(b) The Company does not have any debentures, debentures, debentures, other outstanding debts or bonds whose holders have the right to vote (or to convert into securities or exercisable voting securities) with the shareholders of the Company in any matter whatsoever. Except as otherwise provided in this Section 4.02 and with the exception of convertible notes issued pursuant to Section 6.01(d) after the date of this press release, there are no issued, reserved or pending subscriptions or other outstanding rights, warrants, calls, options, conversion rights, appreciation rights, redemption rights, redemption rights, redemption rights, other rights that may be acquired by the Company. agreements, understandings, obligations or rights of any kind that bind the Company, shares in the share capital or other securities of the Company or securities or bonds that may be converted or exchanged for shares or other securities of the Company or that give a person the right to subscribe for or acquire shares or other securities of the Company, to issue or sell. Neither the Company nor any of its subsidiaries is a party to a voting rights agreement with respect to voting on any of the above-mentioned securities. The terms of the profit-sharing element of the Timid Agreement are contained in a document designated by the parties as the Profit Sharing Plan or “PSP”. However, Navistar`s obligation to contribute a portion of its profits to fund the additional plan is part of the broader settlement agreement and consent order. (e) any failure by that party to comply with or perform any agreement, condition or arrangement that it fulfils or is intended to perform under this Agreement and which can reasonably be expected to result in non-compliance with the conditions set out in Article 9.02(a) or Article 9.03(a); Under the Contract and Order of Approval, Navistar was required to pay annual dividends to a supplementary benefit trust. The agreement created the SBC as the agent and administrator of the Supplementary Benefits Trust. Navistar`s methods for calculating and executing the commitment have been described in an incentive plan attached to the agreement and decree. Section 8 of the Plan required a regular report from Navistar to the IBC on the financial information required to confirm that Navistar was making contributions in the amounts required by the Plan.
Section 8 also includes a dispute resolution clause that requires that disputes related to “information or calculations” provided by Navistar be referred to an accountant (or other neutral decision-maker) chosen by the parties for an enforceable decision. The full clause provides that, unlike calculation disputes, classification disputes may relate to issues of contract interpretation and accounting, but this is not outside the plain text of the arbitration agreement for two reasons. First, the accounting nature of the dispute settlement procedure creates, at most, some uncertainty as to whether the scope of the “information or calculations” of disputes should be limited to disputes that may not require legal analysis. However, the wording of the contract, which is otherwise unrestricted, goes beyond any assumption that the parties have not given rise to arbitration disputes between an auditor. Ambiguities – if any – must be “resolved in favour of arbitration”, even if a compromise clause is limited in scope. Bratt comes into play. v. Second, contractual disputes, which are irrelevant classification arguments of the SGK, are relatively simple and closely related to accounting; it is reasonable to assume that the parties to the Agreement intended to arbitrate such disputes. In support of its claim that Navistar incorrectly classified the newly formed subsidiaries as “acquired companies”, the SBC refers in its complaint to the fact that the agreement is based on “generally accepted accounting principles”. The second and third violations alleged by the SBC concern certain components of the calculation of eligible profits – income and dividends from acquired foreign companies and Medicare Part D subsidies. At first glance, the issues of contract interpretation here seem to depend on accounting issues – whether foreign companies were controlled by Navistar and whether subsidies represented “revenue”.
The fourth alleged violation of the CBS also concerns the issue of whether employees were correctly classified as “eligible for bonuses” for the calculation of “eligible hours”. This seems to depend on how employees have been paid, which in turn is an area that accountants are familiar with. When accountants analyze company balance sheets, they necessarily rank different aspects of business performance to find inputs for calculations. Thus, it appears that an accounting arbitrator could effectively resolve SBK`s claims, at least to the extent that they relate to classifications in a classification containing essentially an accounting analysis. In fit Tech, while First Circuit refused to order accounting arbitration for allegations of “business misconduct unrelated to accounting policies,” it ordered accounting arbitration on “accounting matters.” 374 F.3d-8. Since SBK`s claim is essentially that Navistar misclassified various aspects of its business, resulting in the provision of false information to SBC, SBC`s claims fall within the scope of the arbitration agreement. Disputes about how income, hours worked and similar aspects of a business should be classified for accounting purposes are “information” disputes. To the extent that SBK`s claims go beyond categorizing Navistar`s operational practices, the claims are so closely related to the information provided to the SBC that the arbitration agreement continues to apply.
Section 1.02. Other definitions and interpretations. The words hereof, hereof and hereof and words of equivalent meaning used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The table of contents and legends herein are provided for reference only and are ignored in the construction or interpretation of these Terms. References to articles, sections, exhibits and annexes refer to articles, sections, exhibits and annexes to this Agreement, unless otherwise specified. All Annexes and Appendices annexed to or referred to in this Agreement are hereby incorporated into this Agreement and form part of this Agreement as if they were fully set forth herein. All capitalized terms used in an Appendix or Schedule, but not otherwise defined in it, shall have the meanings set forth in this Agreement. Each singular term in this Agreement shall be deemed to be the plural and each plural term shall be deemed to be singular. Whenever the words in this Agreement are included, included or included, they shall be deemed to be followed by the words without limitation, whether or not such words or words of similar meaning follow them. Written, written and similar terms refer to the printing, typing and other means of reproducing words (including electronic media) in visible form. References to a Statute refer to that Act, as amended, and to any rule, regulation or interpretation promulgated under that Act.
References to any agreement or contract refer to this Agreement or this Agreement as amended, amended or supplemented from time to time in accordance with the terms of this Agreement and this Agreement; provided that, in respect of agreements or contracts established in a timetable, such changes, modifications or additions must also be included in the relevant list. References to a person include that person`s successors and authorized assigns. References to or by any date mean, unless otherwise stated, of and including or through and inclusively. Except as otherwise provided in this Agreement, the date which is the reference date in the calculation of that period shall be excluded from the calculation of the period during or after which a measure is to be taken under this Agreement, and if the last day of the period is a non-working day, the period in question shall end on the next working day or, where action is required hereunder, on or before one day; which is not a working day, then such an action can actually be taken on or until the next day, which is a working day. References to a number of days refer to calendar days, unless working days are indicated. Except as otherwise provided in this Agreement, the term dollar and the symbol US dollars for the purposes of this Agreement and all amounts of this Agreement shall be payable in U.S. dollars and, if applicable, the amounts, costs, fees or expenses incurred by either party under this Agreement shall be denominated in a currency other than U.S. dollars, where appropriate, the United States. .