010. Carve-Out Plan Closing Merger Shares means the aggregate number of Closing Merger Shares issuable to the Carve-Out Plan Participants in connection with the Closing in accordance with the terms of the Carve-Out Plan, rounded down to the nearest whole share (and which number of Carve-out Plan Closing Merger Shares shall be set forth on the Consideration Spreadsheet and will be relied upon by Parent as determinative). Table of Contents Carve-Out Plan Holdback Shares means, with respect to any release and issuance of Holdback Shares, the aggregate number of Holdback Shares issuable to the Carve-Out Plan Participants in connection with the release of such Holdback Shares in accordance with the terms of the Carve-Out Plan, rounded down to the nearest whole share (and which maximum number of Carve-out Plan Holdback Shares shall be set forth on the Consideration Spreadsheet and will be relied upon by Parent as determinative). Carve-Out Plan Consideration means, collectively, the Carve-Out Plan Closing Merger Shares, the Carve-Out Plan Milestone Consideration and the Carve-Out Plan Holdback Shares. Carve-Out Plan Milestone Consideration means, collectively, the (a) Carve-Out Plan Milestone Shares and (b) the Carve-out Plan Commercial Milestone Cash Consideration. Carve-Out Plan Milestone Shares means the aggregate number of Milestone Shares issuable to the Carve-Out Plan Participants in connection with the achievement of the Development Milestone, rounded down to the nearest whole share (and which number of Carve-out Plan Milestone Shares shall be set forth on the Consideration Spreadsheet and will be relied upon by Parent as determinative). Carve-out Plan Commercial Milestone Cash Consideration means, with respect to the achievement of a Commercial Milestone, the applicable aggregate amount of the applicable Commercial Milestone Cash Payment paid to the Carve-Out Plan Participants in connection with the achievement of such Commercial Milestone and in accordance with the terms of the Carve-Out Plan (and which amount of such Carve-Out Plan Commercial Milestone Cash Consideration shall be set forth on the Consideration Spreadsheet and will be relied upon by Parent as determinative). Carve-Out Plan Participants means those Key Personnel (as defined in the Carve-out Plan) set forth on Section 10.01(a) of the Company Disclosure Schedules (and on the Consideration Spreadsheet) and who are entitled to receive the applicable Carve-Out Plan Consideration set forth opposite such Key Personnels name on Section 10.01(a) of the Company Disclosure Schedules (and on the Consideration Spreadsheet) issuable and payable in accordance with the terms hereunder. Closing Date Indebtedness means the aggregate amount of Indebtedness of the Company as of immediately prior to the Closing. Closing Merger Shares means such number of shares of Parent Common Stock equal to (a) eighty-percent percent (80%) of the Total Merger Shares, rounded down to the nearest whole share, less (b) the Holdback Shares, plus (c) the Interim Financing Additional Shares, if any. COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended. Code means the Internal Revenue Code of 1986, as amended. Company Acquisition Proposal means any proposal, offer, or indication of interest (other than a proposal, offer, or indication of interest by the other party hereto) relating to any Company Acquisition Transaction. Company Acquisition Transaction means, with respect to the Company, any transaction or series of related transactions (other than the transactions c
The Lincoln Electric Company (the Company) hereby adopts The Lincoln Electric Company Restoration Plan (the Plan) to read as set forth herein.
