(d) the term
business day
means any day except Saturday, Sunday and any
day which shall be a legal holiday or a day on which banking institutions in the State of New York or the State of Ohio generally are authorized or required by law or other governmental action to close; and
(e) the term
person
has the meaning given to it in Section 3(a)(9) of the Exchange Act and as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act.
(f)
Affiliate
shall mean, with respect to any person, any person directly
or indirectly controlling, controlled by or under common control with, such other person; provided, however, that (i) portfolio companies in which any person or any of its Affiliates has an investment shall not be deemed an Affiliate of such
person, or (ii) the Company, any of its subsidiaries, or any of the Companys other controlled Affiliates, in each case, will not be deemed to be Affiliates of the Purchaser for purposes of this Agreement. For purposes of this definition,
control
(including, with correlative meanings, the terms
controlled by
and
under common control with
) when used with respect to any person, means the possession, directly or indirectly, of the
power to cause the direction of management or policies of such person, whether through the ownership of voting securities, by contract or otherwise.
(g)
Commitment Letter
shall mean that certain letter, dated as of November 6, 2018, delivered by the Purchaser and
accepted and acknowledged by the Company.
(h)
Company Material Adverse Effect
shall mean any change, effect, event,
occurrence, condition, state of facts or development that, either alone or in combination, has a material adverse effect on the business, assets, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken
as a whole.
(i)
Credit Agreement
shall mean that certain Facility Agreement, dated as of January 5, 2018, by and
among the Company, Cortland Capital Market Services LLC and the loan parties and lenders party thereto from time to time.
(j)
Governmental Entity
shall mean any court, administrative or regulatory agency or commission or other governmental or arbitral body or authority or instrumentality, including any state-controlled or owned corporation or enterprise,
in each case whether federal, state, local or foreign, and any applicable industry self-regulatory organization.
(k)
Knowledge
of the Company
shall mean the actual knowledge after reasonable inquiry of one or more of John H. Johnson, Peter Milligan or Jennifer Sanfilippo.
(l)
Law
shall mean any applicable federal, state, local, municipal, foreign or other law, statute, constitution, principle
of common law, resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or other legally binding requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any
Governmental Entity.
(m)
Lien
shall mean any mortgage, pledge, security interest, encumbrance, lien, charge or other
restriction of any kind, whether based on common law, statute or contract.
(n)
Purchase Price
shall mean the lesser of
(i) $75,000,000 or (ii) the maximum amount (rounded down to the nearest dollar) that would not cause the purchase and sale of the Shares to the Purchaser to constitute a Change of Control under the Credit Agreement.
6.10
Captions
. The article, section, paragraph and clause captions herein are for convenience of reference only, do not constitute part
of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof.
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