“Since the date of this Agreement there shall not have been any Material Adverse Effect and no event, change, development, state of facts or effect shall have occurred that would reasonably be expected to have a Material Adverse Effect.”
“Since the date of this Agreement there shall not have been any Material Adverse Effect and no event, change, development, state of facts or effect shall have occurred that would reasonably be expected to have a Material Adverse Effect.”
““Material Adverse Effect” means any event, change, development, state of facts or effect that, individually or in the aggregate, (x) has had and continues to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of Everest and its Subsidiaries, taken as a whole, or of Olympus and its Subsidiaries, taken as a whole, or (y) would prevent or materially delay the consummation of the transactions contemplated by this Agreement; provided, that, solely for purposes of clause (x), no such event, change, development, state of facts or effect resulting, arising from or in connection with any of the following matters shall be deemed, either alone or in combination, to constitute or contribute to, or be taken into account in determining whether there has been or will be, a Material Adverse Effect: (a) the general conditions and trends in the industries or businesses in which Everest, Olympus or any of their respective Subsidiaries operates, including competition in any of the geographic or product areas in which Everest, Olympus or any of their respective Subsidiaries operates and seasonal fluctuations; (b) general economic conditions, financial conditions or capital market conditions (including interest rates, exchange rates and credit markets); (c) conditions resulting from the commencement, occurrence, continuation or intensification of any act of civil unrest, war (whether or not declared), terrorism or sabotage (including cyberattack), armed hostilities, military attacks or declaration of national emergency; (d) changes (or proposed changes) in Tax, regulatory or political conditions (including as a result of the negotiations or outcome with respect to Brexit) or Law, IFRS EU or IRFS IASB (or, in each case, any authoritative interpretations thereof or the enforcement thereof); (e) conditions resulting from any natural or manmade disasters, hurricanes, floods, tornados, pandemics, tsunamis, earthquakes, acts of God or other weather-related or natural conditions; (f) any action taken by any Seller or by Everest or Olympus, or any Seller’s or Everest’s or Olympus’s failure to take any action, in each case, that is required to be taken, or not taken, by this Agreement, or any action taken, or the failure to take any action, in each case that is required to be taken, or not taken, by applicable Law; (g) the failure of Everest, Olympus or any of their respective Subsidiaries to meet any projections, forecasts or budgets for any period (provided, that the underlying causes thereof, to the extent not otherwise excluded by this definition, may be taken into account in determining whether a Material Adverse Effect has occurred; provided, further, that this clause (g) shall not be construed as implying that Everest or Olympus is making any representation or warranty hereunder with respect to any projections, forecasts or budgets); (h) any action taken, or the failure to take action, or such other changes or events, in each case, to which Purchaser has consented in writing or the failure to take actions due to Purchaser’s failure to consent thereto, to the extent such consent is required to be given pursuant to the terms of this Agreement, following the request of Everest or Olympus; or (i) the execution, announcement, pendency or consummation of this Agreement or the transactions contemplated hereby, or the identity of Purchaser; provided, further, that any event, change, development or effect referred to in clause (a), (b), (c) or (e) may be taken into account in determining whether there has been a Material Adverse Effect to the extent, and solely to the extent, such event, change, development, state of facts or effect has a disproportionate effect on Everest and its Subsidiaries, taken as a whole, or on Olympus and its Subsidiaries, taken as a whole, as compared to other participants in the industries in which Everest, Olympus or their respective Subsidiaries operate.”
“6. The travel payments industry is the industry of providers of products and services to facilitate business to business payments to participants in the travel industry. 7. A participant in the travel payments industry is to be identified by the fact that it provides business-to-business payment products and/or services that are particularly suited to meet the payment needs of participants in the travel industry and supplied to such participants.”
“ I think that you could have taken the payment industry structure, broadly speaking …, and taken … meaningful groupings of different types of firms within that overall structure to try to have a representative sample that would be stratified by the groupings that you've identified as being, …, important.”
“It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning.”