DEFINITIONS. Except as otherwise defined in this Plan, words and phrases used herein with initial capital letters that are defined in The Lincoln Electric Company Employee Savings Plan, as it may be amended from time to time, or any successor thereto, shall have the same meanings when used herein, unless a different meaning is clearly required by the context of this Plan. The following words and phrases shall have the following respective meanings for purposes of this Plan (without regard to their definition under The Lincoln Electric Company Employee Savings Plan, unless otherwise specifically provided): SECTION 2.1 Account shall mean the bookkeeping record maintained by the Employer in accordance with Section 4.6 showing a Participants interest under the Plan. SECTION 2.2 Beneficiary shall mean the person or persons designated by the Participant as his or her Beneficiary under this Plan, in accordance with the provisions of Article VI. SECTION 2.3 Company shall mean The Lincoln Electric Company. SECTION 2.4 Compensation shall mean an Employees Compensation as defined in the Savings Plan without regard to the Compensation Limitation, plus the Employees deferrals, if any, of Base Salary and Bonuses under the Lincoln Electric Holdings, Inc. 2005 Deferred Compensation Plan for Executives, as the terms Base Salary and Bonuses are defined in such 2005 Deferred Compensation Plan for Executives. SECTION 2.5 Compensation Limitation shall mean the maximum dollar amount of compensation that may be taken into account under the Savings Plan pursuant to Section 401(a)(17) of the Code for a particular Plan Year. SECTION 2.6 Change in Control Event shall mean an event described in Section 6.7 of the Plan. SECTION 2.7 Employer shall mean the Company and any other Controlled Group Member designated as a participating employer under the Plan by the Administrative Committee for the Savings Plan. An Employer that ceases to exist, ceases to be a Controlled Group Member, or withdraws from the Plan shall no longer be an Employer. SECTION 2.8 Excess Matching Contribution Benefit shall mean the benefit described in Section 4.1. SECTION 2.9 Excess Matching Contribution Eligible Employee shall mean an Employee described in Section 3.1. SECTION 2.10 Excess Matching Contribution Sub-Account shall mean the Sub-Account described in Section 4.1. SECTION 2.11 Excess Nonelective Contribution Benefit shall mean the benefit described in Section 4.2. SECTION 2.12 Excess Nonelective Contribution Eligible Employee shall mean an Employee described in Section 3.2. SECTION 2.13 Excess Nonelective Contribution Sub-Account shall mean the Sub-Account described in Section 4.2. SECTION 2.14 Excess Retirement Benefit or Benefits shall mean individually or collectively the Excess Matching Contribution Benefit, the Excess Nonelective Contribution Benefit and the Excess Transitional Contribution Benefit. SECTION 2.15 Excess Retirement Benefit Eligible Employee shall mean an Employee of an Employer who is an Excess Matching Contribution Eligible Employee, an Excess Nonelective Contribution Eligible Employee or an Excess Transitional Contribution Eligible Employee. SECTION 2.16 Excess Transitional Contribution Benefit shall mean the benefit described in Section 4.3. SECTION 2.17 Excess Transitional Contribution Eligible Employee shall mean an Employee described in Section 3.3. SECTION 2.18 Excess Transitional Contribution Sub-Account shall mean the Sub-Account described in Section 4.3. SECTION 2.19 Holdings shall mean Lincoln Electric Holdings, Inc. SECTION 2.20 Other 401(k) Plan shall mean a defined contribution plan, other than the Savings Plan, maintained by an Employer that is qualified under Section 401(a) of the Code and includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code. SECTION 2.21 Participant shall mean an Excess Retirement Benefit Eligible Employee or former Excess Retirement Benefit Eligible Employee who has an Account under the Plan. SECTION 2.22 Plan shall mean The Lincoln Electric Company Restoration Plan, as herein set forth, and as amended from time to time. SECTION 2.23 Plan Administrator shall mean the Company. SECTION 2.24 Plan Year shall mean the calendar year. SECTION 2.25 Retirement shall mean a Separation From Service that occurs on or after the date the Participant attains age 55. SECTION 2.26 Savings Plan shall mean The Lincoln Electric Company Employee Savings Plan, as amended and restated effective January 1, 2017, and as the same may be amended from time to time, or any successor thereto. SECTION 2.27 Separation from Service shall mean a separation from service, as defined in the 409A Guidance, with the Employer and all Controlled Group Members. SECTION 2.28 Unforeseeable Emergency shall mean a severe financial hardship of the Participant resulting from an illness or accident of the Participant, the Participants spouse, the Participants Beneficiary, or the Participants dependent (as defined in S
Definitions from Agreement and Plan of Merger
This AGREEMENT AND PLAN OF MERGER, dated as of August 24, 2016 (this Agreement), is entered into by and among BERRY PLASTICS GROUP, INC., a Delaware corporation (Parent), BERRY PLASTICS CORPORATION, a Delaware corporation and a direct, wholly owned Subsidiary of Parent (Holdings), BERRY PLASTICS ACQUISITION CORPORATION XVI, a Delaware corporation and a direct, wholly owned Subsidiary of Holdings (Merger Sub), BERRY PLASTICS ACQUISITION CORPORATION XV, LLC, a Delaware limited liability company and a direct, wholly owned Subsidiary of Holdings (Merger Sub LLC) and AEP INDUSTRIES INC., a Delaware corporation (the Company). Defined terms used herein have the meanings set forth in Section 8.14.
