Washington | 0-11399 | 31-1188630 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
6800 Cintas Boulevard, P.O. Box 625737, Cincinnati, Ohio | 45262-5737 | |
(Address of principal executive offices) | (Zip Code) |
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.01 | Completion of Acquisition or Disposition of Assets. |
(d) | Exhibits. |
Exhibit Number | Description | ||
*2.1 | Securities Purchase Agreement, dated as of July 15, 2015, by and among Cintas, Shred‑it International Inc., Stericycle, Inc. and the other parties thereto |
* | Certain exhibits and schedules have been omitted and Cintas agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted exhibits upon request. |
CINTAS CORPORATION | ||||
Date: October 1, 2015 | By: | /s/ J. Michael Hansen | ||
J. Michael Hansen | ||||
Vice President and Chief Financial Officer |
Exhibit Number | Description | ||
*2.1 | Securities Purchase Agreement, dated as of July 15, 2015, by and among Cintas, Shred‑it International Inc., Stericycle, Inc. and the other parties thereto |
* | Certain exhibits and schedules have been omitted and Cintas agrees to furnish supplementally to the Securities and Exchange Commission a copy of any omitted exhibits upon request. |
Appendix D | Ownership of Purchased Securities and Allocation of Purchase Price and Shred-it International Purchase Price Among Vendors |
Appendix E | List of Option Participants in Boost GP Corp. |
Appendix F | List of Resigning Directors and Officers |
Appendix G | Representations and Warranties of the Purchasers |
Appendix H | Representations and Warranties of CC Shredding |
Appendix I | Representations and Warranties of CC Dutch Shredding |
Appendix J | Representations and Warranties of BHEPMI and the Option Participants |
Appendix K | Representations and Warranties of the Boost Holdings Vendors |
Appendix L | Representations and Warranties of Shred-it and the Vendors |
(1) | Each of Shred-it and each Vendor owns the issued and outstanding securities of the Target Companies as set forth opposite its name on Appendix D; |
(2) | Shred-it wishes to sell, assign and transfer to Purchaser Sub 1, and Purchaser Sub 1 wishes to purchase, all the Shred-it International Purchased Securities, prior to the transactions described in the subsequent recitals and on and subject to the terms and conditions of this Agreement; |
(3) | Each of CC Shredding, the Management Shareholders and CC Dutch Shredding, if applicable, wishes to sell, assign and transfer to Stericycle, and Stericycle wishes to purchase, all the Shred-it Purchased Securities, on and subject to the terms and conditions of this Agreement; |
(4) | Each of the Funds, the Co-Investors, SII GP and the Management Shareholders wishes to sell, assign and transfer to Stericycle, and Stericycle wishes to purchase (or cause its Subsidiary to purchase), all the Boost Holdings Purchased Securities, on and subject to the terms and conditions of this Agreement; and |
(5) | Each of CC Shredding, BHEPMI and the Option Participants wishes to sell, assign and transfer to Purchaser Sub 2, and Purchaser Sub 2 wishes to purchase, all the Boost GP Purchased Securities, on and subject to the terms and conditions of this Agreement. |
(a) | the issuance to the Purchasers of an advance ruling certificate by the Commissioner of Competition under Subsection 102(1) of the Competition Act (Canada) to the effect that the Commissioner of Competition is satisfied that she or he would not have sufficient grounds upon which to apply to the Competition Tribunal for an order under Section 92 of the Competition Act (Canada) with respect to the transactions contemplated by this Agreement; or |
(b) | both of (i) the waiting period, including any extension thereof, under Section 123 of the Competition Act (Canada) shall have expired or been terminated or the obligation to provide a pre-merger notification in accordance with Part IX of the Competition Act (Canada) shall have been waived in accordance with paragraph 113(c) of the Competition Act (Canada), and (ii) the Purchasers shall have received a letter from the Commissioner of Competition indicating that she or he does not, as of the date of the letter, intend to make an application under Section 92 of the Competition Act (Canada) in respect of the transactions contemplated by this Agreement. |
(a) | is a Contract with a top 20 customer of the Business (measured by dollar amount of sales) or a top 20 supplier of the Business (measured by dollar amount of costs) for the 12 months ended December 31, 2014; |
(b) | other than a Contract with a customer of the Business or a supplier of the Business contemplated by (a) above, is a continuing Contract for the purchase of materials, supplies, equipment or services involving in the case of any such Contract more than $1,500,000 annually; |
(c) | is for capital expenditures in excess of $1,500,000 annually; |
(d) | is a Contract limiting the freedom of Shred-it or any of its Subsidiaries to engage in any line of business, compete with any other Person, operate its assets at maximum production capacity or otherwise conduct its business; |
(e) | is a collective bargaining agreement or other Contract with any labor organization, union or association; |
(f) | is with any Person with whom Shred-it or any of its Subsidiaries does not deal at arm’s length within the meaning of the Tax Act; |
(g) | is a license, sublicense, option or other agreement relating in whole or in part to any Intellectual Property owned or used by Shred-it or any of its Subsidiaries that is material to the operation of the Business (including any license or other agreement under which Shred-it or its Subsidiary is licensee or licensor of any Intellectual Property); |
(h) | is a Contract under which Shred-it or any of its Subsidiaries has borrowed any money from, or issued any note, bond, debenture or other evidence of Indebtedness to, any Person (other than Shred-it or any of its Subsidiaries) or any other note, bond, debenture or other evidence of Indebtedness of Shred-it or any of its Subsidiaries (other than in favor of Shred-it or any of its Subsidiaries), in the case of any capitalized leases in excess of $2,000,000; |
(i) | is a Contract under which Shred-it or any of its Subsidiaries has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than Shred-it or any of its Subsidiaries); |
(j) | is an agreement of guarantee, support, indemnification, assumption or endorsement of, or any similar commitment with respect to, the obligations, liabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any Person that is not a member of the Target Group (in each case other than endorsements for the purposes of collection in the Ordinary Course); |
(k) | is made outside of the Ordinary Course; |
(l) | requires Shred-it or any of its Subsidiaries to purchase its total requirements of any product or service from a third Person or that contains “take or pay” provisions; |
(m) | relates to the acquisition or disposition of any business, any amount of stock or other equity interests of any other Person, a material portion of assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise) with respect to which there are outstanding material obligations; |
(n) | is a Contract for any joint venture, partnership or similar arrangement, or any Contract involving a sharing of profits, losses, costs, or liabilities by Shred-it or any of its Subsidiaries with any other Person; |
(o) | is a material Contract with any Governmental Entity; |
(p) | is a currency exchange, interest rate exchange, commodity exchange or similar Contract; |
(q) | (i) is a Franchise Agreement or (ii) is a Contract providing for the services of any dealer, distributor, sales representative (excluding any employee), franchisee or similar representative |
(r) | the loss of which would have a Material Adverse Effect. |
(a) | Liens for Taxes which are not yet due or payable, or which are being contested in good faith and for which adequate reserves have been established in accordance with IFRS; |
(b) | inchoate or statutory Liens of contractors, subcontractors, mechanics, workers, suppliers, material men, carriers and others in respect of the construction, maintenance, repair or operation of the Business Assets arising in the Ordinary Course; provided, that such Liens are related to obligations not due or delinquent, are not registered against title to any Business Assets and in respect of which adequate holdbacks are being maintained as required by Law; |
(c) | unregistered Liens of any nature claimed or held by Her Majesty The Queen in Right of Canada, Her Majesty The Queen in right of any province of Canada in which the Leased Properties are located, which in the aggregate do not, and could not reasonably be expected to, materially impair the value or use of any of the Leased Properties except for unregistered liens for unpaid realty Taxes, assessments and public utilities; |
(d) | title defects which in the aggregate do not, and could not reasonably be expected to, materially impair the value or use of any of the Leased Properties; |
(e) | any right of expropriation conferred upon, reserved to or vested in Her Majesty The Queen in Right of Canada, Her Majesty The Queen in right of any province of Canada in which the Leased Properties are located; |
(f) | zoning restrictions, easements and rights of way or other similar Liens or privileges in respect of real property which in the aggregate do not materially impair the value or use of any of the Leased Properties and which are not violated in any respect by existing or proposed structures or land use; |
(g) | Liens created by others upon other lands over which there are easements, rights-of-way, licences or other rights of use in favour of the Leased Properties and which do not materially impede the use of the easements, rights-of-way, licences or other rights of use for the purposes for which they are held; |
(h) | the reservations, limitations, provisos, conditions, restrictions and exceptions in the letters patent or grant, as the case may be, from the Crown and statutory exceptions to title which in the aggregate do not, and could not reasonably be expected to, materially impair the value or use of any of the Leased Properties; and |
(i) | Liens listed and described under the heading “Defined Terms” in the Shred-it / Vendors Disclosure Letter. |
(1) | Where any representation or warranty contained in this Agreement or any Ancillary Agreement is qualified by reference to “the knowledge of the Vendors,” to “the Vendors’ knowledge,” “to the knowledge of Shred-it” or “to Shred-it’s knowledge,” it is deemed to refer to the actual knowledge of Vincent De Palma, Jim Rudyk, Brenda Frank, Karen Carnahan and Robert Bruce Andrew, in each case, after reasonable inquiry of the Persons having primary responsibility for such matters and without personal liability on the part of any of them. |
(2) | Where any representation or warranty contained in this Agreement or any Ancillary Agreement is qualified by reference to “the knowledge of CC Shredding” or to “CC Shredding’s knowledge”, |
(3) | Where any representation or warranty contained in this Agreement or any Ancillary Agreement is qualified by reference to “the knowledge of CC Dutch Shredding” or to “CC Dutch Shredding’s knowledge”, it is deemed to refer to the actual knowledge of Mike Hansen and Mike Mahoney, in each case, after reasonable inquiry of the Persons having primary responsibility for such matters and without personal liability on the part of any of them. |
(4) | Where any representation or warranty contained in this Agreement or any Ancillary Agreement is qualified by reference to “the knowledge of BHEPMI” or to “BHEPMI’s knowledge”, it is deemed to refer to the actual knowledge of Andrew Fortier and Dave Samuel, in each case, after reasonable inquiry of the Persons having primary responsibility for such matters and without personal liability on the part of any of them. |
(5) | Where any representation or warranty contained in this Agreement or any Ancillary Agreement is qualified by reference to “the knowledge of the Boost Holdings Vendors” or to “the Boost Holdings Vendors’ knowledge”, it is deemed to refer to the actual knowledge of Andrew Fortier and Dave Samuel, in each case, after reasonable inquiry of the Persons having primary responsibility for such matters and without personal liability on the part of any of them. |
(1) | The exhibits and appendices attached to this Agreement and the Disclosure Letters form an integral part of this Agreement for all purposes of it. Any capitalized terms used in any exhibit or appendix or in the Disclosure Letters, but not otherwise defined therein, shall have the meaning as defined herein. |
(2) | The purpose of the Disclosure Letters is to set out the qualifications, exceptions and other information called for in this Agreement. The Parties acknowledge and agree that the Disclosure Letters, and the information and disclosures contained therein, do not constitute or imply, and will not be construed as: |
(a) | any representation, warranty, covenant or agreement which is not expressly set out in this Agreement; |
(b) | an admission of any liability or obligation of any of the Vendors; |
(c) | an acknowledgement that the information is required to be disclosed; |
(d) | an admission that the information is material; |
(e) | a standard of materiality, a standard for what is or is not in the Ordinary Course, or any other standard contrary to the standards contained in this Agreement; or |
(f) | an expansion of the scope or effect of any of the representations, warranties and covenants of any of the Vendors set out in this Agreement. |
(3) | Unless otherwise specified, documents attached to any section of any Disclosure Letter are incorporated in their entirety into that section of such Disclosure Letter. The Disclosure Letters and any documents attached to any section of any Disclosure Letter are qualified in their entirety by reference to specific provisions of this Agreement, and are not intended to constitute, and shall not be construed as constituting, any representation or warranty of any of the Vendors, except as and to the extent expressly provided in this Agreement. |
(4) | Disclosure of any information in the Disclosure Letters that is not strictly required under this Agreement has been made for informational purposes only and does not imply disclosure of all matters of a similar nature, other than as required by this Agreement. Inclusion of an item in any section of a Disclosure Letter is deemed to be disclosure for any other section of such Disclosure Letter to the extent that its relevance to such other section is reasonably apparent on its face; provided, that no disclosure shall qualify any Vendor Group Fundamental Rep unless it is set forth or cross-referenced in the specific section of such Disclosure Letter corresponding to such Vendor Group Fundamental Rep. |
(5) | Headings and subheadings (other than references to sections and subsections of this Agreement) in the Disclosure Letters are for convenience of reference only and shall not be deemed to expand or limit the scope of the information required to be disclosed therein, to expand or limit the effect of the disclosures contained therein, or to otherwise affect the interpretation of this Agreement or the Disclosure Letters. The descriptions of agreements and documents in the Disclosure Letters are summaries only and are qualified in their entirety by the specific terms of such agreements or documents. |
(6) | Except as expressly set forth in this Agreement, the Disclosure Letters and any Ancillary Agreement to which it is a party, each of the Parties acknowledges and agrees that none of the Vendors makes any representation or warranty, express or implied, written or oral, at law or in equity, in respect of the Business or its assets, liabilities or operations, including with respect to merchantability or fitness for any particular purpose, and any such other representations or warranties are hereby expressly disclaimed. |