“In summary, authority supports the following conclusions. The interpretation of a “material adverse change” clause depends on the terms of the clause construed according to well established principles. In the present case, the clause is in simple form, the borrower representing that there has been no material adverse change in its financial condition since the date of the loan agreement. Under such terms, the assessment of the financial condition of the borrower should normally begin with its financial information at the relevant times, and a lender seeking to demonstrate a MAC should show an adverse change over the period in question by reference to that information. However the enquiry is not necessarily limited to the financial information if there is other compelling evidence. The adverse change will be material if it significantly affects the borrower's ability to repay the loan in question. However, a lender cannot trigger such a clause on the basis of circumstances of which it was aware at the time of the agreement. Finally, it is up to the lender to prove the breach”
“In any M&A transaction, a significant deterioration in the selling company’s business between signing and closing may threaten the fundamentals of the deal. “Merger agreements typically address this problem through complex and highlynegotiated ‘material adverse change’ or ‘MAC’ clauses, which provide that, if a party has suffered a MAC within the meaning of the agreement, the counterparty can costlessly cancel the deal. Despite the attention that contracting parties give to these provisions, MAE clauses typically do not define what is “material.”
“Zhou, supra, at 173; accord Choi & Triantis, supra, at 867 (“The principal purpose of carve outs from the definition of material adverse events or changes seems to be to remove systemic or industry risk from the MAC condition, as well as risks that are known by both parties at the time of the agreement.”). “A possible rationale” for this allocation “is that the seller should not have to bear general and possibly undiversifiable risk that it cannot control and the buyer would likely be subject to no matter its investment.”
“provided further, however, that any effect, change, event or occurrence referred to in clause (A) or clauses (B)(3) or (4) may be taken into account in determining whether there has been, or would reasonably be expected to be, a Material Adverse Effect to the extent such effect, change, event or occurrence has a disproportionate adverse affect [sic] on the Company and its Subsidiaries, taken as a whole, as compared to other participants in the industry in which the Company and its Subsidiaries operate…” 184.As the Vice-Chancellor noted: “Consistent with standard practice in the M&A industry, the plain language of the Merger Agreement’s definition of a Material Adverse Effect generally allocates the risk of endogenous, business-specific events to Akorn [the seller] and exogenous, systematic risks to Fresenius [the buyer].”
“The primary driver of Akorn’s dismal performance was unexpected new market entrants who competed with Akorn’s three top products—ephedrine, clobetasol, and lidocaine. Akorn also unexpectedly lost a key contract to sell progesterone. These were problems specific to Akorn based on its product mix. Although Akorn has tried to transform its business-specific problems into “industry headwinds” by describing them at a greater level of generality, the problems were endogenous risks specific to Akorn’s business.”
“this combination creates the foremost B2B payments leader in the global travel marketplace… Importantly, this transaction combines leaders in the travel payment industry with highly complementary geographic footprints.”
“Based on the evaluation of Optal and eNett, WEX management has concluded that the targets enhance WEX’s travel offering through geographical expansion and additional product features, and the transaction will be accretive to WEX’s earnings”
“at a strategic level when we're considering assets, we're looking at asset categories of does it provide scale, does it increase your geographic mix and does it product extend for us. And what we liked about this was it actually hit on all three, we were really excited about that. It's rare for us to find something that hits across all three of those categories.”