Definitions. As used in this Agreement, the following terms shall have the meanings ascribed to them below: Acceptable Confidentiality Agreement shall mean a customary confidentiality agreement (which need not prohibit the making of a Takeover Proposal); provided that such confidentiality agreement contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (other than that it need not prohibit the making of a Takeover Proposal), unless the Company offers to amend the Company Confidentiality Agreement to reflect such more favorable terms. Affiliate shall mean, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, control (including, with its correlative meanings, controlled by and under common control with) when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or otherwise. Aggregate Merger Consideration shall have the meaning set forth in Section 2.7(a). Agreement shall have the meaning set forth in the Preamble. Alternative Financing shall have the meaning set forth in Section 5.11(a). Alternative Funding Election shall have the meaning set forth in Section 2.1(e). Alternative Funding Election Notice shall have the meaning set forth in Section 2.1(e). Alternative Funding Election Period shall have the meaning set forth in Section 2.1(e). Antitrust Laws shall mean the Sherman Act, the Clayton Act, the HSR Act, the Federal Trade Commission Act, and all applicable Foreign Antitrust Laws and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. Approvals shall have the meaning set forth in Section 5.3(a). Balance Sheet shall have the meaning set forth in Section 3.7(a). Balance Sheet Date shall have the meaning set forth in Section 3.7(a). Bankruptcy and Equity Exception shall have the meaning set forth in Section 3.3(a). Book-Entry Shares shall have the meaning set forth in Section 2.1(c)(vi). Business Day shall mean a day except a Saturday, a Sunday or other day on which the SEC or banks in the City of New York are authorized or required by Law to be closed. Cancelled Shares shall have the meaning set forth in Section 2.1(b). Cash Consideration shall have the meaning set forth in Section 2.1(c)(i). Cash Conversion Number shall have the meaning set forth in Section 2.5(a). Cash Election shall have the meaning set forth in Section 2.1(c)(i). Cash Election Number shall have the meaning set forth in Section 2.5(b)(i). Cash Election Shares shall have the meaning set forth in Section 2.1(c)(i). Cash Portion shall have the meaning set forth in Section 2.6(b). Certificate shall have the meaning set forth in Section 2.1(c)(vi). Certificates of Merger shall have the meaning set forth in Section 1.1(b). Claim shall have the meaning set forth in Section 5.6(a). Clayton Act shall mean the Clayton Act of 1914. Closing shall have the meaning set forth in Section 1.2. Closing Date shall have the meaning set forth in Section 1.2. Code shall have the meaning set forth in the Recitals. Company shall have the meaning set forth in the Preamble. Company Adverse Recommendation Change shall have the meaning set forth in Section 5.2(c). Company Board shall have the meaning set forth in the Recitals. Company Board Recommendation shall have the meaning set forth in Section 3.3(d). Company Board Recommendation Notice shall have the meaning set forth in Section 5.2(e). Company Canadian Facilities shall mean (i) that certain Commitment Letter, dated April 25, 2016, between the Bank of Nova Scotia, as bank, and AEP Canada Inc., as borrower, (ii) that certain Agreement re: Operating Credit Line, dated May 31, 2010, between the Bank of Nova Scotia, as the bank, and AEP Canada Inc., as customer, together with all schedules thereto, and (iii) that certain General Security Agreement, dated December 5, 2001, between the Bank of Nova Scotia, as the bank, and AEP Canada Inc., as customer, in the case of clauses (i) through (iii), as amended, restated, supplemented or otherwise modified to the date of this Agreement. Company Charter Documents shall mean the certificate of incorporation and bylaws of the Company, in each case as amended, restated, supplemented or otherwise modified to the date of this Agreement. Company Common Stock shall have the meaning set forth in Section 2.1. Company Confidentiality Agreement shall mean that certain C
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of May 22, 2016, is by and among Resource America, Inc., a Delaware corporation (the "Company"), C-III Capital Partners LLC, a Delaware limited liability company ("Parent"), and Regent Acquisition Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"). Parent, Merger Sub and the Company are referred to individually as a "Party" and collectively as "Parties".