(7) | Except as expressly set forth in this Agreement, the Parties acknowledge and agree that any information, documents, materials, estimates, forecasts, projections or predictions that have been provided or made available to the Purchasers by or on behalf of the Vendors, including in the Data Room, and all management presentations established or provided in connection with the transactions contemplated by this Agreement, are not, and shall not be deemed to be, representations or warranties of the Vendors or any of their Affiliates. |
(8) | Each of the Disclosure Letters itself is confidential information and prior to the Closing Date shall be subject to the Confidentially Agreement. |
(1) | Shred-it agrees to sell, assign and transfer to Purchaser Sub 1, and Purchaser Sub 1 agrees to purchase from Shred-it, on the Closing Date, all (but not less than all) the Shred-it International Purchased Securities, free and clear of all Liens (other than those arising out of acts of the Purchasers and any restrictions on transfer under provincial, state or federal (Canadian or US) securities Laws); |
(2) | The proceeds of the Shred-it International Purchase Price shall be allocated among CC Shredding, CC Dutch Shredding, the Management Shareholders, Boost GP and/or Boost Holdings in accordance with the Shred-it LPA, and Shred-it: (i) shall repay an amount of its outstanding Indebtedness owed to third parties to be determined by the Vendors prior to the Closing; (ii) shall make a distribution to each of CC Dutch Shredding, CC Shredding and the Management Shareholders in their respective allocated amounts of the remaining proceeds in accordance with the Shred-it LPA; (iii) shall lend to Boost Holdings an amount equal to its allocated amount of the remaining proceeds in accordance with the Shred-it LPA, evidenced by a note issued by Boost Holdings to Shred-it (the “Boost Holdings Note”); and (iv) shall lend to Boost GP an amount equal to its allocated amount of the remaining proceeds in accordance with the Shred-it LPA, evidenced by a note issued by Boost GP to Shred-it (the “Boost GP Note”); |
(3) | Boost Holdings shall use the proceeds from the issuance of the Boost Holdings Note to redeem a portion of the issued and outstanding securities of Boost Holdings held by the Funds, the Co-Investors and SII GP on a pro rata basis having a value equal to the principal amount of the Boost Holdings Note; |
(4) | Vincent De Palma shall elect to surrender and dispose to Boost GP a portion of his options to acquire shares of Boost GP with an in-the-money amount equal to the principal amount of the Boost GP Note and Boost GP shall use the proceeds from the issuance of the Boost GP Note to acquire and cancel such options; |
(5) | Each of CC Shredding, CC Dutch Shredding and the Management Shareholders agrees to sell, assign and transfer to Stericycle, and Stericycle agrees to purchase or cause to be purchased from each of CC Shredding, CC Dutch Shredding and the Management Shareholders, on the Closing Date, all (but not less than all) the Shred-it Purchased Securities set forth opposite the name of each of CC Shredding, CC Dutch Shredding and the Management Shareholders on Appendix D, free and clear of all Liens (other than those arising out of acts of the Purchasers and any restrictions on transfer under provincial, state or federal (Canadian or US) securities Laws), which purchase and sale shall occur on the Closing Date thirty (30) minutes following the actions taken under Section 2.1(1)-(4); |
(6) | Each of CC Shredding, BHEPMI and the Option Participants agrees to sell, assign and transfer to Purchaser Sub 2, and Purchaser Sub 2 agrees to purchase from each of CC Shredding, BHEPMI and the Option Participants, on the Closing Date, all (but not less than all) the Boost GP Purchased Securities set forth opposite the name of each of CC Shredding, BHEPMI and the Option |
(7) | Each of the Funds, the Co-Investors and SII GP agrees to sell, assign and transfer to Stericycle, and Stericycle agrees to purchase (or cause one or more of its Subsidiaries to purchase) from each of the Funds, the Co-Investors and SII GP, on the Closing Date, all (but not less than all) the Boost Holdings Purchased Securities set forth opposite the name of each of the Funds, the Co-Investors and SII GP on Appendix D, free and clear of all Liens (other than those arising out of acts of the Purchasers and any restrictions on transfer under provincial, state or federal (Canadian or US) securities Laws), which purchase and sale shall occur on the Closing Date thirty (30) minutes following the actions taken under Section 2.1(1)-(4). |
(1) | The consideration payable by or on behalf of Purchaser Sub 1 to Shred-it for the Shred-it International Purchased Securities is an amount equal to (a) the Base Purchase Price (Shred-it International), subject to adjustment in accordance with Section 2.4, plus (b) the Total Enterprise Value of Franchise Acquisitions (Shred-it International), if any (the “Shred-it International Purchase Price”). The Vendors and the Purchasers agree to allocate the Shred-it International Purchase Price among the Vendors in accordance with Appendix D. The Parties agree to execute and file all of their own Tax Returns and prepare all of their own financial statements and other instruments on the basis of this allocation and to not take any Tax position contrary to this allocation except as otherwise required by a good faith resolution of a Tax contest at the highest administrative appeals level. |
(2) | The consideration payable by or on behalf of Purchaser Sub 2 and Stericycle to the Vendors for the Purchased Securities (excluding the Shred-it International Purchased Securities) is an amount equal to (a) the Base Purchase Price, subject to adjustment in accordance with Section 2.4, plus (b) the Total Enterprise Value of Franchise Acquisitions (Shred-it), if any (the “Purchase Price”). The Vendors and the Purchasers agree to allocate the Purchase Price among Purchaser Sub 2 and Stericycle, as Purchasers, and among the Vendors in accordance with Appendix D. The Parties agree to execute and file all of their own Tax Returns and prepare all of their own financial statements and other instruments on the basis of this allocation and to not take any Tax position contrary to this allocation except as otherwise required by a good faith resolution of a Tax contest at the highest administrative appeals level. |
(1) | At the Closing, the parties shall take the actions in the order set forth in Section 2.1, including: |
(a) | Purchaser Sub 1 shall pay or cause to be paid to Shred-it by wire transfer of immediately available funds an amount equal to (the “Closing Cash Payment (Shred-it International)”): |
(A) | the Base Purchase Price (Shred-it International); plus |
(B) | the Total Enterprise Value of Franchise Acquisitions (Shred-it International); minus |
(C) | the amount of the Estimated Closing Indebtedness (Shred-it International); plus |
(D) | the excess, if any, of the Estimated Closing Working Capital (Shred-it International) over $15,000,000; minus |
(E) | the excess, if any, of $12,000,000 over the Estimated Closing Working Capital (Shred-it International). |
(b) | Stericycle and Purchaser Sub 2 shall pay or cause to be paid to the Vendors by wire transfer of immediately available funds an amount equal to (the “Closing Cash Payment (Shred-it)”), which Closing Cash Payment (Shred-it) shall be made thirty (30) minutes following payment of the Closing Cash Payment (Shred-it International): |
(A) | the Base Purchase Price; minus |
(B) | the Indemnity Escrow Amount; minus |
(C) | the Holdback Amount; plus |
(D) | the Total Enterprise Value of Franchise Acquisitions (Shred-it); minus |
(E) | the amount of the Estimated Closing Indebtedness (Shred-it) (which, for the avoidance of doubt, will take into account the payment of Indebtedness pursuant to Section 2.1(2)); plus |
(F) | the excess, if any, of the Estimated Closing Working Capital (Shred-it) over $35,000,000; minus |
(G) | the excess, if any, of $28,000,000 over the Estimated Closing Working Capital (Shred-it). |
(1) | Not less than five Business Days prior to the Closing Date, the Vendors’ Representative shall deliver to Stericycle a notice setting forth the Vendors’ estimate of (a) Actual Closing Indebtedness (Shred-it) and Actual Closing Indebtedness (Shred-it International) and (b) Actual Closing Working Capital (Shred-it) and Actual Closing Working Capital (Shred-it International), in each case, calculated in good faith in accordance with IFRS applied on a basis consistent with the preparation of the Financial Statements in accordance with the methodology and sample calculation set out in Exhibit D (the “Balance Sheet Principles”). “Estimated Closing Indebtedness (Shred-it)” shall be the good faith estimate of Actual Closing Indebtedness (Shred-it) (which, for the avoidance of doubt, will take into account the payment of Indebtedness pursuant to Section 2.1(2)), “Estimated Closing Indebtedness (Shred-it International)” shall be the good faith estimate of Actual Closing Indebtedness (Shred-it International), “Estimated Closing Working Capital (Shred-it)” shall be the good faith estimate of Actual Closing Working Capital (Shred-it) and “Estimated Closing Working Capital (Shred-it International)” shall be the good faith estimate of Actual Closing Working Capital (Shred-it International), respectively. In addition, not less than five Business Days prior to the Closing Date, the Vendors’ Representative and Stericycle shall mutually agree on the allocation of the Total Enterprise Value of Franchise Acquisitions on the basis of the proportionate ownership of each Franchise Acquisition between Shred-it and its Subsidiaries (excluding Shred-it International and its Subsidiaries), on the one hand (the “Total Enterprise Value of Franchise |
(2) | Stericycle and the Vendors’ Representative shall, on the Closing Date, execute and deliver an escrow agreement in substantially the form attached hereto as Exhibit C (the “Indemnity Escrow Agreement”), which agreement shall designate an escrow agent (the “Indemnity Escrow Agent”) and provide for the establishment of an escrow account (the “Indemnity Escrow Account”) in the initial amount equal to the Indemnity Escrow Amount. The Indemnity Escrow Amount, together with income earned thereon as provided in the Indemnity Escrow Agreement (the “Indemnity Escrowed Funds”) shall be held by the Indemnity Escrow Agent pursuant to the Indemnity Escrow Agreement, Section 10.6(5) and Section 10.6(6). |
(1) | Within 120 days following the Closing Date (or such other date as is mutually agreed to by the Vendors’ Representative and Stericycle in writing), Stericycle will prepare and deliver to the Vendors’ Representative a draft unaudited statement of Working Capital (Shred-it), Net Indebtedness (Shred-it), Working Capital (Shred-it International) and Net Indebtedness (Shred-it International) prepared as of the close of business on the Closing Date (the “Draft Working Capital / Indebtedness Statement”). The Draft Working Capital / Indebtedness Statement will be prepared in good faith in accordance with the Balance Sheet Principles. |
(2) | The Vendors shall reasonably cooperate with Stericycle and its Representatives in connection with the preparation of the Draft Working Capital / Indebtedness Statement and the items included therein, including providing on a timely basis all other information necessary or useful in connection with such preparation as is reasonably requested by Stericycle and its Representatives. |
(3) | After receipt of the Draft Working Capital / Indebtedness Statement from Stericycle, the Vendors shall have 60 days to review the Draft Working Capital / Indebtedness Statement (the “Review Period”). Stericycle shall (a) assist the Vendors and their Representatives in their review of, and provide the Vendors and their Representatives with reasonable access upon reasonable notice during normal business hours to, the books, records (including work papers, schedules, memoranda and other documents), supporting data, employees and auditors of the Business for purposes of reviewing the Draft Working Capital / Indebtedness Statement and the items included therein, and (b) reasonably cooperate with the Vendors and their Representatives in connection therewith, including providing on a timely basis all other information necessary or useful in connection with such review as is reasonably requested by the Vendors and their Representatives. The Draft Working Capital / Indebtedness Statement shall be binding and conclusive upon, and deemed accepted by, the Vendors unless the Vendors’ Representative shall have notified Stericycle in writing prior to the expiration of the Review Period of any dispute or objection thereto (any such written dispute or objection, the “Objection”), setting forth in reasonable detail the basis for its dispute or objection(s) and the specific adjustments (including dollar amounts) to the applicable item(s) set forth on the Draft Working Capital / Indebtedness Statement which the Vendors believe in good faith should be made. Any item not disputed or objected to in an Objection shall be deemed to have been accepted by the Vendors. If no Objection is delivered by the Vendors’ Representative to Stericycle prior to the expiration of the Review Period, then the Draft Working Capital / Indebtedness Statement shall be deemed to have been accepted by the Parties, and shall become final and binding upon the Parties, and the Draft |
(4) | If at the end of the Resolution Period the Vendors’ Representative and Stericycle have been unable to resolve any differences that they may have with respect to the matters specified in the Objection, the Vendors’ Representative and Stericycle shall refer all matters that remain in dispute with respect to the Objection (the “Unresolved Matters”) to an internationally recognized independent public accounting firm jointly selected by the Vendors’ Representative and Stericycle, acting reasonably, or, if the Vendors’ Representative and Stericycle are unable to agree within five Business Days from the end of the Resolution Period, then such internationally recognized independent public accounting firm shall be KPMG LLP (“KPMG”) or, if such firm is unable to act, PricewaterhouseCoopers LLP (any such firm, the “CPA Firm”). The Vendors’ Representative, on behalf of the Vendors, and Stericycle each agree to promptly sign an engagement letter, in commercially reasonable form, as may reasonably be required by the CPA Firm. The CPA Firm shall, acting as experts in accounting and not as arbitrators, determine on a basis consistent with the requirements of this Agreement, and only with respect to the Unresolved Matters so submitted, whether and to what extent the applicable items in the Draft Working Capital / Indebtedness Statement require adjustment. The Vendors’ Representative and Stericycle shall request the CPA Firm to use its commercially reasonable efforts to (a) render its final written determination within 30 days after the CPA Firm’s engagement and (b) prepare a revised draft of the Draft Working Capital / Indebtedness Statement (the “Revised Working Capital / Indebtedness Statement”), which Revised Working Capital / Indebtedness Statement shall be consistent with the Resolved Matters and the final determination of the CPA Firm of the Unresolved Matters, and calculate the applicable Adjustment Amount based on such Revised Working Capital / Indebtedness Statement. Such Revised Working Capital / Indebtedness Statement shall become final and binding upon the Parties, and will become the “Closing Working Capital / Indebtedness Statement” on the date it is submitted by the CPA Firm to the Vendors’ Representative and Stericycle. The final written determination of the CPA Firm shall be based only on the written submissions of the Vendors’ Representative and Stericycle; provided, that the Vendors and Stericycle shall make reasonably available to the CPA Firm, upon the CPA Firm’s request, all relevant books and records, any workpapers (including those of the Vendors’ and Stericycle’s respective accountants) and supporting documentation relating to the Draft Working Capital / Indebtedness Statement and all other items reasonably requested by the CPA Firm (provided, that the Vendors, on the one hand, and Stericycle, on the other hand, shall contemporaneously provide a copy to the other Party or Parties, as the case may be, of any materials requested by, and provided to, the CPA Firm). None of the Vendors, or any of their Affiliates or Representatives, on the one hand, Stericycle, or any of its Affiliates or |