“The travel payments industry is the industry of providers of products and services to facilitate business to business payments to participants in the travel industry”
“As the U.S. travel payments industry continues to advance, emerging geographies are taking a slightly different approach.” d) The invitation of July 2017, to the “WEX Travel Lead User Group meeting” at which over two days “a diverse group of travel industry experts” would “share their unique perspectives that will shape the future of the travel payments industry”. e) Travelport Press Release dated10 December 2018 : “Frank Baker, Co-Founder of Siris Capital, added … ‘Travelport is redefining the travel payments industry through eNett, a disruptive and fast-growing leader in secure, virtual travel payments….’” f) The WEX M&A Call Transcript dated24 January 2020 , statement of Ms Smith: “this transaction combines leaders in the travel payment industry with highly complementary geographic footprints.” g) The WEX Investor Presentation dated24 January 2020 : “Compelling strategic acquisition that adds capabilities and scale to Wex and strengthens its position in the Travel Payments industry”. h) An article by Anant Patel, the Vice President of WEX’s EMEA and APAC corporate payments division dated24 June 2020 : “At a time where circumstances are often uncertain and irrational, such as in the travel payments industry…” i) An interview with Greg Sassone, WEX’s Senior Vice President for Business and Partner Growth, dated10 July 2020 : “we have you know for… probably twenty years now have had a really big focus on the travel payments industry kind of as a vertical right so we work with all of the large online travel agencies and help embed payment where they have to pay their suppliers. That's a segment industry where we've been very focused.” j) The LinkedIn page of Jim Pratt: “Jim had the privilege of assembling diverse minds and cutting edge technologies to revolutionize the travel payments industry.”
“[eNett] is duly qualified, registered or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties and/or assets owned, leased or operated by it or the nature of its business makes such qualification, registration or licensing necessary…” b) Section 3.1(b): “Section 3.1(b) of the [eNett] Disclosure Schedule contains a complete and accurate list, as of the date of this Agreement, of each Subsidiary of [eNett]…” c) Section 3.5(a): “Each of [eNett] and its Subsidiaries is in possession of all material Regulatory Licenses…” d) Section 3.7: “Except as and to the extent set forth in the unaudited consolidated balance sheet of [eNett] and its Subsidiaries as of September 30, 2019, including any notes thereto (the “Everest Balance Sheet”), neither [eNett] nor any of its Subsidiaries has any Liabilities of a nature required by IFRS IASB to be disclosed…” e) Section 3.11: “[eNett] and its Subsidiaries have good and marketable title to, or other valid right to use, free and clear of any Liens (other than Permitted Liens), all of the material assets, property and rights that it owns.”
“Disproportionality Exclusions are rarely specific about the control group and typically refer only to companies operating in the same industries or companies operating in both the same industries and same geographical regions as the seller. Hence, if a court has to apply a Disproportionality Exclusion, it will have to determine which companies are to be included in the control group. Needless to say, litigation-driven expert testimony from the parties is not likely to be very helpful to the court in determining which companies belong in the control group. Perhaps for this reason, in Akorn v. Fresenius the Court of Chancery looked to the sets of companies the parties’ investment bankers used, at the time they were rendering their fairness opinions prior to signing, in the comparable companies analyses.”
“Once it is concluded that “industries” …, refers to the travel payments industry, there can be no basis for suggesting that if a comparison is made to other participants in the travel payments industry, the comparison ought to be made to the whole company identified as operating in the travel payments industry (including its businesses outside of the travel payments industry), rather than solely to its business in that industry.”
“(g) the failure of Everest, Olympus or any of their respective Subsidiaries to meet any projections, forecasts or budgets for any period (provided, that the underlying causes thereof, to the extent not otherwise excluded by this definition, may be taken into account in determining whether a Material Adverse Effect has occurred […])”
“It is simply impossible to divorce anxiety derived from the attacks themselves from anxiety derived from the stark warnings issued in the immediate aftermath thereof. In relative terms very few people will have had any knowledge of the attacks apart from what they learned of them from media reporting ... Dr Gibbs for the purpose of his analysis treated media attention to, by which in context he meant coverage of, the attacks as part and parcel of the attacks themselves. In assessing causal impact he lumped in media coverage of the warnings with the warnings themselves. He accepted that it would have been a difficult assignment to consider 9/11 divorced from the media coverage of 9/11 - "tricky empirically but not [logically] impossible." However I think that the logic which compelled that conclusion similarly compels the conclusion that it is impossible to divorce the effect of the warnings from the effect of the events which they so swiftly followed. Furthermore I am not sure that I understood Dr Gibbs’ reference to difficulty of an empirical nature since he did not base his conclusions upon the results of experimental studies, other than in the most general sense ... I am also I am afraid unable to regard the attribution of relative causal effect in percentage terms as anything other than arbitrary.”