Definitions. (a) As used herein, the following terms have the following meanings:"1933 Act" means the U.S. Securities Act of 1933, as amended."1934 Act" means the U.S. Securities Exchange Act of 1934, as amended."Advisers Act" means the Investment Advisers Act of 1940, and the rules and regulations promulgated thereunder, as amended."Advisory Client" shall mean any Person to which the Company or any of its Subsidiaries or Trapeza, directly or indirectly, provides investment advisory services pursuant to an Advisory Contract."Advisory Contract" shall mean any investment advisory, sub-advisory, investment management, collateral management, collateral administration, trust or similar agreement with any Advisory Client to which the Company or any of its Subsidiaries or Trapeza is a party, including those with the Public Funds, Private Funds, Managed REITs and CDO Issuers."Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls or is controlled by, or is under common control with such Person."Apartment REIT III" means Resource Apartment REIT III, Inc., a Maryland corporation."Broker-Dealer" shall mean a "broker" or "dealer" (as defined in Sections 3(a)(4) and 3(a)(5) of the 1934 Act)."Business Day" means any day that is not a Saturday, a Sunday or other day that (i) is a statutory holiday under the federal Laws of the United States or (ii) is otherwise a day on which banks in New York, New York are authorized or obligated by Law or executive order to close."CDO Issuer" means an issuer of any collateralized debt obligation or collateralized loan obligation that is a party to an Advisory Contract with the Company or any of its Subsidiaries or Trapeza pursuant to which the Company or any of its Subsidiaries or Trapeza serves as a collateral manager, collateral administrator or in a similar capacity. "Closing Date" means the date of the Closing."Code" means the Internal Revenue Code of 1986, as amended."Company Acquisition Proposal" means any proposal, indication of interest or offer from any Person or "group" (as defined under Section 13(d) of the 1934 Act and the rules and regulations thereunder) (other than Parent and its Subsidiaries or Affiliates) relating to (i) any direct or indirect acquisition or purchase of the business or assets (including equity interests in Subsidiaries) of the Company or any of its Subsidiaries representing 25% or more of the consolidated revenues, net income or assets of the Company, (ii) any issuance, sale or other disposition, directly or indirectly, to any Person or group of securities representing 25% or more of the total voting power of the Company, (iii) any tender offer or exchange offer that if consummated would result in any Person or group, directly or indirectly, beneficially owning 25% or more of any class of equity securities of the Company, (iv) any merger, consolidation, amalgamation, share exchange, business combination, joint venture, reorganization, recapitalization, liquidation, dissolution, or similar transaction involving the Company or any of its Subsidiaries that would (A) result in any Person or group, directly or indirectly, beneficially owning 25% or more of the total voting power of the outstanding common stock of the Company or the surviving entity or (B) result in the Company's stockholders immediately prior to the consummation of such transaction beneficially owning less than 75% of the total voting power of the outstanding common stock of the Company or the surviving entity, or (v) any combination of the foregoing."Company Adverse Recommendation Change" means any of the following actions by the Company Board: (i) withholding or withdrawing (or modifying or qualifying in a manner adverse to Parent) or proposing publicly to withhold or withdraw (or modify or qualify in a manner adverse to Parent), the Company Board Recommendation, (ii) failing to include the Company Board Recommendation in the Proxy Statement, in each case, subject to the terms and conditions of this Agreement, (iii) approving, recommending, or otherwise declaring to be advisable or publicly proposing to approve, recommend or determine to be advisable any Company Acquisition Proposal, (iv) following any Company Acquisition Proposal structured as a tender offer or exchange offer, failing, within ten (10) Business Days of the commencement thereof pursuant to Rule 14d-2 of the 1934 Act, to recommend against acceptance of any such tender offer or exchange offer by the Company's stockholders (it being understood that the Company Board or any committee thereof may elect to take no position with respect to a Company Acquisition Proposal until the close of business on the tenth (10th) Business Day after the commencement of such tender offer or exchange offer pursuant to Rule 14e-2 under the 1934 Act without such action in and of itself being considered a Company Adverse Recommendation Change) or (v) publicly announcing an intention, or resolve, to take any of the for
Definitions from Agreement and Plan of Merger
This AGREEMENT AND PLAN OF MERGER (the Agreement) is made and entered into as of June 6, 2016 (the Agreement Date) by and among NuVasive, Inc., a Delaware corporation (Acquiror), Bionic Acquisition Corporation, a Delaware corporation (Merger Sub) and wholly owned subsidiary of Acquiror, BNN Holdings Corp., a Delaware corporation (the Target) and solely in its capacity as the securityholders representative for Target, GPP I-BNN, LLC (Securityholders Agent).