(5) | Stericycle and the Vendors will bear their own fees and expenses, including the fees and expenses of their respective advisors, in preparing or reviewing, as the case may be, the Draft Working Capital / Indebtedness Statement. In the case of an Objection and the retention of the CPA Firm with respect to any Unresolved Matters, all fees and disbursements of the CPA Firm shall be borne 50% by the Vendors and 50% by Stericycle; provided, that the Vendors and Stericycle will bear their own respective costs in presenting their respective positions to the CPA Firm. |
(6) | The Vendors agree that the Purchase Price will be decreased by the amount of any Vendor Transaction Expenses not paid before the close of business on the Closing Date. In addition, the Parties agree to the following adjustments to the Purchase Price which may be offset against each other for purposes of determining a single payment amount (the “Adjustment Amount”) to be made by the Vendors or Stericycle (on behalf of itself and Purchaser Sub 2), as the case may be: |
(a) | if Actual Closing Indebtedness is greater than Estimated Closing Indebtedness, the Vendors shall pay to Stericycle (on behalf of itself and Purchaser Sub 2) the difference between Actual Closing Indebtedness and Estimated Closing Indebtedness; |
(b) | if Actual Closing Indebtedness is less than Estimated Closing Indebtedness, Stericycle (on behalf of itself and Purchaser Sub 2) shall pay to the Vendors the difference between Actual Closing Indebtedness and Estimated Closing Indebtedness; |
(c) | if Actual Closing Working Capital is greater than $50,000,000, then the result (which may be positive or negative) of (i) Actual Closing Working Capital minus (ii) $50,000,000 minus (iii) any adjustment pursuant to Section 2.3(1)(a)(D) and Section 2.3(1)(b)(F) plus (iv) any adjustment made pursuant to Section 2.3(1)(a)(E) and Section 2.3(1)(b)(G) shall be determined, and if such result is positive, Stericycle (on behalf of itself and Purchaser Sub 2) shall pay such result to the Vendors, and if such result is negative, the Vendors shall pay such result to Stericycle (on behalf of itself and Purchaser Sub 2); |
(d) | if Actual Closing Working Capital is less than $40,000,000, then the result (which may be positive or negative) of (i) $40,000,000 minus (ii) Actual Closing Working Capital plus (iii) any adjustment made pursuant to Section 2.3(1)(a)(D) and Section 2.3(1)(b)(F) minus (iv) any adjustment made pursuant to Section 2.3(1)(a)(E) or Section 2.3(1)(b)(G) shall be determined, and if such result is positive, the Vendors shall pay such result to Stericycle (on behalf of itself and Purchaser Sub 2), and if such result is negative, |
(e) | If (i) Actual Closing Working Capital is between $40,000,000 and $50,000,000 and (ii) any adjustment was made pursuant to Section 2.3(1)(a)(D), Section 2.3(1)(b)(F), Section 2.3(1)(a)(E) or Section 2.3(1)(b)(G), then the amount of such adjustment shall be repaid by the receiving Party or Parties, as applicable, to the Party or Parties that paid such adjustment, as applicable. |
(7) | The Person(s) required to make a payment pursuant to Section 2.4(6) shall pay, within two Business Days of the Determination Date, by wire transfer of immediately available funds, to one or more accounts held by the Person(s) to whom payment is required pursuant to Section 2.4(6), as designated by such Person(s) within one Business Day of the Determination Date, an amount equal to the sum of (a) the Adjustment Amount plus (b) interest computed thereon at the Prime Rate on the Closing Date calculated based on the number of days elapsed from the Closing Date to the date of such payment and a 360-day year. |
(8) | If the Vendors are required to make a payment pursuant to Section 2.4(7), then: |
(a) | if the amount of the payment contemplated by Section 2.4(7) is less than or equal to the Holdback Amount, Stericycle (on behalf of itself and Purchaser Sub 2) shall retain such amount from the Holdback Amount, if any, and pay the balance of the Holdback Amount, if any, to the Vendors in accordance with Section 2.4(7), as applicable; or |
(b) | if the amount of the payment contemplated by Section 2.4(7)is greater than the Holdback Amount, Stericycle (on behalf of itself and Purchaser Sub 2) shall retain the Holdback Amount and the Vendors shall pay the balance of the amount contemplated by Section 2.4(7) to Stericycle (on behalf of itself and Purchaser Sub 2) in accordance with Section 2.4(7). |
(9) | If Stericycle (on behalf of itself and Purchaser Sub 2) is required to make a payment pursuant to Section 2.4(6), then Stericycle (on behalf of itself and Purchaser Sub 2) shall pay such amount and the Holdback Amount to the Vendors in accordance with Section 2.4(7). |
(10) | The Parties agree that the procedure set forth in this Section 2.4 for resolving disputes with respect to the Draft Working Capital / Indebtedness Statement is the sole and exclusive method of resolving such disputes, absent manifest error. |
(11) | Shred-it and Purchaser Sub 1 agree to the following adjustments to the Shred-it International Purchase Price which may be offset against each other for purposes of determining a single payment amount to be made by Shred-it or Purchaser Sub 1, as the case may be: |
(a) | if the Actual Closing Indebtedness (Shred-it International) is greater than the Estimated Closing Indebtedness (Shred-it International), Shred-it shall pay to Purchaser Sub 1 the difference between the Actual Closing Indebtedness (Shred-it International) and the Estimated Closing Indebtedness (Shred-it International); |
(b) | if the Actual Closing Indebtedness (Shred-it International) is less than the Estimated Closing Indebtedness (Shred-it International), Purchaser Sub 1 shall pay to Shred-it the |
(c) | if Actual Closing Working Capital (Shred-it International) is greater than $15,000,000, then the result (which may be positive or negative) of (i) Actual Closing Working Capital (Shred-it International) minus (ii) $15,000,000 minus (iii) any adjustment pursuant to Section 2.3(1)(a)(D) plus (iv) any adjustment made pursuant to Section 2.3(1)(a)(E) shall be determined, and if such result is positive, Purchaser Sub 1 shall pay such result to Shred-it, and if such result is negative, Shred-it shall pay such result to Purchaser Sub 1; |
(d) | if Actual Closing Working Capital (Shred-it International) is less than $12,000,000, then the result (which may be positive or negative) of (i) $12,000,000 minus (ii) Actual Closing Working Capital (Shred-it International) plus (iii) any adjustment made pursuant to Section 2.3(1)(a)(D) minus (iv) any adjustment made pursuant to Section 2.3(1)(a)(E) shall be determined, and if such result is positive, Shred-it shall pay such result to Purchaser Sub 1, and if such result is negative, Purchaser Sub 1 shall pay such result to Shred-it; and |
(e) | if (i) Actual Closing Working Capital (Shred-it International) is between $12,000,000 and $15,000,000 and (ii) any adjustment was made pursuant to Section 2.3(1)(a)(D) or Section 2.3(1)(a)(E), then the amount of such adjustment shall be repaid by the receiving Party or Parties, as applicable, to the Party or Parties that paid such adjustment, as applicable; |
(12) | Except as otherwise contemplated by this Agreement or Section 5.1 of the Shred-it / Vendors Disclosure Letter, during the Interim Period, (i) Shred-it shall, and shall cause each of its Subsidiaries to, and the Vendors will use their commercially reasonable efforts to cause Shred-it and each of its Subsidiaries to conduct the Business in the Ordinary Course and (ii) neither Boost GP nor Boost Holdings will conduct any business, take any actions (other than in the case of Boost GP, acting as general partner to Shred-it), or sell, transfer or dispose of any of the securities of Shred-it held by it. |
(13) | Without limiting the generality of Section 5.1(1), during the Interim Period, except as set out in the Interim Period Budget, consented to in writing by Stericycle or required by Law, Shred-it shall, and shall cause each of its Subsidiaries to, and the Vendors shall, and shall cause Shred-it and each of its Subsidiaries to: |
(a) | use their commercially reasonable efforts to preserve intact the current business organization of the Business, keep available the services of the present, employees and agents of the Business and maintain good relations with, and the goodwill of, suppliers, customers, landlords, creditors, distributors and all other Persons having business relationships with the Business; |
(b) | subject to Law, confer with Stericycle and its Representatives concerning operational matters and compliance policies (including with respect to privacy and security) of a material nature relating to the Business in good faith on a regular and frequent basis, pursuant to procedures reasonably requested by Stericycle or such Representatives. Vendors acknowledge that any such consultation shall not constitute a waiver by any Purchaser of any rights it may have under this Agreement, and that the Purchasers shall not have any liability or responsibility for any actions of any Vendor, any member of the Target Group, or any of their Representatives with respect to matters that are the subject of such consultations; |
(c) | use their commercially reasonable efforts to retain possession and control of the Business Assets, and preserve the confidentiality of any confidential or proprietary information of the Business; |
(d) | upon any damage, destruction or loss to any material asset, apply any and all insurance proceeds received with respect thereto to the prompt repair, replacement and restoration thereof to the condition of such asset before such event or, if required, to such better condition as may be required by Law; |
(e) | furnish any other information reasonably requested by Stericycle in order to comply with the requirements of the U.S. Securities Act of 1933, as amended (the “Securities Act”) and the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”); |
(f) | use their commercially reasonable efforts to continue the integration of the assets and operations contributed by Cintas with and into the Business; and |
(g) | use their commercially reasonable efforts to not cause or permit to exist a breach of any representations and warranties of any of the Vendors contained in this Agreement. |
(14) | Without limiting the generality of Section 5.1(1), during the Interim Period and in respect of the Business, except as set out in the Interim Period Budget, consented to in writing by Stericycle in its discretion (acting reasonably) after the date hereof or required by Law, Shred-it shall not, and shall cause each of its Subsidiaries not to, and the Vendors shall not, and shall cause Shred-it and each of its Subsidiaries not to: |
(a) | amend the Constating Documents of any member of the Target Group; |
(b) | declare or pay any dividend or make any other distribution to its stockholders; excluding (A) dividends and distributions may continue to be made by to Shred-it by its Subsidiaries or to other wholly-owned Subsidiaries of Shred-it and (B) dividends and distributions of cash may continue to be made by Shred-it to the Vendors (so long as sufficient working capital remains at Shred-it and its Subsidiaries consistent with past practice); |
(c) | redeem or otherwise acquire any shares of its capital stock or other equity interests or any Convertible Securities, or issue, grant, deliver, sell, pledge or otherwise encumber, or authorize the issuance, grant, delivery, sale, pledge or other encumbrance of any shares of capital stock, units, membership interests or other securities, or any options, warrants or similar rights exercisable or exchangeable for, or convertible into, any such securities, of any member of the Target Group; |
(d) | sell, transfer or otherwise dispose of Business Assets except for sales of (i) vehicles in the Ordinary Course (but specifically excluding sale and leaseback transactions), (ii) Business Assets which are obsolete and which individually or in the aggregate do not exceed $500,000, and (iii) inventory in the Ordinary Course; |
(e) | sell, lease, license, transfer, pledge, encumber, grant or dispose of any of the Intellectual Property included in the Business Assets, other than non-exclusive licenses granted in the Ordinary Course; |
(f) | except as set out in the Interim Period Budget, acquire (by merger, consolidation, acquisition of stock, assets or otherwise), directly or indirectly, in one transaction or in a series of related transactions, any assets, securities, properties, interests or businesses (including any Franchise Acquisitions) (i) having a cost, on a per transaction or series of related transactions basis, in excess of $3,000,000 and subject to a maximum of |
(g) | other than repayments of principal and interest on the revolving credit facility under the Credit Agreement in the Ordinary Course, cancel any Indebtedness or settle, compromise, waive, release or discharge any secured or unsecured Indebtedness (whether accrued, absolute, contingent or otherwise) which individually or in the aggregate exceeds $500,000; |
(h) | except as required by Law or pursuant to a Collective Agreement, (i) increase any severance, change of control or termination pay to (or amend any existing arrangement with) any employee of Shred-it or any of its Subsidiaries or the Business, or any director of any member of the Target Group, (ii) increase the benefits payable under any existing severance or termination pay policies with any employee of Shred-it or any of its Subsidiaries or the Business, or any director of any member of the Target Group, (iii) increase the benefits payable under any Employment Agreements or any Contracts with any employee of Shred-it or any of its Subsidiaries or the Business, or any director of any member of the Target Group (other than, in the case of an employee of Shred-it or any of its Subsidiaries or the Business who is not a director or executive officer of a member of the Target Group, in the Ordinary Course), (iv) enter into any employment, deferred compensation or other similar Contract (or amend any such existing Contract) with any employee of Shred-it or any of its Subsidiaries or the Business, or any director of any member of the Target Group (other than, in the case of an employee of Shred-it or any of its Subsidiaries or the Business who is not a director or executive officer of a member of the Target Group, in the Ordinary Course), or (v) increase compensation, bonus levels or other benefits payable to any employee of Shred-it or any of its Subsidiaries or the Business, or any director of any member of the Target Group (other than, in the case of an employee of Shred-it or any of its Subsidiaries or the Business who is not a director or executive officer of a member of the Target Group, in the Ordinary Course); |
(i) | except as required by Law or as disclosed in Section 5.1(3)(i) of the Shred-it / Vendors Disclosure Letter, adopt any new Employee Plan or any amendment or modification of an existing Employee Plan or enter into, adopt, extend (beyond the Closing Date), renew or amend any collective bargaining agreement or other Contract with any labor organization, union or association; |
(j) | except as set out in the Interim Period Budget, make any capital expenditure or commitment to do so which individually, or in the aggregate, exceeds $500,000; |