Definitions. As used in this Agreement, the following terms shall have the following meanings: 401(k) Plan has the meaning set forth in Section 7.2(l). 409A Plan has the meaning set forth in Section 3.24(j). 280G Stockholder Approval has the meaning set forth in Section 6.14. Acquiror has the meaning set forth in the introductory paragraph. Acquiror Indemnified Person and Acquiror Indemnified Persons have the meanings set forth in Section 9.2(a). Acquisition Proposal has the meaning set forth in Section 5.2(a). Affiliate with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person provided that, for purposes of this definition, control (including, with correlative meanings, the terms controlled by and under common control with), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. Aggregate Option Exercise Amount means (i) the aggregate amount of the applicable Option Exercise Prices for each In-the-Money Vested Target Option multiplied by (ii) the number of vested shares of Target Common Stock issuable upon exercise of such In-the-Money Vested Target Option. Agreement has the meaning set forth in the introductory paragraph. Applicable Law means, collectively, any applicable federal, state, provincial foreign or local statute, law, ordinance, regulation, rule, code, order, judgment, decree or other legally binding requirement or rule of law, including but not limited to any applicable provision of the Delaware Law. Applicable Portion means (i) in the event that the holders of Target Series A Preferred Stock and Target Series B Preferred Stock do not receive the Preferred Stock Preference Payment and therefore receive their portion of the Merger Consideration on an as-converted basis, then with respect to each Securityholder, an amount equal to the quotient obtained by dividing (A) the amount of Merger Consideration payable to such Securityholder pursuant to Section 2.6(a) and Section 2.6(b), by (B) the aggregate amount of Merger Consideration payable to all Securityholders pursuant to Section 2.6(a) and Section 2.6(b) and (ii) in the event that the holders of Target Series A Preferred Stock and Target Series B Preferred Stock receive the Preferred Stock Preference Payment, then the Applicable Portion shall, (x) with respect to the Merger Consideration paid to the holders of Target Common Stock, be the quotient obtained by dividing (A) Common Escrow Amount, by (B) the number of Fully Diluted Shares Outstanding and (y) with respect to the Merger Consideration paid to the holders of Target Preferred Stock, be the Preferred Pro Rata Portion. Business Day means any day other than a Saturday, Sunday or other day when commercial banks in San Diego, California are permitted or required by law to be closed for the conduct of regular banking business. Cap has the meaning set forth in Section 9.2(d). CERCLA has the meaning set forth in Section 3.22(a)(i). Certificate of Merger has the meaning set forth in Section 2.1. Certificates has the meaning set forth in Section 2.8(c). Claims Period has the meaning set forth in Section 9.3(c). Closing has the meaning set forth in Section 2.2. Closing Certificate has the meaning set forth in Section 2.13(b). Closing Date has the meaning set forth in Section 2.2. Closing Payment Schedule has the meaning set forth in Section 2.7. CMS means the Centers for Medicare and Medicaid Services of DHHS. COBRA has the meaning set forth in Section 3.24(b). Code means the Internal Revenue Code of 1986, as amended. Common Escrow Amount means the aggregate amount of the Merger Consideration otherwise payable to the Common Stockholders (and any In-the-Money Vested Target Options, if any) that is used to fund the Escrow Amount. Confidentiality Agreement has the meaning set forth in Section 6.3. Contract means any contract, agreement or legally binding arrangement, whether written or oral. Contract Consents has the meaning set forth in Section 3.16(c). Copyrights means all copyrights, copyrightable works and mask works (including all applications and registrations for each of the foregoing), and all other rights corresponding thereto throughout the world. Damages means all losses, costs, damages (which with respect to punitive damages and damages based on a multiples, shall only include amounts actually paid or required to be paid to a third party as part of an indemnifiable third party claim), fees, diminution in value, liabilities, reasonable out-of-pocket costs of investigation and expenses, including Taxes, and costs and expenses arising from claims, demands, actions, causes of action and settlements, including reasonable fees and expenses of lawyers, experts and other professionals. Delaware Law means the Delaware General Corporation
Definitions from Contribution Agreement
THIS CONTRIBUTION AGREEMENT (the "Agreement"), dated as of June 29, 2016 (the "Execution Date"), by and among SunPower AssetCo, LLC, a Delaware limited liability company ("AssetCo"), 8point3 Operating Company, LLC, a Delaware limited liability company (the "Contributor") and, solely for purposes of agreeing to its obligations set forth in Section 7.07, SunPower Corporation, a Delaware corporation ("Parent Guarantor" or "SunPower" and, together with AssetCo and the Contributor, each a "Party" and collectively, the "Parties"). Capitalized terms used herein shall have the meanings set forth in Article I hereof.