(k) | except as disclosed in Section 5.1(3)(k) of the Shred-it / Vendors Disclosure Letter, enter into any Material Contract or, other than pursuant to and as required by its current terms, amend in any manner adverse to the Business or terminate or grant any consent or waiver under any Material Contract; |
(l) | other than borrowings under the revolving credit facility under the Credit Agreement in the Ordinary Course and except as disclosed in Section 5.1(3)(l) of the Shred-it / Vendors Disclosure Letter, increase its Indebtedness for borrowed money or make any |
(m) | except as disclosed in Section 5.1(3)(m) of the Shred-it / Vendors Disclosure Letter, make any bonus or profit sharing distribution, or similar payment of any kind, except as may be required by the terms of a Material Contract, an Employment Agreement or a Collective Agreement; |
(n) | abandon, modify in any manner adverse to the Business, waive or terminate any Material Authorization; |
(o) | commence, waive, release, assign, settle or compromise any Action in excess of an amount of $500,000 individually or $1,000,000 in the aggregate relating to the Business or the Business Assets, or which would reasonably be expected to impede, prevent or delay the consummation of the transactions contemplated by this Agreement; |
(p) | make any change in any method of accounting or accounting practice or policy other than as required by changes in Law or US GAAP or IFRS, as applicable, that become effective after the date hereof; |
(q) | make any material change in internal accounting controls or disclosure controls and procedures; |
(r) | in each case, except as required by Law, prepare or file any income Tax or other material Tax Return inconsistent with past practice or, on any such Tax Return, take any material position, make any material election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including positions, elections or methods that would have the effect of deferring income to periods ending after the Closing Date or accelerating deductions to periods ending on or before the Closing Date), settle or otherwise compromise any claim relating to income taxes or any other material Taxes, enter into any closing agreement or similar agreement relating to income Taxes or any other material Taxes, otherwise settle any dispute relating to income Taxes or any other material Taxes, or request any ruling or similar guidance with respect to Taxes; provided, that nothing in this clause (r) shall limit Stericycle’s rights pursuant to Section 9.4(1); |
(s) | except as disclosed in Section 5.1(3)(s) of the Shred-it / Vendors Disclosure Letter, enter into any Contract with any Vendor or any Related Party of any Vendor (other than Shred-it or a Subsidiary of Shred-it); |
(t) | enter into any lease of real property, except any renewals of existing leases in the Ordinary Course of Business; |
(u) | accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the Ordinary Course; |
(v) | delay or accelerate payment of any account payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the Ordinary Course; |
(w) | take any action or fail to take any action such that any of the representations or warranties set forth in Article 3 would not be true and correct as of the date of such action or as of the Closing Date; or |
(x) | authorize, agree or otherwise commit, whether or not in writing, to do any of the foregoing. |
(15) | Notwithstanding anything in this Agreement to the contrary, the Vendors shall be permitted to take such steps as are necessary to prevent the application of Section 280G of the Code to any payment made pursuant to this Agreement or to any payment made as a result of, or in connection with, any transaction contemplated by this Agreement, if it would otherwise so apply; provided, that the Vendors shall not be permitted to take such steps without Stericycle’s prior written consent, such consent not to be unreasonably withheld, delayed or conditioned. |
(a) | The Parties acknowledge the Confidentiality and Non-Disclosure Agreement dated April 9, 2015 between Stericycle and BHEPMI (the “Confidentiality Agreement”). The Parties agree that the Confidentiality Agreement continues to apply and the Parties are bound by, and agree to comply with, the Confidentiality Agreement in accordance with its terms. |
(b) | Each Vendor shall keep confidential, and cause its Related Parties and its and their Representatives to keep confidential, all information relating to any member of the Target Group, except (i) as required by Law or administrative process and (ii) for information that is available to the public on the date hereof or thereafter becomes available to the public other than as a result of a breach of this Section 5.3(b). |
(c) | Each Vendor hereby assigns, effective at the Closing, to Stericycle its rights under all confidentiality agreements entered into by such Vendor with any Person in connection |
(1) | Each Purchaser and each of the Vendors, as promptly as practicable after the execution of this Agreement, shall (a) make, or cause to be made, all filings and submissions under all Laws applicable to it that are required for it to consummate the purchase and sale of the Purchased Securities in accordance with the terms of this Agreement, (b) use all reasonable efforts to obtain, or cause to be obtained, all Authorizations necessary or advisable to be obtained by it in order to consummate such transfer, including the Regulatory Approvals, and (c) use all reasonable efforts to take, or cause to be taken, all other actions necessary, proper or advisable in order for it to fulfil its obligations under this Agreement. In the case of the Regulatory Approvals, each of the Purchasers and the Vendors shall make, or cause to be made, all filings and submissions, and submit all documentation and information that is required to obtain the Regulatory Approvals, and will use all reasonable efforts to satisfy all requests for additional information and documentation received under or pursuant to those filings, submissions and Laws, and any orders or requests made by any Governmental Entity under such Laws. Each of the Purchasers and the Vendors shall further use all reasonable efforts to avoid, oppose, or seek to have lifted or rescinded, any application for, or any resulting injunction or restraining or other order seeking to stop, or that otherwise adversely affects its ability to consummate, the transactions contemplated by this Agreement. |
(2) | Without limiting the generality of Section 5.6(1), as soon as reasonably practicable after the date hereof: |
(a) | (i) the Purchasers and the Vendors shall each file, or cause to be filed, as promptly as practicable, but in no event later than 30 Business Days following the execution and delivery hereof, with the Commissioner of Competition the notice and information necessary to start the waiting period under Subsection 123(1) of the Competition Act (Canada), and/or (ii) the Purchasers shall file as promptly as practicable, but in no event later than 10 Business Days following the execution and delivery hereof, with the Commissioner of Competition a submission in support of a request for an advance ruling certificate under Subsection 102(1) of the Competition Act (Canada) or, in the event that the Commissioner of Competition will not issue an advance ruling certificate, a No Action Letter in respect of the transactions contemplated by this Agreement; |
(b) | the Purchasers shall file as promptly as practicable, but in no event later than 15 Business Days following the execution and delivery hereof, an application for review pursuant to Section 17 of the Investment Canada Act to the Director of Investments in respect of the transactions contemplated by this Agreement and, contemporaneously therewith or promptly thereafter, shall submit to the Director of Investments under the Investment Canada Act proposed written undertakings to Her Majesty in right of Canada; |
(c) | the Purchasers and the Vendors shall each file, or cause to be filed, as promptly as practicable, but in no event later than 15 Business Days following the execution and delivery hereof, an appropriate filing of a notification and report form pursuant to the HSR Act in respect of the transactions contemplated by this Agreement; and |
(d) | the Purchasers, on the one hand, and the Vendors, on the other, shall share equally any filing fees payable to a Governmental Entity in connection with a Regulatory Approval. |
(3) | The Parties will coordinate and cooperate in exchanging information and supplying assistance that is reasonably requested in connection with this Section 5.6, including providing each other with advanced copies and reasonable opportunity to comment on all notices and information supplied to or filed with any Governmental Entity (including notices and information which a Party, acting reasonably, considers highly confidential and sensitive which may be provided on a confidential and privileged basis to outside counsel of the other Party or Parties, as the case may be), and all notices and correspondence received from any Governmental Entity. To the extent that any information or documentation to be provided by the Vendors to the Purchasers pursuant to this Section 5.6 is competitively sensitive, such information may be provided only to external counsel for the Purchasers on an external counsel only basis. The Parties will provide each other with copies of any written electronic communication received from Governmental Entities with respect to all applications, filings or other processes in respect of the Regulatory Approvals and will give each other the opportunity to attend and participate in all meetings, telephone calls or other discussions with Governmental Entities in respect of Regulatory Approvals. |
(4) | For purposes of this Section 5.6, “all reasonable efforts” of the Purchasers with respect to obtaining the Competition Act Approval and the HSR Approval shall include proposing, negotiating, agreeing to and effecting, by undertaking, consent agreement or otherwise the taking of any action that, and the making of any undertaking that, after the Closing, may be necessary |
(5) | For purposes of this Section 5.6, “all reasonable efforts” of the Purchasers with respect to obtaining the ICA Approval means that the Purchasers will agree to enter into such written undertakings with Her Majesty in right of Canada that are required to secure ICA Approval, provided that (i) any such action is conditioned on Closing; and (ii) any such undertakings over and above those undertakings customarily given to obtain Ministerial approval under the Investment Canada Act of a transaction in similar industries as the Business would not, individually or in the aggregate, reasonably be expected to cause a Material Adverse Impact. |
(1) | The Vendors shall have the continuing obligation until the Closing promptly to supplement or amend each Disclosure Letter with respect to any matter hereafter arising or discovered that, if existing or known at the date hereof, would have been required to be set forth or described in such Disclosure Letter; provided, however, that no such supplement or amendment to any Disclosure Letter shall have any effect for the purpose of determining the satisfaction of the conditions set forth in Section 6.1 or for purposes of determining whether or to what extent any Person is entitled to indemnification pursuant to Article 10. The Vendors shall promptly, upon having or gaining knowledge of any event, condition or fact that would cause any of the conditions to the Purchasers' obligation to consummate the transactions contemplated hereby not to be fulfilled, notify the Purchasers thereof, and furnish the Purchasers any information it may reasonably request with respect thereto. |
(1) | The Vendors and Shred-it shall use their best efforts to deliver on or before August 14, 2015 (but, in any event, no later than August 21, 2015) to the Purchasers: |
(2) | If the Closing shall not have occurred prior to November 14, 2015, the Vendors and Shred-it shall use their best efforts to deliver on or before November 14, 2015 (but, in any event, no later than November 21, 2015) to the Purchasers: |
(3) | With respect to each of the Unaudited IFRS Second Quarter 2015 Interim Financial Statements and the Unaudited IFRS Third Quarter 2015 Interim Financial Statements to be delivered by the Vendors and Shred-it, the Vendors and Shred-it shall (i) use commercially reasonable efforts to cause E&Y to perform a SAS 100 review with respect thereto and to orally confirm to the Purchasers that (A) such review was conducted in accordance with the standards of the American Institute of Certified Public Accountants (the “AICPA”) and (B) the certificate delivered by Shred-it pursuant to clause (ii) below is accurate in all material respects and (ii) deliver to the Purchasers, upon completion of the review contemplated by clause (i) above, a certificate, duly executed by the chief financial officer of Shred-it solely in his capacity as an officer of Shred-it, (A) stating, if true and correct, that E&Y has informed him that it has completed a SAS 100 review with respect thereto in accordance with the standards of the AICPA and (B) setting forth a description of all material modifications, if any, to such financial statements that E&Y informed him should be made thereto for such financial statements to conform with IFRS. The Purchasers shall reimburse the Vendors for any reasonable, out-of-pocket expenses incurred by them and, to the extent not paid by the Vendors, pay to E&Y directly its fees and expenses in respect of E&Y’s conducting of such SAS 100 review. |
(4) | The Vendors and Shred-it shall deliver (i) IFRS audited combined statements of financial position of the Target Group and related combined statements of income, changes in equity and cash flows of the Target Group for the three most recent fiscal years ended, by August 15, 2015, (ii) US GAAP unaudited combined balance sheet of the Target Group at June 28, 2015 and unaudited |
(1) | The Vendors and Shred-it shall use commercially reasonable best efforts to cause E&Y to deliver to the Purchasers a duly executed letter in which E&Y: (i) acknowledges that it understands that Stericycle and one or more of its Subsidiaries intend to include the Audited Historical Financial Statements, the US GAAP 2014 Financial Statements, certain Unaudited Interim Financial Statements and the Required Financing Information in statements and reports required pursuant to the Securities Act and the Exchange Act to be filed by Stericycle with the SEC (the “SEC Filings”); (ii) subject to E&Y‘s usual procedures and professional standards and after being given reasonable opportunity to review such SEC Filings and documents incorporated by reference therein at Stericycle’s sole cost and expense, agrees that it shall consent to the references in such SEC Filings to E&Y as experts and the inclusion of any of its audit reports on the Financial Statements in any SEC Filing, until such financial statements and consents are no longer required to be included in such SEC Filing by the Securities Act or the Exchange Act; and (iii) acknowledges that Stericycle will be providing the Audited Historical Financial Statements, the US GAAP 2014 Financial Statements, certain Unaudited Interim Financial Statements and the Required Financing Information to potential lenders for the transactions contemplated hereby and will be including such financial statements in the offering materials used in connection with one or more registered, private or exempt offerings under the Securities Act. The Vendors and Shred-it shall use commercially reasonable best efforts to cause E&Y, including by providing customary representation letters and other customary documents and instruments, subject to E&Y’s usual procedures and professional standards and E&Y being given reasonable opportunity to review such SEC Filings or offering documents and documents incorporated by reference therein at Stericycle’s sole cost and expense, (A) to consent to the inclusion of any of |
(2) | If E&Y fails, for any reason whatsoever, to consent to the inclusion of any such audit reports on the Audited Historical Financial Statements in any SEC Filing (and to the references therein to E&Y as experts) or to provide such comfort letters, the Vendors and Shred-it shall, and shall cause each of its Subsidiaries to, (i) provide Stericycle’s independent accountants reasonable access to its books and records and personnel reasonably required in order to audit the Audited Historical Financial Statements and to conduct a SAS 100 review of the US GAAP 2014 Financial Statements and certain Unaudited Interim Financial Statements so that Stericycle may expeditiously cause any or all of such financial statements to be reaudited, again reviewed or to be so confirmed by “comfort” letters as the case may be, (ii) use commercially reasonable best efforts to cause E&Y to cooperate with the auditors engaged by Stericycle to conduct such audit or review and (iii) provide customary representation letters and other customary documents and instruments. Each of the Vendors and Shred-it acknowledges that if E&Y fails to consent to the inclusion of any such audit reports in any SEC Filing (and to the references therein to E&Y as experts) or to provide such comfort letters, and Stericycle or any of its successors is denied in any manner whatsoever the access provided for in this Section 5.13, Stericycle will suffer irreparable injury and damage. Therefore, each of the Vendors and Shred-it agrees that, if Stericycle is denied access provided for in this Section 5.13 in any manner whatsoever, Stericycle and its Affiliates will be entitled, without posting of bond, to, in addition to all other remedies available to it, injunctive relief and specific performance to prevent the breach of and to secure the enforcement of this Section 5.13. |
(3) | Stericycle shall reimburse the Vendors for any reasonable out-of-pocket expenses incurred by the Vendors in connection with their compliance with this Section 5.13. |
(1) | Truth of Representations and Warranties. Each of the representations and warranties of the Vendors contained in this Agreement and any Ancillary Agreement (other than the Vendor Group Fundamental Reps, which shall be true and correct in all material respects on the date hereof and as of the Closing Date as if made on and as of the Closing Date) shall, without giving effect to any “Material Adverse Effect” qualifications, or other materiality qualifications or similar qualifications, contained in such representations and warranties, be true and correct on the date hereof and as of the Closing Date as if made on and as of the Closing Date (other than representations and warranties which address matters only as of a certain date, which shall be true and correct only as of such date) except where the failure of such representations and warranties to be so true and correct have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Purchasers must receive a certificate as to the matters in this Section 6.1(1) dated as of the Closing Date executed (a) in the case of Shred-it and any Vendor that is not an individual, by a senior officer of Shred-it or such Vendor (without personal liability), and (b) in the case of any Vendor that is an individual, by such Vendor. |
(2) | Performance of Covenants. All of the covenants and agreements contained in this Agreement and any Ancillary Agreement to be complied with by the Vendors or Shred-it on or before the Closing shall have been complied with in all material respects. The Purchasers shall receive a certificate as to the matters in this Section 6.1(2) dated as of the Closing Date executed (a) in the case of Shred-it and any Vendor that is not an individual, by a senior officer of Shred-it and such Vendor (without personal liability), and (b) in the case of any Vendor that is an individual, by such Vendor. |
(3) | Regulatory Approvals. Each of the Regulatory Approvals shall have been made, given or obtained. |
(4) | No Legal Action. No Action shall be pending by any Person (other than the Purchasers) in the United States or Canada, and no Judgment or Law shall have been made, issued or delivered by any Governmental Entity, seeking to enjoin, restrict or prohibit, or enjoining, restricting or prohibiting, any of the transactions contemplated by this Agreement. |
(5) | Material Adverse Effect. Since the date of this Agreement, there shall not have been or occurred a Material Adverse Effect. |
(6) | Other Documents. Shred-it and the Vendors’ Representative shall have furnished to the Purchasers other customary documents relating to existence and authority, the absence and release of Liens granted under the Credit Agreement and other customary instruments necessary to effect the transactions contemplated hereby as the Purchasers or their counsel may reasonably request. |
(7) | Deliveries. The Purchasers must have received the following: |
(a) | certificates representing the Purchased Securities (to the extent any Purchased Securities are certificated) duly endorsed in blank for transfer, or accompanied by irrevocable security transfer powers of attorney duly executed in blank, in either case, by the holders |
(b) | the certificates referred to in Section 6.1(1) and Section 6.1(2); |
(c) | the duly executed Resignations, in form and substance reasonably acceptable to Purchasers; |
(d) | a “good standing” certificate (or equivalent) for each of the Target Companies (to the extent such concept is applicable to said entity) and a copy of the articles of incorporation and all amendments thereto (or comparable document) of each of the Target Companies, in each case certified by the relevant officer of the jurisdiction of organization of such Person, each dated as of a date within five Business Days before the Closing Date; |
(e) | a certificate from each of Shred-it and Shred-it US Holdco Inc. prepared in accordance with the applicable regulations under Treasury Regulations under Section 1445 and Section 897, in form and substance reasonably satisfactory to the Purchasers, duly executed and acknowledged, certifying any facts that would exempt the transactions contemplated hereby from withholding under Section 1445 of the Code; |
(f) | the Agreement Regarding Shared Contracts and Consent Contracts (in the form attached hereto as Exhibit G), duly executed by each of Shred-it, Cintas Corporation No. 2, a corporation incorporated under the Laws of the State of Nevada, and Cintas Parent; |
(g) | the Indemnity Escrow Agreement, duly executed by Vendors’ Representative; |
(h) | evidence that all the outstanding stock options issued by Boost GP have been duly exercised by the Option Participants; and |
(i) | the Boost GP Note and the Boost Holdings Note. |
(2) | Truth of Representations and Warranties. Each of the representations and warranties of the Purchasers contained in this Agreement and any Ancillary Agreement which are qualified by references to materiality were true and correct as of the date of this Agreement and are true and correct as of the Closing Date in all respects (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of such specified date) and all other representations and warranties of the Purchasers set forth in this Agreement and any Ancillary Agreement were true and correct as of the date of this Agreement and are true and correct as of the Closing Date in all material respects (except for representations and warranties made as of a specified date, the accuracy of which shall be determined as of such specified date), in each case, except to the extent that the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would not materially impede the completion of the transactions contemplated by this Agreement. The Vendors’ Representative |
(3) | Performance of Covenants. All of the covenants and agreements contained in this Agreement and any Ancillary Agreement to be complied with by the Purchasers on or before the Closing shall have been complied with in all material respects. The Vendors’ Representative shall receive a certificate as to the matters in this Section 6.2(2) dated as of the Closing Date executed by a senior officer of Stericycle (without personal liability). |
(4) | Regulatory Approvals. Each of the Regulatory Approvals shall have been made, given or obtained. |
(5) | No Legal Action. No Action shall be pending by any Person (other than the Vendors) in the United States or Canada, and no Judgment or Law shall have been made, issued or delivered by any Governmental Entity, seeking to enjoin, restrict or prohibit, or enjoining, restricting or prohibiting, any of the transactions contemplated by this Agreement. |
(6) | Deliveries. The Vendors’ Representative must have received the following: |
(j) | the certificates referred to in Section 6.2(1) and Section 6.2(2); |
(k) | the Agreement Regarding Shared Contracts and Consent Contracts (in the form attached hereto as Exhibit G), duly executed by Stericycle; and |
(l) | the Indemnity Escrow Agreement, duly executed by Stericycle. |
(1) | at any time prior to the Closing by the mutual written consent of the Vendors’ Representative and Stericycle; |
(2) | by the Purchasers, if (i) the Vendors breach or fail to perform in any respect any of their representations, warranties or covenants contained in this Agreement and such breach or failure to perform (a) would give rise to the failure of the conditions set forth in Section 6.1, (b) cannot be or has not been cured within 30 days following delivery of written notice of such breach or failure to perform and (c) has not been waived by Stericycle or (ii) any of the conditions set forth in Section 6.1 has become incapable of being satisfied on or before the Outside Date and has not been waived by Stericycle; |
(3) | by the Vendors, if (i) any Purchaser breaches or fails to perform in any respect any of its representations, warranties or covenants contained in this Agreement and such breach or failure to perform (a) would give rise to the failure of the conditions set forth in Section 6.2, (b) cannot be or has not been cured within 30 days following delivery of written notice of such breach or failure to perform and (c) has not been waived by the Vendors’ Representative or (ii) any of the conditions set forth in Section 6.2 has become incapable of being satisfied on or before the Outside Date and has not been waived by the Vendor’s Representative; |
(4) | by the Vendors’ Representative or by the Purchasers upon written notice to the other Party or Parties, as the case may be, if the Closing has not occurred on or prior to the Outside Date; provided, that the right to terminate this Agreement under this Section 8.1(4) shall not be available to a Party or Parties, as the case may be, if the failure of such Party or Parties to fulfill any of its or their obligations under this Agreement is the primary cause of the failure of the Closing to occur on or before the Outside Date, including the failure of a Party to consummate the transactions contemplated hereby at the time contemplated hereby and, for greater certainty, if Stericycle has delayed the Closing until the Outside Date pursuant to Section 7.2(b), the |
(5) | by the Purchasers, if the Vendors fail to deliver or cause to be delivered any financial statement under Section 5.10 by the latest applicable deadline set forth in Section 5.10. |
(1) | the Purchasers shall return all documents and other material received from any Vendor or Shred-it relating to the transactions contemplated hereby, whether so obtained before or after the execution hereof, to such Vendor or Shred-it; provided, however, that solely for purposes of asserting or protecting its rights under this Agreement or any Ancillary Agreement, the Purchasers may retain one copy of all documents made available to the Purchasers in any physical or electronic “data rooms”, management presentations or in any other form in expectation of such transactions; and |
(2) | all confidential information received by the Purchasers with respect to the business of Shred-it and its Subsidiaries shall be treated in accordance with the Confidentiality Agreement, which shall remain in full force and effect notwithstanding the termination hereof. |
(1) | The Vendors’ Representative shall prepare or cause to be prepared and timely file or cause to be timely filed (taking into account all extensions properly obtained) all income Tax Returns for each member of the Target Group for all taxable years ending in 2014 (each, a “2014 Income Tax Return”) and all Tax Returns that are required to be filed by or with respect to any member of the Target Group on or prior to the Closing Date. The Vendors’ Representative will deliver drafts of each 2014 Income Tax Return to Stericycle for review and comment not less than 30 days prior to the due date for such Tax Return, taking into account extensions. The Vendors’ |
(2) | Stericycle shall prepare or cause to be prepared and timely file or cause to be timely filed (taking into account all extensions properly obtained) all Tax Returns for each member of the Target Group not described in Section 9.4(1) for all periods (or portions thereof) ending on or prior to or including the Closing Date (each a “Pre-Closing Tax Return”) at the Vendors’ reasonable expense, in the case of Pre-Closing Tax Returns for a Pre-Closing Tax Period and at the reasonable expense of the Vendors and Stericycle, shared equally, in the case of Pre-Closing Tax Returns for a Straddle Period; provided, that Stericycle shall retain KPMG or E&Y to prepare or review all Pre-Closing Tax Returns of the same type that is currently prepared or reviewed by KPMG or E&Y, respectively; provided, further, that Stericycle shall retain KPMG to prepare all Pre-Closing Income Tax Returns (as defined below) of Boost Holdings, Boost GP and Shred-it. Stericycle will deliver draft income Pre-Closing Tax Returns of each member of the Target Group for the taxable year (or portion thereof) that includes the Closing Date (a “Pre-Closing Income Tax Return”) to the Vendors’ Representative for review and comment not less than 30 days prior to the due date for such Tax Return, taking into account extensions (or, if such due date is within 30 days following the Closing Date, as promptly as practicable following the Closing Date). The Purchaser shall cause all other material Pre-Closing Tax Returns that the Vendors’ Representative requests in writing on or prior to the Closing Date to review to be delivered to the Vendors’ Representative within a reasonable period of time prior to the due date for such Tax Returns (including extensions) so that the Vendors’ Representative has a meaningful opportunity to review and comment on such Tax Returns prior to filing. The Purchaser shall (or shall cause the Target Group to), subject to the remainder of this clause (2), incorporate all reasonable comments provided by the Vendors’ Representative with respect to all Pre-Closing Tax Returns to the extent consistent with Law and received within 20 days after the Vendors’ Representative’s receipt of such Pre-Closing Tax Return; provided that, if the Purchaser disagrees with any such comments, it shall notify the Vendors’ Representative of such disagreement and the basis for its objection. The parties shall use their commercially reasonable efforts to reach an agreement on any such dispute prior to the date on which the relevant Tax Return is required to be filed and if the parties cannot resolve any disagreement, the item in question shall be resolved by the CPA Firm, and such resolution shall be binding. The fees and expenses of the CPA Firm in connection with such resolution shall be shared equally by the Purchaser, on the one hand, and the Vendors, on the other hand. Except as required by Law, such Pre-Closing Tax Returns shall be prepared in a manner consistent with past practice to the extent the relevant |