Definitions. In this Agreement (including the Preamble and Recitals hereof), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and the plural forms of the terms defined): "8point3 Entities" means the Partnership and its Subsidiaries. "8point3 OpCo Holdings" has the meaning set forth in the Recitals. "Acquired Assets" has the meaning set forth in Section 3.11(a). "Acquired Companies" means the Company, the Project Holding Company and the Project Company. "Action" means any action, notice, claim, suit, arbitration, investigation, information, audit, request or proceeding by or before any arbitrator, court, or other Governmental Entity. "Affiliate" means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term "control" 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 ownership of voting securities, by contract or otherwise. Notwithstanding anything in the foregoing to the contrary, for purposes of this Agreement, AssetCo and its Affiliates will not be deemed to be Affiliates of the 8point3 Entities hereunder, and vice versa. "Agreement" has the meaning set forth in the Preamble. "Amended and Restated Company LLC Agreement" has the meaning set forth in Section 2.04(a). "AssetCo" has the meaning set forth in the Preamble. "AssetCo Disclosure Schedule" means the disclosure schedule prepared and delivered by AssetCo to the Contributor as of the Execution Date. "AssetCo Group" has the meaning set forth in Section 7.03. "AssetCo Indemnified Taxes" means (i) all Tax liabilities attributable to the ownership, management and operation of the Acquired Companies or the ownership and operation of the Acquired Assets or the Business and incurred on or prior to the Execution Date (as determined under Section 10.02), including (a) any such Tax liabilities of AssetCo and its Affiliates (including the Acquired Companies and the Contributor) that may result from the consummation of the transactions contemplated by this Agreement, (b) any such Tax liabilities arising under Treasury Regulations Section 1.1502-6 and any similar provisions of state, local or foreign Law, by contract, as successor, transferee or otherwise, or which are attributable to having been a member of a consolidated, combined or unitary group, and (c) any Tax imposed on the Acquired Companies or the Contributor that results from the business or operation of any other Affiliate of AssetCo. "AssetCo Material Adverse Effect" means a Material Adverse Effect with respect to the Acquired Companies, taken as a whole, or a material adverse effect on the ability of AssetCo or its Affiliates to consummate the transactions contemplated by the Transaction Documents or to perform its material obligations under the Transaction Documents. "AssetCo Party" has the meaning set forth in Section 3.01. "AssetCo Specified Representations" means those representations and warranties made in Sections 3.01 (Organization; Qualification), 3.02 (Authority and Power), 3.03 (Valid and Binding Obligation), 3.06 (Issuance of Class B Interests), 3.07 (Capital Stock) and 3.21 (No Brokers). "Balance Sheet" has the meaning set forth in Section 3.08(a). "Board of Directors" has the meaning set forth in the Recitals. "Business" means the business of the Acquired Companies on the Execution Date. "Business Day" means Monday through Friday of each week, except that a legal holiday recognized as such by the government of the United States of America or the State of New York shall not be regarded as a Business Day. "Cash Contribution" has the meaning set forth in Section 2.01(a). "Cash Grant" means any payment for specified energy property in lieu of tax credits under Section 1603 of Division B of the American Recovery and Reinvestment Act of 2009, P.L. 111-5, as amended, or any successor provision. "Charter Documents" means, with respect to any Person, all charter, organizational and other documents by which such Person (other than an individual) establishes its legal existence or which govern its internal affairs, and shall include: (a) in respect of a corporation, its certificate or articles of incorporation or association and its by-laws; (b) in respect of a general partnership, its statement of partnership existence, if any, and its partnership agreement; (c) in respect of a limited partnership, its certificate of limited partnership and its partnership agreement; and (d) in respect of a limited liability company, its certificate of formation and operating or limited liability company agreement. "Class A Interests" means 100% of the class A limited liability company interests of the Company. "Class B Interests" means 100% of the class B limited liability company interests of the Company. "C
DEFINITIONS from Manufacturing and Supply Agreement
THIS API MANUFACTURING AND SUPPLY AGREEMENT (the Agreement) is entered into as of , 2015 (the Effective Date) by and between Cempra Pharmaceuticals, Inc., a company organized under the laws of Delaware, USA with a place of business at 6340 Quadrangle Drive, Suite 100, Chapel Hill, NC 27517, USA (Cempra), and FUJIFILM FINECHEMICALS CO., LTD., a company organized under the laws of Japan with a place of business at 2-3, Higashiyawata 5-chome, Hiratsuka, Kanagawa 254-0016, Japan (FFFC). Cempra and FFFC may be referred to herein individually as a Party, and collectively as the Parties.