(3) | The applicable Purchaser or the Vendors shall reimburse the other party the Taxes for which the Vendors or such Purchaser is liable pursuant to Section 10.1 but which are remitted in respect of any Tax Return to be filed by the other party pursuant to Section 9.4(1) or (2) upon the written request of the party entitled to reimbursement setting forth in detail the computation of the amount owed by such Purchaser or the Vendors, as the case may be, but in no event earlier than 10 days prior to the due date for paying such Taxes. For the avoidance of doubt, such reimbursement obligations shall not be subject to the limitations on indemnification set forth in Section 10.2. |
(4) | The Purchasers will not file (or cause or permit any member of the Target Group to file) any amended Tax Return of any member of the Target Group with respect to a Pre-Closing Tax Period or a Straddle Period during the period following the Closing in which the Vendors may have an indemnification obligation for the Taxes reflected on such Tax Return pursuant to Section 10.1 without the Vendors’ Representative’s prior written consent, such consent not to be unreasonably withheld, delayed or conditioned |
(5) | To the extent Shred-it or Shred-it USA has not already made an election pursuant to Section 754 of the Code (or similar election under other applicable tax law), Shred-it or Shred-it USA, as the case may be, shall make (or any member of the Target Group shall cause to be made) such an election on the applicable U.S. federal and state income Tax Returns of Shred-it and Shred-it USA for the taxable year (or portion thereof) that includes the Closing Date. |
(6) | The Vendors and the Purchasers agree that each of Shred-it International and Boost GP will make an election pursuant to subsection 256(9) of the Tax Act in respect of their taxation year ending on the acquisition of control of them by the Purchasers. |
(7) | The Purchasers shall prepare a schedule setting forth (i) the allocation of the Shred-it International Purchase Price (and any other items that are treated as consideration paid by Purchaser Sub 1 for applicable tax purposes) among the assets of Shred-it International in a manner consistent with Section 1060 of the Code and reflecting the U.S. federal income tax classification of the Subsidiaries of Shred-it International, (ii) the allocation of the Purchase Price (and any other items that are treated as consideration paid by Stericycle or Purchaser Sub 2 for applicable tax purposes) among the Purchased Securities in Shred-it International, Shred-it, Boost GP and Boost Holdings, which allocation shall be consistent with Appendix D and shall reflect an allocation to each class of units in Shred-it, and (iii) the further allocation of the portion of the Purchase Price (and any other items that are treated as consideration paid by Stericycle for applicable tax purposes) so allocated to the Shred-it Purchased Securities among the assets of Shred-it and Shred-it USA in a manner consistent with Sections 743, 754 and 1060 of the Code and reflecting the U.S. federal income tax classification of the Subsidiaries of Shred-it USA (the “Allocation”). The Purchasers shall deliver such Allocation to the Vendors’ Representative within 45 days after the final determination of the Shred-it International Purchase Price and the Purchase Price. The Vendors’ Representative shall have the right to review such Allocation and, to the extent the Vendors’ Representative disagrees with the Allocation, the Vendors’ Representative shall notify Stericycle in writing of any objections within 30 days after receipt of such Allocation. Stericycle and the Vendors’ Representative shall use their commercially reasonable efforts to reach agreement on the disputed items or amounts, if any. The Allocation, |
(8) | For all Tax purposes, the Parties agree to treat the transactions described in Section 2.1 in accordance with their form and in accordance with the order in which they are to be consummated in accordance with this Agreement except as otherwise required by a good faith resolution of a Tax contest at the highest administrative appeals level. |
(9) | The Purchasers shall not make or cause to be made, and shall not permit any of its Affiliates, including any member of the Target Group, to make or cause to be made any election under Section 338(g) of the Code (or any corresponding provisions of state or local Tax law) with respect to the acquisition of any member of the Target Group; provided, however, Purchaser, or any of its Affiliates, shall be entitled (but shall not be obligated) to make an election under Section 338(g) of the Code (or any corresponding provision of state or local Tax law) with respect to Shred-it Insurance Ltd., Shred-it Belgium S.A., Mobile Shredding Luxembourg S.A., Iron Mountain Australia and Shred-it LLC (the “Permitted Section 338(g) Elections”). At Vendors’ Representative’s written request, the Purchasers will file a joint election with the Vendors pursuant to subsection 56.4(7) of the Income Tax Act (Canada) within the time prescribed to file that election. |
(1) | Each Vendor understands that the Purchasers shall be entitled to protect and preserve the going concern value of the business of Shred-it and its Subsidiaries to the extent permitted by Law and that the Purchasers would not have entered into this Agreement absent the provisions of this Section 9.5 and, therefore, (x) each of CC Shredding, CC Dutch Shredding, BHEPMI, SII GP, the Funds and each of the Management Shareholders named in Exhibit E for a period of five years from the Closing and (y) each of the Management Shareholders named in Exhibit F for a period of three years from the Closing, shall not, and shall cause each of its Affiliates not to, directly or indirectly, in any capacity whatsoever, alone, through or in connection with any Person: |
(a) | carry on, advise with respect to, or be engaged in or have any financial or other interest in or be otherwise commercially involved in any endeavour, activity or business in all or part of any geographic location in which Shred-it or any of its Subsidiaries conducted, |
(b) | perform any action, activity or course of conduct that is substantially detrimental to the Business of Shred-it and its Subsidiaries or business reputation (“Detrimental Activities”), including (i) soliciting, recruiting or hiring any employee of Shred-it and its Subsidiaries and (ii) soliciting or encouraging any employee of Shred-it or its Subsidiaries to leave the employment of Shred-it or its Subsidiaries. |
(2) | Section 9.5(1) shall be deemed not breached solely as a result of (i) the ownership by any Vendor or its Affiliates of less than an aggregate of 5% of any class of stock of a Person engaged, directly or indirectly, in Competitive Activities; provided, however, that such stock is listed on a national securities exchange or (ii) the ownership by BHEPMI, Cintas Parent or any of their respective Affiliates of any Person that engages, directly or indirectly, in Competitive Activities if such Competitive Activities account for less than 10% of such Person’s consolidated annual revenues. |
(3) | Nothing in Section 9.5(1)(a) shall prevent (i) any of the Management Shareholders from accepting employment with or investing in Stericycle or its Affiliates; (ii) BHEPMI from engaging in Competitive Activities through its current portfolio companies that may provide ancillary services which are the same or similar to the Business; or (iii) Cintas Corp. or any of its direct or indirect Subsidiaries from engaging in any consulting business or from providing consulting services, including consulting services relating to businesses that are the same as or similar to the Business. |
(4) | Nothing in Section 9.5(1)(b) shall prevent Cintas Parent or any of its direct or indirect Subsidiaries from soliciting, recruiting or hiring in its ordinary course of business any employee of Shred-it and its Subsidiaries other than any of the Management Shareholders named in Exhibit E. |
(5) | Notwithstanding any other provision hereof, it is understood and agreed that the remedy of indemnity payments pursuant to Article 10 (Indemnification) and other remedies at law would be inadequate in the case of any breach of the covenants contained in Section 9.5(1). Without limitation to such right to indemnity payments or other remedies at law, the Purchasers shall be entitled to equitable relief, including the remedy of specific performance, with respect to any breach or attempted breach of such covenants. |
(6) | Each Vendor shall be liable for, and shall indemnify each Purchaser Indemnitee against and hold it harmless from, any Damages suffered or incurred by such Purchaser Indemnitee (including, without duplication and without additional Damages solely as the result of the timing of the sale of the Shred-it International Purchased Securities, with respect to any indemnification obligation of Shred-it under Section 10.4(4) with respect to Damages suffered in respect of Shred-it International and its Subsidiaries) in connection with or arising from (A) Taxes imposed on any member of the Target Group, or for which any member of the Target Group may otherwise be liable, for any taxable year or period that ends on or before the Closing Date and, with respect to any Straddle Period, the portion of such Straddle Period ending on and including the Closing Date, (B) Taxes imposed on Boost GP solely in respect of the transfer of the Shred-it International Purchased Securities pursuant to this Agreement, (C) Taxes imposed on any member of an affiliated, consolidated, combined or unitary group of which any member of the Target Group is or was a member on or prior to the Closing Date by reason of liability pursuant to Treasury Regulation § 1.1502-6 or similar provisions of state, local or non-U.S. law and including any Taxes resulting from any member of the Target Group ceasing to be a member of any such group, and (D) without duplication, any breach of any Tax Rep or any covenant of Vendors in Section 9.4; provided, however, that no Vendor shall have any obligation to indemnify any Purchaser Indemnitee pursuant to this Section 10.1(1) for (w) any Tax liability to the extent such Tax liability is taken into account in computing Actual Closing Working Capital, (x) any Transaction Taxes, (y) any Taxes arising from the Permitted Section 338(g) Elections or any Taxes resulting from a breach of any covenant of any Purchaser set forth in Section 9.4, and (z) any Taxes resulting from any action taken by any Purchaser Indemnitee out of the Ordinary Course after the Closing on the Closing Date. |
(7) | For purposes of Section 10.1(1), whenever it is necessary to determine the liability for Taxes of any member of the Target Group for a Straddle Period, the determination of the Taxes of such member of the Target Group for the portion of the Straddle Period ending on and including the Closing Date shall be determined by assuming that the Straddle Period consisted of two taxable years or periods, one which ended at the close of the Closing Date and the other which began at the beginning of the day following the Closing Date and items of income, gain, deduction, loss or credit of such member of the Target Group for the Straddle Period shall be allocated between such two taxable years or periods on a “closing of the books basis” by assuming that the books of such member of the Target Group were closed at the close of the Closing Date, provided, however, that exemptions, allowances, deductions or Taxes that are calculated on an annual basis, such as property Taxes and depreciation deductions, shall be apportioned between such two taxable years or periods on a daily basis. If any member of the Target Group is a partner in a partnership, (or an owner of a similar interest with respect to which items of the entity are taken into account by any member of the Target Group), such member of the Target Group shall be treated, solely for purposes of determining the taxable period or portion thereof to which the partnership’s or other entity’s income is allocated, as selling or exchanging its entire interest in the entity at the end of the Closing Date in accordance with the principles of Treasury Regulation § 1.1502-76(b)(5). For the avoidance of doubt, all income or gain recognized by any member of the Target Group as a result of, or attributable to, the transfer of the Shred-it |
(8) | The Vendors, on the one hand, and the Purchasers, on the other, shall bear 50% of any real property transfer or gains Tax, sales Tax, use Tax, stamp Tax, stock transfer Tax, or other similar Tax imposed on the transactions contemplated by this Agreement. |
(9) | Stericycle shall notify the Vendors’ Representative in writing upon receipt by any Purchaser, any of its Affiliates or, after the Closing Date, any member of the Target Group of notice of any pending or threatened federal, state, local or foreign Tax audits or assessments relating to any taxable period ending on or before the Closing Date or to any Straddle Period; provided, that failure to comply with this provision shall not affect any Purchaser’s right to indemnification under this Agreement except to the extent such failure materially impairs the Vendors’ Representative’s ability to contest any such Tax liabilities. |
(10) | The Vendors’ Representative shall have the sole right to represent each member of the Target Group’s interests in any Tax audit or administrative or court proceeding relating to a Tax liability for which the Vendors would be required to indemnify the Purchaser Indemnitees pursuant to this Section 10.1 and that relates solely to a taxable year or period ending on or before the Closing Date, and to employ counsel of the Vendors’ Representative’s choice at the Vendors’ Representative’s expense; provided, however, that the Vendors’ Representative shall have no right to represent any member of the Target Group’s interests in any Tax audit or administrative or court proceeding unless (1) the Vendors’ Representative shall have first notified Stericycle in writing of the Vendors’ Representative’s intention to do so and of the identity of counsel, if any, chosen by the Vendors’ Representative in connection therewith, and such counsel is not reasonably objected to by the Purchaser Indemnitees, (2) it is likely that such audit or proceeding would have a greater adverse impact on the Vendors than on the Purchaser Indemnitees taking into account only the amounts of Taxes that are the subject of such audit or proceeding and the Vendors’ obligations under this Section 10.1 (with any disputes regarding the determination of the likelihood of such greater adverse impact being resolved by the CPA Firm) and (3) Vendors’ Representative provides reasonable assurance to the Purchaser Indemnitees of Vendors’ willingness and financial capacity to defend such audit or administrative or court proceeding and provide the related indemnification for with Vendors are responsible under this Section 10.1; provided, further, that each Purchaser and its representatives shall be permitted, at such Purchaser’s expense, to be present at, and participate in, any such audit or proceeding. Notwithstanding the foregoing, neither the Vendors nor any Affiliate of the Vendors shall be entitled to settle, either administratively or after the commencement of litigation, any claim for Taxes which could adversely affect the liability for Taxes of any Purchaser Indemnitee, any member of the Target Group or any Affiliate thereof for any period after the Closing Date to any extent unless the Vendors have indemnified each Purchaser Indemnitee against the effects of any such settlement (including the imposition of income Tax deficiencies, the reduction of asset basis or cost adjustments, the lengthening of any amortization or depreciation periods, the denial of amortization or depreciation deductions, or the reduction of loss or credit carryforwards) without the prior written consent of the Purchasers, not to be unreasonably withheld, delayed or conditioned. |
(11) | Each Purchaser shall have the sole right to represent each member of the Target Group’s interests in any Tax audit or administrative or court proceeding relating to Tax liabilities other than those for which the Vendors have exercised such right pursuant to Section 10.1(5) and to employ |
(12) | Nothing herein shall be construed to impose on any Purchaser any obligation to defend any member of the Target Group in any Tax audit or administrative or court proceeding. |
(13) | The Vendors shall be entitled to any credits and refunds (including interest received thereon) received during the period following the Closing in which the Vendors may have an indemnification obligation pursuant to Section 10.1 in respect of the Taxes being refunded or credited, in each case net of any Tax attributable to such refund or credit and any reasonable third-party costs incurred by any Purchaser or any member of the Target Group in obtaining such refund or credit (except, for the avoidance of doubt, any such refund or credit (or any portion thereof) that is (i) taken into account in computing Actual Closing Working Capital or (ii) attributable solely to the carryback of losses, credits or similar items of any member of the Target Group from a taxable period beginning after the Closing Date), and only to the extent the refund or credit relates to Taxes paid prior to the Closing by a member of the Target Group or paid after Closing by the Vendors pursuant to this Section 10.1. |
(14) | After the Closing Date, each of the Vendors and the Purchasers shall (and shall cause their respective Affiliates to): |
(a) | timely sign and deliver such certificates or forms as may be necessary or appropriate to establish an exemption from (or otherwise reduce), or file Tax Returns or other reports with respect to, Taxes described in Section 10.1(2) (relating to sales, transfer and similar Taxes); |
(b) | assist the other party in preparing any Tax Returns which such other party is responsible for preparing and filing in accordance with Section 9.4, and in connection therewith, provide the other party with any necessary powers of attorney; |
(c) | cooperate fully in preparing for and defending any audits of, or disputes with taxing authorities regarding, any Tax Returns of each member of the Target Group; |
(d) | make available to the other and to any taxing authority as reasonably requested all information, records, and documents relating to Taxes of the each member of the Target Group; and |
(e) | furnish the other with copies of all correspondence received from any taxing authority in connection with any Tax audit or information request with respect to any Taxes or Tax Returns of each member of the Target Group; provided, that any Purchaser shall |
(15) | Any Tax Sharing Arrangement entered into by the Vendors or any Affiliate of any Vendor, on the one hand, and any member of the Target Group, on the other hand, shall be terminated as to the each member of the Target Group on or prior to the Closing, and after the Closing no member of the Target Group shall have any liability thereunder (excluding any nonmaterial commercially reasonable indemnity, sharing or similar agreements or arrangements where the inclusion of a Tax indemnification or allocation provision is customary or incidental to an agreement the primary nature of which is not Tax sharing or indemnification). |
(2) | Each Vendor shall be liable for, and shall indemnify each Purchaser Indemnitee against and hold it harmless from, any Damages suffered or incurred by such Purchaser Indemnitee (including, without duplication and without additional Damages solely as the result of the timing of the sale of the Shred-it International Purchased Securities, with respect to any indemnification obligation of Shred-it under Section 10.4(4) with respect to Damages suffered in respect of Shred-it International and its Subsidiaries) (other than any Damages relating to Taxes, for which indemnification provisions are set forth in Section 10.1 (Tax Indemnification)) arising out of, involving or otherwise in respect of: |
(m) | any breach of any representation or warranty of such Vendor or Shred-it contained herein (without giving effect to any supplemental disclosures delivered pursuant hereto), in any Ancillary Agreement or any certificate or supplemental disclosures delivered pursuant hereto or thereto (it being agreed and acknowledged by the Parties that pursuant to any right to indemnification pursuant to this clause (a) such representations and warranties shall be deemed not qualified by any references therein to materiality or to whether or not any such breach results or may result in a Material Adverse Effect); |
(n) | any breach of any covenant of such Vendor or Shred-it contained herein or in any Ancillary Agreement; |
(o) | the assertion by or on behalf of Vendors or any of their Related Parties of any Released Claim or the assertion by any third party of any claim or demand against and Releasee that arises directly or indirectly from, or in connection with, any assertion by or on behalf of the Vendors or any of their current or former Released Parties against such third party of any Released Claim; |
(p) | any Vendor Transaction Expenses not paid before the close of business on the Closing Date or not accounted for under Section 2.4; and |
(q) | any act or omission of the Vendors’ Representative in its capacity as such. |
(3) | The Vendors shall not have any liability for Damages incurred by the Purchaser Indemnitees under (i) Section 10.2(1)(a) or (ii) Section 10.2(1)(b): |
(a) | unless the aggregate of all Damages for which the Vendors would, but for this clause (a), be liable thereunder exceeds on a cumulative basis an amount equal to $25,000,000 (the “Deductible”), in which event the Vendors shall be liable for all such Damages in excess of the Deductible up to a maximum aggregate amount of $100,000,000 (the “Cap”); or |
(b) | for any individual claim or series of directly related claims where the Damages relating thereto is less than $50,000 (the “Claim Threshold”), it being agreed that any such claim(s) shall not be aggregated for purposes of the Deductible; |
(4) | The obligations of the Vendors under: (a) Section 10.1 shall be several among the Vendors; and (b) Section 10.2(1) shall be (i) several among the Vendors under 10.2(1)(a) with respect to breaches of Section 3.5, (ii) several between CC Shredding and BHEPMI under 10.2(1)(a) with respect to breaches of Sections 3.1 and 3.3 related to representations and warranties regarding Boost GP, (iii) several among the Boost Holdings Vendors under 10.2(1)(a) with respect to breaches of Section 3.4 related to representations and warranties regarding Boost Holdings, (iv) several among the Vendors under Section 10.2(1)(b) with respect to breaches of covenants to be performed before or at the Closing by Shred-it and (v) otherwise individual and several; provided, however, that no Vendor shall be required to indemnify any Purchaser Indemnitee, and no Vendor shall have any liability, in excess in the aggregate of such Vendor’s Pro Rata Share of the indemnifiable Damages pursuant to this Article 10 up to a maximum of such Vendor’s Pro Rata Share of the Purchase Price and the Shred-it International Purchase Price. No Vendor shall have any right to obtain Damages (whether through an action for contribution or otherwise) from any member of the Target Group or their Representatives with respect to any breach of any representation, warranty, covenant or agreement hereunder and each Vendor hereby releases, waives and discharges any such rights and all other rights in connection herewith against any member of the Target Group and their Representatives (other than with respect to obligations of the Purchasers and Shred-it hereunder to be performed after the Closing). |
(10) | Stericycle and Purchaser Sub 2 (jointly and severally) and, from and after the Closing, Shred-it, jointly and severally, shall be liable for and shall indemnify each Vendor Indemnitee against and hold it harmless from any Damages suffered or incurred by such Vendor Indemnitee (other than relating to Taxes, for which indemnification provisions are set forth in Section 10.1) arising out of, involving or otherwise in respect of: |
(a) | any breach of any representation or warranty of such Purchasers contained herein, in any Ancillary Agreement or in any certificate delivered pursuant hereto or thereto (it being agreed and acknowledged by the Parties that for purposes of the right to indemnification pursuant to this clause (a) the representations and warranties of such Purchasers contained herein shall be deemed not qualified by any references therein to materiality); and |
(b) | any breach of any covenant of such Purchasers contained herein or in any Ancillary Agreement. |
(11) | Stericycle and Purchaser Sub 2 shall not have any liability for Damages incurred by the Vendor Indemnitees under Section 10.3(1): |
(j) | unless the aggregate of all Damages for which such Purchasers would, but for this clause (a), be liable thereunder exceeds on a cumulative basis an amount equal to the Deductible, in which event such Purchasers shall be liable for all such Damages in excess of the Deductible up to a maximum aggregate amount of the Cap; or |
(k) | for any individual items where the Damages relating thereto is less than the Claim Threshold, it being agreed that such items shall not be aggregated for purposes of the Deductible; |
(6) | The amount of any Damages for which indemnification is provided under this Article 10 shall be net of any amounts recovered by the Indemnified Party under any insurance policy with respect to such Damage (less the cost to collect the proceeds of such insurance and the amount, if any, of any retroactive or other premium adjustments reasonably attributable thereto), and the Indemnified Parties shall be obligated to use commercially reasonable efforts to seek any such insurance recoveries. For the avoidance of doubt, an Indemnified Party is not entitled to double recovery for the same Damages in connection with any claim for indemnification under this Article 10 even though such claim may have resulted from the breach of more than one of the representations, warranties, covenants or other obligations of the Indemnifying Party hereunder. |
(7) | The Purchasers and the Vendors agree to report each indemnification payment made in respect of Damages as an adjustment to the Purchase Price or the Shred-it International Purchase Price for U.S. and Canadian income Tax purposes unless the indemnified party determines in good faith that such reporting position is incorrect. Such indemnification payment made in respect of Damages shall be allocated based on the proportional amount of fault between Shred-it and its Subsidiaries (excluding Shred-it International and its Subsidiaries), on the one hand, and Shred-it International and its Subsidiaries, on the other hand. |
(8) | Any indemnification payment hereunder with respect to any Damages shall properly take into account 50% of any Tax benefit actually realized as a result of the incurrence of such Damages by the Indemnified Party (by reason of such Damages or payment, as applicable, giving rise to a deduction, resulting in an increase of tax basis, or otherwise decreasing such Taxes payable by the indemnified party at any time), calculated on a “with-and-without” basis. |
(9) | Following the Closing, Shred-it shall be liable for, and shall indemnify Purchaser Sub 1 against and hold it harmless from, any Damages suffered in respect of Shred-it International and its |
(1) | Third Party Claims. In order for a Person (the “Indemnified Party”) to be entitled to any indemnification provided for under Section 10.2 or Section 10.3 in respect of, arising out of or involving a claim made by any Person not a party hereto against the Indemnified Party (a “Third Party Claim”), such Indemnified Party must notify the indemnifying party (the “Indemnifying Party”) in writing of such Third Party Claim (setting forth in reasonable detail the facts giving |
(2) | Assumption. If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and (unless (i) the Indemnifying Party is also a party to such Third Party Claim and the Indemnified Party determines in good faith that joint representation would be inappropriate or (ii) the Indemnifying Party fails to provide reasonable assurance to the Indemnified Party of its willingness and financial capacity to defend such Third Party Claim and provide indemnification with respect to such Third Party Claim), if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party; provided, however, that such counsel is not reasonably objected to by the Indemnified Party. If the Indemnifying Party assumes the defense of a Third Party Claim in accordance with this Section 10.6(2), (i) the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof and (ii) it shall be conclusively established for purposes hereof that such Third Party Claim is within the scope of and subject to indemnification hereunder. Any such participation or assumption shall not constitute a waiver by any party of any attorney-client privilege in connection with such Third Party Claim. If the Indemnifying Party assumes the defense of a Third Party Claim in accordance with this Section 10.6(2), the Indemnified Party shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information that are reasonably relevant to such Third Party Claim, and making employees available at such times and places as may be reasonably necessary to defend against such Third Party Claim for the purpose of providing additional information, explanation or testimony in connection with such Third Party Claim. If notice is given to an Indemnifying Party of a Third Party Claim in accordance with this Section 10.6(2) and the Indemnifying Party does not, within 10 Business Days after such notice is given, give notice to the Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying Party will be bound by any determination made in such Third Party Claim or any settlement, compromise or discharge effected by the Indemnified Party. If the Indemnifying Party assumes the defense of a Third Party Claim, the Indemnifying Party shall defend such Third Party Claim vigorously and diligently to final conclusion or settlement of such Third Party Claim; provided that the Indemnifying Party shall not settle such Third Party Claim without the consent of the Indemnified Party unless such settlement (i) does not involve any finding or admission of any violation of Law or any violation of the rights of any Person and would not have any adverse effect on any other claims that may be made against the Indemnified Party, (ii) does not involve any relief other than monetary damages that are paid in full by the Indemnifying Party and (iii) completely, finally and unconditionally releases the Indemnified Party in connection with such Third Party Claim and |
(3) | Subject Materials. If the Indemnifying Party chooses to defend any Third Party Claim, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) cause, or agree to, the waiver of the attorney-client privilege, attorney work-product immunity or any other privilege or protection in respect of confidential legal memoranda and other privileged materials drafted by, or otherwise reflecting the legal advice of, internal or outside counsel of an Indemnified Party (the “Subject Materials”) relating to such Third Party Claim. Each party hereto mutually acknowledges and agrees, on behalf of itself and its Affiliates, that (i) each shares a common legal interest in preparing for the defense of legal proceedings, or potential legal proceedings, arising out of, relating to or in respect of any actual or threatened Third-Party Claim or any related claim or counterclaim, (ii) the sharing of Subject Materials will further such common legal interest and (iii) by disclosing any Subject Materials to and/or sharing any Subject Materials with the Indemnifying Party, the Indemnified Party shall not waive the attorney-client privilege, attorney work-product immunity or any other privilege or protection. The Indemnified Party shall not be required to make available to the Indemnifying Party any information that is subject to an attorney-client or other applicable legal privilege that based on the advice of outside counsel would be impaired by such disclosure or any confidentiality restriction under applicable Law. |