DEFINITIONS. The following capitalized words and phrases when used in this Agreement shall have the meaning provided in this Section 1. 1.1 Acceptance Tests means the specific tests to be used to determine whether API manufactured by FFFC conforms to the API Specifications, which tests shall be established (and amended from time to time if required) in writing by Cempra in consultation with FFFC. 1.2 Affiliate means, with respect to a particular Party, any corporation, organization, or other business entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party. The term control (including, with correlative meaning, the terms controlled by and under common control with), as used in this Section 1.2, means the possession of the power to direct, or cause the direction of, the management and business of the applicable corporation, organization, or other business entity, whether through the ownership or control of voting securities (or their voting power) or by contract, or court order, or otherwise. 1.3 API means the active pharmaceutical ingredient known as solithromycin as further described in Exhibit A of this Agreement (Solithromycin). 1.4 API Improvements means inventions, discoveries know-how or improvements specifically related to API or API Manufacturing Procedures (including analytical methods, manufacturing processes and packaging) that FFFC invents, develops, creates, discovers, conceives, or reduces to practice, in connection with or arising from its activities under this Agreement. 1.5 API Manufacturing Procedures means the specific methods, techniques, processes and standard operating procedures (including Quality Control Procedures) that are to be used by FFFC (or any of its Affiliates or subcontractors) in manufacturing the API under this Agreement in accordance with the API Specifications. 1.6 API Specifications mean the specifications, characteristics, qualities and labeling and packaging requirements established by Cempra in writing for API, with which API must conform (including release criteria and associated analytical methods), as such may be amended from time to time under the terms of this Agreement. The API Specifications shall be attached to this Agreement as Exhibit B. 1.7 Applicable Laws means collectively all laws, regulations, ordinances, decrees, judicial and administrative orders, policies and other requirements of any applicable Regulatory Authority that cover or apply to the manufacture, supply, or distribution of API for use in human pharmaceuticals, including the FD&C Act and the regulations administered by the FDA (including 21 C.F.R. Parts 11, 210 and 211), any equivalent laws, rules, and regulations in the Territory, and the following to the extent not in conflict with any laws or regulations that are issued or enforced by the FDA, MHLW, and other Regulatory Authorities as in effect during the provision of and applicable to API Manufacturing and other services provided by FFFC hereunder: (a) USP/NF/EP and other applicable compendia standards; (b) guidance documents (including Guidelines, Points to Consider, Inspection Technical Guides, International Conference on Harmonization Step 4 and 5 documents); and (c) cGMP. 1.8 Batch means the total amount of Intermediate or API manufactured in one particular production run conducted by FFFC (or any of its Affiliates or subcontractors) for manufacturing API. 1.9 Batch Record means, with respect to a particular production run conducted by FFFC for manufacturing one Batch of Intermediate or API, the completed manufacturing records, in the form of an executed Master Batch Record, for such production run containing all the relevant manufacturing details and information for the run, including quality control information and any deviations, and reviewed and approved by Quality Assurance. 1.10 Cempra Licensed Patents means those Patents in the Territory listed on Exhibit C attached hereto and any Patents in the Territory claiming priority to such Patents that are Controlled by Cempra. 1.11 Certificate of Analysis means a written document, for example in the form set forth in Exhibit D of this Agreement, which confirms that the quantity of the API manufactured and delivered by FFFC has been tested in accordance with the applicable Acceptance Tests and meets the API Specifications. The Certificate of Analysis will include the results of all Acceptance Tests performed by FFFC or, to the extent permitted by this Agreement, on behalf of FFFC by qualified Third Party subcontractors on the particular Batch of API. 1.12 Certificate of Compliance means a document, in a form acceptable to Cempra, from FFFC that approves the release of API to Cempra and certifies that the manufacturing and supply of the API has been performed in compliance with all Applicable Laws, including cGMP requirements. 1.13 CMC means the Chemistry, Manufacturing and Controls sections of any Regulatory Submission (including an IND, DMF, NDA,