(4) | Other Claims. In the event any Indemnified Party has a claim against any Indemnifying Party under 10.2 or 10.3 that does not involve a Third Party Claim, the Indemnified Party shall deliver notice of such claim to the Indemnifying Party (setting forth in reasonable detail the facts giving rise to such claim (to the extent known by the Indemnified Party) and the amount or estimated amount (to the extent reasonably estimable) of Damages arising out of, involving or otherwise in respect of such claim) with reasonable promptness after becoming aware of such claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure. If the Indemnifying Party does not notify the Indemnified Party within 10 Business Days following its receipt of such notice that the Indemnifying Party disputes its liability to the Indemnified Party under Section 10.2(1) or Section 10.3(1), such claim specified by the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is estimated, on such later date when the amount of such claim (or such portion thereof) becomes finally determined. |
(5) | Claims Against the Indemnity Escrow Funds. The Purchasers shall have the right to notify the Indemnity Escrow Agent of any claim for indemnification made by any Purchaser Indemnitee pursuant to this Section 10.6. Promptly following the final determination in accordance with this Article 10 of any claim for indemnification made by any Purchaser Indemnitee pursuant to this Section 10.6, upon request by the Purchasers, the Vendors’ Representative shall execute and |
(6) | Interest. Any amounts due hereunder that are not paid on or before the second Business Day after such amounts have been finally determined to be due hereunder shall bear interest compounded daily at the Prime Rate, calculated based on the number of days elapsed from such second Business Day to the date of such payment and a 360-day year. |
(7) | Coordination with Tax Contests. If there shall be any conflicts between the provisions of this 10.6 and Section 10.1, the provisions of Section 10.1 shall control with respect to Tax contests. For the avoidance of doubt, none of the Deductible, the Cap nor the Claim Threshold shall apply to the Vendors’ obligations under Section 10.1. |
(5) | Each Vendor hereby irrevocably appoints Birch Hill Equity Partners Management Inc., or any successor thereto, as its representative, agent, proxy and attorney in fact (the “Vendors’ Representative”) for such Vendor and in such Vendor’s name, place and stead for all purposes of this Agreement. As the representative of Vendors, Vendors’ Representative shall act as the agent for all Vendors and shall have authority to bind each Vendor in accordance with this Agreement. |
(6) | In order to administer efficiently the determination of certain matters under this Agreement, each Vendor hereby agrees that the Purchasers will be entitled to: |
(a) | rely on the Vendors’ Representative as having full power, authority and discretion to make all decisions and take all actions relating to the Vendors’ respective rights, obligations and remedies under this Agreement, including to receive and make payments, to receive and send notices, to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification on behalf of Vendors and to defend against indemnification claims of the Purchasers; and |
(b) | deal only with the Vendors’ Representative in respect of all matters arising under this Agreement including to receive and make payments, to receive and send notices (including notices of termination), to receive and deliver documents, to exercise, enforce or waive rights or conditions, to give releases and discharges, to seek indemnification against the Vendors or any one of them and to defend against indemnification claims of the Vendors. |
(7) | All references in this Agreement to decisions and actions to be taken by Vendors or any one of them, as the case may be, shall be deemed taken by the Vendors or any one of them, as the case may be, if such decisions or actions are taken by the Vendors’ Representative. All references in this Agreement to decisions and actions to be taken by the Purchasers and directed to the Vendors or any one of them, as the case may be, shall be deemed directed to the Vendors or any one of them, as the case may be, if such decisions or actions are directed by the Purchasers to the Vendors’ Representative. |
(8) | The Purchasers shall be entitled to rely upon any notice provided to the Purchasers by the Vendors’ Representative or action taken by the Vendors’ Representative acting within the scope of his authority. |
(9) | Notwithstanding the foregoing, no payment, notice, receipt or delivery of documents, exercise, enforcement or waiver of rights or conditions, indemnification claim or indemnification defence shall be ineffective by reason only of it having been made or given to or by a Vendor directly if each of the Purchasers and such Vendor consent by virtue of not objecting to such dealings without the intermediary of the Vendors’ Representative. |
(10) | The Vendors shall severally (and not jointly and severally) indemnify and hold harmless the Vendors’ Representative, in its capacity as Vendors’ Representative, and its shareholders, directors, officers, employees, agents and representatives, against all claims, losses, damages, reasonable costs, penalties, fines and reasonable expenses (including reasonable expenses of the Vendors’ Representative’s legal counsel) which, without fraud, negligence, recklessness, wilful misconduct or bad faith on the part of the Vendors’ Representative, may be paid, incurred or suffered by the Vendors’ Representative by reason or as a result of the performance by the Vendors’ Representative of its obligations as Vendors’ Representative set out in this Agreement. |
(b) | to any Purchaser at: |
(c) | to the Vendors’ Representative at: |
(1) | This Agreement becomes effective only when executed by the Vendors, Shred-it, Boost GP, Boost Holdings and the Purchasers. After that time, it is binding on and enures to the benefit of the Vendors, , Shred-it, Boost GP, Boost Holdings and the Purchasers, and their respective heirs, administrators, executors, legal representatives, successors and permitted assigns, as applicable. |
(2) | Neither this Agreement, nor any of the rights or obligations under this Agreement, may be assigned or transferred, in whole or in part, by any Party without the prior written consent of the other Parties; provided, that: |
(f) | Stericycle, upon written notice to the Vendors’ Representative, may assign to any of its Subsidiaries any Purchaser’s right to purchase all or any portion of the Purchased Securities; provided, that no such assignment shall release or affect any of Stericycle’s obligations hereunder; and |
(g) | any Vendor, upon written notice to Stericycle, may assign to any of its Affiliates, including in connection with an internal reorganization or other similar transaction, all or any part of such Vendor’s Purchased Securities, or all or any part of such Vendor’s rights and obligations under this Agreement; provided, that: (i) no such assignment shall release or affect any of such Vendor’s obligations hereunder; (ii) any such internal reorganization does not adversely affect any Purchaser or any member of the Target Group, as determined by Stericycle in its sole and absolute discretion; and (iii) such Affiliate or successor shall agree to be bound by the terms of this Agreement by the execution and delivery of a joinder agreement in a form acceptable to Stericycle. |
(3) | Notwithstanding anything else contained in this Section 11.12, any Vendor shall be permitted to complete any internal reorganization or other similar transaction during the Interim Period upon reasonable notice to Stericycle and with Stericycle’s prior written consent (to be given and conditioned in Stericycle’s sole and absolute discretion, including with respect to requiring any such successor to agree to be bound by the terms of this Agreement by the execution and delivery of a joinder agreement in a form acceptable to Stericycle). |
(1) | This Agreement is governed by, and will be interpreted and construed in accordance with, the Laws of the State of New York and the federal Laws of the United States applicable therein. |
(2) | All Actions arising out of or relating to this Agreement, including all Actions arising out of or relating to the Financings, shall be heard and determined in the United States District Court for the State of New York or any New York state court sitting in Manhattan, New York, and the Parties irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, appropriate appellate courts therefrom) in any such Action and irrevocably waive the defense of an inconvenient forum to the maintenance of any such Action. The consents to jurisdiction set forth in this Section 11.14(2) shall not constitute general consents to service of process in the State of New York, shall have no effect for any purpose except as provided in this Section 11.14(2) and shall not be deemed to confer rights on any Person other than the Parties. Each of the Parties consents to service being made through the notice procedures set forth in Section 11.1 and agrees that service of any process, summons, notice or document by registered mail (return receipt requested and first-class postage prepaid) to the respective addresses set forth in Section 11.1 shall be effective service of process for any Action in connection with this Agreement or any Ancillary Agreement, or the transactions contemplated hereby and thereby. The Parties agree that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. |
(3) | EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT, INCLUDING ANY LEGAL PROCEEDING RELATING TO THE FINANCINGS, OR THE ACTIONS OF THE PURCHASER OR THE FINANCING SOURCES IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF. |
(4) | The Parties waive the application of any Law or rule of construction providing that ambiguities in any agreement or other document shall be construed against the Party drafting such agreement or other document. |
CC SHREDDING HOLDCO LLC | |||
By: | /s/ Michael Hansen | ||
Authorized Signing Officer |
CC DUTCH SHREDDING HOLDCO BV | |||
By: | /s/ Jeroen Harinck | ||
Authorized Signing Officer |
BIRCH HILL EQUITY PARTNERS MANAGEMENT INC. | |||
By: | /s/ David Samuel | ||
Authorized Signing Officer | |||
By: | /s/ Andrew Fortier | ||
Authorized Signing Officer | |||
SHRED-IT INTERNATIONAL INC. | |||
By: | /s/ David Samuel | ||
Authorized Signing Officer | |||
By: | /s/ Andrew Fortier | ||
Authorized Signing Officer |
BIRCH HILL SII LP, by its general partner, BIRCH HILL EQUITY PARTNERS MANAGEMENT INC. | |||
By: | /s/ David Samuel | ||
Authorized Signing Officer | |||
By: | /s/ Andrew Fortier | ||
Authorized Signing Officer |
BIRCH HILL SI (US) LP , by its general partner, BIRCH HILL EQUITY PARTNERS MANAGEMENT INC. | |||
By: | /s/ David Samuel | ||
Authorized Signing Officer | |||
By: | /s/ Andrew Fortier | ||
Authorized Signing Officer |
BIRCH HILL SII (ENTREPRENEURS) LP, by its general partner, BIRCH HILL EQUITY PARTNERS MANAGEMENT INC. | |||
By: | /s/ David Samuel | ||
Authorized Signing Officer | |||
By: | /s/ Andrew Fortier | ||
Authorized Signing Officer |
ASP SI HOLDINGS LUXEMBOURG S.A.R.L., by its A Manager, ADAMS STREET PARTNERS, LLC | |||
By: | /s/ Eric R. Mansell | ||
Authorized Signing Officer |
CONSCINDO LIMITED | |||
By: | /s/ Richard Parsons | ||
Authorized Signing Officer |
PRESIDIO INVESTMENTS INC. | |||
By: | /s/ Tracey Brophy | ||
Authorized Signing Officer |
SMITHAM HOLDING S.A.R.L. | |||
By: | /s/ Anke Lanser | ||
Authorized Signing Officer Monaco (Luxembourg) S.A., sole manager for and on behalf of SMITHAM HOLDING S.à.r.l. Registered office: 46A, Avenue J.F. Kennedy, L-AB55 Luxembourg, Grand Duchy of Luxembourg Share capital: 12,500 EUR R.C.S. Luxembourg: B 141B47 |
THE MANUFACTURERS LIFE INSURANCE COMPANY | |||
By: | /s/ Vipon Ghai | ||
Authorized Signing Officer |
TURNIA LIMITED | |||
By: | /s/ Theodoros Kyriaco | ||
Authorized Signing Officer |
1909312 ONTARIO LIMITED | |||
By: | /s/ Brad Erickson | ||
Authorized Signing Officer | |||
/s/ David Galloway | |||
2155499 Ontario Inc. |
/s/ Brenda Abramovich | ||
Brenda Abramovich | ||
/s/ Graham Acreman | ||
Graham Acreman | ||
/s/ Matt Aller | ||
Matt Aller | ||
/s/ Robert Andrew | ||
Robert Andrew | ||
/s/ Frederic Begtache | ||
Frederic Begtache | ||
/s/ Tom Bell | ||
Tom Bell | ||
/s/ Mark Biasucci | ||
Mark Biasucci | ||
/s/ Ann Bisson | ||
The Estate of Douglas Bisson | ||
/s/ Calvin Burton | ||
Calvin Burton | ||
/s/ Brad Campbell | ||
Brad Campbell | ||
/s/ Karen Carnahan | ||
Karen Carnahan | ||
/s/ Joe Cavanaugh | ||
Joe Cavanaugh | ||
/s/ Dipali Chander | ||
Dipali Chander | ||
/s/ Eric Chapat | ||
Eric Chapat | ||
/s/ Michael Collins | ||
Michael Collins | ||
/s/ Vincent De Palma | ||
Vincent De Palma | ||
/s/ Ed Delamater | ||
Ed Delamater | ||
/s/ Dallas Duke | ||
Dallas Duke | ||
/s/ Shelly Eddy | ||
Shelly Eddy | ||
/s/ Brenda Frank | ||
Brenda Frank | ||
/s/ Dan Galbraith | ||
Dan Galbraith | ||
/s/ Gary Gonsalves | ||
Gary Gonsalves | ||
/s/ Darryl Gray | ||
Darryl Gray | ||
/s/ Robert Guice | ||
Robert Guice | ||
/s/ Robert Guice | ||
The Private Pension-R Guice | ||
/s/ Ken Hafner | ||
Ken Hafner | ||
/s/ Julien Huet | ||
Julien Huet | ||
/s/ Peter Husseck | ||
Peter Husseck | ||
/s/ Rina Jardine | ||
Rina Jardine | ||
/s/ Kevin Kane | ||
Kevin Kane | ||
/s/ Gary Keefer | ||
Gary Keefer | ||
/s/ Jason Kim | ||
Jason Kim | ||
/s/ Eric Konicki | ||
Eric Konicki | ||
/s/ Sarah Koucky | ||
Sarah Koucky | ||
/s/ Shawn Lanthier | ||
Shawn Lanthier | ||
/s/ Stephen Mahnke | ||
Stephen Mahnke | ||
/s/ Punam Maini | ||
Punam Maini | ||
/s/ Patrick Mancuso | ||
Patrick Mancuso | ||
/s/ Arun McIntosh | ||
Arun McIntosh | ||
/s/ Colin McLelland | ||
Colin McLelland | ||
/s/ Rob Moran | ||
Rob Moran | ||
/s/ Dan Oliver | ||
Dan Oliver | ||
/s/ Timothy Parsons | ||
Timothy Parsons | ||
/s/ Neil Percy | ||
Neil Percy | ||
/s/ Mark Pescatore | ||
Mark Pescatore | ||
/s/ Joseph Pryznyk | ||
Joseph Pryznyk | ||
/s/ Pia Pulice | ||
Pia Pulice | ||
/s/ Colette Raymond | ||
Colette Raymond | ||
/s/ Geoffrey Reed | ||
Geoffrey Reed | ||
/s/ Jeffrey Reis | ||
Jeffrey Reis | ||
/s/ Keith Robbins | ||
Keith Robbins | ||
/s/ James Rudyk | ||
James Rudyk | ||
/s/ Paul Saabas | ||
Paul Saabas | ||
/s/ Harry S. Schlereth | ||
Harry S. Schlereth | ||
/s/ Daniela Seitz | ||
Daniela Seitz | ||
/s/ Ron Sency | ||
Ron Sency | ||
/s/ Michael Skidmore | ||
Michael Skidmore | ||
/s/ Viraf Talavia | ||
Viraf Talavia | ||
/s/ Stephen Tkaczyk | ||
Stephen Tkaczyk | ||
/s/ Edith Valentin | ||
Edith Valentin | ||
/s/ Ryan Vaughn | ||
Ryan Vaughn | ||
/s/ Peter Vavasour | ||
Peter Vavasour | ||
/s/ Peter Vincett | ||
Peter Vincett | ||
/s/ Chris Ward | ||
Chris Ward | ||
/s/ Mark Wilson | ||
Mark Wilson | ||
/s/ Todd Wolfe | ||
Todd Wolfe | ||
/s/ Sean Wynn | ||
Sean Wynn | ||
SHRED-IT JV LP, by its general partner, BOOST GP CORP. | |||
By: | /s/ David Samuel | ||
Authorized Signing Officer | |||
By: | /s/ Andrew Fortier | ||
Authorized Signing Officer |
BOOST GP CORP. | |||
By: | /s/ David Samuel | ||
Authorized Signing Officer | |||
By: | /s/ Andrew Fortier | ||
Authorized Signing Officer |
BOOST HOLDINGS LP, by its general partner, SHRED-IT INTERNATIONAL INC. | |||
By: | /s/ David Samuel | ||
Authorized Signing Officer | |||
By: | /s/ Andrew Fortier | ||
Authorized Signing Officer |
STERICYCLE, INC. | |||
By: | /s/ Charles A. Alutto | ||
Authorized Signing Officer | |||
1908223 ALBERTA ULC | |||
By: | /s/ Charles A. Alutto | ||
Authorized Signing Officer | |||
1908249 ALBERTA ULC | |||
By: | /s/ Charles A. Alutto | ||
Authorized Signing Officer |